Reforming the Mess that is CPS

In the last week I have been witness to an extraordinary number of issues brought to my attention by parents who have had their children sucked out of their lives due to allegations of abuse or neglect, often without cause, and often without trial.

Some of these parents are victims, some perpetrators.

All of them have been denied due process or have intentionally denied that same due process to another - usually their ex-spouse or other parent.

Many of these allegations revolve around Child Protective Services (CPS) in its various incantations among the several states.

I want to present here a blueprint to resolving these problems.

To do so I must first give you a background - a primer - on what is going on here, the standards used, and the judgments made by these organizations and those who report to them.

First, it is important to note that DHHS (that's the Federal Department of Health and Human Services) publishes, each year, a huge report on Child Abuse and Neglect. This report can be found (its most recent incantation) at http://www.acf.dhhs.gov/programs/cb/stats/ncands97/index.htm. (The reader is left to wonder why 1998 and 1999 seem to be 'missing'!)

It is necessary to critically parse this report, because there are many facts that are disclosed but not explained, and even more curious omissions are left in other places. However, what is clear is that in 1997 approximately three million reports of abuse or neglect were made. Some states "screen out" certain reports - those which fail to allege conduct that meets a state definition of abuse, for instance. Only 25 states report that, but of those that do about a third of their reports were omitted up front from consideration.

For those reports that were investigated, 56.2% were ruled unsubstantiated.

Ok. So we know that more than two thirds of all reports are in fact unsubstantiated (you must add back the roughly one-third of all reports that are discarded without investigation for failure to meet even the barest of standards of believability!)

But what does "unsubstantiated" mean? Doesn't that mean "he did it, but we couldn't prove it?"

For that we must turn to the law as it relates to standards of proof.

There are several standards of proof in the legal system, and they apply in different places. We will deal with them from the least to the most likely.

"Probable cause" is the lowest standard of proof. It is what is required to pull you over on the highway for suspected drunk driving, for instance. The police officer can't just randomly decide he thinks you're drunk - he has to have some kind of objective observation that leads him to believe this. When the police officer sees you weaving on the road, he has that probable cause.

Now this really is no proof at all, since you could have dropped a cigarette in your lap and been trying to avoid burning your legs in half - and that's why you were weaving. Or the famous "McDonalds' Coffee" incident might have just occurred. But, that standard of proof - a reasonable belief that you might have committed a crime, and that a reasonable person would believe, constitutes Probable Cause.

The next standard is "a preponderance of the evidence." This is the standard of proof in a civil lawsuit. All this really means is that what you are alleging is more likely to have happened than not - 51% is more likely, and therefore, could meet that test. Now the actual percentage to meet the test isn't written in the law anywhere, but the bottom line - "more likely than not" is the test. This is how OJ Simpson was able to be found "responsible" for a murder that he was acquitted of in his criminal trial - the jury found that it was more likely that not that he did the deed. This is not, by the way, proof that he did it!

The final standard is "beyond a reasonable doubt." This is what the prosecutor needs to send you to jail. It means that a reasonable person (usually 12 reasonable people, in the form of a jury) must find that there is no rational explanation that they believe which gives your story credibility. In other words, 12 reasonable people all believe that absent the intervention of Martians, you really did do what you were accused of.

So how does this all correlate?

Well, "substantiated" findings of abuse means that a reasonable person would conclude that the abuse occurred. If you see bruises on a person's back, and they are consistent with a beating, then it is reasonable to conclude that they were in fact beaten. This is a standard roughly in concordance with a preponderance of the evidence - that is, it is more likely than not that the abuse happened (note that we haven't gotten to who did it yet.) This is 28.7% of all investigations (which is actually one third too high since "tossed" reports don't count.)

How about "indicated" (the next 5.1%) of investigations? Well, an "indicated" finding would means that there is reason to believe that abuse might have occurred. This is a close match with probable cause as we discussed up above. Again, we're talking about the event here, and not the perpetrator.

Finally, we have "unsubstantiated" (56.2% of all reports, but this one is understated.) What does this correlate with?

It doesn't. And that's the point. An unsubstantiated report fails even the minimalist test of probable cause. It is a report that, after investigation, leads the investigator to find no evidence in support of further action.

Now there are states that go even further - they rule reports, in some cases, as unfounded. This is an even worse disposition in terms of believability than unsubstantiated, in that an unfounded report is one in which there was no rational basis for making it in the first place - that is, there was no foundation for the report. (As an aside, where these show up in the report by the DHHS is unknown; they may show up in the rather-large "other" column, which represents 8.1% of all investigations.)

What does this mean?

When adjusted for "tossed" reports that don't even meet the standard of proof of an allegation of conduct that would be abusive (if it happened), we have 73% of all reports (in total) that are "unsubstantiated", and if we assume that half of all "other" reports, adjusted for the 33% "tossed" rate, are "unfounded", then we have 2.67% more to add to that - or, basically, three out of four reports of abuse and neglect.

That's a bad record.

If we had three out of four people claiming that someone robbed a bank when not only did the person not do it but the bank was never robbed in the first place, we'd be tossing people in prison daily for false reporting of crimes. But that's not happening - it is only in this particular area that such a high (and growing) rate of bad reports are received.

Clearly, having CPS waste their time when three out of four reports turn out to be absolute nonsense is in nobody's best interest. The worst part of it is that this diverts their resources into wild goose chases and away from kids that really are being abused.

Clearly, we need to stop this.

But how?

I have a solution. Its simple, elegant, and would drastically reduce the rate of unsubstantiated reports.

To implement this, the following changes need to be made:

1. No report from an anonymous source is acceptable. That is, no call from a pay phone without identification, no "anonymous tips". Those go straight in the trash bin. They violate the most basic of democratic principles - that an accused person has the right to face their accuser.
2. Any report which is ruled unsubstantiated or unfounded pierces the immunity shield of the reporter. That is, the person accused has the right, on request, to the identity of the reporter of an allegation that is ruled either unfounded or unsubstantiated, and can sue them if they like for the damages done to their family, if any, by the unfounded report.

Now some will say that an "unfounded" report should lead to CPS losing their immunity. I stop short of this, because it leads to a situation of the fox guarding the henhouse. I do not want CPS to issue questionable rulings to protect their own skin; rather, I want CPS to issue true and unbiased rulings, and making them accountable for reports that they can't find probable cause to proceed on works against this goal.

Now in many cases unsubstantiated reports are made in good faith - and lead to little disruption or damage, if any. A single visit from a CPS worker doesn't give rise to a lawsuit, nor does it impugn (publicly) someone's reputation in a way that has meaning, particularly if CPS expunges the record upon issuing the "unfounded" ruling (as they should!) Nobody is going to get (successfully) sued over such a report.

But in cases where a parent, relative, or other person makes an accusation that is serious enough for CPS to immediately seize a child and remove him or her from the household or care of a lawful custodian, and it is later determined that the report was without foundation, the reporter of that alleged abuse should be liable at law for the harm they caused to be done through an agency of the state without good cause.

Today's laws immunize these reporters in most states; only a handful have criminal or civil sanction for malicious false reporting of any kind.

This reform would drastically reduce the number of false and baseless allegations of abuse and neglect. Now, a person who was going to make such a call would have to determine, as a reasonable person, whether there really is reason to believe that abuse has occurred - or whether, perhaps, they're just trying to be a pain in the ass to someone else.

This is a change in the law that is needed in all 50 states, and I ask for your support, letters, and advocacy to make it happen.