Episode Notes:

• Richard Wexler references an article in Boston Magazine called “The Really High Housewives of MetroWest Boston.”
• Richard Wexler mentions Kelly Fong’s book, “Investigating Families: Motherhood in the Shadow of Child Protective Services” which is releasing in October 2023.
• Richard Wexler cites a paper by Anna Arons called “An Unintended Abolition: Family Regulation During the COVID-19 Crisis.”
• Support the work of upEND: upendmovement.org/donate

Credits:

Hosts: Josie Pickens & Jaison Oliver

Producer: Sydnie Mares

Editor: Imani Crosby

Transcript

Josie Pickens

On this episode of The upEND Podcast. 

Richard Wexler

Shortly after the Flemming rule, a crucial change in financial incentives takes place. AFDC (Aid to Families with Dependent Children) welfare payments can follow a child into foster care. And lo and behold, during the prosperous 1960s, the number of children in foster care skyrockets.

Various Voices

Families separated through Child Protective Services voiced their anger on the steps of the state capital today.

They say the system has a history of racial discrimination.

Stop kidnapping Black children. 

This CPS system is just a part of a bigger system. We have to destroy the whole damn thing.

Jaison Oliver

53% of Black children will be investigated by the child welfare system by the time they turn 18.

Josie Pickens

The family policing system forcibly separates over 200,000 children from their families every year. Can a system that began with racist intent ever become a system that makes all children and communities safe?

Jaison Oliver

We know the answer is no. Absolutely not.

Josie Pickens

Welcome to the upEND Podcast, a podcast that looks toward the abolition of the child welfare system, which we end up in more accurately called the family policing system.

Jaison Oliver

In this podcast, we contemplate the history of family separations in the US, the current state of the family policing system, and what a future without family policing can look like.

Josie Pickens

We’re your hosts. I’m Josie Pickens. 

Jaison Oliver

And I’m Jaison Oliver. Let’s get started. 

Jaison Oliver

All right, thank you all for joining us. We have three amazing guests with us today on The upEND Podcast. First is Angela Olivia Burton, who was most recently Special Counsel for Interdisciplinary Matters in the New York State Office of Court Administration’s Office for Justice Initiatives. Prior to this position, she served for 10 years as New York’s first Director for Quality Enhancement, Parent Representation, at the NYS Office of Indigent Legal Services. Angela has taught courses in lawyering practice, constitutional family law, and children’s rights with a focus on the family policing system.

Richard Wexler is Executive Director of NCCPR. His interest in child welfare grew out of 19 years of work as a reporter for newspapers, public radio and public television. During that time, he won more than two dozen awards, many of them for stories about child abuse and foster care. He is the author of Wounded Innocents: The Real Victims of the War Against Child Abuse.

Mical Raz MD PhD is the Charles E. and Dale L. Phelps Professor in Public Policy and Health at the University of Rochester and a practicing adult hospitalist at Strong Memorial Hospital. A scholar of the history of child welfare policy, she is the author of three books, most recently Abusive Policies: How the American Child Welfare System Lost its Way.

Josie Pickens 

We’re so excited to get into this conversation. In our last episode, we talked about family separations and child welfare in the wake of emancipation. In this episode, we want to cover the history of family policing from the early 1900s to the 1970s, discussing family policing laws that are still in place today. 

Jaison Oliver

So we’ll pose this to Angela. To begin with, can you talk about why family separations and foster care emerged and then when the state formally created the right to take away kids? So really looking back at the Flemming Rule and talking about that as a foundation for this episode.

Angela Burton 

My understanding of the Flemming Rule and how it came about was as a reaction to states like Louisiana and Mississippi, which were really using an opportunity to kick mostly Black families off of the welfare rolls.

And that the then-secretary Arthur Flemming wanted to kind of counteract that and came up with this rule that was allegedly intended to counteract the way that these states were using this opportunity to kick Black families mostly off of the rolls. And in some accounts, the unintended consequence was that as a result, more children of Black families started to be taken and placed in out of home placement, “foster care,” rather than providing their families with the basic material supports necessary to maintain them in their homes. Now there’s a lot of detail missing from that summary, but that’s my basic understanding and perhaps, you know, Richard and Mical can fill in some of the blanks.

Richard Wexler

Well, I think that what you see is a perfect example of the old adage, follow the money. In the 1930s, in the middle of the Depression, Congress passes the first general welfare aid, called Aid to Dependent Children, later Aid to Families with Dependent Children (AFDC). And it’s fascinating to see what happened. Out-of-home placement declined. In the middle of the Great Depression, it declined because finally families were getting what they needed most, cash aid to stay together.

And of course, this was basically for various…they were various ways of states making sure, particularly southern states, we were talking about white families. So we get to the 1950s and southern states want to find a way to stop Black families from getting this money. So they come up with so-called suitable home rules. And what that basically means is if you’re Black, your home isn’t suitable. So in these states,

huge numbers of families, almost exclusively Black, were kicked off the welfare rolls. So, the Secretary of Health, Education and Welfare, that’s Flemming, takes a look at this and says, wait a minute, you can’t do that. If you kick all these families off the welfare rolls, there’ll be no support for the children. Now, he could have gone two ways. He could have said, don’t take those, kick those families out, we won’t let you. Instead, he said, sure, kick the families out, but you have to find some way to quote ‘support the children.’ So you have to support them when you place them someplace else. So right after, shortly after the Flemming rule, a crucial change in financial incentives takes place. AFDC welfare payments can follow a child into foster care. And lo and behold, during the prosperous 1960s, the number of children in foster care skyrockets.

Josie Pickens

Perfect, thank you all for those great answers. We are going to move into a question about CAPTA, or the Child Abuse Prevention and Treatment Act. First, I want to speak a little bit, Richard, about your background in working with policy, testifying before Congress.

You’ve advised the US Senate Subcommittee on Children and Families in its 1995 rewrite of the Child Abuse Prevention and Treatment Act. So we want to talk a little bit about CAPTA, which was established in 1974, if I’m correct. And we want to talk a bit about some of the provisions and impacts of CAPTA and the future of CAPTA. What do we need to know overall?

Richard Wexler 

As far as CAPTA goes, I think what’s important to understand about that, and I’m gonna defer on some of the history of how it came about, because Mical literally wrote the book on this. But in terms of what it does, CAPTA creates the framework for the system we have today. A lot of the system had started to build up even before CAPTA, but CAPTA creates the foundation and enshrines a whole series of bad things. And it started out enshrining bad things, and decade after decade, it brought in more and more bad things. So early on, CAPTA said you have to have mandatory reporting, which means that various professionals in some states, in 18 states, everyone, is required to report their slightest suspicion of abuse “neglect.” 

And we can go into detail later perhaps on how badly that has backfired and how much that has hurt all children. But CAPTA said you have to do that. CAPTA created a requirement that somebody “represent the child” but that somebody doesn’t have to push for what the child actually wants. It’s somebody who makes an independent judgment, a better term would be biased guess about what’s in the child’s “best interest.” And that someone can be a rank amateur, a so-called court appointed special advocate (CASA). So by the very nature of CASA, the people who are CASA volunteers are nothing like the families they are investigating. And as a result, they wind up prolonging foster care, increasing the likelihood that children will age out with no home and so on.

Later provisions were added to hypersurveil any parent, usually a mother, using drugs, particularly when they give birth. Even drugs that they were prescribed. And of course, it’s not going to be all mothers. If you are white and middle class, I invite anyone to take a look at the current issue of Boston Magazine, which has a celebratory cover about cannamoms and all these pot-smoking mothers bragging about it and saying it makes them better parents. You cannot do that in Roxbury, for example. But CAPTA creates the framework. Now, the one other thing I would add about CAPTA, which is extremely important, and Angela knows I’m going to say this because every time we have a meeting to discuss CAPTA, I say it. CAPTA is a paper tiger. 

And here’s what I mean. If you decide that CAPTA is bad for children and a state says, I’m not going to follow it, you lose almost nothing. A tiny amount of money is attached to CAPTA, some from grants, so small that lobbyists refer to such sums as budget dust. You will save more money in not doing needless investigations and needless foster care. So “CAPTA made me do it” is family policing’s equivalent of “the dog ate my homework.” But unfortunately, CAPTA’s harm is way beyond the actual money involved. It’s in the mindset and the framework.

Angela Burton

Right, right. And I think if I can piggyback on that last point that Richard made about it creates the framework, it’s the mindset, it dictates practice on the ground, CAPTA will be 50 years old next year. So the implementation of all those bad parts that Richard talked about that go beyond mandated reporting has been deeply entrenched into the way things are done. And so other aspects of CAPTA that we should look at in terms of it being what the federal government itself calls the foundational child welfare law of the United States. So aside from the fact that it’s not a lot of money attached to it, what it actually does is to frame the policy and the funding ratio of how states and local departments of social services actually implement the law. The other thing that I think is really, really important about the origins of CAPTA is that when it was implemented, it was written with no regard, with absolutely no acknowledgement of the constitutional rights of parents and children that are enshrined in constitutional law. 

The family rights, the right to family integrity, the right to parental decision-making, family autonomy, the child’s right to be raised by their parents, and the parents’ right to raise their children. There’s absolutely no recognition of those constitutional rights in the foundational child welfare law. Furthermore, there is a beyond what Richard spoke about with regard to, oh, there has to be some representative of the child’s interest. There’s no acknowledgement of due process to protect those rights, those civil rights, those constitutional rights, those human rights. 

So there’s no acknowledgement that there should be some sort of oversight. There should be some recognition of the limitations of government to intervene into the parent-child relationship into the family unit. And so I think that is a major failing of this law that has allowed for, and that’s just one, that has allowed for these violations and transgressions against the family and against children and parents, as well as other family members that get caught up into this dynamic that we’re sort of having to correct and redress. And that’s why you see the rise of things like advocates advocating for “family Miranda,” where government agents, CPS, Child Protective Services agents, should be explaining to people what their Fourth Amendment rights are, what their privacy rights are when engaging with the government around these allegations of child abuse or neglect. So we really have to take into account that that’s built into the system as well.

Jaison Oliver

So there’s something that you just brought in that was really important in terms of how people’s constitutional rights, civil rights, human rights, aren’t factored in here for the sake of protecting children, often at the expense of families which include that child. I want to see, can you all talk about what does that actually look like for families that are interacting with the system and having to experience these policies and experiencing the implementation of these policies. What’s happening? How does that actually look in terms of the violation or ignoring of their rights?

Angela Burton

It looks like fascism. It looks like terror. It looks like oppression. It looks like families, parents and children being summarily unceremoniously ripped apart. It looks like hidden foster care, which we can talk about in greater detail. But basically what it is, is that you have private citizens who are employed by the government. “Caseworkers,” CPS agents, et cetera, having pretty much free reign to come into a home, to search the home, to walk out the door with people’s children, to go to hospitals, take newborns from their mother at birth, pretty much. And also to dictate the intimate details of who that family can associate with, how often they can see each other, who can live with whom and for how long, how they get to spend their time during the day. Go to this service, go to that parenting class, go to this and that, right? And the goalposts change over time so that you never, there’s this never-ending oversight by government agents that dictate all the various intimate details of family life. 

That’s what it means because there’s no buffer at these early stages of intervention. There’s no right of the parents to lawyers, who can act as law enforcers about the agencies, the limits on government intervention, as well as the agency’s obligations to families when they do intervene in the family. So there’s a whole range of civil rights that don’t start at the courthouse door that are not being protected or acknowledged in these early stages of intervention by the government.

Jaison Oliver

We hope you’re enjoying The upEND Podcast. A quick note: upEND is funded through the generosity of people like you who believe that ending the harm of the family policing system will help us to create a safer future. If you’re enjoying this podcast, we hope that you’ll consider donating to our work. Visit upendmovement.org/donate for more information.

Josie Pickens 

But this is happening to particular families. This is happening to particular children. So could you add a little bit about that?

Richard Wexler 

Well, just to give a sense of what Angela was talking about, what I ask people to think of is this. Suppose when he were attorney general, Trump’s attorney general, William Barr, proposed anti-terrorism legislation with the following provisions. Special anti-terrorism police could enter any home anytime they wanted without a warrant based solely on an anonymous tip. They could search up and down the home, strip search the occupants of the home, and then walk out with any occupant of the home they so chose. They could do this entirely on their own authority. They could detain whoever they took out of the home for a week, maybe two weeks, maybe longer, before there is ever a court hearing. 

At that court hearing, the special anti-terrorism police have had plenty of time to prepare a case. If the person detained has a lawyer at all, it’s someone he met five minutes ago outside the courthouse. The standard of proof to hold the detainee indefinitely is not beyond a reasonable doubt or even the middle standard clear and convincing. It’s, quote, preponderance of the evidence, which is the same standard used to determine which insurance company pays for a fender-bender. Presiding over all this is a judge who knows he can detain all these people indefinitely, and terrible things may happen to them, but the judge is safe. But he certainly doesn’t want to look soft on terrorists by enforcing any due process rights. And to top it off, in most places, all the hearings are secret. Now, if William Barr had said, “I want Congress to enact that,” think of the furor that would arise, especially on the political left.

Well, that’s the system we have now in family policing. And I am sad to say, as someone who comes from the political left, it was largely a creation of the political left.

Josie Pickens 

Oh, I want to hear more about that, Richard. But I know we might not have time. But I think that’s such an important distinction and thing to discuss. But I wanted to see, Mical, if you have anything to add to this conversation. I mean, as Richard said, you wrote the book, literally. So I know that you have so much to offer us as far as the history and how CAPTA came to be and what you have seen and experienced around the harms of CAPTA.

Mical Raz

Absolutely. And I had a couple things to say about this. And so the first is in the 60s, states really scrambled to have mandatory reporting laws. So with 1962 publication of Kempe’s, a pediatrician, Henry Kempe’s article describing the battered child syndrome and kind of the news interest that it sparks, we suddenly recognize that child abuse is a big problem and states scrambled to pass mandatory reporting laws. And kind of within five years, every state has passed some.

And often these laws are kind of hastily designed, not particularly well thought out. Sometimes they have to be revised repeatedly. But they’re on the books. They move quickly. And it’s also important to remember that the federal government doesn’t necessarily change policy but often reflects policy. So CAPTA came in at a time when the states were already doing this. But CAPTA makes it worse. So CAPTA sets the standard for what states have to do.

Now, on the one hand, it’s good to have standards, because otherwise, you know, each state defines child abuse in a different way, and different behaviors can be criminalized in certain states, but not in others. And you wouldn’t be able to have any data about child abuse if every state defined child abuse in a different way. So there is an argument why there should be a standard. But CAPTA really doesn’t do this work. Instead, it sets such a broad definition of child abuse that you kind of just tumble over the bar, just walking down the street.

So one of the things that they want to have is make sure that mental injury or emotional abuse is based within CAPTA’s discretion. And in my book, I talk about how South Dakota applies for funding through some of the CAPTA schemes that open up after the passage of the federal law. And they say, oh, you know, South Dakota, you’re not eligible for these funds because your state statute doesn’t meet our required threshold of having a mandatory reporting for emotional abuse or mental injury. And so the attorney general comes back and says, no, we do. This is a part of our law in South Dakota that does address this. And they say, “yeah, that’s not good enough for us.” So South Dakota goes back and changes its law to meet the stricter CAPTA requirement. 

Now, CAPTA is not a lot of money, but it’s a threshold that states are scrambling to reach. And Angela made the excellent point about how CAPTA was designed without thinking about families. And, you know, I think it’s even worse than that. It was designed with input from the absolute worst people. And I spent some time in my book talking about this group that’s called Parents Anonymous, which is a group primarily of white educated women who are worried about abusing their kids. But a large majority don’t actually abuse their kids.

And the form of abuse they’re most worried about is verbal abuse, which is completely different from people who are trying to not hit their children, for instance, and might need intervention or help. But she creates this organization and she testifies at the CAPTA hearings. And she’s widely influential. She’s touted as kind of the most important testimony and her voice is broadcast throughout the entire country on TVs throughout the nation.

So we have a family, but we just have this person saying, I’m the abuser, I’m the monster, I’m the sinner who repented. It’s not a poverty problem, it’s a me problem, it’s a psyche problem, it’s all these things. And she creates this organization that I look at my book that gets funding from CAPTA. Walter Mondale, who is the sponsor of CAPTA, writes a letter supporting her application for funding. She gets money from the government. And then she creates this model of parents anonymous throughout the country in which, you know, there’s a sponsor and a group and a support group for parents who are worried about abusing their children. 

But as I talked about in my book, most of these groups were almost completely just people who were on a payroll. So there were like two people who were running it. They all got paid and then maybe two more people were sitting in the room. And so much of the federal money was spent on travel, self-promotion, pamphlet production that there’s actually an investigation into this into the finances. Which is always kind of the case when there are federal funds, there are people who are grifters who are trying to use these federal funds. 

Parents Anonymous plays an important role in creating this idea that child abuse is everywhere. It’s always an emotional problem for the parent who is an abuser. It has nothing to do with hardships or with poverty or with challenges the family is facing. And if only everybody would be like Parents Anonymous’ leader by taking responsibility and repenting, then there would be no more child abuse. This group comes to a terrible end when the founder of Parent Anonymous takes her own life after there were accusations that she called women in her group the N-word and blamed them for experiencing abuse. But it doesn’t matter if this woman was a racist, which she probably was a racist, but I mean, I’m not here to look into her own individual person psyche.

But the problem is that you created a system and a framework that makes child abuse an individualized, intra-psychic problem that you need to fix parents. And that is kind of the big legacy of CAPTA and of early child abuse interventions that have learned from her that these parents, something is wrong with them. We have to fix them. If only we did a little bit more interventions or one more psychotherapy session, then they’d be fixed rather than. What are the barriers for these families to thrive, which include not having money, not having jobs, not having resources? And there were a lot of people who were saying that at the time. So it’s not just not having the voices of parents, but having the voices of these parents. And that’s something that we see if we have time, I’m sure we’ll talk about other legislative acts in which parents were precluded from participating and their voices were not heard.

But when you talk about these laws and their unintended consequences, it’s important to remember that maybe they were not intended, but they were clearly foreseeable. And when you have a consequence that’s clearly foreseeable and you ignore it, what does it mean by saying unintended? It’s more like ignore it or we didn’t care for it. And I think the origins of family policing, you can really see that people were talking about this and were warning about this. And I’m going to give just one example and then pass it on because I know I’ve been talking for a minute.

But after CAPTA, there were efforts by a government agency to further expand the definitions of child abuse and have even lower thresholds and higher requirements for reporting. And this was part of the Department of Health, Education, and Welfare. And I talk about this in my book a little bit about this push to develop model legislation.

And Mondale was really alarmed and not just Senator Walter Mondale, but other advocates for families, advocates for minorities. And so I’m just going to talk about Mondale at this point. And he writes a letter to the secretary who is leading this effort and says, you know, the government has a responsibility, and I’m going to quote now, “to safeguard families, particularly those who are poor and for minority groups, from being enveloped in a system which may label them permanently as criminals or deviants,” end of quote, but also which lack the ability to give them the services they need. And Mondale says, you know, if you’re going to go and do this, I’m going to write every state and tell them that I personally say that this shouldn’t be adopted. 

And so first of all, this is a little bit of a story about how Walter Mondale was a mensch, even though I think CAPTA was well-intentioned, but poorly executed. But it’s also a story about how if even the man who wrote CAPTA or who sponsored CAPTA could see the harms of expanding mandatory reporting, what does it mean to say, oh, we never thought about this? Oh, this is unintended. We didn’t see this coming. Because a lot of people saw this coming and were warning as it happened. 

And so if in the 60s we were just making up mandatory reporting laws and we were just hoping to keep the, to manage to identify the people who were truly raping and murdering children, which there is a small minority of people who would cause physical and sexual harm to children, and we do want to identify these children. What is the right way? It’s a different discussion. So you could come into CAPTA thinking, oh, we need to identify these particular cases. But within a very short amount of time, it became very clear that we are policing a vast swath of the population, which is primarily poor and minority families, and maybe we should do something different. And people were saying, maybe we should do something different. And politicians were like, actually, we kind of like this.

Angela Burton 

I did wanna also expand beyond mandated reporting what CAPTA set in place, which is, which frames the system as it operates. And so when I read CAPTA, I see that there are four, at least four basic pillars of the system. We all talk about the system this and the system this…what is it?

There’s mandated reporting, and these are the actual labels that are put on these things. Mandated reporting, investigation, prosecution, which brings in the court system, and “treatment.” Hence the Child Abuse Prevention and Treatment Act. And so when we look at all those different pillars, the reporting is sort of like the 911 of the system where you capture this wide swath of people being identified and targeted and reported into the system for investigation. And that investigation is not benign. As Richard talked about, and as I mentioned earlier, these government agents can just walk up to someone’s door on an anonymous tip and just come in and go through cabinets, looking under beds, in the refrigerator, medicine cabinets, et cetera, et cetera.

Also, there are a lot of violations that happened during that investigation as well, aside from the strip searching of children, “to look for marks and bruises.” People, parents are coerced to sign in a way their privacy rights to their medical information, various and sundry things, right? Then the prosecution is a huge unexplored aspect of this system, where the court system now then takes over the prosecution, that’s the term that’s used in CAPTA, of parents who have been accused of poverty, mostly as we see in conditions of poverty. And then the treatment arena is a whole other industry of “services” as opposed to resources that most of these families really would benefit from, if any benefit would come from the government intervention. So just wanted to lay that out as well, that the mandatory reporting at the front end, the investigation, the court system prosecution, and then the encapture of families into this never-ending cycle of “treatment” which, as reported, many experience as punishment.

Richard Wexler

Two things I just want to add. First on the history, excuse me, and on Senator Mondale, that was one of the most fascinating things in Mical’s book, how quickly Walter Mondale realized in effect, oh my God, what have I done? But there were people who realized it before he did and tried to tell him, like a distinguished scholar by the name of David Gill, for example. And every time they try to talk about poverty, they would basically be told, shh don’t do that.

And the reason for that was, before CAPTA, Mondale had gotten Congress to pass a comprehensive childcare bill, something that would have actually done a whole lot of good. President Nixon vetoed it. So what Mondale famously said was, even Richard Nixon isn’t for child abuse. So he felt he had to craft something to get past Nixon. And all of these families are suffering the consequences of that. Secondly, one of the other fascinating things in Mical’s book is this amazing role of Parents Anonymous, which I didn’t realize, but there’s one other group I don’t want to let off the hook in all this, and that is the group that now calls itself Prevent Child Abuse America. They engaged in, and this is their term, “health terrorism.”

I actually heard one of their top officials say it at a conference by which they mean hyping and misrepresenting the true scope of a problem in the name of raising awareness. And they would put out things like special Spiderman comic books on emotional neglect, just like Parents Anonymous. Who emotionally neglects a child? A mother, not a father, who was, “too busy working with movie stars.” Or another Spiderman comic book that encouraged children to turn in their parents if they got a spanking. So the same mentality as Parents Anonymous, they have spread it and they are still around. And although they admit to having practiced health terrorism, they say it’s in the past tense. I’d say that’s debatable. They refuse to apologize for it.

Jaison Oliver

These are great points about the propaganda that’s happening here, some things about how families are threatened. If you don’t comply or if you don’t, if you try to fight back against this, it’s gonna be worse for you, which is exactly what we also see in the criminal legal system. Oh, you wanna go to trial? You wanna take this to court and not just take the plea deal? You’re gonna pay for it. 

It’s going to be worse if you in any way try to keep your children and not let us take this child away or don’t let us into your home to do a strip search of your child. I really, really appreciate how you all painted this picture. I want to make sure we give people an idea of mandated reporting and just a quick kind of what is mandated reporting for those people who may not be immediately familiar with the term.

Richard Wexler

Mandated reporting means that almost any professional who deals with children in most states, and in some states, every citizen of the state, is required to report basically their slightest suspicion of child abuse or neglect, as defined by the state, which basically means you’re required to report poverty.

And what happens is there is no penalty for getting it wrong and turning in and filing a false report, as long as it’s quoting good faith. And by the way, you can also report anonymously, so who’s going to know. But that’s still another issue. There’s no penalty for that. There are penalties for not reporting. So the system is deluged with false reports, trivial cases, and poverty cases. And we know because decades after we put these laws into effect, studies have been done and they show that it has two primary effects. It drives people away from seeking help. Families don’t dare come forward for fear of being turned in. And I’m gonna plug another, there’s a forthcoming book by another terrific scholar, Professor Kelley Fong, called Investigating Families, which does a brilliant job of explaining this. And she talks to the families and to the reporters about how the families are afraid to come forward, the reporters are afraid not to report. 

This also deluges the system. So workers have less time to find the very few children in real danger. What is fascinating about this is year after year, decade after decade, more and more one-time proponents have turned against this. Time after time after time, when it’s been studied, when it’s been looked at, they said, you know, maybe we really shouldn’t do this. And it is also a perfect example of hypocrisy when it comes to the idea of doing things that are evidence-based. This was put into effect with no study, no evidence, no indication it would work. Decades later, people finally started doing the studies. And the studies say, my god, it’s backfiring and hurting everyone. Just recently a leading figure of the child welfare establishment, whom I will not name, but a prominent “scholar”, said, oh, wait, before we do anything to curb mandatory reporting, we should do studies. Well, see, that’s not how evidence-based works. The way evidence-based works is first you come up with an idea, then you rigorously test it, and if it’s successful, then you implement it.

The child welfare, the family policing establishment version is, throw something up there that traumatizes millions of children. Decades later when people object, say, oh no, we need to do some studies before we stop it.

Mical Raz 

So I’d like to say a couple of things about this. So mandatory reporting is so ubiquitous that people, one in three of all children will experience a child abuse investigation before they hit the age of 18. Of course, for Black children, this is much higher numbers and it varies by states. In some states, more than 60% of all kids will be part of a child abuse investigation before they hit the age 18. And these numbers are absolutely wild. And a lot of it stems from a misunderstanding of the statute that it’s been taught as if you even think about this, you have to report this. 

And I know this as a physician who has done so many trainings as a mandated reporter. And so if you even think about the thought, you should report. And then the doctor or the professional reports it. It goes to a caseworker who’s overburdened, may have an undergraduate degree and says, well, the doctor was worried, so there must be something. And so there’s an article or interesting article called mutual deference about how doctors say, we’re not gonna think about it. We’re gonna let child abuse sort through it. And that child welfare says, we’re not going to think, you know, we’re going to defer to what the doctor says because they must know. And nobody actually can, everyone’s passing the buck and nobody’s taking responsibility and these families go through a nightmare of investigations and safety plans and interventions. And of course there’s no data to support this. 

Some states have universal mandatory reporting. So every adult is designated as a mandated reporter. And there’s a big study that shows that states that have universal mandatory reporting, they don’t keep children any safer. That more reporting doesn’t result in better outcomes for kids. In some states that you’ve expanded medical reporting, you’ve actually had worse outcomes for kids because when you overburden a system by more and more reports, you’re not going to actually be able to find perhaps the kids who are in need of intervention. And again, we now have a lot of evidence about how this doesn’t work. And there’s also the flip side that there are kids who are actually being harmed and they’re not being reported. And changing the laws doesn’t increase the likelihood of these kids being reported. 

So every time something bad happens, there’s a hearing about how we should expand mandatory reporting. So Larry Nassar case, the Michigan physician who was sexually abusing gymnasts. So Michigan tried to expand mandatory reporting. And then they heard from a bunch of people, including myself, about what that might look like, especially learning from Pennsylvania’s attempts to expand mandatory reporting in the wake of Coach Sandusky scandal. So always a scandal. People who don’t report and then we say, oh, how can we change the laws so that we could have retroactively punished people who didn’t report? So changing the laws in order to exact revenge on people who didn’t report is bad policy, but it also is incredibly expensive and doesn’t actually work. So Michigan didn’t end up expanding much beyond kind of expanding the law to physical therapists or something, because they figured out how much it’s going to cost them. But this also has a long history of doing things in the absence of evidence.

So in the 70s, there was a lot of questions about why do doctors fail to report child abuse? And there’s a lot that goes into that, but often they don’t recognize correctly the children who are at risk of being physically harmed, whereas they do recognize the kid who doesn’t have enough food or doesn’t have appropriate clothes for the weather because somehow that’s easier to recognize. So they report things perhaps that are not child abuse, but they don’t successfully identify the cases of physical abuse. And so a big study kind of asked doctors in the 70s, why they did or did not report. And often they couldn’t recognize appropriately, but often they just didn’t trust the child welfare system and they didn’t want to report. And so in the 70s, there was a commission about having model legislation. I’m just gonna tell this one story because I think it’s really remarkable and telling for what happens later. And so they say, what should be the threshold for mandatory reporting? How should we address mandatory reporting for the states? We’re gonna develop model legislation for states to emulate.

And then there was a whole debate whether there should be penalties for non-reporting. And a lot of very senior people, including Jule Sugarman, who was like the lead of Head Start in the past, said, you know, there shouldn’t be penalties for non-reporting or we shouldn’t expand them because we don’t want people reporting just out of fear of being prosecuted. We don’t need to do this penalty thing. And in the end, the penalties make the cut and they appear in the model legislation with a little asterisk that said, a lot of people didn’t want the penalties, but we couldn’t find any evidence that they don’t work. Dude, that’s not how evidence works. You find evidence that they do work. You don’t listen to a whole bunch of people telling you that this is a bad idea and say, yeah, but we’re… 

So there’s always this threshold, you know, evidentiary threshold to say, what we’re doing doesn’t work. Oh, where’s the evidence it doesn’t work? Well, it doesn’t work. But there’s no similar question. Why are we doing the things that we are doing when it’s clear that they don’t work? That all this reporting doesn’t make kids safer, that we’re not better identifying kids at risk, and perhaps we’re making it harder to identify the kids who do need intervention because we’re flooding the hotlines with ridiculous reports that don’t need to be made.

Angela Burton 

Yeah, cause all of this, let me just say, cause all of this is just window dressing to hide, to the extent possible, that this is a racist system that’s designed to target Black children and Black families. And then we get caught up in all of these intricacies of this, that, and the other thing, and why this and why that. Instead of looking at the reality of what we see as the result of the implementation of these oppressive tactics and arguing back and forth about the persuasiveness of this, of the evidence of that. Like that’s the distraction of the system and that’s the distraction of these laws and legislation that we really, when we start to think about dismantling, we need to get to the root of what is actually happening by seeing what is actually happening and calling out the reality of it.

Richard Wexler

In terms of what Mical said about how, yeah, people think, well, whatever it is, I should just, if I have the slightest, if the thought crosses my mind, I should report. That is often what the training says. I’ve taken three mandatory reporter training courses. So I’m now really well-trained, even though I’m not a mandated reporter. I take them so people, others don’t have to. But for example, the main one in Pennsylvania, all it is is report, report, report. And I even taught people how to cheat on that one. I said, whenever you see a quiz and the question is, should I report, just check the yes box, because that’s the only message. Now New York changed its mandatory reporting training curriculum. The New York one is now a muddled mass of contradictions. That is an improvement.

I also would say that since they are constantly saying their slogan is you don’t have to report a family to support a family, they rip that slogan off from Joyce McMillan. She should get a royalty every time anybody takes the New York course.

Mical Raz 

I was going to respond to Angela. I very much agree with what you’re saying. I think if the goal was to protect children, then we would create a system in which we help, we do the things that protect children. We make sure children have all they need to thrive, that they are not hungry, that they are fed, that they have homes, that they can go to school. We would make sure if this was really about protecting children, we would work to protect children. But this is a system that is designed to police families, and that’s what it does.

At every juncture, we say, oh, we should do more things to police more families. So it’s not unintended consequences. At every point in time, these are decisions that people review the evidence and say, well, we like what we’re doing. This seems to be working for whatever goals we have, and we’re gonna keep on doing this, regardless of how this impacts the safety of family and children. So I think this is important to remember that this is not like an accident.

But this is by design and the system is working the way it was designed to work, which is to police families and pit children and their needs against the needs of parents. And to on purpose.

Angela Burton 

While also not actually satisfying the needs of children.

Mical Raz 

Absolutely. And often it makes children less safe.

Angela Burton 

Absolutely.

Richard Wexler

The one bit of, I do want to make one, I wouldn’t call it optimistic, but one less pessimistic note. I didn’t know about this until Mical mentioned it, that you had managed and others to forestall a vast expansion of mandatory reporting in Michigan. This is the second time that’s happened and that is extraordinary. It’s damn near amazing. Massachusetts created a stacked-deck commission specifically with the mandate of how do we expand mandatory reporting?

And they were led by the nose by the state’s so-called child advocate who is fanatical about taking away kids and expanding mandatory reporting. After a year of this, they finally had to hold a public hearing, and because it was virtual it brought in people from around the country. Mical testified, Dorothy Roberts testified. Every witness, I think 30 or 40, except maybe one or two, said, don’t do that. Mandatory reporting is harmful. Members of the commission rebelled. They said they were shocked, surprised, taken aback. And while I can’t say they rolled anything back in Massachusetts, they refused to recommend any expansion. By the standards of the past 50 years, it’s revolutionary. And it’s because of people like Mical and Angela and upEND and Dorothy Roberts and so many others that we’re starting to see those kinds of in-runs.

Mical Raz 

And yourself, Richard, you’ve been saying this for decades before it’s been, before it’s been well accepted to say this. You’ve been saying this the entire time. So appreciate all you’ve done.

Jaison Oliver

Yeah, thank you, Richard. This point about these aren’t unintended consequences, they are very much foreseeable, foreshadowed, and ignored consequences is one that I think is really vital that we see. And I had made that connection between, I don’t think I learned until my late 20s that we had universal childcare, and it was repealed by Nixon, right? And looking at that and then saying, oh, we get the Child Abuse Prevention and Treatment Act just a couple years after we lose universal childcare. Yeah, like that, I hadn’t made that connection at all. 

Mical Raz 

We never had it. We never had it though. It was just, we passed it. It passed the two chambers, but never signed into law. 

Angela Burton 

There was a potential, they had the potential for it.

Mical Raz 

But it would have been nice. And they went out saying, you know, Mondale wants to sovietize America. So Mondale had to be very careful with the child abuse law to not, you know, not talk about helping families thrive or supporting families. Because he wanted this law to pass, but of course at what cost, right? At a cost of completely divorcing conversations of poverty and racism from discussions of child wealth.

Angela Burton 

Well, could I switch gears for a little bit and Richard, you probably can speak more to this than I can. I’m not exactly sure when Title II of CAPTA, the Child Abuse Prevention and Treatment Act came into being, whether it was at the beginning or came along sometimes later. But that Title II, which is the community-based child abuse prevention funding that goes to states, was at least a nod to an understanding that resources and supports in community might have something to do with all of this, but has remained sort of the stepchild of both policy and funding. Although there’s a lot of talk about prevention these days, there’s still not any real money going into that. So I don’t know, Richard, do you have a little bit more historical…?

Richard Wexler 

I don’t know exactly when it came into effect. My view of Title II is this: I don’t know if there are any fans of Hitchhiker’s Guide to the Galaxy among your listeners, but Title II passes the Hitchhiker’s Guide to the Galaxy test. It is mostly harmless. And one of the reasons for that is the Title II money funds do go into, theoretically, community-based stuff. But also there’s no penalties, there are no conditions attached. You can get Title II money without doing all the horrible things. And that’s why it would be possible, short of repealing CAPTA, which is ideal, if we could get all the money out of Title I and put it into Title II, then you would have the ability to get these grants without anybody having to have mandatory reporting laws, and all the other onerous conditions.

Jaison Oliver 

What would a post-CAPTA world look like? I know that’s something that we’re all working toward here. And we’ve already talked at length about the ramifications of CAPTA that were clearly expected, but what will a post-capital world look like, and how will that make children and families safer?

Angela Burton

Well, I’ll just jump in to say that, you know, my view of a post-CAPTA world is no more family policing. The system of reporting and investigation and prosecution and these mandatory coerced “services,” right? And so on the one hand, dismantling family policing, repealing CAPTA even though it’s a paper tiger, as Richard says, would mean relief for families from the fear of being reported and brought into this oppressive, destructive system. That is what in the first instance, along with and at the same time, actual resources. And I don’t like to use the word services because it has a whole pathological connotation of we’re fixing these broken, deviant people or whatever, right? It’s resources, even resources that address mental health or substance use issues. Those are resources that families could access directly without the threat or the presumption that to access them is somehow preventing something, as opposed to supporting children and their families in their communities to thrive and have access to all the things that affluent people have that put them on the road to healthy, successful, and joyful lives.

Jaison Oliver 

Maybe we’ll get into this and others, but I’m curious about if there are policies that you see us needing to build on that are already being put in place that help to support this, not just the relief, but also the creation of the systems of support. Child care is such a huge burden and like such a huge issue for families and it’s increasingly becoming an issue, especially in states like Texas. I just know how much of a difference that would have made 50 years ago and will still make today. So I’m wondering about what are the policies that people are fighting for that help to strengthen this post-capital world?

Richard Wexler 

Well, I think it is actually less a function of services or resources initially as it is due process. Because you can advocate for all sorts of services, and then after the first horror story, that’ll get wiped out and they’ll be taking away huge numbers of kids again. That doesn’t mean these things, universal child care, universal basic income, and all that aren’t vitally important. But paradoxically, we have seen child welfare establishment types try to co-opt that and say, that’s what we need, but the corollary is always, the hidden part is, until we get all of that, we should keep taking away kids. 

It’s important to understand. All those things are ideal, but it takes very little to be enough to get the family policing system out of poor families’ lives. Very small amounts of additional cash is enough. Of course we want more, but enough to get rid of family policing? Very small changes. And in looking at proposals for change, I have a simple test. When a group comes forward and says, “I want to create a child and family well-being system,” that’s already cause to be suspicious, but what are you proposing that reduces the power of the family police? If you are only talking about add-ons and services, you’re not serious. You need to talk about what is going to reduce your power as a family policing agency, as a private agency that depends on a steady supply of foster children. 

The other crucial thing that would help enormously is simply for the federal government to stop paying for foster care. They spend billions and billions, vastly more on that than on alternatives. Phase it out over the course of 10 years, take that money and shift it into community-based, community-run alternatives. And by the way, we’ve actually seen this happen, not for the federal government, but we have a model that tells us that this works. Ironically, it wasn’t caused by a law, it was caused by a virus. When COVID-19 struck, there were all these racist predictions that said, now that the mandated reporters don’t have their eyes constantly on all those overwhelmingly poor, disproportionately non-white kids, their parents are going to unleash upon them a pandemic of child abuse. That should show the blatant racism that underlies every premise of this system. But what was most interesting is what happened was the opposite. 

New York was a classic example. It’s been called the unintended abolition, in a great paper on this by Professor Anna Arons. What happened was the family police were forced to step back. Community-based, community-run mutual aid organizations stepped up. They figured out what to do. They figured out what families really needed, because they were of the community. And the federal government stepped in with the best preventive service of all, no strings attached, cash. Not only was there no pandemic of child abuse, it went down. Even the head of the family police agency in New York admitted as much. And nationwide in 2021, when the kids were already coming back to school, the federal government’s annual child maltreatment report found that reported quote abuse and quote neglect had reached a 30-year record low.

Jaison Oliver 

Josie, anything? I feel like we’ve come to a good kind of stopping place. I think we’ve given people a good understanding of the early history or mid 20th century, at least history of family policing and how that really has such important implications for what we’re seeing in courts, in homes, right? And across the country today. Any brief closing comments or things that y’all want to share before we wrap up.

Josie Pickens

I did want to add or ask, since we got observations from Angela and Richard about what does this country look like when we have done the work to repeal CAPTA, is we’re thinking about an abolitionist future. And I just wanted to see if Mical had something to offer as well, just to round it out. And then I think we’re at a great place to close.

Mical Raz 

I’m very much on the same page, but to prevent child abuse, you have to create conditions in which families can thrive. And that’s kind of how do we uplift all families to thrive? And I think these include, you know, people ask me, oh, what works to prevent child abuse? Well, we know cash, you know, cash income, childcare, respite care, expanding Medicaid. These are things that we can do that costs less than the vast infrastructure of family policing and foster care industry that we can do to keep families safer and to help them thrive. 

I agree with Richard that you have to also dismantle the family policing and it’s not enough to add services because you will always have the case that comes to the attention and they’re like, oh, now the pendulum has swung the other way and we must remove all of the children. But in a world in which we no longer have the looming threat of the family policing system, we should focus on what does work and how do we uplift all families. And these are just some policy proposals that, it’s not inventing something completely new, it’s building on what already exists and making sure it reaches those who could benefit from it the most. And that’s what I would like to see in the future.

Josie Pickens 

Yes, I think that’s it. We have so enjoyed this conversation. So much information. My brain is just moving so quickly with everything that all of you have shared. So much expertise. We really appreciate you being here with us today.

Angela Burton 

Thanks all of you.

Mical Raz

Thanks for having us. 

Thank you for joining us for the upEND podcast as we explore family policing system abolition. To learn more about upEND and our work to strengthen families and communities, visit our website at upendmovement.org and follow us on Twitter and Instagram at @upendmovement.