A good California Supreme Court decision curbs the family police

A decision by the California Supreme Court sheds rare light on how family police agencies (a more accurate term than “child welfare” agencies) like the Los Angeles County Department of Children and Family Services behave, and how that behavior hurts children.

What makes this case stand out is that, aside from making it all the way to the California Supreme Court, it doesn’t stand out.  It’s not a horror story.  It’s just DCFS doing what it usually does as it usually does it, leaving everyone worse off for their presence.

The case involves substance abuse. State law does not define this term. But it does say that substance abuse alone, whatever that may be, is not grounds for DCFS or its counterparts across the state to stick their noses into the lives of families.  Rather, as the Supreme Court pointed out, the substance abuse “must render a parent or guardian unable to provide regular care for a child and either cause the child to suffer serious physical harm or illness or place the child at substantial risk of suffering such harm or illness.”

This ruling raises two issues: First, as noted earlier, the law doesn’t define substance abuse.  (Some courts have wisely said that at least the alleged substance abuse should be what scientists who study this kind of thing say it is.) 

Unfortunately, the California Supreme Court rejected this perspective and substituted: Oh, just look it up in the dictionary! That’s an improvement over nothing at all, but it still leaves DCFS with way too much discretion.

But the Cal Supreme Court stopped the family police from employing a far worse interpretation. Under something called the “tender years doctrine,” which is a doctrine some courts came up with on their own, any child under the age of six could automatically be presumed to be “at substantial risk of suffering [serious physical] harm or illness” because of any parental “substance abuse.” Whatever that is.

Agencies don’t seem to apply this “doctrine” evenly.  LA County’s DCFS has not used it as a reason to raid Hollywood parties and see who’s staggering around drunk and who is doing a line of cocaine in the bathroom.  They are not monitoring pot-smoking mom Facebook groups, or raiding gatherings of “wine moms” or “cannamoms” at their kids’ play dates.  Rather, it’s one more excuse for inflicting white middle-class racial and class biases on poor nonwhite families – at the expense of those families’ children.

One such family is at the center of the recent Supreme Court decision.

The case involves a one-year-old known in court records as N.R.  A review of the facts, as explained in an amicus brief submitted by multiple national and California child advocacy and civil liberties organizations, reveals a series of lessons about the bad behavior of agencies like DCFS:

● Lesson 1: DCFS never should have been involved in this case at all, full stop.  DCFS originally went to the home of N.R.’s mother, not because of any allegation against her.  No one had called a child abuse hotline alleging she’d done anything wrong. 

Sheriffs were searching the home for weapons and drugs allegedly belonging to relatives with whom the mother lived.  The search turned up nothing illegal. No evidence relating to the warrant or anything that the Sheriff’s Department deemed illegal. DCFS was only present during the search because of a policy to accompany sheriffs on certain searches. So DCFS, which never should have been there, witnessed a search that turned up nothing.

Nevertheless, the DCFS caseworker said she didn’t “want” to leave the child with his mother, and so “asked” her to place the child with his father. 

Since DCFS workers have vast power in these situations, this was an offer the mother couldn’t refuse. 

We don’t know why the caseworker made this “request,” except that she apparently was discomfited by the presence in the home of marijuana paraphernalia, alcohol, and a “large” sex toy.  None of these items were illegal and all probably can be found in any number of Beverly Hills mansions.

● Lesson 2: There was no cause to investigate the father.  The father shared custody of N.R. and already cared for the child during some overnight visits.  There was no greater reason to scrutinize this “placement” than that of any other parent in a shared custody arrangement or, for that matter, any parent who sends the kids to grandma’s house while they go on vacation.

But because DCFS “asked” Mom to place the child with Dad, DCFS apparently was empowered to put Dad under a microscope.  He agreed to take a drug test.  The test was positive for cocaine – something that, of course, would never happen in an affluent white home. 

Lesson 3: There was no reason to remove N.R. from his father.  Two weeks after receiving the test result, even as N.R. was living safely with his father, the caseworker decided it was reason enough to disrupt N.R.’s placement once again.  Fortunately, the little boy was at least placed with another relative.  The father was charged with neglect because of the one positive drug test.  (He would go on to take several others that came back negative.) And the mother was charged with neglect for not “protecting” N.R. from the father’s drug use!

Lesson 4: There was no evidence of “substance abuse” – no matter what dictionary you use to define the term. The dictionaries cited by the California Supreme Court define substance abuse as, at a minimum, “excessive” – which is not synonymous with “any.”  And even if there was “substance abuse,” no evidence was cited that this presented any risk to the child, let alone a risk of “serious physical harm or illness.”

Nevertheless, based on what is known as the “tender years doctrine” the LA County juvenile court rubber-stamped the removal.

Lesson 5: Federal law requiring “reasonable efforts” to keep families together is ignored with impunity, according to evidence from across the country. But it’s worth noting the extent to which DCFS – and the courts – treat this law, and the families it is supposed to protect, with contempt.

In this particular case, the amicus brief explains, “reasonable efforts” consisted only of the following:

Interviewing the parents and law enforcement; assessing the child; requesting contact information for relatives; initiating and returning phone calls; referring the parents for on-demand drug testing; and explaining the court process to “all involved parties.” 

Additionally, the social worker claimed she “provided crisis intervention services as well as emotional support to family and children.”

In other words, she policed the family and made no efforts, let alone reasonable efforts, to keep it together.  Forcing a family apart is an odd approach to “emotional support.”

But that was enough for the judge, who checked the relevant box on a form, absolving DCFS of having to actually help the family.  (Under federal law, checking the reasonable effort box is required for the case to be eligible for federal financial aid, which is given to state or local governments, not the family.)

Lesson 6: Everybody lost.  In the end, the court said N.R. could return to his mother – the same mother from whom he never should have been taken in the first place; the same mother whom DCFS claimed was neglectful for not “protecting” N.R. from his father’s supposed “substance abuse.” 

So everybody loses.  The family is put under enormous stress.  And while things could have been vastly worse for the child, he still was subjected to repeated forced transfers from place to place.  It was only good luck that, after something (the large sex toy, perhaps) made a DCFS caseworker uncomfortable, other family was available to take the child in – twice.  Many other children, in a like situation, wind up consigned to the chaos of foster care with strangers.

This is among the worst things you can do to any child.  California, in particular, is obsessed with so-called Adverse Childhood Experiences (ACEs) – to the point that the state is bribing doctors to missuse ACEs questionnaires given to parents and older children (but only impoverished parents and older children).  The doctors, in turn, are mandatory reporters of any suspicion of “child abuse” or “neglect.”  The problem in logic here should be obvious: you can’t fight ACEs by inflicting ACEs.  As the amicus brief points out:

“One study analyzing 23 particular adverse childhood experiences that were predictive of emotional or behavioral problems for children found that forced separation from a parent or caregiver was the most predictive of a need for behavioral health services. Forced separation proved more harmful than emotional abuse or neglect, natural disaster, incarceration of a family member, physical attack, and community violence.”

This harm occurs before we even reach the issue of the high rate of abuse in stranger foster care itself. 

But when I say everybody loses, I don’t just mean those caught in the DCFS net – I also mean those overlooked.

Because all the time, money and effort spent persecuting this family; all that court time, and caseworker time, and lawyer time and drug test administrator time, and on and on was, in effect stolen from finding the next child in real danger.

So before anyone says it would be wrong to curb the unchecked power of DCFS and its counterparts because that could lead to the next Gabriel Fernandez or Anthony Avalos, consider: Those tragedies happened under the system Los Angeles has now.  Those tragedies happened in a system that already subjects 58 percent of Black children to a child abuse investigation before they turn 18.  Those tragedies happened in a system that tears apart families at one of the highest rates among America’s biggest municipalities. Only by curbing this vast power will workers have a chance to focus their attention on finding the relatively few children in real danger.

Thanks to the California Supreme Court, one of the problems exposed by this case may be less likely to recur.  But DCFS’ power remains largely unchecked – and that, in itself, makes all Los Angeles children less safe.

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of the National Coalition for Child Protection Reform.

He is the author of “Wounded Innocents: The Real Victims of the War Against Child Abuse”(Prometheus Books: 1990, 1995).

A widely respected expert in child welfare, Wexler has testified before Congress and State Legislatures, advised the U.S. Senate Subcommittee on Children and Families in its 1995 rewrite of the Child Abuse Prevention and Treatment Act, and served on the Philadelphia City Council Special Committee on Child Separations.