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The Hidden Totalitarianism of the Child Protective System

WEB Justina Pelletier

A Miracle for Justina/Facebook

Stephen M. Krason - published on 04/09/14

Concerned about the Justina Pelletier case? It’s just the tip of the iceberg.

Many people who have followed the Justina Pelletier case—largely ignored by the mainstream media, by the way—have thought that there has to be more to it, or that it’s an outrageous out-of-the-ordinary affair.

This is the case where the Massachusetts Department of Children and Families forcibly took custody from her parents over a year ago of a teenager who had been treated for years for mitochondrial disease (a genetic disorder), when they brought her to Boston Children’s Hospital for consultation about a related gastrointestinal problem and resisted a quickly-made diagnosis by a medical resident and a psychologist there that she instead had a mental problem. Justina has been confined to Children’s Hospital for over a year and then DCF assigned her to a group home and then foster care and a juvenile judge awarded the agency custody of her until she turns eighteen. Justina has written that she feels like a prisoner and she has been denied both schooling and the opportunity to attend Mass or receive Holy Communion—all this, while the hospital and DCF claim they’re “helping” her. Her parents’ have engaged in a protracted legal battle with DCF and now their attorneys have filed a habeas corpus action.

This is not a unique or unusual case. There is nothing more than we’re hearing. Rather, it’s par for the course for the child protective system (CPS) in the U.S., even if especially outrageous. As one who has written about the CPS for over a quarter-century, I can affirm that one aspect of the Pelletier case after another echoes typical CPS practice.

The CPS, by the way, was largely fashioned by the 1974 Child Abuse Prevention and Treatment Act (the Mondale Act), another example of the federal government’s efforts to solve a supposed national crisis, the “epidemic” of child abuse. As I’ve written in Child Abuse, Family Rights, and the Child Protective System and elsewhere, however, the epidemic never existed. In fact, even the government’s own evidence shows that there’s actually less true child abuse and neglect than in the past despite an out-of-control system of false reporting and CPS investigations of parents. Recent HHS statistics show that over 80% of reports of abuse or neglect made to the CPS around the country are unsubstantiated.

In the Pelletier case, the resident—who took it upon himself to reverse the long-standing diagnosis of much more experienced physicians connected with Tufts University Medical Center and started the mess—has remained anonymous. Boston Children’s Hospital has refused to publicly discuss the case, citing the federal HIPAA law. Many, if not most, reports to the CPS are made anonymously with the reporters never held accountable. The HIPAA law was supposed to insure patient privacy, just like the legally mandated “veil of secrecy” over CPS investigations was aimed at protecting families. In fact, these confidentiality requirements are being used to shield the hospital and the agency from adverse publicity—just how the CPS routinely uses them. In fact, the state CPS got the judge in the Pelletier case to impose a gag order, which helps minimize public scrutiny.

The judge, by the way, has upheld the agency every step of the way. This is consistent with the usual behavior of juvenile court judges when a CPS case goes that far. Instead of acting as truly impartial arbiters and tightly monitoring the agencies, they simply defer to the CPS. As Professor Paul Chill of the University of Connecticut Law School has written, parents face substantial obstacles when coming up against the CPS in juvenile court. The burden of showing that they are fit is shifted entirely to the parents. Also, the CPS’s removing children is supposed to be an emergency measure (say, when a child is facing serious bodily harm or death). That was not at stake in the Pelletier case and is not in many others.

Actually, the “guilty until proven innocent” standard is deeply ingrained in the CPS. The typical attitude of CPS operatives—most are trained in social work and related fields—is if they receive a report there just has to be maltreatment of some kind (even though the child abuse realities, as mentioned, are quite different). This follows from the belief that permeates the system that most parents are potential abusers.

Some may be stunned that Justina’s parents’ rights have been so easily tossed aside. They should know that few Bill of Rights protections apply to parents when facing the CPS. This is because child protection law is mostly under the category of civil, instead of criminal, law. So, criminal defendants have many more rights than parents in these cases.

The hospital and the agency think they definitely know what’s best for Justina—despite the fact that a mere resident and a psychologist who is not a medical expert made the diagnosis—just like the CPS in general believes that it always knows better than parents.

It is clear that the hospital and the agency have dug in their heels in the Pelletier case, insisting their conclusions are correct. The CPS is renowned for never admitting it’s wrong.

Little leeway seems to have been given to Justina’s parents—even though medical professionals are backing them up. One shouldn’t be surprised: the CPS is known for its attitude that parents can’t be trusted and are always wrong.

The state’s rationale in taking custody of Justina is that her parents were guilty of medical neglect, which comes down to meaning nothing more than they didn’t agree with the hospital’s diagnosis. Such arbitrariness is not surprising, since the child abuse laws are utterly vague and overbroad. There is even disagreement within the CPS as to what constitutes child maltreatment. This was deliberate: the architects of the Mondale Act wanted utmost flexibility to combat abuse. As Professor Philip Jenkins writes, they were driven by “therapeutic values” and could not understand why legal standards or parental rights should hamstring “objective” professionals trying to protect children.

Finally, the Pelletier case shows how, despite its name, the CPS often harms children. In state custody, Justina has received no treatment for her mitochondrial disease, no schooling, and no spiritual sustenance. She appears to be physically declining. This is not unlike the often grueling interrogations the CPS puts children through supposedly to find out if they were abused. In a Supreme Court amicus curiae brief, I argued that this could constitute psychological torture under international human rights norms. Further, the CPS is quick to assign children it has seized to a foster care system where genuine abuse is much more prevalent than in the home. It is striking how the CPS seems impervious to the adverse effects of its actions on children.

The weltanschauung of the CPS is a far, far cry from Pope Leo XIII’s saying that the
state should not “intrude into and exercise intimate control over the family” and should intervene only when there is a “grave disturbance of mutual rights.” Anyone who studies the CPS with objectivity and care can readily see its totalitarian dimensions. These are clearly illustrated by the Pelletier case.

Stephen M. Krasonis Professor of Political Science and Legal Studies and Associate Director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also Co-Founder and President of the Society of Catholic Social Scientists. He is the author of several books including The Transformation of the American Democratic Republic(Transaction Publishers, 2012), and most recently published an edited volume entitled Child Abuse, Family Rights, and the Child Protective System (Scarecrow Press, 2013).

This column originally appeared on Crisis.

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