Child-abuse claims vs. parents’ rights
Supreme Court mulls whether to take a suit accusing Illinois of forcing families to give up rights.
By Warren Richey | Staff writer of The Christian Science Monitor
from the June 12, 2008 edition
Washington – The US Supreme Court is being asked to determine whether procedures used in Illinois to investigate allegations of child abuse or neglect violate the fundamental rights of parents.
Hard lemonade, hard price
Dad’s oversight at Tigers game lands son in foster care
A number of people have sent us this story and we wanted to share it with our readers. If the case that child protective services needs oversight hasn’t been persuasive enough so far, maybe reading this story will be convincing.
By Brian Dickerson, Detroit Free Press Columnist
April 28, 2008
If you watch much television, you’ve probably heard of a product called Mike’s Hard Lemonade.
And if you ask Christopher Ratte and his wife how they lost custody of their 7-year-old son, the short version is that nobody in the Ratte family watches much television.
The way police and child protection workers figure it, Ratte should have known that what a Comerica Park vendor handed over when Ratte ordered a lemonade for his boy three Saturdays ago contained alcohol, and Ratte’s ignorance justified placing young Leo in foster care until his dad got up to speed on the commercial beverage industry.
Even if, in hindsight, that decision seems a bit, um, idiotic.
Ratte is a tenured professor of classical archaeology at the University of Michigan, which means that, on a given day, he’s more likely to be excavating ancient burial sites in Turkey than watching “Dancing with the Stars” — or even the History Channel, for that matter.
The 47-year-old academic says he wasn’t even aware alcoholic lemonade existed when he and Leo stopped at a concession stand on the way to their seats in Section 114.
“I’d never drunk it, never purchased it, never heard of it,” Ratte of Ann Arbor told me sheepishly last week. “And it’s certainly not what I expected when I ordered a lemonade for my 7-year-old.”
But it wasn’t until the top of the ninth inning that a Comerica Park security guard noticed the bottle in young Leo’s hand.
“You know this is an alcoholic beverage?” the guard asked the professor.
“You’ve got to be kidding,” Ratte replied. He asked for the bottle, but the security guard snatched it before Ratte could examine the label.
Mistake or child neglect?
An hour later, Ratte was being interviewed by a Detroit police officer at Children’s Hospital, where a physician at the Comerica Park clinic had dispatched Leo — by ambulance! — after a cursory exam.
Leo betrayed no symptoms of inebriation. But the physician and a police officer from the Comerica substation suggested the ER visit after the boy admitted he was feeling a little nauseated.
The Comerica cop estimated that Leo had drunk about 12 ounces of the hard lemonade, which is 5% alcohol. But an ER resident who drew Leo’s blood less than 90 minutes after he and his father were escorted from their seats detected no trace of alcohol.
“Completely normal appearing,” the resident wrote in his report, “… he is cleared to go home.”
But it would be two days before the state of Michigan allowed Ratte’s wife, U-M architecture professor Claire Zimmerman, to take their son home, and nearly a week before Ratte was permitted to move back into his own house.
And if you think nothing so ludicrous could happen to your family, maybe you should pay a little less attention to who’s getting booted from “Dancing with the Stars” and a little more to how the state agency responsible for protecting Michigan’s children is going about its work.
Doing their duty
Almost everyone Chris Ratte met the night they took Leo away conceded the state was probably overreacting.
The sympathetic cop who interviewed Ratte and his son at the hospital said she was convinced what happened had been an accident, but that her supervisor was insisting the matter be referred to Child Protective Services.
And Ratte thought the two child protection workers who came to take Leo away seemed more annoyed with the police than with him. “This is so unnecessary,” one told Ratte before driving away with his son.
But there was really nothing any of them could do, they all said. They were just adhering to protocol, following orders.
And so what had begun as an outing to the ballpark ended with Leo crying himself to sleep in front of a television inside the Child Protective Services building, and Ratte and his wife standing on the sidewalk outside, wondering when they’d see their little boy again.
A vain rescue mission
Child Protective Services is the unit of the Michigan Department of Human Services responsible for intervening when someone suspects a child is being abused, neglected or endangered. Its powers include the authority to remove children from their homes and transfer them to foster parents who answer only to the state.
By law, CPS officials are forbidden to discuss the particulars of any investigation.
But Mike Patterson, Child and Family Services director for the Wayne County district that includes Comerica Park, said that in general his agency’s discretion is limited once police obtain a court order to remove a child from the parental home — usually authorized, as in Leo’s case, by a juvenile court referee responding to a police officer’s recommendation.
“Once the court has authorized a child’s removal,” Patterson told me, “we cannot return the child to the parental custody” until the court has OK’d it.
But that doesn’t explain why CPS refused to release Leo to the custody of two aunts — one a social worker and licensed foster parent — who drove all night from New England to take custody of their nephew.
Chris Ratte’s sisters, Catherine Miller and Felicity Ratte, left Massachusetts at 10:30 the night of the fateful lemonade purchase after the police officer who’d reluctantly requested a removal order told Ratte the state would likely jump at the chance to place Leo with responsible relatives. But when the two women arrived at the CPS office early Sunday, a caseworker explained they would not be allowed to see Leo until they had secured a hotel room.
The sisters quickly complied. But by the time they returned to CPS around 10:30 a.m., their nephew had been taken to an undisclosed foster home, where he would remain until a preliminary court hearing the following afternoon.
By that Monday, April 7, when Ratte and his wife returned for a meeting with Latricia Jones, the CPS caseworker assigned to their case, no one in the family had been able to talk to Leo for a day and a half.
More investigation needed
At a hearing later that day, Jones recommended that Leo remain in foster care until she had completed her investigation, a process she estimated would take several days. It was only after the assistant attorney general who represented CPS admitted that the state was not interested in pursuing the case aggressively that juvenile referee Leslie Graves agreed to release Leo to his mother — on the condition that Ratte himself relocate to a hotel.
Finally, at a second hearing three days later, Graves dismissed the complaint and permitted Ratte to move home.
Don Duquette, a U-M law professor who directs the university’s Child Advocacy Law Clinic, represented Ratte and his wife. He notes sardonically that the most remarkable thing about the couple’s case may be the relative speed with which they were reunited with Leo.
Duquette says the emergency removal powers of CPS, though “well-intentioned” are “out of control and partly responsible for the large numbers of kids in the foster care system,” which is almost universally acknowledged to be badly overburdened.
Ratte and his wife have filed a formal complaint with the CPS ombudsman’s office.
“I have apologized to Leo from the bottom of my heart for the silly mistake that got him into this mess,” Ratte wrote in the complaint. “But I have also told him that what happened afterward was an even bigger error, and I would like to be able to say to him that institutions, like people, can learn from their mistakes.”
Contact BRIAN DICKERSON at 248-351-3697 or email@example.com
The case arises at a legal crossroads between the government’s interest in moving quickly to safeguard children from abuse or neglect and the right of parents to raise and maintain a family without undue government interference.
The high court is scheduled to consider whether to take up the case, Dupuy v. McEwen, at its private conference Thursday. An order agreeing or refusing to hear the appeal could come as early as Monday.
State procedures to investigate allegations of child abuse have been a topic of national concern after more than 400 children from a polygamist group’s ranch in west Texas were taken from their parents and held for nearly two months in foster care. The Texas Supreme Court later ordered state officials to return the children to their parents while the investigation continues.
At issue in the Illinois case is whether state officials can use the potential threat of placing children in foster care as a means to pressure parents to forfeit their parental rights.
Agents with the Illinois Department of Children and Family Services (DCFS) routinely advise parents in the initial stage of an abuse investigation that their children may be taken into state custody unless the parents agree to a state-imposed “safety plan.” Such plans can require the accused parent or parents to leave the home immediately and cease all unsupervised contact with their children for the duration of the investigation, according to a lawsuit filed by a group of Illinois parents.
Imposition of the safety plan can be authorized by a single unconfirmed tip received via an anonymous child-abuse hot line, the suit says.
In contrast, to authorize the removal of children from their parents, authorities must be able to present enough evidence to convince a judge that there is “reasonable suspicion” that a child has been abused or is in imminent danger.
Illinois officials bypass this evidentiary standard and judicial oversight by giving parents an offer they can’t refuse, according to the lawsuit.
The offer: Agree to a safety plan or your children may be taken away. Parents are not given an opportunity to know the substance and source of an abuse allegation, nor are they given an opportunity to challenge the safety plan before a neutral decisionmaker.
Is it coercion? Judges disagree.
A federal judge ruled that such tactics by state officials were a form of coercion. But a federal appeals court disagreed. The Seventh Circuit Court of Appeals in Chicago upheld the state program, saying it raised no constitutional issues because the parents had voluntarily agreed to the safety plan.
“We can’t see how parents are made worse off by being given the option of accepting the offer of a safety plan,” wrote Circuit Judge Richard Posner. He said the safety plan offers parents more options, not fewer options.
“If you tell a guest that you will mix him either a Martini or a Manhattan, how is he worse off than if you tell him you’ll mix him a Martini?” Judge Posner wrote.
Lawyers for the families say parents have a fundamental right to raise their children without government involvement unless officials can show evidence of abuse.
“There has to be some compelling interest in overriding that basic protection [of parents’ rights], and a hot-line call by itself doesn’t cut it,” says Diane Redleaf, executive director of the Family Defense Center in Chicago and a lead lawyer in the case.
“The Seventh Circuit’s suggestion that the agonizing choice at the center of this case between leaving one’s family or having one’s children taken into state custody is no different than choosing between a ‘Martini’ or a ‘Manhattan’ at a cocktail party, trivializes the family’s fundamental liberty interests,” writes Stanford law professor and lawyer Jeffrey Fisher in a brief to the court on behalf of the Illinois families.
“When a person is offered a ‘Martini or a Manhattan,’ he always retains the option of declining both drinks,” Mr. Fisher says. “Though it has no evidence of parental wrongdoing, DCFS does not offer parents the option of no restrictions on their family life when it ‘offers’ safety plans.”
Parents never risk losing children
The safety plan program began in 1995. Safety plans are offered to an estimated 10,000 Illinois families each year. There is no record that any parent has ever refused to participate in a safety plan and risked having the state take custody of his or her children.
Illinois officials defend the program, saying parents voluntarily agree to safety plans. They say the plans are designed to provide a middle path between taking every child into state custody or leaving children in the presence of potential abusers during an investigation.
The safety plans are severe enough to prompt the participation of other family members like grandparents or aunts but not so severe as to wrest the child from his or her home, officials say.
State child-protection officials say their mission is different from that of the criminal justice system and that they should not be held to a high legal standard. DCFS is protective and supportive, not punitive, they say. As one official put it: “We are expected to go into a home, determine what has happened, and predict what might happen in the future.”
Both sides in the case dispute various statistics. Fisher says allegations in approximately two-thirds of all Illinois hot-line reports are eventually determined to be “unfounded.” The state responds that less than 20 percent of all hot-line reports are even investigated.
Fisher and Ms. Redleaf offer several examples of parents accused of child abuse. One case involved a married couple, both professors at a major Chicago-area university. Someone made an anonymous call to the hot line suggesting that one of the professors had abused his 8-year-old adopted daughter. Prior to any investigation into the veracity of the charge, state agents offered the professor a choice: leave the home immediately pursuant to a safety plan or DCFS would take the girl into foster care. The professor moved out. During the investigation, the state found no credible evidence supporting the abuse charge.
In another case, high school science teacher James Redlin was suspected of child abuse after state authorities received an anonymous tip that he had sexually abused his mildly autistic 6-year-old son on an occupied subway train. Mr. Redlin says it was playful tickling, not sexual abuse. But someone thought his conduct was inappropriate and informed state investigators. The state’s safety plan required Mr. Redlin’s wife, who uses a wheelchair, to provide 24-hour supervision of any contact between Mr. Redlin and their son. That case was later determined to be “unfounded.”
In a third case, a preschool teacher, Patrick DeLaFont, was accused in a hot-line call of abusing a preschool child. State investigators required Mr. DeLaFont to move out of his home, pending the investigation, even though none of his own children were the subject of the accusation. After living apart from his family for 11 months, investigators concluded the allegation against DeLaFont was “unfounded.”
After a 2-year-old girl fell from a back porch while playing, her parents took her to a hospital emergency room where X-rays revealed a fractured arm. Someone at the hospital doubted the back-porch explanation. State investigators demanded that the husband seen as the likely abuser leave the family home for 24 hours. He did so. A week later, the day before Thanksgiving, agents ordered both parents out of the house or risk having both their children taken into foster care. Grandparents arrived to care for the children while the parents were sent away. A week later, the parents were allowed to return home to their children after another doctor examined the X-rays and found no basis to suspect child abuse.
FBI, State Investigate Drug Firm
The Chicago Tribune’s lead article today (Wednesday January 31, 2007) has the headline “FBI, state investigate drug firm.” The article concerns billing fraud by a DCFS-contract agency K.K. Bio-Science Inc. It reports that the current FBI probe follows a DCFS Office of Inspector General report. It does not state when, in the 15 year history of the contract with this company, questions about their fraudulent billing practices first arose or how those concerns came to the OIG’s attention.
An issue that is not discussed in the news article but which is of great concern to the Family Defense Center is whether families are the victims of false court reports related to the falsified billings for drug tests that were not done. If so, in some cases children may have been returned to parents who were thought to be drug free but were not and in other cases, false positives may not have been retested to show that they were false, in which case a child might have been kept in care on the basis for a false positive that should have been retested. While we have no information at this time as to the full scope of the reported fraud, the central role of drug testing in determining whether children are returned home or remain in foster care makes it vitally important that a full investigation and review of the court reports relied upon by DCFS and its agents and presented in the juvenile court occurred.
The Family Defense Center is willing and able to speak confidentially to any family member who believes they have were the victim of a fraudulent report by K.K. Bio Science Inc. as that report relates to a DCFS or juvenile court matter. (If the drug test report was used was in domestic relations court or criminal court, our limited resources would not extend to investigating the merits as to those reports and their impact).