A New York State “child welfare” agency can curb one family policing horror with the stroke of a pen. Do they have the guts?

The number of ways family policing agencies (a more accurate term than “child welfare” agencies) can hurt the children they are mandated to protect is limited only by their imagination – and, unfortunately, this is the one area where they show any imagination at all. 

Among the worst things they do is tear children from the arms of parents – usually mothers – whose only crime is to, themselves, have survived domestic violence.  Among the reasons this does so much harm to children: 

● Research shows the trauma caused to children when they’re separated in these types of cases is even worse than the trauma in other situations.  One expert said taking children under these circumstances is “tantamount to pouring salt into an open wound.”  Unfortunately, at most family policing agencies their policy can be boiled down to “please pass the salt.” 

● Research shows the trauma of removal in such situations is worse than any trauma that may be caused by witnessing domestic violence.  In part, that’s because some children believe they must be responsible for their mother being beaten and now they are being punished. 

● Fear of family police coming to take away the children deters women from seeking help – and abusers know it.  One battered mother in Los Angeles whose children were taken summed it up simply: “I called the police for help, but I should have just let my ex-husband beat my ass.” 

That’s why a successful class-action lawsuit, Nicholson v. Scoppetta, curbed the practice in New York.  (NCCPR’s Vice President was co-counsel for the plaintiffs.)  You can read all about the lawsuit, and the research on this topic on our website here.  The federal suit was aimed at New York City’s family policing agency, the Administration for Children’s Services (ACS), but for complex legal reasons the issue also wound up before the state’s highest court, the Court of Appeals, which extended its potential impact statewide. 

And what was the response of ACS to all this?  In effect, they said: Well, maybe we need some other excuse to take away the children, but nothing stops us from endlessly harassing battered mothers and their children with oppressive surveillance!  So that’s what they’ve done.  And now there’s a new lawsuit to try to stop that practice as well. 

The agency that could help 

But there’s a state agency that could put a stop to a lot of this instantly, simply by making it harder for the process to get started in the first place.  To understand how, we need to understand how these cases usually come to the attention of family policing agencies. 

In the case that is the subject of the new lawsuit, The Imprint reports, the state child abuse hotline

 was notified of the domestic abuse from the mother’s therapist, whom she had confided in after telling [her abuser] to leave for good. 

Therapists are, of course, mandated reporters of “child abuse.”  Even had that therapist realized how much harm it would do to call in a report, the therapist may well have felt s/he had no choice. 

But there is an agency in New York that could fix that. It’s the New York State Office of Children and Family Services (OCFS). 

In New York, county governments (and New York City) run family policing.  OCFS theoretically
performs oversight.  Mostly that means interference that makes nothing better and sometimes makes things worse, as with their support for what should be called sugar-frosted foster care.  But its primary function is to enable mutual buck-passing.  Localities get to say: “The state made us do it!”  while OCFS gets to say: “That was [locality’s] responsibility.” 

One of OCFS’ few concrete functions is running the state’s child abuse hotline.  In an approach perfectly designed for maximum buck-passing, OCFS takes the calls from mandated reporters – like that therapist.  They then decide whether to “screen-in” the call for investigation.  Any call that’s screened-in is passed on to localities, which, almost always, must investigate them. 

OCFS does something else: It designs the online training course for mandated reporters.  Indeed, in what may be the first genuinely useful thing it’s done in decades, if ever, it improved that training course.  The new course is a muddled mess of mixed messaging. But that’s way better than the old training or any other training I’ve seen in any other state.  In those other courses, the message can be boiled down to Report! Report! Report! 

Now OCFS has a chance to make a much more substantive improvement – this time without confusion, hedging or ambiguity:  Simply change the training to specify that a child witnessing domestic violence, or a parent being a survivor of domestic violence is not grounds to call the hotline.  Then, if mandated reporters, or others, persist in making such calls, instruct the hotline operators to screen them out. 

What the Legislature could do 

These are things OCFS can do entirely on its own.  There also are steps the New York State Legislature could take. 

● Ideally, of course, the legislature would abolish mandatory reporting altogether. That is not the same thing as abolishing reporting; it simply would free professionals to exercise their professional judgment.  But short of that, there still are things the Legislature could do: 

● It could write into law that witnessing domestic violence is not, in fact, child abuse or neglect and therefore should not be reported. 

● It could exempt from mandatory reporting requirements any professional whose primary work is with domestic violence survivors. 

● More generally, the Legislature could create an “off-ramp” for mandatory reporters.  The theme of OCFS’ new training – stolen from family advocate Joyce McMillan of JMAC For Families -- is “you don’t have to report a family to support a family.”  

But if mandatory reporters opt to support a family and not report a family, they might still face penalties if something goes wrong and some grandstanding county district attorney decides to “make an example” of them. 

The Legislature could prevent that by changing the law to specify that when mandatory reporters, exercising their best professional judgment do indeed try to support a family instead of report a family – by, say, referring parents of a hungry child to a foodbank, or a homeless family to a housing agency, this is deemed equivalent to a report, and the reporter is exempt from any penalty. 

But, again, when it comes to domestic violence survivors, OCFS doesn’t have to wait for the legislature to take a big step forward.  The question is, does OCFS even know what stepping forward means?