Illegal Procedure

By: Paul Stuckle, Attorney at Law

By PAUL G. STUCKLE

Child Protective Services

This month's edition of Illegal Procedure takes a closer look at the mandatory reporting laws, the best friend of Child Protective Services (CPS). What exactly is CPS? To the general public, Child Protective Services (CPS) is an altruistic caring agency dedicated to the discovery and subsequent protection of abused children. Each state has some form of CPS with nearly identical agendas. The agency is usually a subdivision of the states human resources department.

Children's Protective Services. What a nice, warm and fuzzy sounding name. What a concept. Who, in their right mind, could possibly oppose protecting children, right? Well, if you actually look at what is done to children, parents, families and society in general by this extremely facist and un-American agency (or set of agencies) and the unconstitutional so-called 'Family Courts' you will come to the realization that 'protecting children' is the last thing on the lists of these people. (Silverstorn, The Truth About Child Protective Services, home.attbi.com/-silverstorm/cps.htm)

CPS has had a dramatic increase in size, budget, and power over the last few decades. Part of the reason CPS has gained strength is through Federal subsidizing made possible by the Child Abuse Prevention And Treatment Act of 1974,(CAPTA). This federal law provides funding to states for the creation, development, and utilization of child protective agencies. Bottom line for the falsely accused is this: Child protection is now an enormous financial industry. Each state receives millions of federal dollars in grant money by adopting provisions of CAPTA. Guilty Until Proven Innocent: A Manual for Surviving False Allegations of Child Abuse, Kim Hart). CPS receives money, and significant amounts of it, for the removal of children and placement into foster homes. It has been estimated that CPS receives $3,000.00 to $5,000.00 per month for each child it has removed and placed.

One of the deals CPS has going is they also run the foster care system. The government pays CPS money, a bounty as it were, for each child in state custody. Not only that, but they get paid by the month. What this means is that if CPS takes a child into custody, and holds them for only two days, they get paid by the government, from your tax dollars, for a full month! Add to this the fact they also charge the parents and guardians for the privilege of having the children in foster care. This can be $3000 per month PER CHILD.....OR MORE! Does it begin to sink in yet as to why CPS would be interested in quantity of complaints rather than quality? (Silverstorn, The Truth About Child Protective Services, home.attbi.com/-silverstorm/cps.htm)

The Child Protection Industry

According to the late Dr. Richard Gardner, the reason for the alarming rise in child abuse allegations and specifically false allegations can be rationally explained. "There's a complex network of social workers, mental health professionals, and law enforcement officials that actually encourages charges of child abuse-whether they are reasonable or not." Dr. Gardner is referring to the fact that the Mondale Act (CAPTA)is responsible for the dramatic increase in child abuse charges. "In effect, the Mondale Act, despite its good intentions, created and continued to fund a virtual child abuse industry, populated by people whose livelihoods depend on bringing more and more allegations into the system." (A system out of Control: The Epidemic of False Allegations of Child Abuse, by Armin A. Brott)

Ray Thomas, an accomplished critic of CPS, compares the phenomena of child abuse complaints to the 'Hegelian Principle' utilized by con men. According to Thomas, this requires three steps:

1. Create A Problem: Or call attention to something you can con the public into believing is a problem;
2. Publicize the Problem: Make use of every propaganda method known to man to condition the public into believing there is a problem and get your friends in the mass media to publish one or more horror stories every day to condition the masses to believe there really is a problem that needs to be solved;
3. Offer A Solution: One that takes away one more small right. (But hey? you can afford to give up that 'itty bitty' right in order to solve the problem, can't you?) or add one more small tax. In this manner,they get their victims to give their sanction for their own enslavement.
4. The victims agree to changes they would not have agreed to without this prior conditioning. (Ray Thomas, Target Your Child

The Madness To The Method

CPS operates with the group mind set of most bureaucracies. The agencies main objective is self preservation: to perpetuate the bureaucracy and to expand the bureaucracy.(Silverstorn, The Truth About Child Protective Services, home.attbi.com/-silverstorm/cps.htm). The method for doing this is by seeking and making cases. CPS does not take a passive role waiting for verified cases of child abuse to be provided to them. Rather, they take an aggressive role seeking out families and children on a mere scintilla amount of evidence. The financial rewards for CPS through removal of children and placement in foster homes is not dependent upon criminal convictions or termination of parental rights. The funding is given to CPS regardless of the outcome of the case, or truth of the allegations. With absolute immunity from liability, the CPS caseworker has no fear of any repercussions for their actions.

CPS actively seeks complaints through a variety of methods. The agency has an enormous budget for propaganda campaigns, which it freely spends to generate cases and subsequent income for itself. CPS is a master manipulator of the public. The agency creates mass hysteria by a fostering a false representation of a child molester lurking behind every tree. The propaganda machine's effectiveness is accomplished by combining two key elements. First, a product, children, a universal symbol of innocence with the need for love and protection. Second, a tried and true sales technique: fear. The fear of having our children kidnaped and murdered. The fear of our children molested. It is a fail safe combination.

The agency advocates the reporting of possible abuse upon mere or even no suspicion. A current CPS ad campaign entails a father with a child entering an elevator occupied by a woman. The man and woman exchange pleasantries and then the father and child leave the elevator. On the fathers back is a sign with large letters reading, 'child abuser.' The narrator then says, "If only child abuse were this easy to see. Trust your instincts. Make the toll free call and report suspected child abuse." Then a toll free phone number is pasted over the television screen. Interestingly about this particular ad is the fact it mirrors CPS investigations in many respects. In the ad, the woman who is being urged to make the call, had absolutely NO EVIDENCE at all of any abuse occurring to the child. Unfortunately, this is the starting point for most CPS investigations. The toll free calls also offer confidentiality. While this protects the genuinely concerned citizen to make a call concerning suspected abuse, it also opens the door for mean spirited and baseless complaints.

CPS advertising agenda calls for Americans, much like the Nazi children of the 1940's to inform on parents and neighbors, without the potential for reprisal, without the requirement of any level of proof. As Ray Thomas notes:

Child Abuse in recent years has taken on a witch hunt atmosphere wherein all it takes is a simple anonymous telephone call to start the nightmare, both for innocent parents and their children. Good Samaritan laws (for the most part) completely protect everybody from retaliation even if they lied in their report for an ulterior motive. (Ray Thomas, Falsely Accused of Child Abuse)

Every state has a toll free child abuse hot line number set up. In addition, advertising for the toll free numbers appear constantly on televison, magazines, and newspapers. The Federal DHS, Children's Bureau has published a how to site including hot line phone numbers for the 50 states on How to Report Suspected Abuse and Neglect.(Susan Smith, Mandatory Reporting of Child Abuse and Neglect, March 2002).

The Mandatory Reporting Law

Each state now has a mandatory child abuse reporting law. The laws are a pre-requisite for the states to receive funding from the federal government under CAPTA. The following offer links to the mandatory reporting laws of each state:

1. https://www.smith-lawfirm.com/mandatory_reporting.htm
2. www.ministerscouncil.com/mandatory_state_reporting_laws.htm
3. www.calib.com/nccanch/pubs/sag/manda.htm
4. www.dss.cawhet.gov/cdssweb/default.htm

Texas law, for example, requires a professional with cause to believe that a child has been abused or neglected to make a report to CPS within forty-eight hours after suspecting abuse. The professional cannot delegate the responsibility to make the report upon any other person. Tex. Fam. Code 261,101(b). In Texas mandatory reporters include: teachers, nurses, doctors, day-care employees, juvenile probation officers, and juvenile detention or correction officers. The duty to report takes priority over any other recognized legal privilege. There is no privilege to refuse to report available for an attorney, member of the clergy, doctor, social worker, or mental health professional. Tex. Fam. Code 261.101(c). The identity of the professional making the report is confidential unless waived in writing. Tex. Fam. Code 261,101 (d).

Texas follows the trend in other states by requiring any person to make a report if they have 'cause to believe that a child's physical or mental health or welfare has been adversely affected by any person.' Tex. Fam. Code 261.101 (a). In addition, Texas authorizes the District Attorney of the county in which the report is made to be notified of every complaint at the time it is made. Tex. Fam. Code 261.1055

One of the problems for both the mandatory and citizen reporter is the absence of clear guidelines. Although each state law contains definitions of abuse and neglect, it is a matter of personal discretion when the standard is met. The standard itself can be rather vague, calling for a report when an individual has 'cause to believe' abuse or neglect is present. For CPS this is a goldmine, as it increases the number of reports substantially:

They (CPS) have lobbied hard and long and been rewarded with ever increasing numbers of people who are classified as 'mandatory reporters.' What does that mean? It means there are people who if they even suspect a child MIGHT be being abused they MUST by LAW, report the parents or guardians to CPS. They are told by CPS that they did the right thing, that the parents or guardians will be contacted and services will be offered to them. Silverstorn,The Truth About Child Protective Services,home .attbi.com/-silverstorm/cps.htm

As Kim Hart, Director of the National Child Abuse Defense Resource Center observes: An allegation of child abuse or neglect may arise from something a child says to someone, such as an angry ex-spouse, neighbor or teacher. The allegation may stem from someone observing the behavior of the child a behavior interpreted as suggesting child abuse.(Guilty Until Proven Innocent: A Manual for Surviving False Allegations of Child Abuse, Kim Hart)

Mandatory reporters face criminal penalties for failure to report. In addition, failure to report results in potential professional misconduct including grievances, discipline, and ultimate loss of the ability to work in one's chosen profession. With this tool, new cases have are reported to CPS upon mere suspicion and often with no suspicion at all. The professional knows that he/she must err on the side of caution. Self preservation takes priority over facts, creating an overabundance of reporting rather than facing the possibility of professional sanctions.

Attorney Jennifer Cox believes there is substantial motivation for mandatory reporters to err on the side of caution:

Despite the fact that there are nominal fines provided as penalties for failing to properly report suspected or known child abuse, in the past agencies of the state have attempted to require institutional providers to pay fines in excess of tens of thousands of dollars in the face of a single isolated technical violation that did not result in any harm to the child. In such cases, these hefty fines were proposed as part of a consent decree offered as a behind-the-scenes deal, with the implicit threat to the facility, should it refuse to pay, that the State might encourage media attention against the institution. The clandestine nature of these proceedings makes it impossible to determine how wide spread the practice was (or potentially still is).(Mandatory Reporting Of Child Abuse: Hidden Dangers for Professionals, Jennifer Cox,) www.smith-lawfirm.com

Dr. Richard Gardner agreed the reporting laws contribute to unnecessary reports:

"As a result, everyone's on the defensive they're afraid that if they don't make a report, they'll be deemed criminals if they inadvertently put a child back in the hands of a real abuser."(A system out of Control: The Epidemic of False Allegations of Child Abuse, by Armin A. Brott)

The motivation to report is further advanced by the presence of immunity. Texas law is representative in that a good faith report renders the reporter immune from civil or criminal liability that might otherwise be incurred or imposed. Tex. Fam. Code 261.106. However, if the falsely accused person attempts to sue a reporter for an unfounded complaint, they will be liable for attorney's fees and other court expenses if the court determines the claim against the reporter was a frivolous claim. Tex. Fam.Code 261.108. There is a penalty for an intentional false report. Tex. Fam. Code 261.107.

False Allegations

The media, legislature and the child saving industry has done an incredible job in creating a national child molestation hysteria. Through these well funded efforts, the general public is convinced a child molesters abound, waiting for the golden opportunity to snatch a child. In addition, not satisfied with just scaring the public, these forces have created a sense that child abuse is occurring behind the closed doors of our neighbors and friends. CPS combines power with the absence of liability and a public perception of righteousness. This leads to abuse of those subjects who unfortunately find themselves hopelessly in the CPS web. It is the perfect recipe for a false allegation.

The numbers of false and unsubstantiated allegations of abuse and neglect continues to grow. There were 2.9 million reports of child abuse in 1996. 2/3rds of those reports were unfounded. Society does not care about the abuse of process, lack of accountability, nor destruction of innocent children and families traumatized by false allegations because the general public has been hyped into irrationality concerning child abuse allegations due to child-saver advocates, politicians and the media.(Guilty Until Proven Innocent: A Manual for Surviving False Allegations of Child Abuse, Kim Hart)

Paul G. Stuckle is a Texas Attorney who specializes in defending false allegations of child abuse and child sexual assault. He also defends parents fighting against the wrongful removal of their children and termination of parental rights at the hands of CPS. www.paulstuckle.com/