All of us know CPS horror stories. Parents whose children were taken by Child Protective Services for no good reason and, on the other side, children (sometimes in the course of custody battles) whose custody was granted to a parent credibly accused of abuse.
Sometimes it seems as though the only thing one can be sure of is that CPS will do, or try to do, the wrong thing. Though some of this may be a result of selection bias, one often gets the impression of a perverse illogic by which CPS will fail to protect when there is a truly abusive parent (or boyfriend or relative) but will create nightmares for perfectly normal parents and children.
This case from Canada, which one would like to think couldn't happen in the U.S., is a fairly egregious example of judicial micromanagement: Judge Nicole Bernier (it would be a female judge!) ordered four children from a home schooling family into school and, in the case of children too young for school (down to age 3), into daycare so as to get what Judge Bernier calls "socialization." To add injury to injury, Bernier wants the children to go to public school so that they will be taught to read (or, as the case may be, not taught to read) by non-phonics methods!
Now, this is crazy. The parents have not been accused of abusing or neglecting their children. Judge B. (by whatever ill fate she was brought into these innocent people's lives) is just having a grand old time throwing around her weight and forcing them to raise their children as Judge B. would, presumably, raise her children. The notion of any sort of familial independence to make judgment calls about education is nowhere in the picture. (For the record, while I am a staunch advocate of phonics, I would consider laughable and pernicious the suggestion that some judge should interfere if parents were "caught" teaching their children to read by a look-say method.)
A sister organization to the Home School Legal Defense Association, ParentalRights.org, has one attempted solution--a parental rights amendment to the Constitution which provides that parental rights can be abrogated only if the government entity can demonstrate "that its governmental interest as applied to the person is of the highest order and not otherwise served." The Parental Rights organization argues that this will mean that parents must be shown to be unfit before their parental rights can be terminated. What, on this interpretation, it would chiefly restrain would be those many, many actions of CPS that lie in a grey zone between, on the one hand, simply leaving people alone to raise their own children and, on the other, actually making a case for termination of parental rights. In other words, no half measures. And CPS (and judges) love those half measures and that grey area, which give an enormous amount of power to the social workers and family courts without their actually having to prove anything against parents.
This is certainly a laudable goal on the part of ParentalRights.org, but I'm not absolutely certain that a constitutional amendment is the best way (or a complete way) to pursue it. For one thing, even if the amendment were passed, its impact upon concrete policy would remain exceedingly fuzzy and would have to be worked out in practice, with the many pitfalls that lie in the path of such an outworking. For example, what about emergency situations (or the claim thereof)? It's legitimate for some government entity to have the power to remove children, and state law does give CPS the power to do so, when there is an immediate, serious, and credible threat to the children's well-being. If there really is such a threat, such a removal cannot await the more rigorous determination of parental unfitness. Usually such a decision has to be made by a judge. It seems that this power would have to be left in place in any system, yet we want there to be redress if the power is abused. The parental rights amendment does not tell us how to deal with those issues. On the other hand, it seems not entirely implausible that courts would gut the amendment, adjudging state interests to be "of the highest order and not otherwise served" even when they were not.
In short, I think the parental rights amendment is not a bad idea, but we need creative legislative policy ideas for fixing the broken child and family law system, and the amendment will not change that.
Here are just a few ideas, to be carried out at the state level unless otherwise indicated:
--The legislature should create an explicit civil cause of action against social workers and judges for pain and suffering, including psychological suffering, caused by unjustified interference with parental rights.
--The legislature should set up a parental rights bureau to receive complaints and to assist parents in making civil claims under the above law.
--The legislature should set a time limit after which minors who have been removed from their parents must either be returned to parents' custody or else CPS must appeal the return to a judge by a report detailing the continuation of a credible and serious situation of danger to the child justifying the continued separation.
--The legislature should pass laws (we need suggestions for these) reining in the power of CPS to require such things as parenting classes, social worker visits, educational micromanaging, and other forms of interference in families where no immediate, serious danger to or neglect of the child has been argued in and affirmed by a court. In other words, if you are a fit parent and have custody, you have custody, and except in very unusual circumstances established by due process, you should be left alone.
--All laws granting medical confidentiality to minors (so that parents cannot/need not be told) for STD testing or treatment and receipt of birth control must be repealed.
--Some time ago I researched mandatory reporter laws in New York State. Though I no longer have the links, what I discovered astonished me: In New York State mandatory reporter statutes apply only to reports of suspected abuse by (or knowingly permitted by) parents! So if a teacher or doctor suspects abuse, he will consider that he is mandated to report it, but he must find a way to make such a report an accusation against parents. If the mandatory reporter suspects (or is even told by a child) that a public school teacher has abused him, for example, the mandatory reporter must either fail to report (which he may worry that he will be sued for) or else must find some way to spin it as something the parents "should have known about" and therefore as an accusation against the parents. If I have understood this legal situation aright, it is utterly insane and must be reversed immediately. Reports must be able to be made against non-parents, and this perverse incentive to blame innocent parents for abuse perpetrated by others must be removed. If this is the case in other states, it must be changed there as well.
Other ideas or intelligent criticism or modification of these ideas welcome.
Comments (45)
A great deal of our problems as both a state and a society are based upon the legal legerdemain that makes corrupt cogs of a corporate machine, be it business, governmental, or otherwise, have zero liability for their actions on behalf of said machine.
Since it is the screaming, feces flinging Marxist Left that prefers to hate all evil corporations that aren't in Red China, let's make it easier for them:
Is it the multi-national corporation's fault if a shift supervisor (working for a plant manager, working for a regional executive, working for a GBU manager, who works for an executive V.P., who works for the Board, CEO, CFO, and COO) secretly and illegally dumps toxic chemicals into a nearby river to save money?
Or is it, in fact, said shift supervisor's?
Who should face charges?
Who should be sued?
Is this, in fact, "fair" to all the good workers, shift supervisors, managers, executives, etc. because some jerk decided that his monthly bonus had to be bigger at the expense of the people around him?
Or, because they are part of an "evil" corporation, and thus no less guilty than the construction crew of the Death Star, everyone must suffer?
In the end, personal responsibility for truly awful behavior must return. Only then, sniveling judges, gluttonous congressmen (women included, after all, "man" is a term of species first and foremost in Indo-European languages) and slick lawyers will be held accountable for their own horrid actions.
Perhaps we must return to the day that when a politician has completed his term, he is criminally liable for all and any things that he has done while in office, and all his constituents are permitted to testify against him...
...too bad that didn't solve everything either.
Posted by Patrick | May 30, 2011 7:02 PM
Just to let you know, this in no way sets a precedent for the rest of Canada. We do fairly well in terms of 'homeschool' rights. Quebec, though part of Canada, has a bit of a unique relationship with the other provinces. Quebec has been recognized as a distinct society culturally and also judicially.
As a result, they employ civil law in their rulings. They don't really appreciate common law.
Posted by Jonah | May 30, 2011 7:43 PM
Jonah, I wasn't exactly thinking that it set a precedent in the legal sense. As a matter of fact, family law decisions even in America are usually pretty idiosyncratic (or should one say idiopathic?), consisting as they do of judgments about the "best interests of the child." So they typically _don't_ set precedents, in the literal sense. One might use a phrase like "a bad precedent" without meaning it in any technical way--just something like "a bad sign" or "a bad example."
And I do understand that Quebec is pretty "out there," even for Canada. A year or two ago they passed some kind of crazy law that all school children--including private and home schooled--must teach the same content in some extremely touchy area like "religious and morals education." I think there may have been a specific prescribed curriculum. It was nuts.
Still, the judge's actions here (besides being a terribly serious matter for the family involved) do show us the kind of power that liberals would like to have more widely over these kinds of day-to-day decisions. That totalitarian impulse is just overwhelming. Here's an interesting article on that topic:
http://www.firstthings.com/article/2007/01/the-enemies-of-religious-liberty-44
While the Quebec decision is rather extreme of its kind, it's by no means so far out there as one might think. There was a case here in America, a custody dispute between divorced parents, in which a child was ordered into public school precisely because the judge decided it was "in the best interests of the child" to be taught values at odds with those of her mother--just for the sake of it. Not good.
Posted by Lydia | May 30, 2011 8:10 PM
When the ruling elite and autocracy has become morally insane, are any remedies apart from violence possible?
How do you pass laws to limit the power of this class of people? They are the lawmakers. They are the lawyers and judges and social workers and bureaucrats.
That family should move out of the province until their liberty is either restored or Christ comes.
I get violently angry reading about such cases here and abroad, and my fury is fueled by my impotence. There is no redress against this inexorable march of madness and evil.
I feel like Fred Sanford clutching his chest asking the Lord to take him home. "I'm coming Elizabeth!" I wish.
Maybe, it's good that the world is so thoroughly riddled with corruption and evil for it makes us suffer and a few thus turn to God for consolation, mercy, and redemption, but what happens when no consolations of religion and prayer are left to the individual? When all the transforming graces have been exhausted and you are left a sober man staring into the canyons of mass human insanity?
I suppose the answer would be to avoid all media and humanity as much as possible. My rage can't help those Canadians or the people fined $90,000 in Missouri for selling a few rabbits (profit from sale, $200).
Posted by Mark Butterworth | May 31, 2011 6:19 AM
While I agree with this, I think what we also need is a very ruthless federal campaign of "color of authority" prosecutions. Social workers needed to get cold sweats from the thought of hearing "I'm with the United States Department of Justice, Civil Rights Division. I'm hear to discuss with you some 'concerns' from your community about your agency's behavior."
"Police boards" were established for similar reasons. They suffer from a few critical problems:
1. They rarely have any authority other than to embarrass an officer.
2. When they do have some disciplinary authority, it's often not used even in egregious cases.
3. When it is, it frequently is overridden by union contracts and civil service rules which (literally, I'm not making this up!) can let a cop get back to work after shooting an innocent person dead in a case that his own department says was an "unjustified shooting."
Such a bureau would need three powers:
1. Power to bring criminal charges.
2. Power to bring civil suits.
3. Power to represent indigent parents.
CPS should have no right of appeal. None. If they cannot make their case within the window of time initially allocated, they should not only be required to turn the kids back over, but to pay the parents' legal bills and be civilly liable for both character assassination and pain and suffering.
The only role CPS should have is as a coordinating agency for getting children out of abusive households. Every other function described above should be handled by separate agencies. For example, education by the state department of education. Medical neglect by state medical officials.
Barring state-level reform, conservatives could fix this at the federal level by augmenting the federal defamation statutes along these lines:
1. Whoever falsely alleges child abuse before a state authority shall be guilty of a Class E felony (lowest federal felony, I believe) for the crime of defamation.
2. It shall not be required to demonstrate actual knowledge by the defendant that the charges were false or to demonstrate any malicious intent. Negligence shall be sufficient.
3. Federal judges shall be empowered to not only terminate government employment of individuals successfully prosecuted under this rule, but to order the state and its municipalities to not hire them back in any capacity (including contractual).
Posted by Mike T | May 31, 2011 7:25 AM
I would hesitate to empower state medical officials to "do something" about medical neglect. Right now, all the doctor can do is report someone (bad enough). Doctors aren't out there on the beat going to houses to investigate the reports, much less inventing plans for keeping an eye on parents who allegedly medically neglect their children. I think we want to keep it that way.
Medical neglect is a doozy. I read of a case where parents refused to use any medical care. They had a child slip into a diabetic coma, and they _still_ didn't call 911 or a doctor of any kind--they just prayed. That kind of thing. She died. What do you _do_ about that with the other children? I guess the other children were fine _for the moment_, so it seems like it might be unjustified to tear the whole family apart and take them away too. But the same type of thing could happen again. That's one of the only weird types of cases where I can see a point to some sort of on-going supervision. It might be possible though for it to be done by a friend once the friend is checked out to make sure he doesn't share the same crazy ideas.
Posted by Lydia | May 31, 2011 9:56 AM
The notion of the educational establishment having CPS level powers to harass homeschooling families is enough to leave me in a cold sweat.
Posted by Foxfier | May 31, 2011 10:25 AM
I think the parents should be criminally charged with manslaughter if the statute supports it. Refusing insulin regulation for a diabetic child is morally equivalent to refusing to give a severely dehydrated child any water. Or consider another angle to it. Suppose the child was attacked by a criminal and stabbed several times and the parents insisted on not taking her to the ER. Would there be any doubt that the parents' negligence played a key role, if not a causal role, in her death?
What I advocated was breaking up the power CPS has and putting pieces of it throughout the broader state government. CPS has no claim to competence on even saying "this education is insufficient." It's as irrational as allowing the DEA to override the medical establishment on the medical treatment of chronic pain patients. The DEA believes that it knows what levels of opoids are appropriate and that the mainstream medical establishment is a bunch of drug pushers. Our society seems to believe that people charged with law enforcement in some capacity are automatically imbued with some sort of expertise in the subject.
I'd rather have a system where the state establishes certain standards of education and educational neglect must be alleged via those standards to the state. The Department of Education should be the only institution capable of even bringing a suit at all over educational matters.
Posted by Mike T | May 31, 2011 11:02 AM
They'd never even found out she was diabetic. They apparently had never taken her to a doctor ever. I don't know if that makes it better or worse for them. I guess better, in a way... Maybe?
Posted by Lydia | May 31, 2011 12:12 PM
I think it says that we can at least rule out certain levels of negligence.
I also think it is unwise for Christians to support the various cults that practice such nonsense as eschewing all modern medicine and/or firmly oppose blood transfusions under any circumstances. There is no legitimate Christian case for eschewing medicine and no serious denomination (liberal or conservative) which I know of considers a blood transfusion to be unholy or a violation of the Bible's teachings on blood. If the Jehova's Witnesses are "persecuted" for refusing blood transfusions when their kids are severely injured, that's a separate issue from other medical issues which matter to us (abortion and forced chemo for example).
One of the reasons the national security state has steamrolled civil libertarians is because of the chicken littleish mentality of most "professional civil libertarians." They have a habit of making every slight expansion of state power look like a swan dive off the cliff, down the slippery slope. We shouldn't risk a similar thing here.
Posted by Mike T | May 31, 2011 12:31 PM
Since many family court problems derive from divorces, what about reforming "no fault" divorce into "limited fault" divorce?
Say that except in cases of abuse or abandonment the spouse who does not initiate a divorce becomes presumptive custodial parent and gets more veto power for many decisions even in joint custody arrangements.
---
Has anyone calculated the financial costs of the family court system? What do they cost municipalities and counties?
Posted by Kevin J Jones | May 31, 2011 8:24 PM
Proving abuse can be hard. Especially since calling the cops during a violent spree can get you killed. (When seconds matter, the police are only minutes away...if you're lucky.) Utterly ignoring the worries about what will happen to one's children if the only steady income in the house goes to jail, or loses his job because he was arrested, or because he lost his license again. God help you if any of the kids have medical issues, and health insurance is tied to the job. Abusive spouses are GOOD at finding these kind of levers.
My sister was abused by her husband; she was sure it was all her fault until he threw something at her in front of a witness he expected to be supportive, but who'd had relatives abused. She got out of there...but because she didn't call the cops on him during a drunken rage, she doesn't have "proof" that she was abused. The bruises and the knot in her back that won't go away aren't evidence enough, nor is the testimony of those who know her husband and how he is when he drinks. She learned early on to not let him know if she liked something, because he'd get angry and destroy it the next time she suggested that drinking the rent money was a bad idea.
It's been over a year since he chased her out of the house, just before Christmas, and threatened that she'd never see their son again if she didn't do what he said-- and she is still fighting to get the divorce papers signed. You see, he wants more custody of the child, because the boy is another way to hurt her. His family has money, and they're willing to use it in a power struggle.
My aunt was also abused; the only reason anyone found out before she got killed was because he got stupid and started beating her head against something hard in front of her parents' house after a late dinner. ("Insufficient evidence"-- the only witnesses were her parents. She was pregnant at the time. He came back after a year or two and tried to take the child. My aunt smiled sweetly and handed him a bill for a large amount of money and informed him that back child support would be hard to calculate, but this was a start. It worked, thank God; he left her alone.)
****************
As much as I don't like "no fault" divorce, there's a reason there was so much demand for it; it needs fixing, greatly, but handing abusive spouses another hammer is a horrible idea.
Posted by Foxfier | June 1, 2011 1:10 AM
Yet the parents are two credible eye witnesses. Why is it that two eye witnesses to savage violence are "insufficient," but a man can be sentenced to death row when there is virtually no evidence beyond circumstantial evidence linking him to a murder?
The sad fact is that our legal system is a complete and utter joke, and there is no desire in any legislature to systematically study its problems and address them. I've often darkly mused that not even a software development intern could get away with writing code that has so many bugs and uncontrolled side effects as half the laws that make it out of our legislative bodies.
Posted by Mike T | June 1, 2011 7:37 AM
This would end the majority of divorces overnight since women initiate about 3/4 of all divorces in the US (look it up on Google if you don't believe it's that disproportionate). If most of those women knew that they'd not only lose custody of their kids if they divorced without cause, but also would have to pay child support, it'd make them change their tune very fast. Apparently, this is how China has done it for a long time and it's proved to be quite successful at making women not exploit the gender gap to "trade up" to a better model when another man comes along.
Posted by Mike T | June 1, 2011 7:43 AM
I certainly agree that our divorce system hands another weapon to those who want to meddle in parental custody, and I think no-fault divorce should be abolished as it currently exists. I tend to think that separation (even if not formal divorce) with custody to the innocent parent should be possible in a slightly larger array of cases than those Kevin cites, though--drug addiction, alcoholism, and on-going unfaithfulness come to mind as situations where _precisely_ for the sake of the children separation should be possible. But to make this possible, or even possible in the case of a spouse who beats either the wife or the children or otherwise harms the children, of course it needs to be possible for the courts to accept evidence. Without that, we're sunk.
Posted by Lydia | June 1, 2011 8:29 AM
Yet the parents are two credible eye witnesses. Why is it that two eye witnesses to savage violence are "insufficient," but a man can be sentenced to death row when there is virtually no evidence beyond circumstantial evidence linking him to a murder?
It's almost like there are different areas involved, and hundreds of individual systems, and if you sample enough cases you'll find two wildly different examples, or something.
The people who claim that someone was attacking their daughter, who both admit to attacking the man and being attacked in turn... not sufficient.
I tend to think that separation (even if not formal divorce) with custody to the innocent parent should be possible in a slightly larger array of cases than those Kevin cites, though--drug addiction, alcoholism, and on-going unfaithfulness come to mind as situations where _precisely_ for the sake of the children separation should be possible.
I would LOVE to see "I married an unsuitable ass" type reasons come back into divorce, and there needs to be a part for gross financial stupidity, too. (A favorite trick is to run up large bills on what the abusive one wants and insist on them being split 50/50)
Thing is, this isn't a national question. This is a STATE level question.
(Part of why my sister is having such issues is that her state obsessively assumes men and women are the same; it further assumes that any support that doesn't have paperwork is false, so the family help she got LAST time that he decided she'd "leave" and ran up huge debts doesn't count in court.)
Going back to the original topic, CPS is worse than useless in a lot of folks' minds because they know someone like my sister.
She busts her tail to get her son to the doctors he needs if he's ever going to walk normally (very bad club feet) and her husband knows she cares about that.
As a result, the money for treatment would evaporate when they lived together, or now he makes demands that make it impossible for the boy to be treated, even with wonderful organizations like the Shriners where she doesn't have to try to get him to pay, or give insurance information. Or he'll insist on having the boy until very late before the boy's appointment.
Thousands of ways to deny treatment without actually going on paper... and if she talks to CPS, they say it's equally bad on both, or not an issue.
Posted by Foxfier | June 1, 2011 10:36 AM
Emphasis: I really like the idea of having separation become more common instead of going straight to divorce; good point bringing it up, Lydia!
Posted by Foxfier | June 1, 2011 10:42 AM
I get violently angry reading about such cases here and abroad, and my fury is fueled by my impotence. There is no redress against this inexorable march of madness and evil.
Prayer...
The parents must realize that the judge's authority is merely from a faulty use of power and no real authority at all, since it is not based on sound reasoning. The judge would be laughed out of the room if she tried to defend her linguistic notions to a room full of experts (not supposed experts, who favor whole-language learning) and who made the judge an expert in sociology? She needs to have valid reasons, not just opinions. This is an example of what Neal Postman called Stupid Talk. In fact, this is child-endangerment (at least from an educational standpoint) by the judge and I would seriously try to have her arrested or at least try to bring a complaint to the bar association with full supporting evidence by experts. If I were the parents, I would raise a stink in the public media to raise awareness of the judge's posturing. If the public didn't care about the issue, then the family should move. It would be the wrong environment to be raising children in, anyway. It is apparent that fewer and fewer people really understand what the purpose of law really is.
The Chicken
Posted by The Masked Chicken | June 1, 2011 10:44 AM
An AR-15 and a few thousand rounds of 5.56 mm ammo as part of your homeschooling supplies. ABEKA could make it part of their "Parent Kit."
Posted by Bruce | June 1, 2011 12:48 PM
You could just as easily make a similar claim about CPS. I'm sure there are plenty of CPS agencies in this country that pride themselves on being reserved and cautious...
This can be solved (I've seen it work) very simply by having a male relative talk discretely about how a "series of unfortunate events" might befall the abuser if he doesn't shape up.
Posted by Mike T | June 1, 2011 2:09 PM
Great post, important topic, good discussion.
That sounds tough, but if CPS wants your kids, they'll get them. See:
http://www.appeal-democrat.com/sections/slideshow/?id=2255966
Prior to the event depicted above, CPS had removed all ten of this man's children, against their will, without any due process, on the flimsiest of allegations. The family was religious, neither drank alcohol nor used drugs, and there was no evidence of abuse. A couple of his daughters escaped from foster care and returned home, claiming abuse in foster care up to and including rape. When the authorities drove up, he thought they were coming for his daughters. Enraged by what happened to his girls and determined to protect them, he did what any good father would do: he barricaded the home, loaded his firearm, and told the officers he would kill them if they came near. Apparently he did fire several shots in their direction. The deputies called in law enforcement teams from counties in every direction. A friend who lives in the area estimated there were over 100 law enforcement personnel on Grimy Gulch Road. The family was ultimately flushed out with pepper spray.
Facing more than 50 years in prison, his lawyer succeeded in having him declared incompetent to stand trial and committed to a mental hospital.
The solution? It's not enough for one household to be armed. An entire community needs to be armed and come together at times like this.
Posted by Jeff Culbreath | June 1, 2011 2:44 PM
Make that a Barrett 0.50-cal.
Posted by Bruce | June 1, 2011 4:13 PM
You could just as easily make a similar claim about CPS. I'm sure there are plenty of CPS agencies in this country that pride themselves on being reserved and cautious...
Like Lydia already mentioned, where only the bad stories get out? (BTW, what's with the passive aggressive phrasing that someone else could maybe claim something similar?)
Posted by Foxfier | June 1, 2011 6:27 PM
I too am infuriated by what this judge has done. And I agree that a whole community needs to be armed. This actually happened in New Brunswick, on the island of Grand Manan. The authorities had settled a child abuser on the island. The islanders didn't like that. So they burned the man's house down. The Mounties, well, took their time getting to the island; it's a twenty minute ferry ride there. The whole population were united, and apparently everybody said, "I don't know who did it." The Mounties knew that everybody did it, and they couldn't arrest the whole island, so they let the matter drop...
There is a principle involved here that everyone has forgotten. It's contained in the saying, "A man's home is his castle." The word "man" there simply means "adult human being," and "castle" means "fortress," "realm of lawgiving and law-abiding," "region of independence." A country that has reduced families to wards of the state, wherein parents are mere caretakers of their children, suffered to be so by the state so long as they do the state's will, is what our founders would have called a tyranny, straight and clear.
On no-fault divorce: hard cases make bad law. The laws regarding divorce should be drawn so as to discourage divorce and to protect the unoffending spouse. Obviously that cannot be done in all cases according to abstract rule; hence the judicial principle of equity. By all accounts, the overwhelming majority of divorces involve no abuse whatsoever. My own observation, moreover, suggests that the person who files for the divorce is more, not less, likely to be the jackass -- the drinker, the lecher, the profligate, the foul-mouthed, etc.
Another thing about CPS -- the women caseworkers really don't like snooping around in the rotten neighborhoods. It's much easier to pick on single women, or on decent married folks who won't beat you black and blue.
Posted by Tony Esolen | June 2, 2011 11:53 AM
"What, on this interpretation, [the Parents Rights proposal] would chiefly restrain would be those many, many actions of CPS that lie in a grey zone between... simply leaving people alone to raise their own children and... actually making a case for termination of parental rights. In other words, no half measures. And CPS (and judges) love those half measures and that grey area, which give an enormous amount of power... without their actually having to prove anything against parents."
The problem with this is precisely what its proponents see as its advantage: if the grey zone isn't put under CPS's jurisdiction, it's put under the parents' -- and there is a vast amount of abuse that can occur in that grey zone that is enormously difficult to prove to criminal-law standards, or lesser problems that would not meet a legal definition of parental "unfitness" but can still make life very difficult and miserable for those affected children.
The problem with drawing any legal line clearly is it lets people know exactly how far they can go without breaking it.
"It seems that this power would have to be left in place in any system, yet we want there to be redress if the power is abused."
Redress for abuse is one thing; if punishment for simple error is so steep that no official will risk using it without a level of certainty reality almost never provides, the power might as well not exist at all.
It is the ultimate problem of free will: You cannot leave no room for evil in others' actions without doing evil yourself in compelling those actions. If CPS has any power to interfere in families at all, sometimes that power will be exercised in error or arrogance and cause suffering to the undeserving. Yet if it has no power, it cannot save those suffering who need to be saved. It's merely a question of where we set the tradeoff point, and recognizing that no matter where it's set, there will be suffering just beyond its reach.
Posted by Stephen J. | June 2, 2011 1:23 PM
Respectfully disagreeing with Stephen J.:
Unless parents break the law, that is unless they are criminally negligent, then their children are theirs, not the state's, and the very idea that the state can intrude into a home where no law has been broken is ALREADY an offense against freedom and the rights of the family. I would have some sympathy for CPS defenders if I could find anybody in CPS who actually believes in the sanctity of marriage and the family.
My father's father was a drunk who once in a while struck his wife. My father, then a teenager, put a stop to it when he told the old man that if he did it again he'd beat him to a pulp. Had CPS been around then, the family, with ten children, would have been blasted to bits. It was not a great house to live in, but there are millions now that are far worse. The brothers and sisters all stayed together. They all got married, THEN had kids. They remained loyal to their mother and, in a strange way, to the old man. There was actually a considerable amount of love in that marriage. The old man broke his neck in a fall in the coal mines, but didn't die; the bones were fused back together, and he was told he could never work again. But he did work anyway, picking pieces of fallen coal near the mine entrance with his boys, and carting them into town in a wheelbarrow to sell for a few cents. My father, when the old man died, said in my presence, "He was a son of a bitch and he's probably in the hot place down there, but nobody ever cheated him of his turn at bat." My father was someone who never said anything about you unless he could say something good, and he almost never talked about his father.
I think we should remember that even in bad families -- I am NOT talking about breaking the law here -- there is more love and loyalty than an outsider might suppose. You'd have to live with the family for a long time to understand it, and that's not what anybody in CPS is going to do. My wife's mother and father had the single worst marriage that did not end in divorce that I have ever seen. She was a drunk. She cursed her husband, threw things at him, would storm off to her room and not come out for days, spent money like water ... And yet, underneath the misery, she did love him, and he, for his part, did not divorce her; he was brought up to believe that when you make a vow, you make a vow. When my wife was seventeen -- she was an only child -- her mother came to her and said, "I can't take it anymore -- I'm going to get a divorce." My wife was devastated. From that moment on, there was never any talk about divorce. There's more to the story -- blessings that came from that retreat from an evil decision.
Posted by Tony Esolen | June 2, 2011 10:20 PM
Thank you for this informative article.
I too was dismayed by this Canadian judge's ruling and I continue to pray that American courts do not reach this degree of insanity.
As a volunteer for Parental Rights.Org, I do support an amendment, but agree that such an amendment is not a panacea. It is the first step in parents reclaiming their rights to raise their own children according to their values and beliefs unless due process proves them to be breaking a law. I appreciate your listing of other actions which need to be taken in this work of reclaiming. May enough parents awaken in order to make these changes actually occur.
Protecting Children by Empowering Parents,
Eric Potter MD
Tennessee Director for Parental Rights.Org
www.parentalrightstn.blogspot.com
Posted by EricPotterMD | June 3, 2011 1:13 AM
I would like to thank Tony Esolen for: 1) gracing this space with his welcome comments; and 2) speaking the truth beautifully about "bad" families. Many more of us come from such. It's almost as though CPS is determined to succeed where divorce fails.
Stephen J. is right about the trade-off no matter where the line is drawn. At a time when most children do not live with married parents, when abuse and neglect are rampant - the prophesied age when love on the earth grows cold - we all want to see many of these children rescued from their misery. If the state (and the body politic) were what it ought to be, my view of CPS might be a little more sympathetic. But under the circumstances this is one of those areas where the "cure" is worse than the disease because the cure is diseased itself.
Posted by Jeff Culbreath | June 3, 2011 4:55 AM
I'd also like to offer a sincere thanks to Tony Esolen for giving us a necessary corrective to the "common" view about bad families. My memory is faulty as hell and I do not have the time to hit the books right now, but I think G. K. Chesterton speaks about this in "What's wrong with the world" (which has always been my favourite non-fictional book of his) when somewhere along the way, he talks about judges that have to break a woman's heart in order that his husband does not break her head.
Posted by G. Rodrigues | June 3, 2011 7:25 AM
My thanks, too, to Tony Esolen as well as to Eric Potter for commenting in this thread. Just here in 24 hours my thread has picked up some great commentators.
Stephen J., I'm a great advocate of Thomas Sowell's view that there are no solutions, only tradeoffs and compromises. It seems evident to me that our line is now set at such a point that our laws allow the power of the state to err on the side of tearing apart families out of fear of erring on the side of letting children be raised in any situation that _the state_ regards as non-optimal. This is bad, bad news. I don't propose that any of my ideas are solutions. There will always be tradeoffs and compromises. But I think it is legitimate to be able to punish state actors for tearing families apart frivolously. In law, there are "reasonable man" standards, standards of negligence, and so forth, which are applied in civil cases all the time--for example, in medical malpractice cases. It ought to be possible to bring similar suits alleging that CPS or even a judge have caused serious and foreseeable harm to parents and children by court orders and/or removal of children under emergency provisions when no emergency existed. A jury would decide. I realize, in our litigious society, that this would put quite a burden on CPS and judges to think before they acted. I realize, too, that some such suits would be wrongly decided by juries, as indeed they are in malpractice and other negligence and irresponsibility suits. But it seems to me that we need some such check on the power of the social workers and the family courts, a counterweight to the tremendous power they have to do active harm.
It is possible that I respectfully disagree with Tony Esolen as to when it is appropriate for a spouse to separate, with the children, from a spouse with a serious drug addiction or alcoholism. Unless there is direct and serious abuse of the children, that should be a decision for the functional spouse to make, and I am not necessarily talking about divorce. But there needs to be space for it to be ethical and possible for the non-addicted spouse to set up a separate establishment with the children.
Posted by Lydia | June 3, 2011 9:51 AM
the prophesied age when love on the earth grows cold
Here, I thought it was the Age of Aquarius, when all was supposed to be peace and love :(
What exactly does "socialization" mean? What a vapid word to use. The parents WERE socializing their children, albeit not in the way the judge wanted. This is not a CPS issue. It is a veiled attack on religion, Christianity, in particular. If socialization means exposing one's children to a rampant drug culture, a pornographically-besotted, illogical, hormone-driven, relativistic, violent, uncouth, pagan group of "peers," then this judge hasn't either been in a high school, recently, or condones exposing people to this environment, nay, condones modeling behavior after the people in this environment. I think the judge should be visited by the ghost of Emily Post or maybe Madd Max.
The Chicken
Posted by The Masked Chicken | June 3, 2011 10:39 AM
I made a comment earlier in the day, agreeing with Lydia about separation -- it seems to have vanished or something.
I've been thinking about this all day, trying to conceive of an article I'd call The Pinkerton Principle, after the American heart-breaker in Madame Butterfly. The Principle is imperialist to the core: Children have the "right" to be raised or educated by the best means possible, as determined by experts given authority by the state. If this means that a family must be intruded upon, or even broken, well, that is just the price we have to pay for empire-- er, um, the best interests of children.
The Pinkerton Principle is evil. It is not a good principle that may sometimes be put to ill use. It is an evil principle, and no accidental good that may come from it can justify it, just as the evangelization of African natives -- an infinitely greater good than any that the social imperialists of our day can provide -- did not justify their enslavement. I'd as soon believe that the lives of children nationwide can be improved by the exercise of the Pinkerton Principle, as I'd believe that you can cast out devils in the name of Beelzebub.
What the judge in Nanada did was evil, and it rose quite naturally out of the evil principle involved.
By the way -- had that judge committed a different evil -- but one that had a greater chance of benefiting the child in question -- had that judge ordered the mother to take her children OUT of daycare and love them herself at home, she'd be facing impeachment and a feminist firing squad.
Posted by Tony Esolen | June 3, 2011 3:08 PM
Tony, I've searched behind the scenes for your lost comment and cannot find it anywhere. Usually I can (just a randomly acting up spam filter or several links in the comment or something), but not this time.
You're right on the money with the Pinkerton Principle. I hate, too, to throw around a word like "diversity," but there has to be some sort of place for recognizing that there can be more than one legitimate way of raising children. And I agree also that even sub-optimal situations are much preferable to the evil mess of breaking up the family by outside intervention.
Posted by Lydia | June 3, 2011 3:38 PM
I know what you mean, and in the USA 2011 it seems necessary for Christians to oppose this principle in the strongest possible terms - but can we truthfully represent imperialism as categorically evil? What if the formulation were put differently: Children have the right not to be raised by satanists, atheists, occult practitioners, serial co-habitators, and so forth. Even the Church speaks of the "rights" of children to be raised by married parents. The evangelization of Mexico, South America, and Southeast Asia was largely aided by coercion on the part of Church and State in educating children in the Faith, often against the desires of parents. I suspect this is true of Europe as well. When you consider the barbarism and savagery of the native religions in these places, we can be thankful for the courage of Catholic missionaries and magistrates in removing children from the religious influence of their parents. It's possible, too, that the Church may find herself with similar obligations in the future, and we'll need a moral vocabulary that can handle it.
Posted by Jeff Culbreath | June 3, 2011 5:13 PM
It was? As in how?
Posted by Lydia | June 3, 2011 6:56 PM
"Children have the right not to be raised by satanists, atheists, occult practitioners, serial co-habitators, and so forth."
Have you thought this through? A useful process is to ask how do I get from here to there.
"The evangelization of Mexico, South America, and Southeast Asia was largely aided by coercion on the part of Church and State in educating children in the Faith,"
And which resulted in the indigenous population crashing.
Posted by al | June 3, 2011 7:32 PM
The natives of Mexico and South America were a conquered people. The Spaniards, horrified at the savagery, brutality and wickedness of the native religion, sent Indian children to Church-operated boarding schools. Children were allowed no contact with their non-Christian parents until emancipated.
Contra Al's uninformed supposition, the result was not "the indigenous population crashing", but the indigenous population flourishing after a single generation, initiating a process of integration with their conquerors. The "crashing" came nearly 300 years later, when the masonic revolutions utterly smashed a thriving culture nourished by the Church and her institutions.
By contrast, in the United States most of the natives were exterminated or confined to reservations. There was little interest in Christianizing them, just getting them out of the way. Al should be a little more familiar with the history of his own state, at least. Apart from a few lights here and there (proudly, Sutter and Bidwell and Reading in the north, whose efforts were ultimately thwarted, and who, despite their kindness and sympathies, had nothing else enduring to give the indians) the only people who cared enough about the aboriginies in California to give them Christian civilization were the Spaniards. That noble effort was also undermined by revolution in the south: the favor and protection of the Church removed, the native peoples were left to the tender mercies of the invading yankees.
Posted by Jeff Culbreath | June 3, 2011 9:01 PM
Al, natural rights either exist or they don't. If men have a duty to raise children in the truth, then children have a right not to be raised on lies. Turning natural rights into civil rights is another question entirely.
Posted by Jeff Culbreath | June 3, 2011 9:05 PM
Well, Jeff, I would absolutely not agree that children should be taken away from parents who are teaching them religious falsehood--at least not on that basis per se. I wouldn't agree that they should be taken away from parents even just because the parents are atheists. If that takes the form of the parents teaching them (actually inducing them) to break other laws, harm themselves physically, be suicide bombers, then that's another thing. But just raising them "with falsehood," no. I'm not going to turn that power over to the state.
And it's funny: Usually those to the more "paleo-ish" side of me are the ones worrying that "rights talk" is hugely problematic, to the point of being suspicious of the entire American founding on that basis. But when we get to the point of attributing to children a "right to be taught the truth," that's when the hair on the back of _my_ neck starts rising.
Posted by Lydia | June 3, 2011 9:22 PM
Like I said, turning natural rights into civil rights is another question entirely - a prudential question. Doing so often unleashes more evils than it prevents. In our present context I'm with you, and would not agree "to turn that power over to the state" either. But things can change and change quickly. I'm just saying that we need to find a vocabulary that doesn't rule out entirely what might be a meritorious policy - even an obligation - in other contexts. In the conquered former Aztec empire of the 16th century, I vote for giving that power to the state.
Posted by Jeff Culbreath | June 3, 2011 9:41 PM
I did mention atheists, satanists, occultists, and serial co-habitators. I don't want to dodge the question so I suppose I should expand on that. Might it ever be justified for the state to remove children from their homes simply on the basis of their parents falling into one of these categories? Yes - I can imagine circumstances in which it might be justified. (I probably should not include atheism, at least not in the forms with which we are most familiar. Atheism is pretty gentle in the U.S., but it can take hateful and rabid forms as well.) Apart from atheism, if things were right in the world, I would not oppose the state having such authority today. But things are not right in the world so the question is moot ... for now.
Posted by Jeff Culbreath | June 3, 2011 10:03 PM
Why is that more hair-raising than, say, the idea of parents having "a right to teach satanism" or something equally depraved to their children?
Posted by Jeff Culbreath | June 3, 2011 10:19 PM
Jeff, I believe that Thomas Aquinas would disagree with you, for the same reason that he believes that a judicial usurpation of legislative power, even if the judge intends good by it, violates the natural law. Not a constitutional law, but the natural law. I will have to research this further. Obviously, a child that is about to be sacrificed to Moloch ought to be rescued. But a child that is brought up to worship Zeus -- that is a different story. The early Christians made no such forcible conversions.
Posted by Tony Esolen | June 3, 2011 11:43 PM
I concede the possibility, and might well need to correct myself!
Satanism, atheism, wicca, etc., in USA 2011 would seem to be different in kind from the ancient worship of Zeus. Peter Kreeft wrote somewhere - wish I could find the quote, so I'll paraphrase - that ancient paganism was like a virgin, ripe for the Gospel, but modernity is like a divorcee, whose heart is hardened against her first love. The modern incarnations of ancient religions in the West are more about rejecting Christ than affirming pagan deities.
I think we need to distinguish between compulsory Christian education, as practiced for a time in Latin America and elsewhere, and "forced conversions". A forced conversion is obviously not a valid one, and I feel confident that the Jesuits and the Franciscans of the 16th and 17th centuries must've known this well.
Posted by Jeff Culbreath | June 4, 2011 12:41 AM
Jeff, as far as a "right to teach Wicca" or something like that, I don't usually cast these things in terms of "rights." For example, I'm not inclined to say that I have a right to blaspheme--say, to take God's name in vain. But I don't think it should be illegal. So, we should probably take the rights talk off the table, as it just "ups the ante" rhetorically without adding clarifying content.
In quite a few cases, particularly of non-Western cultures and religions, it's likely that there are plenty of ordinary laws on the books that could be relevant to child custody and could allow the state to intervene--female genital mutilation, sexual abuse of minors, and forced marriage come to mind, as well as more ordinary child beating and so forth. Or if the parents are planning terrorist acts, they should wind up in jail, in which case the children will have to go into other custody anyway. I would not be surprised if in the case of Satan-worship some of these things would come up, too--perhaps introducing children to drugs or involving them in sexual acts, for example.
But there are plenty of religious beliefs which I consider seriously warped for which nonetheless I do not think even King Frank the Just and Wise Catholic Monarch (you'll recall my mentioning this hypothetical entity before) should have power simply to remove children from their parents.
Now, an interesting point arises when the parents (or one parent) actually _invites_ state intervention in the form of seeking a custody judgment. I can see a reasonable argument that considerations could be legitimately used when the state is "called in" by the parents or parent which should not be used by the state simply to intervene in a situation where no such request has been made. After all, if one parent is filing for sole custody or making some other appeal to the court that requires a court judgment on custody, the state is being brought into the family's affairs willy-nilly and _must_ make a judgment. At that point, I can see the legitimacy of using such things as moral uprightness and even religion, though probably here I could see prudential reasons in our own day and age for not using religion per se. So in that situation you and I are probably closer to being on a wavelength--namely, that there are considerations legitimate for "the state" to use in making custody decisions which nonetheless our own present government would probably abuse. But to me there is a _huge_ difference between the state's "getting wind" that some couple are Wiccans and swooping in and taking their children and, on the other hand, a family court judge's making a preferential custody judgment _when brought into the situation_ for the non-Wiccan parent and partly on that basis. (Though only partly. If the non-Wiccan parent beats the kids, really beats them, and the Wiccan parent doesn't, that's got to be taken into account as well.)
Posted by Lydia | June 4, 2011 11:53 AM