Sexual Abuse of Thirty-Three Children, and She Was Sentenced to Forty- Seven Years Imprisonment
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. - 11 ‘ 4 \ ^ C h ild A buse, ;amily R ig h t s , a n d t h e C h ild rotective System A Critical Analvsis from Law, Emits and Catholic Social Teaching EDITED BY Stephen M. Krason Child Abuse, Family Rights, and the Child Protective System A Critical Analysis from Law, Ethics, and Catholic Social Teaching Edited by Stephen M. Krason THE SCARECROW PRESS, INC. Lanham • Toronto • Plymouth, UK 2013 Published by Scarecrow Press, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowman.com 10 Thombury Road, Plymouth PL6 7PP, United Kingdom Copyright © 2013by Stephen M. Krason All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Child abuse, family rights, and the child protective system : a critical analysis from law, ethics, and Catholic social teaching / [edited by] Stephen M. Krason. pages cm. -- (Catholic social thought; No. 7) Includes index. ISBN 978-0-8108-8669-8 (cloth : alk. paper) -- ISBN 978-0-8108-8670-4 (electronic) 1. Children-Legal status, laws, etc.-United States. 2. Church and social problems- Catholic Church I. Krason, Stephen M., editor of compilation. II. Society of Catholic Social Scientists. KF3735.C45 2013 344.7303'276—dc23 2013011094 © The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Printed in the United States of America Catholic Social Thought This series focuses on Catholic social thought and its application to current social, political, economic, and cultural issues. The titles in this series are written and edited by members of the Society of Catholic Social Scientists. They survey and analyze Catholic approaches to politics, sociology, law, economics, history, and other disciplines. Within these broad themes, authors explore the Church’s role and influence in contemporary society. The Society of Catholic Social Scientists was formed in 1992 to reJuvenate a distinctively Catholic scholarship in the social sciences. 1. The Public Order and the Sacred Order, by Stephen M. Krason, 2009. 2. Bioethics, Law, and Human Life Issues, by D. Brian Scamecchia, 2010. 3. Pope Pius XII on the Economic Order, by Rupert J. Ederer, 2011. 4. Economics As IfGodMatters, by Rupert J. Ederer, 2011. 5. Toward the Common Good, edited by Robert F. Gorman, 2011. 6. Sociology and Catholic Social Teaching, edited by Stephen R. Sharkey, 2012. 7. Child Abuse, Family Rights, and the Child Protective System, edited by Stephen M. Krason, 2013. This book is dedicated to the members of the Society of Catholic Social Scientists and ofthe Catholic Social Workers National Association Table of Contents Foreword, byRonald J.Rychlak ix Preface and Acknowledgements, by Stephen M.Krason xiii The Mondale Act and Its Aftermath: An Overview of Forty Years ofAmerican Law, Public Policy, and Governmental Response to Child Abuse and Neglect, by Stephen M. Krason 1 The Family and Parental Rights in Light of Catholic Social Teaching and International Human Rights Law: A Convergence, by William L. Saunders 83 Child Protective Services and Police Interference with Family Relations: A Constitutional Perspective, by Michael E. Rosman 99 Fourth Amendment Litigation in CPS Cases, by James R. Mason, HI 139 The Effects of Family Structure on Child Abuse, by PatrickF. Fagan, Anna Dorminey, and Emily Hering 155 Dilemma, by Design: Child Welfare Policy and Ethical Problems at the Frontline, by Ruth A. White 215 Appendix 1 - Amicus Curiae Brief of the Society of Catholic Social Scientists in Troxel v. Granville 235 Appendix 2 - Amicus Curiae Brief of the Society of Catholic Social Scientists in Camreta v. Greene/Alford v. Greene 269 Vll viii Index 299 About the Contributors 313 Foreword By Ronald J. Rychlak Mississippi Defense Lawyers Association Professor of Law University of Mississippi School of Law Catholic social teaching is a treasure trove of wisdom regarding the proper structure of a Just society and the way to live a holy life. The Catholic Church proclaims that human life is sacred and that the dignity of the human person is the foundation of a Just and moral vision for society. Marriage and the family are the central social institutions and they must be supported. The Catechism o f the Catholic Church says that the family is the original cell of social life. Any Just society cares for its children. Under the doctrine of subsidiarity, the first right and responsibility falls to the parents and the family. Unfortunately, there are times when society feels the need to intervene. No one can doubt that there are times when this is necessary. The problem is the difficulty of assessing the needs of a family unit from the outside. My first professional interaction with the child protective system (CPS) came years ago when, as a fairly new law professor, I was asked to work on the appeal of the Kelly Michaels case. Kelly was a daycare worker at a nursery school in New Jersey. She had been convicted of sexual abuse of thirty-three children, and she was sentenced to forty- seven years imprisonment. Some of the allegations made by the children were bizarre, and the physical evidence was essentially non-existent, but as the father of a couple of young children at the time, my initial sympathies were with the prosecution. I had my doubts about the appeal. IX X Rychlak Then we discovered that these same bizarre allegations had been made by other children at other locations. The only commonalty was that in each case, the children were questioned by the same team of investigators. I was eventually persuaded, and so was the New Jersey Supreme Court. It overturned Kelly’s conviction, declaring that “the interviews of the children were highly improper and utilized coercive and unduly suggestive methods.” Unfortunately, Kelly Michaels is not the only person to have been victimized by over-zealous governmental officials trying to protect children. On April 27, 2012, prominent social scientists gathered at The Catholic University of America in Washington, D.C. to apply their expertise to the problems of the CPS. The six papers presented at that conference are at the heart of this book, and they apply Catholic social teachings and related ethical and legal principles in an effort to protect families and children. In his piece, Stephen M. Krason examines the legislation that transformed American thinking about child abuse and family relations, the Mondale Act. He argues persuasively that this Act helped create a runaway, abusive system in which 66-80 percent of reports made to the CPS are totally unfounded and many others involve very minor matters. These false and exaggerated charges have involved millions of families, causing untold devastation. William L. Saunders shows us that things are not getting better. In fact, “human rights law” based on international agreements is now serving further to undermine the family. Michael E. Rosman examines the constitutional implications of when the CPS and related police authorities interfere with family relations, and he calls for procedural rules to minimize the impact on the family. James R. Mason III looks at the procedures related to CPS inspections and the Fourth Amendment, in what he has dubbed “the battle for the front door.” He shows that in almost three out of four cases, incursions are unnecessary and cause more harm than good. Patrick F. Fagan, in a paper co-authored by Anna Dorminey and Emily Hering, continues his excellent work of laying out the evidence related to safe and dangerous places for children. In the context of these papers, one has to conclude that the CPS far too often moves children from safety to danger. Ruth A. White employs the concept of CPS workers (and others) as “street-level bureaucrats” who are forced to negotiate ethical dilemmas borne out of poorly designed public policy and insufficient federal funding. The volume concludes with two amicus curiae briefs, filed by the Society of Catholic Social Scientists, which put theory into practice. Foreword XI At the end of the day, one is left with concern for children who encounter actual abuse, but also with a new concern for adults who are falsely accused and for families that are tom apart by a system that encourages false accusations. Since the investigations and prosecutions are made “in the name of protecting children,” that system also tempts authorities to circumvent the rights of the accused. The papal encyclical Rerum Novarum forbids the state to “exercise intimate control over the family,” and says that the state may intervene only when the family is in “exceeding distress” or if within it there are “grave disturbances of mutual rights.” Relying on teachings such as these, the authors of the articles in this book set forth an ethic grounded in Catholic social teaching. Procedures derived from that ethic must make their way into public policy. The alternative is continuation of a system that too often hurts what it is intended to help. Oxford, Mississippi July 6,2012 Preface and Acknowledgements By Stephen M. Krason I have written about the problem of false reporting of child abuse and neglect directed against parents for over a quarter of a century. Even though it is clear, by any amount of careful study, that the problem is a massive one, it has seemed persistently to be “below the radar screen.” While perhaps more people have a sense of it today than when I first wrote about it—maybe because so many parents across the United States have been victimized by the child protective system (CPS)—most seem to be unaware of it.