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Massacre of the Innocents

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Massacre of the Innocents

New York’s misguided family-reunification policies continue to have fatal consequences. Winter 2018
The Social Order

I’ve written this article once before. It was titled “Fatal Preservation” and appeared in the Summer 1997 issue of City Journal, following the murders of six-year-old Elisa Izquierdo and other New York City children by violent, drug-addicted parents to whose custody they had been returned. I described how a once-sensible liberal reform known as “family preservation,” designed to keep troubled but essentially functional poor families together by providing them with services and counseling, had been carried to ideological extremes, in which judges and social workers zealously “reunified” children with monsters.

Later that year, Congress passed, and President Clinton signed, landmark legislation, the Adoption and Safe Families Act of 1997 (ASFA), aimed at curbing the excesses of family preservation. Many in the social-work establishment, including officials in the administrations of New York City’s last two mayors, Bill de Blasio and Michael Bloomberg, have remained hostile to ASFA and committed to the old family-preservation ortho­doxy. Now a new spate of child fatalities suggests that de Blasio’s Administration for Children’s Services (ACS) may be redoubling this commitment. The commissioner brought in to clean up ACS after these deaths has retained the nation’s leading institu­tional advocate for family preservation to review the agency’s practices. The results could be ominous for the safety of New York’s children.

While “family preservation” sounds like the kind of policy that social conservatives would support, its pedigree comes from the Left. It dates from the rights revolution of the late 1960s and early 1970s, when activists reacting to past racial and class injustices came to believe that poor families too often had their children taken away because of cultural bias. They sought to keep such families together when possible by offering them services such as emergency financial assistance and family counseling. Family preservation was originally billed as a means of helping such families through temporary crises involving short-term neglect or isolated abuse—not families with a history or serious risk of life-threatening abuse or neglect due to parental addiction, mental illness, or sociopathy.

The law began incorporating the new preference for preserving families in the late 1970s and early 1980s, with the language of the statutes seeming to reflect the reasonable original intent to limit the policy to situations in which it did not seriously endanger children. The federal Adoption Assistance and Child Welfare Act of 1980 required states, in order to qual­ify for federal foster-care funding, to make “reasonable efforts” to keep families together prior to removing a child from the home and to “reunify” families after removal. Simi­larly, the New York State Child Welfare Reform Act of 1979 and subsequent legislation required “preventive services” and “reasonable efforts” to preserve or reunite families when it was “reasonable to believe” that this would enable a child “to remain with or be returned to his family”—that is, when it was reasonably likely that these services would significantly improve the parent’s behavior.

Implementing this language proved problematic. Because states risked the loss of federal funds for doing too little to preserve families, but not for doing too much, bureaucrats erred on the side of keeping children in dangerous family situations. This tendency was reinforced by the efforts of several large liberal foundations, such as the Annie E. Casey Foundation, which devoted millions of dollars to promoting preventive-services programs, rather than foster care, as the first option in even extreme cases. These taxpayer-funded services—including payment of housekeepers to cook, clean, and shop for abusive or neglectful parents—were often extraordinarily generous, well out of the financial reach of other poor or even middle-class families.

Carrying the cultural sensitivity that motivated family preservation to an absurd length, one of the foundations proclaimed that child “’abuse’ ” (in sneer quotes) may simply “reflect a group’s cultural norms.” This ideology found a recep­tive audience in the new social-work establish­ment, which, going to the opposite extreme from earlier excesses, began to view keeping even the most dangerous families together as almost always “reasonable”—and not doing so as unacceptably judgmental. A caseworker interviewed in a Bill Moyers television documentary thus deplored the “labeling process” that puts a crack-addicted single mother “in a different category” from a working family unable to afford day care. And in one case that I described in the 1997 article, when a Bronx father killed his five-year-old son by hanging him from a coatrack, rupturing his liver and crushing his chest—for taking a piece of cake from the refrigerator—child-welfare workers listed the “perma­nency goal” for the surviving children as “return to parent.”

Congress acted to contain this lunacy with the enactment of ASFA in 1997. The act made three principal changes to the law governing federal child-welfare funding. First, it expressly declared that “the child’s health and safety shall be the paramount concern” in determining the “reasonable efforts” to be made to preserve or reunify families. Second, it provided that these efforts weren’t required in the most egregious cases—specifically, where:

the parent had killed (i.e., committed murder or involuntary manslaughter of) another child;

the parent had severely injured the child in question or another child;

the parent’s parental rights to another child had been involuntarily terminated; or

the parent had subjected the child in question to other “aggravated circumstances” to be defined by the individual states, which “may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse.”

Third, to end the revolving door in which abused children often bounced back and forth between their biological parents and various foster homes, ASFA required states to move to terminate parental rights, and to begin the process of placing children in permanent adoptive families, when they had spent 15 of the previous 22 months in foster care, as well as in cases of abandonment or where reasonable efforts at reunification were not required because the parent had killed or severely injured a child. Exceptions were made where a child was in the foster care of a relative, if “reasonable efforts” to keep the family together were still required under the law and had not been made, or if state officials could docu­ment “a compelling reason” that adoption was not in the child’s best interest. The definition of “compelling reason” was left to the states.

The law thus gave states a fair amount of latitude to establish when reasonable efforts could be dispensed with and when termination proceedings would be required. New York State, after missing the compliance deadline, eventually passed one of the weaker ASFA-enabling statutes, as the Democratic-led state assembly sought to retain as much of the family-preservation philosophy as possible. The New York law does add one additional “aggra­vated circumstance” to the federally mandated situations, such as murder, where efforts to preserve families are not required: “severe” or “repeated” abuse of a child, including rape and other particularly vicious sexual assaults. But unlike the statutes in many other states, it does not include other forms of sexual abuse such as forcible touching or torture that does not result in serious physical injury. And the “compelling reasons” it specifies for not initiating termination and adoption proceedings are absurdly broad and circular, including “there are insufficient grounds” and “the child has a permanency goal other than adoption.” So caseworkers and judges determined to cling to the old family-preservation dogma have always had some leeway to do so in New York.

New York City, however, had begun moving away from this dogma even before the passage of ASFA and the New York implementation law. After Elisa Izquierdo’s horrific 1995 death following prolonged torture by her crack-addicted mother, Mayor Rudolph Giuliani declared: “The philosophy of child welfare has been too rigidly focused on holding families together . . . at the cost of protecting babies and children” and “When a child is abused, when child safety is in question, then government must act.” Giuliani shut down the old Child Welfare Administration, an arm of the Human Resources Admin­istration superagency, replacing it with the new cabinet-level ACS, and tapped Nicholas Scoppetta, a respected former deputy mayor and federal prosecutor and himself once a foster child, as the first commissioner.

Scoppetta seemed strongly committed to the new philosophy at first, even suggesting that the city needed to consider the creation of new orphanages like the one where he and his brothers had lived for seven years. But in 1999, as part of the settlement of a federal class-action lawsuit brought by the advocacy group Children’s Rights against the agency, he agreed to the appointment of an “expert” panel of monitors funded and staffed by the vehemently pro-family-preservation Annie E. Casey Foundation. When later that year, Children’s Rights issued a report criticizing ACS for still not doing enough to remove endangered kids from abusive homes—pointing to a 50 percent increase in fatalities of children known to ACS on Scoppetta’s watch—the Casey panel revealed its ideology. Casey president and panel head Douglas Nelson blasted the report for “singling out fatalities,” saying that this “may reinforce the oversimplified view that we can protect at-risk kids in fragile families with an even more aggressive approach to removal” and chiding its Children’s Rights patrons for sounding like Mayor Giuliani. Issuing his own final monitoring report the next year, Nelson reit­erated the Casey philosophy that “help for families, including birth parents . . . should be at the heart of any child welfare system.”

Prosecutors found that the girl, who weighed only 36 pounds, had been ‘systematically tortured’ for weeks.

In a classic case of going native, Scoppetta began to take on the views of the “experts” and the bureaucrats left over from the old Child Welfare Administration. He asked the Casey panel to stay on as advisors after the court-ordered monitorship period ended. And by the time he left office with Giuliani at the end of 2001, he was a full convert, grading ACS offices on “how swiftly families were reunited” and crediting the panel “with shifting his focus from child removal . . . toward a recognition that child safety could often be better served by preventing the trauma of foster care placement in the first place.”

The ACS commissioners appointed by Mayor Bloomberg didn’t have to be converted. Bloomberg was, in many ways, an excellent mayor, but like many successful technocrats, his greatest weakness (and his greatest differ­ence from Giuliani) was a tendency to defer to “experts” in an unfamiliar field, with­out realizing the almost invariably liberal bias of their “expertise.” He followed that instinct in selecting ACS chiefs firmly committed to family preservation. William Bell, who served from 2002 to 2004, was a social-work Ph.D. and former Child Welfare Administration official whom Scoppetta had brought over as deputy commissioner when ACS was formed. He would go on to head Casey Family Programs, a Casey Foundation spinoff, where he has criticized case­workers viewing children, rather than parents, as their clients. John Mattingly, who served from 2004 to 2011, had been a Casey Foundation official and a member of the Casey-led ACS moni­toring panel.

Mattingly’s tenure, however, was jolted by several horrendous deaths that, according to disappointed family-preservation advocates, shook his conviction to the cause. The most notorious was the 2006 murder of seven-year-old Nixzmary Brown by her stepfather while her biological mother looked on. Prosecutors found that the girl, who weighed only 36 pounds and whose body was covered with bruises, had been “systematically tortured” for weeks—torture that included binding her to a chair, forcing her to eat cat food and use a litter box, and submerging her head under water. The final beating, in which the stepfather bashed her head against a bathtub, came after she took a cup of yogurt from the refrigerator.

Nixzmary was the fourth child in two months to die while in the custody of parents previously investigated by ACS. In her case, her school had reported eight months earlier that she had been absent 46 days and had several injuries, including a burned hand. The month before she died, the school reported that she had further extensive absences, appeared emaciated, and had a black eye. ACS closed the first case, determining that her 46 absences did not establish educational neglect because they had been “due to her mother’s inability to get her to school during her pregnancy.” They let the second case languish after being denied entry to the home and failing to seek a warrant.

Nixzmary’s murder seems to have been a shock that launched Mattingly on something of the reverse course from the one that Scoppetta had traveled. He was not a family-preservation “ideologue,” he told the New York Times, but thought that “a child’s safety had to come first,” and he acknowledged “serious practice problems” in the present approach. “If you are leaving children in the home just to leave them in the home, that is bad practice and we will fix it.” He implemented a new policy requiring caseworkers to seek warrants when denied access to a child’s home. Another reform—a presumptive policy of seeking removal of newborns from parents who had lost custody of other children—came two years later, after an infant was beaten to death by his drug-addicted mother, who had been allowed to keep him even though she had lost custody of another baby the previous year.

Discussing this new policy, Mattingly sounded like a man growing frustrated with ideology as it clashed with reality: “When I got here three and a half years ago, the assumption was the child would stay in the home,” he told an interviewer, but “if older siblings are in foster care, and the court has affirmed that they are at substantial risk of harm, it makes very little sense to make the opposite assumption about a six-pound baby coming into the home.” He had seen too many deaths in such cases, he said.

Mattingly seems to have taken no further significant steps to limit family preservation or enforce strict compliance with ASFA, though. Even after another gruesome death rocked the city in 2010—that of four-year-old, 18-pound Marchella Pierce, who was starved, drugged, and beaten to death by another substance-abusing mother while ACS failed to investigate complaints—Mattingly embraced only cosmetic reforms, such as enhanced supervision of caseworkers and service providers. Such proposals, which crop up whenever a child dies, turn on the notion that the dead child “slipped through the cracks” of an overworked, undertrained bureaucracy. But children like Marchella and Nixzmary and Elisa Izquierdo, all known to the system but left in danger, don’t slip through its cracks. They are the victims not of ineptitude but of ideology. Ultimately, Mattingly, though apparently torn, could not shed his ideology; and on his watch, the number of children placed in permanent adoptive homes fell by almost 50 percent (from 2,314 in fiscal year 2005 to 1,186 in fiscal year 2011), while the number of children known to ACS who died increased from 30 to 46 per year.

These numbers seem to have gotten even worse under Bill de Blasio’s first ACS commissioner, Gladys Carrión, who rewrote the agency’s mission statement to proclaim up-front that “ACS is deeply committed to . . . ensuring that interventions—including child protection . . . are performed in a manner that is respectful of the racial, cultural and economic character of each family involved.” Fatalities of children from families with previous ACS involvement or abuse reports spiked at 58 during her first year in office in 2014, though they fell back to 43 in 2015. And adoptions (which had increased somewhat under Mattingly’s successor, Judge Ronald Richter, during the last two years of the Bloomberg administration) fell back to slightly lower levels than under Mattingly.

Carrión resigned in December 2016 after another string of horrifying deaths. Two killings in particular stood out. Six-year-old Zymere Perkins of Harlem died in September 2016 after being brutally beaten for over a year by his mother’s boyfriend. Subsequent investigations revealed that Zymere had been the subject of five previous abuse reports to ACS, including reports by his school of repeated absences and unexplained injuries, but that the agency had credulously accepted his mother’s explanations that he was “accident prone.” ACS had actually closed two of the five cases as “unfounded”; and even for those it found to be “indicated,” it had merely referred the “family” for “preventive services” (including mental-health and drug-treatment therapy, for which they failed to keep appointments).

The other death was that of three-year-old Jaden Jordan of Gravesend, Brooklyn, in December 2016. Like Zymere, Jaden was the victim of a savage beating by his mother’s boyfriend. Unlike in Zymere’s case, there had apparently been only one previous report about Jaden—an anonymous tip a few days earlier that he was being kept in a dog crate—but ACS failed to pursue the lead because the caller gave the wrong address. These were by no means the only fatalities during Carrión’s tenure. A study by Comptroller Scott Stringer found that, in just the three months prior to Zymere’s killing, ten other children had died whose families had been the subject of four or more prior child-abuse reports.

An earlier report by the city’s Department of Investigation (DOI) analyzed two other fatalities and one near-fatality of abused children previously known to ACS, and demonstrated the link between these tragedies and the agency’s systemic violation of the ASFA mandate to place child safety over family reunification. DOI found that “ACS repeatedly investigated abuse and neglect allegations—often the same or similar allegations—within a family . . . and found credible evidence that the children had been repeatedly abused and neglected,” yet rather than seek to remove the children, it “provided the same, evidently ineffective, services over and over.” In fact, incredibly, in two of the three cases of death or severe injury studied by DOI, ACS’s “permanency plan” for the victims’ surviving siblings (now finally in foster care) is to return them to their parents. And in the third case, the agency stalled for more than two months in filing an ASFA court motion to end its “reasonable efforts” to reunify the siblings with the mother who had beaten their sister to death.

DOI also found that ACS habitually violates the ASFA and state law requirement to move to terminate parental rights when children have been in foster care for 15 of the preceding 22 months, thus freeing them for adoption into safe, permanent homes. These petitions have not been filed within the required time in 82 percent of cases, DOI found, resulting in delayed or thwarted adoptions for more than 1,000 children a year. This likely helps to explain the city’s drastic reduction in adoption placements.

It’s worth quoting at length from one of DOI’s case studies, concerning a deceased child it calls “Morgan,” as it gives a chilling sense of ACS’s zeal to keep “families” together at all costs:

During the 12 years prior to Morgan’s death, ACS investigated 11 reports of neglect concerning Morgan’s mother and “indicated” seven of those reports, repeatedly determining that [she] neglected her children. . . . The findings . . . included exposing some of her children to cocaine in utero . . . and failing to ensure they attended school.

Over the course of six years, the family received ACS-contracted preventive services at least five times. . . . [When finally placed] in foster care, the children thrived. They received needed therapeutic and developmental services, took their prescribed medications, and [were] enrolled in school for the first time. During this time, the mother tested positive for cocaine while pregnant with her fifth child despite the fact that she was attending substance abuse treatment.

While in foster care, the children made numerous . . . allegations [that] the younger children’s father . . . was abusive . . . including . . . attempting to suffocate two of the children. Neither ACS nor provider agency staff reported these allegations. . . .

Morgan’s foster parent . . . wanted to adopt [her]; however, adoption was not pursued, and, instead, the children were trial discharged to their mother. Following the trial discharge, the mother often failed to cooperate with the services that the family court ordered . . . and the progress the children had made while in foster care began to deteriorate significantly. . . . [W]hile the children were home on trial discharge . . . ACS found that the mother was failing to ensure one . . . attended school and to prevent [them] from injuring each other. However, ACS failed to inform the court of this . . . and the court final discharged the children to the mother.

Seven months after being final discharged, two different ACS investigators separately reported that the children were living in a deplorable, unsafe, hazard-filled home and were only sporadically attending school. . . .

ACS investigated three reports of neglect during the year and a half following the children’s discharge . . . and “indicated” all three. . . . However, the children remained in the mother’s care. . . . [A] preventive services agency was working with the family up to the day Morgan died.

Despite all the evidence of neglect ACS uncovered . . . over many years . . . it failed to . . . consider that the neglect was chronic. ACS repeatedly provided the mother with the same services over and over again, failing to see that this was futile. . . . [T]he mother continued to fail to meet the children’s basic needs.

In view of this agency mind-set, it’s probably not surprising that children have continued to die since Carrión’s departure in December 2016. Five-year-old Michael Guzman of Queens was found dead on January 22, 2017. ACS had investigated 13 reports of abuse and neglect of Michael and his five siblings since 2008, finding evidence of physical trauma, sexual abuse, or inadequate food or clothing eight times, but allowed all six children to remain in the home. “The problem with ACS is their motto is, ‘Keep the families together’—they would have kept the Manson family together,” an agency source told the New York Post after Michael’s death.

A few days later, four-year-old Zamair Coombs of Harlem was beaten to death with a broomstick by his mother, the subject of two previous ACS cases. In February 2017, the 2016 death of one-year-old Nichelle Warring of Bedford-Stuyvesant was ruled a homicide. Her father, a member of the Bloods gang, had been probed by ACS for sexual abuse of another daughter. On March 20, one-year-old Bianca Abdul of Staten Island, whose parents had been investigated seven times by ACS, with three cases substantiated for drug use and inadequate supervision, was found dead in her crib from an opioid overdose. In April, one Bronx infant from a family with a previous ACS history, two-month-old Kadiha Marrow, was savagely beaten, and another, three-month-old Mark Ruane, Jr., was found dead. In response to subsequent deaths, such as that of 16-month-old Nylah Lewis, whose father broke her skull on Father’s Day, ACS has taken to claiming that it is barred by confidentiality laws from saying whether it had any previous involvement with the family.

Zarah Coombs at a court appearance after being charged with beating to death her four-year-old son, Zamair, with a broomstick (BARRY WILLIAMS)

Appointed commissioner in February 2017, David Hansell, a Yale-educated lawyer, has impressive credentials in govern­ment, consulting, and the nonprofit sector. But nothing in his background, including stints at the Gay Men’s Health Crisis and as an Obama administration welfare official, or in his statements and actions since taking the job, suggests that he will challenge the progressive family-preservation orthodoxy. Interviewed for a vehemently pro-family-preservation article in the New York Times (which attacked foster care as “Jane Crow”), he boasted that under his leadership, “the agency was trying to steer away from removing children from the home” and instead seeking “court-ordered supervision, under which families are required to participate in services.” Reiterating this position in an op-ed, he noted that ACS is now training new caseworkers in the discredited theory of “implicit bias,” apparently to curb removals of abused black and Latino children from black and Latino parents.

ACS ‘would have kept the Manson family together,’ an agency source told the New York Post.

The team that Hansell has brought in to review ACS operations, including retired Los Angeles child-protection chief Philip Browning and Casey Family Programs, also offers no reason for optimism. Browning stepped down from the L.A. job a year ago, after the death of an 11-year-old boy weighing 34 pounds who had been locked in a closet and starved; Browning’s agency had kept the boy with his family despite six previous abuse reports. Casey Family Programs, the nation’s leading family-preservation promoter, is worse. In a 2009 speech, its president, former ACS commissioner William Bell, attacked the “child as client paradigm” and frankly declared his goal to “move our social welfare system from a focus on child welfare to a focus on family welfare.” Predictably, Casey’s first report to ACS argued “against judging an agency’s overall safety on the basis of the number of child fatalities that happened on its watch” and cautioned against “reactive and punitive action” against agency staff “following high-profile tragedies,” lest this lead to “fear-based decisions and an increased number of children removed and placed in foster care.”

In a forthcoming book, Out of Harm’s Way, Richard Gelles, former dean of social work at the University of Pennsylvania and a longtime critic of family preservation, laments that the Casey philosophy of focusing on parents, rather than children, already dominates the social-work establishment. This philos­ophy is directly at odds with the rule that Congress enshrined in ASFA 20 years ago that child health and safety must be the system’s “paramount concern.” It’s time to stop subverting the law and start protecting children’s lives.

Top Photo: Seven-year-old Nixzmary Brown was murdered in 2006 by her stepfather, while her biological mother looked on. (ROBERT A. SABO/GETTY IMAGES)

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