Nev Moore of Barnstable, Mass., thought the worst night of her life was in 1997, when her husband Tom got drunk and pushed her during an argument outside their home.
She was wrong. The worst night was some 13 months later, when the Massachusetts Department of Social Services yanked the Moores' eight-year-old daughter out of school and sent her to an undisclosed foster home.
"I couldn't see my daughter for six weeks. I didn't know where she was or what kind of people she was with. I didn’t know if she was in school," Moore said. "I can't describe the fear I felt."
Moore said she was blindsided by the state's actions. Her husband had been sober and in counseling since the incident, which she maintains was a one-time aberration. She had not worried about the social workers' visits in the months before her daughter was taken, thinking she was actually impressing them with her loving, stable home life. After all, she thought, the state would not have left Brieanna in the home for more than a year if they thought she was in danger.
But social workers never believed Moore's denials about being a battered woman. Though neither parent had ever been accused of or charged with abuse, the state took the child away because Moore refused to admit her husband beat her.
In the first terrifying days after their daughter was taken, the Moores believed DSS would quickly return the girl. Again, they were wrong.
The case dragged on, snaring the Moores in a legal quagmire where, many activists say, parents are often guilty until proven innocent and fundamental constitutional rights about being innocent until proven guilty are routinely denied.
The Moores felt they had become pawns in what critics call a multibillion-dollar "child abuse industry" that keeps state agencies, private advocacy services and doctors, therapists and counselors greased with federal funding. The Moores' fear and distress turned into anger and outrage, and the couple founded a Massachusetts activist group, Justice For Families, joining a national movement to reform the system and demand some level of accountability from social workers and state agencies.
No Due Process
Most states' child service agencies allow parents a hearing within 24 to 72 hours of the child being taken into protective custody. But parents don't usually regain custody in these hearings, according to Greg Hession, an attorney who has represented families in these situations.
Instead, most parents are offered a plea bargain: admit the abuse, agree to a set of conditions and your child will be returned. Those conditions usually mandate counseling, therapy and home inspections by child services, as well as prohibit any form of spanking.
The plea bargains, which critics say coerces even innocent parents into admitting guilt, can be quite effective. Patrick Murphy, public guardian of Cook County, Ill., who acts as attorney and guardian for all abused children in Cook County, said parents accept pleas in 90 percent of cases. Most parents, activists noted, would agree to just about anything to get their child back.
Parents who don't plea out are then allowed to present a defense at a second hearing, usually scheduled within two to three months. The child remains in state custody in the interim. The case goes to trial if the parents don't regain custody at the second hearing.
At this point, the law and state agencies offer a wildly different account from accused parents and their attorneys as to what happens next.
Though laws and agency procedures vary state to state, across the country parents and their lawyers claim they lose the rights to a speedy trial and their children languish in foster care as the state obtains continuances and delays. While the Moores were stuck in a backlogged court system waiting for their case, DSS obtained 200 continuances, or delays, on their case.
Since many abuse charges stem from anonymous tips, parents say they do not get to face their accusers or question the credibility of the neighbor or schoolteacher making the charge. They say they do not get to see the evidence, reports and files used against them. When the case finally makes it to court, it is decided by a judge, not a jury, based on this secret evidence, they say. They claim that family court judges rubber-stamp whatever the state social workers recommend.
"It is easier to defend a criminal who is witnessed committing a felony than a parent accused of child abuse or neglect," said Brad Dacus, director of the Pacific Justice Institute, a Sacramento, Calif., organization that provides legal services to families.
This account of the system is vehemently disputed by state agencies and child abuse activists. In fact, when family activists rail against the incompetence, inexperience and unprofessionalism of caseworkers, it's the court system that agencies point to as the main check built in to balance the human fallibility of social work.
"Parents get a full evidentiary hearing. This is not a star chamber," said Harry Spence, commissioner of the Massachusetts DSS. "In the end the case has to be made to a judge, and that case can be appealed to another judge," he said.
Steven Kairys, a professor of pediatrics at Robert Wood Johnson Medical School in New Brunswick, N.J., and director of the American Academy of Pediatrics, said a major concern of pediatricians with reporting abuse is the judges.
"It is very hard for judges to understand the details of sexual abuse or to keep up with the changes," he said. "Oftentimes, the case depends on the judge who does not have enough ongoing training or experience in the field," he said.
"I'm never going to say that every court decision is right," Spence said. "I do believe that there are sufficient protections that prevent the state from abusing its authority," he said.
The 'Snitch' Network
One of the most powerful mechanisms for protecting children from abuse is a law that designates schoolteachers, day care operators, doctors, nurses, and others "mandatory reporters" of child abuse and neglect.
The law makes it illegal for these professionals to look the other way, imposing legal penalties when they fail to report neglect and abuse they observe or suspect. But activists claim the fear of legal action against them has prompted them to act more to protect themselves than children.
"CPS constantly runs these seminars for these people terrifying them with prosecution," charged Hession. "What they've done is create a Soviet-style snitch network."
Kairys said doctors account for some of the harshest critics of the mandatory reporting system.
"Too many cases are poorly triaged," Kairys said. He cited untrained social workers, interference in parent-doctor relationships, paper work, poor communication, and mistrust between CPS and the medical community and unqualified judges as just a few of the concerns.
Doctors basically feel state CPS is incompetent, Kairys said, and the reports they file are essentially a waste of time. Doctors tend to see the more clear-cut cases of physical abuse, and their complaint is that CPS fails to follow up sufficiently on the cases hospitals report.
Yet the doctors most likely to observe physical abuse only account for two to three percent of abuse reports filed. The majority comes from schoolteachers and other mandatory reporters.
But mandatory reporters, at least, are identified in case files. Hession, Moore and other activists take greater issue with child services' dependence on anonymous tips. Disgruntled co-workers, jealous neighbors — anyone with an ax to grind can wreak havoc on a family with a simple anonymous phone call.
Social workers say the anonymous tip is invaluable. It was an anonymous tip that sent a social worker to the Indiana home of Joseph Grad, who was locking his six-year-old son in a closet for 24 hours at a time, wrapping the boy in wire so he couldn't sit down, urinating on him, and feeding him food covered in hot sauce.
In the Moore case, Tom Moore immediately agreed to the service plan designed for him, a regimen that included mandatory urine testing for alcohol and drug abuse along with counseling. His wife, still refusing to admit she was a battered woman, offered to attend Al-Anon counseling for spouses of alcoholics.
That wasn't good enough for DSS.
"The service plans order parents to go to services that may have nothing to do with your circumstances," said Nev Moore. "DSS didn't have a contract with Al-Anon. They have a contract with the battered women's shelter."
Nev Moore eventually believed the only hope of getting her daughter back was to agree to attend battered woman's counseling. At one point, the family was attending a combined eight therapy sessions a week.
There the Moores discovered a network of shelters, doctors, programs, and therapists that held multimillion-dollar contracts with state agencies. And with the state as their top client, these practices had a financial interest in producing evaluations supportive of DSS cases, activists say.
"The doctors getting paid by CPS should not be doing the evaluations," Dacus said. His organizations and others have pushed for independent reviews from doctors and therapists not under contract with CPS.
The Moores, repeating a charge made by families involved with CPS across the country, said they were also advised to drop their private health insurance so that DSS could bill Medicaid for the counseling services they were receiving.
"It’s filthy corruption," Ms. Moore charged. "All of the counseling agencies are private practices existing solely on DSS business. They bill Medicaid. If you’re not on Medicaid, the family is forced to drop private insurance so the state can over-bill Medicaid."
The Moores eventually gained access to their DSS files in 1998, after a local news broadcast reported the agency was routinely discarding documents and files without redacting client names and private information. The Moores began sorting through DSS’ dumpsters and learned some surprising "facts" about themselves.
One report claimed Nev Moore had at one point lived in a tent in the Massachusetts woods with her older sons. Originally from the West Coast, Nev Moore said she had actually lived 3,000 miles away during that time, and had never even been camping in her life.
"It wasn’t even something that could have been twisted from something else," she insisted.
The files also claimed Tom Moore was failing his urine tests. This claim was so outrageous the Moores pushed for and eventually got a meeting with the social worker making the charge and the caseworker’s department head.
Tom had rescheduled some of the tests because he traveled for work. In the meeting, the caseworker admitted that missed, postponed and rescheduled drug tests were recorded as failed tests.
"Parents have no idea what judges are being told," Moore said. "You don’t even know where this stuff comes from."
The Moores were finally allowed strictly supervised visits with their child. But they had to agree "not to show emotion" during the visits, and to not ask any questions about her foster home, her school or her life.
Spence, who just assumed his duties heading Massachusetts DSS last month and was not part of the department during the Moore case, repeatedly acknowledged that the system was not perfect. But he adamantly opposed any suggestion that the system was specifically rigged against families or parents.
"I don't believe the CPS system engages in pervasive violations of human rights," he said, emphasizing that the family law operates within a rigorous set of legal, judicial and social policy checks and balances. But he said the question of whether the state takes children from their parents too often is a valid one.
"We think the debate is very important," he said.