State's Child
Protection Agencies Collude with Judges
to Defraud Federal Government
© Nev Moore Jan. '02
In 1974 Walter Mondale initiated
CAPTA (the Child Abuse Prevention and
Treatment Act), the legislation that
began feeding federal funding into the
state's child welfare agencies. With
remarkable foresight Mondale expressed
concerns that the legislation could lead
to systemic abuse in that the state
agencies might over-process children
into the system unnecessarily to keep,
and increase, the flow of federal
dollars.
Shortly after CAPTA was enacted there
was a dramatic increase in the number of
children in foster care, peaking at
around 500,000 during the mid-70's.
George Miller, the Chairman of the
federal Select Committee on Children,
Youth, and Families, initiated an
intensive investigation of the nation's
foster care system after the effects of
CAPTA started to become apparent by the
soaring numbers of children who were
being placed in foster care. An official
at the U.S. Department of Health,
Education, and Welfare admitted to
Miller that the government had no idea
where many of the nation's 500,000
foster children where living, what
services they were receiving, if any, or
if any efforts were being made to
reunite them with their families.
To address the obvious free-for-all
snatching of children that CAPTA had
stimulated, the Committee crafted new
federal legislation with the intent of
creating accountability and clearer
guidelines for the states child welfare
agencies. During the crafting of P.L.
96-272 Chairman Miller's concern was
that the federal government was footing
the bill for warehousing children in
institutions and inappropriate settings
without accountability.
In 1980 the Adoption Assistance and
Child Welfare Act, P.L. 96-272, was
enacted. The act included provisions
that "reasonable efforts" be made to
prevent children from being
unnecessarily removed from their homes
and placed in foster care. Although CPS
has always tried to buffalo the media
and the public that they are involved
with families due to some sort of
horrific child abuse or neglect, there
has never been any debate among national
policy makers, researchers, and federal
agencies that the vast majority of CPS
cases are due to poverty or
frivolous/social reasons and do not
contain elements of real child abuse. If
the cases did actually involve acts of
abuse they would be criminal, identified
and investigated by law enforcement,
rather than social workers, and would be
prosecuted as such. P.L. 96-272 came
into effect partly because Congress
determined that a large number of
children were being unnecessarily
removed from their homes, and, once
removed, they were lost in the limbo of
foster care for years, many until they
just grew too old, when they were then
put on the streets at the age of 18.
The Child Welfare League of America
testified before a senate subcommittee:
"In fact, there were many instances
then, as now, of children being removed
unnecessarily from their families. It is
important to recognize that children are
almost always traumatized by removal
from their own families."
So, accountability from each states
child protection agency was also written
in. To receive the federal money the
states would have to submit an annual
report to the federal government,
known as an AFCARS report, that
specifically accounts for each child in
state care. ACLU Children's Rights
Project attorney, Marcia Robinson Lowry,
explained in her testimony to Congress:
"As a condition of federal funding,
states must have a reasonable
information system to identify children
in federally-funded state custody."
These requirements were implemented in
1980. Up until 1999 some states were
still not filing their federally
required AFCARS report to the federal
government. According to Jeffrey Locke,
former Commissioner of the Massachusetts
Department of Social Services, the
excuse to the legislature was that they
"couldn't figure out how to
work their computer system."
When I called Senator Therese Murray in
1998 to ask how many children had died
in foster care in Massachusetts, her
aide replied: "We don't have those
statistics." At that time Senator Murray
was the Senate Chair of the Committee on
Health & Elderly Affairs, and therefore
responsible to oversee the collection
and filing of AFCARS data.
The "reasonable efforts" requirements
were designed to address these issues by
requiring the states child welfare
agencies to have specific investigation
and assessment policies to minimize
frivolous removals, to provide
"services" to address and ameliorate
conditions that were detrimental to the
child's well-being; to place children
with relatives when removal from the
home was absolutely necessary; and make
efforts to reunite families in a timely
fashion. Methods to audit and track
compliance with federal requirements
were also built in.
The states were to establish "citizen
review panels" comprised of a
specifically designated representation
of the population which would include
not only members of collateral
professional communities involved in
child protection, but "parents,
foster parents, and former foster
children." Each state was to have at
least three citizen review panels. The
panels would essentially act as a
standing jury of peers and would review
CPS cases. Twenty years after P.L. 96-
272 went into effect the citizen review
panels have never been established in
most states.
Another means of creating accountability
was to have the federal authority, U.S.
Department of Health & Human Services,
conduct compliance audits, which are
known as Section 427 reviews. The method
of enforcement that Congress devised to
ensure that the states followed the
federal law was to provide incentive
funds to the states that documented
their compliance with the federal
regulations. The states would
self-certify compliance, but could be
subjected to "periodic" 427
reviews by the Dept. of Health & Human
Services. Were the states to find
themselves in non-compliance they would
simply return the incentive funds. It
would seem that providing cash to
agencies that are allowed to
self-document compliance is a somewhat
less than intelligent system. It
would be interesting to track down
exactly how much money the states child
"protective" agencies have returned to
the government because they found
themselves in non-compliance. Gee, maybe
this is rocket science.
Like CAPTA, P.L. 96-272 could only have
worked if the federal government
demanded compliance and meticulous
accountability, and them imposed
sanctions for non-compliance. Even
better – criminal charges for
racketeering for intentional fraud. Mark
Soler, director of the National Youth
Law Center in California explained:
"The Department of Health &
Human Services has failed to
promulgate meaningful regulations to
implement the Adoption Assistance and
Child Welfare Act. It has applied even
the minimal federal regulations that
were developed in an inconsistent and
arbitrary manner, and only token
implementation of the laws protecting
children.'
Even when HHS finds overwhelming
evidence of lack of compliance during
427 reviews, no sanctions are imposed
and they continue to keep the fed $$$
pouring in – in violation of their own
regulations. Not so much as a slap on
the hand or even token admonishment.
Certainly explains how CPS developed
their arrogance and contempt for any
authority – because there is none. Their
confidence that they are free from the
feds insisting on compliance with the
law is well illustrated by the foster
care numbers which increased
dramatically after CAPTA began feeding
federal dollars into the states child
protection agencies, then dropped
equally dramatically after the enactment
of P.L.96-272, which was supposed to
create more specific federal regulation
and accountability. However, once the
state agencies saw that the federal
government was not enforcing compliance,
the foster care numbers soared once
again.
Michael Petit, Deputy Director of the
Child Welfare League of America, stated
in his testimony before Congress: "A 427
is a meaningless process for most of the
states. It represents no kind of
sanctions to the states whatsoever for
non-compliance." Marcia Robinson Lowry
told Congress: "States are passing HHS
audits with systems in which no
reasonable person could consider that
children are being well treated. It is
virtually impossible to fail a 427
audit."
The initial concept of "reasonable
efforts" was the only conclusion that
any rational person could come to:
rather than disrupt children's lives,
and traumatize them by seizing them from
non- abusive situations and placing them
with strangers (who are often no better,
and sometimes far worse), assist
families in overcoming their obstacles
and problems by providing support and
services. The idea never worked, though,
because it has always been more
profitable to too many to remove
children rather than keep them at home.
Rather than offer support and simple,
practical services to families CPS
forged contracts with vendors. Now
private businesses, under the guise of
"service providers", could mushroom into
existence knowing that their sugar
daddy, CPS, would provide a never-ending
flow of coerced clients. The market
potential is unlimited – potentially
every mother, father, grandparent, and
child in the country. Rather than
offering practical, meaningful services
that are germane to the families
circumstances, CPS clients are ordered
to engage in "services" with
CPS-contracted vendors; special interest
groups who are dependent on CPS for
their income and profit by maintaining
the levels of children in foster care,
and whose interests are protected by a
bureaucracy intent on securing it's own
survival and protecting unlimited
growth.
The extent of which CPS is allowed to
continue to operate while being so far
out of compliance with the existing
state and federal laws is mind boggling.
It would be a challenge to find any
other agency in our countries history
that operated in such gross and blatant
violation of the law with absolutely no
intervention from the administration.
Tens of millions of tax dollars are
being squandered on a system that is
destroying families and causing lifelong
emotional ruin to children – and those
are the lucky ones who live through it.
The most egregious area of outright
criminal fraud is CPS's practice of
filing their federally required
documentation of compliance in secrecy
through the courts. The federal foster
care reimbursements are channeled
through the Title IV-E section of the
Social Security Act. Each states child
welfare agency enters into a contract
with the federal government, which is
referred to as their Title IV-E state
plan. It is this contract that spells
out the responsibilities that CPS must,
by law, comply with in order to receive
their federal funding. To document
compliance with the fed regs CPS must
file a form through the courts in each
individual case. In Massachusetts these
forms are referred to as a "29-C." 42
U.S. Code, ss 672 reads:
"These requirements are not
mere formalities. The Finance
Committee of Congress, in preparing
its summary for final passage of the
Adoption Assistance and Child Welfare
Act of 1980, P.L. 96-272, stated; `
The Committee is aware of allegations
that the judicial determination
requirement (sic: that a judge makes a
determination that a child needs to be
removed from the home) can become a
mere pro forma exercise in paper
shuffling to obtain federal funding.
While this could occur in some
instances, the Committee is unwilling
to accept as a general proposition
that the judiciaries of the States
would so lightly treat a
responsibility placed upon them by
federal statute for the protection of
children."
1980 U.S. Code Cong. and Admin. News:
"A judicial determination of those
efforts (reasonable efforts, as defined
in the Act) serves to closely examine,
in the case of each individual child,
whether reasonable efforts were made to
keep the family intact." In
accordance with the federal requirements
the Massachusetts legislature enacted
G.L. c.119 ss 29b, which requires all
judges to certify that the Department of
Social Services met the obligation
grounded in the federal statute of
making reasonable efforts to protect the
child short of removing him or her from
the parents, and, if the child was
removed, making it possible for the
child to return home in a timely manner.
Rather than "closely examining", in
Massachusetts this grave responsibility
is carried out by judges by rubber
stamping stacks of 29c forms that simply
contain three "yes" or "no" check boxes.
In many instances making three check
marks is even too much work for
Massachusetts judges and they rubber
stamp the forms while leaving them blank
– never mind actually verifying that the
"reasonable efforts" were made. In
return for these forms DSS receives it's
federal money.
The three questions are:
1. Continuation in the home is
contrary to the well being of the
child?
2. Reasonable efforts have been
made prior to the placement of the
child to prevent or eliminate the need
for removal of the child from his/her
home?
3. Reasonable efforts have been
made to make it possible for the child
to return to his parent/guardian?
I discussed this issue a few years
ago with Veronica Melendez at the
Children's Bureau (the federal
authority). She told me that the federal
government was under the impression that
all parties were present in the court
room at the time of the filing of the
29c's, so that the parents attorneys had
the opportunity to object, rebut, or
verify the "reasonable efforts." In
reality, no one sees the federal forms
except the judges and a representative
of DSS's main legal department.
Attorneys ask us how we ever "got our
hands on" the 29c forms, as we have
never yet met an attorney who has seen
the forms, let alone have been notified
of the filing hearing. We even have
forms on which the "no" boxes were
checked, yet the children were still
removed from their homes and federal
funds collected for them.
By seizing children illegally in
violation of the Title IV-E
requirements, then filing false
documents in secrecy through the courts
to obtain federal funding, CPS is
defrauding the federal government with
intent. CPS should be subject to
investigation and prosecution by the
U.S. Attorneys Office. They should be
held liable for the restitution of all
illegally obtained funds, and prosecuted
for perjury, obstruction of justice, and
the fraudulent collection of federal
funds under the False Statements and
Accountability Act of 1996, P.L. 104-292
110 stat 3459, 42 U.S.C.S. 670-679a; P.L.
96-272; C.F.R. part 1356; and Title
IV-E. I have discussed this issue with
the Inspector Generals Office and they
felt it could possible be prosecuted
under RICO, yet they have also failed to
act, possibly because it isn't just CPS/DSS
who is committing federal fraud, but
also the judges who are signing the
documents.
In 1988 George Miller, the original
architect of P.L. 96-272, and Chairman
of the congressionally appointed Select
Committee on Children, Youth, and
Families, recognized the fraud being
committed in the name of child
"protection", and stated:
"What has been demonstrated
here is that you have a system that is
simply in contempt. This system has
been sued and sued and orders have
been issued and they just continue on
their merry way. And HHS just
continues to look the other way. You
have a system that is not only out of
control, it's illegal at this point.
What you are really engaged in is
state sponsored child abuse."