Opinion

CAPTA Law Codifies Everything Wrong With How We ‘Fight’ Child Abuse

CAPTA: Beautiful African mother in pink lace dress holding her 1 week old baby

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Elizabeth Eden chose the wrong morning to eat a poppy seed bagel for breakfast. Then she chose the wrong hospital to give birth.

She went to St. Joseph Medical Center in Towson, Md. where, it turns out, all pregnant women are, in effect, guilty of substance abuse until proven innocent. As WBAL-TV explains in this story, all of them are tested for drug use.

CAPTA: Richard Wexler (headshot), executive director of National Coalition for Child Protection Reform, smiling balding man with white-gray hair in black top

Richard Wexler

A poppy seed bagel can lead to testing positive for opioids. But before Eden could explain what happened, she’d been turned in to child protective services (CPS). She was terrified. “I just couldn’t imagine having my baby taken after eating a poppy seed bagel.”

Fortunately the CPS worker believed Eden. Still, her child was forced to remain at the hospital for five days, the mother was forced to deal with enormous additional stress — and a CPS worker wasted time that could have been spent looking for children in real danger.

For Shakira Kennedy it was worse. Her pregnancy, with twins, was making it impossible to keep food or water down. Her doctor said she had to gain weight for the health of the babies. Only one thing helped: marijuana. Though her children actually tested negative for marijuana, the hospital turned in Kennedy to child protective services anyway. And though her children weren’t taken, she was put under an onerous regime of supervision that had serious consequences for her family — including driving away the children’s father.

Why was Ms. Kennedy treated even worse than Ms. Eden? Well, Ms. Eden is white and Ms. Kennedy is black.

The children of these two mothers are among the victims when the hype and hysteria over child abuse meets the hype and hysteria over drug abuse. For many other children, of course, the suffering is far worse — they are needlessly torn from their mothers at birth, despite research showing that, even when drug use really is a problem, those children often would be better off left with those mothers, with the mothers getting drug treatment when necessary.

That hype and hysteria has made it all the way into federal law — one federal law in particular; a law that has been setting back the cause of real child abuse prevention for more than 40 years.

The Nixon factor

Back in 1971, President Richard Nixon vetoed a bill called the Comprehensive Child Development Act. It would have aided low-income families by providing an array of services including developmental day care. The lesson for Democrats was clear: Whatever you do, don’t connect what you want to poverty. And so was born the Child Abuse Prevention and Treatment Act. As its sponsor, Sen. Walter Mondale, put it: “Not even Richard Nixon is in favor of child abuse!”

But to get the bill passed, everyone had to pretend that child abuse has nothing to do with poverty. As professor Barbara Nelson writes in her landmark history of CAPTA, Making an Issue of Child Abuse,” the bill fits the quintessential American view of all social problems. That is: They are “individually rooted, described as an illness, and solvable by occasional doses of therapeutic intervention.” That’s why parents whose children are taken because they lack child care or housing are almost always given — no, not child care or housing — a psychiatric evaluation. That’s why we persist in treating child abuse as a “public health” problem when it’s really a social justice problem.

We know that no issue is more important to dealing with child abuse than poverty. Poverty itself is routinely confused with “neglect,” and poverty exacerbates all the stress that can lead to actual abuse. But Mondale knew what he had to do to get CAPTA passed. “This is not a poverty problem,” he declared. “This is a national problem.”

CAPTA: The one-stop shop for bad ideas

CAPTA, in effect, codified everything wrong with our approach to preventing child abuse. And since it has to be reauthorized every few years, there are endless opportunities to do further harm by adding new provisions. As a result:

  • CAPTA encourages states to enact mandatory reporting laws requiring certain professionals to report child abuse, despite the fact that there was then — and is now — no evidence that they actually reduce child abuse, and many of those who once championed such laws now have second thoughts.
  • CAPTA requires states to appoint either a “guardian ad litem” or a court-appointed special advocate (CASA) in every child welfare case. CAPTA does not require this person to actually speak up for what the child wants, only for what the guardian or CASA thinks is best. CAPTA promotes this even though, as Youth Today revealed in 2004, a comprehensive study, commissioned by the National CASA Association itself, found that CASA doesn’t work — indeed, it prolongs foster care. A comprehensive law review article found that it institutionalizes the racial bias inherent in child welfare.
  • CAPTA enshrines double standards concerning secrecy. It requires child welfare agencies to disclose information about child abuse fatalities and near-fatalities as, in fact, they should. But it encourages agencies to keep all their other blunders secret. That’s because the way to stampede people into supporting tearing apart more families is to publicize the horror stories and hide everything else — so people think the errors go only in one direction.

Or, as Prevent Child Abuse America put it in 2003:

“While the establishment of a certain degree of public horror relative to the issue of child abuse and neglect was probably necessary in the early years to create public awareness of the issue, the resulting conceptual model adopted by the public has almost certainly become one of the largest barriers to advancing the issue further in terms of individual behavior change, societal solutions and policy priorities.”

But that “conceptual model” is the model behind CAPTA.

And on those rare occasions when something good is included in CAPTA, such as encouraging the diversion of less serious cases to offers of voluntary help through an initiative known as “differential response,” the take-the-child-and-run crowd wages a fast and furious smear campaign.

CAPTA and drug abuse

So in 2003, when the “meth epidemic” was the “worst drug plague ever,” Congress amended CAPTA to deal with it — in the worst possible way: It required medical professionals to set aside their professional judgment and turn in to child protective services any mother of an infant “affected” by illegal substance abuse or a fetal alcohol spectrum disorder. Someone — it’s not entirely clear who — is then supposed to create a “plan of safe care” for the infant. Of course, as mandated reporters, doctors already must report when they actually suspect a child is in danger. But CAPTA aimed to take all discretion out of their hands.

Somehow Congress concluded that a child protective services caseworker, whose qualifications often consist of a bachelor’s degree in anything, a quickie training course and an understandable dread of being on the front page if she lets a child go home and something goes wrong, will be in a better position to judge what is safe for the infant than the medical professionals caring for that infant.

Some medical professionals have resisted. Others, such as those involved with Elizabeth Eden and Shakira Kennedy, apparently embrace the CAPTA approach.

So we do terrible harm to thousands of children — tearing them from mothers despite research from still another Worst Drug Plague Ever — crack cocaine — showing that often, staying with those mothers was exactly what they needed most. Similar research is emerging concerning opioids.

There is no evidence that the CAPTA approach to alleged substance abuse makes children safer — and plenty of evidence that it endangers children by discouraging their mothers from getting health care.

Indeed, one recent study concluded: “previous qualitative research has found that policies related to CPS and child removal lead women to avoid prenatal care. Our findings related to [labeling alcohol use during pregnancy as child abuse or neglect] are consistent with this previous research and extend prior findings by indicating that this avoidance of prenatal care may be linked to worse birth outcomes.”

And then came the latest Worst Drug Plague Ever — opioids. Opioid abuse adds a new wrinkle: Addiction can be caused by drugs dispensed legally by prescription. And one of the best ways to prevent the harm of addiction can be the use of medication-assisted treatment — with prescribed drugs such as methadone and buprenorphine, drugs that curb cravings for opioids and ease withdrawal. Unfortunately, there is enormous ignorance about this kind of treatment — within child welfare and elsewhere.

Enter a couple of journalists for Reuters engaged in what David Simon, the former Baltimore Sun reporter who wrote the landmark television series “The Wire,” calls “Pulitzer-sniffing” —  sensationalism that wins awards at the expense of context that creates real understanding. These kinds of big projects, Simon says, often lead politicians to craft solutions that make everything worse.

The 2015 Reuters series “Helpless and Hooked” is a textbook example of everything wrong with the journalism of child welfare. It was filled with horror stories involving the (at most) two-tenths of 1 percent of all cases in which newborns “affected” by parental substance abuse died “preventable” deaths. Those horrors were used to, in effect, smear every parent who might have a substance abuse problem of any kind.

As I wrote in a Reuters op-ed at the time:

“Every one of those deaths is the worst kind of tragedy; the reporters were right to be horrified, all of us should be. But every death in the terror attacks in Paris and San Bernardino was also the worst kind of tragedy. Just as “solutions” based on ignorance and fear, solutions that backfire — are unacceptable in the war against terror, they should be unacceptable in the war against child abuse.”

The Reuters stories took particular aim at the failure of CAPTA to require turning in mothers who were in medication-assisted treatment. The message of the series was clear: Even mothers winning their struggle against addiction who are functioning normally in treatment should enter the hospital to give birth with great big targets on their backs. The stories also attacked states for failing to pass their own draconian laws conforming to CAPTA.

The Reuters reporters were dismissive of all dissent. It was confined to a few token paragraphs buried deep in the stories; what reporters call the “to be sure grafs” as in “to be sure, not everyone agrees with the message we’re trying to sell here …”

And sure enough, Congress promptly responded to the series with a law that made things worse — amending CAPTA to require turning in mothers even if their drug use is legal, and demanding tougher enforcement by the states.

Foster care? What foster care?

Over and over proponents said none of this was supposed to be punitive — so of course no mother should be scared of prenatal care, of giving birth in a hospital. The law is just meant to be sure these mothers get help, they said. So when Pennsylvania passed a law, said to be motivated by the need to comply with CAPTA, it included a provision stating that the calls made to child abuse hotlines would not be deemed reports of child abuse. But, of course, that doesn’t change the fact that these not-child-abuse-reports will still trigger a child abuse investigation by a child protective services agency.

Once again the medical professionals know how this works in the real world. In Alabama, hospitals would not tell ProPublica about their policies on drug testing — and are, at best vague about informing patients themselves, precisely because, as one official admitted, if people knew they would be deterred from seeking medical care.

Indeed, if the real purpose of these provisions of CAPTA was to get families help, then hospitals would be required to do just that — reach out to housing agencies and health care agencies and substance abuse treatment providers, while retaining the option to contact CPS when they felt it was really necessary.

Impact of CAPTA

Exactly how much impact there has been by folding all these bad provisions into one little law is unclear. That’s because the penalty for failing to follow CAPTA provisions is ineligibility for grants under the law, and those grants are small. I am aware of no state that has ever been denied a grant due to alleged failure to comply with CAPTA’s provisions.

But as a result of that desperate desire to get a law passed more than 40 years ago, what CAPTA did do was help cement in the public mind the hype and hysteria-fueled image of child abuse promoted at the time by groups such as Prevent Child Abuse America and continued through journalism such as the Reuters stories. It reinforced the so-called “medical model” in which child abuse was entirely a psychological failing of parents and had nothing to do with poverty. And that in turn helped us deny the enormous racial bias that permeates the child welfare system.

The idea of using CAPTA as the organizing framework for coping with child abuse, or even thinking about it, is absurd. And the notion that somehow a more powerful CAPTA with more money and more enforcement would somehow help children is profoundly dangerous.

Richard Wexler is executive director of the National Coalition for Child Protection Reform.

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