Thursday, July 10, 2008

Accusations of Neglect and Abuse of Power: The Shaman Case



NOTE: Be sure to read the disclaimer at the end of this post.


What happens when a government agency is allowed to operate outside the Rule of Law?

The answer: Justice is not served and individuals who live outside the social norm, however harmless their choices, are targeted, and the agency, once set on a particular course will not back down.


In all states that I am aware of, various versions of New Mexico's Children, Youth and Families Department operate outside the Rule of Law. That is they may make whatever accusations they please or accept anonymous accusations of child abuse, and act on them by invading the sanctity of the people's homes and remove children, all without being required to follow the normal constitutional procedures that protect the rights of the accused. The excuse for this blatant use of state power without protections is that it is 'to protect the children.' However, removing children from their parents for neglect often places those children in the more dangerous foster care system and leaves them vulnerable to abuses far more severe. In addition, in many such cases, the harm done to the children by removing them is greater than the alleged harm they are exposed to in their families. And of course, in the cases where the accusations are unfounded, the children have been traumatized and the innocent parents have been subjected to a very frightening tyranny from which they can never properly recover their good names. In such a situation, it would sensible for an agency to have to prove that removing the child is actually the least harmful option, and the rights of the accused ought to be fully protected.


We have seen the pattern I am about to discuss several times this year.

In the most notorious, the State of Texas removed hundreds of children from their parents based on one anonymous accusation called in from Colorado. They did so without discrimination based on any evidence that a particular child was being abused, thus literally tearing nursing babies out of the arms of their mothers.

What was the crime of these mothers? They were not legally married to the fathers of the children because they practiced polygamy. Now polygamy is against the law in Texas but these parents weren't being arrested for that. They were accused of child abuse and/or neglect simply because of the people they were associated with. I am not arguing the merits of polygamy here, nor am I saying that forcing underaged girls into marriages is not statutory rape. I am simply pointing out that for most of the removed children, no such marriages occured. Rather, these children were removed from their families because abuse might occur in the future. It brings to mind Phillip K. Dick's short story The Minority Report.


Since all parents might abuse or neglect children in future, we ought to be worried. After all, if this is standard of decision, then all parents ought to have their children removed now, as soon as possible, so that they will be placed in the state foster care system--where the chances of that might increase astronomically. (Of course, I am being facetious).


I suspect the real crime of these FLDS parents was that they had an edgy lifestyle; they lost their children because they have chosen to turn their backs on the majority culture.

Oh, and they homeschooled their children.


This Sunday I read about another, even more egregious case in the Albuquerque Journal.

This one is not likely to get the national attention of the FLDS fiasco. Instead of hundreds of children, there are three. Instead of numerous pioneer matrons, there is only one father. And since strange marriage practices are not involved, the case is not as titillating. But injustice against one is injustice for all.

Michael Travalino a.k.a. Michael Eagle Feather is an American Indian and he practices Shamanism. He is a medicine man, and he was treating a woman using these practices. The country sherriff was called by one of this woman's family members who was worried about her. Again, I am not arguing the merits of shamanistic medicine here, nor do I recommend it. But being a medicine man is not even illegal so long as he does not pretend to be an allopathic doctor or give prescriptions without a license.


When the sherriff's deputies arrived at Eagle Feather's house (according to the ABQ Journal--"on a warm June night") they found it to be "ice-cold" (in June in southern New Mexico?), and the situation "wasn't normal." So they stepped inside--without a warrant. Eagle Feather's children were in this not "normal" situation --there were herbs around and a big copper pyramid in the living room, for heaven's sake--how much more abnormal could it be? So CYFD was called in and the children were removed for suspected child neglect.


Again, what is the standard here? I suspect that "not normal" means an alternative lifestyle to that of the majority culture.
Once again, this person's crime is choosing to be different.
Oh, and guess what? Travalino homeschools his children, teaching them in traditional Native American skills and culture.


To make a long story short the state was unable to demonstrate that the children were in fact abused or neglected. In such a case, it would seem sensible to give the kids back and say "sorry." But that's not what happens when crusading do-gooders with state power are on the job. Now they are trying to remove Eagle Feather's parental rights for "educational neglect." The only problem is that New Mexico does not have a legal definition for "educational neglect." If they make such a definition now, then Eagle Feather would lose his children because he did not follow a standard that didn't exist when he was supposed to be following it. In a normal, constitutionally-based criminal case, this is called ex post facto law, and a citizen may not charged with violating such a law.


I suggest that although this case may have started out as one about abuse and neglect, it has become about the CYFD winning at any cost. Even the destruction of a family, however different, is less important than this winning.


Eagle Feather is arguing, through his lawyer, that this case ought to be taken to his Tribal Court, but that has been nixed because his tribe--although it exists--has not been recognized as a "real" tribe by the BIA. Don't get me started about the BIA, my blood pressure can't take it. I will say this, first the United States violated nearly every treaty made with these tribes, and now the United States claims the right to define who they are? Just saying.


I don't know what the judge is at liberty to do, but real justice would be met by letting the tribal courts determine if the legally defined abuse and neglect has taken place, because that court holds the standard for that community.

And as for the undefined "educational neglect," I think a state with a graduation rate that hovers between 30 and 40 percent (the state has difficulty with the definition of graduation rate) ought to awefully careful about placing a definiton of educational neglect on the books. If they develop a reasonably accurate one, then parents could begin suing the state. For educational neglect.


___________________________________________________________

DISCLAIMER: (Added July 11, 2008): Please read the above carefully before you get angry that I am killing your particular sacred cow. I am NOT saying that children should not be removed when there is evidence of immediate, life-threatening danger. I am NOT saying that all foster homes are abusive. I AM saying that in the absense of immediate life-threatening danger, the proper constitutionally guarranteed rights of the accused should be observed. I AM saying that the whole state-custody situation is terribly broken, and that there are enough bad apples in it, that children are being placed in greater danger by being put into the system than they may have been in within their own families--except in cases of severe abuse.

I did NOT even begin to address the developmental damage and educational neglect that can be done to a child by removal from his or her own family. These are not factors that should be taken lightly. There is some evidence that, EXCEPT in the case of severe abuse, the damage done to the child by removal is greater than the damage caused by problems in the child's home. I wish the child-savers had the same oath as doctors: FIRST, DO NO HARM.

Perhaps we ought to be having a conversation about what kind of system would work better than what we now have.

Also someone has asked for a link to this story. It is from the Albuquerque Sunday Journal, Sunday July 6, 2008. Although I have linked, the Albuquerque Journal has a subscription only access via internet. To read the actual story, you will have to get a trial subscription.





29 comments:

Steph said...

Yet another thought provoking post, Elisheva. :-)

I view this issue from the opposite perspective. I worked in human services and reported parents for abuse and neglect -- or worked with parents who'd had founded abuse or neglect charges against them. It was always my impression that -- for various reasons -- government agencies didn't move quickly or decisively enough to protect children from their parents. (Obviously I am talking about children who were not cared for or hurt, not alternative lifestyles). I used to have a real hot button when people started talking about "parents' rights."

On the other hand, the cases you presented are frightening. It seems that there was no real evidence of harm; these families just didn't fit somebody's definition of "normal." I honestly don't know how we could ensure the right balance between the government's responsibility to step in to protect children (one of *few* legitimate reasons for the government to stick its nose into people's private lives, in my opinion) and the need to avoid this kind of abuse of power.

Legally Kidnapped said...

This is a great post, with lots of insight, however, you leave out one very important factor. Money.

Child protective services recieves funds to keep kids in foster care. They get bonus money in the thousands for each child successfully adopted from the system. If the child is considered special needs then they get more. Therefore more children in the system are labeled special needs. Then they medicate them to keep them quiet.

There are also a lot of cronies that are kept in jobs and nice little state contracts. These include lawyers, adoption agencies, foster care agencies, etc.

Also if you have a link to this Shaman story, I would love to see the article.

Thanks.

denise said...

AAAAAAAAAAAAAAAAAACK! Stories like that get my blood boiling. People get sucked into the machine and there is no getting out.

AnnMarie said...

I am sincerely disappointed in your overly broad strokes portraying foster homes as abusive. Just like much other news, we only hear about the bad homes. We don't hear about the hundreds of thousands of appropriate foster homes that provide loving families for children and families in need. Comments like yours only provide further fuel to an inappropriate fire, and encourage people to not report dangerous situations. (I know of at least one family that did not report suspected sexual abuse of their young cousin. I was speechless that they would choose to allow the child to be abused based on limited information about the foster care system.)

I have appreciated your thoughtful, well written commentaries in the past. I am very disappointed in this one. Mistakes are made by case workers and the foster care system. Unfortunately, our state and federal government pay low wages and give too many cases to each worker. Every day, they hold many lives in balance and have to make hundreds of decisions. Yes, some of those end up being the wrong decision, in both directions--which would you prefer--not removing a child who is in danger or removing a child who is not in danger? Frankly, I'd prefer that caseworkers err on the latter side.

Elisheva Hannah Levin said...

Wow! This one hit a few nerves, which was my intention. I really want people to think about what we are doing in these situations.

Steph: I have had some experience working "in the system" as I was a housemother at a children's shelter while I was in graduate school (before my own children came along). I saw the other side--what happens to kids in the system, how powerless they are over what is happening to them, and how abnormal their growing up years are and what that does to them. It was ugly, I was sad for them--so sad that I could not keep that job. So perhaps my 'red-hot' button is on the other side, and I tend to say that unless you can demonstrate immediate danger, it is best to investigate more before taking children out of their homes. They are innocent, and I believe that it is abusive to place them in a system where they can come to greater harm than they are facing.

Legally Kidnapped: I assume from your handle that you are a survivor of the system. Thanks for you insights here. I had not even wanted to get into the money, as it might have caused me to have a stroke! However, you are right--it is an extremely important piece in these stories.

Anne-Marie: Perhaps I should have been clearer. I will put a disclaimer up about it. Here's the deal. First, I was talking about removing children in cases where there was no evidence of immediate danger or physical abuse. Secondly, although I agree that there are good foster homes and foster parents out there, unfortunately, there are enough bad apples that children statistically are placed in danger if they are placed in the system. Therefore, it is incumbent on agencies to demonstrate that the potential danger they are placing children into is less than the potential danger they are taking them from. These are real children out there--and enough of them have been severely damaged by being removed from their families and placed in the system.

Another issue that has plagued the "child-savers" from the inception of this movement during the progressive era, is that children have often been removed from good families for financial and cultural reasons. Our definitions of "neglect" and "abuse" are (were?) elastic enough that poor immigrants raising their children in the way they had been in the old country, saw their children taken from them, even though they were being cared for, and placed on "orphan trains" and sent to the frontier, where they often were little more than indentured servant, subject to all kinds of abuse.
The child-savers, you see, knew what was good for them.

And given that Eagle Feather is American Indian, consider the abuses that happened in the Protestant Indian Schools here in the west. Children were removed from their families and cultures to make them "white." The motto of these schools was "kill the Indian, save the man."

I worry a lot about what happens when the rights of the accused are violated, because whole families become victims. In many cases, the cure may be worse than the disease.

Amie said...

Infuriating! I love how we supposedly teach our children to embrace diversity and difference, yet we allow these abuses to happen to those are really do decide to live differently.

Legally Kidnapped said...

Hi, thanks for the link. I hadn't actually come across that one.

Here's one for you.
http://www.usatoday.com/news/nation/2007-07-02-foster-study_N.htm


Also for Steph, (I'll say this as nicely as I can):

They flat out can't get it right either way. Children who need protection are often denied that protection, and children who do not need to be removed often are. The concept of "err on the side of protecting children" is not only a dangerous one, but it's downright sadistic. Foster care rarely helps a child to achieve his or her potential, I'm not denying that there are any success stories, on the contrary, but the fact remains that they can't take good enough care of the kids that they have and the numbers just keep increasing. It is a necessary yet destructive evil that has spun wildly out of control.

Steph said...

Wow! You've gotten a lot of thoughtful, interesting and disturbing responses on this post.

Alasandra said...

Annmarie's comment
"which would you prefer--not removing a child who is in danger or removing a child who is not in danger? Frankly, I'd prefer that caseworkers err on the latter side."

Is chilling in that she is perfectly fine with a child who isn't being neglected or abused being removed from their family. How can this child ever feel safe again after being ripped from their loving parents arms for no good reason. How can this child ever trust anyone, when a government agency was allowed to rip this child's world apart for no good reason? And what if the government agency places the child in a foster family where the child is abused? What does that say for the system and the Annmarie's of this world.

And how can any family ever feel safe when a family member can be torn from the family for no reason at all by the government.

Common sense would dictate that parents MUST BE deemed to be innocent until proven otherwise. Unsubstantiated claims must not be the basis for ripping families apart.

christinemm said...

Thanks for this post. I had not heard the story.

I have heard plenty of ridiculous stories about DCF where I live in CT especially regarding 'educational neglect' and other neglect charges suddenly charged when the family pulls their child out of public school in order to homeschool them. The homeschool label suddenly puts the family into an 'abnormal' category it seems then they try to find anything to charge the family with. THese stories have been discussed in detail at Consent of the Governed such as families with kids missing a lot of school due to documented medical problems then when they decide to HS to give a more thorough education at home due to all the medical issues with absences from school they are charged with 'medical neglect and educational neglect' when in fact the child is seeking lots of medical care!! Nuts!

The last two times I was in an ER for myself or a relative we got extensive grilling on what our religion was and it was not a religious hospital. When my young son was brought in for rule out meningitis and rule out Lyme Disease after I answered the question when I said he had a fever they asked what medication I gave and I said our Pedi doesn't believe in reducing fever for minor illness as she believes the fever is fighting the virus they asked me again what religion I was practicing (ruling out Christian Science in my opinion as then they may charge me with medical neglect). BTW the big name hospital laughed at the Lyme suspicion and sent us home with 'possible mono' diagnosis with no medication, when later blood tests confirmed positive infection of Erlychiosis (deadly in 7-10% if untreated, especially young children and the elderly) and positive for Lyme Disease (can be debilitating if left untreated).

Big systems like government, medical establishments (hospitals) and DCF want everyone to do everything one way and follow someone's decided policies and procedures. There is no tolerance or open-mindedness for individual thought or decision making. All are treated like total idiots if they stray from the norm (homeschooling, co-sleeping, delaying or selectively vaccinating, using so called alternative medicine, not using tons of over the counter drugs and so on).

kat said...

What a great post!

I have often had nightmares about the doorbell ringing in the middle of the night and finding a social service worker and a sheriff at my door. "We are here because we have had a complaint and we must take your children with us." Maybe it is from reading too many HSLDA emails, but there are too many cases of homeschool families being targeted for just normal family problems like a temporarily lost child, an injury, getting upset with a child in public, or even for simple revenge/hatred.

I can't imagine the trauma my poor children (10,8,5,4,2) would go through without their special teddy bear, foods, nighttime rituals, and their mommy and daddy kissing them and telling them how much they are loved.

If I could tell these social workers anything it would be that most parents care much more than they could ever realize and to step back and make sure foster care would for sure be a better situation than that child's home.

Nunyaa said...

I believe this happens. Australia's Child Safety is no better, I'd even go as far as to say, in many cases, worse. They need to be accountable for the stuff ups and havoc they cause.

JJ Ross said...

One fraught sentence jumped out at me, and I can't get it out of my mind. Did you mean for this to read exactly as it does or would you revise, sharpen, elaborate, retract, all of the above? I feel like I could write an essay -- maybe a dissertation? -- just on this! :)

"Therefore, it is incumbent on agencies to demonstrate that the potential danger they are placing children into is less than the potential danger they are taking them from."

Elisheva Hannah Levin said...

JJ Ross: I mean it as I said it. I believe that CYFD should be obligated present evidence that the home situation is more dangerous than state custody is for the kids in question. This is because, although any given foster care home may be a good placement--as a whole state custody is very hard on children. Removing them from their families alone breaks down attachments they may have, and state custody generally means complete instability; kids are usually moved often, change schools often, and their case workers and other personnel change often. It is a dangerous thing to remove children from their homes. The rights of the accused should apply here, and the child's interests demand that removal from their parents be done only when there is no other option.

JJ Ross said...

Morally, as a mother and citizen, of course I agree!

But as a public service policy professional -- how could this as a legal standard ever be achieved, in each different situation with unique human variables on both sides of the equation: to "demonstrate" a measurable differential between two "potential" dangers? Isn't that where the Minority Report approach to preemptive intervention becomes the problem?

If I were writing the policy and procedures and/or the legislation, or trying to apply same as a caseworker, this would completely stump me. Probably I could dummy up something as we too often had to do in school policy (don't get me started on NCLB!) but that would just be more form over function, creating the expedient political illusion that we had taken some action to improve outcomes for children, simply by stating our beliefs as policy.

I find myself so intrigued and engaged by your serious treatment of this complex real-life problem, that apparently I'm expecting you to actually solve it!

JJ Ross said...

The general public would have to approve this "demonstrated danger differential" and believe in it, back it up legally, pay whatever it costs to implement -- which probably can't happen if our sub-rational lizard brain fears contradict our rational confidence in it.

From Dale McGowan's blog:
Why do we fear unlikely things and ignore far greater risks? An article in Scientific American Mind summed up the psychological research. . .
We can provide our children the best security and the least fearful environment by assessing risks intelligently. . .
*****

Not objecting, quite the contrary. I'm thinking seriously about how this might be made to work.

Elisheva Hannah Levin said...

JJ Ross:

Interesting to think about this problem from a public policy point of view.

But...this is really a legal issue that should be dealt with in the courts. There are extensive sets of policies and procedures--such as rules of evidence--that have developed over time in the courts--and here I am not talking about the kangaroo court system called "family court" in which the rights of the accused are violated from word one.

Again, remember that I am talking about situations in which the child's life is not immediately in danger. In those cases, removal to a relative would be the best course, but it still ought to be adjudicated in criminal court--the same way that any other case is adjudicated, relying on the rules of evidence and the rights of the accused so that a fair trial is accomplished.

With respect to the issue of fear, I would suggest that the precise result of the current system, in which children can be removed from a family with no notice, and at the whim of a social worker, with no required standard of evidence, is most likely to engender fear in the heart of every decent parent. It is a good methodology of social control. particulary when you consider that professional do-gooders tend to have an officious, self-righteous streak to their personalities: they don't like to be contradicted, and they tend to believe that there is a very narrow range of normal--theirs.
I have been a public school teacher, and I recognized the type among my fellow teachers and the school social workers.
Particularly dangerous are those who go into the field with the intention of self-sacrifice for the sake of others.
As C.S. Lewis once wrote: "She lives for others. You can tell the others by their hunted expressions."

Anyway, whatever is done--we must abandon the idea that we can reduce the risk for all children to zero. It cannot be done--even if we instituted a police state. Perfection in judgement is simply not attainable.

JJ Ross said...

You just helped me grasp another parallel between CPS and PS. :)

Our assistant superintendent for exceptional ed used to tell me as far as she were concerned, my job was simple: keep her out of the newspapers, and out of court!

School and social services are increasingly interconnected already, as "in loco parentis" intervention between children and their family. You've got me longing for an audacious legal solution that connects PS and CPS more explicitly, merges them even, and then extends your criminal court threshhold for intervention, to the whole range of interventions between family and child!

JJ Ross said...

You just hit home with another parallel between CPS and PS. :)

Our assistant superintendent for exceptional ed used to tell me as far as she were concerned, my job was simple: keep her out of the newspapers, and out of court!

School and social services are increasingly interconnected already, as "in loco parentis" intervention between children and their family. You've got me longing for an audacious legal solution that connects PS and CPS more explicitly, merges them even, and then extends your criminal court threshhold for intervention, to the whole range of interventions between family and child!

Elisheva Hannah Levin said...

JJ Ross: Interesting!
I have the opposite reaction. Being of a libertarian frame of mind, I'd rather see the public schools and other agencies have less power over the lives of individuals and their families. I think the fact that I know people who suffered terribly under the Soviet system might have something to do with that. There the schools and social services were intertwined to such a degree as to create a police state that had massive power to interfere with families. If a family was politically incorrect then the adults lost jobs and could be confined to mental hospitals; children were removed. In this way, people who maintained alternate lifestyles or ideas were purged by the state.There was no liberty, and people had no rights.

I would like to see the state have very limited power to interfere in the lives of citizens and their families.

JJ Ross said...

[smiling] Don't assume we're having opposite reactions. I'm hypothesizing that applying the criminal court model to everything public service tries to thrust on us, would be very libertarian in effect. More so than limiting your idea to CPS.

Elisheva Hannah Levin said...

JJ Ross:
I can imagine that you also want to reduce the power of CYFD. But I wonder if merging it with the schools is going to do that. It sounds to me like it might become a much more powerful agency when combined--effectively ruling the lives of most children for most of their day, 180 days per year. In my experience with government agencies, the bigger they get, the more powerful they become--and they are more apt to make bigger messes. Just a thought.

JJ Ross said...

Excellent point, a can of worms for sure, no matter how we come at it.

Thanks so much, Elisheva, for taking the time to explore it with me a bit further than the usual blog comment provides. :)

Elisheva Hannah Levin said...

JJ Ross:

It's been fun and interesting. I appreciate that you took the time to continue the discussion until we (hypothetically) solved all the problems of the world! ;) I really enjoy this kind of exchange, and I will be visiting your blog over at Snook to see what else you have to say!

Come back anytime. Comment at length.

JJ Ross said...

Me too. :) :)
I hope you won't mind that I am adding you to the Snook blogroll (and my personal Google Reader roster) so I can keep up with your education thinking.

Thanks again, we'll revisit this soon I'm sure, and remind me to thank Dawn for the introduction --
JJ

Dont Be Denied said...

How did you hear about the kids removal? Wondering, since this story years later is getting a lot of notice.

bodhi77 said...

Hello,
There is an article just out today in the 'Idaho Observer' which will appear online this Saturday.

Mark White Eagles last suit was filed October 1, 2009. He still does not have his children back. Find out more about his story, including a video interview on his myspace page at http://www.myspace.com/markwhiteagle

Mark said...

Mark White Eagle will be telling his story on PowerHour.com on Jan. 28, 2010 at 8 a.m. CST. Please listen and feel free to call in your comments. He also has a new blog spot http://freethechildrennow.wordpress.com. He also filed a Notice to all CYFD and public officials involved for dereliction of duties, breach of oath of office and corruption. This was filed on Jan. 12, 2010.

bodhi77 said...

Awesome that you have arranged to interview Mark White Eagle on your Power hour. Am telling my contacts and we'll be tuned in!!