TESTIMONY OF CAROL LAMB HOPKINS BEFORE THE SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES SUBCOMMITTEE ON CHILDREN AND FAMILIES MAY 25, 1995 

I am honored to have been invited here today to testify on the
Child Abuse Prevention and Treatment Act. By profession, I am a
teacher and school administrator. In 1991 I was appointed Deputy
Foreman of the San Diego County Grand Jury.

Because of a number of constituent complaints forwarded by
Congressman Duncan Hunter as well as complaints by hundreds of
citizens, the Grand Jury undertook a review of the juvenile
dependency system in San Diego County. Hearings were held and
legal counsel was provided by California Attorney General, Dan
Lungren. The case of Alicia Wade and her family was the subject
of six weeks of Grand Jury hearings.

The grand Jury issued a number of reports. "Families in Crisis",
"The Case of Alicia W.", "Problems in Foster Care", and "Child
Sexual Abuse, Assault, and Molest Issues". Those reports have been
requested by hundreds of government agencies and professionals
across the country as well as Holland, England, Sweden, Denmark,
Canada, and other countries. As a result of the expertise acquired,
I have been invited to testify numerous times before the California
State Legislature, before the Congressional Subcommittee on
Childhood, Youth, and Families, and to serve on the advisory boards
of the National Coalition for Child Protection Reform and the San
Diego Legal Corp.

I am a member of the San Diego District Attorney's Ad-Hoc Committee
on Child Abuse.


HISTORY AND BALANCE

Twenty years ago the Child Abuse Prevention and Treatment Act was
born. It was the response to witnesses who came before the Congress
with horrible tales of violence against children, augmented by
photos of dead and mutilated babies and children. With the best of
intentions, Congress instituted laws to protect those fragile
citizens.

Though many young lives doubtlessly have been saved by the programs
established by CAPTA, the law has also been responsible for
unintended consequences -- For one, the emergence of a "child abuse
industry" more invested in its own perpetuation and growth than the
protection of children and the preservation of families.

For example, the "child abuse industry" defined the evidence of
outright violence brought before the Congress as "child abuse".

Since then that definition has been expanded to include neglect
due to poverty, cultural differences in child rearing, lawful
corporal punishment, failure to protect, truancy, and emotional
abuse. The American people and the Congress heard "child abuse"
and imagined the horrors of violence against children, but as the
definition kept expanding, the face of "child abuse" was expanded
sufficiently to become the face of every family, at one time or
another.

You have heard today from the Wade family about a system gone
wrong, where every mistake possible seems to have been made. You
have heard from Richard Wexler that these mistakes were not
unusual; they happen every day in every city in America. I am not
suggesting that the Congress of the United States can or should
address all of these problems and micromanage this huge system from
Washington. I do suggest that it is possible to give guidance to
the States which will reduce the number of mistakes, and, in
particular, the number of mistakes for which there is no redress.

The Wade story is a dramatic, feel good, tale of justice ultimately
prevailing, but the "happy" ending experienced by this family is
far more uncommon than the nightmare they, like thousands of
others, endured along the way. I could share anecdotal stories
about the destruction of families, the insensitivity of social
workers, the collusion of juvenile court judges, which might well
cause you to decide that the damage done to children and families
in the name of child protection far outweighs the good.

Particularly in these troubled fiscal times, the Congress might
choose to dismantle CAPTA, Title IV, and other related funding
streams, and there would be many who would applaud.

Opponents of reform characterize themselves as "child advocates"
and condemn reforms, and in particular, Family Preservation, as
"backlash". To the contrary, those who urge reform are true child
advocates. We acknowledge the reality of child abuse, but also
recognize the importance of family to a child, and the growing
distrust of child protection as the public loses faith in its
mission and in its methods.

According to the opponents of reform, we are merely seeing a
pendulum swing. A child dies and child protection tightens up.
Then a Wade case comes along and the pendulum swings the other way
in an inevitable design. The actual evidence of how the system
works belies their chosen model; chaos theory is a far better
image. Children die and families are unjustly destroyed along the
spectrum of response. To stop this chaos we need a more uniform
definition of the real problems and remedies. I would like to
discuss the following remedies:


* DEVELOPMENT OF TRUE RISK ASSESSMENT PROTOCOLS;

* ENHANCED TRAINING OF PROTECTION WORKERS IN RISK
ASSESSMENT, INVESTIGATION, AND SERVICES;

* A CIVIL IMMUNITY STANDARD WHICH WILL ENCOURAGE
COMPETENCE;

* A FAMILY CENTERED PHILOSOPHY OF CHILD PROTECTION;

* EFFECTIVE DUE PROCESS PROTECTIONS.

* DEVELOPMENT OF RISK ASSESSMENT PROTOCOLS


Protection workers need to follow proven risk assessment protocols.
The weight of responsibility for pulling a child or leaving a child
in a possibly dangerous situation is often borne by a single
protection worker responding to a hotline call. That protection
worker needs to rely on something other than experience and
subjective evaluation.

Risk assessment protocols work. Some jurisdictions use them, more
don't. Even when they are used, they are often homegrown and not
based on proven results. We need to find the best proven risk
assessment protocol available in this country. Protection workers
need to be trained to use that protocol.


ENHANCED TRAINING OF PROTECTION WORKERS

Currently there is no uniform screening, training, certification,
or assessment of protection workers. Workers are given tremendous
responsibility and awesome power but, for far too many, no training
whatsoever. Again, there is a definition problem. Protection
workers may be high school graduates, they may have their B.A. in
physical education, they may never have taken a single course in
social work. In too many cases it is only the work they do which
defines them as "social workers".

To borrow from my own profession, would we turn over schools to
untrained, randomly selected adults, call them "teachers", give
them inadequate resources, keep adding students, make it impossible
for the parents to complain or hold anyone accountable, and then
expect learning to occur without fairly frequent disasters?

Protection workers have an incredibly wide range of
responsibilities. They are expected to do investigative work with
the skill of law enforcement, write social study reports with the
skill of lawyers, have the wisdom of Solomon, provide services with
the skill of an old time social worker, and teach families living
skills with the combined talents of a home economics teacher,
financial planner, and family therapist. And, they must do all
this with the diplomacy of a U.N. Ambassador. I do not believe
that any one person combines all of these attributes. We need to
consider a separation of the duties of protection investigator from
provider of family services.

As is true in many professions, there is substantial evidence that
many social workers are drawn to their chosen field because of life
experience. Nonetheless, we don't screen for bias or train for its
elimination. We have no uniform training in risk assessment,
investigative techniques, child development, how to recognize
cultural differences in child- rearing practices, and how to
distinguish between the privations of poverty and those resulting
from intentional neglect.

This is not to say there are no training seminars. There are.
Unfortunately they are unregulated and often uncredentialed.
National multi- disciplinary "child abuse" conferences and seminars
have proliferated. Social workers, psychologists, therapists,
prosecutors, law enforcement officers, medical doctors, and even
judges are brought together in an ostensible attempt to coordinate
efforts to combat child abuse and molestation. "Families in
Crisis" quotes a California appellate judge who traced the genesis
of the problems in child protection to "conferences which have
poisoned the stream".

These conferences and seminars are carnivals for the hucksters of
the child abuse industry. The latest pet theories, junk science
and horror stories are trotted out with the patina of scientific
certainty. Rather than foster an appreciation of objective
fact-finding and scientifically validated evidence, participants
are indoctrinated into bizarre belief systems which demand
abandonment of common sense, offering in its place wild
speculation and unproven theories about satanic cults, check lists
of often commonplace behaviors which "indicate" molestation, and
other equally unproven theories to support allegations of child
abuse Inevitably, attendees leave these conferences and look for
cases where they can apply their new-found pseudo- knowledge.
Tragically, they all too often "find" them.

By way of contrast, California has one of the best standardized law
enforcement training programs in the country. Peace Officers
Standards and Training (P.O.S.T.) trains, and then certifies,
police officers, sheriff's deputies, highway patrol, and all other
law enforcement, statewide. I would strongly urge an end to all
federal grants providing monies for child abuse conferences and
advocacy groups. Instead, matching funds should be made available
to each state to provide standardized training and certification
for child protection workers.


ESTABLISHMENT OF A UNIFORM CIVIL IMMUNITY STANDARD
TO PROMOTE ACCOUNTABILITY

It is essential to have a uniform qualified immunity standard for
protective workers equal to that enjoyed by Federal law
enforcement. Many states have interpreted CAPTA to mean that social
workers and indeed everyone else involved in the protection of
children should have absolute immunity from civil liability.
Absolute immunity fosters irresponsibility -- not only in
individual protective workers, but in the agencies which employ
them. Without the risk of civil accountability there is no impetus
for training and oversight.

Social worker unions fight any change in the immunity standard as
do their employing agencies.3 Opponents to this reform claim that
it will have a "chilling" effect and that protective workers will
leave abused children in their homes rather than pull them because
of fear of being sued. Nonsense. Law enforcement officers execute
search warrants, make arrests, and even use deadly force while
protected only by qualified immunity. I would argue that the
"chilling effect" to law enforcement is that they must be trained,
supervised, and disciplined so that they think and act reasonably
performing these tasks. Do we want less from child protection
workers?

Counties argue against qualified immunity for fear that it will
unleash a barrage of lawsuits. Their fear only proves the case for
qualified immunity . In an environment of absolute immunity there
have been horrific abuses justifying huge awards. But, would those
abuses still occur if workers were properly trained, supervised,
and disciplined? I say, "no". But with an absolute immunity
standard there is no incentive to provide the type of training we
find essential and willingly fund for law enforcement. Instead ,
we reward, and even encourage, incompetence, and malicious abuse
of power by child protection workers.


FAMILY-CENTERED PHILOSOPHY OF CHILD PROTECTION

As if common sense were not enough, we now have reams of research
which clearly tell us that the clearest indicator to predict a
child's future is the strength of the child's family. We know that
while there are good foster care homes, foster care should be a
remedy of last resort.

We also know that Family Preservation programs on the Homebuilders
model work. Homebuilders provides a clear blueprint for successful
intervention in a family's life with proven positive outcomes for
children and their families. Again, this is not the time for
homegrown family preservation plans when we know that Homebuilders
is both economically sound and proven itself to be safe for
children and effective for families. It is essential that we not
allow family to be re-defined. Families come in all shapes and
sizes. It is as important to help preserve the family of the
single mother trying to raise her six children in the project as it
is to preserve the picture perfect, two parent, 2.5 children family
in suburbia.

Philosophically, we need to embrace a family practice model which
builds on the strengths of families instead of searching for
weaknesses. There will be cases where Family Preservation is not
possible, but we need to recognize that every time we preserve a
family we have enhanced the child's hope for the future.

California's Little Hoover Commission reported the estimate that up
to 70% of the children in foster care in California should never
have been removed from their families.4 What does this mean in
real numbers? In February of 1995, there were 90,296 children in
foster care in California alone. The average removed child will
spend 25 months in placement. Figuring foster care costs of at
least $400 per month, the foster care cost to the State of
California alone, for the 63,207 children who should not be there
is $303, 394,500 per year.5 Projected nationally that is three
billion dollars!

Moreover, a very large percentage of these children will never go
home. As adults, when we are in trouble, we turn to our families.
These children have no families to turn to. Just like welfare
dependents who look to the State for financial support, these
children, throughout their lives, will turn to the State for family
services. The cost of foster care is only the beginning
installment if they become welfare recipients! The reforms to
CAPTA must be only the beginning. The Congress must cap foster
care dollars and stop providing the incentive to use foster care
instead of providing services which may insure the survival of the
family.

Sadly, we also need to accept the tragic but true reality -- there
will always be little children who die of child abuse. Even in the
very best program child protection can not catch them all.


ENHANCED DUE PROCESS PROTECTIONS

Critics of reform talk about all of the protections in the current
juvenile dependency system. They just are not there. I have been
witness to the routine of juvenile court judges sitting in closed
courtrooms rubberstamping decisions made by protection workers.
Most Americans, and even most attorneys, are unaware that accused
parents have no right to a trial by jury even if their parental
rights are terminated, or that rank hearsay is admissable to
withold children from their families for days, weeks, months,
years, forever; that the burden of proof is the same or less than
that required to forfeit the family car. I have witnessed
egregious perjury, and abuse of power which would offend any
American's sense of justice.

Even able defense attorneys are rendered ineffective because of the
confidentiality which enshrouds all of the proceedings. Families
are thrust into closed courtrooms where all the rules favor the
efforts to destroy the family unit. Families are terminated
entirely in swift, secret, hardly intelligible proceedings.
Confidentiality is used as sword and shield. Families are told
that confidentiality is to protect them and their children. More
often it is used to protect child protection services from the
public scrutiny which would come in these cases.

When the Grand Jury began the closed hearings on the Wade case, the
Presiding Judge scolded the parents' willingness to cooperate with
the Grand Jury and to speak with the press. She also severely
criticized the jury's motives for seeking to investigate. She tried
to appoint a legal guardian for Alicia in order to inhibit Grand
Jury inquiry and to prohibit the Wades from communicating with the
media. It may not be coincidental that she was the Presiding Judge
of Juvenile Court several years earlier!

Hearsay in juvenile court is the standard currency of proof. Second
and third-hand hearsay is accepted, even when the material is
without any corroboration. I have seen children removed from
families, again, days, months, years, forever, based purely on
unsubstantiated hearsay or on a social worker's edited version of
a child's or a parent's statement. Protection workers have
desperately resisted recommendations of audio recording of child
interviews.

To assure adequate due process protection: A bipartisan commission
must be established to study and report on the feasibility of
optional jury trials, and model rules of evidence and procedure
designed to insure that children are protected and that both
dependency and criminal cases involving abuse produce truthful
findings, thereby protecting innocent family members.


SOCIETY RECOGNITION

Physicians live by the ethic, "First, do no harm". I would suggest
that citizens have the right to believe that those who intervene in
their lives in the name of government should live by the same
creed. Recent events have exposed a core of angry citizens who
feel alienated from their government. While no one condones their
actions or even their rhetoric, it is instructive to look at the
response of the bureaucracies to families crying out for assistance
when they become caught up in the insensitive system we now
operate.

As sad as the Wade case is, as terrible the mistakes, the one
absolutely intolerable finding by my Grand Jury was the response of
the bureaucrats who are paid to serve us. The Grand Jury
subpoenaed every document, military, state, and county which had
any relevance to the Wade case. In those files we found dozens of
letters from Wade family members. These were letters painstakingly
written, full of passion and hope that someone would pay attention.
Instead, each letter was answered with a form letter response. No
one, not one person, not one government official, took the time to
actually look at this case. For all of their protests of serving
the "best interests of the child", no one cared about "THE CHILD",
Alicia.

When we took testimony from these individuals, we heard every
possible excuse. No one ever said, "I guess we made a mistake.
We're sorry." Instead we heard speculation about how Jim could
still have been involved in the attack on Alicia, how the Wades
brought it all on themselves, and how their lawyers caused the
problems. And, most amazing, after my term on the Jury was
concluded, the juvenile court judge who had presided over this
travesty, seriously speculated to me that Dad's defense attorney
had somehow planted the actual perpetrator's semen on the clothing
held by the police.


REDRESS

Finally, in the name of justice I must address the tragic end
result of the passionate zealotry fostered by the "child abuse
industry", packaged at its advocacy conferences, and fanned into
hysteria in communities across the country. We have seen the
costliest and perhaps most unjust trials in our nation's history.
They are known by their names --

McMartin, Little Rascals, Kelly Michaels, Fells Acres, Country
Walk, Bobby Finje, Akiki, and on and on--the Child Care/Satanic
Ritual Abuse Trials of the past decade have brought shame to
America as we re-create the tragedy of the Salem Witch Trials.

But if American history has repeated itself in a dishonorable way,
perhaps it can repeat itself honorably as well: four years after
the Salem Witch Trials, the colonial legislative body of
Massachusetts adopted a resolution calling for a day of repentance
and fasting in memory of the victims.7

If the Massachusetts of 300 years ago can admit its mistakes and
regret the damage done to individuals, then surely we can at least
start to address our own situation, in which our legal system has
arguably inflicted far greater damage than that of our colonial
forebears. A California appellate justice told the Grand Jury he
had no doubt that there were hundereds of innocent men who had been
unjustly convicted.

Innocent individuals have been imprisoned for years,8 children have
been traumatized by the creation in their young minds of horrible
events which never occurred, and once happy and whole families have
been destroyed. Our institutions have also been battered by the
loss of public confidence in prosecutors and courts whose moral
authority has been depleted. Public resources have been drained,
due to the astronomical costs of these trials and the subsequent
civil damage awards to the innocent as these convictions are
overturned one by one by one.

This body can not individually address these false abuse
prosecutions, children forever lost to a parent through false
allegations of molest or abuse during custody disputes, or the
rending of families by the now recognized phenomena of False Memory
Syndrome. The Congress CAN establish a bipartisan commission to
study and report on guidelines to remedy cases where convictions or
the destruction of families was based on now discredited expert
testimony or on the testimony of children or adults who have been
contaminated by coercive questioning or therapy.

Further, January 14, 1997 marks the 300th anniversary of the
Massachusetts Day of Repentance. I would call for that day to be
a national day of contrition for the injustices which we have
perpetrated and remembrance for the victims of that injustice.


CONCLUSION

There are currently serious endemic problems within the system
which inevitably lead to results contrary to the best interests of
children and families. To quote from "Families in Crisis":

The Jury asked almost every professional who testified what
they would do to improve the condition of the Juvenile
Dependency System if they had the power. While there were
many different views, surprisingly there was an almost
unanimous consensus among attorneys, therapists, physicians,
judges, law enforcement, social workers, and clients that
there needs to be a more effective accountability link between
prescribed standards and practice and between mandated
intervention services and appropriations. Therefore, there is
a demand for a more effective system of checks and balances.

Those checks and balances must include the following:

* Absolute immunity for child abuse reporters and workers
must be reduced to the qualified, good faith immunity
extended to law enforcement;

* Interviews and interrogations of children and witnesses
must be tape recorded at a minimum, videotaping is
preferable;

* Mandated reporters must be required to report their
assessment of the truth of reported abuse;

* Training must be made available to all mandated reporters
which includes the importance of reporting real abuse,
the effects on families of false allegations and
information on developmentally appropriate behaviors and
relevant scientific research;

* A bipartisan commission must be established to study and
report on the feasibility of optional jury trials, and
model rules of evidence and procedure designed to insure
that children are protected and that both dependency and
criminal cases involving abuse produce truthful findings,
thereby protecting innocent parents and accused.

* States must adopt model rules of evidence and procedure
to receive federal funding;

* A bipartisan commission must be established to study and
report on guidelines to remedy cases where convictions or
child removals have been based on expert testimony which
has subsequently been discredited or on the testimony of
children or adults who have been contaminated by coercive
questioning or therapy.

It is time to bring common sense to our justice system and to
recognize that the protection of children is almost always
synonymous with the protection of families. We can not allow the
protection of family to be the rhetorical claim of any one
political agenda or segment of the system. I strongly believe the
protection of the family is essential to the protection of our
society and essential to the survival of a healthy democracy.