The Child Who--OMG--Walked Her Dog Around the Blog

August 23, 2018. Here we go again! As reported in the Chicago Tribune yesterday, another family has been harassed by DCFS for the most reasonable action of letting their child be alone outside.  Except this time the child wasn't even alone: the 8-year-old girl was accompanied in her walk around the block with  her family dog.  This all happened in the toney north shore suburb of Wilmette.  DCFS bears the burden of proving that children are at risk of serious harm due to the blatant disregard of the any dangers of being alone or poorly supervised.  That means, in practical terms a parent can't leave a child with a band of felons in a crack house or meth lab. It doesn't mean a child can't run an errand or walk to the park--even at an age younger than 8!  There wasn't a hint of a suggestion of any such thing in this case.  And once a case is cleared by the police,  there isn't a good reason that DCFS needs to bother the family.  The case simply should be closed-period.  As Lenore Skenazy has reported, Wilmette has a crime rate of 1 crime per day and the police found no evidence of any crime on the specific block where the now-infamous dog walk occurred. 

As usual, Lenore Skenazy was on it right away, and wrote about it for Reason.com (here).   My comment, which she published in her excellent article,  essentially, is, "How many lawsuits does it take to stop this sort of DCFS overreaching?"  I  initiated the class action that Family Defense Center, the agency I founded and led for 12 years  to stop exactly this sort of abuse.  That suit was  just settled (Nicole P. v. DCFS), as discussed in the Tribune's article yesterday. But Nicole P. was only the latest in a series of cases I have worked on aimed at getting these practices to stop once and for all. Illinois law changed in 2012, following a big trip in one of our cases to the Illinois Supreme Court in a case called Julie Q., which should have made it  clear that letting a child be outside to walk a dog isn't neglect.  Under Illinois law, there needs to be "blatant disregard" of a parent's duty of care toward the child to find neglect and a serious risk of immediate harm that's obvious to the parent. If walking the dog meets that standard, every decent parent in Illinois turns out to be a serial child neglector. I will write a long list of things that aren't neglect in an upcoming blog. 

 It seems DCFS is incapable of getting the message, however, even when sued repeatedly to change is practices. That's a tragedy. Contrary to Neil Skene's  comment to the Tribune, DCFS does not have to investigate every case! There is something called "screening" and it gets rid of the allegations to the Hotline that shouldn't even be assessed.  In America today, there are 7.4 million children reported as possible abuse or neglect victims every yet, but over 40% of those calls, fortunately, are screened out. That's what Illinois needs to do a better job of... and we have to stop accepting the call of every busybody in American who has a "concern." For more on this see my TedX talk!

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VIVEK SANKARAN’ S ARTICLE GIVES A BLUEPRINT FOR ADVOCATES

Vivek presents a compelling case for changing the way parents are treated when they set foot in juvenile courts, and many suggestions as to how to make those changes a reality. The themes of this article are very similar to #theytookthekidslastnight

https://www.americanbar.org/groups/child_law/resources/child_law_practiceonline/child_law_practice/clp-today-2018/january---december-2018/my-name-is-not-_respondent-mother.html?ct=t(EMAIL_CAMPAIGN_2_7_2018_COPY_01)&mc_cid=646435582b&mc_eid=98aaa03d51

Free-Range Laws Help Families--All Families. Read My Letter to The Atlantic

In a recent article in the Atlantic, Jessica McClory Calarco complained that the new Utah Free-Range Parenting Law would help privileged families but not poor families.  Lenore Skenazy and I disagreed--and then Prof. Calarco agreed with us.  It's a fascinating interchange that I'm excited to share here. 

Where does it lead us?  Calarco is right about her concern about the free range laws do not help families who can't provide necessary care to their children.  But that's a different prong of neglect laws--the prong that neglect is really supposed to be about. 

Neglect has become so amorphous a concept that it has led to open-ended enforcement of parenting judgments by state-backed child protection caseworkers and police operating under unclear standards.  It's the open-ended and boundless way that neglect has been defined and interpreted that is the problem.  This vagueness has opened the door to abuses of State power.  This has allowed the State to become the worst helicopter parent. So it's time to clarify what neglect really is. 

That's not simple but it's not impossible either.  Calarco is right that social supports are essential because parents who can't meet their children's basic needs for food, shelter, and medical care--along with child care--are tremendously vulnerable to neglect citations in place of the help they need.  To give the clearest example I know (and the one my organization works most on to correct), homelessness is not neglect, but many states act as if it is.  The solution is to assist families to meet their housing needs and stop judging parents neglectful for reasons of poverty. 

The neglect line has to be based on the parent's reckless and negligent action toward a child.  That's why the Illinois law's approach is right. Illinois law now requires that requires parents to have "blatantly disregarded" their duty of care to the child, subjecting them to obvious danger that a reasonable parent would have taken precautionary measures narrows neglect laws and focuses attention the parent's neglectful conduct.  This provides the right answer to one big part of the neglect conundrum.  

But it doesn't solve the whole problem. Lack of necessary care is also defined as neglect, under a separate prong of the Illinois neglect law and most other state laws too. So Calarco is right that this part of neglect law needs to address the real problem she has raised--which is not a defect in the free range law at all.  Calarco points out that it is also is necessary to decide that where a parent can't avoid leaving their child without some form of necessary care (like shelter), it is our society's responsibility to step in but not through the harsh and punitive child protection system.  That's the responsibility of our social safety net.  Neglect laws need to be reserved for neglectful parents, not those who are doing their best with what they have. 

Free range parenting laws are a good start precisely because they can benefit all children. But they aren't a solution to poverty.  They are a good way to start the conversation about supporting families in poverty, though, as this discussion shows. 

"Home Alone II" revisited--25 years later, bad cases still make for bad law.

It’s hard to believe I’ve been fighting for much more than 25 years for the rights of families to raise their children without being second guessed at every turn by Child Protective Services. But I got a history lesson of my own when the Beacon News (affiliated with the Chicago Tribune In western suburbs) called me for comments on the 25 year anniversary of the Illinois “Home Alone II” case—a case I would be happy to forget.  The case itself was firmly in my memory, however,  because  I remember quite well the day 25 years ago when I had returned from a vacation of my own. Out of the blue, I was asked to appear on Chicago Tonight to talk about the Chicago-area version of this “Home Alone II” story that was all over the local newspapers.  Since it had been all but impossible to get invited onto the show to talk about a case or project for which I was trying to get public attention, suddenly getting invited to be on Chicago Tonight (the generally excellent and meaty Chicago area news magazine and commentary show on PBS)  wasn’t an opportunity I wanted to turn down, then or now.   It was a chance for a discussion of the State's role in policing parenting decisions, albeit in a context where the parenting  decisions in question would be all-but-impossible to defend if I were to try.  Still,  I gamely believed I should speak out in order to talk about what reasonable “home alone” policies ought to be.  The made-for-Hollwood aspect of the story made it a pretty daunting challenge, though, not the best forum in which to argue for limitations on state authority to judge and punish parents.   But if I had same invitation today and the facts were the same,  I  would make the same decision.  Bad cases don't go away or get better by ignoring them.  

It was just a few months before the Joseph Wallace case took over as front page news. The Schoo case helped to prime the public to take out its anger against bad parents in the state legislature.  The Illinois foster care panic was about to start.  So my decision to go on Chicago Tonight was probably a good one after all,  because it  helped set the stage for later work that proved necessary to protect Illinois law from even more sweeping changes.  Within month of my appearance on Chicago Tonight,  there were calls for legislative changes to  eliminate the basic right of parents to have the State prove a case of unfitness based on the parent's actions. 

There is a common saying among lawyers, “Hard cases make bad law.”  Well, the Schoo “Home Alone II” case wasn’t exactly a hard one, truth be told.  Leaving children ages 9 and 4 home while you go on vacation in Mexico isn’t recommended for anyone.  It was very hard to defend the parents’ actions, especially without knowing more about them.  So I  didn’t try to justify the Schoo's decisions, for there was no  meaningful way to assess why they made this collosal mistake (I wasn’t their counsel and I never met them). No one on the family rights side of the advocacy world (and there were very few of us back then) had enough information to make make much of a family rights argument on their behalf.

The case was ripe for making disasterous law. I was worried it would do exactly that--and to some extent, it did make the law worse.  Arguing against per se criminal and civil penalties for letting kids be alone was the best argument I could muster at the time.   I wish we came up with better, clearer guidelines;   we've done a much better job since.  But the nature of the case made it especially hard to make arguments for reasonable parents who would be trapped by the broad discretionary standards that the legislature would almost certainly adopt in the face of this one terrible case.

On Chicago Tonight, I was Cook County Public Guardian Patrick Murphy’s foil,  put there to have some sort of debate about parenting and the State that  I was likely to lose. 

Since then, I’ve had a lot more opportunities to tell better stories than the Schoo Home Alone II story.  So has our movement of family defenders.  It’s important to tell the stories of responsible parents who made sound parenting judgments only to be mislabeled as child neglectors.  It’s important to highlight stories of families who don’t have the resources to provide optimal child care, even if they wanted to.  (The most heartbreaking of this stories is Rachel Aviv’s Profile of Niveen Ismael here https://www.newyorker.com/magazine/2013/12/02/where-is-your-mother). 

I wasn’t looking to be interviewed 25 years ago about the Schoo Home Alone II case, or again 25 years later.  But it remains important to tell the public about the complexities of legislating in the face of a bad case,  and so I spoke to the press about the Schoo’s, even though I’d rather talk about the Meitivs.