Tennessee DCS Will No Longer Remove Kids From Homes Without a Hearing

The Surprising News

Tennessee Department of Children’s Services (DCS) told caseworkers in October 2013 that they can no longer remove children from homes without an in-person court hearing unless the situation meets a narrow definition of “exigent circumstances” — defined as an immediate, identifiable risk of harm that is “serious, immediate, physical or specific.” The definition could exclude a child’s disclosure of sexual or physical abuse, even if there are injuries visible on a child. The process to seek court order in in-person court hearing may take days — or longer in some rural areas.

DCS (MCFD's counterpart in the state of Tennessee) attracts sharp criticisms that too many children died in foster care (151 in the last three years according to a report released by the Department) due to lack of accountability and incompetent in ensuring child safety in foster homes. This adds to the mountain of empirical evidence refuting that foster home is a known safe place, a rationale often used by many judges to justify removal of children from their parents.

Former Commissioner Kate O'Day has been criticized for a number of issues, including child deaths. State Representative Sherry Jones (D-Nashville) has questioned O'Day's leadership. Many believe it is time to fix problems. For months DCS has been under intense scrutiny. When Kate O'Day left her post as Commissioner in February 2013, she said that she had become more of a focus than the children the department serves. The department has released information on 151 children who have died over the past three years. Some of the children were living in state custody, others had been investigated by DCS prior to their deaths.

This change in practice is due to a ruling from the U.S. Court of Appeals for the Sixth Circuit used the cases to spell out for the first time that caseworkers, like the police, are governed by the U.S. Constitution’s Fourth Amendment, which protects citizens against searches and seizures done without a warrant. Court's affirmation left DCS no choice but to change its practice in child apprehension.

Anita Wadhwani of The Tennessean broadcast the news below on 31 October 2013:

Revelations from This Change

This case sheds light on the following:

1. Before this change, child protection workers may enter homes to search with the police and without a warrant or court order regardless parents give permission. Under the pretext of child protection, such abuse of power subjects parents to search and seizure at the sole discretion of bureaucrats, which is now considered unconstitutional in light of the new ruling.
2. Reduction of bureaucratic power to remove children is often criticized by child advocates and juvenile judges as reducing the ability to protect child. Child removal does not always equal child protection. Critics do not see how such absolute and oppressive power could be abused by service providers in the child protection industry to create a bigger evil.
3. Service providers whose livelihood depends on state-sponsored child removal often take the position that reducing the power of child protection workers will inevitably risk the safety of children. Any attempt to do so will be short-lived until tragedy happens. Despite how much power is given to child protection workers, child abuse will not and cannot be eliminated. The aforesaid prophecy will be self-fulfilling, but not due to the restriction of caseworkers’ abilities to remove children. While there is little or no causal relationship between the level of child removal power and child abuse occurrence, absolute authority to remove children will certainly and inevitably create more wrongful removals and open government to corruption and racketeering.

Remark

Limiting the power of child protector workers to remove children is a politically sensitive issue and a very dangerous mission. Few politicians have the courage, the insight or the conscience to take ameliorative measures to eliminate such oppressive power that has haunted many families in their constituency. The odd bird who did, like Nancy Schaefer (Georgia State Senate from 2004 to 2008), conveniently and suddenly died a mysterious and horrible death.

Ironically, heads of overly empowered child protection agencies are at times victimized by the very industry they serve and protect. When a government agency with absolute power collaborates with financially motivated service providers and operates in an environment with little accountability and transparency, mistakes made by bureaucrats and service providers are not always controllable by the top dogs. After removed children die in foster homes, the director, commissioner or minister are like sitting on a time bomb and often take most of the heat when it explodes. Some are forced to resign. Kate O'Day (Tennessee) and Florida's top child welfare and social services administrator David Wilkins who resigned amid escalating controversy over child deaths are examples of the foregoing.

A major portion of income in the child protection industry comes from tax dollars. Service providers control the demand of their services and are maximizing their profit every year up to the maximum taxpayers could bear. Politicians always have to find more tax dollars to finance the industry. Unpopular taxes carry a political consequence. Gordon Campbell (the 34th Premier of British Columbia from 2001 to 2011) resigned in November 2010 after months of strong opposition to the implementation of the Harmonized Sales Tax (HST) which reduced his Angus Reid poll approval rating to only 9%. Reducing the budget of MCFD that financed the oppressive and often counter productive child removal regime could save public resources that eliminate the need of HST. Politicians who protect the status quo may have to pay a heavy price when the racket backfires. Of course, taxpayers are always an indirect victim.

Be mindful that this is not a legislation reform but a child removal policy change prompted by a new interpretation of constitutional law as a result of lawsuit launched by oppressed parents. Self-serving service providers are hoping and expecting that a tragedy in the future will prompt DCS to return to its former policy of child removal without a hearing. The old policy will serve their best interests as it allows service providers in the child protection industry to control the demand of their services without the need to convince anyone to concur with their decisions. It is just a matter of time that a heartrending child abuse case will happen, despite whether or not there is a child removal policy change. DCS will take that opportunity to stir up public sentiment to support that reducing their power is inappropriate. It will be interesting to see what ruses the industry will use to reacquire its reduced power.

After the Tennessee DCS announced the change in child removal policy, a service provider prophesied that this policy will be short-lived until something tragic happens. Despite whether there is a change in policy, child abuse tragedy will continue. The child protection industry always counts on a tragic child abuse case to acquire more power and funding. Whenever such tragedy occurs, the media often points the finger at government. Government almost always responds by allocating more resources to child protection agency which translate to employing more child protector workers, more absolute power to remove children, more money paid to foster parents. They fail to see that there is little or no causality in child removal power and the number of child abuse cases, save and except such power allows service providers to create more phony child abuse cases for their financial benefits.

In his article "The Child Abuse Laws Which Could Destroy Your Reputation" (5 February 2011), Dr. Joseph M. Mercola, MD, correctly stated:

Empirical evidence supports his view that the money funneled to states and child protective services actually encourages them to accuse parents of child abuse and even murder, and to take their children, even if parents are not guilty, and even though they have absolutely no proof that parents harmed their children. To justify a government budget and its value of existence, the child protection industry could inflate the number of child abuse cases by a combination of the following:

1. accuse parents of doing something they did not do;
2. fail to explain or add ambiguity to the definition of child abuse (Dr. Mercola cited Shaken Baby Syndrome as an example);
3. open new arena in which CPS can seize children from their parents, and place them in adoptive homes.

Absolute power to remove children is seldom called for. In rare and extreme situations when immediate removal is needed to protect the safety of vulnerable children from their own parents, other statutes, such as the Criminal Code and the Mental Health Act in Canada, contain provisions that empower authorities to do so based on good evidence and due process of law. Child protection laws authorize removal based on opinion from bureaucrats alone and circumvent Section 11 charter right protection (the Canadian equivalent of the U.S. Constitution's Fourth Amendment), due process of law and the need of good evidence. Our views are elaborated in "Flaws of CFCSA". Although this long overdue policy change is insufficient to prevent abuse of bureaucratic power and wrongful child removal, this is a small step towards the right direction.

References

• "DCS will no longer remove kids from homes without a hearing" by Anita Wadhwani of The Tennessean (31 October 2013)
• "DCF Secretary David Wilkins resigns amid escalating controversy over child deaths" by Carol Marbin Miller and Mary Ellen Klas, Times/Herald Tallahassee Bureau (18 July 2013)
• "Tennessee's Children's Services head resigns over handling of child death cases" from Fox News (5 February 2013)
• "The Child Abuse Laws Which Could Destroy Your Reputation" Dr. Joseph M. Mercola, MD (5 February 2011)

[This page was added on 1 November 2013, last revised on 5 April 2015.]