Why We Need “Confidential Reporting” Reform

Last week I attended the policy summit of the American Legislative Exchange Council, an association of conservative policy organizations, private sector organizations, and state lawmakers, to present the need to take up reform legislation. Specifically, I presented the need to replace “anonymous reporting” with “confidential reporting” to child abuse hotlines. 

The following is taken from that presentation:

The Parental Rights Foundation is working on a model that would reform child welfare laws to replace “anonymous reporting” to child abuse hotlines with “confidential reporting.”

 “Anonymous reporting” refers to the ability of a caller to make an allegation of abuse or neglect without leaving any identifying information. With “confidential reporting,” the child welfare agency still keeps the caller’s identity a secret, but the caller must provide their name and other identifying information.

There are several serious reasons to make this subtle but important change, including both the protection of family privacy and the saving of children’s lives. I will get to these reasons in a moment, but first let me provide some legal background.

State child abuse hotlines arose in the 1960s, starting in Illinois and quickly spreading across the country. When the Child Abuse Prevention and Treatment Act, or CAPTA, was adopted in 1974, it was only natural that having such a hotline would be a prerequisite for receiving federal dollars. 

Hotline Investigations Today

Today, 40 states and the District of Columbia allow anonymous calls to their child abuse hotlines. The other 10 states call for confidential reporting by statute. I say “by statute,” however, because most of the ten that do not allow anonymous calls by statute still allow them in practice. (Source: Dale Margolin Cecka, “Abolish Anonymous Reporting to Child Abuse Hotlines,” Catholic University Law Review, Fall 2014)

Why is this a problem? 

For starters, because of what happens next. This comes from Doriane Lambelet Coleman‘s 2005 law review article, “Storming the Castle to Save the Children”: 

Although child maltreatment investigations clearly serve an essential purpose in the overall CPS scheme (that is, Child Protective Services), the reporting and investigations process is also an enormous intrusion on individual and family privacy: Once CPS screens in a report of maltreatment, the state typically seeks to enter into and examine the family home and to seize and separate the children from their parents or the school setting in which their parents placed them so that they can be interviewed and examined, either by CPS, the police, or medical personnel designated by these officials. Generally, state officials are authorized to exercise extraordinarily unfettered discretion when they engage these intrusions.

Coleman goes on to say that “approximately 70 percent of the time no abuse or neglect is found by the conclusion of these investigations.” 

Seventy percent.

But sadly, as high as that number is, it is no longer accurate.

Based on national numbers reported by the states and published through the US Department of Health and Human Services, the figure has held steady in recent years at around 83 percent.

That is a full five out every six investigations opened into people’s private lives, intruding into innocent families.

And as the description I just read implies, these investigations are not without cost.

The Cost: Child Trauma

Vivek Sankaran, a law professor out of the University of Michigan, published a paper last year in the Marquette Law Review titled “A Cure Worse Than the Disease? The Impact of Removal on Children and Their Families.” In it, he posited that while those engaged in child protection concern themselves with “trauma” only as something that has happened to a child before the investigation began, we must also look at the trauma caused by the investigation itself. And in five out of six cases investigated, that is the only trauma present—the trauma caused by the investigation itself.

Such trauma has caused children to require counseling, and in some instances has led to symptoms in children of PTSD—Post-Traumatic Stress Disorder. One study even indicated that children who go through child welfare investigations, especially if they are separated from their parents, can suffer levels of PTSD considerably higher than that of soldiers coming home from an active battlefield. 

Children are simply not equipped to handle the levels of uncertainty and ambiguity caused by a child welfare investigation or family separation.

As one mother told us a few years ago, “Every child should be able to see their parent as superman, or as superwoman. They took that from us that day,” referring to the day a CPS worker wrongfully took her child out of her care.

Now, our bill cannot prevent the trauma of all child welfare investigations or family separations. Tragically, abuse does exist, and the state has a role to play in keeping children safe from that abuse, even if it means intruding into or breaking apart a family that is toxic for that child.

96 Percent False Reports

But what can we do? What will a change from anonymous to confidential reporting provide?

To answer that, there’s one more number you need to hear. While an astounding 83 percent of all child welfare investigations are ultimately deemed unfounded or unsubstantiated, that number—five out of six—is for all investigations.

Among investigations started with an anonymous tip, the number of false or erroneous reports jumps to a whopping 96 percent.

That means that for every one case where abuse or neglect turns out to be indicated by the evidence, another 24 families are subjected to the irreversible trauma of an investigation. 

Ninety-six percent. 

How in the world does that happen?

Consider with me.

With apologies to John Cougar, “Little ditty about Jack and Diane. Two American kids growin’ up in the Heartland.” But unlike in the song, our Jack and Diane get married, have a couple of kids, and then decide to move on from one another.

Jack has been a solid provider and a stable presence for his children. Diane has struggled with addiction, maybe in and out of rehab, maybe even a stint in jail. But she loves her kids, would do anything for them. And she still wants to be their full-time mom.

Diane’s lawyer advises her that, unless there’s some secret abuse no one knows about, Jack is very likely to get the kids. He’s a boy scout. The court is going to favor him.

That’s when Diane decides to make an anonymous call to a child abuse hotline. Without identifying herself, she claims she’s heard Jack’s little girl say her daddy touches her inappropriately. And she has seen Jack’s little boy afraid, because he says his daddy has a powerful temper and sometimes turns violent when no one is around.

She hangs up, the damage done. CPS opens one of those traumatic investigations, and of course word of it reaches the family court judge who will decide custody in Jack and Diane’s case. It’s not a guarantee Diane will get the kids, but the balance has certainly shifted.

This story happens all the time in our country, and it often goes the other way, with Jack being the one to make the false call. It’s called “weaponizing the CPS system.” It has a name, because we know it happens and we need to stop it.

“Weaponizing CPS”

But it could be even worse. Our tragedy of Jack and Diane is just a one-off event.

There are also cases of in-laws or other third-party actors who just don’t like a particular family member. Or neighbor. Or former partner. And they don’t call just once.

They call once and an investigation is opened. Trauma comes with the intrusion and the interview. But there’s no separation, because there’s no evidence. Weeks go by and the case is closed.

Then the caller calls again. Because it’s anonymous, there is no indication this is the same caller. All the system knows is that it’s a second report. And when again there is no evidence, there’s a third and then a fourth.

Now, somewhere around the fourth or fifth report, the child welfare investigators start to suspect that “where there’s smoke, there’s fire.”

“We haven’t been able to find anything, but we’ve sure been out to this house a lot. This guy, this mom, must just be really good at covering their tracks.”

Some at that point, even still devoid of evidence, will nevertheless take the kids, just to be safe.

And incidents like these are how we get to a 96 percent rate of false reports.

People who have learned how the system works know how to play it for their own ends.

Confidential Reporting Protects Family Privacy

Confidential reporting will change that.

First, it will deter a lot of those callers from making false claims in the first place. The first time someone asks for their name will be the last time they call.

Second, it will allow the courts to track those who are giving knowingly false information and are still bold enough to make repeated calls. When CPS gets a fourth or fifth call, their suspicion can fall on the caller when appropriate, and not on the family being wrongfully reported.

Earlier, I promised to go over the serious reasons to make this subtle but important change, including both the protection of family privacy and the saving of children’s lives.

By now I think the protection of family privacy is pretty clear. We’re not talking about putting privacy ahead of the very real needs of children who are at risk. 

We’re talking about the right of innocent families to go about their day-to-day lives without unwarranted intrusion. We’re talking about leaving children safe in the perception that their dad is Superman, their mom is Superwoman. We’re talking about preserving basic, fundamental rights that keep children from unnecessary trauma and keep parents from unnecessary contact with their government.

But how will we save children’s lives?

Confidential Reporting Saves Lives

First of all, if we can eliminate even half of those 96 percent of investigations that are false, we will free up tremendous resources. We will free up the time and attention of our child welfare investigators so they can go after the actual abusers, and so they can find and save the children who really do have a need.

According to the 2017 report of the Auditor General for Pennsylvania, for instance, “Of the 13 county administrators interviewed for this report, all said unequivocally that they did not have adequate resources to handle the demand of cases they receive.” Now a simplistic solution might be to spend yet more money and hire still more workers. But couldn’t we also solve the problem by weeding out a lot of the useless, bogus reports that are coming in and taking up so many of those resources?

Absolutely.

But there’s a second way this can save lives. There was an incident a couple of years ago of a child in New York who really was being abused. An anonymous tip came in and the caller gave the child’s name and address. 

Through comparing notes and asking about the child by name, the agency came to realize there really were some serious warning signs of life-threatening abuse. But they also learned they had the wrong address.

If only they could have called their original contact back to get a correction!

They were finally able, by reaching out to the community, to get the caller to call them back and correct the address. But by the time they got there, the child was already a child abuse fatality. Another statistic. A tragic statistic that could have been avoided, had the original call been confidential, but not anonymous.

Our reform can make tragic stories like this one a thing of the past.

Sadly, there will still be abuse and neglect. There will still be deaths from this terrible disease in our homes. But there can be way fewer if we can adopt this commonsense measure to reform how we take child abuse hotline calls.

It’s a short bill with a lot of punch.

Bipartisan Appeal

And here’s another real plus to this issue. We are currently drafting and vetting our model with a bipartisan coalition of family-defense advocates. When we’re done, we’ll have language that I’m confident will meet the conservative values and agenda aims of ALEC and its allies. But it will do so in a way that can also open the door to support from across the aisle.

So I hope you will grant us the opportunity to bring this model reform bill for your consideration this summer. Because we can preserve family privacy rights and protect children from abuse, both at the same time. We can do it better; we can do it smarter; we can do it now.

Thank you.