ProPublica investigation into Colorado’s family court system finds more glaring income and racial disparities

photo by Alexis Kenyon/KGNU

The University of Colorado’s Kempe Center is a nationwide authority on the child welfare system. Founded in the 1970s, the center is famous for developing what many know as the ‘see something, say something’ reporting system,  otherwise known as CARE (Child Abuse Reponse Evaluation network) which mandates social workers, teachers, and medical professionals to report any signs of child abuse or neglect to child protective services. 

A new report from ProPublica looks into a lesser-known but widely used protocol in Colorado developed by a woman named Diane Baird. Baird worked at the Kempe Center for decades and is one of Colorado’s most commonly used family court expert witnesses. 

At the Kempe Center, Baird created and trained others on what she called the Kempe Protocol to evaluate custody in child welfare cases. 

When ProPublica looked into the protocol, they found it routinely recommends removing often low-income, non-white children from their birth families, commonly granting permanent custody to middle-income, white foster parents. 

KGNU’s Alexis Kenyon spoke with ProPublica investigative reporter Eli Hager about his report. 

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    Untitled Alexis Kenyon

Interview Transcript:

Alexis Kenyon: I’m curious. How did you start looking at this story? Where did you start noticing that something was going on here?

Eli Hager: Well, basically, there was such a pattern across Colorado. About two years ago, I started hearing from families, both birth families and foster families, from their attorneys, various officials, case workers, and experts across Colorado. As I reported more, the same type of case was happening over and over again.

Families who wanted to adopt were often hiring the same lawyer. They were intervening in the case, which is a technical term, but it means that they get to interject themselves, declare themselves full parties to the child’s case, which had previously just been a case for the birth family, and start making arguments and calling witnesses and cross-examining witnesses to assert that they were too attached to the child for the child to go home to the birth family.

It was eerily familiar from one case to the next, always the same lawyer and often the same expert, Diane Baird. She would make eerily similar arguments from case to case about how the children were attached to their foster parents but weren’t attached to their birth families.

It was eerily familiar from one case to the next, always the same lawyer and often the same expert, Diane Baird. She would make eerily similar arguments from case to case about how the children were attached to their foster parents but weren’t attached to their birth families.

And in some instances, I found that she even copied and pasted from her own previous reports. That’s how consistent she is in this view.

Alexis Kenyon: Yeah. In your article, you have a quote where she admits like, “Yeah, I copied reports.” I mean, what do you think she was missing? Why did she think that was fine? And why is it not fine?

Eli Hager: Well, a couple of things. I mean, she says that the same attachment science applies to all children. So, no matter what, if a child’s under the age of three, they really shouldn’t have that attachment with their foster parents “ruptured.” That’s her belief.

That raises another question, though, which is why she conducts these evaluations. She comes into these cases saying that she’s going to evaluate the children’s relationships, and she calls it the “Kempe Protocol,” which sounds very scientific. And yet the evaluation almost always yields the same conclusion: that the child should stay with the foster parents, who are often middle class, and the child should not go to the birth family, who are often lower-income and non-white.

So, the net result is you have a lot of often white and middle-class families ending up with permanent custody of children through the usage of this methodology rather than those children’s usually lower-income and often non-white birth families.

Alexis Kenyon: I mean, what does the research say about this, separating kids from their birth families who may be low-income and less able to provide a stable or resource-filled life versus granting custody to foster parents who may be more middle-class and able to provide a more stable childhood?

Eli Hager: Well, yeah, I mean, social science researchers are studying these things all the time. Obviously, the effect of growing up in poverty can be severe, but so can the effect of being separated from your parents and your loved ones; both can be traumatic experiences.

Obviously, the effect of growing up in poverty can be severe, but so can the effect of being separated from your parents and your loved ones; both can be traumatic experiences.

The question is how do we evaluate and make those decisions? What ProPublica found is that there is this evaluator, Diane Baird, who’s helping to make those decisions in a way that is not based on science and that is tilted toward one side, namely the foster parents’ side, in almost every case.

Whatever your overall views are on how active the child welfare system should be in removing kids from families, certainly, once they’ve been removed into foster care, all efforts should be made to rehabilitate their parents or, second best, place them with biological family members like a grandmother. That’s what the federal law says is required, and that’s what the social science research says is better for kids in the long term.

But I think one thing that a lot of people don’t understand is that well over 80 percent of cases in the child welfare system nationwide do not involve abuse. They involve something called neglect, which is deeply correlated with poverty.

So housing issues, food issues, certainly drug use issues, but there’s no evidence that lower-income people abuse drugs significantly more than people with money. Yet they have their kids removed for that reason far more often, and I think that’s one thing that people don’t understand.

I think even if circumstances at home aren’t perfect, a lot of kids when they get older, talk about having wished that they would have grown up with their birth families. The Colorado Sun did an investigation about how many adoptions fail in Colorado, in part because kids want to be with their birth families and are wondering about their identity, and are having mental health and behavior problems as they get older.

And I guess more largely, the question is, do we want to respond to families who are living in poverty by redistributing their children to other families to better-off families like foster families and adoptive families, or do we want to respond to the poverty itself and try to have systemic solutions to these things? I think that’s the larger question that the child welfare system raises.

And I guess more largely, the question is, do we want to respond to families who are living in poverty by redistributing their children to other families to better-off families like foster families and adoptive families, or do we want to respond to the poverty itself and try to have systemic solutions to these things? I think that’s the larger question that the child welfare system raises.

Alexis Kenyon: So I know that you brought your  reporting and your investigation, specifically into the way that Diane Baird is using what she calls the Kempe Protocol, to the Kempe Center. Did  they provide any explanation about how this protocol was developed? Or, what was their response?

Eli Hager: So, it’s a little bit muddy right now because Diane Baird, and her colleagues who developed this protocol and this methodology, did so at the Kempe Center. They used the methodology in cases that they worked on on behalf of the Kempe Center. And then now, in her continuing private practice, she has continued to use the protocol or methodology similar to it, but the Kempe Center, in its response, was evasive and said that there’s not technically any such thing as the Kempe Protocol.

It’s not copyrighted by them. It’s not in their formal listings of the services that they provide. So I think that’s where public defenders who represent low-income birth families argue that Kempe should do something like publicly disavowing all of this. If they’re saying that it doesn’t exist, then why not disavow using it in name? But the director of the center declined to do that and said that it should be left up to individual judges on an individual case, to determine whether or not the Kempe Protocol or methodologies like it should be used.

The director did ask Diane Baird to stop using the Kempe name, but she did so privately; she didn’t make a public statement about it, but it’s held strong and not publicly disavowed this particular protocol, which seems to fly in the face of its other attempts at introspection.

In some communities, especially Black communities, two in three Black kids will see their parents investigated for some form of child maltreatment.It’s like an ever-present thing in some communities and I don’t think everybody quite realizes that. And I think it’s worth more attention for that reason.

Alexis Kenyon:  Were you able to talk to any judges with the evidence you found? Did you get any of their reactions? I wonder if any judges felt like they already knew this or this was, you know, big news to them.

Eli Hager: I did talk to some judges, none on the record, though, so I can’t really speak to those interviews. I do know that, in certain cases, because Colorado has a county-run system, judges might not be aware of what’s happening elsewhere in the state.

Also, especially in rural areas, a judge might have only a handful of child welfare cases on their docket, and the judge might also be handling criminal justice cases, and so on. They might not be as familiar with these sorts of issues like the latest and what the social science research shows or what the experts are saying. So, when somebody like Diane Baird appears in their courtroom with this long experience and this Kempe Center credential, it means a lot to judges.

So we’re hoping that our reporting shows that she has made similar arguments in case after case and that she has admitted that she is incorrect. We’re hoping that that will reach people like judges who make these decisions and inform their understanding of things that maybe, just in their one county, they hadn’t been exposed to before.

Alexis Kenyon: Eli, before I let you go, I mean, what are your big takeaways from reporting this story?

Eli Hager: One thing that I’ve said a lot when asked questions like this is that I think there’s been this growing awareness of how the criminal justice system affects a lot of people and people of color over the last 10 years.  There’s been a lot more attention paid to how police and prisons operate and so on. And, you know, that’s been a healthy debate. I mean, there are good points made on both sides of that debate, but I just don’t think that’s happened as much with the child welfare system.

But the child welfare system is arguably just as massive as the criminal justice system. There are 3.5 million kids every year that see their families investigated by these CPS agencies. In some communities, especially Black communities, two in three Black kids will see their parents investigated for some form of child maltreatment. It’s like an ever-present thing in some communities and I don’t think everybody quite realizes that. And I think it’s worth more attention for that reason.

 

 

Picture of Alexis Kenyon

Alexis Kenyon

Alexis Kenyon is an experienced radio reporter with more than 15 years of experience creating compelling, sound-rich radio stories for news outlets across the country. Kenyon has master's degrees from the University of California, Berkeley, Graduate School of Journalism in radio broadcast and photojournalism. She has worked in KGNU's news department since 2021 as a reporter, editor, and daily news producer. In all her work, she strives to produce thought-provoking, trustworthy journalism that makes other people's stories feel personal. In addition to audio production, Kenyon runs KGNU's news internship program and oversees the department's digital engagement.
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