Virginia McKale, who was featured in an October Legal Intelligencer article about systemic problems in Philadelphia’s child welfare system in which she said her grandson had been sexually abused while in a foster home, has been ordered to cease speaking publicly about the matter.
On Oct. 30, Philadelphia Family Court Judge Joseph Fernandes signed off on a pair of gag orders, requested by the city’s Department of Human Services. The orders also revoke McKale’s unsupervised visits with her two grandchildren and state that further visitation must be supervised.
“Maternal step grandmother is not to disclose any information regarding case,” the orders read. “If maternal step grandmother is not appropriate during supervised visit, visit is to be terminated.”
Kevin O’Brien, a lawyer McKale retained to investigate DHS’s handling of her grandson’s case and who spoke on her behalf in an interview, called the order “concerning.”
“Any time you’ve got a restriction on free, true speech, I’ve got a concern about First Amendment violations,” O’Brien said. “I’ll give everyone the benefit of the doubt that they’re trying to ensure that the privacy of the child is not impacted in any way … but what the article is about is the lack of oversight in the overall foster care system.”
Pseudonyms were given to protect the identities of McKale’s grandchildren in the Oct. 10 article.
“I think there’s a compelling public interest in knowing what’s going on and ensuring the system is working properly,” O’Brien said. “The more people know about it and demand accountability, the safer these children will be.”
As for the alteration of McKale’s family visits, O’Brien said, “I don’t have any idea why they would decrease her visits” from unsupervised to supervised.
Reached Tuesday for comment on the orders, DHS spokesperson Heather Keafer said the agency is prohibited by law from commenting on individual cases.
“We are unable to comment on any specific case due to Pa.’s Child Protective Services Law and Pennsylvania Department of Human Services regulations,” Keafer said in an email. “For these reasons, DHS does not comment on any active cases. The expectation and hope for anyone involved with a child who is DHS-involved is that they maintain the child’s confidentiality at all times.”
Jeremy Mishkin, a First Amendment lawyer at Montgomery McCracken Walker & Rhoads in Philadelphia, said the matter lies in a legal gray area.
“There is a First Amendment issue in play when there are requests for or entries of gag orders. The judge’s job is to balance those interests appropriately,” Mishkin said. “Although the First Amendment is wonderful for zealous advocates for free speech … the judicial system is appropriately protective of minors. There are legitimate considerations for requiring the parties to refrain from public comment.”
He added, “It’s not the freedom of the press to report, it’s the freedom of the individual to speak that’s at issue.”
In the Oct. 10 article, McKale expressed her grief over what happened to her grandson and her frustration with how she felt the system failed to properly address the matter.
She was not the only one. McKale’s story is one of many about abuse in Philadelphia foster homes and is a symptom of what several attorneys said is a systemic problem that centers on Community Umbrella Agencies, or CUAs, which are private entities that DHS contracts with to provide caseworkers in addition to vetting potential foster homes.
These private agencies have been the subject of several high-profile lawsuits and multimillion-dollar judgments for allegedly placing children in harm’s way.
Just last week, Bethanna, a CUA in South Philadelphia, was found partially liable for the beatings of a twin brother and sister at the hands of a Lancaster County couple in whose home the agency placed the children. A Philadelphia jury handed down a $4.5 million verdict in the case.
In 2017, Bethanna was hit with an $11 million jury verdict for sending a child to live with foster parents Walter and Deborah Scott, who subjected her to beatings and sexual abuse.
In both cases the agency was accused of failing to properly investigate the foster parents before sending children to live with them.