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October 2019Vol. 20, No. 8Unnecessary Removals: The Most Unjust Adverse Childhood Experience

Written by Christopher Church, staff attorney for the CHAMPS Clinic, University of South Carolina School of Law

Just over 100 years ago, President Taft appointed Julia Lathrop to lead the newly established Children's Bureau—the first federal agency devoted to the welfare of children. In establishing the agency's priorities, Director Lathrop focused on data-driven strategies to promote children's health and well-being, such as measuring infant mortality and funding strategies to reduce it. Director Lathrop also framed her priorities through a social justice lens, noting the Children's Bureau was "an expression of the nation's sense of justice, and the justice of today is born out of yesterday's pity."

Using data and justice as North Stars, I am filled with curiosity as to what Director Lathrop would think about the state of child welfare today. The Children's Bureau now uses a nearly $8 billion annual budget to strengthen families and prevent child maltreatment, to protect children when maltreatment has occurred, and to ensure that every child has a safe and legal connection to a caring adult. They promote these priorities through, among other activities, monitoring of state and tribal child welfare systems, funding research and innovation to build an evidence base of programs and practices, and providing technical assistance and training to local child welfare professionals. But has this activity expressed our nation's sense of justice? This issue's spotlight on trauma-informed care and adverse childhood experiences pulls me to think about the child welfare system's own infliction of adverse childhood experiences. In the spirit of Julia Lathrop, I want to examine the involuntary separation of children and families for the purpose of protection in foster care through a data-driven justice lens.

Removal is child welfare's most drastic and most protective safety intervention. It should be a last resort for state agencies charged with protecting children from harm. While there is a strong legal basis underpinning removal's limited use, there are also clinical reasons to invoke it sparingly. Dr. Monique Mitchell's research, as discussed in Does Anyone Know What is Going On? Examining Children's Lived Experience of the Transition into Foster Care, documents the ambiguity and loss that children suffer the moment they are separated from their parents and how this threatens child well-being. At removal, children can experience structural ambiguity (e.g., What is foster care?), placement reason ambiguity (e.g., Why am I in foster care?), relationship ambiguity (e.g., Who is this case manager? Who are these foster parents?), temporal ambiguity (How long will this last?), and ambiguous loss (e.g., Why can't I see my parents?). These are questions that haunt children moment by moment as they are physically separated from their parents. The research on the harm inflicted by separating children from their parents is so unambiguous that Harvard Professor of Pediatrics, Dr. Charles Nelson, told the Washington Post, "If people paid attention at all to the science, they would never do this." But we do this as a matter of routine in the name of child protection—more than 250,000 times per year.

I am not here to suggest that children should never be separated from their parents in the name of child protection. Removal is a critically important safety intervention for child welfare professionals. However, the data we routinely collect on children and families involved in the child welfare system raise the possibility that our system is not appropriately calibrated to minimize harm by removing children from their parents only when absolutely necessary.

First, the variance in removal rates across geographies is concerning. During the 2017 federal fiscal year (FFY), the rate at which Virginia (the state with the nation's lowest removal rate) and neighboring West Virginia (the state with the nation's highest removal rate) removed children for purposes of foster care placement differed by a factor of 10. I am not sure what the correct number of removals is for any jurisdiction, but I do not believe our nation's child welfare system should be designed to allow one state to remove 10 times as many children as another. To the extent your mind is drawn to explanatory variables such as child poverty or opioid use, I assure you the relationship between foster care removal rates and poverty or caretaker drug use rates does little to explain differences of this magnitude. Our child welfare system is far too complicated to be explained by a handful of simple correlations.

Second, removal to foster care is only supposed to take place if a judicial officer finds it would be contrary to the welfare of the child to remain in the home and that reasonable efforts were made to prevent the need for removal. The Children's Bureau requires states to submit biannually a wealth of demographic and programmatic data regarding the children and families in foster care. In these data, there is no requirement to document a contrary-to-the-welfare finding or the reasonable efforts the state agency made to prevent a removal. If preventing removals were a priority, our system would require states to report how often, and by what means, they achieve it.

Third, removals often fall into the class of emergencies: a late-night call from law enforcement, or a situation where time would not allow the agency to seek judicial authority prior to the removal. Existing removal data call that narrative into question. Removal data from 18 states, spanning more than 237 aggregate years' worth of data, reveal that 93 percent of removals occur during the business week, with only 7 percent occurring on the weekend. Nearly two-thirds of the removals during the 2017 FFY implicated neglect as a reason for removal, the most commonly cited removal reason. For whatever situation or context neglect is serving as a proxy, it conjures up less of a sudden onset of a severe condition requiring immediate action and more of a chronic, long-standing environmental stressor.

Finally, for at least a decade, roughly 1 out of 10 children removed to foster care were discharged within 30 days of removal. During the 2017 FFY, most of these children spent about 2 weeks in care—an unfamiliar environment—before ultimately being returned to a family member. Is it not likely that some portion of those 22,000 children that spent less than a month in foster care never needed to be separated from their parents? What safety threat could be so imminent and impervious to remediation through reasonable efforts but otherwise cured within a couple weeks of their removal?

Based on what we know about the harm of removal—the grief and loss suffered the moment children are separated from their families—local child welfare professionals should seriously consider whether their removal gate is carefully calibrated to make sure no child unnecessarily passes through it. The data suggest that our systems are not so carefully calibrated. When child welfare professionals consider the decision to remove a child from their parents, they must carefully balance the harm of removal against the risks of staying in the home. They must not "err on the side of caution," as is oft repeated, especially if that means removing the child from their parent. There is nothing cautious about blithely making such a decision.

Sometimes removing a child from their parents' custody is absolutely necessary. I am reminded of one of the early lines in Justice Blackman's dissent in DeShaney v. Winebago: "Poor Joshua!" he lamented.  Joshua was one such child where removal was necessary. But the progeny of DeShaney does not justify abdicating responsibility for using removal as an intervention of last resort. Long before Justice Blackman penned his DeShaney dissent, Director Lathrop reminded us children need justice, not pity. Justice requires objective assessments of child safety, thorough exploration of the best alternatives to removal, and careful scrutiny by judicial officers prior to effectuating a removal. In the absence of those elements occurring, we will contribute to the number of adverse childhood experiences our nation's most vulnerable children suffer.