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August/September 2020Vol. 21, No. 6Fault Lines and Opportunities

Written by Judy Perry Martinez, president of the American Bar Association (ABA), 2019-2020; Judge Ernestine Gray, Orleans Parrish, LA, and chair of the ABA Commission on Youth at Risk; and Prudence Beidler Carr, director of the ABA Center on Children and the Law

This is a unique moment, marked by the convergence of a global pandemic and a national call to eliminate racism within public and private life in America. The former arose unexpectedly and has wrought widespread human and economic havoc and cultural, faith, and familial disruption in our country like nothing we could have anticipated just months ago. The latter, racism in America, is not new. Whether by apathy or design of the majority, over the centuries it has been allowed to continue as the norm.

As much as these two extraordinary forces—one unexpected and one long known—are distinct, they are also intertwined. As Jelani Cobb recently explained, George Floyd's death "cannot be understood outside the context of a pandemic in which African-Americans have died at three times the rate of White Americans." This connection was perhaps made most starkly by Mr. Floyd's autopsy, which revealed without fanfare that he was positive for COVID-19.


The pandemic has forced us to confront the realities of our public systems that we have previously chosen to hide. For example, the pandemic has challenged us to question what it means when many among us lack access to health care, child care, stable housing, adequate food, quality education, and economic security. The pandemic has also challenged us to question what it means when we allow public systems to treat people differently because of their race.

The child welfare system is not immune from these realities. As Sharon McDaniel recently wrote, "[i]f child welfare was on trial for the charge of systemic racism, decades of demonstrative, real, testimonial and documentary evidence could be used against it...we have exceedingly met the burden of proof." In addition to the deep history of structural racism in child welfare, we also must confront clear evidence of the means by which bias continues to shape the way child welfare interacts with families of color.

As difficult as these realities are to confront, they also give us a vantage point on where the greatest fault lines of our system lie. For that reason alone, the opportunity presented by this moment is invaluable and cannot be wasted.

We write today to examine three realities of the child welfare system that have become more apparent during the pandemic and require attention to build a "new normal" moving forward: children's rights to family, mandatory reporting, and causes of foster care entry. A common thread in each is that, above all, we want the child welfare system of tomorrow to be understood for what it is—a legal system with extraordinary power to affect individual lives. Just like any other legal system in America, child welfare requires checks and balances to make sure that power is wielded appropriately and responsibly.

Children's Rights: How Could We Not Talk About Family When Family's All That We Got?

The pandemic has taught us about the value of family. Sheltering in place means something very different for a child surrounded by family than it does for a child who has been separated from family by state action. This reflection of our system is evident in stories about children in foster care who feel isolated because they cannot see their siblings or kin, infants and toddlers in care who are not bonding with their parents during crucial months, and older youth who have aged out of the system and have no family support in place when confronted with challenges like job loss, food insecurity, and lack of housing. This reflection of our current system forces us to ask what costs we impose on children when we initiate separation from family without any guarantee of what comes next.

So often, the child welfare system focuses on the rights of children to be safe and raised in what we describe as their "best interests." We juxtapose these children's rights against parental rights to maintain custody and care of their children, rights we describe as "family integrity." This is a false dichotomy. Children, too, have rights to family integrity. All children have rights to be cared for by their parents and maintain relationships with siblings, grandparents, aunts, uncles, and cousins. In 2019, the ABA passed ABA Resolution 118, which calls for all decisions in child welfare to be rooted in a recognition that both children and parents have rights to family integrity.

Existing state laws already affirm the importance of family integrity. Yet, we rarely invoke these laws from the child's perspective when making decisions about removal, placement, and termination of parental rights (TPR). That should change. For example, Minnesota law provides that "all children are entitled to live in families that offer safe, nurturing, permanent relationships, and that public services be directed toward preventing the unnecessary separation of children from their families."

These laws need to be enforced in practice by judges who incorporate the concept of children's rights to family integrity into the "best-interest" analysis. Decisions to apply the law and deny a petition for removal or TPR require courage. If grounded in constitutional principles, such as children's rights to family integrity, those are also the decisions that will help most to reshape a system that truly values the individual lives at stake. The Iowa Supreme Court provided useful guidance in a 2019 decision finding children's best interests are served when their parents "have a full and fair opportunity to resist the termination of parental rights." As we take this moment to build a better child welfare system, children's rights to family integrity should be a foundation upon which everything else is constructed and against which every decision is checked.

Revising Mandatory Reporting

The pandemic has revealed that in America, instead of focusing on parents as champions, our public attention focused on stories about the dangers of removing children from the view of mandatory reporters when schools closed and the numbers of referrals to child protective services (CPS) declined. This, too, is a reflection of our current system. Public reaction assumed all unreported children must be in harm's way. But a closer look at the data shows that only 15 percent of reports from school administrators and teachers are substantiated by CPS after they come in.

Rather than jumping to conclusions about the inherent dangers of removing children from settings with mandatory reporters, perhaps this momentary reprieve from incoming referrals should spur us to ask another question: Is our system working as we want if only 15 percent of all school-related calls reporting families to the authorities result in substantiated cases of abuse or neglect? Are we comfortable knowing that the remaining 85 percent of unsubstantiated referrals come with extraordinary governmental power to investigate and intervene in a family's life? This often means an investigator enters a family's home, examines refrigerators and kitchen drawers, inspects bedrooms and closets, interviews children apart from their caregivers, and, in some cases, asks them to show parts of their bodies.

The number of affected families is not small. By the age of 18, one in three American children will have been the subject of a child welfare investigation. For African-American children, this number is one in two. Consider the following questions:

  • Would the average American parent agree that he or she should have a 33-percent chance of being investigated for child abuse or neglect during the course of raising his child?
  • Would African-American parents agree they should have a 50-percent chance of being investigated for child abuse or neglect during the course of raising a child?

There are real rights at stake from the moment of a referral to CPS onward. Government intervention in a family's life, no matter how well intentioned, comes with extraordinary power and authority. The broad reach of CPS investigatory authority also raises the secondary question whether limited resources are being effectively deployed to focus on children most in need of attention.

As we look to create change based on the reflections the pandemic has presented about our child welfare system, we propose a careful reassessment of the effectiveness of the current model of mandatory reporting. For example, training for reporters should include examples of what types of concern merit a referral to CPS and what concerns may be better addressed through supports that do not come with investigatory authority. Additionally, training and guidance should be shaped by legal professionals who understand the complexities of balancing concerns about child safety with rights to privacy and family integrity that belong to children and parents alike. Finally, careful attention should be paid to the outcomes of civil rights lawsuits challenging the constitutionality of child welfare investigations, including those that raise questions about qualified immunity for investigators, such as in the recent Sixth Circuit decision, Schulkers v. Kammer, 955 F.3d 520 (6th Cir. 2020).

Limiting Causes of Foster Care Entry

No one would suggest that in response to the pandemic we should remove children from all parents who have suffered from food insecurity, job loss, or housing instability. Yet national child welfare data suggest that these are precisely the reasons many children enter foster care each year. Here, too, exists a powerful reflection of our current system. In 2018, physical abuse accounted for 13 percent of all entries into foster care, while unstable housing accounted for 10 percent of cases. Another category, generally cited as "neglect," accounted for 62 percent of all entries. This category is often correlated with financial strain, food insecurity, and lack of access to child care—pressures that have become acute for almost all families in recent months.

When we emerge from the immediacy of the pandemic, we have a chance to handle these kinds of entry causes differently. Fred Wulczyn recently explained this by comparing the concept of "services" in the child welfare system with medical supplies for COVID-19 patients. As a result of the pressures falling on families from the pandemic, he explained social workers may soon "be faced with service demands for which there are no services, just as doctors face the possibility that their patients who need them will not have respirators."

Removing children from their families and placing them into foster care is not an ethical answer to the lack of services to help families address challenges such as food insecurity, lack of child care, or housing instability. Rather, the lack of services for families in need should be met with an increase in supports designed to meet those needs directly so that, if at all possible, the family remains intact.

There are several specific steps we can take to address this change in the legal field.

To begin treating cases differently, the legal concept of neglect should be separated from child abuse. There are times when neglect rises to the level of requiring removal from a family, but it is wrong to lump these two concepts—abuse and neglect—together as though they are coterminous. This also requires a system of support services built on trust in which mothers and fathers believe they can seek help and get it without the risk of losing custody of their children or losing connections to their extended family and natural community support system. Rebuilding trust in the provision of services and supports designed to help families is an especially critical issue for African-American families and immigrant families, who often fear engagement with public services. 

Service delivery should also incorporate access to legal services that support families facing adversarial proceedings in other legal contexts where basic human needs are at stake, such as proceedings involving shelter, sustenance, safety, health, or child custody. This is consistent with ABA Resolution 112A, which endorses a concept of civil Gideon, or the provision of legal counsel at public expense in proceedings where basic human needs are at stake. This ABA policy, adopted in 2006, has been cited widely in the legal field as a baseline of legal services support for basic human needs, the absence of many of which are root causes of foster care entry.

As an additional check on children's entry into foster care, attorneys for parents—and when appropriate, children—should be appointed as soon as an investigation into a family begins to ensure rights to family integrity are protected and services are provided and accessed as part of the responsibility to provide reasonable efforts to prevent the child's removal. If a child does need to be removed from the family, child and parent attorneys should continue to be a part of the full trajectory of the case, and resources should be invested to make sure all families receive legal representation that meets standards for high quality. The federal government has made tremendous advancements in this area by providing access to funding to help pay for the cost of child and parent counsel, as well as social workers and peer advocates, on a legal team. State child welfare agencies have an opportunity to build on this new federal support to invest in legal counsel and improve case outcomes.

Finally, judges overseeing dependency cases must ensure due process protections apply at all stages of the case and that all families are treated equally under the law. Judges have a responsibility at every point to assess whether a case should move forward, including at the point of foster care entry. As part of that responsibility judges should ask, "Would this case or its outcome be the same if the family were a different race?"

This is not only a question to ask internally; judges have an opportunity to educate others by asking this question openly of other participants in the proceedings who in turn can help address racism in the child welfare system more directly. In moving forward to create a better child welfare system, it is not enough for judges to just "call balls and strikes." Judges must hold everyone, including themselves, accountable to ensure institutional racism and implicit bias are not perpetuated. When judges see something, they must say something.

This is a unique moment. It is also a moment full of opportunity. We are learning about our abilities to change and adapt as a society to help ourselves and the common good. In the context of the child welfare system—a legal system that affects our fundamental interests in family relationships—changing and adapting is long overdue. Yet we have never had an opportunity for transformation like we do right now. We look forward to working in partnership with the broader field to seize this moment and all the possibility for change that comes with it.