In Child Welfare Cases, Most of Your Constitutional Rights Don't Apply

[WhiskeyGrinder]

https://www.propublica.org/article/some-constitutional-rights-dont-apply-in-child-welfare

Every year, child protective services agencies across the nation investigate the family lives of roughly 3.5 million children, or about 1 out of every 20 American kids.

In these cases, government officials frequently accuse parents of wrongdoing. They enter homes to conduct searches and interrogations, and what they find can be used against the parent by a state attorney in court. And the accused will face punishment — including, often, having their children removed from them indefinitely.

Child welfare cases, that is, operate a lot like criminal ones.

Yet the mostly low-income families who are ensnared in this vast system have few of the rights that protect Americans when it is police who are investigating them, according to dozens of interviews with constitutional lawyers, defense attorneys, family court judges, CPS caseworkers and parents.

“You get more due process protections when facing a couple months in jail than you do when you’re facing losing your kids forever,” said Josh Gupta-Kagan, founder and director of the Family Defense Clinic at Columbia Law School and an expert on civil liberties as they apply to child protective cases.

The right to remain silent, the right to a public jury trial, the right to face your accuser and so on are not recognized and enforced by the courts in the child welfare system, according to our interviews and a review of case law. Neither is the related ideal of “innocent until proven guilty” or the standard that guilt must be proven beyond a reasonable doubt.

[marybourg]

1. For good reason - the life of a child or children

is in your hands. A difficult but necessary calculation.

[WhiskeyGrinder]

2. I disagree. It's also not a calculation at all, but a legal gray area that is sorely under-studied

and misunderstood. The majority of child welfare investigations that identify victims are neglect cases, which are often simply tied to family poverty, and end up punishing people for being poor -- something that could be easy to solve, if we had the will.

[marybourg]

3. Everything you say is true.

But dealing with the actual world we live in, the right to remain silent and similar ordinary constitutional rights must take a back seat when child abuse or neglect is the issue and the life and future health of a children or children is at stake.

[WhiskeyGrinder]

4. Why?

[marybourg]

5. Because society in general has made that calculation;

a child’s life trumps my constitutional right to remain silent.

[WhiskeyGrinder]

6. That doesn't answer why, and it's not a calculation that's been made; it's happened because of the

way our legal and policing system has developed.

Why do *you* think a "child's life" trumps your constitutional rights?

[localroger]

7. Sorry, but if this is true then the Constitution is a dead letter printed on a roll of toilet paper

Our country was built on a bedrock of principles that the Founders knew would be difficult to maintain exactly because of arguments like this. Once you say "Due process is a great idea EXCEPT..." then you have just castrated the whole idea, no matter what the thing is that follows the word "except." See, for example, how well the whole "except for slavery" thing went.

[leftstreet]

21. +1

[peppertree]

8. What's worse, they need only three accusers to act

The accusers need not reveal their names to the accused - only to CPS.

In the Deep South, swatting families this way is a favorite means of settling scores (especially among Repug church ladies).

[Maraya1969]

9. Years ago I remember that case where a baby died from SIDS or something like that

And the one on trial was a young woman from England who was the nanny. When talking about that day she said she "Popped" the baby on the bed or couch. The prosecutor then hammered her about the word "Popped" and tried to make it seem like it was a reference to a violent act. They found her guilty and she just dropped to the floor saying something, "But I didn't"

Recently I have been watching the Great British Baking show and they use the word "Pop" as "Put" a lot! If it just an average expression over there.

So there is something to be said about staying silent until you receive legal counsel. (I realize this was during the trial and I don't remember what her lawyer did)

I remember being shocked at the guilty verdict. Somehow England was able to step in and get her back to her home.

[LuvLoogie]

10. The welfare of the child is the responsibility of the state.

It steps in when the parents are no longer the best protectors/promoters of that child's welfare.

The child is an individual with their own rights, a minor that is protected by civil society. It takes a village.

Families receive assistance, are subject to intervention and /or separation, depending on the circumstances. Parents might lose their autonomy, but it's in the context that the child has always been an individual with rights.

Teachers are often the front line reporters of potential abuse. I think most school systems have a mandate that they report suspected abuse. They receive training on awareness and reporting procedure. The resulting investigation determines whether any abuse has occured.

Mistakes are made, and sometimes children get separated unfairly. But it seems to me that their is more danger and tragedy arising from a lack of intervention than there is from overzealous investigation or intervention.

[WhiskeyGrinder]

11. .

The welfare of the child is the responsibility of the state.

If this is the case, then the state should follow its own rules when investigating.

It steps in when the parents are no longer the best protectors/promoters of that child's welfare.

Sometimes, sometimes not. The system is certainly weaponized, and families of some classes and races are disproportionately targeted.

Parents might lose their autonomy, but it's in the context that the child has always been an individual with rights.

A person could argue that when investigators don't get warrants to examine a child's room or body, they too are losing their rights.

But it seems to me that their is more danger and tragedy arising from a lack of intervention than there is from overzealous investigation or intervention.

The point is this is not "overzealous investigation." It's the process we have, and it routinely tramples people's constitutional rights without explicit permission to do so.

[LuvLoogie]

12. Intangibles notwithstanding, there is a cost

in time, energy, and commitment to getting every outcome right.

Any government system, e.g. child welfare, justice, education, health, is subject to the same breakdowns, whatever the cause, e.g. funding, bigotry, apathy, staffing, training, personnel screening, etc.

Civil society has recognized minors as individuals with Civil rights. Parents don't own their children. The society has to continue to improve its systems, adjusting to new information, analysis of data, redesigning infrastructure.

Child welfare steps in when the family unit fails or faulters, whatever the cause, e.g. substance abuse, income, health emergencies, etc.

Early intervention can often avoid many of the problems you cite. If the state comes to remove your children, chances are you fucked up or your state's welfare system didn't help you enough to avoid crisis and the breakdown of your mental ability to cope.

If someone is weaponizing the system against you, then severe prosecution of that person or persons is warranted. I understand that system abuse can occur by those running the systems. Severe prosecution is warranted then, as well.

Child welfare doesn't deal with root cause intervention. It is a salvage operation that focuses on the health and safety of the child. It is the parent's responsibility to show competence, and will have to jump through the hoops the state sets. Whether that's seeking substance abuse treatment, applying for medicaid, food assistance,etc.

[Kaleva]

13. Having been a foster parent, I feel many adults shouldn't be parents

I feel bad for the kids who really don't have much of a chance because of their parents.

[WhiskeyGrinder]

15. That can be true while also acknowledging that parents shouldn't have their rights trampled.

[Kaleva]

18. From my experience, parents are given many chances

However, my experience cannot be considered indicative of the entire system.

Foster parenting and working in child protective services is a very tough job with few positive outcomes.

[Fla_Democrat]

14. Well... if it saves one child....

Well, if it saves one child.. isn't it worth giving up some of your so called 'precious rights'?

[Takket]

16. interesting......

so your rights don't apply because this isn't a criminal proceeding and your freedom is not at stake. but as the article noted losing your kids is a worse punishment then time in jail. Seems like it isn't unreasonable to at least expect a warrant if someone is going to be allowed into your home to go through your things. that would require a LOT of judges though of how many searches they are conducting.

[Ms. Toad]

17. First off - I agree that the system is broken - and disproportionately deprives

parents who are poor or minority of the right to parent their children.

But the analysis quoted is flawed.

The right to remain silent, have a jury trial, be presumed innocent, and to face their accuser are criminal concepts. These rights are specific to the potential for a criminal conviction. Child welfare cases are civil.

It is accurate to say that the right to due process isn't uniform across all legal matters. Parents do have a right to due process before they are deprived of their fundamental right to parent. That's the first step in a due process analysis. The second is to evaluate the what process is due - and what process is due isn't identical to the process due for a deprivation of liberty. As a general rule, there must be a fact-finding hearing - and proof by clear and convincing evidence of parental neglect (more than the typical civil matter - which only requires preponderance of the evidence).

The fact that due process rights associated with termination of parental rights are different from those associated with deprivation of liberty doesn't inherently mean the parent's constitutional rights don't apply. It is simply that there are express constitutional rights which apply in criminal matters that don't apply in matters of parental rights.

That doesn't mean that the system works well. It doesn't mean that being poor or non-white - as a practical matter - means you are more likely to have your parental rights terminated. It just means that the approach to solving this real problem isn't applying the criminal standards to parental termination isn't the answer.

We need better support systems for parents in need (child care, housing, health care, etc.). They need to be systems which parents whose rights are most likely to be abused are willing to use to provide care for their children - in other words they need to be designed with the input of those who may need the services. And our courts and police need extensive education as to what constitutes a real danger to children - rather than treating different cultural norms as inherently dangerous.

[Kaleva]

19. Getting off drugs would help many parents

From my experience as a foster parent, substance abuse by the parents was the most common issue .

[Ms. Toad]

23. That doesn't address the disparity with which children are removed

from rich white families at a rate far lower than they are removed from poor families or families of color.

[Kaleva]

24. The kids from rich families probably arent severely malnourished

My wife and I became foster parents for a 5 week old who was severely malnourished. The parents were on drugs and not feeding the infant enough. We had her for two years and is reunited with her father who got his act together after a stint in jail. The mother is out of the picture, has no interest in having a relationship with her child and had spent time in prison on unrelated charges.

If the parents have severe substance abuse problems, it's unlikely they are financially well off.

[Ms. Toad]

25. The point isn't whehter individual poor/minority children

might need to be removed from their families - but that the process disproportionately removes poor and non-whilte children from their families under circumstances in which richer, white children would not have been.

It is a lot more subtle now - and in some instances may be unconscious built-in biases (of the sort which is embedded in laws which imposed far more severe sentences for the use of crack (the drug more frequently used by poor minorities) than equivalent quantities of cocaine (the drug more frequently used by rich white folks).

But it is, in a very real sense, an extension of the deliberate anglicization of native children in the 50s by removing them from their native families and placing them in white families.

My parents were inadvertently part of this theft - thinking they were giving a home to children who had none. My older brother was taken from his mother, a member of the Omaha nation. His mother was an alcoholic, but he was well nourished when he came to us and we have since learned he was well nourished and cared for by extended family when his mother was unable to do so. He would never have been taken from his family had he been white.

We were told, initially, that my younger brother and sister were abandoned in a grocery store with their siblings. We have fewer objective details about their removal from their Lakota mother, but we have since learned that they were not abandoned.

This removal of native americans to white famlies was formal Anglicization policy at the time my siblings were torn from their communities. While it is no longer formal policy, it is still happening in poor/minority comminities because of biases which are built into the system about how children should be raised, becasue of lack of resources to support families who simply lack the financial resoures to support their families, and because of the lack of resources to hire attorneys to fight termination of the family relationship.

That doesn't mean that there wasn't individual justificiation to remove some of the children poor/minority children from their families - simply that as a system, a disproportionate number of poor/minority children are permanently separated from their families under circustances under which minority/white children would not be.

[Kaleva]

26. The rules are different for Native American children

We were told that if we ever had a Native American child in our care and some adult from the child's tribe showed up and they said they were going to take the child and care for him or her, we were to give up the child and then contact the case worker . Caring for a Native American child was only very temporary until someone in the tribe volunteered to take the child .

[Ms. Toad]

27. The rules are different BECAUSE of the express program of removing native children

from their families. Those rules changed long after my siblings were taken after a long fight by native american commuities. My siblings, and countless others, were permanently removed from their faminies and communities.

The point is that we are currently doing the same thing, albeit less methodically, with poor and minority children - and we need to recognize what we are doing and address it.

[Kaleva]

28. How often do you hear of a naked 3 year old girl found in a ditch

whose family was financially well off?

This was a case a few years ago not far from where I live. The parents were whacked out and didn't know that their little daughter had left the house in cold weather .

These parents had an extensive history with CPS but after this, they lost custody of all their children

In Michigan, the safety and welfare of the child or children has to be at high risk before the child is removed.

[shrike3]

20. I don't know how it is in all states.

But in mine, family reunification is top priority. Very, very rare that kids get taken away for good. No real solutions, either way. In the town next to mine, a boy was taken from his mother because Mom was sexually abusing him. He was given to his father, who eventually killed him. OTOH, my social worker friends have told me how hard it is to find good foster parents. The operative word here "good."

[leftstreet]

22. DURec