Excerpted From: Josh Gupta-Kagan, Confronting Indeterminacy and Bias in Child Protection Law, 33 Stanford Law and Policy Review 217 (September, 2022) (Footnotes) (Full Document)


JoshGuptaKaganThe child protection legal system is at an inflection point. A growing family defense movement fights against state efforts to separate parents from their children. Calls to abolish foster care, analogous to calls to abolish prisons and police, have grown among advocates and academics. Government officials from multiple administrations have cited the need for a dramatic change to, and racial justice in, child protection practice. Federal funding rules now emphasize preventing family separations rather than funding foster care after such separations occur. The very name of the system is subject to renewed debate, with advocates urging use of the “family regulation” or “family policing” system in place of “child welfare.” And calls for reforming the legal (and mostly statutory) structure governing state child protective intervention in families have grown, with discrete successes in several state legislatures.

These demands for change follow at least two long-standing critiques of child protection cases which reach family court and separate families. First, child protection law is substantively indeterminate; instead of precisely prescribing when state child protective services (CPS) agencies can intervene in family life and what that intervention should entail, the law grants agencies and family courts wide discretion to regulate and separate families. Second, that wide discretion permits biases (implicit or explicit) to inform decisionmaking, and the present child protection system has long been criticized for perpetuating racial, class, and other forms of injustice. Dorothy Roberts famously described the present system this way: “If you came with no preconceptions about the purpose of the child welfare system, you would have to conclude that it is an institution designed to monitor, regulate, and punish poor Black families.” That is, the indeterminacy at the heart of child protection law is a tool that empowers state authorities to exercise control of low-income and minority families.

This Article extends these critiques through a granular analysis of child protection cases. This analysis demonstrates how the law's indeterminacy builds through the life of a case and is not limited to the definitions of neglect and removal standards that were the focus of past indeterminacy critiques. In particular, little or no legal tie exists between different types of maltreatment and different interventions. In most states, any kind of neglect or abuse leads to placement of the parent on a child abuse or neglect registry--regardless of any nexus between the maltreatment and future risk to child if that parent works in child care. Any kind of neglect or abuse can lead to any disposition; unlike criminal law (and, increasingly, juvenile delinquency law), there is no legal tie between the type of misconduct and the punishment. Any adjudicated child maltreatment leads to an evolving case planning process in which the steps a parent must take to reunify need not be tethered to the maltreatment which courts adjudicated. Legal obligations on the state to work to keep families together are so vague in substance and weak in practice that states can and do spend tens of thousands of dollars taking care of children they have removed from parental custody after failing to spend similar sums keeping families together.

When children have extended foster care placements under indeterminate legal standards, the law uses some limited determinate standards to push cases toward permanent family destruction. In particular, the law includes a presumption of seeking termination of parents' and children's legal relationships when children have remained in foster care for fifteen months, and a preference for adoptions (which generally require terminations) over guardianships (a new family arrangement that does not require terminations). These determinate standards have often lacked empirical support and serve to increase state intervention into constitutionally-protected family life.

A legislative agenda to transform the child protection system has begun to emerge, but only piecemeal and without comprehensively addressing the indeterminacy in the present legal structure. Various discrete reforms have been enacted in a small number of states, such as slightly narrowed definitions of neglect, and somewhat strengthened procedural protections for parents who challenge their placement by CPS agencies on child neglect and abuse registries. Congress has revised federal law to encourage state CPS agencies to invest in “prevention” activities. The Stronger CAPTA (Child Abuse Prevention and Treatment Act), passed by the U.S. House in March 2021 and pending in the Senate, nods in the direction of the two critiques, providing funding to study the causes and solutions for racial inequality in the child protection legal system, “including how neglect is defined.” In perhaps the most important development, family defense offices have strengthened and the federal government has invested more money in such offices, which emerging research suggests leads to improved outcomes for the entire system. However, comprehensive legislative reform to confront the indeterminacy that reigns in child protection cases and the bias it permits has not yet crystalized.

This Article seeks to expand the agenda for a transformed system to include determinate substantive standards that tether the type of intervention to the type of maltreatment and thus mitigate the potential for inconsistent and biased decisionmaking by agencies and courts. An expanded agenda begins with a goal of limiting state intervention in families to severe cases of child maltreatment, which the law should define more precisely. Family separations should only follow intensive efforts to keep families safely together, a standard the law should define more meaningfully than at present. When CPS agencies do intervene, the specific form of maltreatment found should limit the nature and duration of the intervention which may follow, and the law should not permit an evolving set of concerns to keep families separated indefinitely. State action to terminate the legal relationship between parents and children should be limited to situations in which any form of parent-child relationship is harmful to the child, not, as in current law, used when arbitrary time limits are reached or to facilitate the adoption of foster children by new parents when other family arrangements are possible.

Some of these recommendations are ambitious enough that they can only be outlined here--such as precisely delineating different forms of neglect and abuse and tying those forms to different dispositions with a specificity on par with the criminal code. Other proposals are easy enough to explain, but bold in their implications for the legal system--such as the principle that states should expend at least as much money on helping families stay together and reunifying them as they would on maintaining children in foster care, thus ending the disturbing disparities in which states pay foster parents generous monthly stipends after refusing to do the equivalent for parents struggling to take care of their children.

There are several things these proposals do not do. First, they do not eliminate the present child protection legal system. Rather, they seek to focus that system and its most severe interventions on the most harmful forms of maltreatment that system is designed to address. Second, they do not design the alternative structures that would be necessary to provide voluntary and supportive assistance to families outside of the child protection system; that essential work has begun in other forums and must continue. This Article focuses instead on steps needed to narrow the existing system, and, when CPS agencies bring families to court, better regulate agency and family court discretion.

Part I of this Article examines one recent case which illustrates the problems of the legal status quo. The indeterminacy of child protection law allowed a case that began with a low-income mother's inadequate child care to separate a family for an evolving host of reasons that bore little connection to the initial grounds for intervention, and with the state spending more money to keep the family separate than to help the mother with child care arrangements. Timeline pressures ultimately led to the permanent and unnecessary destruction of a family. Part II describes and critiques the indeterminacy at the heart of child protection law and the harms it causes. Part III explores current proposals for changes to this system, and how a comprehensive agenda for addressing indeterminacy remains lacking. Part IV outlines proposals for a more determinate system that limits the situations when CPS agencies and family courts may intervene in families and what that intervention may entail.

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The child protection field features significant momentum building for significant change. The time is thus ripe to address longstanding critiques of the child protection legal structure--the indeterminacy of most substantive rules in the child protection system, and the bias that indeterminacy permits throughout child protection cases. In addition, several of the (few) determinate rules that have developed over the years do not align with empirical evidence and the fundamental value of protecting parents' and children's relationships.

Building on past critiques of the child protection legal system, this Article demonstrates how substantive indeterminacy throughout the law can build on itself. Vague grounds for state intervention in family life mixes with wide discretion to determine which children to separate from parents, what to require of parents to reunify, and whether and when to reunify--permitting unnecessarily invasive state action.

The present moment calls for changes throughout the life of a child protection case, establishing determinate standards which limit state interventions to situations where they are truly necessary to protect children, and changing determinate standards that permit more interventions than necessary. Such changes, coupled with the growth of family defense and other changes in the legal system, can help create a transformed child protection system that is much better able to protect children from severe neglect and abuse while better respecting family integrity.

Professor of Law, University of South Carolina School of Law.