University of Baltimore Law
ScholarWorks@University of Baltimore School of Law
++!#3+26#(.+!01()/ !#3+26#(.+!01()/
e Harm of Child Removal
Shanta Trivedi
University of Baltimore School of Law120)4%$)3"!+2%$3
.++.52()1!-$!$$)2).-!+5.0*1!2 (9/11#(.+!05.0*1+!53"!+2%$3!++ &!#
!02.&2(% !,)+6!5.,,.-1
8)102)#+%)1"0.3'(22.6.3&.0&0%%!-$./%-!##%11"62(%!#3+26#(.+!01()/!2#(.+!0.0*1-)4%01)26.&!+2),.0%#(..+.&!52(!1"%%-
!##%/2%$&.0)-#+31).-)-++!#3+26#(.+!01()/"6!-!32(.0)7%$!$,)-)120!2.0.&#(.+!0.0*1-)4%01)26.&!+2),.0%#(..+.&!5.0,.0%
)-&.0,!2).-/+%!1%#.-2!#2 (,.00%++3"!+2%$3
%#.,,%-$%$)2!2).-
(!-2!0)4%$) e Harm of Child Removal %5.0*-)4%01)26%4)%5.&!5.#)!+(!-'%
4!)+!"+%!2 (9/11#(.+!05.0*1+!53"!+2%$3!++ &!#
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
523
THE HARM OF CHILD REMOVAL
SHANTA TRIVEDI
¥
ABSTRACT
When the state proves or even merely alleges that a parent has abused or
neglected a child, a court may remove the child from the parent’s care. However,
research shows separating a child from her parent(s) has detrimental, long-term
emotional and psychological consequences that may be worse than leaving the
child at home. This is due to the trauma of removal itself, as well as the unstable
nature of, and high rates of abuse in, foster care. Nevertheless, the child welfare
system errs on the side of removal and almost uniformly fails to consider the harms
associated with that removal. Only two jurisdictions require courts to consider the
harms that will occur when a child is taken from her family. And while recent
federal law recognizes the importance of family preservation and the negative ef-
fects of separation, it does not solve the problem by itself. This article is the first
to comprehensively examine why the harm of removal should be a featured part
of every child welfare decision. After doing so, it continues to analyze existing law
and legal practices to demonstrate how consideration of the harms of removal can
be built into existing legal frameworks to achieve the stated purpose of the child
welfare system and truly protect our children.
¥
Shanta Trivedi is a Clinical Teaching Fellow in the University of Baltimore Bronfein Family
Law Clinic. This article is dedicated to the extraordinary attorneys of the Brooklyn Defender Ser-
vices Family Defense Practice, particularly Lauren Shapiro and Lynn Vogelstein, who first intro-
duced me to the harms inflicted by the child welfare system and taught me how to fight against them.
I am forever indebted to the faculty at the University of Baltimore School of Law’s Clinical Law
Program for their tremendous support and inspiration, especially Margaret E. Johnson for her
thoughtful and exceptional guidance throughout this process and Michele E. Gilman for her insight
and advice. Thank you also to Ann Shalleck and my colleagues at the NYU Clinical Writers’ Work-
shop for their helpful feedback at the early stages of the writing process, and my peers at the Asso-
ciation of American Law Schools Conference on Clinical Legal Education Works in Progress Work-
shop for their contributions at the end. To Matthew I. Fraidin, thank you for giving me the idea to
explore this topic that is so important to me. Thank you to Marty Guggenheim for taking the time to
review this article. Also, huge thanks to Tarek Ismail, for generously sharing your statutory research
and to Samuel Draper, Brett Smoot, and especially Katherine Haladay for their tremendous research
support. To my N.Y.U. Review of Law & Social Change editorial team, Cody Cutting, Joanna R.
Loomis, and Molly Griffard—you are all wise beyond your years. To my parents and Nirad &
Cheryle, thank you for your lifelong support. And finally, to Somil, Dylan, and Serena, thank you
for your unconditional love and patience (and excellent in-house editing).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
524 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
I. INTRODUCTION ...............................................................................................525
II. WHAT IS THE HARM OF REMOVAL? ..............................................................527
A. Emotional and Psychological Harms ........................................................527
1. Separation and Attachment Disorders ....................................................528
2. Trauma Inherent in the Act of Removal .................................................531
3. Grief and Confusion Due to Separation from One’s Family ..................532
4. Unique Harms for Minority Children .....................................................534
B. Harms of Foster Care .................................................................................541
1. Abuse and Neglect in Foster Care ..........................................................542
2. Foster Care Placement Instability ...........................................................544
3. Physical and Sexual Health Problems ....................................................546
4. Mental Health Effects and Consequences of Foster Care Placement .....549
5. Long-Term Outcomes for Foster Children .............................................550
III. HOW THE LAW CONTRIBUTES TO HARM .....................................................552
A. The First Child Removals .........................................................................552
B. The States’ Legal Interests in Protecting Children ....................................555
C. Federal Intervention ...................................................................................557
D. How Removals Are Conducted Without Consideration of Harm of
Removal .....................................................................................................560
E. Reasonable Efforts Statutes That Do Not Incorporate the Harm of Removal
...................................................................................................................562
IV. HOW THE LAW CAN HELP CHILDREN ..........................................................563
A. The Right to Family Integrity ....................................................................563
B. New Federal Law .......................................................................................565
C. Helpful State Statutes Regarding Reasonable Efforts to Prevent Removal
...................................................................................................................566
D. Jurisdictions That Get It Right ..................................................................567
1. The District of Columbia ........................................................................568
2. New York ...............................................................................................569
V. RECOMMENDATIONS .....................................................................................571
A. Federal Consideration of Harm of Removal .............................................572
B. State Consideration of Harm of Removal ..................................................573
C. Judicial Decision-Making ..........................................................................576
D. Lawyers’ Advocacy ...................................................................................577
VI. CONCLUSION ................................................................................................579
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 525
I.
INTRODUCTION
In a recent case in New York, a mother came under investigation when she
took her then six-week-old son, Kaden, to the hospital with head injuries.
1
New
York City’s Administration for Children’s Services (“ACS”) became involved af-
ter a doctor at the hospital concluded that Kaden’s injuries were inconsistent with
his mother’s explanation.
2
Kaden was removed from his mother’s care, as was his
nine-year-old sister Rihana.
3
Since the children had different fathers, the siblings
were also initially separated from each other.
4
Rihana was placed in the care of
her father—with whom she had previously only experienced weekend visitation.
5
Following the separation from her mother and brother, Rihana’s emotional
state deteriorated. She started having problems in school and even threatened to
harm herself if not returned to her home.
6
Her therapist observed that she had
“regressed to where she had been two years prior.”
7
Although she showed some
improvement after being moved from her father’s home to her grandmother’s, Ri-
hana, through her attorney, kept begging to come home to her mother.
8
In an in
camera interview, “Rihana expressed to the Court her desire to return home to her
mother and that she is sad to be away from her.”
9
For Rihana, the harm of removal
was extremely high.
Recent uproar about the separation of immigrant children from their parents
at our southern border has led to an outpouring of information from the medical
community about the horrifying effects that family separation has on children.
10
Doctors say family separation yields “catastrophic” results, with the trauma of be-
ing taken from one’s parents having long-term effects on children’s brains.
11
Over
13,000 mental health professionals signed a petition which states that “[t]o pretend
1. In re Rihana J.H., No. NA-XXXX-16, 2017 WL 890526, at *1 (N.Y. Fam. Ct. Feb. 23,
2017).
2. Id.
3. Id.
4. See id. at *1–2.
5. Id. at *1.
6. Id.
7. Id. at *5.
8. See id. at *3–5.
9. Id. at *3.
10. See, e.g., Press Release, Colleen Kraft, Am. Acad. of Pediatrics, AAP Statement Opposing
Separation of Children and Parents at the Border (May 8, 2018) [hereinafter Kraft],
https://www.aap.org/en-us/about-the-aap/aap-press-room/Pages/StatementOpposingSeparationof
ChildrenandParents.aspx [https://perma.cc/25QX-B2ZA]; see also William Wan, What Separation
from Parents Does to Children: ‘The Effect Is Catastrophic,’ WASH. POST (June 18, 2018),
https://www.washingtonpost.com/national/health-science/what-separation-from-parents-does-to-
children-the-effect-is-catastrophic/2018/06/18/c00c30ec-732c-11e8-805c-4b67019fcfe4_story
.html?noredirect=on&utm_term=.28fb9b1e08f8 [https://perma.cc/7N85-CLEP].
11. Wan, supra note 10.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
526 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
that separated children do not grow up with the shrapnel of this traumatic experi-
ence embedded in their minds is to disregard everything we know about child de-
velopment, the brain, and trauma.”
12
The American Association of Pediatrics
noted that family separation “can cause irreparable harm, disrupting a child’s brain
architecture and affecting his or her short- and long-term health. This type of pro-
longed exposure to serious stress—known as toxic stress—can carry lifelong con-
sequences for children.”
13
This information, while disturbing, is not new. Study after study demonstrates
that children also suffer complex and long-lasting harms when they are removed
from their parents and placed into foster care. Yet, in most states, courts consider
only whether a child is at risk of harm if she remains in her parents’ care, without
factoring in the harm that results from the alternative—removing that child from
her home and her family. Due to the child welfare system’s long history of erring
on the side of removal, taking children from their parents is widely considered the
better and safer course of action. There are certainly cases in which removal may
be necessary. But in two jurisdictions, courts are required to consider the whole
picture, including the harm of removal, before coming to that conclusion. Further,
recent federal law demonstrates recognition of the dangers of taking children from
their families and may signal a broader shift back towards prioritizing family
preservation.
This article explores how the child welfare system’s stated goal of protecting
children would be better served if all involved parties utilized information about
the harm of removal when making decisions. This includes passing legislation;
allocating funding; considering removals; and lawyers advocating for clients in an
effort to keep their families together. This paper argues that consideration of the
harm of removal would allow the child welfare system to better serve children by
contemplating all potential harms prior to removal and balancing them to deter-
mine what is really in a particular child’s best interest—removal or remaining at
home.
Part II highlights some of the many harms that result from child removal.
These include emotional, societal, and cultural detachment, as well as the myriad
negative outcomes flowing from placement into a broken foster care system.
Part III identifies how our culture and laws have contributed and continue to
contribute to the harm suffered by children by disregarding the adverse conse-
quences of removal.
Part IV demonstrates areas where existing law protects children by recogniz-
ing the right to family integrity and requiring consideration of the harms of child
removal.
12. Petition from Mental Health Professionals: Stop Border Separation of Children from Par-
ents!, CHILD’S WORLD AM., https://childsworldamerica.org/stop-border-separation/stop-border-sep-
aration-text-preview/ [https://perma.cc/38TA-6NHS] (last updated June 22, 2018, 9:40 AM).
13. Kraft, supra note 10.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 527
Part V makes recommendations for improvements to the current system as
applied to the harms of child removal. First, Congress could increase the amount
of funding available to protect children. Second, state legislatures could mandate
that the harm of removal be considered by judges and the state. Third, judges could
construe existing law to require consideration of the harm of removal in abuse and
neglect proceedings. Fourth, lawyers in family court proceedings can raise facts
about the harm of removal, providing judges with the information necessary to
assess whether the harm of removal from parents outweighs the harm of staying
with them.
II.
WHAT IS THE HARM OF REMOVAL?
The “harm of removal” is a blanket term used in the child welfare system for
the multiple ways a child may be negatively impacted by separation from her fam-
ily and placement into foster care.
14
It conveys a recognition that “[r]emoval and
placement in foster care may have a worse impact on the child than neglect.”
15
Notably, while the term is phrased in the singular—“harm”—there is no single
“harm” of removal, but rather numerous independent and overlapping “harms.”
Hence, this Part discusses some, though certainly not all, of the harms that arise
when a child is removed from the care of her parents due to proven or suspected
abuse or neglect.
While the accepted wisdom is that removal is the better option for a child in
a potentially abusive or neglectful home, research demonstrates that this is not
always true. In fact, the bond between children and their parents is extremely
strong and disrupting it can be even more damaging to a child—even when her
parents are imperfect.
A. Emotional and Psychological Harms
The child welfare system frequently underestimates and undervalues the neg-
ative impact on a child who is removed from her family.
16
Substantial evidence
14. See, e.g., Removals from Parents and Caretakers in Child Welfare Cases, Oversight Hear-
ing Before the Comms. on Justice Sys. & Gen. Welfare 4–5 (N.Y.C. 2018) (statement of Lauren
Shapiro, Director, Family Defense Practice, Brooklyn Defender Services), http://bds.org/wp-con-
tent/uploads/BDS-City-Council-Testimony-on-Family-Separation-Final-1.pdf
[https://perma.cc/BN46-69RF]; Theo Liebmann, What’s Missing from Foster Care Reform? The
Need for Comprehensive, Realistic, and Compassionate Removal Standards, 28 HAMLINE J. PUB. L.
& POL’Y 141, 155, 175 n.126 (2006); Jane Spinak, When Did Lawyers for Children Stop Reading
Goldstein, Freud and Solnit? Lessons from the Twentieth Century on Best Interests and the Role of
the Child Advocate, 41 FAM. L.Q. 393, 407 (2007); Richard Wexler, Take the Child and Run: How
ASFA and the Mentality Behind It Harm Children, 13 U.D.C. L. REV. 435, 444 (2010).
15. Rebecca Bonagura, Redefining the Baseline: Reasonable Efforts, Family Preservation,
and Parenting Foster Children in New York, 18 COLUM. J. GENDER & L. 175, 196 (2008).
16. See Douglas F. Goldsmith, David Oppenheim, & Janine Wanlass, Separation and Reuni-
fication: Using Attachment Theory and Research to Inform Decisions Affecting the Placements of
Children in Foster Care, 55 JUV. & FAM. CT. J. 1, 6 (2004).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
528 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
supports the notion that children suffer considerable trauma when they are sepa-
rated from their parents.
17
Indeed, studies show—and some courts have agreed—
that the damage caused by removal from one’s parent “may be ‘more damaging to
the child than doing nothing at all.’”
18
The problem is that the majority of courts
in America are not required to consider that possibility when determining whether
to remove a child from her parents.
19
1. Separation and Attachment Disorders
The concept that separating children from their families has adverse develop-
mental and biological consequences is hardly new.
20
As early as the 1940s, studies
exposed negative effects on children separated from their parents.
21
“Attachment
theory” suggests that emotional distress and later problems such as aggression and
depression can be attributed to early childhood disruption of the parent-child
bonding process.
22
One of the earliest studies in this area found that foster children
placed in institutional settings showed high rates of “hostile aggressiveness,”
“temper tantrums,” “enuresis [bedwetting],” “speech defects,” “attention demand-
ing behavior,” “shyness and sensitiveness,” “difficulties about food,” “stubborn-
ness and negativism,” “selfishness,” “finger sucking,” and “excessive crying.”
23
Due to their psychological attachments, children may long to return to their
biological families after being placed with a foster family, even when their bio-
logical families previously mistreated them,
24
and they may benefit from main-
taining familial connections.
25
Psychologists warn that “[p]rofessionals seem to
ignore that for the child, the maltreating parents are the only parents he or she has,
and that any separation, particularly if long and abrupt, will evoke strong and pain-
ful emotional reactions.”
26
In one study, a child participant stated that he did not like his foster parent
simply because “it wasn’t my mama, my real mama.”
27
Another child exclaimed,
17. See, e.g., Lynn F. Beller, When in Doubt, Take Them out: Removal of Children from Vic-
tims of Domestic Violence Ten Years After Nicholson v. Williams, 22 DUKE J. GENDER L. & POL’Y
205, 216 (2015).
18. Id. (quoting Nicholson v. Williams, 203 F. Supp. 2d 153, 204 (E.D.N.Y. 2002)).
19. See discussion infra Section III.D.
20. Delilah Bruskas & Dale H. Tessin, Adverse Childhood Experiences and Psychosocial
Well-Being of Women Who Were in Foster Care as Children, 17 PERMANENTE J. 131, 138 (2013).
21. See, e.g., Lawson G. Lowrey, Personality Distortion and Early Institutional Care, 10 AM.
J. ORTHOPSYCHIATRY 576, 585 (1940); see also Frank C. P. van der Horst & René van der Veer,
Loneliness in Infancy: Harry Harlow, John Bowlby and Issues of Separation, 42 INTEGRATIVE
PSYCHOL. & BEHAV. SCI. 325, 326–27 (2008).
22. Miriam R. Spinner, Maternal-Infant Bonding, 24 CANADIAN FAM. PHYSICIAN 1151, 1151
(1978).
23. Lowrey, supra note 21, at 579.
24. See Goldsmith, Oppenheim, & Wanlass, supra note 16, at 1–2.
25. See Susan L. Brooks, The Case for Adoption Alternatives, 39 FAM. CT. REV. 43, 47 (2001).
26. Goldsmith, Oppenheim, & Wanlass, supra note 16, at 6.
27. Jason B. Whiting & Robert E. Lee III, Voices from the System: A Qualitative Study of
Foster Children’s Stories, 52 FAM. REL. 288, 292 (2003).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 529
“[F]oster care is just sick! . . . You get taken away from your parents. It ruins your
life! Your heart is totally destroyed, and the only thing that is left working in your
body is your brain. . . . That is why I want out of this foster care right now.”
28
These statements evidence the heart-wrenching effects of separation.
Newborns are often removed by child protective agencies
29
without regard
for the fact that they suffer significant negative effects when taken from their par-
ents, and especially when taken from their mothers.
30
Studies show that newborns
prefer the sound of their mothers’ voice over those of other females, which doctors
see as evidence that the period after birth is critical for bonding.
31
It is also now
widely accepted that skin-to-skin contact between parents and their babies in the
first hours of life has significant health benefits for the infant.
32
Physical contact
and proximity to their parents is therefore crucial for infants.
The newborn experience is extremely important in the context of the current
nationwide opioid crisis. When a newborn tests positive for illegal drugs at birth,
or even methadone used in the treatment of opioid addiction, the mother may be
criminally prosecuted and the child welfare system almost always removes the
baby soon after birth.
33
Dr. Ron Abrahams, medical director of perinatal addic-
tions at B.C. Women’s Hospital in Vancouver, believes that the symptoms ob-
served in such children after birth, and alleged to be signs of withdrawal justifying
removal, are often confused with the stress of separation from the baby’s mother.
34
28. Id.
29. See, e.g., Bower v. Lawrence Cty. Children & Youth Servs., 964 F. Supp. 2d 475, 478,
481 (W.D. Pa. 2013) (Children and Youth Services took newborn into custody when “[m]other tested
positive for opiates at child’s birth”); In re Arianna M., No. D066178, 2014 WL 7463151, at *1 (Cal.
Ct. App. Dec. 31, 2014) (“[Newborn] was detained at the hospital at her birth by the San Diego
County Health and Human Services Agency . . . as a result of her mother’s admitted methampheta-
mine use.”); M.L. v. Super. Ct. of Ventura Cty., 90 Cal. Rptr. 3d 920, 926 (Ct. App. 2009) (holding
that newborn was properly detained at the hospital where “the newborn was 24 hours old and had
been exposed to drugs during gestation. Mother had received little prenatal care and, one year earlier,
had exposed another child to drugs during gestation.”); In re Welfare of Frederiksen, 610 P.2d 371
(Wash. Ct. App. 1979) (holding that Department of Social and Health Services rightfully performed
their duty by removing the child from its mother at birth).
30. See generally Kimberly Howard, Anne Martin, Lisa J. Berlin, & Jeanne Brooks-Gunn,
Early Mother-Child Separation, Parenting, and Child Well-Being in Early Head Start Families, 13
ATTACHMENT & HUM. DEV. 5 (2011)).
31. Anthony J. DeCasper & William P. Fifer, Of Human Bonding: Newborns Prefer Their
Mothers’ Voices, 208 SCI. 1174 (1980).
32. E.g., Jeannette T. Crenshaw, Healthy Birth Practice #6: Keep Mother and Baby To-
gether—It’s Best for Mother, Baby, and Breastfeeding, 23 J. PERINATAL EDUC. 211 (2014); see also
Jeanne Pigeon Turenne, Marjolaine Héon, Marilyn Aita, Joanne Faessler, & Chantal Doddridge,
Educational Intervention for an Evidence-Based Nursing Practice of Skin-to-Skin Contact at Birth,
25 J. PERINATAL EDUC. 116 (2016).
33. Olga Khazan, Into the Body of Another, ATLANTIC (May 8, 2015), https://www.theatlan-
tic.com/health/archive/2015/05/into-the-body-of-another/392522/ [https://perma.cc/9AWJ-TT44].
34. Kristin Nelson, Idella Sturino, & Julie Crysler, Separating Newborn Babies from Mothers
with Addiction Does More Harm Than Good, Says Doctor, CBC RADIO: CURRENT (Mar. 13, 2018),
http://www.cbc.ca/radio/thecurrent/the-current-for-march-13-2018-1.4572942/separating-new-
born-babies-from-mothers-with-addiction-does-more-harm-than-good-says-doctor-1.4572982
[https://perma.cc/TF2P-S6XA].
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
530 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
Similarly, Dr. Joshua Sharfstein, a pediatrician and professor at the Johns Hopkins
Bloomberg School of Public Health, argues that babies who are removed from
their mothers based on the mother’s drug use during pregnancy actually tend to
fare worse, not better.
35
He has cautioned against repeating the mistakes of what
he calls the “crack baby panic,” when children were removed from their mothers
based on positive drug tests, yet suffered no long-term developmental issues re-
lated to their mothers’ prenatal drug use.
36
Dr. Matthew Grossman, assistant pro-
fessor of pediatrics and hospitalist at Yale New Haven Hospital, found that babies
who were allowed to spend more time with their mothers had shorter periods of
withdrawal symptoms than those who were isolated and treated pharmacologi-
cally.
37
Hospitals experimenting with “rooming in” programs, whereby babies are
allowed to stay with their mothers instead of being placed in the neonatal intensive
care unit, have consistently affirmed these findings.
38
Yet the child welfare system
remains ignorant to these lessons.
The ongoing immigrant family separation crisis highlights the experience of
separation anxiety. Even after being reunited, children who had been forcibly sep-
arated from their parents at the border demonstrated anxiety when their parents
left the room for brief periods, even to take a bath.
39
One child refuses to go to
school for fear of being torn from his mother again, and another will only sleep if
she is safe in her mother’s arms.
40
Thus, evidence of separation anxiety and at-
tachment disorders in the context of family separation at the border provides a
35. Robert Siegel & Joshua Sharfstein, For Newborns Exposed to Opioids, Health Issues May
Be the Least of Their Problems, NAT’L PUB. RADIO (June 30, 2017, 4:00 PM),
https://www.npr.org/sections/health-shots/2017/06/30/534911289/for-newborns-exposed-to-opi-
oids-health-issues-may-be-the-least-of-their-problems [https://perma.cc/W9QQ-7BKD].
36. Id.
37. Christopher Hoffman, More Mom, Fewer Drugs, YALE MED. MAG. (2016),
http://ymm.yale.edu/spring2016/news/chronicle/297566/ [https://perma.cc/CUD8-K2PX].
38. E.g., Alison Volpe Holmes, Emily C. Atwood, Bonny Whalen, Johanna Beliveau, J. Dean
Jarvis, John C. Matulis, & Shawn L. Ralston, Rooming-in to Treat Neonatal Abstinence Syndrome:
Improved Family-Centered Care at Lower Cost, 137 PEDIATRICS e1 (2016); Catherine Saint Louis,
A Tide of Opioid-Dependent Newborns Forces Doctors to Rethink Treatment, N.Y. TIMES (July 13,
2017), https://www.nytimes.com/2017/07/13/health/opioid-addiction-babies.html [https:// perma.cc
/VP4F-8Q34].
39. Miriam Jordan, A Migrant Boy Rejoins His Mother, but He’s Not the Same, N.Y. TIMES
(July 31, 2018), https://www.nytimes.com/2018/07/31/us/migrant-children-separation-anxiety.html
[https://perma.cc/9RK6-CW59].
40. Separated Family Members Seek Monetary Damages from United States, AM. IMMIGR.
COUNCIL, http://americanimmigrationcouncil.org/litigation/separated-family-members-seek-mone-
tary-damages-united-states [https://perma.cc/3LMF-V57M]; see also Lauren Aratani, ‘Inexplicable
Cruelty’: US Government Sued over Family Separations at Border, GUARDIAN (Feb. 11, 2019, 8:28
PM), https://www.theguardian.com/us-news/2019/feb/11/
immigrant-families-sue-us-government-over-family-separation [https://perma.cc/8VUG-GW3C];
Nicole Houston & Issara Baumann, Arnold & Porter Brings Legal Claims Against U.S. Government
on Behalf of Parents and Children Separated at the Border, ARNOLD & PORTER (Feb. 11, 2019),
https://www.arnoldporter.com/en/perspectives/news/2019/02/arnold-porter-brings-
legal-claims-against (last visited Mar. 2, 2019).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 531
window into the trauma that children in the child welfare system experience every
day across America.
2. Trauma Inherent in the Act of Removal
On top of the harms of separation from family, the act of removal itself—
particularly the jarring way in which it is accomplished in the American system—
is inherently traumatic. Dr. Monique Mitchell, an interdisciplinary professor who
focuses on grief and loss, chronicled the results of a unique study of foster children
and the feelings of grief and ambiguity that occurred when these children were
separated from their families.
41
Most notably, Dr. Mitchell reports that the simple act of removal, without
regard to what happens afterwards, has significant effects on children. She states
that while generally an adult might think of removal as a “quick, isolated, one-
time event,” for a child, it is a “significant turning point . . . that many children
will relive over and over again in their minds.”
42
This undoubtedly causes children
immense trauma as they replay this horrible moment in their lives.
Being removed from one’s family and entered into foster care is extremely
harrowing and, for most children, completely unexpected.
43
Once the state re-
ceives a report of suspected abuse or neglect, a child may be roused from their
sleep, taken from their bed in the middle of the night, put into a car with strangers,
and dropped into a holding center overnight until their removal is approved by a
court and a foster care placement is identified.
44
All of this is done with minimal
explanation to the child.
45
Sometimes, if a placement is not available, children
may even sleep in the offices of the state’s child protective services.
46
When a
placement is eventually identified, they are usually taken to a stranger’s home, a
41. MONIQUE B. MITCHELL, THE NEGLECTED TRANSITION: BUILDING A RELATIONAL HOME FOR
CHILDREN ENTERING FOSTER CARE (2016).
42. Id. at 12.
43. See Bruskas & Tessin, supra note 20, at 132.
44. See Larissa MacFarquhar, When Should a Child Be Taken From His Parents, NEW YORKER
(Aug. 7, 2017), https://www.newyorker.com/magazine/2017/08/07/when-should-a-child-be-taken-
from-his-parents [https://perma.cc/UH55-VBSR]; see also Kathryn Joyce, The Crime of Parenting
While Poor, NEW REPUBLIC (Feb. 25, 2019), https://newrepublic.com/article/153062/
crime-parenting-poor-new-york-city-child-welfare-agency-reform [https://perma.cc/6KYW-9FDJ]
(“All too often, family defense advocates say, ACS caseworkers visit families in the middle of the
night—a tactic that is supposed to be reserved for emergencies in which children are in imminent
danger—demanding that parents wake their children so they can inspect their bodies for bruises,
interview them alone, check their bedrooms, and take stock of the food in the kitchen cupboards.”).
45. Id. (“If the children ask you where they’re going next, or when they’ll go home, or if they’ll
stay together with their brothers and sisters, you can’t answer them, because you don’t know.”).
46. Robert T. Garrett, Texas Foster-Care Crisis: Children Sleeping in CPS Offices Again as
More Removed from Homes but State out of Places to Care for Them, DALL. NEWS (Mar. 2016),
https://www.dallasnews.com/news/politics/2016/03/17/texas-foster-care-crisis-children-sleeping-
in-cps-offices-again-as-more-removed-from-homes-but-state-out-of-places-to-care-for-them
[https://perma.cc/6GVX-3HHM].
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
532 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
group home, a residential treatment facility, or, in the best case scenario, a rela-
tive’s home.
47
Dr. Mitchell notes that, for most children, questions related to foster care are
left unanswered during their transition. In the study, children reported receiving
unsatisfactory answers from caseworkers to questions about why they had to
leave, where they were going, who they would be placed with, and when they
could go home.
48
As one twelve-year-old child put it, “It’s like you’re being kid-
napped and nobody wants to tell you [anything].”
49
And often, this is because the
caseworkers themselves do not have the answers.
50
Children are therefore often upset not only because they are being removed,
but also because of how they are removed. The caseworkers involved either do not
provide them with adequate information, or provide them with incorrect infor-
mation, leading to feelings of frustration and anxiety.
51
3. Grief and Confusion Due to Separation from One’s Family
Dr. Mitchell also documents the feelings of grief and ambiguity that occur
when a child is separated from her family, as well as the stress that follows.
52
This
is yet another distinct harm of removal. Dr. Mitchell identifies “guilt, post-trau-
matic stress disorder, isolation, substance abuse, anxiety, low self-esteem, and
despair” as just some of the consequences that result from a failure to deal with
these feelings of grief.
53
She concludes that children who are removed may mourn
the loss of their parents as much as if they had died.
54
Adding to the trauma is the possibility of separation from a sibling. Foster
homes often cannot accommodate multiple children. In the late 1990s, the former
legal director of The Door, a youth-centered non-profit organization in New York,
conducted a survey of The Door’s clients who were in foster care.
55
More than
47. Child Welfare Info. Gateway, U.S. Dep’t of Health & Human Servs., How the Child Wel-
fare System Works, FACTSHEET, Feb. 2013, at 1, 3, 6, https://www.childwelfare.gov/pubpdfs
/cpswork.pdf [https://perma.cc/LCA9-QVN7]; see also Teresa Wiltz, Giving Group Homes a 21st
Century Makeover, PEW CHARITABLE TR. (June 14, 2018), https://www.pewtrusts.org/en/research-
and-analysis/blogs/stateline/2018/06/14/giving-group-homes-a-21st-century-makeover
[https://perma.cc/D4JD-8HCG] (“Group homes typically house 7 to 12 children, and adult supervi-
sors. Residential treatment facilities are a cross between a group home and a hospital. They provide
clinical treatment to kids with behavioral and mental health disorders.”).
48. MITCHELL, supra note 41, at 10–27, 38–62, 78–94.
49. Id. at 11.
50. MacFarquhar, supra note 44.
51. See MITCHELL, supra note 41, at 5 (“Children will experience ambiguity when they have
no information, too little information, or too much conflicting information to make sense of how an
event will impact their personal well-being[.]”).
52. Id.
53. Id.
54. See id. at 3.
55. Jill Chaifetz, Listening to Foster Children in Accordance with the Law: The Failure to
Serve Children in State Care, 25 N.Y.U. REV. L. & SOC. CHANGE 1, 1 n. * & 2, 15–21 (1999).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 533
ninety-two percent of those surveyed had siblings, but only about twenty-one per-
cent were living with those siblings.
56
Twenty-three percent had siblings who
were also in foster care but in a different placement.
57
Over forty-two percent said
that they never visited with their siblings.
58
Thus, children may experience not only the trauma of separation from parents
(separate from the trauma created by the foster system itself)
59
but also estrange-
ment from their siblings, like Rihana and her brother Kaden, discussed supra Part
I.
60
Another study of removed children notes that many were reliant on their sib-
lings and upset about being separated from them.
61
One child complained that he
had been split up from his brothers and didn’t know where they were.
62
Others
expressed anger about separation from their absent siblings.
63
While the conver-
sation is usually focused on separating children from their parents, it is important
to be cognizant of additional trauma caused by separation from other family mem-
bers.
64
Removed children may also be alienated from their communities, and may be
required to transfer schools, compounding feelings of loss and isolation. Foster
children complain not only about losing their immediate families but also about
losing contact with other relatives, friends, pets, and possessions.
65
Therefore, in
addition to the harms suffered as a result of being separated from one’s immediate
family, removal also produced harm connected to separation from other important
people and things.
Children in foster care also experience what Dr. Mitchell characterizes as
“ambiguous loss,” or a “lack of clarity about the psychological and/or physical
presence of members of one’s psychological family” (usually the biological fam-
ily).
66
When a child is expected to be physically a part of a new family while she
is still psychologically a part of her biological family, it can cause her distress and
lead her to believe she doesn’t belong to any family.
67
Relatedly, foster children
may also experience “role ambiguity”: confusion about their status in both their
biological family and their “new” family.
68
That is, they may express concern
about losing their identity in their biological family but be unsure about how to
56. Id. at 20.
57. Id.
58. Id.
59. See discussion infra Section II.B.
60. See supra text accompanying notes 1–9.
61. Whiting & Lee, supra note 27, at 292.
62. Id.
63. Id.
64. See id.
65. Id.
66. MITCHELL, supra note 41, at 81.
67. See id.
68. See id. at 65.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
534 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
avoid doing so when they are not a part of that family on a daily basis.
69
They may
struggle with continuous internal conflict “as they attempt to manage the contin-
ued separation, their desire for reconciliation, and their anxiety over attaching to
the new foster parents.”
70
One study found that foster children had trouble “con-
ceptualizing where they came from and where they were currently living and
struggled with their sense of belonging.”
71
In sum, children in foster care may feel
confused about the fact that their biological families are somewhat present in their
lives but not in the way to which they are accustomed, and they may feel destabi-
lized by having one foot in their biological family and another in their “new” one.
Children are also confused about “the reasons for being in [foster] care and
what would happen in the future.”
72
In one study, nearly every child interviewed
expressed confusion of this sort.
73
When caseworkers deny children information
regarding their case or the reasons that they are in care, they may compound ex-
isting feelings of helplessness and prevent children from processing the grief of
separation from their families.
74
This lack of information further obfuscates al-
ready complicated feelings that these children are experiencing.
4. Unique Harms for Minority Children
Family courts are filled to the brim with indigent litigants of color. Anyone
who has spent a day in family court has been struck by the overwhelming presence
of Brown and Black faces, so it should come as no surprise that the majority of
children in foster care are ethnic minorities.
75
Scholars have labeled family court
the “poor person’s court,”
76
and the child welfare system an “apartheid institu-
tion.”
77
A former New York child protective specialist-turned-scholar went fur-
ther, likening the child welfare system to slavery and advocating for the use of
Thirteenth Amendment arguments in child welfare cases.
78
Others have compared
the removal of African American children to the disproportionate removal of Na-
tive American children from their tribes
79
prior to the passage of the Indian Child
69. See id.
70. Goldsmith, Oppenheim, & Wanlass, supra note 16, at 1–2.
71. Bruskas & Tessin, supra note 20, at 138.
72. Whiting & Lee, supra note 27, at 292.
73. Id.
74. Id. at 293–94.
75. Child Welfare Info. Gateway, U.S. Dep’t of Health & Human Servs., Foster Care Statistics
2016, NUMBERS & TRENDS, Apr. 2018, at 1, 8, https://www.childwelfare.gov/pubPDFs/
foster.pdf [https://perma.cc/GX8Y-WU9A].
76. Melissa L. Breger, The (In)visibility of Motherhood in Family Court Proceedings, 36
N.Y.U. REV. L. & SOC. CHANGE 555, 557 (2012).
77. Beller, supra note 17, at 212.
78. Kurt Mundorff, Children as Chattel: Invoking the Thirteenth Amendment to Reform Child
Welfare, 1 CARDOZO PUB. L., POL’Y & ETHICS J. 131, 131 & n.*, 138 (2003).
79. Brooks, supra note 25, at 49–50; Cynthia G. Hawkins-León, The Indian Child Welfare Act
and the African American Tribe: Facing the Adoption Crisis, 36 BRANDEIS J. FAM. L. 201, 213
(1997) (“The figures for displaced or outplaced African American children are almost as high as
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 535
Welfare Act of 1978 (ICWA).
80
Even after ICWA, Native American children are
still removed at higher rates than their peers.
81
Those who have contact with the child welfare system have noted that case-
workers often have biases against parents based on class, race, and poverty,
82
and
that these biases may impact decisions about which children are removed.
83
Case-
workers have sweeping discretion in determining which children to remove.
84
Be-
cause a neglect case can be opened if the caseworker believes there is potential for
harm,
85
and in many cases a removal can occur prior to a final determination of
that harm, there is a dire risk that caseworkers’ subjective views of “good parent-
ing”—and, worse yet, their subconscious biases—will determine whether or not a
child is removed.
86
For example, a caseworker could file a case after learning that
one parent came home intoxicated, despite the fact that the other parent was also
at home and not under the influence of any substances because in her opinion, a
parent should not be consuming large amounts of alcohol.
those figures reported for Native American children in the 1970’s.”); Stephanie Smith Ledesma, The
Vanishing of the African-American Family: “Reasonable Efforts” and Its Connection to the Dispro-
portionality of the Child Welfare System, 9 CHARLESTON L. REV. 29, 34–38 (2014) (“The impact [of
African-American children disproportionately overrepresented in the child welfare and foster care
system] is similar to the state of Indian children and Indian families prior to the passage of the Indian
Child Welfare Act, where the rate of outplacements for Native American children far outpaced the
number of Native American children in the general population.”).
80. Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901–63 (2016).
81. Debra Utacia Krol, Inside the Native American Foster Care Crisis Tearing Families Apart,
VICE (Feb. 8, 2018, 12:00 AM), https://www.vice.com/en_us/article/a34g8j/inside-the-native-amer-
ican-foster-care-crisis-tearing-families-apart [https://perma.cc/F69T-2WZX]; Press Release, Jeremy
Ratner, The Pew Charitable Tr., American Indian Children Overrepresented in Nation’s Foster Care
System, New Report Finds (Nov. 19, 2007) [hereinafter Ratner], https://www.pew
trusts.org/en/about/news-room/press-releases-and-statements/2007/11/19/
american-indian-children-overrepresented-in-nations-foster-care-system-new-report-finds
[https://perma.cc/HVS9-JAWS].
82. See, e.g., Jane C. Murphy, Legal Images of Motherhood: Conflicting Definitions from Wel-
fare “Reform,” Family, and Criminal Law, 83 CORNELL L. REV. 688, 707 (1998).
83. Sheila D. Ards, Samuel L. Myers Jr., Patricia Ray, Hyeon-Eui Kim, Kevin Monroe, &
Irma Arteaga, Racialized Perceptions and Child Neglect, 34 CHILD. & YOUTH SERVS. REV. 1480
(2012) (research explores racialized perceptions of child protective service workers and finds that
respondents who see a neglectful situation with a Black baby are more likely to say that the depiction
meets the definition of neglect and is reportable than when the same neglect situation involves a
white baby); Katherine Elliott & Anthony Urquiza, Ethnicity, Culture, and Child Maltreatment, 62
J. SOC. ISSUES 787, 795 (2006); see also Child Welfare Info. Gateway, U.S. Dep’t of Health & Hu-
man Servs., Racial Disproportionality and Disparity in Child Welfare, ISSUE BRIEF, Nov. 2016, at
1, 6, https://www.childwelfare.gov/pubpdfs/racial_disproportionality.pdf [https://perma.cc/
DL8R-H654].
84. Jaime Perrone, Failing to Realize Nicholson’s Vision: How New York’s Child Welfare
System Continues to Punish Battered Mothers, 20 J.L. & POL’Y 641, 660 (2012).
85. N.Y. FAM. CT. ACT § 1012(f)(i) (McKinney 2019) (defines a “neglected child” as one
“whose physical, mental or emotional condition has been impaired or is in imminent danger of be-
coming impaired[.]”).
86. See id.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
536 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
Researchers have found that racial bias exists at each stage of child welfare
proceedings, from investigation to mitigation efforts to ultimate removal.
87
Statis-
tics confirm that minority families, and Black families in particular, are less likely
to receive in-home services meant to address underlying causes and prevent re-
moval.
88
Thus, the state is more likely to permit white children to remain with
their families, and take Black children away from theirs when faced with similar
allegations.
89
For example, a 2002 study by the Minnesota Department of Human
Services found that Black children are five times more likely to be removed than
children of other races.
90
Sixteen years later, in 2018, Black children in Minnesota
were still three times as likely as white children to be involved in the state’s child
welfare system.
91
As a result, in April of 2018, parents in Minnesota filed a Sec-
tion 1983 lawsuit against the state alleging in part that child protective laws were
being enforced in a discriminatory manner.
92
Poverty, of course, plays a significant role in exacerbating racial disparities.
This is particularly true, because (1) as many outsiders are surprised to learn, the
majority of cases in the child welfare system deal with neglect, not abuse;
93
and
(2) poverty is often conflated with neglect
94
or creates circumstances that may
lead to neglect.
95
Indeed, research shows that “[i]nadequacy of income, more than
any other factor, constitutes the reason that children are removed.”
96
Child welfare
87. Fred Wulczyn, Robert Gibbons, Lonnie Snowden, & Bridgette Lery, Poverty, Social Dis-
advantage, and the Black/White Placement Gap, 35 CHILD. & YOUTH SERVS. REV. 65, 66 (2013).
88. Ledesma, supra note 79, at 36 (citing Susan L. Brooks & Dorothy E. Roberts, Social Jus-
tice and Family Court Reform, 40 FAM. CT. REV. 453, 454 (2002) (quoting CHILDREN’S BUREAU,
U.S. DEP’T HEALTH & HUMAN SERVS., NATIONAL STUDY OF PROTECTIVE, PREVENTIVE, AND
REUNIFICATION SERVICES DELIVERED TO CHILDREN AND THEIR FAMILIES (1994))) (finding disparities
“even when [minority children] have the same problems and characteristics as white children”).
89. Dorothy E. Roberts, Child Welfare and Civil Rights, 2003 U. ILL. L. REV. 171, 172–73.
90. CHILDREN’S SERVS. ADMIN., MINN. DEP’T OF HUMAN SERVS, STUDY OF OUTCOMES FOR
AFRICAN AMERICAN CHILDREN IN MINNESOTA’S CHILD PROTECTION SYSTEM 4 (2002),
https://www.leg.state.mn.us/docs/pre2003/mandated/020299.pdf [https://perma.cc/ZLV6-L3E4].
91. Christopher Magan, Black Children Disproportionately Removed from Their Families;
State Lawmakers Seek Fix, PIONEER PRESS (Apr. 10, 2018, 4:16 PM), https://www.twincities.com/
2018/04/10/black-children-are-disproportionately-removed-from-their-families-state-lawmakers-
seek-legislative-fix/ [https://perma.cc/8AFX-6ZJD].
92. Complaint, Mitchell v. Dakota Cty. Soc. Servs., No. 18-cv-01091-WMW-BRT (D. Minn.
Apr. 24, 2018).
93. See, e.g., Dorothy E. Roberts, Poverty, Race, and New Directions in Child Welfare Policy,
1 WASH. U. J.L. & POL’Y 63, 68–69 (1999).
94. Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97
MARQ. L. REV. 215, 228 (2013) (“That poverty has been confused and conflated with child neglect
and even parental turpitude is not new.”); see also MacFarquhar, supra note 44 (“You may be
shocked by the living conditions you encounter, but you’re not allowed to remove children solely
because of poverty—if, for instance, there’s no food in the kitchen because the parent’s food stamps
have run out—only for ‘imminent risk’ due to abuse or neglect. But it’s often difficult to draw a line
between poverty and neglect.”).
95. Christina White, Federally Mandated Destruction of the Black Family: The Adoption and
Safe Families Act, 1 NW. J.L. & SOC. POL’Y. 303, 314–15 (2006).
96. DUNCAN LINDSEY, THE WELFARE OF CHILDREN 175 (2d ed. 2004); see also Joyce, supra
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 537
experts Martin Guggenheim and Dorothy Roberts have separately noted that many
children remain in foster care solely because their parents have inadequate hous-
ing.
97
This is particularly true in urban areas where affordable housing is scarce.
98
Finally, neglect cases may also be filed for failure to provide sufficient food or
inadequate supervision due to lack of affordable childcare.
99
These are problems
of family poverty, not of parental mistreatment.
This is significant in the context of race because Black children are nearly
three times more likely to live in poverty than their white counterparts.
100
Black
families also tend to have more contact with state actors, leaving them particularly
vulnerable to additional state intervention.
101
Low-income families are more
likely to seek medical care from emergency rooms or public clinics, use public
transportation, and live in public housing, leading to more frequent interaction
with government systems and increased visibility to child protection agencies.
102
Additionally, if a family receives public benefits or “welfare,” it may sacrifice
its privacy. The Supreme Court has held that a family must allow state social
workers to enter the home without a warrant to assess the family’s worthiness to
receive public assistance, to change the amount it receives, or to determine if there
are any social services that could be provided.
103
In his dissent in that case, Justice
Marshall noted that one of the arguments in favor of such visits was that they were
necessary to protect children from “abuse” and “exploitation.”
104
Marshall que-
ried whether the majority would “sanction, in the absence of probable cause, com-
pulsory visits to all American homes for the purpose of discovering child abuse,”
or whether the Court was holding “that a mother, merely because she is poor, is
note 44 (correlating the “ten neighborhoods with the highest number of ACS cases” in New York
City with the “lowest incomes[ and] highest unemployment . . . in the city”).
97. DOROTHY ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD WELFARE 21, 35 (2002);
Martin Guggenheim, Somebody’s Children: Sustaining the Family’s Place in Child Welfare Policy,
113 HARV. L. REV. 1716, 1724 (2000) (reviewing ELIZABETH BARTHOLET, NOBODY’S CHILDREN:
ABUSE AND NEGLECT, FOSTER DRIFT, AND THE ADOPTION ALTERNATIVE (1999)); see also Asim
Cooper, supra note 94, at 228 (“Three studies conducted in 1996 found that 30% of America’s chil-
dren in foster care were separated from their families because their parents lacked safe and affordable
housing.”).
98. See Guggenheim, supra note 97, at 1724 (citing Chicago and New York City as regularly
placing children in foster care because of inadequate housing); see also ROBERTS, supra note 97, at
35 (“Children are routinely kept in foster care because their parents are unable to find decent afford-
able housing without public assistance. The court-appointed administrator of the District of Colum-
bia’s foster care system determined that as many as half of the children in foster care system deter-
mined that as many as half of the children in foster care could be immediately reunited with their
parents if housing problems were resolved”); Joyce, supra note 44 (correlating the “ten neighbor-
hoods with the highest number of ACS cases” in New York City with the “greatest income-to-rent
disparities in the city”).
99. See MacFarquhar, supra note 44 (“When a child has been left alone because his mother
can’t afford childcare and has to go to work, is that poverty or neglect?”).
100. Roberts, supra note 89, at 176.
101. ROBERTS, supra note 97, at 29–30, 32.
102. Id.
103. Wyman v. James, 400 U.S. 309, 314, 326 (1971).
104. Id. at 341–42.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
538 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
substantially more likely to injure or exploit her children.”
105
Marshall’s critique
aside, decisions like this have left us with a society that “respect[s] the privacy and
autonomy of middle-class families, but . . . accept[s] coercive intervention and
intrusion in low-income families.”
106
Policing matters as well. It is no secret that police departments overpolice
African American communities and “disproportionately subject African Ameri-
cans to so-called ‘quality of life’ policing.”
107
And just as many Americans “be-
lieve crime has a Black face,”
108
a perception exists that the face of abuse and
neglect is also dark, leading to disproportionate targeting of African American and
other ethnic minority families in the child welfare system.
109
Thus, due to bias and
increased contact with state actors, parents of color are more likely to “catch a
case” in the first place,
110
and then also more likely to have their children re-
moved.
111
Further, once separated, these families are less likely to be reunified.
112
105. Id. at 342.
106. Brooks, supra note 25, at 50; see also KHIARA M. BRIDGES, THE POVERTY OF PRIVACY
RIGHTS 12–13 (2017) (arguing that poor mothers have been disenfranchised of their privacy rights);
Michele Estrin Gilman, The Class Differential in Privacy Law, 77 BROOK. L. REV. 1389, 1391 (2012)
(noting, inter alia, that courts often hold that the poor do not have reasonable expectations of privacy
entitled to protection).
107. Liyah Kaprice Brown, Officer or Overseer?: Why Police Desegregation Fails as an Ad-
equate Solution to Racist, Oppressive, and Violent Policing in Black Communities, 29 N.Y.U. REV.
L. & SOC. CHANGE 757, 762 (2005).
108. Kenneth B. Nunn, The “Darden Dilemma”: Should African Americans Prosecute
Crimes?, 68 FORDHAM L. REV. 1473, 1490 (2000).
109. Ards, Myers, Ray, Kim, Monroe, & Arteaga, supra note 83 (research explores racialized
perceptions of child protective service workers and finds that respondents who see a neglect situation
with a Black baby are more likely to say that the depiction meets the definition of neglect and is
reportable than when the same neglect situation involves a white baby).
110. See id. at 1482 (“[C]hildren of color are disproportionately exposed to the welfare system
by being more likely to come into contact with the mandated reporters most likely to report observed
or suspected instances of maltreatment.”).
111. NAT’L COUNCIL ON DISABILITY, Chapter 5. The Child Welfare System: Removal, Reuni-
fication and Termination, in ROCKING THE CRADLE: ENSURING THE RIGHTS OF PARENTS WITH
DISABILITIES AND THEIR CHILDREN 71, 79 (2012), https://ncd.gov/sites/default/files/Documents/
NCD_Parenting_508_0.pdf [https://perma.cc/Z7PW-AVAP] (“African American and American In-
dian children are more likely than other children to be reported, investigated, substantiated, and
placed in foster care. Thirty-one percent of the children in foster care are African American, double
the percentage of African American children in the national population. Children of color, especially
African American children and often American Indian children, are more likely to have longer place-
ments in out-of-home care, are less likely to receive comprehensive services, and are less likely to
reunify with their families than white children.”); Nell Clement, Do “Reasonable Efforts” Require
Cultural Competence? The Importance of Culturally Competent Reunification Services in the Cali-
fornia Child Welfare System, 5 HASTINGS RACE & POVERTY L.J. 397 (2008) (“[C]ulturally diverse
children are often more likely to be removed from their families than white children.”); see also
Asim Cooper, supra note 94, at 238 (“Known as the racial geography of foster care, those neighbor-
hoods with poor African American and Native American families and the greatest involvement and
concentration of foster care system surveillance are a perfect match.”).
112. See, e.g., Fred Wulczyn, Family Reunification, 14 FUTURE CHILD. 94, 101 (2004)
(“Among children admitted in 1990, Caucasian children were more likely to be reunited[.]”).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 539
The number of Hispanic
113
children in foster care is also disproportionately
higher than Hispanics’ representation in the general population. In 2016, Hispan-
ics made up 17.6 percent of the national population,
114
yet constituted twenty-one
percent of the foster care population.
115
This is likely due in part to the fact that
Hispanic families are subject to anti-immigrant sentiments and “public percep-
tions that associate Latino immigrants with criminality, cultural deviance, and
overarching illegality.”
116
A lack of understanding of cultural differences may lead to additional dis-
crimination in legal systems. For example, one Hispanic parent who was facing
termination proceedings due to her child’s alleged malnourishment was told that
her child’s diet was “too heavy in dairy and lacking in vegetables and meat” be-
cause “his parents fed him milk, tortillas, sopas, eggs, and beans.”
117
The case-
worker failed to consider that this diet was influenced both by the parents’ culture
and their available financial resources.
118
Indeed, this lack of concern for children who are considered “others” is evi-
dent at the highest levels of government. In discussing how the government would
care for (primarily Hispanic) children separated from their parents at the border,
White House Chief of Staff John F. Kelly infamously said these children would
be “put into foster care or whatever.”
119
Mr. Kelly clearly and disturbingly demon-
strated that the government had given absolutely no thought to the trauma that
would inevitably be inflicted on these children. In other words, he had not consid-
ered the harms of removal.
Native American children are also overrepresented in the child welfare sys-
tem, despite ICWA, which is meant to keep Native American families together.
120
In 2007, in many states, the percentage of Native American children in foster care
was well over twice the percentage of Native American children in the general
113. This article uses the term “Hispanic” as opposed to “Latino” or “Latinx” to reflect the
language used by the United States government. See, e.g., U.S. CENSUS BUREAU, FACTS FOR
FEATURES: HISPANIC HERITAGE MONTH 2016 (2016), https://www.census.gov/newsroom/facts-for-
features/2016/cb16-ff16.html [https://perma.cc/BG42-5LPB]; Child Welfare Info. Gateway, U.S.
Dep’t of Health & Human Servs., supra note 75, at 8–10.
114. U.S. CENSUS BUREAU, supra note 113, at 1.
115. Child Welfare Info. Gateway, U.S. Dep’t of Health & Human Servs., supra note 75, at 8.
116. Anita Ortiz Maddali, The Immigrant “Other”: Racialized Identity and the Devaluation
of Immigrant Family Relations, 89 IND. L.J. 643, 656 (2014).
117. Id. at 689.
118. Id.
119. Philip Bump, Why Separate Immigrant Children from Parents? The Politics of Fear—
Just Indirectly, WASH. POST: POLITICS (May 11, 2018), https://www.washingtonpost.com/news/
politics/wp/2018/05/11/why-separate-immigrant-children-from-parents-the-politics-of-fear-just-in-
directly/?utm_term=.04c74e2dbcba [https://perma.cc/Y2NE-7LM3] (quoting John Burnett & John
Kelly, Transcript: White House Chief of Staff John Kelly’s Interview with NPR, NAT’L PUB. RADIO
(May 11, 2018, 11:36 AM), https://www.npr.org/2018/05/11/610116389/transcript-white-house-
chief-of-staff-john-kellys-interview-with-npr [https://perma.cc/GM6T-SYY4]).
120. Virginia Drywater-Whitekiller, Family Group Conferencing: An Indigenous Practice Ap-
proach to Compliance with the Indian Child Welfare Act, 8 J. PUB. CHILD WELFARE 260, 260 (2014).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
540 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
population.
121
In South Dakota, it was over three times as high while in Idaho,
Minnesota, and Nebraska it was over six times as high.
122
Worse yet, the United
States District Court of the Northern District of Texas recently found several of
ICWA’s provisions to be unconstitutional, such that the future of ICWA and the
limited protections it currently extends to Native American children may now be
in jeopardy.
123
Racial disparities also exist in the rates at which abuse or neglect accusations
are ultimately substantiated by the investigating agency.
124
Substantiation means
that the agency investigating the allegation of abuse or neglect finds reason to
believe that the parent has committed the acts alleged,
125
a finding that may be
influenced by individual or institutional bias.
126
Native American families expe-
rience the highest rate of agency substantiation, followed by Black families, lead-
ing to court filings and the potential removal of these children.
127
The removal of minority children from their communities inflicts additional,
distinct trauma on these children.
128
Removal from one’s family is harrowing
enough, but these children are often removed not just from their family but also
their entire community, affecting their sense of identity and “cultural belong-
ing.”
129
For children belonging to minority ethnic groups, ethnicity forms a more
important part of their identity than it does for children in ethnic majorities.
130
As
such, removal from their communities is more devastating to their development
and sense of self.
131
Children who want to maintain their culture and their familial
customs may not be able to do so in foster families belonging to a different race,
culture, or religion, leading to additional feelings of loss and sadness for these
children.
132
121. Ratner, supra note 81; see also Utacia Krol, supra note 81 (citing NAT’L INDIAN CHILD
WELFARE ASS’N, WHAT IS DISPROPORTIONALITY IN CHILD WELFARE 1 (2017),
https://www.nicwa.org/wp-content/uploads/2017/09/Disproportionality-Table.pdf
[https://perma.cc/3GPY-262B]) (according to a study done in the last few years, “[n]ative children
are placed into foster care at a rate 2.7 times greater than their proportion in the general population”).
122. Ratner, supra note 81; see also Utacia Krol, supra note 81 (citing NAT’L INDIAN CHILD
WELFARE ASS’N, supra note 121) (according to a study done in the last few years, “[n]ative children
are placed into foster care at a rate 2.7 times greater than their proportion in the general population”).
123. Brackeen v. Zinke, No. 4:17-CV-00868-O, 2018 WL 4927908, at *13–22 (N.D. Tex.
Oct. 4, 2018).
124. CHILDREN’S BUREAU, U.S. DEP’T OF HEALTH & HUMAN SERVS., CHILD MALTREATMENT
2016, at 42 (2018), https://www.acf.hhs.gov/sites/default/files/cb/cm2016.pdf [https://perma.cc/
LS27-V7AU].
125. See id. at 15.
126. Child Welfare Info. Gateway, U.S. Dep’t of Health & Human Servs., supra note 83, at 6.
127. CHILDREN’S BUREAU, U.S. DEP’T OF HEALTH & HUMAN SERVS., supra note 124, at 42.
128. Clement, supra note 111, at 418–19.
129. Id. at 419.
130. Id.
131. Id.
132. MITCHELL, supra note 41, at 65; Child Welfare Info. Gateway, U.S. Dep’t of Health &
Human Servs., Helping Your Child Transition from Foster Care to Adoption, FACTSHEET FOR
FAMILIES, July 2018, at 1, 6, https://www.childwelfare.gov/pubpdfs/f_transition.pdf
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 541
A scene from the popular television series This Is Us highlights these feelings.
In the show, a white family adopts a Black child (presumably through the foster
care system) after he is abandoned at a fire station by his drug-addicted father.
133
Throughout his life, the child carries a notebook everywhere he goes and keeps
track of every Black person he ever meets.
134
Even though he was adopted into a
loving and kind family, he has anxiety about the fact that he is often the only Black
person in a room and wonders if any of the Black men he meets could be his
father.
135
His feelings intensify when he goes on a college tour of Ta-Nehisi
Coates’ “Mecca,” Howard University, a historically Black university,
136
where he
is elated to be surrounded by people who look like him.
137
Placing children with families who are ethnically different or speak a different
language may make the children feel stigmatized, and thereby intensify feelings
of isolation and anxiety.
138
For example, a situation as innocuous as a white foster
parent being unable to style a Black child’s hair in the way to which she is accus-
tomed or a Spanish-speaking child being placed in a neighborhood where no one
speaks Spanish may cause these problems. In one study, children of color reported
discomfort with the idea of being placed with white families.
139
The effects of
cultural alienation on children—as well as the effect of a sense of belonging—
should not be discounted.
Additionally, the disproportionate and excessive removals of children in mi-
nority groups lead to problems not just for individual families, but also for the
entire community. As Professor Dorothy Roberts has argued, “Family and com-
munity disintegration weakens [B]lacks’ collective ability to overcome institu-
tionalized discrimination and work toward greater political and economic
strength.”
140
Thus, continued targeted destruction of minority families leads to the
devastation of the larger community, which, in turn, has long-term consequences
for the children of those communities.
B. Harms of Foster Care
Though child removals are often premised on the assumption that foster care
is “better” than staying at home, the new settings are no panacea. In fact, foster
care may inflict additional pain (on top of the harms created by removal and sep-
aration themselves), thereby producing worse long-term outcomes than if the child
had remained at home. This section discusses the harms that children incur while
[https://perma.cc/GB5L-UM4G].
133. This is Us: Kyle (NBC television broadcast Oct. 11, 2016).
134. This is Us: The Pool (NBC television broadcast Oct. 18, 2016).
135. Id.
136. See TA-NEHISI COATES, BETWEEN THE WORLD AND ME 39–40 (2015).
137. This is Us: Number Three (NBC television broadcast Nov. 28, 2017).
138. Maurice Anderson & L. Oriana Linares, The Role of Cultural Dissimilarity Factors on
Child Adjustment Following Foster Placement, 34 CHILD. & YOUTH SERVS. REV. 597, 600 (2012).
139. Whiting & Lee, supra note 27, at 291.
140. Roberts, supra note 89, at 179.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
542 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
in the foster care system, including abuse; neglect; instability; and physical, men-
tal, and sexual health problems.
1. Abuse and Neglect in Foster Care
In making removal decisions, courts rarely, if ever, consider the dangers in-
herent to the foster care system itself. The determination about whether to remove
a child is usually made separate and apart from any information about where that
child will go once removed.
141
Often, the child protective agency itself does not
even know where the child will go when the removal is ordered.
142
This may lead
to children being placed in processing centers or temporary foster homes while a
permanent placement is identified.
143
And even when a home is located, little
thought is given to which home would be the best place for a child. Rather, once
a home meets standardized licensing requirements, it is usually deemed fit for any
foster child.
144
There is no analysis of whether a specific home might be a good
fit for a child or better equipped to deal with her particular issues.
145
Despite the entire system being built on assumptions to the contrary, there is
substantial evidence that children are more likely to be abused in foster care than
in the general population (with their parents and other caregivers). The media is
rife with stories of children abused in foster care,
146
and studies show that these
are not simply sensationalized anomalies. One study in Baltimore found the sub-
stantiated rates of sexual abuse in foster homes to be more than four times that of
the general population.
147
A similar study in Indiana found “three times more
141. See MacFarquhar, supra note 44 (“If the children ask you where they’re going next, . . .
you can’t answer them, because you don’t know.”); Garrett Therolf, Private Foster Care System,
Intended to Save Children, Endangers Some, L.A. TIMES (Dec. 18, 2013, 4:00 AM),
https://www.latimes.com/local/la-me-foster-care-dto-htmlstory.html#ixzz2phNFH4q4
[https://perma.cc/K7NY-DXQH] (“More than 59,000 children end up in California’s foster care sys-
tem because of abuse, neglect or abandonment. . . . Demand for . . . homes far outstrips availability,
and it’s not uncommon for social workers to make more than 100 calls before a vacant bed is se-
cured[.]”).
142. MacFarquhar, supra note 44.
143. Id. (“If you remove the children that night, you will take them to a processing center to
be assigned to a temporary foster home.”).
144. David J. Herring, Child Placement Decisions: The Relevance of Facial Resemblance and
Biological Relationships, 43 JURIMETRICS 387, 402 (2003).
145. Id.
146. See, e.g., Michael Levenson, Scores of Mass. Children Mistreated in Foster Homes, BOS.
GLOBE (Sept. 1, 2015), https://www.bostonglobe.com/metro/2015/09/01/report/
KmxuJqL5RAFy9bPZ39WVIN/story.html [https://perma.cc/8DKJ-UPHX]; Brian Ross, Six Kids
Neglected by Florida Foster Care, ABC NEWS (May 24, 2002), http://abcnews.go.com/2020/
story?id=123897&page=1 [https://perma.cc/26L9-GK74]; Denis Slattery, Long Island Foster Par-
ent Charged with Beating, Sexually Abusing Children in His Care, N.Y. DAILY NEWS (Mar. 19,
2016), http://www.nydailynews.com/news/crime/foster-parent-abused-children-20-years-
prosecutors-article-1.2569892 [https://perma.cc/2J4R-FL7T].
147. NAT’L COAL. FOR CHILD PROT. REFORM, FOSTER CARE VS. FAMILY PRESERVATION: THE
TRACK RECORD ON SAFETY AND WELL-BEING 1, https://drive.google.com/file/d/0B291mw
_hLAJsV1NUVGRVUmdyb28/view [https://perma.cc/YDK9-QX48] (citing MARY I. BENEDICT &
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 543
physical abuse and twice the rate of sexual abuse in foster homes than in the gen-
eral population.”
148
Indeed, foster children are particularly vulnerable to sexual
abuse, perhaps due to the non-permanent and non-biological nature of the familial
relationships (resulting in diminished incest taboos), and/or the cultural and class
differences that may exist between the foster family and the children involved.
149
Abuse in foster care may be caused by multiple factors, including poor train-
ing of foster parents, the lack of particularized matching of foster children with
families, insufficient visitation from caseworkers, and failure to follow up on sus-
picions of abuse or referrals of allegations of abuse and/or neglect.
150
In the Northwest Foster Care Alumni Study (“The Northwest Study”) dis-
cussed in greater detail below,
151
around one-third of the participants reported
maltreatment in their foster homes.
152
And, of course, actual abuse rates might be
higher than reported. For foster care providers, reporting is essentially admitting
their own failures and may open them up to scrutiny and liability. For foster care
recipients, reporting may be embarrassing or traumatic.
Foster parents may also neglect their foster children in less overt ways. In a
survey of foster children, twenty-two percent reported that they were not getting
enough food.
153
Twenty-six percent revealed that they did not have appropriate
seasonal clothing.
154
Ironically, similar conditions could have provided the impe-
tus for a child’s initial removal from their family, begging the question of whether
many of these children could have been spared the trauma of removal by simply
being provided with better resources in their own homes.
Even poor communication between foster parents and children may have
more severe effects due to the new environment. One child reported that even
though she wasn’t technically being abused, she felt mentally and emotionally
abused because every time she asked a question, she was met with sarcasm from
SUSAN ZURAVIN, FACTORS ASSOCIATED WITH CHILD MALTREATMENT BY FAMILY FOSTER CARE
PROVIDERS 28–30 (1992)).
148. Id. (citing J. William Spencer & Dean D. Knudsen, Out-of-Home Maltreatment: An Anal-
ysis of Risk in Various Settings for Children, 14 CHILD. & YOUTH SERVS. REV. 485 (1992)).
149. Michael B. Mushlin, Unsafe Havens: The Case for Constitutional Protection of Foster
Children from Abuse and Neglect, 23 HARV. C.R.-C.L. L. REV. 199, 205 (1988).
150. OFFICE OF THE CITY COUNCIL PRESIDENT & THE CITY OF N.Y. HUMAN RES. ADMIN., THE
FOSTER CARE PYRAMID: FACTORS ASSOCIATED WITH THE ABUSE AND NEGLECT OF CHILDREN IN
FOSTER BOARDING HOMES 2, 53–55, 60–64, 69–73 (1982) (study found that inadequate home studies
were correlated with abuse and neglect, and also found inadequate matching of foster children with
families and procedures to decertify deficient foster homes); Mushlin, supra note 149, at 209–11.
151. See infra text accompanying notes 234–39.
152. PETER J. PECORA, RONALD C. KESSLER, JASON WILLIAMS, KIRK O’BRIEN, A. CHRIS
DOWNS, DIANA ENGLISH, JAMES WHITE, EVA HIRIPI, CATHERINE ROLLER WHITE, TAMERA WIGGINS,
& KATE HOLMES, IMPROVING FAMILY FOSTER CARE: FINDINGS FROM THE NORTHWEST FOSTER CARE
ALUMNI STUDY 30 (2005), https://caseyfamilypro-wpengine.netdna-ssl.com/media/
AlumniStudies_NW_Report_FR.pdf [https://perma.cc/6Y7Q-3RJY].
153. Chaifetz, supra note 55, at 19.
154. Id.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
544 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
her foster parents.
155
Other children reported being treated differently or feeling
judged by their foster parents, making bonding difficult.
156
This was particularly
true when biological children also lived in the home.
157
Overall, the weight of social scientific evidence suggests that children who
are removed from their homes based on allegations of abuse or neglect often face
more abuse and neglect in foster care. This is anathema to a system whose stated
goal is child safety.
2. Foster Care Placement Instability
In additional to being potentially more dangerous than remaining at home,
foster care placements are also notoriously unstable. The phenomenon of children
being shifted from home to home without any permanency plan is often called
“foster care drift.”
158
Children may be placed in as many as fifteen homes in the
first year of entering foster care alone.
159
In one study, twenty percent of children
did not have stable placements for the first eighteen months they spent in care.
160
Another study found that the average child remained in foster care for a total of
seven years in six different foster homes.
161
As a result, these children also
changed schools an average of four times during their stay in foster care.
162
The reasons for these moves vary greatly. On the one hand, a change in place-
ment may be requested due to changes in the foster parents’ lives such as moving,
a new job, or a death (e.g. of the foster parents) or other emergency in the foster
family.
163
Agencies may also make changes due to allegations of abuse or neglect
against the foster parents.
164
On the other hand, the reasons for moving children
are not always so serious. In one study, fourteen families requested that their foster
child be removed because of their vacation plans.
165
155. MITCHELL, supra note 41, at 60.
156. See Heather L. Storer, Susan E. Barkan, Emma L. Sherman, Kevin P. Haggerty, & Leah
M. Mattos, Promoting Relationship Building and Connection: Adapting an Evidence-Based Parent-
ing Program for Families Involved in the Child Welfare System, 34 CHILD. & YOUTH SERVS. REV.
1853, 1858 (2012).
157. See id.
158. See Carla Bradley & Cynthia G. Hawkins-León, The Transracial Adoption Debate:
Counseling and Legal Implications, 80 J. COUNSELING & DEV. 433, 436 (2002).
159. Bruskas & Tessin, supra note 20, at 132.
160. David M. Rubin, Amanda L. R. O’Reilly, Xianqun Luan, & A. Russell Localio, The
Impact of Placement Stability on Behavioral Well-Being for Children in Foster Care, 119
PEDIATRICS 336, 341 (2007).
161. Bruskas & Tessin, supra note 20, at 134.
162. Id.
163. See NANCY ROLOCK, EUN KOH, TED CROSS, JENNIFER EBLEN MANNING, MULTIPLE MOVE
STUDY: UNDERSTANDING REASONS FOR FOSTER CARE INSTABILITY 7, 19 (2009), https://cfrc.illi-
nois.edu/pubs/rp_20091101_MultipleMoveStudyUnderstandingReasonsForFosterCareInstabil-
ity.pdf [https://perma.cc/DE9H-Y4JV]; Sigrid James, Why Do Foster Care Placements Disrupt? An
Investigation of Reasons for Placement Change in Foster Care, 78 SOC. SERV. REV. 601, 611 (2004).
164. ROLOCK, KOH, CROSS, & MANNING, supra note 163, at 7.
165. James, supra note 163, at 611.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 545
Child-behavior-related moves may occur due to serious concerns such as drug
use, fire setting, physical abuse of others, self-harm, refusal to go to school, steal-
ing, or inappropriate sexual behavior.
166
But foster families may also have unre-
alistic expectations for their foster children.
167
One study found that many chil-
dren were moved because of behavior that was developmentally appropriate or
predictable for their ages.
168
For example, toddlers were removed because of tan-
trums and related behaviors and teenagers removed for being disrespectful or re-
fusing to do chores.
169
One child was moved at least twice because her foster par-
ents reacted negatively to her sexual orientation.
170
The same study found that
multiple children were removed when foster parents failed to commit to those who
exhibited distress or acted out for discrete periods of time.
171
As one teenager put
it, “I know in my experience with my foster mom[,] . . . she didn’t . . . adapt to the
fact that I was also a normal teenager, so I was gonna do normal teenager things
like talk back and stuff like that.”
172
Whatever the cause, these frequent moves—whereby children are “passed
from one foster home to another with no constancy of love, trust, or disci-
pline”
173
—have tangible negative consequences and result in worse outcomes for
children. For example, being labeled a “foster child” may also suggest to a child
that either she or her parents have failed in some way, and as a result she is
“bad.”
174
Being moved from one home to another reinforces this impression and
is incredibly detrimental to a child’s psyche.
175
Additionally, multiple placements
may intensify existing trauma and make it difficult for children to develop rela-
tionships with primary caregivers or others in their lives.
176
The fact and multi-
plicity of placements affect children’s ability to form healthy attachments to others
and long-term relationships.
177
According to one study, children with unstable foster care placements expe-
rience between thirty-six and sixty-three percent increased risk of behavioral prob-
lems compared to those with more stable foster homes.
178
On top of the emotional
166. Id. at 602–03.
167. Id. at 602.
168. ROLOCK, KOH, CROSS, & MANNING, supra note 163, at 12.
169. Id.
170. Id. at 11.
171. Id. at 12.
172. Storer, Barkan, Sherman, Haggerty, & Mattos, supra note 156, at 1857.
173. Santosky v. Kramer, 455 U.S. 745, 789 (1982) (Rehnquist, J., dissenting).
174. Ana M. Novoa, Count the Brown Faces: Where is the “Family” in The Family Law of
Child Protective Services, 1 SCHOLAR 5, 31 (1999).
175. Id.
176. Bruskas & Tessin, supra note 20, at 131.
177. Vivek Sankaran & Christopher Church, Easy Come, Easy Go: The Plight of Children
Who Spend Less Than Thirty Days in Foster Care, 19 U. PA. J.L. & SOC. CHANGE 207, 212 (2016)
(citing Philip A. Fisher, Mark J. Van Ryzin, & Megan R. Gunnar, Mitigating HPA Axis Dysregula-
tion Associated with Placement Changes in Foster Care, 36 PSYCHONEUROENDOCRINOLOGY 531,
532 (2011)).
178. Rubin, O’Reilly, Luan, & Localio, supra note 160, at 341.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
546 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
harms related to the multiple transitions themselves, the likelihood of abuse has
been shown to increase every time a child is moved to a new home.
179
Research has also shown that children who experience initial instability have
higher rates of further instability and are less likely to find permanent homes
180
or
to be reunified with their biological families.
181
Thus, instability in foster homes
results in a vicious cycle wherein those who begin with foster home instability are
unable to recover from it and continue to face disruptions throughout their time in
care.
3. Physical and Sexual Health Problems
Foster parents are responsible for ensuring that children in their care receive
adequate medical and dental care
182
and the state provides free health care to fos-
ter children to ensure that these needs can be met.
183
Yet medical and dental con-
ditions are routinely ignored, under-identified, and untreated.
184
According to the
American Academy of Pediatrics, “[c]hildren and adolescents in foster care have
a higher prevalence of physical, developmental, dental, and behavioral health con-
ditions than any other group of children.”
185
This is true even when accounting
179. Mushlin, supra note 149, at 208.
180. Theodore P. Cross, Eun Koh, Nancy Rolock, & Jennifer Eblen-Manning, Why Do Chil-
dren Experience Multiple Placement Changes in Foster Care? Content Analysis on Reasons for
Instability, 7 J. PUB. CHILD WELFARE 39, 40 (2013).
181. James, supra note 163, at 601.
182. See, e.g., MD. SOC. SERVS. ADMIN., MARYLAND RESOURCE PARENT HANDBOOK 8 (2016),
http://dhr.maryland.gov/documents/Foster%20Care/ResourceParentHandGuide2016
_web.pdf [https://perma.cc/5K2G-HNK5] (“As directed by the local department, resource parents
[in Maryland] meet the needs of their foster child by scheduling medical, dental and/or psychologi-
cal/psychiatric appointments and providing transportation to those appointments.”); Lloyd Nelson,
Foster Children and Medical Care, EMBRELLA (Oct. 23, 2015), http://foster-adoptive-kinship-fam-
ily-services-nj.org/foster-children-and-medical-care/ [https://perma.cc/PJ7W-EK8F] (“[New Jer-
sey] foster parents are responsible for obtaining appropriate medical and dental care for the child or
children in their homes on a routine and emergency basis.”).
183. Health Oversight for Children and Youth in Foster Care, NAT’L CONF. ST. LEGISLATURES
(June 14, 2017), http://www.ncsl.org/research/human-services/health-oversight-for-children-and-
youth-in-foster-care.aspx [https://perma.cc/GHD6-TKU4]; see also Child Welfare Info. Gateway,
U.S. Dep’t of Health & Human Servs., Health-Care Coverage for Youth in Foster Care—and After,
ISSUE BRIEF, May 2015, at 1, 7,
https://www.childwelfare.gov/pubPDFs/health_care_foster.pdf [https://perma.cc/H2PB-72GU].
184. See TASK FORCE ON HEALTH CARE FOR CHILDREN IN FOSTER CARE, AM. ACAD. OF
PEDIATRICS, FOSTERING HEALTH: HEALTH CARE FOR CHILDREN AND ADOLESCENTS IN FOSTER CARE
ix (2d ed. 2005), https://www.aap.org/en-us/advocacy-and-policy/aap-health-initiatives/healthy-fos-
ter-care-america/documents/fosteringhealthbook.pdf [https://perma.cc/6TZK-2LLW] (“Children
and adolescents in foster care have a higher prevalence of physical, developmental, dental, and be-
havioral health conditions than any other group of children. Typically these health conditions are
chronic, under-identified, and undertreated[.]”).
185. Id.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 547
for poverty: foster children have been shown to have higher rates of health prob-
lems than other poor children receiving Medicaid.
186
One study of foster children and their medical care yielded alarming find-
ings.
187
Sixty-eight percent of the studied children had not been vaccinated for
mumps; thirty-six percent had not received vaccination for measles; and twenty-
three percent had not received protection from diphtheria, tetanus, and pertus-
sis.
188
Fourteen percent had received no medical examination before entering care,
over forty percent had not received adequate optical or dental care, and only a
quarter of those who had identified emotional or developmental problems had re-
ceived treatment.
189
Such failures to promptly address children’s medical needs
may lead to long-term complications. Inconsistent dental care, for example, can
lead to severe damage that takes years to repair.
190
In another troubling set of results, the United States General Accounting Of-
fice issued a report on foster children in New York City, Philadelphia, and Los
Angeles, revealing that “an estimated 12 percent of young foster children received
no routine health care, 34 percent received no immunizations, and 32 percent had
at least some identified health needs that were not met.”
191
Further, the office
noted that, due to a lack of information, it was possible the figures of underat-
tended youth were in fact higher, as children who were categorized as having re-
ceived adequate medical care may have only had one visit to a medical profes-
sional, instead of the ongoing treatment that they needed.
192
Medical care can fall through the cracks for myriad reasons including multi-
ple foster care placements and changing medical caregivers.
193
Placement changes
make it difficult for children to have continued access to an existing health care
provider, thereby preventing the development of a consistent relationship and hin-
dering the medical provider’s ability to get a complete picture of the child and her
medical history.
194
186. See SUSAN COSGROVE, CARLTON FROST, REBECCA CHOWN, & TAWSIF ANAM, WIS. DEP’T
OF HEALTH SERVS. & WIS. DEP’T OF CHILDREN & FAMILIES, STRENGTHENING HEALTH OUTCOMES FOR
FOSTER CARE CHILDREN 15 (2013), https://www.lafollette.wisc.edu/images/
publications/workshops/2013-DCF-DHS.pdf [https://perma.cc/5X7Q-6LJG].
187. Margaret R. Swire & Florence Kavaler, Health Supervision of Children in Foster Care,
57 CHILD WELFARE 563 (1978).
188. Id. at 565.
189. Mushlin, supra note 149, at 208–09 (citing FLORENCE KAVALER & MARGARET R. SWIRE,
FOSTER-CHILD HEALTH CARE 142, 146 (1983)).
190. See Ann Carrellas, Angelique Day, & Tamara Cadet, Oral Health Care Needs of Young
Adults Transitioning from Foster Care, 43 HEALTH & SOC. WORK 22, 27 (2018).
191. U.S. GEN. ACCOUNTING OFFICE, HEHS-95-114, FOSTER CARE: HEALTH NEEDS OF MANY
YOUNG CHILDREN ARE UNKNOWN AND UNMET 2 (1995), https://www.gao.gov/assets/230/
221275.pdf [https://perma.cc/STV9-ADT2].
192. Id. at 5.
193. Natalie McGill, Making Health a Priority for Children in Foster Care System, NATION’S
HEALTH, Sept. 2016, at 14, 14.
194. Robin Mekonnen, Kathleen Noonan, & David Rubin, Achieving Better Health Care Out-
comes for Children in Foster Care, 56 PEDIATRIC CLINICS N. AM. 405, 406–07 (2009).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
548 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
Foster children also experience poorer sexual health outcomes than their peers
in the general population. Foster children engage in sexual behavior at a younger
age than their non-foster care counterparts.
195
They are also more likely to engage
in riskier sexual behavior such as unprotected sex.
196
As a result, teenage preg-
nancy is higher in the foster care population.
197
Research demonstrates that a “his-
tory of childhood or adolescent sexual abuse is associated with unprotected sexual
intercourse, multiple sexual partners, early sexual initiation, teen pregnancy in-
volvement, and exchange of sex for money or drugs.”
198
While it is possible that
some of this behavior could be connected to past sexual abuse in biological fami-
lies, such outcomes could also be connected to the high rates of sexual abuse in
foster care.
199
Foster children may also be more likely to use illicit drugs. One study found
that almost half of the foster children studied had used illicit drugs at some point
and more than a third of them met the criteria for a substance use disorder.
200
Another study found that children whose foster care stay was a year or more had
over seven times the rate of drug dependence and almost twice the rate of alcohol
dependence as the general population.
201
Children in foster care are therefore more likely to experience adverse health
effects caused by drug use
202
and risky sexual behavior
203
and are also less likely
to receive adequate medical care
204
during their time in foster care. This combi-
nation puts children in foster care at risk for serious long-term health problems in
the future.
205
195. Erin Kim Hazen, Youth in Foster Care: An Examination of Social, Mental, and Physical
Risks, N.Y.U. APPLIED PSYCHOL. OPUS (Fall 2014), https://steinhardt.nyu.edu/appsych/opus/
issues/2014/fall/hazen [https://perma.cc/8P6Z-F9BP].
196. Id.
197. Krista Brooks, Teen Pregnancy and Foster Care, NAT’L CTR. HEALTH RES.,
http://www.center4research.org/teen-pregnancy-foster-care/ [https://perma.cc/J4F4-LLLX] (“Teen-
age girls in the foster care system are twice as likely to get pregnant before turning 19 than teenage
girls who are not in foster care.”); see also Hazen, supra note 195.
198. Yuko Homma, Naren Wang, Elizabeth Saewyc, & Nand Kishor, The Relationship Be-
tween Sexual Abuse and Risky Sexual Behavior Among Adolescent Boys: A Meta-Analysis, 51 J.
ADOLESCENT HEALTH 18, 19 (2012).
199. See supra notes 147–49 and accompanying text.
200. Michael G. Vaughn, Marcia T. Ollie, J. Curtis McMillen, Lionel Scott Jr., & Michelle
Munson, Substance Use and Abuse Among Older Youth in Foster Care, 32 ADDICTIVE BEHAVS.
1929, 1932, 1935 (2007).
201. Peter J. Pecora, Catherine Roller White, Lovie J. Jackson, & Tamera Wiggins, Mental
Health of Current and Former Recipients of Foster Care: A Review of Recent Studies in the USA,
14 CHILD & FAM. SOC. WORK 132, 139 (2009).
202. See supra notes 200–201 and accompanying text.
203. See supra notes 197–98 and accompanying text.
204. See supra notes 184–94 and accompanying text.
205. See TASK FORCE ON HEALTH CARE FOR CHILDREN IN FOSTER CARE, AM. ACAD. OF
PEDIATRICS, supra note 184, at ix.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 549
4. Mental Health Effects and Consequences of Foster Care Placement
In addition to the emotional harms described above, foster children have an
“increased risk for mental health disorders.”
206
As a result, children in foster care
have higher rates of psychiatric problems than the general population.
207
In some
cases this may be related to mistreatment prior to removal, but it can also be trig-
gered or exacerbated by numerous foster care placements and the feelings of loss
described earlier.
208
One study concluded that children who moved foster care
placements more frequently were more likely to develop emotional and behavioral
problems than children in a stable foster care setting.
209
The mental health consequences of foster care placement can be serious. In
one study, 54.4 percent of a population of 659 foster care alumni
210
were diag-
nosed with mental health disorders including depression, social phobia, post-trau-
matic stress disorder (“PTSD”), and drug dependence, and about one in five of the
same population had three or more mental health problems.
211
Another study
showed that “up to about 80% of [foster] children exhibit a serious behavioral or
mental health problem requiring intervention.”
212
Researchers have found that
forty-three percent of foster care participants report diagnoses of depression and
twenty-nine percent report suffering from PTSD.
213
Other studies have found that
the rate of PTSD in foster children is almost twice as high as the rate in United
States war veterans.
214
Many of these youths suffer from multiple problems that could have extreme
consequences later in life. One study showed that nearly twenty percent of young
people who had been in foster care had three or more current psychiatric problems
as compared to around three percent of those who had never been in foster care.
215
Individuals with depression or PTSD may later experience “medical conditions
such as heart disease, high blood pressure, diabetes, or cancer.”
216
Depression and
PTSD often occur together but may also occur with other mental health concerns
206. Peter J. Pecora, Peter S. Jensen, Lisa Hunter Romanelli, Lovie J. Jackson, and Abel Ortiz,
Mental Health Services for Children Placed in Foster Care: An Overview of Current Challenges,
88 CHILD WELFARE 5, 10 (2009).
207. Bruskas & Tessin, supra note 20, at 132.
208. Id. at 132; see discussion supra Section II.A.3.
209. Cross, Koh, Rolock, & Eblen-Manning, supra note 180, at 54. The authors acknowledge
that it is unclear whether instability led to increased likelihood of diagnosis or diagnosis increased
the probability of instability but believed that both scenarios were supported by research. Id.
210. PECORA, KESSLER, WILLIAMS, O’BRIEN, DOWNS, ENGLISH, WHITE, HIRIPI, WHITE,
WIGGINS, & HOLMES, supra note 152, at 1.
211. Id. at 1.
212. Pecora, Jensen, Romanelli, Jackson, & Ortiz, supra note 201, at 6.
213. Bruskas & Tessin, supra note 20, at 134.
214. Id. at 132 (citing PECORA, KESSLER, WILLIAMS, O’BRIEN, DOWNS, ENGLISH, WHITE,
HIRIPI, WHITE, WIGGINS, & HOLMES, supra note 152, at 1).
215. PECORA, KESSLER, WILLIAMS, O’BRIEN, DOWNS, ENGLISH, WHITE, HIRIPI, WHITE,
WIGGINS, & HOLMES, supra note 152, at 34.
216. Pecora, Jensen, Romanelli, Jackson, & Ortiz, supra note 201, at 16.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
550 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
such as “aggression, attention deficits, eating disorders, alcohol or drug addictions,
and suicidal tendencies.”
217
Mental health services in the foster care system are desperately needed yet
drastically under-accessed. Research shows that “three of four children who came
to the attention of the child welfare systems because of a child abuse and neglect
investigation and who had clear clinical impairment had not received any mental
health care within 12 months after the investigation.”
218
Black youth are even less
likely than white youth to receive mental health care.
219
And while there is limited
available data, “it appears that much of foster care is delivered without significant
mental health services for children other than referral to mental health agencies
for treatment.”
220
Once discharged from foster care, the problem of inadequate mental health
services is compounded further. Black and Hispanic young adults are less likely
to seek mental health treatment than their white counterparts due to “perceived
racism in the mental health system, fear of treatment or hospitalization, lack of
mental health professionals of the same race/ethnicity, and cultural mistrust.”
221
Combined, these conditions lead to a significant population of young people of
color who were never treated for their mental health issues as children and are now
left to cope as adults without support or treatment.
5. Long-Term Outcomes for Foster Children
Having outlined the myriad emotional, psychological, physical, and sexual
health challenges facing foster children, it is perhaps unsurprising that these chil-
dren have unfavorable long-term outcomes across virtually all metrics of suc-
cess—and notably worse outcomes than their counterparts who remain with their
families. Numerous studies document this phenomenon. MIT economist Joseph
Doyle found through multiple studies that children who remained at home fared
better than otherwise similarly situated children who were placed in foster care.
222
He found that foster children had greater involvement with the criminal justice
system, were more likely to become pregnant as teenagers, and generally earned
less than their similarly situated peers.
223
They were also more likely to become
217. Id. at 16–17.
218. Id. at 19.
219. Ann F. Garland, John A. Landsverk, & Anna S. Lau, Racial/Ethnic Disparities in Mental
Health Service Use Among Children in Foster Care, 25 CHILD. & YOUTH SERVS. REV. 491, 493–97
(2003).
220. Pecora, Jensen, Romanelli, Jackson, & Ortiz, supra note 201, at 20.
221. Lionel D. Scott, Jr. & Larry E. Davis, Young, Black, and Male in Foster Care: Relation-
ship of Negative Social Contextual Experiences to Factors Relevant to Mental Health Service De-
livery, 29 J. ADOLESCENCE 721, 725 (2006).
222. See, e.g., Joseph J. Doyle Jr., Child Protection and Child Outcomes: Measuring the Ef-
fects of Foster Care, 97 AM. ECON. REV. 1583, 1583 (2007) (“Those placed in foster care are far
more likely than other children to commit crimes, drop out of school, join welfare, experience sub-
stance abuse problems, or enter the homeless population.”).
223. See id. at 1607.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 551
involved with the juvenile justice system and require emergency healthcare within
a year of their child protective services report.
224
Other studies have found that children who spend time in foster care were
more likely to have alcohol or drug addictions,
225
more likely to have a criminal
record, and less likely to have graduated high school.
226
Other research shows that
as children become adults, they are more likely to require counseling for psycho-
logical or emotional problems and to attend substance abuse treatment pro-
grams.
227
That study, dubbed “The Midwest Study,” highlighted the difficulties sur-
rounding foster children’s transition to adulthood. The study found that foster care
alumni were less likely than their peers to succeed academically
228
or to have eco-
nomic stability.
229
Specifically, the Study found that while around three-quarters
of the former foster youth surveyed had a high school diploma or GED, only seven
percent of women and five percent of men had an associate’s degree, much lower
than the percentage of youth in the general population.
230
Further, fewer than half
of the Study’s participants had a job and the majority of those who were working
did not make a living wage—half of those working reported an annual income of
$8,000 or less.
231
As a result, nearly thirty percent of those surveyed had experi-
enced food insecurity, with two-thirds of the females and more than twenty-five
percent of the males receiving food stamps in the previous year.
232
Nearly forty
percent had been homeless or lacked stable housing at some point since leaving
foster care.
233
The Northwest Study also documented grave outcomes for life after foster
care. This study featured adults who received support from social services organ-
izations in multiple cities throughout the northwestern United States,
234
“fo-
cus[ing] on identifying how alumni were faring and what foster care experiences
224. Sankaran & Church, supra note 177, at 212 (citing Joseph J. Doyle, Jr., Causal Effects of
Foster Care: An Instrumental-Variables Approach, 35 CHILD. & YOUTH SERVS. REV. 1143, 1148–
49 (2013)).
225. See Catherine Roller White, Kirk O’Brien, James White, Peter J. Pecora, & Chereese M.
Phillips, Alcohol and Drug Use Among Alumni of Foster Care: Decreasing Dependency Through
Improvement of Foster Care Experiences, 35 J. BEHAV. HEALTH SERVS. & RES. 419, 420 (2008).
226. See Doyle, supra note 222, at 1583.
227. MARK E. COURTNEY, AMY DWORSKY, JOANN S. LEE, & MELISSA RAAP, CHAPIN HALL,
UNIV. OF CHI., MIDWEST EVALUATION OF THE ADULT FUNCTIONING OF FORMER FOSTER YOUTH:
OUTCOMES AT AGES 23 AND 24, at 44–45 (2010), https://www.chapinhall.org/wp-content/up-
loads/Midwest-Eval-Outcomes-at-Age-23-and-24.pdf [https://perma.cc/Z3UZ-RBN7].
228. Id. at 95.
229. Id.
230. Id.
231. Id.
232. Id.
233. Id. at 96.
234. PECORA, KESSLER, WILLIAMS, O’BRIEN, DOWNS, ENGLISH, WHITE, HIRIPI, WHITE,
WIGGINS, & HOLMES, supra note 152, at 1, 10.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
552 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
resulted in positive outcomes.”
235
While this study found that about eighty percent
of foster care alumni in the workforce were employed, one-third of the interviewed
alumni had incomes at or below the poverty line.
236
Further, one-third had no
health insurance and more than one in five had experienced homelessness after
leaving foster care.
237
Although not a direct comparison, of all the alumni sur-
veyed between the ages of twenty to thirty-three, only 1.8 percent had completed
a bachelor’s degree program (compared to twenty-four percent in the general pop-
ulation of the same age).
238
Of those alumni older than twenty-five, only 2.7 per-
cent had completed a bachelor’s degree.
239
Despite the mountain of evidence that foster children fare worse than their
similarly situated peers across the board, none of this information is considered in
child welfare proceedings in most states when deciding whether to remove chil-
dren from their homes.
240
This, too, appears antithetical to a system ostensibly
designed to protect children.
III.
HOW THE LAW CONTRIBUTES TO HARM
Part II established the social science bases for the harm of child removal. Part
III proceeds to examine how the current law around family removal contributes to
that harm, namely, by failing to take the harm into account.
In determining how the harm of removal can be integrated into current law, it
is important first to understand the historical and constitutional underpinnings of
the child welfare system. Removal without consideration of its effects on the child
was a part of “child welfare” before any public legal systems were in place. As the
law developed, it was driven by reactionary, race-based, and poverty-based panic,
and focused primarily, if not exclusively, on the risk to children of remaining with
their allegedly unfit parents. There was virtually no legal consideration of the harm
of removal from their parents. This pattern continues to this day.
A. The First Child Removals
The first hint of organized child welfare intervention was in the mid-nine-
teenth century, when New York City was facing calamitous levels of poverty.
241
Missionary Charles Loring Brace helped to found the New York Children’s Aid
235. Id. at 1.
236. Id. at 2.
237. Id.
238. Id.
239. Id.
240. See, e.g. Liebmann, supra note 14, at 148 (“Across the board, removal standards fail to
acknowledge or incorporate into the analysis the poor outcomes for many foster children with respect
to education and financial wellbeing.”).
241. JOHN E. B. MYERS, CHILD PROTECTION IN AMERICA: PAST, PRESENT, AND FUTURE 18
(2006).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 553
Society in an effort to focus solely on the needs of poor children.
242
These initial
attempts at intervention were made by a private citizen, not the state, and were
focused on shielding children from the harmful effects of extreme poverty rather
than child protection as we understand it today (although Brace was cognizant of
the existence of abuse and neglect).
243
To his credit, Brace created schools and
lodging houses that offered food, housing, and education to homeless and destitute
children.
244
Brace’s other solution to the poverty problem, however, was the cre-
ation of “orphan trains.”
245
These trains carried “nearly 100,000 New York City
children to new homes in the Midwest between 1854 and 1929.”
246
Brace believed
that the only hope for many of these children was a “fresh start” in the “wholesome
environs of midwestern farms and villages.”
247
These historical movements were the precursors to early removals and foster
care placements.
248
And, as we still see today, poverty was deeply intertwined
with the decision concerning what was in children’s best interests. Just as the Chil-
dren’s Aid Society focused on taking children out of poverty and placing them
somewhere “better,” in our current child welfare system children are still taken
from poor parents far more often than from wealthy parents.
249
Children’s Aid itself recognizes today that the orphan train movement had its
“pitfalls.”
250
Contemporary criticisms of this historical movement mirror present-
day concerns about the modern child welfare system. Some critics were apprehen-
sive that orphans were placed without proper investigation prior to placement or
follow-up once the children were in new homes.
251
Others questioned whether
Brace was motivated by cultural difference, arguing that he intended to save Cath-
olic children by relocating them to Protestant homes.
252
242. Id. at 18–19.
243. Id.
244. Id. at 20.
245. Id. at 21.
246. Id.
247. Id.
248. Angelique Brown, Orphan Trains (1854-1929), VCU LIBR. SOC. WELFARE HIST. PROJECT
(2011), https://socialwelfare.library.vcu.edu/programs/child-welfarechild-labor/orphan-trains/
[https://perma.cc/L23H-DM6F].
249. Andrea Charlow, Race, Poverty, and Neglect, 28 WM. MITCHELL L. REV. 763, 764–65
(2001) (“Consistent with its origins, the current child welfare system continues to remove more poor
children from their families than their wealthier counterparts.”).
250. The Orphan Train Movement, CHILD. AID, http://www.childrensaidnyc.org/about/
orphan-train-movement [https://perma.cc/7VPJ-RSDY].
251. Rebecca S. Trammell, Orphan Train Myths and Legal Reality, 5 MOD. AM. 3, 5 (2009)
(citing Tim Hacsi, From Indenture to Family Foster Care: A Brief History of Child Placing, 74
CHILD WELFARE 162, 168–69 (1995)).
252. MYERS, supra note 241, at 23; but see STEPHEN O’CONNOR, ORPHAN TRAINS: THE STORY
OF CHARLES LORING BRACE AND THE CHILDREN HE SAVED AND FAILED 172 (2001) (“Although it is
perfectly true that Brace and many of his coworkers were deeply prejudiced against Catholics, and
that most Catholic children who were sent west did in fact end up being raised Protestant, their
conversion was never an overt aim of the charity[.]”).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
554 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
Further, while some of the children on the orphan trains were truly orphans,
others had at least one living parent.
253
Children were allegedly not supposed to
be removed without parental consent.
254
Members of the society “told the children
and their parents of the great advantages of going West; however, they were not
to induce children or to take them without the written or witnessed verbal consent
of their parents.”
255
Yet at least one family petitioned the court to have their chil-
dren returned after the police committed the children to the Children’s Aid Soci-
ety, suggesting that they did not consent to the removal in the first place.
256
Thus,
many of the problems critics of the child welfare system identify today—cultural
bias, lack of parental consent to remove, and lack of investigation and follow-up
after placement—were present at its inception.
When child protection went “public,” those problems remained and grew
deeper. The first formal child protective agency, the New York Society for the
Prevention of Cruelty to Children, was established in 1875 after its founders con-
ducted the first court-sanctioned child removal.
257
Within forty years, there were
494 similar societies in the United States that were hailed as the pioneers of the
public child welfare system because they increased public awareness of child
abuse, lobbied for its criminalization, filed actions in court, and “challenged the
autonomy of parents in the interest of child protection to a greater extent than had
other organized social agencies.”
258
This history demonstrates that, from its inception, the child welfare system
was based on faulty assumptions about what was in a child’s best interest. The
pioneers of the child welfare system determined that poverty was reason enough
to remove a child from her parents. Further, perceptions about a family’s back-
ground and beliefs and their “otherness” was a possible motivating factor in de-
termining which children should be removed. At that time, it appears that there
was no regard for the trauma of separating these children from their families, in
part because their families were valued less by society. Two centuries later, such
assumptions continue to pervade the child welfare system.
Modern child welfare activists argue that labeling the poor with genetic infe-
riority has simply been replaced in today’s system with a label of psychological
inferiority
259
and, given the racial composition of the families involved in the child
253. Id. at 22.
254. See Kristine E. Nelson, Child Placing in the Nineteenth Century: New York and Iowa, 59
SOC. SERV. REV. 107, 108 (1985).
255. Id.
256. See In re Knowack, 53 N.E. 676, 677 (N.Y. 1899).
257. John E.B. Myers, A Short History of Child Protection in America, 42 FAM. L.Q. 449, 449,
451–52 (2008).
258. Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The Use
and Abuse of Child Maltreatment Statutes, 53 HASTINGS L.J. 1, 50 (2001).
259. Mundorff, supra note 78, at 174 (“Slaves were purportedly of an inferior race, while to-
day’s underclass is pathologized and given psychological pseudo diagnoses to justify intervention.”).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 555
welfare system, arguably one of racial and cultural inferiority as well.
260
Just as
Charles Brace believed that a “fresh start” was the only way to save these chil-
dren,
261
many of today’s child welfare professionals still believe that removing
Black and Brown children is in their best interest.
262
But, as outlined in Part I, that
belief is based on a misunderstanding of harm, and the law must be corrected ac-
cordingly.
B. The States’ Legal Interests in Protecting Children
Although the government initially was not involved in child welfare, the law
evolved to recognize state authority to protect its citizens. This was primarily
through the Supreme Court’s legal recognition of the state’s “police powers” and
the application of the doctrine of parens patriae to child welfare. In short, “the
police power is the state’s inherent plenary authority to promote the public health,
safety and welfare generally,” while the parens patriae doctrine “confers state au-
thority to protect or promote a particular child’s welfare.”
263
Under their police powers, states promulgate laws to further the state interest
in protecting the general population. These include “regulations designed to pro-
mote the public convenience[,] . . . the general prosperity, . . . the public health,
the public morals, or the public safety.”
264
The states’ police powers are broad,
265
and one of their traditional uses is the protection of the people’s safety.
266
The clearest application of these two principles in the child welfare context is
in Prince v. Massachusetts in 1944.
267
In Prince, a woman who was a practicing
Jehovah’s Witness was accused of violating child labor laws by letting a child over
whom she had custody sell religious magazines in the street.
268
The Supreme
260. Cf. Weithorn, supra note 258, at 59 (“[T]he nation’s web of child protective services
agencies has been the target of criticisms . . . for its ignorance of and bias against the cultural tradi-
tions of non-white segments of our nation’s population and its prejudice against racial and ethnic
minorities[.]”).
261. MYERS, supra note 241, at 21.
262. See Asim Cooper, supra note 94, at 231 (footnotes omitted) (first citing Elizabeth Bar-
tholet, The Racial Disproportionality Movement in Child Welfare: False Facts and Dangerous Di-
rections, 51 ARIZ. L. REV. 871, 874 (2009); and then citing Elizabeth Bartholet, Fred Wulczyn, Rich-
ard P. Barth, & Cindy Lederman, Race and Child Welfare, CHAPIN HALL ISSUE BRIEF, June 2011, at
1, 2, http://www.law.harvard.edu/faculty/bartholet/RD%20Conference-%20Issue%
20Brief%20-%20Final.pdf [https://perma.cc/T7AM-SCMV]) (“Mere disproportionality of minori-
ties in foster care is not itself evidence of discrimination, they argue, but rather reflects official mal-
treatment rates. These official maltreatment rates, according to Professor Bartholet, demonstrate
‘real differences in the underlying incidence of maltreatment, and that black children are actually at
significantly higher risk than white children for serious maltreatment.’”).
263. SARAH H. RAMSEY & DOUGLAS E. ABRAMS, CHILDREN AND THE LAW IN A NUTSHELL 10
(2d ed. 2003).
264. Chi., Burlington & Quincy Ry. Co. v Illinois ex rel. Grimwood, 200 U.S. 561, 592 (1906).
265. Wisconsin v. Yoder, 406 U.S. 205, 220 (1972).
266. Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 82 (1946).
267. Prince v. Massachusetts, 321 U.S. 158 (1944).
268. Id. at 161–62. It is worth noting that the woman and child at the center of Prince v.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
556 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
Court, in describing the rationale for upholding the labor laws as a valid state ex-
ercise of its police powers, stated that “[i]t is [in] the interest of youth itself, and
of the whole community, that children be both safeguarded from abuses and given
opportunities for growth into free and independent well-developed men and citi-
zens.”
269
Thus, as one commentator summarized, states may intervene to protect
children from “poor parenting.”
270
States often employ the doctrine of parens patriae to further these police-
power objectives in the context of children.
271
Literally, parens patriae means
“parent of his or her country.”
272
Black’s Law Dictionary defines parens patriae
as the right of the government “to prosecute a lawsuit on behalf of a citizen,” es-
pecially those who are unable to advocate for themselves,
273
such as minors or the
disabled.
274
Thus, while recognizing that parents do enjoy some rights, the Prince Court
held that:
[T]he family itself is not beyond regulation in the public interest
. . . [a]nd . . . rights of parenthood are [not] beyond limitation.
Acting to guard the general interest in youth’s well being, the state
as parens patriae may restrict the parent’s control by requiring
school attendance, regulating or prohibiting the child’s labor, and
in many other ways.
275
The Supreme Court has described parens patriae as “inherent in the supreme
power of every State . . . often necessary to be exercised in the interests of human-
ity, and for the prevention of injury to those who cannot protect themselves.”
276
Massachusetts were “others.” They were Jehovah’s witnesses who were distributing religious liter-
ature. In his dissent, Justice Murphy lamented that:
[T]he Jehovah’s Witnesses are living proof of the fact that even in this nation,
conceived as it was in the ideals of freedom, the right to practice religion in
unconventional ways is still far from secure. Theirs is a militant and unpopular
faith, pursued with a fanatical zeal. They have suffered brutal beatings; their
property has been destroyed; they have been harassed at every turn by the res-
urrection and enforcement of little used ordinances and statutes.
Id. at 176 (Murphy, J., dissenting).
269. Id. at 165.
270. Deana A. Pollard, Banning Corporal Punishment: A Constitutional Analysis, 52 AM. U.
L. REV. 447, 457 (2002).
271. Demosthenes A. Lorandos, Secrecy and Genetics in Adoption Law and Practice, 27 LOY.
U. CHI. L.J. 277, 311 (1996).
272. Parens Patriae, BLACK’S LAW DICTIONARY (10th ed. 2014).
273. Id.
274. See, e.g., Lori Joy Eisner, Casenotes: Constitutional Law—Maryland Circuit Courts
Have Parens Patriae Jurisdiction to Authorize Guardians to Consent to Sterilization of Incompetent
Minors When the Procedure Is Medically Necessary. Wentzel v. Montgomery General Hospital,
Inc., 293 Md. 685, 447 A.2d 1244 (1982), 11 U. BALT. L. REV. 467 n.8 (1982) (“[U]nder a parens
patriae theory . . . the state assumes the common law equity jurisdiction of guardianship over minors
and other persons under disability.”); Liebmann, supra note 14, at 149–50.
275. Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (footnotes omitted).
276. Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 557
Thus, with respect to children, parens patriae is the constitutional recognition that
a child is unable to care for itself and, therefore, when the government believes
that a parent fails to provide adequate care, the government may intervene.
277
C. Federal Intervention
Although early constitutional law recognized a state’s authority to intervene
in certain family matters, early federal legislation rarely attempted to use that au-
thority and made efforts to keep families together.
In the 1970s, in response to growing awareness about child abuse and Dr.
Henry Kempe’s breakthrough article, “The Battered Child Syndrome,”
278
the fed-
eral government passed the Child Abuse Prevention and Treatment Act
(“CAPTA”).
279
Passed in 1974, CAPTA conditioned federal funding for state
child welfare programs on implementation of federal anti-abuse policies,
280
but it
also allocated substantial funds for family preservation.
281
Shortly thereafter, in
1980, Congress passed the Adoption Assistance and Child Welfare Act
(“AACWA”),
282
which required states to make reasonable efforts to prevent re-
moval and, once children were placed into foster case, to make reasonable efforts
towards family reunification.
283
Two decades later, the government implemented the Adoption and Safe Fam-
ilies Act of 1997 (“ASFA”).
284
ASFA developed in the wake of the “War on
Drugs” when both the foster care population and the prison population were on
the rise.
285
The House Committee on Ways and Means reported that there was “a
growing belief that Federal statutes, the social work profession, and the courts
sometimes err on the side of protecting the rights of parents” to the detriment of
1, 57 (1890).
277. See Natalie Loder Clark, Parens Patriae and a Modest Proposal for the Twenty-First
Century: Legal Philosophy and a New Look at Children’s Welfare, 6 MICH. J. GENDER & L. 381, 391
(2000).
278. Vivek S. Sankaran, Innovation Held Hostage: Has Federal Intervention Stifled Efforts to
Reform the Child Welfare System?, 41 U. MICH. J.L. REFORM 281, 288 (2007) (citing Henry Kempe,
Frederic N. Silverman, Brandt F. Steele, William Droegemueller, & Henry K. Silver, The Battered
Child Syndrome, 9 CHILD ABUSE & NEGLECT 143 (1985)).
279. Id. (citing Child Abuse Prevention and Treatment Act of 1974, 42 U.S.C. § 5101 (1996)).
280. See id. at 288–89.
281. See, e.g., Child Welfare Info. Gateway, U.S. Dep’t of Health & Human Servs., Major
Federal Legislation Concerned with Child Protection, Child Welfare, and Adoption, FACTSHEET,
Oct. 2003, at 1, 2, 18, https://www.childwelfare.gov/pubPDFs/fedlegis.pdf [https://perma.cc/S68G-
AG64]; Promoting Safe and Stable Families: Title IV-B, Subpart 2, of the Social Security Act, CHILD.
BUREAU (May 17, 2012), https://www.acf.hhs.gov/cb/resource/pssf-title-iv-b-subpart-2-ssa
[https://perma.cc/RSB3-WMHZ].
282. Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 622 (2018).
283. Child Welfare Info. Gateway, U.S. Dep’t of Health & Human Servs., Reasonable Efforts
to Preserve or Reunify Families and Achieve Permanency for Children, ST. STATUTES, Mar. 2016,
at 1, 2 & n.2, https://www.childwelfare.gov/pubPDFs/reunify.pdf [https://perma.cc/WNJ5-V8C9].
284. Adoption and Safe Families Act of 1997, 42 U.S.C. § 671 (2012).
285. Allison E. Korn, Detoxing the Child Welfare System, 23 VA. J. SOC. POL’Y & L. 293, 308–
09 (2016).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
558 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
their children.
286
Reflecting this concern, ASFA stated that when making deci-
sions about removals, “the child’s health and safety shall be the paramount con-
cern.”
287
And so, removal rates rose based on a perception of rising “parental drug
use that was seen as contributing to social ills, like sexual deviance, crime, and
poverty.”
288
ASFA theoretically aims to continue AACWA’s goal of strengthening fami-
lies by requiring that “reasonable efforts shall be made to preserve and reunify
families prior to the placement of a child in foster care, to prevent or eliminate the
need for removing the child from the child’s home.”
289
Federal funds related to
removal are conditioned on a judicial finding that the state agency made reasona-
ble efforts to prevent removal and that remaining in the home would be contrary
to the welfare of the child.
290
If a state agency fails to make reasonable efforts, it
does not receive federal funds while that child is in foster care.
291
Depending on
the duration of the child’s stay in foster care, a failure to make reasonable efforts
could cost the state thousands of dollars.
292
In practice, however, ASFA’s reasonable efforts requirement is toothless; it
has made matters worse, not better. In part, this is because ASFA does not define
the term “reasonable efforts.” Child welfare reformers implored Congress to de-
fine reasonable efforts, noting the challenges resulting from the preceding law’s
failure to define this term.
293
Yet ASFA’s only clarification of prior law was to
declare that “in making such reasonable efforts, the child’s health and safety shall
be the paramount concern.”
294
This is, of course, no clarification at all.
In addition to its failure to define “reasonable efforts” to prevent removal,
ASFA eroded the reasonable efforts requirement of its predecessor by excusing
reasonable efforts in certain situations. For example, the child protective agency
is exempted from making reasonable efforts if the parent has subjected the child
to “aggravated circumstances,” committed a serious crime such as sexual abuse or
murder of another child of the parent, or if there has been a prior termination of a
286. H. R. REP. NO. 105-77, at 8 (1997), as reprinted in 1997 U.S.C.C.A.N. 2739, 2740.
287. 42 U.S.C. § 671(a)(15)(A).
288. Korn, supra note 285, at 308.
289. 42 U.S.C. § 671(a)(15)(B)(i).
290. See §§ 671(a)(15)(B)(i), 672(a)(2)(A)(ii); 45 C.F.R. § 1356.21(b)(1) (2012); see also
Sankaran & Church, supra note 177, at 214–15 (“Any order authorizing . . . removal . . . must be
based on the court’s finding that remaining in the home would be ‘contrary to the child’s welfare.’
Furthermore, absent certain aggravated circumstances, the court must find that the agency has made
reasonable efforts to prevent the child’s removal to foster care. If a court fails to make either of these
findings, the agency cannot receive any federal funds for the entire duration of the child’s stay in
foster care, a severe penalty that could cost the State thousands of dollars.”). While federal law also
requires reasonable efforts to be made towards reunification, for the purposes of this paper, “reason-
able efforts” refers to reasonable efforts to prevent removals.
291. Sankaran & Church, supra note 177, at 215.
292. Id.
293. Will L. Crossley, Defining Reasonable Efforts: Demystifying the State’s Burden Under
Federal Child Protection Legislation, 12 B.U. PUB. INT. L.J. 259, 279–80 (2003).
294. 42 U.S.C. § 671(a)(15)(A).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 559
parent’s rights with respect to a child’s sibling.
295
Not infrequently, then, the
agency need not make any effort whatsoever to prevent removal and need not be
diligent in its inquiry into the facts pertaining to the specific child.
296
ASFA also fails to specifically define “aggravated circumstances.”
297
As a
result, individual states are each able to freely define the circumstances that entitle
child welfare agencies to deny reunification efforts to biological parents. For ex-
ample, in states like Alabama, Kentucky, and Ohio, reasonable efforts are not re-
quired for parents who misuse substances and either refuse or fail to engage in
treatment.
298
“By doing this, ASFA helped to expedite permanency [i.e., freeing
children for adoption] and de-emphasize the rights of the biological parents.”
299
And the House Committee report on ASFA makes clear that “permanency” was
also a motivator driving ASFA, arising out of concerns about the growing number
of children who were languishing in foster care
300
due to increased removals.
301
But ASFA’s goal of “permanency” was geared towards adoption or other extra-
familial placements, not reunification.
302
ASFA therefore marked a discouraging
shift away from family reunification and towards adoption.
303
While some states choose to offer reunification incentives, federal law only
contains financial incentives for adoption—not for reunification.
304
Thus, in pass-
ing ASFA, the federal government displayed a preference for adoption and there-
fore designed a system which favors removals, as children must first be taken from
their biological families in order for them to be adopted later.
295. § 671(a)(15)(D)(i)–(iii).
296. Some states, such as Missouri, have left the agency with the discretion to make reasonable
efforts in implementing these exceptions. See MO. ANN. STAT. § 211.183(7) (West 2018).
297. § 671(a)(15)(D).
298. ALA. CODE § 12-15-312(c)(1)(b) (West 2019); KY. REV. STAT. ANN. § 610.127(5) (West
2018); see also OHIO REV. CODE ANN. § 2151.419(A)(2)(c) (West 2018) (must have put the child in
danger due to drug use); cf. CAL. WELF. & INST. CODE § 361.5(b)(13) (West 2018) (reunification
discretionary in these circumstances).
299. LESLEY J. KARNES, THE ADOPTION AND SAFE FAMILIES ACT OF 1997: A POLICY ANALYSIS
56 (2015), https://pqdtopen.proquest.com/doc/1687757557.html?FMT=AI [https://perma.cc/3LHH-
87GX].
300. See H.R. REP. NO. 105-77, at 8–9 (1997), as reprinted in 1997 U.S.C.C.A.N. 2739, 2741
(“[A]nother barrier to adoption has been that States often move slowly in moving children toward
permanent settings. . . . Thus, a second provision of the Committee bill would promote adoption by
requiring States to initiate action to terminate parental rights in the case of children under age 10
who have been in foster care for 18 of the past 24 months. This provision would move States toward
establishing timeframes and deadlines in their attempts to provide reasonable help to families.”).
301. ROBERTS, supra note 97, at 104–13, reprinted in Dorothy Roberts, ASFA: An Assault on
Family Preservation, PBS THIRTEEN: FRONTLINE (2003), https://www.pbs.org/wgbh/pages/
frontline/shows/fostercare/inside/roberts.html [https://perma.cc/V8HJ-EUTE].
302. See id.
303. See Cristine H. Kim, Putting Reason Back into the Reasonable Efforts Requirement in
Child Abuse and Neglect Cases, 1999 U. ILL. L. REV. 287, 309.
304. See EMILIE STOLTZFUS, CONG. RESEARCH SERV., R43025, CHILD WELFARE: STRUCTURE
AND FUNDING OF THE ADOPTION INCENTIVES PROGRAM ALONG WITH REAUTHORIZATION ISSUES
(2013).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
560 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
Even if we judge ASFA by its stated goal of achieving permanency for foster
children, it has largely failed.
305
In 2016, nearly twenty years after ASFA was
passed, 117,794 children were awaiting adoption.
306
Of those, more than half—
65,274
307
—were “legal orphans,” meaning that their parents’ rights had been ter-
minated but they were still awaiting adoption.
308
Further, of these 117,794 chil-
dren, only around thirteen percent (14,765) were in pre-adoptive homes.
309
Thus,
current federal law continues to inflict the harms of foster care on children with
little hope of being reunited with their parents. But the sad fact is that the majority
of these children will not be adopted either.
D. How Removals Are Conducted Without Consideration of Harm of Removal
With this legal backdrop in mind, it is useful to understand how the law is
effected in practice across the country: most states remove children without re-
quiring consideration of the extensive harms—like those discussed above
310
—
these removals are causing.
When the state receives a report of child abuse or neglect, it assigns a case-
worker to conduct an investigation.
311
If the caseworker determines that the child
should be removed, parents are generally entitled to a hearing.
312
Most states have
two sets of statutes that govern those hearings: “removal statutes” and “reasonable
efforts statutes.” Thus, there are (at least) two relevant judicial questions as a court
determines whether to remove a child from her parent: 1) is there sufficient risk
of harm to remove the child?; and 2) did the state make reasonable efforts to pre-
vent removal?
313
The majority of jurisdictions do not require that courts consider the harm of
removal when answering those questions.
In some states’ statutory schemes, such evidence could be introduced, though
the court is under no obligation to consider it. For example, some states determine
305. Wexler, supra note 14, at 144–45.
306. CHILDREN’S BUREAU, U.S. DEP’T OF HEALTH & HUMAN SERVS., THE [2016] AFCARS
REPORT 20 (2017), https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport24.pdf
[https://perma.cc/T24N-RVF4].
307. Id.
308. See, e.g., Martin Guggenheim, The Effects of Recent Trends to Accelerate the Termina-
tion of Parental Rights of Children in Foster Care—An Empirical Analysis in Two States, 29 FAM.
L.Q. 121, 134 (1995).
309. CHILDREN’S BUREAU, U.S. DEP’T OF HEALTH & HUMAN SERVS., supra note 306, at 20, 50.
310. See supra Part II.
311. Amy Mulzer & Tara Urs, However Kindly Intentioned: Structural Racism and Volunteer
Casa Programs, 20 CUNY L. REV. 23, 30 (2016).
312. Id. at 30–31.
313. For example, in New York, a removal order must state “the court’s findings which sup-
port the necessity of such removal.” N.Y. FAM. CT. ACT § 1027(b)(ii) (McKinney 2018). The order
must also state “whether reasonable efforts were made prior to the date of the hearing . . . to prevent
or eliminate the need for removal of the child from the home.” Id.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 561
whether removal would be in the best interests of the child.
314
Others also con-
template whether continued placement in the child’s home is contrary to the
child’s welfare.
315
Statutes in other states provide that a parent may “introduce
evidence, call witnesses, be heard on their own behalf, and cross-examine wit-
nesses called by the state.”
316
A parent from any of these states may be able to
introduce harm-of-removal evidence, although it is unclear if such information
would be considered relevant. In these jurisdictions, harm of removal arguments
could be appropriate, but there is no guarantee that they will be given adequate
weight by the court.
For other states, the problem is instead a temporal one. Alaska explicitly re-
quires a consideration of the harm of removal in the ultimate adjudication of
whether a child needs state assistance.
317
However, such a hearing is only required
within 120 days.
318
Therefore, a child could be in foster care for months before
the judge is required to consider the harm of removal. So, while Alaska’s law at
least recognizes that these harms should be considered, it does so too late in the
process.
Similarly, some states, like Maryland, require or allow a hearing after the
child is placed in shelter care to determine whether it is contrary to the welfare of
the child to return home.
319
Even if a parent were to prevail at such a hearing, the
trauma of the removal process itself has already been inflicted regardless of how
long the removal lasted.
Other states, like Arkansas, require courts to “order family services appropri-
ate to prevent removal unless the health and safety of the juvenile warrant imme-
diate removal for the protection of the juvenile.”
320
This is a clearer directive that
reasonable efforts must be made prior to removal because it explicitly requires
services be put into place to avoid the need for removal if possible.
Colorado requires the state to advise the parent that a “child may risk life-
long damage to his or her emotional well-being if the child becomes attached to
one caregiver and is later removed from the caregiver’s home.”
321
Presumably,
this is meant to force a parent to consider whether reunification will be difficult
for the child (if the child has become attached to the person with whom the child
was placed) before pressing for reunification. This demonstrates the blind spot so
314. E.g., ARK. CODE ANN. § 9-27-102 (West 2019); KAN. STAT. ANN. § 38-2255(c)(1)(C)
(West 2019); cf. DEL. FAM. CT. R. CIV. P. 214(b)(2) (hearing for continued state custody after initial
removal).
315. E.g., GA. CODE ANN. § 15-11-202(j)(1) (West 2019); KAN. STAT. ANN. § 38-
2243(c)(1)(B); ME. STAT. tit. 22, § 4036-B(2) (2019); N.H. REV. STAT. ANN. § 169-D:10-b(I) (2019);
TEX. FAM. CODE ANN. § 262.101(2) (West 2019).
316. E.g., LA. CHILD. CODE ANN. art. 624 (2018).
317. See ALASKA STAT. ANN. § 47.10.080(a) (West 2018).
318. Id.
319. E.g., MD. CODE ANN., CTS. & JUD. PROC. § 3-815(b)(3)(i)(1), (d)(1) (West 2018).
320. E.g., ARK. CODE. ANN. § 9-27-328(a) (West 2018).
321. COLO. REV. STAT. ANN. §19-3-403(3.6)(a)(I)(E) (West 2018).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
562 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
many states have toward the harm of choosing to first remove a child: on the one
hand, the law may contemplate the general harm associated with removal; on the
other hand, it incorporates no reference to the specific harm caused by removal
from the child’s parents. Instead, it only considers the harm that might be later
caused by removing a child from a temporary custodian, such as a foster parent or
kinship resource.
On the whole, the problem with statutes that allow for contemplation of the
harm of removal is that even if lawyers make these arguments, judges are not re-
quired to take the information into account. And even if judges were required to
or even elected to consider such factors, no statutory guidance exists for weighing
this evidence against any perceived risk of harm in keeping the child at home.
Hence, a judge could easily find that moving to a foster home in a better neigh-
borhood with wealthier foster parents is in a child’s best interest, even if signifi-
cant harm-of-removal evidence is adduced. As a result, one could argue that these
vague statutes leave even greater room for flawed, subjective notions of what is
“best” for a child. And at the very least, they create unnecessary uncertainty for
parents, children, judges, and practitioners.
E. Reasonable Efforts Statutes That Do Not Incorporate the Harm of Removal
Since federal funding is conditioned on enactment of provisions set out by
ASFA,
322
all fifty states have enacted “reasonable efforts” legislation to comply
with ASFA and ensure their access to federal funds.
323
In promulgating these statutes, however, most states adopted ASFA’s lan-
guage verbatim. Thus, despite the confusion caused by the undefined federal “rea-
sonable efforts” standard, most states did nothing to clarify what the law re-
quires.
324
As a result, in most states, individual agencies, and caseworkers are left
to decide what efforts to make in each case.
325
Courts also have no guidance in
measuring what criteria should be weighed to determine whether the state agency
made reasonable efforts to prevent removal.
326
322. 42 U.S.C. § 679b(a)(4) (requiring regulations to evaluate state performance of ASFA’s
requirements as a condition of continued funding); see also Katherine A. Hort, Is Twenty-Two
Months Beyond the Best Interest of the Child? ASFA’s Guidelines for the Termination of Parental
Rights, 28 FORDHAM URB. L.J. 1879, 1898 (2001).
323. See Hort, supra note 322, at 1886.
324. Crossley, supra note 293, at 282, 293 (“[T]he original conception of the reasonable efforts
provision as Congress introduced it in the Child Welfare Act is commonplace among state stat-
utes.”).
325. See, e.g., id. at 295–97 (offering examples of the varying degrees of “reasonable ef-
forts”—such as acting with “due diligence” and providing “appropriate services”—and the lack of
clarity provided to state agencies); Alice C. Shotton, Making Reasonable Efforts in Child Abuse and
Neglect Cases: Ten Years Later, 26 CAL. W. L. REV. 223, 241 (1990) (“Many child welfare workers
want to know what their duty under the reasonable efforts requirement is[.]”).
326. See, e.g., Crossley, supra note 293, at 285–86; Shotton, supra note 325, at 227.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 563
IV.
HOW THE LAW CAN HELP CHILDREN
A. The Right to Family Integrity
Thus far, the article has described how (1) removal causes harm to children,
and (2) how, for the most part, the law does not incorporate that harm into removal
decisions. From this point forward, the article will discuss how the law—as made
by lawyers, lawmakers, and judges—can fill this glaring gap.
First, we must recognize and emphasize that the law already contemplates a
right to family integrity. The right to family integrity is an outgrowth of the fun-
damental constitutional liberty interest of parents to raise their children.
327
More
recently, the law has come to encompass the notion that families have a right to
stay together.
328
While the right to family integrity was initially framed as belonging to the
parents, Supreme Court jurisprudence suggests this right belongs to children,
too.
329
In Santosky v. Kramer, the earliest expansion of the right to family integ-
rity, the Court noted that, until a finding of unfitness, parents and children share
an interest in preventing termination of their relationship.
330
In so doing, scholars
argue that the Court demonstrated that this right was “reciprocal, running both
from the child to the parent and the parent to the child . . . suggest[ing] that either
party could invoke the right, not just the parent.”
331
While the question of whether
children possess this fundamental right is an open one and has never been squarely
answered by the Supreme Court,
332
at least four federal circuits and several lower
courts have held that this right belongs to both parents and children.
333
327. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (holding that parents have a fundamen-
tal right to direct upbringing of their children by controlling their education).
328. Santosky v. Kramer, 455 U.S. 745, 753–54 (1982); Stanley v. Illinois, 405 U.S. 645, 651
(1972) (citations omitted) (first citing Meyer, 262 U.S. at 399; then citing Skinner v. Oklahoma, 316
U.S. 535, 541 (1942); and then citing Griswold v. Connecticut, 381 U.S. 479, 496 (1965) (Goldberg,
J., concurring)) (“The integrity of the family unit has found protection in the Due Process Clause of
the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the
Ninth Amendment.”).
329. Lawrence G. Albrecht, Human Rights Paradigms for Remedying Governmental Child
Abuse, 40 WASHBURN L.J. 447, 448 (2001).
330. Santosky, 455 U.S. at 760.
331. Kevin B. Frankel, The Fourteenth Amendment Due Process Right to Family Integrity
Applied to Custody Cases Involving Extended Family Members, 40 COLUM. J.L. & SOC. PROBS. 301,
319 (2007).
332. Stratton v. Mecklenburg Cty. Dep’t of Soc. Servs., 521 F. App’x 278, 295 (4th Cir. 2013).
333. The Second Circuit has stated in dicta that the right to the preservation of family integrity
encompasses the reciprocal rights of both parents and children. Duchesne v. Sugarman, 566 F.2d
817, 825 (2d Cir. 1977). The Fifth Circuit has cited Duchesne for this proposition, noting that the
right of the family to remain together “without the coercive interference of the awesome power of
the state” is the “most essential and basic aspect of familial privacy.” Hodorowski v. Ray, 844 F.2d
1210, 1216 (5th Cir. 1988) (quoting Duchesne, 566 F.2d at 825). The Seventh Circuit has also noted
that several courts have held that just as “[p]arents have a fundamental due process right to care for
and raise their children, . . . children enjoy the corresponding familial right to be raised and nurtured
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
564 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
Children, therefore, arguably have an independent right to remain a part of
their family. And, at the very least, parents have a clear right to remain with their
children until a finding of unfitness.
In analyzing these fundamental rights, scholars have outlined the following
rationale for constitutional protection of the family unit:
First, history and tradition support the designation of this funda-
mental freedom. Second, the government relies on the family to
socialize children as well as to instill moral and cultural values.
Third, family autonomy facilitates pluralism and diversity which
might not be preserved if the government controlled childrearing.
Finally, protection of family relations is often important to the
physical and emotional development of the child.
334
Scholars have also argued that recognition of the right to family integrity de-
veloped in response to the destruction of Black families during slavery, and that it
was necessary because “the destruction of the family was seen as a powerful ve-
hicle of subjugation and dehumanization that could be inflicted on minority
groups.”
335
The rationales supporting these constitutional principles demonstrate a direct
recognition of the harms inflicted on a child once separated from her parents. They
acknowledge the fact that parents and children have a shared right to remain to-
gether as a family,
336
and that separating families also destroys communities.
Following from these principles, when the state believes it is necessary to
intervene in family relations, “[t]he fundamental liberty interest of natural parents
in the care, custody, and management of their child does not evaporate simply
because they have not been model parents or have lost temporary custody of their
child to the State.”
337
In other words, the state’s involvement must be narrowly
tailored to achieve the compelling interest in protecting children while not infring-
ing on the family’s fundamental liberty interests.
by their parents.” Berman v. Young, 291 F.3d 976, 983 (7th Cir. 2002). Additionally, the Ninth
Circuit has explicitly held that “[t]he companionship and nurturing interests of parent and child in
maintaining a tight familial bond are reciprocal, and we see no reason to accord less constitutional
value to the child-parent relationship than we accord to the parent-child relationship. Smith v. City
of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds by Hodgers–Durgin v.
de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc). Several lower courts have also cited Duchesne
for the larger idea that the right to family integrity is reciprocal. See, e.g., Loftus v. Clark-Moore,
No. 09-14019-CIV, 2009 WL 1956319, at *5 (S.D. Fla. July 7, 2009), aff’d, 690 F.3d 1200 (11th
Cir. 2012); In re Terry D., 148 Cal. Rptr. 221, 226 (Ct. App. 1978).
334. Daan Bravemen & Sarah Ramsey, When Welfare Ends: Removing Children from the
Home for Poverty Alone, 70 TEMP. L. REV. 447, 450–51 (1997) (footnotes omitted).
335. Caitlin Mitchell, Family Integrity and Incarcerated Parents: Bridging the Divide, 24
YALE J.L. & FEMINISM 175, 181 (2012).
336. Pamela Dru Sutton, The Fundamental Right to Family Integrity and Its Role in New York
Foster Care Adjudication, 44 BROOK. L. REV. 63, 63 (1977).
337. Santosky v. Kramer, 455 U.S. 745, 753–54 (1982).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 565
Even if a child welfare case is opened, the presumption of a shared interest
between child and parent persists unless and until a judicial finding of unfitness is
made. The Supreme Court has held that “[t]here is a presumption that fit parents
act in their children’s best interests; there is normally no reason for the State to
inject itself into the private realm of the family to further question fit parents’
ability to make the best decisions regarding their children.”
338
Once a court makes
a finding of unfitness, however, the state’s own compelling interest in protecting
its citizens permits it to overcome the family’s constitutional interests and inter-
vene.
339
In sum, in considering the removal of a child, it is important to remember that
the constitutional rights of parents and potentially all family members are impli-
cated. In making the decision to remove a child, the right to family integrity must
be balanced carefully against state interests. The Constitution arguably requires
consideration of the harm of removal as a part of such balancing, because there is
a fundamental liberty interest in the family unit and the bonds within it, and any
state interference causing the traumatic destruction of these bonds requires height-
ened scrutiny.
B. New Federal Law
New federal law may also help point the way forward. In February 2018, the
federal government passed the Family First Prevention Services Act of 2017
(“FFPSA”).
340
The FFPSA aims to “provide enhanced support to children and
families and prevent foster care placements through the provision of mental health
and substance abuse prevention and treatment services, in-home parent skill-based
programs, and kinship navigator services.”
341
Eligible families can receive ser-
vices for up to a year if a child is deemed to be at imminent risk of going into
foster care but could remain safely at home or in a kinship placement if services
are provided.
342
Proponents of the bill demonstrate a growing concern about the harms of re-
moval. United States House of Representatives Ways and Means Committee
Chairman Kevin Brady noted that the bill was driven largely by the nationwide
opioid crisis that is “tearing families across the country apart.”
343
Perhaps learning
from ASFA’s mistakes, Brady noted that the bill “puts families first” and supports
338. Troxel v. Granville, 530 U.S. 57, 58 (2000) (citation omitted).
339. See Stanley v. Illinois, 405 U.S. 645, 649 (1972).
340. Family First Prevention Services Act of 2017, Bipartisan Budget Act of 2018, Pub. L.
No. 115-123, 132 Stat. 64, 232–69 (2018) (codified as amended in scattered sections of 42 U.S.C.).
341. Id. at 232.
342. Id. at 233.
343. Press Release, U.S. House of Representatives Comm. on Ways & Means, Bipartisan
House, Senate Leaders Announce Proposed Child Welfare Legislation (June 10, 2016) [hereinafter
Ways & Means], https://waysandmeans.house.gov/bipartisan-house-senate-leaders-announce-pro-
posed-child-welfare-legislation/ [https://perma.cc/Y7U9-3KBQ].
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
566 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
parents rather than immediately sending children into the foster care system.
344
Ranking U.S. House of Representatives Member Sander Levin stated that the bill
would expand “critical prevention services that would keep kids safe and at
home.”
345
And the bill sponsor, Ways and Means Human Resources Subcommit-
tee Chairman Vern Buchanan, issued a press statement noting that foster children
have higher rates of “substance abuse, homelessness, and teen pregnancy.”
346
The
same press release states boldly at the top, “Breaking Up Families Should be a
Last Resort.”
347
Thus, this new law appears to be the beginning of a shift away
from ASFA back towards family preservation and reunification.
C. Helpful State Statutes Regarding Reasonable Efforts to Prevent Removal
A few states have attempted to provide more guidance than the federal lan-
guage, but only New Mexico identifies the harm of removal as a specific factor in
the reasonable efforts inquiry. New Mexico’s reasonable efforts statute states that
a predisposition study shall include:
[A] statement of how an intervention plan is designed to achieve
placement of the child in the least restrictive setting available,
consistent with the best interests and special needs of the child,
including a statement of the likely harm the child may suffer as a
result of being removed from the parent’s home, including emo-
tional harm that may result due to separation from the child’s par-
ents, and a statement of how the intervention plan is designed to
place the child in close proximity to the parent’s home without
causing harm to the child due to separation from parents, siblings
or any other person who may significantly affect the child’s best
interest.
348
Interestingly, New Mexico’s removal statute
349
(as opposed to its reasonable
efforts statute above
350
) does not explicitly require consideration of the harm of
removal. Therefore, a court must take harm of removal into account in determining
whether reasonable efforts were made to prevent removal, but not in the context
of the larger question of whether the child ultimately should be removed. Thus,
New Mexico only gets it half right.
344. Id.
345. Id.
346. Press Release, Vern Buchanan, Representative, U.S. House of Representatives, Buchanan
Introduces Bill to Help Children & Fix Foster Care (Jan. 6, 2017), https://buchanan.house.gov/me-
dia-center/press-releases/buchanan-introduces-bill-help-children-fix-foster-care
[https://perma.cc/YG6H-QRBY]; Ways & Means, supra note 343.
347. Id.
348. N.M. STAT. ANN. § 32A-4-21(B)(2) (West 2018).
349. § 32A-3B-3.
350. § 32A-4-21.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 567
Finally, although they do not specifically discuss the harm of removal, some
states such as Hawaii have detailed language that acts as a helpful guide for agen-
cies to prevent removal. Hawaii’s Child Protective Act requires that the service
plan be crafted with the family and that “[e]very reasonable opportunity should be
provided to help the child’s legal custodian to succeed in remedying the problems
that put the child at substantial risk of being harmed.”
351
Minnesota and South
Carolina list criteria to ascertain whether reasonable efforts were made by deter-
mining, for example, whether the services were available, adequate to address the
family’s needs, and “realistic under the circumstances.”
352
Nebraska requires that
“reasonable efforts” be made in the “least intrusive and least restrictive method
consistent with the needs of the child” and “as close to the home community of
the child or family requiring assistance as possible.”
353
Thus, although not ideal, these state statutes provide some room for advocates
to make arguments related to the harm of removal, and for courts to consider them.
D. Jurisdictions That Get It Right
New York and the District of Columbia are the only jurisdictions
354
that
overtly require government officials to consider the harm of removal in their sub-
stantive removal statutes, though in different ways. The District of Columbia af-
firmatively requires such consideration in its substantive removal statute.
355
New
York has interpreted the existing removal statute to graft the requirement into the
law via caselaw.
356
While this does not always translate into perfect results in practice, these ju-
risdictions do provide models for how harm-of-removal evidence can become part
of the equation in child welfare actions. Between 2007 and 2016, New York and
the District of Columbia showed some of the largest proportional decreases of
children entering foster care in the country.
357
Thus, the evidence, though incon-
clusive, suggests that these two routes for considering the harms of removal may
be working and resulting in fewer children suffering the traumatic effects of family
separation.
351. HAW. REV. STAT. ANN. § 587A-2 (West 2018).
352. MINN. STAT. ANN. § 260.012(h) (West 2018); S.C. CODE ANN. § 63-7-720(A)(6) (2019).
353. NEB. REV. STAT. ANN. § 43-532(2) (West 2018).
354. While as noted, Alaska also contemplates the harm of removal, the law requires this
consideration too late in the process. See supra text accompanying notes 317–18. Thus, Alaska does
not “get it right.”
355. D.C. CODE ANN. § 16-2310(b)(3) (West 2019).
356. See Nicholson v. Scoppetta, 820 N.E.2d 840, 852 (N.Y. 2004).
357. CHILDREN’S BUREAU, U.S. DEP’T OF HEALTH & HUMAN SERVS., ADOPTION AND FOSTER
CARE ANALYSIS AND REPORTING SYSTEM (AFCARS): NUMBERS OF CHILDREN ENTERING FOSTER
CARE, BY STATE (2017), https://www.acf.hhs.gov/sites/default/files/cb/afcars_state_data_tables_
07thru16.xlsx [https://perma.cc/V2WQ-ZAQ4].
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
568 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
1. The District of Columbia
Washington D.C. is the only jurisdiction that statutorily mandates considera-
tion of the harm of removal. Under D.C. Code section 16-2310, a child may not
be placed in foster care
358
prior to a fact-finding
359
or dispositional
360
hearing
unless it is necessary to protect that child; no other parent, guardian, or custodian
is able to care for her (and the child cannot care for herself); and there are no
alternative resources or arrangements available to the family that would protect
the child without requiring removal.
361
The criteria for foster care are imple-
mented by the rules of the Superior Court, which govern determination of whether
foster care is warranted prior to fact-finding.
362
In considering whether removal is necessary, under D.C. Code section 16-
2312, the family court must determine whether: “(A) [r]easonable efforts were
made to prevent or eliminate the need for removal, or, in the alternative, . . . re-
moval from the home is necessary regardless of any services that could be pro-
vided . . . ; and (B) [c]ontinuation . . . in the child’s home would be contrary to the
welfare of the child.”
363
This general welfare language is similar to that found in
several of the states discussed above.
364
But Washington D.C. goes a step further and statutorily obligates the judicial
officer to evaluate the harm that removal might cause when determining whether
a child should be removed from her parents before fact-finding and ultimate dis-
position. Under the Superior Court rules governing removal
365
:
358. In Washington D.C., foster care is referred to as “shelter care.” See § 16-2301(14); CASEY
FAMILY PROGRAMS, JURISDICTIONAL SCAN: STRONG FAMILIES 1–2 (2018), https://caseyfamilyvpro-
wpengine.netdna-ssl.com/media/SF_First-placement-family-placement.pdf [https://perma.cc/53LB
-8KQ8]. The two terms can be used interchangeably. See, e.g., CASEY FAMILY PROGRAMS, supra, at
1–2. Washington D.C., among other jurisdictions, made initial placements in congregate care, such
as crisis nurseries or emergency shelters. See id. D.C. has since disbanded and replaced these initial
group placements with family-first placements in order to reduce trauma for the child. See id. How-
ever, the D.C. Code still utilizes the term “shelter care” and defines the term as “the temporary care
of a child in physically unrestricting facilities, designated by the Division, pending a final disposition
of a petition.” § 16-2301(14).
359. Fact-finding generally is a hearing on the ultimate issue of whether the child was abused
or neglected. See § 16-2301(16) (defining “fact-finding hearing” as “a hearing to determine whether
the allegations of a petition are true.”).
360. A dispositional hearing occurs after a finding of neglect or abuse is made. See § 16-
2301(17) (defining “dispositional hearing” as “a hearing, after a finding of fact, to determine . . .
what order of disposition should be made in a neglect case.”). At this point, the court can order the
children to be placed into shelter care and may order the parents to engage in services to rectify the
situation that caused the child to be removed initially. See id.
361. § 16-2310(b).
362. § 16-2310(c).
363. § 16-2312(d)(3).
364. See discussion supra Section III.D.
365. These rules states that “[w]hen the Corporation Counsel moves the Court to place a child
in shelter care, the government shall have the burden of showing that shelter care is required under
the criteria set forth in D.C. Code § 16-2310.” D.C. SUPER. CT. R. NEGLECT & ABUSE PROC. 13(a).
These rules serve as further guidance for the judicial officer in determining whether to place a child
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 569
In making a shelter care determination, the judicial officer shall
evaluate the harm to the child that may result from removal. In
making such evaluation, the judicial officer shall consider such
factors as: (1) The child’s attitude toward removal and ties to the
parent, guardian or custodian, as well as the child’s relationships
with other members of the household; (2) The disruption to the
child’s schooling and social relationships which may result from
placement out of the neighborhood; and (3) Any measures which
can be taken to alleviate such disruption.
366
Even after a parent is deemed neglectful, and if removal is recommended,
Washington D.C. requires that the pre-disposition report provided to the judge in-
clude information regarding “the likely harm the child will suffer as a result of the
separation from his or her parent, guardian, or custodian and recommended steps
to be taken to minimize this harm.”
367
Thus, this information about the harm of
removal will be presented to the court before the court determines whether to order
the child’s placement into foster care.
Washington D.C.’s statutory framework requires courts to consider all the
crucial facts regarding familial bonds and community attachments that may be
ignored in other states. Washington D.C. can therefore serve as a model for state
legislators across the country.
2. New York
In New York, temporary removals are effectuated under Family Court Act
Sections 1027 and 1028. Section 1027 applies if a state is seeking to remove a
child for the first time while section 1028 is invoked if a child has already been
removed and the parents are seeking her return.
368
Both statutes require a court to
determine whether removal or continuing the removal of a child is necessary to
avoid “imminent risk to the child’s life or health” and to “consider and determine
in its order whether continuation in the child’s home would be contrary to the best
interests of the child and where appropriate, whether reasonable efforts were made
. . . to prevent or eliminate the need for removal . . .[or] to make it possible for the
child to safely return home.”
369
While not explicitly required by these statutes, the Court of Appeals in Ni-
cholson v. Scoppetta interpreted this language to require a balancing test, stating:
The plain language of [Section 1027] and the legislative history
supporting it establish that a blanket presumption favoring re-
moval was never intended. The court must do more than identify
in foster care. See id. 13(b)-(e).
366. Id. 13(e).
367. D.C. CODE ANN. § 16-2319(c)(2)(C).
368. N.Y. FAM. CT. ACT §§ 1027–1028 (McKinney 2018).
369. §§ 1027(b)(i)–(ii), 1028(a)–(b).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
570 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
the existence of a risk of serious harm. Rather, a court must weigh,
in the factual setting before it, whether the imminent risk to the
child can be mitigated by reasonable efforts to avoid removal. It
must balance that risk against the harm removal might bring, and
it must determine factually which course is in the child’s best in-
terests.
370
In practice, this boils down to a three-part test: (1) is there imminent risk of
harm if the child remains home; (2) can the risk be mitigated by putting services
into place or issuing orders against the parent; and (3) does the harm of removal
outweigh any imminent risk?
371
Recent cases in New York illuminate how the harm of removal can be used
in judicial determinations. In In re Rihana J.H., described in the introduction,
372
ACS was unwilling to return Rihana to her mother, despite the mother’s “high
degree of cooperation with ACS,” compliance with prior court orders, engagement
in all recommended services, and positive court-ordered mental health evaluation,
not to mention that the child wanted to return to her mother.
373
The ACS case-
worker testified that the younger child’s injury was the only reason ACS was not
returning Rihana to her mother.
374
As a result, the mother’s attorney asked for a
hearing on the issue of whether Rihana could go home.
375
Ultimately, the court found that it did not need to resolve the issue of how
Kaden’s injury occurred to determine whether Rihana could reunify with her
mother.
376
The court analyzed this case under Nicholson and noted that it must
balance any risk of harm if Rihana was returned to her mother against the emo-
tional and mental harm of her continued removal.
377
In so doing, the court issued
orders to mitigate any perceived risk and found that Rihana could safely return to
her mother.
378
In In re Samuel W., another New York family court case, the court reached a
similar result where three people––father, mother, and caretaker––were charged
with neglect resulting in an unexplained fracture to the child’s leg.
379
The mother
370. Nicholson v. Scoppetta, 820 N.E.2d 840, 849, 852 (N.Y. 2004).
371. See, e.g., In re Sara A., 35 N.Y.S.3d 450, 452 (N.Y. App. Div. 2016); In re Jesse J. v.
Joann K., 882 N.Y.S.2d 487, 489 (N.Y. App. Div. 2009); In re Amanda Lynn B., 877 N.Y.S.2d 104,
105–06 (N.Y. App. Div. 2009); In re David G., 909 N.Y.S.2d 891, 896 (N.Y. Fam. Ct. 2010).
372. See supra text accompanying notes 1–9.
373. In re Rihana J.H., No. NA-XXXX-16, 2017 WL 890526, at *4–6 (N.Y. Fam. Ct. Feb. 23,
2017).
374. Id. at *4.
375. Id. at *1.
376. Id. at *4.
377. Id. at *6 (quoting Nicholson, 820 N.E.2d at 378–79).
378. Id. at *5–7.
379. In re Samuel W., No. NA09331/14, 2015 WL 5311117, at *1 (N.Y. Fam. Ct. Sept. 2,
2015).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 571
had been highly cooperative, was engaged in services, and was receiving unsuper-
vised visits.
380
Yet ACS would not agree to return the child, and he was about to
be moved to his sixth foster home.
381
The mother’s attorney filed a motion to modify the order continuing the
child’s placement in foster care.
382
In conducting the Nicholson analysis, the court
took note of the fact that Samuel’s therapist felt that multiple foster care place-
ments had caused “clear, harmful effects” on Samuel which caused him to become
vulnerable, resulting in displays of “fear, sadness, and confusion about the sudden
and pervasive changes in his routines and relationships.”
383
However, the court
continued on to note that since Samuel had been allowed overnight visits with his
mother, there had been a “distinct and positive shift in Samuel’s demeanor.”
384
The judge sent the child home to his mother due to the harm caused by the re-
moval.
385
Where legislatures are slow to act, New York’s judicial approach to consid-
ering the harm of removal through practitioner advocacy and judicial intervention
is a model worth emulating.
V.
RECOMMENDATIONS
Numerous scholars have suggested different modes of thinking about how the
child welfare system might be overhauled and improved.
386
Others believe that
continuing to err on the side of removal is the safest approach and necessary to
protect children.
387
Nicholas Scoppetta, the first Commissioner of New York
City’s Administration for Children’s Services, said in his first mission statement
that “[a]ny ambiguity regarding the safety of the child will be resolved in favor of
removing the child[.] . . . Only when families demonstrate to the satisfaction of
ACS that their homes are safe and secure, will the children be permitted to remain
380. Id. at *1–2.
381. Id. at *1.
382. Id.
383. Id. at *2.
384. Id.
385. Id. at *1–2.
386. See, e.g., Marcia Lowry, Foster Care & Adoption Reform Legislation: Implementing the
Adoption and Safe Families Act of 1997, 14 ST. JOHN’S J. LEGAL COMMENT. 447, 453 (2000) (advo-
cating for more specific plans for getting children adopted after termination of parental rights); Dor-
othy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L.
REV. 1474, 1500 (2012) (identifying a “need for cross-movement strategies that can address multiple
forms of systemic injustice to contest the overpolicing of women of color and expose how it props
up an unjust social order” leading to unnecessary foster care interventions); Martin Guggenheim,
The Foster Care Dilemma and What to Do About It: Is the Problem That Too Many Children Are
Not Being Adopted out of Foster Care or That Too Many Children Are Entering Foster Care?, 2 U.
PA. J. CONST. L. 141, 148–49 (1999) (urging consideration of the fact that there are “anterior prob-
lems surrounding the administration of foster care policy”).
387. See, e.g., BARTHOLET, supra note 97, at 6; James G. Dwyer, A Child-Centered Approach
to Parentage Law, 14 WM. & MARY BILL RTS. J. 843, 855 (2006)
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
572 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
[in] or be returned to the home.”
388
The research is clear, however, that the trauma
of removal and resulting placement in foster care has long-term and far-reaching
negative consequences for children. Thus, reforms that specifically incorporate
consideration of the harm of removal are necessary to ensure that our system rec-
ognizes these detrimental effects, because these reforms would ultimately reduce
harm to children, which should be everyone’s goal.
While substantial changes to existing law would provide greater impact,
many reforms could easily be implemented within the existing child welfare
framework.
A. Federal Consideration of Harm of Removal
A number of steps can be taken at the federal level. As discussed earlier, the
FFPSA is a step in the right direction towards preserving families.
389
Providing
services to those families whose children are at the highest risk of being removed
is a logical allocation of resources that will hopefully prevent unnecessary remov-
als. Further, the law authorizes an additional fifteen months of services for families
once children return home.
390
This will allow families access to continued support
once children are back in their care to help prevent further disruptions.
Further, the FFPSA allows states to provide preventative services to a greater
range of families, not just the indigent.
391
As a result, more families who needed
the services but did not qualify because there have been no recent adjustments to
income standards will now be able to access them.
392
It remains to be seen how the Act will work in practice, however, as rulemak-
ing began in October of 2018 and the funding does not become available until
October of 2019.
393
Relevant agencies should ensure that the broad principles out-
lined in the bill and by the sponsors are carried out and funded appropriately.
388. NINA BERNSTEIN, THE LOST CHILDREN OF WILDER: THE EPIC STRUGGLE TO CHANGE
FOSTER CARE 435, 437 (2001).
389. See discussion supra Section IV.B.
390. Family First Prevention Services Act of 2017, Bipartisan Budget Act of 2018, Pub. L.
No. 115-123, § 50721(a)(2)(C), 132 Stat. 64, 245 (2018) (codified as amended at 42 U.S.C. §
629a(a)(7)(A)).
391. Teresa Wiltz, This New Federal Law Will Change Foster Care as We Know It, PEW
CHARITABLE TR. (May 2, 2018), http://www.pewtrusts.org/en/research-and-analysis/blogs/
stateline/2018/05/02/this-new-federal-law-will-change-foster-care-as-we-know-it
[https://perma.cc/Q2W2-USW9] (“In another first, the law also removes the requirement that states
only use prevention services for extremely poor families. Because the income standards hadn’t been
adjusted in 20 years, fewer and fewer families qualified for the services, advocates say. Now, states
don’t have to prove that an at-risk family meets those circa 1996 income standards. ‘That’s signifi-
cant . . . [b]ecause abuse happens in rich homes, middle-class homes, [and] poor homes.’”).
392. Id.
393. Bipartisan Budget Act of 2018, § 50711(c)(2) (codified as amended at 42 U.S.C. §
674(a)); CHILDREN’S DEF. FUND, FAMILY FIRST PREVENTION SERVICES ACT: IMPLEMENTATION
TIMELINE 3 (2018), https://www.childrensdefense.org/wp-content/uploads/2018/08/ffpsa-imple-
mentation.pdf [https://perma.cc/5F36-2H4A].
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 573
Further, in continuing the shift towards family preservation, the federal gov-
ernment should revise ASFA to complement FFPSA. As noted above, currently,
ASFA simply adopts the problems of its predecessors and weakens the few pro-
tections that were in place for families prior to its passage.
394
Going forward, “reasonable efforts” should be clearly defined in ASFA and
should include a deeper analysis of factors that contribute to the harm of removal.
The federal government may want to leave specific factors up to each state, but
guidelines as to what constitutes reasonable efforts should be promulgated to
avoid the confusion and ambiguity that currently exist. Clear federal guidelines
will generate consistency across states that will trickle down to help create sys-
tematically equal treatment for all families.
Reasonable efforts should also be required in all cases. No family should be
excepted from the reasonable efforts requirement. The current “aggravated cir-
cumstances” approach punishes children for their parents’ actions without any
specific consideration of the case at hand. A parent’s prior acts regarding another
child may certainly be evidence of their ability to parent the current child at issue,
but a consideration of all the factors, including the harm of removal, should be
required. The circumstances surrounding the previous act may no longer exist, and
the parent’s relationship with the child at issue may be very different. For example,
a parent may have suffered drug addiction that led to termination of parental rights
many years prior. Today, that parent could have been drug-free for a decade and
have an excellent relationship with her child. That child, however, would not have
the benefit of a consideration of the harm of removal or reasonable efforts under
current law.
Federal leadership, guidance, and funding are critical to the proper function-
ing of the child welfare system in the states. Congress and the President should
build on the FFPSA, revise ASFA, and clearly incorporate harm-of-removal prin-
ciples into federal legislation, rulemaking, and appropriations.
B. State Consideration of Harm of Removal
To prevent the harm of removal, state legislatures should add a required con-
sideration of the harm of removal into their statutes that govern removal hearings
in abuse and neglect cases. This will allow courts to balance the risk of harm to a
child staying with their parents against the harm that removal would cause, which
is rarely if ever considered now.
395
As discussed, Washington D.C. provides a
model for legislation that lists factors to be considered.
396
Additionally, state statutes could require consideration of enumerated factors,
including: (i) whether a kinship resource is available to take the children; (ii) if a
foster home been identified; (iii) where the identified foster home is in relation to
394. See supra text accompanying notes 284–309.
395. Novoa, supra note 174, at 32–33.
396. See discussion supra Section IV.D.1.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
574 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
the child’s home; (iv) whether the foster parent can accommodate the proposed
visitation schedule; (v) if siblings will be placed together; (vi) if the child will have
to transfer schools; (vii) whether the child’s services or extra-curricular activities
be disrupted; (viii) if the child has special needs and if so, whether the identified
placement is able to accommodate those needs; and (ix) whether the child will be
able to observe religious or cultural practices that are important to them in the
identified placement. These considerations will mandate that courts grapple with
the potential harm of removal.
A statute that simply codifies New York’s caselaw could be equally effective.
For example, such a statute could read:
In determining whether to remove a child, the court must first de-
termine whether there is imminent risk to that child by remaining
in their parent’s care. If such risk is identified, the court must then
determine if court orders against the parent or an order that the
state agency must provide services to the family would mitigate
the risk. If the court determines that the risk cannot be mitigated,
it must then balance the risk against the harm that removal would
cause before determining which course of action would be in the
child’s best interests.
Each state should also clearly define “reasonable efforts” to incorporate con-
sideration of the emotional and psychological harms of removal and list factors to
be considered to address the specific harms identified.
States should also have clear criteria for determining whether the child pro-
tective agency made reasonable efforts. Each state should require that reasonable
efforts consist of the agency seeking removal having to explain what they believe
the impact of removal will be on the child and how they plan to mitigate the trau-
matic effects.
397
Early in a case, it may be challenging to accurately assess the
traumatic effects that removal could have. Agencies already conduct investiga-
tions, however, and the agencies could tailor those investigations to elicit infor-
mation regarding the harm of removal from parents and children. This information
would assist a judge in making the determination of whether to remove a child and
provide a plan for how that harm could be mitigated if removal is, in fact, neces-
sary. If agencies require a helpful, partial list of emotional, psychological, physi-
cal, sexual, and other likely harms to investigate, this article provides one.
398
To address the trauma of removal itself, before removal is completed, the state
agency should also have to consider whether services could be put in place to
avoid the need for removal. In many families, problems arise due to poverty or
lack of access to mental-health or parenting-skills services. Too often, services are
offered only after a child welfare case has been filed in court and removal is being
397. Cf. Liebmann, supra note 14, at 148.
398. See supra Part II.
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 575
contemplated. But many removals could be prevented if services were put in place
as an initial matter.
The FFPSA seems to be a route to allow states to design and implement pro-
grams in high-need areas: mental health, drug addiction, and parenting skills.
399
Allowing for some of these services to be provided in-home also addresses some
of the common failures of existing service plans, such that low-income parents
will not have to worry about going to services that conflict with their work sched-
ules, paying for transportation, or finding reliable childcare.
400
In addition, child protective specialists could be required to explain the avail-
ability of public benefits and how to access them; provide the locations of food
banks; and connect families to any available services that are not covered by the
FFPSA. In determining whether reasonable efforts were made, judges should then
be required to determine whether the services offered were necessary, practical,
appropriate, and affordable. This will not be practical in all cases, as emergency
removals are sometimes necessary. But, in many cases, the introduction of ser-
vices may have an impact on the parents’ ability to successfully meet their chil-
dren’s needs and may avoid the need for removal and the trauma that would flow
therefrom.
If services are not sufficient, then the agency should consider whether the
children could stay in their homes with more frequent visits from children’s ser-
vices agencies, or if a relative or friend who is approved by the relevant agency is
able to move in with the family temporarily.
Finally, states should appoint lawyers for parents and children in all child
welfare cases where the state is seeking a removal.
401
Lawyers for both parents
and children would be able to advance arguments regarding all harms that a court
should consider and provide information regarding the efforts the state made prior
to removal. In New York, for example, where parents are assigned lawyers, many
of whom are institutional providers who specialize in neglect and abuse proceed-
ings, there are fewer removals and reunifications occur faster.
402
399. See Patrick McCarthy, Family First Prevention Services Act Will Change the Lives of
Children in Foster Care, ANNIE E. CASEY FOUND.: BLOG (Feb. 12, 2018), http://www.aecf.org/
blog/family-first-prevention-services-act-will-change-the-lives-of-children-in-f/
[https://perma.cc/8MGU-EJR7].
400. Cf. Alana Semuels, How Poor Single Moms Survive, ATLANTIC (Dec. 1, 2015),
https://www.theatlantic.com/business/archive/2015/12/how-poor-single-moms-survive/418158/
[https://perma.cc/N46V-LY85] (describing how women in one county lean on informal solutions to
avoid the time-intensive “hassle” of redeeming benefits from an office).
401. See, e.g., Leonard Edwards, Representation of Parents and Children in Abuse and Ne-
glect Cases: The Importance of Early Appointment, 63 JUV. & FAM. CT. J., Spring 2012, at 21.
402. CTR. FOR FAMILY REPRESENTATION, THE CENTER FOR FAMILY REPRESENTATION 2014
REPORT TO THE COMMUNITY 1 (2014), https://www.cfrny.org/wp-content/uploads/2012/12/Annual-
Report-2014-FINAL.pdf [https://perma.cc/8JDZ-JWUK]; Steve M. Wood & Jesse R. Russell, Ef-
fects of Parental and Attorney Involvement on Reunification in Juvenile Dependency Cases, 33
CHILD. & YOUTH SERVS. REV. 1730, 1739 (2011) (“The findings of the current study suggest that
better outcomes (i.e., reunification) occur when parents, especially mothers, have legal representa-
tion, and when this legal representative is assigned early in the dependency proceedings and appears
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
576 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
These recommendations would allow for more exacting deliberations and
more evenhanded results, as every court in the state would consider the same fac-
tors, and the information would be provided by lawyers with an understanding of
the relevant statutory schemes.
Clearer guidelines would also assist states in ensuring that they receive the
funding owed to them under the ASFA. To get this funding, they must prove that
their agencies are making reasonable efforts to prevent removal and to reunify
families. As discussed, most state statutes regarding reasonable efforts do not de-
fine that term, making it difficult for agencies and courts to determine whether this
bar has been met.
403
More detailed statutes would guide agencies as well as courts
by providing them with clear criteria that can be measured. Additionally, these
statutory schemes would further the goals of the child welfare system and strike
an appropriate balance between the right to family integrity and the state interest
in protecting its children.
In sum, state lawmakers have myriad opportunities to clean up and buttress
existing law to incorporate harm-of-removal analysis. This will make family
preservation services easier for the state to provide given that federal funding will
flow more easily and freely as a result.
C. Judicial Decision-Making
Even if the statutes do not require a consideration of the harm of removal,
courts have the power to interpret existing law to do so. Courts should follow the
lead of New York’s Appellate Division. As noted, New York’s removal statute
does not incorporate a consideration of the harm of removal.
404
That statute simply
asks courts to consider, as many state statutes do, whether remaining in the home
would be contrary to the child’s best interests.
405
The New York Appellate Divi-
sion, however, interpreted this language in the Nicholson case to require more than
simply “identify[ing] the existence of a risk of serious harm.”
406
Rather, “[i]t must
balance that risk against the harm removal might bring, and it must determine fac-
tually which course is in the child’s best interests.”
407
Every state statute has language that essentially requires a consideration of
whether continuation in or removal from the home would be contrary to the wel-
fare or best interests of the child.
408
Therefore, like New York, other state courts
should interpret that language to require contemplation of the harms of removal.
in court at the time of the hearings.”).
403. See supra text accompanying notes 322–26.
404. See discussion supra Section IV.D.2.
405. N.Y. FAM. CT. ACT § 1027(b)(ii) (McKinney 2018).
406. Nicholson v. Scoppetta, 820 N.E.2d 840, 852 (N.Y. 2004).
407. Id.
408. See, e.g., ALA. CODE § 12-15-306(a)(1) (2019); ARK. CODE ANN. § 9-27-341(a)(3),
(b)(3)(A), (b)(3)(B)(iii) (West 2019); KAN. STAT. ANN. § 38-2255(c)(1) (West 2019); MASS. GEN.
LAWS ANN. ch. 119, § 29C (West 2019); OKLA. STAT. tit. 10A, § 1-1-102 (2019); OR. REV. STAT.
ANN. § 419B.337(1) (West 2019); S.D. CODIFIED LAWS § 26-8A-21 (2019).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 577
This will allow the court to reach a fair result based on all the facts pertaining to a
particular child and family, not just some.
Courts should also take seriously their role in determining whether an agency
made reasonable efforts to prevent removal. Currently, challenging a finding of
“reasonable efforts” is incredibly difficult, and the inquiry into whether or not the
state agency made such efforts is not particularly rigorous.
409
Many courts simply
have forms with a checkbox for whether reasonable efforts were made.
410
Schol-
ars have noted that legislators were concerned that courts would be hesitant to
deprive children of potential foster care funds, but summarily dismissed that con-
cern due to their confidence in judges’ ability to appropriately weigh their respon-
sibilities.
411
Yet, in reality, judges rarely fail to make reasonable efforts find-
ings.
412
One survey showed that less than four percent of judges had ever made a
finding of no reasonable efforts.
413
Another showed that over 90 percent of sur-
veyed judges rarely or never made a no-reasonable-efforts finding and over 40
percent had made reasonable efforts findings even when they believed that the
agency had not, in fact, made those efforts.
414
Thus, the legal check on agency
abuse is failing, and judges are the only ones with the power to correct this flaw
in the system. They should wield that power going forward—aided by savvy prac-
titioners, as outlined below.
415
D. Lawyers’ Advocacy
Common law develops when courts adopt arguments made by creative law-
yers. If the law in a particular jurisdiction does not incorporate the harm of re-
moval, lawyers should argue it anyway. Attorneys may use Nicholson v. Scoppetta
and Washington D.C.’s removal statute as non-binding but persuasive authority to
encourage courts to consider harm of removal evidence.
416
Providing the court
409. See Kathleen S. Bean, Reasonable Efforts: What State Courts Think, 36 U. TOL. L. REV.
321, 324–29 (2005) (reviewing the history of state agencies’ application of the federal “reasonable
efforts” standard).
410. Shotton, supra note 325, at 227; see also Sankaran & Church, supra note 177, at 228
(pre-drafted reasonable efforts orders).
411. Sankaran & Church, supra note 177, at 226–27.
412. Id. at 227; but cf. Shotton, supra note 325, at 227 (lack of investigation into reasonable
efforts could be due to confusion about whether the finding is even necessary to remove a child from
a dangerous home).
413. Sankaran & Church, supra note 177, at 227 (citing Shotton, supra note 325, at 237).
414. CUTLER INST. FOR CHILD & FAMILY POLICY, MUSKIE SCH. OF PUB. SERV., & CTR. ON
CHILDREN & THE LAW, AM. BAR ASS’N, MICHIGAN COURT IMPROVEMENT PROGRAM REASSESSMENT
105 (2005), https://muskie.usm.maine.edu/Publications/cf/MI_CourtImprovementProgram
Reassessment.pdf [https://perma.cc/6ZG6-CDEG].
415. See infra Section V.D.
416. D.C. CODE ANN. § 4-1301.07 (West 2018); D.C. SUPER. CT. R. NEGLECT & ABUSE PROC.
13(e); Nicholson v. Scoppetta, 820 N.E.2d 840, 852 (N.Y. 2004); see also MARTIN GUGGENHEIM &
VIVEK S. SANKARAN, REPRESENTING PARENTS IN CHILD WELFARE CASES: ADVICE AND GUIDANCE
FOR FAMILY DEFENDERS 43 (2015) (suggesting defenders use Nicholson to emphasize the harms of
removal to the court).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
578 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
with a complete picture of the client and her family is a key part of a lawyer’s
responsibilities. A court cannot make a determination about a family without un-
derstanding it fully, and the lawyer’s job is to draw that picture. Even if a court
does not believe this information is relevant and is focused solely on risk to the
child of remaining at home, as noted above, many state statutes leave room for
these arguments.
417
For example, if the court must make a best-interests determi-
nation or decide whether leaving the child at home is contrary to the child’s wel-
fare, harm-of-removal arguments are relevant. Hence, lawyers should specifically
articulate how the harm of removal is a necessary component for making this de-
termination.
In addition to the harms described above,
418
lawyers could introduce infor-
mation about:
[C]hildren’s attachments to their parents, the importance of par-
ent/infant bonding, the children’s special needs, that the children
would be placed with strangers or in a congregate setting, that
newborns would be unable to breastfeed, that siblings would be
separated from each other, or any actual harm that has already
befallen the children if they have already been placed in foster
care and that is likely to continue if they are not returned home.
419
As an attorney for a parent, this information allows the court to see the client
as more than just the bad acts they have allegedly committed. Rather, it allows the
court to see that person as a parent and to understand the client’s relationship with
his or her children.
420
It creates an opportunity to shape the narrative and fight
back against the stereotype of the poor, neglectful parent, and to evaluate that per-
son as an individual.
Making arguments about the harm of removal is also an extremely powerful
tool for an attorney representing a child. Explaining to the court that a child does
not want to be removed because of her attachment to her parents, her relationship
with her teachers, and her ties to her community allows the court to see the full
impact of removal, as opposed to an opportunity to punish a parent. An interview
with a parent defense attorney in Baltimore revealed that harm-of-removal argu-
ments are often successful when made by the child’s attorney, even though Mar-
yland’s removal statute does not specifically contemplate the harm of removal.
421
However, until such consideration is mandatory, a judge is not required to even
hear these arguments.
Lawyers should also engage experts to testify to the harm of removal. These
experts should specialize in “attachment theory, developmental psychology, and
417. See discussion supra Section III.D.
418. See discussion supra Section II.
419. GUGGENHEIM & SANKARAN, supra note 416, at 43.
420. Id. at 26.
421. Interview with Vanita Taylor, Chief Att’y, Children in Need of Assistance Div., Md.
Office of the Pub. Def. (University of Baltimore School of Law, Aug. 1, 2017).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
2019] THE HARM OF CHILD REMOVAL 579
typical measures of attachment.”
422
If expert fees are prohibitive, attorneys at non-
profits could consider involving a private firm as pro bono support. Firms seeking
trial opportunities for associates (and public service credibility among their peers
and recruits) may welcome the chance to retain and examine an expert in court.
Some experts may also offer discounted rates to non-profit organizations or other
attorneys who represent low-income clients.
Lawyers should not take for granted that the agency has made reasonable ef-
forts. Advocates should make strong arguments for reasonable efforts to prevent
removal and highlight services and solutions the agency could be putting into
place to prevent removals. Lawyers should also ask for a finding of no reasonable
efforts when such efforts are lacking.
423
Although judges are the system’s check
on the agency, lawyers should ensure that the judge has the necessary facts to be
able to make such decisions effectively.
Additionally, although the law is supposed to presume that the interests of
parents and their children are aligned until a finding of unfitness has been made,
424
courts presiding over abuse and neglect cases treat parents and children as adver-
saries, due to the suspicion placed on parents. As described by two parent defense
attorneys and scholars, “Even before any finding of maltreatment has been made,
. . . constitutional assumptions . . . are turned on their head, and the child’s parents
are no longer presumed to be able to speak for the child or, often, to provide any
valuable information about her at all.”
425
This is in direct contravention of the
U.S. Supreme Court’s mandate in Santosky v Kramer.
426
Lawyers should there-
fore advance these constitutional arguments to remind the court of its legal obli-
gation to presume that parents act in the best interests of their children.
In short, lawyers can be the change they wish to see in the child welfare world.
Marshaling legal arguments regarding a child’s right to family integrity, as well
as facts regarding the catastrophic and long-term harms that removal can impart,
will encourage judges to push the common law in new and ultimately more child-
protective directions.
VI.
CONCLUSION
The child welfare system exists to protect children from harm. Yet, in most
jurisdictions in America, courts fail to consider the trauma that children will suffer
if they are removed from their parents. This trauma is documented in study after
422. Goldsmith, Oppenheim, & Wanlass, supra note 16, at 9.
423. Jenny Pokempner, Leveraging the FFPSA for Older Youth: Prevention Provisions, AM.
BAR ASS’N (Jan. 15, 2019), https://www.americanbar.org/groups/litigation/committees/childrens-
rights/articles/2019/winter2019-leveraging-the-ffpsa-for-older-youth-prevention-provisions/
[https://perma.cc/6JB8-WAJW].
424. Santosky v. Kramer, 455 U.S. 745, 760 (1982).
425. Mulzer & Urs, supra note 311, at 35.
426. Santosky, 455 U.S. at 760 (“[U]ntil the State proves parental unfitness, the child and his
parents share a vital interest in preventing erroneous termination of their natural relationship.”).
TRIVEDI_CROP.DOCX (DO NOT DELETE) 7/27/19 8:13 AM
580 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 43:523
study, yet remains virtually invisible in most family courts, as there is no legal
requirement that judges take this information into account.
It is a sad reality that removing children may sometimes be necessary. How-
ever, in many cases, children can remain at home safely, particularly with targeted
services or court supervision. Accordingly, considering the harm of removal in
family court cases—whether by federal or state statutory mandate, or common law
crafted by informed lawyers and judges—furthers the ultimate goal of the child
welfare system: protecting children from harm.
