Mom, Dad and CPS: Who Gets to Raise Our Kids?

Free Range Kids

Photo by Acierman is licensed under CC BY 2.0

20by20

Hellooooo, Rand Paul. Even those of us who oppose a return to the gold standard and lack a tinfoil hat must start wondering when libertarians will notice child protective services in America. If regular police shootings of unarmed citizens and ubiquitous NSA surveillance isn’t motivating enough, maybe being investigated for child neglect for letting your kids walk home together from the park will get their attention.

Tin Foil Hat

Photo by B Rosen is licensed under CC BY-ND 2.0

That’s what happened to a Maryland couple who had the crazy idea to help their kids gradually master their world through progressive steps toward independent functioning. Letting your kids wander the neighborhood (and do dangerous things like check to see if Jimmy’s mom will let him come outside to play) is now grounds for investigation and potentially taking custody of children. The story of CPS as “helicopter parent” has hit the internet, and people are pushing back. The Maryland family practices “free range parenting,” something social workers would call “strength-based practice,” building a child’s strengths and abilities through positive reinforcement. In hindsight, I was one of those parents, too. My kids learned to navigate both their physical and social environments at early ages, including international travel, and they turned out just fine, thank you very much. I’m just lucky that CPS in my home state didn’t notice (would have been an allegation #74, “inadequate supervision.”)

This is a sociological question about the roles of parents and community members, but it’s also a straightforward legal issue. What’s the standard for child protective services to investigate parenting? Shouldn’t that standard say something about substantial risk of harm? And isn’t the local judge responsible for holding government to a strict standard before authorizing protective custody?  Ever heard of “reasonable efforts”?

Michigan progressed on this issue, motivated by an absurd CPS overreach that took a child from his father’s arms at a ballgame. I won’t spoil the story, but you can read it here, and it involves lemonade (and really good lawyers.) A suit was filed and the case settled, and legislators proposed and passed legislation to establish a clearer standard in that state.

Advocates pitching various issues contact NACC, and those advocating parent-friendly policy solutions often have a bit of fear in their voices when they talk to us at the national group of kids’ attorneys. The reality, in my experience, is that the outcome NACC members most desire for their child and youth clients is a life with loving parents in a safe and stable home. We’re all working toward the same goal, and we all have to protest (and loudly) when the rights of any party are trampled. When rights are dismissed, it’s ultimately the whole family that suffers.

And by the way, Jimmy’s mom says he can’t play right now because he has to take a nap. Jimmy questions that decision, but for now, let’s just say we leave that one up to mom.


Note: The views and opinions expressed in this blog post are those of the author, and do not necessarily reflect the views of the NACC.

About Kendall Marlowe

Kendall is the Executive Director of the National Association of Counsel for Children, the national advocacy organization of attorneys and other professionals representing children and families in child welfare, juvenile justice and custody cases. Kendall served as Chief of the Bureau of Operations and as Deputy Director for the Department of Children and Family Services in Illinois, where he was also spokesperson for the Department of Juvenile Justice and the Governor’s Long Term Care Reform Task Force. Kendall grew up in a family that welcomed six adolescent foster youth, has been a foster and adoptive parent himself, and worked as a social worker with at-risk, homeless and foster youth on Chicago’s south side. He holds a Master’s in Social Work from the University of Chicago School of Social Service Administration, where he received the Wilma Walker Honor Award; and a J.D. and Certificate in Child and Family Law from the Loyola University Chicago School of Law, where he was an Honorary Child Law Fellow.

6 Comments
  1. I agree this is clearly a problem and the “incident” should probably not have even reached the stage of an investigation; however, this is a societal issue. For all we know, CPS has already closed their investigation as “unfounded” and are as disappointed as we are about having to waste their valuable time investigating someone’s perverted idea of what constitutes neglect. Despite the fact that children are demonstrably safer than when those who are in their 50’s and 60’s grew up [See Richard Louv’s book, The Last Child in the Woods], as a society we believe it is dangerous out there. My conclusion is that the 24 hour news cycle is the cause. There is too much of an appetite for the bizarre and unusual and the media is more than happy to satisfy that demand. Children need to progress from dependence to independence in a predictable and staged manner and society needs to be educated about this fact and the difference between good parenting and real neglect.

  2. Well you mention that probably CPS has closed its investigation as “unfounded”.

    And a rational person would ordinarily say that is a good thing. That can’t be used against me.

    But oh how wrong you are…. In our current system the State can and WILL use it against you in the future. Should you ever be unfortunate enough to have another encounter with the State a caseworker (who probably knows absolutely nothing about the former accusation other than what she/he reads in the file) WILL testify in terms like “he has a history with the department” “we have concerns (presumably about this baseless and discredited accusation)”. If you want to do a HEROIC thing like offer to be a placement for a child they will DENY you based on this accusation.

    And that is the problem. Court is supposed to be about reliable evidence, impartial judgment etc. Too often these cases are about “how I feel” or “I have concerns” and if those are the standards then deadbeat dad and mom (after all they had their kids removed so they must somehow be bad) don’t stand a chance against the State.

    • Thanks for your comment Wilton. As a former Agency attorney, I agree that all too often the Agency brings a case based on “bad feelings and/or “concerns”. I think that the Agency attorneys play a big part in counseling their clients in that regard though. For example, when a case-worker would come to me with a set of facts and wonder whether there was enough to file a court action, one of my first questions was always – show me the evidence you have to prove abuse or neglect – and if it was just “I have concerns” or they have past history and “I have a bad feeling” then I challenged the case-workers to see if there was any real evidence to support their feelings – if not, I wouldn’t file it…So I would say that this is an area that is very ripe for training – and it probably needs to be included in every legal training that the case-workers go through. After all, as lawyers, we are in charge of directing and managing the legal aspects of the case. In social work it may be very common that “concerns and feelings” rule the day, but as you and I know, concerns and feelings are not the legal standard. And that’s the argument that we need to keep making…

  3. The problem becomes that the attorney is part of a monolithic bureaucracy and the attorney who refuses too many of these cases does not last very long as part of that bureaucracy.

    The problem is also a court system that does not hold the department to the same standard of proof every other attorney in every other action is held to. There is a huge amount of pressure on our juvenile court judges. They, at least the ones I have practiced in front of, want to get it right and protect kids. They do not want to be on Bill O’Reilly’s show as the judge who returned a child to an abusive parent. And when they have a caseworker who probably testifies weekly in their court versus a deadbeat parent (after all their kid was removed) it is easier to side with the caseworker.

    But that misses the big picture. Namely when you remove restraints from a well funded State bureaucracy abuses WILL happen.

    So appeal it you might say. Well the problem there is that the appeals court, generally speaking, will not modify a judgment from the trial court that is based on the trial court’s assessment of the credibility of witnesses (as are almost all of these cases). The appeals court will say, “the trial court got to see the witnesses testify. The trial court could hear the inflection and tone of the testimony and observe body language. We, the appeals court, only have words on a page.” So unless the witness testified “it was black” and the trial court found, “it was white” the Appeal’s court will not overturn the trial court’s finding. And if the appeals court does overturn a finding they are likely to say, “but that didn’t decide the case (a.k.a. “harmless error”) and so the decision will stand. And so if you read these types of cases you will see that well over 90% are upheld on appeal.

    I do not mind appealing and will continue to do so but the real solution is to fix what is wrong at the trial court level and treat the State as every other litigant is treated.

  4. And putting on my judge’s hat I might say “Marble until you’ve sat in the chair and actually made the decision you do not know what you would do. You talk of holding the department to standards but I am interested in the best interest of the child(ren) whose case is in front of me. So if the choice is harming the child or cutting the department some slack I’ll choose the latter”.

    And if judges think this way therein lies the rub:

    The judge is doing what he/she thinks is right with respect to the best interest of the child and the cumulative effect of all those judges doing that is the department “learning” that it has tremendous power. A mere accusation uttered by someone,somewhere at sometime will suffice to get a desired result. In most cases it wouldn’t even be admissible and yet it can decide this case. After all it is almost like the parent’s attorney is arguing to harm the child. Why won’t that parent’s attorney protect the child from this possible harm?

    And so an unequal playing field is created. In the cases where the parents deserve to have the kids taken (and probably worse) this isn’t that big of a deal. If justice were served then HOW we got justice isn’t that important. But in the other cases it is critical.

  5. Thanks for your comments Wilton and Brooke. This gets back to my original comment, i.e., this is a societal problem. Until we as a culture understand that to err on the side of the child does not automatically mean that we should remove children, we will continue to unnecessarily expose more children to the trauma of placement in the foster care system. We know that system is overused and is a poor substitute for real family relationships.

    Although false and malicious reports occur, it is still appropriate to have mandatory child abuse reporting laws. However, agencies and court systems need the skills to weed out the families where intervention is needed from those where it is not. Child protection agencies cannot fail to investigate reports that may constitute child abuse or neglect if true. It the case referenced in the original article, it was the police who responded to the call and by all accounts overreacted (I don’t think we don’t know what CPS did). Given the report, CPS has an obligation to investigate. If there is no foundation to the report, an “unfounded” finding is the best that can be done. The problem comes in the interpretation of that result.

    A significant problem for advocates is the one you mention about the thought process of judges (and other decision-makers) that they don’t want to have Fox or CNN on their doorstep should they find evidence to be lacking. Judges view the evidence and apply standards of proof required by the law based on their life experiences. They are immersed in the same societal tea that the rest of us are and hold most of the same community values. Luckily, it is far easier to educate your judicial officers on this issue than the larger community.

    As you mentioned, a foundation of the agency and child protection court system is “the best interests of the child.” As a strategy for a judicial officer who leans too far toward removal, it is the role of advocates for parents and children to educate those judges on the facts about the dangers of removal, the inadequacies of the foster care system and the fact that “the best interest of the child” is most often to remain in the home with supportive services. In this context, effective advocacy means referencing studies such as J. Doyle, Child Protection and Child Outcomes: Measuring the Effects of Foster Care, 2007, http://www.mit.edu/~jjdoyle/fostercare_aer.pdf. In that study it was demonstrated that children from families where there is professional debate about the need for out-of-home care do better when they are not removed than those who were removed under similar circumstances. As advocates it is our duty to give decision-maker the tools needed to make an informed decision. Without understanding the dangers inherent in removal, judges will not have all the necessary information at their disposal and will continue to order removal or intervention when it is not required.

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