Current federal law is misaligned with constitutional protections on when child welfare authorities can take children from their parents, resulting in inappropriate removals of children. Providing families with skilled legal advocates is a proven preventive service, and a similar approach has been effectively established in federal policies in the criminal justice system.
The Problem
On any given day, nearly 400,000 children are in officially reported foster placements, despite the known harms of separating children from their parents. The outcomes of children in the child welfare system reveal its failure in helping young people to thrive.
Multiple studies show that children who remain at home typically fare better than comparably maltreated children separated from their families, even when families do not get intensive help; the contrast in outcomes would likely be even greater if families did receive help. Instead, one in 17 children nationwide enters foster placement; the rate increases to 1 in 9 for Black children and 1 in 7 for Native children.
The effects of foster placement on children's well-being include severe anxiety, depression, PTSD, and delays in cognitive development. More than 70 percent of youth in the juvenile legal system have been in the child welfare system. One in three young adults experiencing homelessness was in foster placement, and children in placement are four times more likely than other children to attempt suicide.
Most jurisdictions do not establish robust systems for family defense that might prevent unnecessary removals; instead, prosecutors and guardians ad litem (GALs) are often paid significantly more than family defenders, a disparity that undermines fairness in cases that profoundly affect families.
The Solutions
1. Enforce families’ constitutional rights in all child welfare investigations and judicial proceedings, and in all instances where children are separated from their families.
Establish families’ right to counsel and to be advised of their legal rights (“Family Miranda rights”), and fund interdisciplinary legal representation at the same rate as prosecutors from the moment an investigation begins.
Enforce Fourth Amendment protections against illegal home searches and strip searches of children triggered by an investigation, and enforce the right to be heard and have evidence assessed by a court (due process rights) when the government seeks to separate a family.
End “hidden foster care,” where children are removed from their homes and separated from their parents at the request, suggestion, or demand of a child welfare agency without due process protections, court approval, resources for temporary care-givers, or public reporting on such placements and their outcomes.
2. Support families in making temporary caregiving arrangements that they determine will work best for their circumstances, as an alternative to court-ordered foster placement.
Provide parents with a right to counsel and due process before any temporary placement of children with real or fictive kin occurs as part of family safety plans.
Offer financial and social support options to emergency kinship caregivers designated through system-initiated family safety plans, as well as to kin caring for children through voluntary arrangements with parents that occur with no involvement from a child welfare agency.
Mandate annual public reporting of all emergency placements with kin that occur at the request, suggestion, or demand of a child welfare agency outside of court-ordered foster care, including short- and long-term outcomes.