They Took the Kids Last Night is the title and opening line of my just-published book (Praeger, October 31, 2018), drawn from over 30 years of helping families navigate a treacherous and error-prone Child Protective Services system (CPS).

CPS caseworkers continuously separate children from their parents at a monthly rate 300 times greater than the number of the separations at the Mexican border that took place in May 2018. These separations occur day in and day out. They commonly happen in secret and without fanfare. CPS caseworkers take children from their homes, their schools, and from hospitals if the children have been taken for medical care following an injury or medical condition. Children are also separated from parents, and sometimes from their siblings too, at CPS offices and in juvenile/child protection/dependency courthouses.

How It Happens

In 2015 alone, over 7.4 million children were named as suspected victims of abuse or neglect in Hotline calls. Massive bureaucratic triage systems screen out 40% of these calls and send the remaining allegations to field offices for investigation or alternative community responses. Then, CPS investigative caseworkers make findings of abuse or neglect in approximately one-fifth of the screened-in calls, meaning that some 650,000 children a year are labeled abused or neglected at the conclusion of a Hotline investigation. These labels then get registered in a state-administered child abuse register, based on sometimes minimal levels of evidence (“credible evidence” in many states). This is determined by a caseworker and almost never by a judge.

During or as a result of this investigative process, in 2016 alone, 273,539 children were placed into foster care. But much less attention has been paid to the untold number of children who are the subject of coerced “voluntary” separations of families are a common result of CPS Hotline investigations in as many as 37 states, and such separations may constitute an equally large number among those that were initiated directly by CPS. Unfortunately, statistics on these informal separations, never ratified in a court of law, are not maintained by state or federal agencies in any reliable form. One of the policy issues my book discusses is why safety plans have come to be so pervasive and so tolerated by a country that claims to treat family rights as sacred and the rights of families as fundamental.

It is time to reexamine CPS family separation policies. The public has recently been served a large dose of the visible trauma that children and families experience when they are separated by force. Yet vocal expressions of public sympathies have not reached the parents of children taken into foster care, nor much to those children themselves. But even parents who never have been charged crime and whose sole fault is bad luck can and do lose their children to CPS. While the child protection system operates disproportionately to separate families of color, no one is immune. Indeed, the primary story the book tells, in unfolding day-by-day narrative detail, involves an unexplained fracture that suddenly was found one night in the leg of newborn grandson of a federal judge.

If CPS caseworkers take children from their parents into state or local CPS agency custody, a formal legal process is required, both to authorize the children’s removal from their homes and to transfer legal custody to CPS. Once it obtains custody, CPS places children into substitute care (usually a foster home, including with a relative, but also into group homes and residential facilities). Timely court orders—no later than five days after an emergency removal—are constitutionally mandated. To get these court orders, every state has a process that triggers judicial oversight, ongoing formal assigned casework responsibilities for the CPS agency, and federal funding if the child qualifies for federal aid.

But CPS systems have improvised clever tactics to avoid ever presenting a legal case to a judge when they remove a child. There is a long history in many states of using so-called voluntary placement agreements that explicitly aim to avoid the requirement of court orders. In more than thirty states, policies and practices authorize even more informal separations, which are agreements in name only. Innocuously called “safety plans,” these devices are utilized to circumvent the duty to afford due process to the families from whom children are taken.[1] Safety plans are usually oral directives, issued to parents following a CPS Hotline call, that require parents to give their children over to relatives under threat of forced removal and placement with strangers. These separations are labelled as “voluntary” even when parents are led to believe that entrusting their children to a relative is the only way they can see their kids at all. This informal separation system, operating under the unfettered authority of CPS caseworkers to fashion onerous demands and restrictions upon parents and other family members, creates what I call a “shadow foster care system.”

Litigation, news reports, and research into these practices has shown them to be prevalent and pervasive, especially in Illinois, Pennsylvania, and Texas (where one-third of the children in the child welfare system were separated from their parents without legal process and under a form of so-called “voluntary” agreement). CPS spokespeople (including CPS attorneys) have defened safety plans as a lesser intrusion than formal separations and placements into foster care, but have generally avoided answering the question of whether there is a legal basis to demand family separation in the first place.

A Troubling Case and an Important Precedent

Multiple attempts to challenge the exercise of coercive state authority through safety plan demands have been made in Pennsylvania and Illinois, with mixed but growing success. The case of Crystelle and Joshua Hernandez, which established the constitutional standard for the lawful taking of children from their parents in the Seventh Circuit in 2011, is one of the six stories my book narrates in detail. What happened to the Hernandez family could have happened to any family in America. In 2009, when Jaymz Hernandez was 15 months old, his parents Crystelle and Joshua had just moved back to Illinois from Texas. Joshua was an Iraq war veteran and Crystelle was a stay-at-home mom. On September 8, 2008, after living in Illinois for all of three weeks, Crystelle heard, through a baby monitor, that Jaymz had started crying after his nap.

Crystelle ran to Jaymz’s room and she saw him on the floor of his room, holding his arm. She naturally concluded he must have fallen out of his crib. The Hernandezes had no idea Jaymz could climb out already. They quickly lowered the mattress to its lowest possible position so that he couldn’t get out again.

New to the area, Crystelle took Jaymz to an unfamiliar doctor’s office to have his arm checked. Jaymz turned out to have a torus fracture of his right arm. During their visit, the nurse noted Crystelle had said Jaymz couldn’t “run or climb.” If Crystelle had said such a thing, what she had meant was that Jaymz couldn’t run or climb since the fall. Unaware of nurse’s note until much later, Crystelle had no chance to clarify the point at the time the note was made. A minor scratch above Jaymz’s eye and confusing responses as to whether Joshua was home at the time of the fall led the doctor’s office called the CPS hotline, viewing the statement that Jaymz couldn’t run or climb as a “red flag” for possible child abuse.

A CPS caseworker came to the Hernandez home that afternoon. She saw Jaymz walking, playing with toys, and interacting with his mother as if nothing were wrong. While she reported to her supervisor that Jaymz looked fine and that she didn’t know why she had been sent there, the CPS supervisor directed her, over the phone and without ever seeing Jaymz, to take the toddler into state protective custody.

Fortunately, the CPS caseworker placed Jaymz with his great grandmother, though the toddler barely knew her. And the CPS caseworker forbade Crystelle and Joshua from seeing their son while he remained in state protective custody. Luckily, the next day Crystelle was allowed to attend Jaymz’s orthopedist appointment to cast Jaymz’s arm. The doctor told the CPS caseworker that it “didn’t look like abuse.” Indeed, the doctor said that abuse could not account for the type of fracture Jaymz had; the break could only have occurred from a fall.

Later that same day, the local State’s Attorney decided that there wasn’t enough evidence to file a petition in the local juvenile court to start a case to adjudicate Jaymz as an abused child or to take Jaymz into the formal foster care system. Under Illinois state law, the CPS agency’s legal authority to keep Jaymz in protective custody, and away from his parents, lapsed when the State’s Attorney decided not to bring the case to a judge. The power to hold a child away from his parents is an emergency police power. Nevertheless, CPS continued to hold Jaymz away from his parents. The CPS caseworker told Crystelle and Joshua that, despite that State’s Attorney’s rejecting the case, CPS “still had more investigating to do,” and they now had to sign a “safety plan.” Jaymz still could not come home and the Hernandezes could not see him unless they signed the safety plan agreement. The CPS caseworker also told them that they had no parental rights.

Naturally, Crystelle and Joshua believed the caseworker and signed the demanded agreement. The agreement allowed them to see their son, and even to stay overnight with him at the relative’s home in which he had been placed, as long as a relative supervised all of their contact with Jaymz.

New medical opinions continued to confirm the lack of child abuse. On September 16, 2008, Crystelle and Joshua sought legal help to bring their son home. After their lawyer implored the caseworker to end the restrictions, and as medical evidence in the family’s favor continued to mount, the CPS caseworkers ended the safety plan on September 18. Without such attorney intervention, plans often last 60 days or more while investigations continue, even when evidence of parental innocence mounts. The CPS investigation stayed open for another two months, however, closing finally on November 7, 2008, with a finding that the allegations of abuse against the Hernandezes were “unfounded.”

Terrible and frightening as it experience was, the experience

presents a clear and compelling set of facts for challenging the authority of the state to hold the child in custody without probable cause or exigent circumstances. The coerciveness of the CPS demand, coupled with the representation that the Hernandezes had no legal rights to see their son (and hence were compelled to agree) were glaring too.

Despite the strong evidence that the safety plan the Hernandez parents signed was involuntary, their federal civil rights lawsuit was initially dismissed in federal district court. The 2006 case Dupuy v. Samuels, with an opinion by Judge Richard Posner, held that a “mere suspicion” of abuse by a parent, without any evidence yet gathered to support the allegation made to a Hotline, sufficed for CPS caseworkers to make a safety plan demand that required parents to put their children into a relative’s care. Suspicion could “ripen,” and the hands of CPS workers were not to be tied by the need for evidence before they were allowed to “offer” a safety plan. Viewing safety plan choices as “options,” the Seventh Circuit declared that parents who were offered such safety plans could simply “call the bluff “of the caseworkers. The opinion pointedly compares parents’ options (the choice between having one’s children go live with grandma or be taken into foster care) to those of cocktail party guests first offered a martini or a Manhattan, but then told that the only choice was a Manhattan, concluding that even such limited “offers” made them “no worse off.” The opinion concluded that safety plans were voluntary. Indeed, using the cocktail party analogy and its language of “offers,” the opinion concluded that Illinois’ pervasive safety plan practices were so plainly innocuous that they did not reach the threshold showing of a deprivation of liberty sufficient to allow the plaintiffs to state any colorable claim for a constitutional violation impairing family liberty.

The Search for Better Options

No good host forces his guests to drink. Yet CPS caseworkers never offered parents the choice of “no thank you” when they were given the forced choice between putting a child with a relative or having them go live with strangers in a foster home. The Dupuy opinion’s cocktail party analogy was thus plainly flawed, as the massive factual record before the district court in the 22-day trial confirms. The evidence—never referenced in the Posner opinion—showed that not one parent ever called a CPS caseworker’s bluff. Every time that a parent was threatened with foster care if they did not agree to separate from their child by enlisting a relative to care for the child during the investigation, the parent “agreed” to the safety plan. The federal trial court had found express coercion was rampant in the Illinois safety plan regime.

Far from a voluntary choice of options, the choice between having a child live with a relative during an investigation or go into foster care (with the possibility of never seeing their child again) is akin to being offered a choice of “your money or your life.” Labeling such choices “offers” of “options” is Orwellian. Yet, in the regime of CPS, safety plans have been largely accepted as though they were voluntary options for the families under investigation. Caseworkers are trained to label safety plans as “voluntary agreements.” In the wake of the Dupuy decision, families face an uphill battle in arguing for any entitlement to due process as they lose custodial rights to their child.

Fortunately for the Hernandez family and the plaintiffs who followed them, there was a loophole in the Dupuy decision. As plaintiffs’ lawyers working to create a constitutional child welfare system for families, we mounted a series of cases that aimed to turn that loophole into a set of constitutional policies that would, if implemented as required, move the CPS system into a direction of affording due process to families under CPS investigation.

The Posner opinion had posited that families who refused safety plans were “no worse off” for having been offered the “choice” between taking their child into foster care or having the child live with a relative. The loophole arose because when the CPS caseworker demanded the Hernandezes sign the plan, their child had already been taken into protective custody. That made the so-called “options” more plainly coercive. Contrary to the assumption in the Dupuy opinion that the parents could “call the State’s bluff” and not be worse off, if the Hernandezes had exercised that “option,” it would mean their child would stay separated from them, and they would not be able to see him at all.

Ultimately, the Hernandezes won reversal of the Dupuy-based dismissal of their federal civil rights suit and secured an opinion that was more than a modest corrective to Dupuy. First, it clarified that the state bears an immediate duty to release a child from state protective custody as soon as it is clear there was no probable cause to believe the parents had abused the child. And while the Seventh Circuit refused to award damages to the Hernandezes arising from initial seizure of their children, it declared that, henceforth, taking children from their parents without probable cause, without exigent circumstances, and without a court order first, violates the Fourth Amendment. Several other circuits have articulated the same legal standard.

The Seventh Circuit also labeled the Hernandezes safety plan coercive, knocking a gigantic hole into the Dupuy opinions conclusory assumption that all safety plans, including those issued without any investigation and upon “mere suspicion,” are uniformly voluntary and thus work no deprivation of liberty.

Despite this landmark ruling, however, practices on the ground in Illinois have not changed significantly. Five subsequent lawsuits in Illinois successfully extended the holding of Hernandez v. Foster to the nonconsensual transfer of custody to another parent and the holding of children at hospitals. Still, policies and practices intended to clarify the limited circumstances in which a state can demand a safety plan are yet to be fully implemented. Safety plans continue to be demanded of parents in the absence of evidence showing any serious likelihood of abuse or neglect to the alleged child victim and absent emergency justification for separating the family without a court order.

Juvenile court intervention provides a necessary but insufficient correction to the abuses of power committed in the name of child protection. The Hernandezes story was the shortest of the separation stories told in They Took the Kids Last Night. One ordeal lasted 3½ years, and another required a trip to the appellate court before an unfair presumption of guilt for alleged Shaken Baby Syndrome was overturned. The Hernandezes never had to respond to a formal legal action, since the request to file a case against them in the juvenile court was rejected by the prosecutor. Nevertheless, the juvenile court practices my book examines in detail add to the challenges families face when CPS separates them from their children. Parental innocence of wrongdoing provides little protection in the face of pervasive policies that support taking children first and then shift the burden to the families to prove their innocence.

New federal amendments to the Social Security Act pursuant to the recently enacted Family First Prevention Services Act could make the problem of family separation without due process even worse. Federal matching funding soon will become available to support relatives caring for children involuntarily taken from their parents, without requiring any formal judicial review of the validity of the separation in the first place. While advocates like me hope for some stronger federal guidance to reinforce the principle that children cannot be taken from their parents under coercive threats, there is substantial concern about an ever-widening child protection reach into family life. While the Families First Act was intended to support families’ ability to raise their children and avoid foster care placements, it may have the unintended effect of encouraging more safety plan separations into relative care without due process.

Wider public attention and scrutiny to these operation of CPS, both in the formal foster care system and in the shadow foster care system that operates under the radar, is long overdue. If awareness of the trauma inflicted on families by ICE practices at the border leads to a re-examination of that agency and its actions, then perhaps a re-examination is also in order when American resident children, from Alaska and Hawaii to Florida and Maine are taken away too.

Debate about child protection policy among scholars and professionals generally reflects two diametrically opposed views about state child protection services (CPS) agencies. Some see the agencies as too readily separating children from parents in overreaction to reports of abuse or neglect, whereas others see the agencies as more concerned about making parents happy than about children’s welfare. Diane Redleaf is clearly in the former category; from her perspective, CPS is “treacherous and error-prone,” “continuously separat[ing] children from their parents,” operating “in secret,” routinely trampling “family rights.”

As is often the case when starkly different views of the same phenomenon persist, there is at least some basis in reality for both views. Redleaf offers anecdotes in support of a claim that CPS caseworkers are systematically and without cause coercing parents into sending their children away to live with relatives following maltreatment reports. Instead of walking away or giving parents a procedurally proper hearing by initiating formal judicial proceedings, caseworkers use threats to induce parents to accept a “safety plan” that entails temporarily placing the child with relatives.

Argument by anecdote is a dangerous approach to advocacy. An opponent typically can easily pick apart the anecdotes or offer up contrary anecdotes. And many people are susceptible to being persuaded by such argument even though it is illogical to draw inferences about systemic problems from isolated examples. What one wants in this field is data presenting a picture of the system as a whole, so that any policy changes respond to sufficiently widespread phenomena rather than to anomalous occurrences. Are there a large number of cases in which CPS separates children from parents without sufficient reason?

Focusing on a few specific cases actually creates an impression that the answer is “no.” Particularly so when one omits facts that might spoil the impression one is trying to make. In Redleaf’s case in chief, Hernandez, the agency’s basis for removing from parental custody a child who suffered an arm fracture was not just the mother’s inconsistent statements about whether the child was walking yet (a fact that a wrist fracture would not change), but also the facts that “Jaymz had an unexplained, older bruise above his left eyelid,” “the parents gave conflicting reports about who was home at the time of the incident,” and “the parents denied that anything was in the crib, but [the caseworker] observed objects in the crib.” Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 477 (7th Cir. 2011). The courts ultimately concluded that the initial removal was reasonable, in light of those facts, but that the child should have been returned to parental custody after medical professionals concluded that the injury was consistent with an accidental fall from a crib. Id. at 478-83. The case does stand as an example of CPS wrongfully coercing parents into accepting a safety plan that entails having a child stay with relatives. It was wrongful because the agency threatened something it was incapable of doing in that case (placement of the child in formal foster care with strangers). A fuller picture of the facts, though, makes the agency’s actions more understandable. There was insufficient evidence to bring the case to court, as is often true even when child abuse has occurred, but there were several red flags that made the agency wary about closing the case.

Absent statistics about how often agencies are coercing parents with empty threats of non-kin foster care, it would be helpful to have a clear picture of how caseworkers and other players in the child welfare system operate, what incentives they have, and what precise legal rules constrain their actions and decisions. That picture, along with some anecdotes, might support an impression that it is happening systematically, as Redleaf speculates. But even if so, the proper response might not be simple or clear, because any alternative rules or practices might raise other concerns—in particular, leaving too many children in danger or forcing agencies to take more drastic action.

We know CPS agencies are generally overburdened, so caseworkers are not roaming about hoping to find more children to add to their caseload. We know the actual rate of maltreatment exceeds the rate at which CPS receives reports of maltreatment, and it greatly exceeds the rate at which CPS is able to substantiate reported maltreatment. So it is implausible to suppose that many CPS intrusions into family life are entirely unwarranted. Softer responses to maltreatment reports have developed in part to minimize CPS workload and in part to minimize the trauma for children and parents following a report. One of those softer alternatives is a safety plan parents can choose instead of going to court for formal hearings and adjudication of abuse or neglect charges against them.

As I discuss in my new book Liberal Child Welfare Policy and Its Destruction of Black Lives (Routledge 2018), there is ample reason to fear CPS caseworkers will too often choose soft responses in cases where they could reach a finding of maltreatment, seek an adjudication in court, and take stronger measures to protect a child. They might do this to avoid upsetting parents and to spare themselves from having to prepare for and attend court hearings, find and monitor foster parents, and so on. And the result might be to leave children in danger (e.g., because relatives with whom a child is placed will not adequately protect the child from parents or are not themselves adequate caregivers). Objective studies of “Differential Response,” the latest policy innovation in child protection practice, whose basic thrust is to offer parents voluntary services rather than to do formal investigations, show that CPS agencies in many states have diverted a shockingly high percentage of maltreatment cases onto the soft “assessment track” rather than the more formal and coercive investigative track, with the result that more children suffer a recurrence of abuse or neglect.

Redleaf’s concern is the opposite—that caseworkers are inclined toward a heavy-handed, intrusive approach, always seeking to prolong oversight of parents and separation of children from parents, using devious informal means when unable to initiate formal proceedings. She does not suggest what motivation caseworkers or their supervisors would have for routinely doing this. One motivation might be the noble one of protecting a child when their gut rather than hard evidence tells them the child is in danger. I am not certain we should be alarmed about caseworkers acting on their instincts in such situations, though their instincts are certainly fallible. Another motivation might be more self-serving— avoiding lawsuits should they return a child to parental custody and the child is subsequently seriously maltreated. But such lawsuits are far less likely than suits by parents of the sort Redleaf recounts, charging CPS with violating parents’ rights. Whereas parents are generally able to ask a lawyer to sue on their behalf when they feel wronged, children generally are not. The lawsuits parents have brought have clarified the law for agency directors and caseworkers, so that wrongful continuation of state custody and coercion of parents into “voluntary” safety plans should no longer occur in the jurisdictions where courts have issued decisions like that in Hernandez.

In sum, though Redleaf might be correct in suggesting there is today, despite rulings like Hermandez, a widespread problem of illicit coercion of parents, she does not document that or make it seem plausible. Nor does she make clear when, in her view, coercion is illicit rather than appropriate. If an agency could make a formal finding of maltreatment, secure a court removal order, and place a child in foster care with non-relatives, conditioning reunification on parental compliance with a plan of treatment and services, is it wrong to offer the parents a more informal approach predicated on their acceptance of temporary placement with relatives? Redleaf fails to address what the alternative would be to the practice of giving parents such a choice. Would it be to require in all cases formal investigation, court proceedings, and a permanent record of findings—in other words, elimination of softer responses? If so, would that be better for parents on the whole?

More importantly, which regime is best for children? Redleaf devotes little attention to the child welfare impact of the practice she describes. Was Jaymz Hernandez harmed by being placed in the custody of relatives for ten days, for eight of which his mother was able to stay with them? Is there evidence of other children incurring harm of any sort as a result of coerced safety plans? As with others who criticize CPS for being overly intrusive, Redleaf manifests a parent-focused view of the child welfare system. And though interests of children and parents are intertwined and overlapping to some extent, they are not entirely unified in any family. Simplistic assertions that children belong with their parents, or suffer when separated from parents, are not helpful to adjudication of individual cases nor to policy making. Direct, sophisticated, research-informed attention to children’s developmental needs and experience is essential.

Let me start with the big picture issues, where I think Diane Redleaf and I agree, and then turn to the difficult issues of interim CPS separations concerning which I learned a great deal from her essay, but on which I harbor some differences and reservations.

For as long as I have been around them, libertarians have been trading outrage about the ways Child Protective Services can snatch children away from parents. Such raids can be a life-changing infringement of some of the most prized of personal rights. They can involve an expensive legal fight against state-hired personnel and experts whose contentions a judge might naturally find plausible.

Armed with such power, some CPS agencies combine the raid-first ask-questions-later ethos of a bad law enforcement agency with the nosy paternalism of a bad regulatory agency. Over nearly twenty years, at my website Overlawyered, I’ve gathered CPS horror stories, a genre at which our friend Lenore Skenazy (of Free-Range Kids) so excels: the parents tripped up for letting kids stroll home from the park, walk the family dog alone, stay in the back seat of the car on a mild day while mom dashes into the store for a carton of milk, or simply play outside; the journalist mom’s joke tweet (“3-year-old for sale. $12 or best offer”), the kid held for an unexplained cough, and the criminal suspicions raised by dubious hair-strand testing, the use of perjury and false evidence, the perils of parental consumption of poppy seed bagels, let alone marijuana,living with a boyfriend who has a criminal record, and so forth. It’s not just the United States, either: in the United Kingdom a CPS inquiry might hinge on parental obesity or kids’ having been allowed to play grown-up computer games, and we haven’t even gotten to Scandinavia.

To be fair, CPS employees must work under a set of incentives shaped by headline-grabbing bad outcomes. Policies can lurch back and forth, driven by the latest failure: a child dies in parental custody, so public opinion demands more and earlier raids; then a child dies in a foster care setting, and the cry runs the other way. The next death may occur in grandparent care, or in a group home. When CPS managers vacillate and hold back from any definite final placement or resolution, they may saddle kids with one of the most dangerous risk factors of all: time spent in the system.

Even assuming a strong presumption against intervention in intact families that requires a convincing showing of likelihood of serious injury from not removing a child, we are still left with a lot of unanswered questions about procedure and the role of courts. Which brings us to the distinctive subject matter Diane Redleaf raises in her essay: what sorts of policy response should apply to agencies’ practice of proffering to parents ostensibly voluntary interim placements and “safety plans”? What happens when parents regret—the next month, or the next day—having agreed to those conditions? Can they reopen the concessions they made, and how? Does it matter whether the agency has withheld information from them or menaced them with worst-case scenarios?

I want to start by stepping back and taking note of the way the issues raised here turn up not just in disputes between CPS and parents, but across area after area of law and policy. Generically, they are issues arising from negotiation in the shadow of the law. Some examples:

• A criminal defendant, half scared to death by a prosecutor’s threat of the long sentence that might be handed down if all charges are proven, agrees to a plea bargain. Since the case ends, no jury ever hears the evidence, which may have holes.
• A business charged with white-collar crimes, or maybe not even charged yet, accepts a deal proffered by the U.S. Department of Justice for a Deferred Prosecution Agreement (DPA) or Non-Prosecution Agreement (NPA). It agrees to pay the federal treasury hundreds of millions of dollars and submit to years of oversight by a federally appointed monitor, who will review and approve decisions that companies ordinarily get to make for themselves. Since the deal is voluntary, a court never gets into the strength of the evidence.
• A university, bank, or pharmaceutical manufacturer signs a letter agreeing to adopt practices that are in no way required by federal law, after closed-door meetings in which emissaries from a federal department with oversight authority make known their feeling that these would be good practices to adopt. Pushing back is considered hazardous because a determined regulator can almost certainly find ways to make life unpleasant for one of these entities.
• Lawyers sue manufacturers claiming that a certain class of vaccine or medical devices cause a side effect. One company, more timid than the others, agrees to a settlement paying tens of millions of dollars. The other defendants go to court and win decisive victories: the law says there was no causation. Too bad for the company that settled; settlements are forever.
• Idealistic lawyers sue public social service agencies in search of court decrees cleaning up agency bad practices. The case settles and the resulting consent decree requires the agency to get permission from the lawyers before, say, changing certain policies or dropping budgetary commitments. Twenty years later, the private lawyers are still using the bargaining leverage of the consent decree to obtain concessions on unrelated issues.

In short: courts enforce settlements. They often do so even when the settlement is a hard bargain and even when its results stray from the appearance of equal justice. They do so partly out of self-interest (if it were too easy to wriggle out of old settlements, courts would be full of people trying to refight old cases and would have less time for the new). They do so partly out of an ideology that values contract, although settlement is treated as final even in countries with less respect for contract than ours. Yes, of course there are some exceptions—when the proffering party has obtained the settlement by fraud, for example. But the brilliant-but-quirky Judge Richard Posner, and his Seventh Circuit colleague Judge Frank Easterbrook, weren’t just off on some weird contractarian jag when they ruled in the DuPuy case that by and large parents are stuck with the settlement bargains they reach with CPS, even if they were under pressure when they settled, and can’t ask for free-form reconsideration based on all the individualized facts and circumstances.

Yet that is not the end of the story. In recent decades legal scholars, including many of libertarian bent, have stepped up attention to the once neglected issues of bargaining in the shadow of the law. Everyone realizes that most criminal prosecutions end in plea bargain rather than trial, and most civil lawsuits in settlement, and many major regulatory outcomes from the use of guidance documents, informal negotiations, and so forth. In public law the use of agency consent decrees has come under more scrutiny as well.

And if I may oversimplify, these varied lines of scholarly inquiry often wind up echoing much of the critique of CPS practice that Diane Redleaf presents:

Leverage. The side making the demands can deploy fear of extreme or unpredictable outcomes or prolonged legal process to obtain concessions a court probably would not or even could not have imposed.

Opaqueness. Settlements get negotiated away from public view, without the procedural sunlight afforded by open court and written judicial opinions. It is harder for outsiders to know what outcomes are typical, or how wide the range of variance is.

Entanglement over time. If it likes, the side making the demands can sometimes obtain for itself an ongoing, perhaps indefinite supervisory role, even in situations where judicial resolution would tend to afford a once-for-all clarifying ruling, such as a line between guilty and not guilty.

Bypassing court review. Key problems with the demanding side’s case, from quality of evidence to procedural irregularities, may never come before a judge.

Many of the problems Redleaf identifies are versions of these. CPS separations occur “in secret and without fanfare.” Statistics on them are not maintained “in any reliable form.” And so on.

So how do we get a handle on this? My first sense is that attacking the settlement process as such is doomed to frustration: the window for finding duress is awfully narrow. (E.g., “Caseworkers are trained to label safety plans as ‘voluntary agreements.’”)

Instead, obligations to respect rights can be imposed directly on agencies without need to scrutinize the give-and-take of the settlement process. If an agency fails to develop probable cause of abuse, and lacks exigent circumstances or a court order, it must release that child, period.

On the issue of opaqueness, higher-ups such as legislators and governors can impose reporting requirements. Settlements that go beyond the underlying statute in curtailing parents’ rights, entangle a family in obligation for more than a certain length of time, or are considered unusual or extreme for other reasons, can be kicked upstairs to require approval by agency brass.

Safeguarding every family’s rights will, as one of its benefits, shore up families against unwise surrenders of their rights.

James Dwyer’s response to my essay creates a false dichotomy between two “diametrically opposed” camps within child protection policy circles. He describes my “camp” as the one that criticizes child protection agencies for too “readily separating children” from their abusive or neglectful parents, while his “camp” criticizes child welfare agencies for trying to “make parents happy.” His characterization of my article runs off the rails in its very first sentence, however, when he describes these opposing camps as differing in their respective responses to “child abuse and neglect.”

Walter Olson’s useful reply to both of us puts my discussion of safety plans (child removals under agreements that are labeled as voluntary) into a larger context of negotiations undertaken in the shadow of the law. But this “shadow of the law” can be a more lawless place than Olson’s comments acknowledge. Parent who “agree” to leave their homes or let their children stay with relatives during investigations usually believe they have no choice but to accept such an option as the lesser of two evils. They agree to separation from their children only because a CPS investigator threatened them with taking their children to live with strangers. In this context, safety plans are even more coercive and more troubling than any of the agreements in Olson’s posited analogies. By contrast, safety plan negotiations take place in a vastly under-lawyered arena. Families subject to safety demands typically receive no prior notice of the claims of the CPS agency. They usually are legally unsophisticated, lack access to counsel, and are pressured to make separation agreements on the spot that will have life-altering impacts on their children. When a CPS investigator comes to a parent’s home and says, “Sign this agreement or I’m taking the kids,” a team of corporate lawyers or assigned counsel does not come to the home to review the documentation. And no neutral magistrate looks at the signed agreement to see it is fair or reasonable. The shadows of the law in this area are dark indeed.

Olson’s useful context and analogies don’t respond, however, to the debate that Dwyer wants to have with me, or the one I would prefer to have with Dwyer. Initially, it’s important to clarify that my article wasn’t about appropriate responses to abuse and neglect; it was about appropriate responses to hotline calls that allege abuse and neglect. Dwyer assumes that the allegations in millions of hotline calls are true—or true enough, given that Dwyer, like Judge Posner, also would allow hunches to suffice in the place of evidence because “suspicion can ripen.” Dwyer never engages with the primary question I posed: how child protection services should treat families when addressing allegations of abuse or neglect that have yet to be investigated.

Dwyer also pointedly criticizes me for presenting “merely anecdotal” evidence. But a demand for statistical evidence as to the incidence of a problem, before we agree on the terms of debate, presents a nearly impossible task for anyone, let alone for a civil rights lawyer confronting a “shadow of the law” problem as Olson describes it. Threats used to separate families during CPS investigations are not recorded in central databases so as to allow larger epidemiological studies to be undertaken. In fairness to Illinois and Pennsylvania, however, the two states with the most litigation on this issue, these states have been grappling with problems my article raises, though they have resisted statistical recordkeeping that might show that problem of baseless threats that cause family separations may be even worse than I fear.

Despite these limitations on any study of incidence rates, there are clues that the shadow foster care system has spread. A report from Texas found that nearly two-thirds of the children taken from their homes were placed as a result of safety plans. In the Dupuy litigation (part II), a CPS deputy director testified under oath there were 10,000 safety plan removals every year.

In the Dupuy litigation (part I), the federal court determined that there was a “staggering” rate of error in child abuse findings: CPS teams’ decisions that labeled children abused or neglected were overturned more than 75 percent of the time when those labels were appealed. The Second Circuit Court of Appeals made the same finding as to error rates in Valmonte v. Bane, 18 F. 3d 992 (2^nd Cir. 1996) as to New York State CPS system. And a study found that workers are two to six times more likely to wrongly substantiate a case than to wrongly label one unfounded.

Instead of debating whether the problem I discuss is real, I expected to start with the central question of “how do we know when abuse or neglect has occurred?” and then move to a discussion of “what are the essential protections we want to provide to families while we try to determine the truth of a Hotline call?”

Medical analogies can often prove useful. In 2002, the American Board of Internal Medicine Foundation developed the broadly celebrated Choosing Wisely campaign, with a mission of “Advancing a national dialogue around avoiding unnecessary medical tests and treatments.” One concern was that antibiotic prescriptions could lead to antibiotic resistance. The campaign did not deny the value of antibiotics but called into question the judgment of those who prescribed antibiotics for a cold “just in case.” By analogy, CPS policy sets forth a range of choices as to how to use coercive interventions into family life on the assumption that children have an “illness” that their families caused or unreasonably failed to treat. Even when there is, arguendo, evidence to support a concern about a child’s health or wellbeing in their family, I am on the side that favors choosing wisely. Dwyer’s response is analogous to drug companies’ pressure for more “just in case” prescriptions before any doctor has decided the child has cold.

Medical analogies also clarify why discussion of “anecdotal” cases can create new understandings. Every epidemic, from Ebola, to AIDS, to mad cow disease, starts with someone noticing a first case and starting to look for treatments. Luminaries from Pericles to Hippocrates to Confucius have recognized that there is always a tradeoff in any well-intended intervention, and balance is important to achieve.

What may be most needed to start a meaningful discussion is a new and more appropriately tailored theory of the state’s proper role in protecting children. As Thomas Kuhn, author of The Structure of Scientific Revolutions (1970), stated, “New theory, however special its range of application, is seldom or never just an increment to what is already known. Its assimilation requires the reconstruction of prior theory and the reevaluation of prior fact, an intrinsically revolutionary process that is seldom completed by a single [person] and never overnight.” New theory defining appropriate state intervention might start with critique of how the current system gets it wrong when we make CPS workers fact finders, parenting police, and enforcement agents. Such a new theory might also help in setting reasonable limits on the powers that have been conferred on CPS workers to operate in the shadow of the law.

This theory cannot evolve from a blanket denial of family experiences. Dwyer’s suggestion that Hernandezes were not much affected for the worse by the 10-day removal of toddler Jaymz from his home, because Crystelle (his mother) got to stay with him (his father Joshua did not), is chilling. Take it from the Hernandezes: their lives were changed in dozens of ways, large and small, by the experience of having their child coercively removed, even for this relatively short time. Today, with four children born after Jaymz, they worry about CPS intervention every time any one of the kids gets a bump or bruise. What parent, having experienced the seizure of their child without probable cause, wouldn’t experience the same fear?

Dwyer’s lack of “alarm” as to caseworkers who have a “gut” feeling about abuse and who act on their instincts is consistent with Judge Posner declaration in Dupuy that “mere suspicion” should be sufficient to threaten a family with a safety plan separation as long as the state was not lying about the evidence it possessed at the time of the demand. But a parent who can imagine himself on the accused person’s side would immediately have a grave concern. If they knew the right legal questions to ask, they might ask how CPS’s gut-based actions square with their fundamental constitutional right to familial association. Should police be given a similar degree of free range to act on gut instincts and hunches (and if so, what’s the check under our rule of law on police entering homes and telling parents to leave because of such hunch?). What would we think of a medical system in which doctors were allowed to conduct heart transplant surgery based on the hunch that the patient might develop heart disease if they fail to act? Risk of future harm, even when that risk is as serious as child abuse, needs to be supported with “definite and articulable evidence” (in the words of the federal court in Brokaw v. Mercer County, 235 F. 3d 1000 (7^th Cir. 2000)). And the intervention needs to be reasonably measured in response to the documented risk.

The challenge for advocates is to enunciate more clearly these standards for intervention in cases of alleged child abuse and neglect. Processes are needed to assure these standards are met. A good gut feeling or unsubstantiated hunch is an abdication of policy, not sound policymaking.

Prof. Dwyer makes a few more observations that also merit a response.

Dwyer argues against the likelihood that innocent parents are unduly coerced and threatened by CPS by looking at caseworker motivation, noting caseworkers are overworked and therefore are not looking for more children for their caseload. Caseworkers never go looking for cases, however. They are assigned to cases when referred by the hotline. This observation about individual caseworker motivation also ignores the systemic policy motivations that allow safety plans as a “safe” and low-cost response for the system, if not for the families. This response Olson describes as typical of systems that allow operation in the “shadow of the law” to flourish.

But Dwyer’s observation about caseworker motivation doesn’t answer the reasons safety plan policies have been allowed to run rampant; it only confirms that they are doing so. It’s easier for a caseworker handling an assigned hotline investigation to separate a family under a safety plan than to mount a case with evidence and take it court. While it may be “easier for the family” (and “make parents happy, ” in keeping with Dwyer’s own pet critique of the CPS system’s predilections) in the cases where there is solid evidence of abuse, this observation fails to reckon with the fact that it’s not necessary to have any evidence at all, according to Judge Posner, in order to threaten a safety plan.

Toward the end of his essay, Dwyer leaves the safety plan terrain altogether, reprising his complaint that the CPS system is “soft” on abusive parents, prone to allowing them to keep custody of their children. At times caseworkers do leave children in genuinely abusive homes. I don’t condone these terrible decisions, though they might be rarer than sensation-seeking media suggest. Rather, these cases are just one side of the same coin that lets errors of all types proliferate. Sometimes, the caseworkers who let children languish in homes after experiencing serious abuse are lazy, untrained, or incompetent. Perhaps the evidence at the time of state’s missed opportunity for intervention wasn’t clear. More probably, these caseworkers are too overworked to get to see the children who are in genuine danger due to the overwhelming caseloads that have resulted from “when in doubt, call the Hotline” policies. A system that allows caseworkers to operate on hunches when it separates children from their parents is the same system in which caseworkers leave children home in the face of danger merely because a parent seems “nice” or the home is spotless.

Despite his calls for reliance on research, Dwyer takes a detour to mischaracterize the research on “differential response.” Differential response is a system, like pretrial diversion, that takes hotline calls out of the investigation track and delivers social services instead. Contrary to his claims that this approach leads to more recurrence of maltreatment, the overwhelming body of research has found differential response to be safe and effective.

Despite our many disagreements, near the end of his essay Dwyer lands on one point of agreement—a point that, to my surprise, coincides with the enacted policy of the state of Illinois in a series of post-Hernandez lawsuits. He suggests that, if the state had strong evidence of abuse and instead of court action, it proposed course of treatment agreed to by the family, there would be nothing wrong with that from a due process and lawful state intervention perspective.

Dwyer almost has this point right. The alternative to a voluntary agreement in lieu of court action is fair, lawful, and reasonable if the constitutional standard for removing the child has been met first, before a family separation is demanded. In other words, for a safety plan to be lawful, evidence sufficient to impose such a plan involuntarily must be present.

Such a substantive protection against unwarranted coercive threats would be a good start. But even such protection would not suffice to afford fair procedures to assure adherence to the substantive requirements. There must be an available review of the basis for the state’s demand for such agreements, even if the parent agrees to the agreement’s terms. Agreements can too readily be labeled as voluntary if there is no process available to review them on the merits. Parents also need access to counsel to advise them if the agreements and terms under which they must separate from their children, even if the State were to meet a substantive burden of proof, are fair. This area of social control and family life needs to come out of the shadows of the law and into the light.

In law, as in child welfare, there is no alternative to a system that operates under a reasonable burden of proof, even if that burden is mere “probable cause.” Before children get taken from their parents, shouldn’t we be insisting that the state must have more than a subjective hunch that the parents have mistreated their children? And shouldn’t we be discussing how to protect families from terrible harms that we can’t yet adequately measure since we haven’t been paying attention? Shouldn’t we be discussing how to bring light to the shadow foster care system and the CPS practices that allow this system to operate outside the law? These are the debates we should be having.

In the not too distant past, the prevailing practice of child protection agencies was to do a formal investigation of every “valid” report of child maltreatment and reach a formal finding as to whether the report was “founded.” If yes, then the caseworker would bring the case to court, where parents are subjected to a trial-like “adjudication” and, if found to have committed abuse or neglect, ordered by the court to undertake rehabilitative efforts as a condition for retaining or regaining custody of a child. A valid report is one that relates facts that, if true, constitute abuse or neglect. A founded report is one as to which the investigating agent is able to amass sufficient evidence that the reported facts are true. A caseworker’s conclusion that a report is unfounded does not amount to a determination that the report was invalid or false; it simply means that, as is quite often the case when young children are victims of maltreatment, not enough evidence admissible in court could be collected.

Nothing Ms. Redleaf states in her initial essay or in her response supports the proposition that there are a significant number of hotline reports that are deemed valid when in fact they are not. She therefore gives us no reason to believe her insinuation that CPS is often contacting families on the basis of unwarranted or invalid reports. She also does not respond to my point that the National Incidence Study, now conducted four times, has repeatedly shown that the rate of actual child maltreatment greatly exceeds the rate at which children are reported to CPS as maltreated.

Ms. Redleaf also does not address the question I posed about whether she would prefer a return to the previously prevailing practice described above, in which all valid reports lead to formal investigation and a lasting record, which would on the whole amount to far more intrusion into family life than the current regime. In the current regime, a substantial percentage of valid reports are handled more informally and do not result in a record of maltreatment even if abuse or neglect has in fact occurred. For example, after my home state of Virginia adopted a differential response (DR) system, the number of abuse and neglect petitions filed in the Richmond, Virginia Juvenile and Domestic Relations Court dropped by around 75%. As someone who is child-focused, I worry that diverting a major portion of valid reports to informal approaches, in which parents are legally free to decline offered services yet still avoid having a record of maltreatment, leaves a great number of children in danger. The same was true when police used to take a “soft touch” approach to domestic violence reports; this left victims vulnerable to recurrent abuse. I would prefer an investigation of all valid reports.

And, in fact, studies conducted on Differential Response by independent researchers (as opposed to those funded by the Casey Family foundations, the primary lobbyist for DR), with which Ms. Redleaf appears to be unfamiliar, concluded that this parent-friendly policy innovation is in fact resulting in more recurrence of maltreatment. In roughly half of all cases put on the “assessment track,” in which a caseworker offers help but does not conduct an investigation or make a record finding, the parents were reported again for maltreatment. For an excellent presentation of the research, see Elizabeth Bartholet, “Differential Response: A Dangerous Experiment in Child Welfare,” 42 Fl. St. Univ. Law Rev. 573 (2015). In contrast, and belying Mr. Olson’s reference to foster care as “one of the most dangerous risk factors of all,” rates of abuse and neglect in foster care are minuscule by comparison—one quarter of one percent annually (Children’s Bureau, “Child Welfare Outcomes 2010–2014: Report to Congress” (2017))—and “foster care removal generally serves children’s best interests in terms of such factors as risk of violence to children, child ‘risk behaviors,’ child quality of life, and other measures of safety and well-being.” (Mersky, Joshua P. and Colleen Janczewski. “Adult well-being of foster care alumni: Comparisons to other child welfare recipients and a non-child welfare sample in a high-risk, urban setting.” Children and Youth Services Review 35(3) (2013): 367-76)

The research Casey funded, which might be what Ms. Redleaf was referring to, did not study child welfare outcomes from DR but rather parent satisfaction. Casey, like Ms. Redleaf, is parent-focused, and from that perspective what matters primarily is whether parents are happy and respected. Ms. Redleaf aims to disguise the likely conflict of interests between parents and children when a valid maltreatment report reaches the desk of a CPS caseworker, by referring repeatedly to “family rights” and legal representation for “the family,” but readers should understand her to be referring to parents’ supposed rights and parents’ having lawyers. I wonder if she would support appointment of separate legal representation for the child in all the instances where she believes parents should have a lawyer advocating for them.

Ms. Redleaf’s repeated suggestion that I endorse a “hunch” standard for CPS action is an evasion and a strawman argument. I referred to caseworker instinct only in explaining why I was not alarmed by the Hernandez case in the way that Ms. Redleaf expects readers to be alarmed. Any reasonable, objective, experienced caseworker in the same position would, I believe, also have had lingering reservations about returning the child to parental custody, and urging parents to allow the child to stay in the home of an extended family member, with mom present, for some additional days, simply does not alarm me as an advocate for children. Ms. Redleaf makes no reference in her response to the effect on the child, but rather focuses on the imagined effect on the parents. She also fails to address the point I made that the courts properly addressed what was in fact illicit about the caseworker’s conduct in that case. Caseworkers in that jurisdiction are no longer permitted to threaten removal to formal foster care when they know they lack the evidence necessary to make that happen. So is there still a problem in the states encompassed by the 7^th Circuit? Ms. Redleaf does not tell us. Would she prefer that whenever caseworkers do have enough evidence to go to court that they always and automatically do so, instead of offering parents an informal approach entailing the child’s staying with relatives? Is it always better for parents to endure court proceedings rather than have to choose “the lesser of two evils” presented by CPS? If her point is simply that all jurisdictions should adopt the Hernandez ruling that CPS caseworkers should not be making empty threats to secure parental agreement to safety plans, then we do not disagree.

Ms. Redleaf’s efforts to portray CPS practice as wildly arbitrary in an anti-parent direction rely on misleading characterizations. The “Dupuy litigation (part I)” was about child abuse findings against child care workers, not parents. In addition, the federal court in that case did not find that there was no abuse in a “staggering” percentage of cases in which CPS found abuse “indicated” with respect to child care workers. It found that in 75% of cases in which such workers appealed such a preliminary finding, which is a subset of all cases in which such workers are charged, the agency ultimately was unable to satisfy the higher standard of evidence that it faced on appeal, in part because “the indefensible delays… allow memories to fade and, therefore, evidence to become unreliable.” Dupuy v. McDonald, 141 F. Supp. 2d 1090, 1136 (N.D. Ill. 2001). Valmonte v. Bane was about parents as to whom CPS had deemed a maltreatment report founded or “indicated,” but again the court did not find that a great percentage of those parents were ultimately proven not to have committed maltreatment, but rather simply that in the subset of cases in which parents appeal the agency finding, CPS is unable to meet the higher evidentiary standard that applies in an administrative appeal. Moreover, that subset of cases is likely very small; in child protection practice generally, parents rarely appeal agency findings, and those rare cases are likely to be the ones in which parents’ attorneys perceive that the agency decision is most susceptible to challenge—that is, outlier cases. Or they are cases in which the parents are working or aim to work in professions involving care of children, and those parents might not be representative. More careful treatment of empirical findings is essential to sound policymaking and advocacy in the child welfare field.

I do applaud Ms. Redleaf for urging “a new and more appropriately tailored theory of the state’s proper role in protecting children.” I presented such a theory at length in my 2006 book Children’s Relationship Rights (Cambridge University Press). I cannot reproduce it in this space. The upshot is that the state acts as a fiduciary for children when it creates legal relationships between children and persons who wish to serve as parents, whether that occurs in an adoption proceeding or via biology-based parentage law, and the state continues to act as a fiduciary for the child in continually, albeit implicitly, reaffirming its choice of legal parents. In that fiduciary capacity, the state should be cognizant of children’s interests that align and intertwine with those of parents, but it should also recognize that the interests of parent and child can diverge. When it has substantial reason to believe there is a substantial divergence, it should act to protect the child, period. Parents have no substantive moral right that the state make any decision concerning a child that is contrary to the child’s welfare, all things considered.

That said, proper procedural rules and evidentiary standards protect children as well as parents from CPS interference with family life that is not needed for children’s sake. So again Ms. Redleaf and I might not come out very differently on questions of what procedures CPS should have to follow, and what CPS practices should be proscribed. We certainly agree that caseworkers are being asked to do several kinds of tasks for which they are not properly trained. It would be helpful, though, if she would clarify precisely what legal regime she would like to govern CPS response to maltreatment reports. If she would require that CPS have “definite and articulable evidence” before doing anything to protect a child, then it would seem she does favor a formal investigation in every case. It would also be helpful if she would explain why her position, whatever it is, is generally best for children, with reference to peer-reviewed studies of the various aspects of the phenomenon of child maltreatment and the state’s response to it.

Before entering onto my disagreements with Prof. Dwyer, here are a few items on which he and I do agree in part or full. I think he makes a good point that if courts or lawmakers restrict agencies’ use of soft or intermediate sanctions such as safety plans, they will often turn to harder methods. Moreover, a push to fit soft or intermediate sanctions into a more legalistic framework, while generating some results I might applaud – such as a better audit trail by which we could check agencies’ use of the sanctions – might also have other less welcome effects, such as cost, delay, and hazards to privacy as more family details get inscribed in permanent public records. Finally, I believe I agree with both Redleaf and Dwyer that caseworkers are placed under conflicting and difficult demands, while being asked to exercise judgment for which training is (and maybe always will be) inadequate. No matter how much we may fear the power of CPS agencies, demonizing caseworkers as a group is not the right answer.

Dwyer thinks it significant enough to make the point twice that “the rate of actual child maltreatment greatly exceeds the rate at which children are reported to CPS as maltreated.” I think this point is not worth making even once.

A quarter century ago, there was a famous study on medical negligence in which experts reviewed a large random sample of treatment records to determine how often substandard care had harmed patients. They found a lot of bad, injurious care – in fact many more instances of it than there were lawsuits. In other words, most times that doctors committed negligent harm, they were not sued. As you can imagine, trial lawyers crowed about that part of the study. But they did not crow about the other part, in which the check was done in the reverse direction: looking at the cases where doctors were sued, the reviewers in the great majority of instances did not find substantiation of negligent harm. (Many of the unsubstantiated claims nonetheless obtained settlements.) The combined findings of error in both directions do not somehow balance out to show that the malpractice-suit system was working well as a whole. Quite the reverse.

Dwyer urges us to draw inferences to parents’ disfavor from missing evidence. “A caseworker’s conclusion that a report is unfounded,” he writes, “does not amount to a determination that the report was invalid or false.” Maybe so, but how much less does it entitle us to proceed as if the parent was probably guilty but contrived to get away with it this time? As Diane Redleaf rightly recognizes, any legal system deserving the name of justice must distinguish sharply between accusation and proof, most especially when the subject matter of accusations is read by society as a matter of deep disgrace and moral stain, criminal liability or no. To me, Dwyer’s inquiry into the details of the Hernandez case shows how easy it is for family members to set off tripwires of suspicion under questioning. Inconsistencies and errors were found in parental accounts on such matters as who was present at a scene and whether there were objects in a crib. It’s not exactly news that witnesses after an incident often give confused and contradictory accounts. If we are going to entrust caseworkers with powers of on-the-spot family separation based on subjective reception of demeanor evidence, a spider sense of something just not seeming right – at least when an “unexplained bruise” figures into the mix – then I hope at least we are duly awed and humbled at the formidable nature of the discretion we are entrusting to caseworkers over human lives.

As I mentioned in my earlier comment, there are agencies willing, as policy, to snatch children from parents over marijuana use in the home, over letting Junior sit in the back seat while Mom picks up the dry cleaning, over playing alone in the park at age 8, and over a host of other infractions within past or present normal range. Ten years from now, maybe the triggers will be cigarette smoking in kids’ presence, moderate drinking during pregnancy, or a snack-food-based diet. Being popped into the care of paid strangers through multiple and shifting placements may involve getting yanked into a different school system, losing touch with your old friends, and crying yourself to sleep each night from missing your real family – but never mind, agencies record a low rate of formal abuse findings in situations like yours. Above all when shifting policy and value judgments get framed in the language of claims to expertise, families fear CPS, and they are right to fear CPS.

I will note for the record Prof. Dwyer’s at best puzzling statement that government “creates legal relationships between children and persons who wish to serve as parents, whether that occurs in an adoption proceeding or via biology-based parentage law.” Pending adoptions are one thing, but I would have called actual biological mothers and fathers, as well as parents after completed adoptions, not “persons who wish to serve as parents,” but simply “parents.” To claim that by not intervening to destroy an established family the state is “continually, albeit implicitly, reaffirming its choice of legal parents” is to imply an astounding subservience of the family to the state. And to state that when it detects “a substantial divergence” between parents’ and children’s interests, the state “should act to protect the child, period,” is as wrong as can be, too. A parent’s unwise choice of a partner in remarrying after divorce, for example, quite clearly will often conflict with the child’s interests. That does not mean the state should have the slightest say in the matter.

In perspective, my differences with Diane Redleaf’s views seem small. And I do wonder, with her, why it is that parents facing the seizure of their children do not already have an established right to be informed promptly of the nature of the charges against them.

Prof. Dwyer’s second essay, “Child Welfare and the State’s Fiduciary Responsibility,” posted November 20, 2018, challenges me, again, to “prove” the problem of wrongful state intervention against families who should neither be investigated nor separated. Dwyer’s second essay takes some new turns, however, and calls out for further clarification, lest our areas of agreement and disagreement become even cloudier. The point of a debate is to illuminate a topic, not interject diversionary disputes. It also is worth pausing to note when we reach the same conclusion from dramatically different premises and priorities.

The focus of my lead essay was on mistakes child protective services (CPS) make in responding to hotline calls too precipitously and too intrusively. Specifically, I focused on the problem of informal family separations under “safety plan agreements” during CPS investigations. Walter Olson helpfully described these separations of families as occurring within a larger legal context—in the “shadow of the law.”

Prof. Dwyer’s second response, like his first, denies that I have identified a real problem. He starts with a discussion of how hotline call investigations operate, introducing what seems, at first blush, to be a useful distinction between “valid” and “founded” allegations. The distinction he offers, fairly enough, is that a “valid” allegation is one that essentially “states a claim” for abuse or neglect, while a “founded” allegation is one with a sufficient evidentiary basis.

Prof. Dwyer’s claim is that I haven’t shown a rampant problem of allegations being “deemed valid when they are not.” But valid allegations are not necessarily allegations that warrant investigation.

Some definite and reliable evidence of maltreatment of a child should be required before CPS embarks on an investigation, given that investigations almost inevitably carry with them seeds of distress and disruption for children and families alike. Creating such a threshold requirement is daunting, however. The current hotline system has created a triage nightmare, with 7.4 million children reported to hotlines in the most recently reported data year. Substantial screening does occur, but 3.5 million allegations annually are deemed valid enough to be sent for investigation or differential response. (HHS Child Maltreatment Report, 2016.)

A simple example shows how a hotline call can be “valid” without being “warranted”:

Assume that an active, healthy and bright 4-year-old gets frequent bumps and bruises on the playground at his preschool. Assume the 4-year old’s father is engaged in a custody battle with the mother and takes every new bruise as evidence to be used to gain an advantage in his ongoing custody battle (the sexes of the parents could be flipped here). The father (or the father’s surrogate—a therapist, doctor, or friend) calls the child abuse hotline reporting suspected abuse by the mother due to the new bruises on the child’s shoulder and legs.

There is no doubt that this abuse allegation is “valid.” If the mother intended to cause bruises to the child, the father’s allegation presents a claim that “if true, constitutes abuse or neglect.” Child abuse reporting laws started with the paradigmatic example of the “battered child” in mind (see C. H. Kempe et al., “The Battered Child Syndrome,” Journal of the American Medical Association, July 7, 1962).

Should this call therefore be investigated? I don’t think so. First, this hotline call has none of the hallmarks that turn a valid claim into prima facie true one. Its source is biased: the caller (or his surrogates; it is common for surrogates to be enlisted in the fray) seeks an outcome that is advantageous to him. Second, there is no reported history that would lead a reasonable person to believe that the mother caused the bruises, and there are many other possible causes. Playground incidents caused past bruises, which appear on common spots for accidental injuries. Third, the fear that animates need for child protection intervention into family life in the first place is not present as to this child—he is happy, healthy, and developing well.

What benefit to the child will a CPS investigation bring? If anything, the investigation will disrupt the child’s home life, adding considerably to the mother’s stress and deepening the custody battle, wasting ever more resources in a mushrooming conflict that adds the preschool and state casework teams to the parents’ personal conflict. In my opinion, this admittedly valid hotline call is not one that warrants investigation. Opening an investigation runs contrary to the child’s best interests. It’s costly to other genuinely abused children too, because the CPS worker investigating this case will have less time to build the case against the parent who is keeping his child in a cage.

Minor accidental injuries and parenting flaws that do not rise to the level of dangerous child abuse are prevalent. One of the most significant cases I worked on involved a father who, in the course of contending for custody, claimed the mother had locked her 9-year-old in a closet. He presented a perfectly valid allegation, except that the alleged closet, on quick examination, had no locks. Neglect claims against the mother, Julie Q., were deemed “founded,” however, because she was a recovering alcoholic whose sobriety claims were not believed by the caseworker and the initial reviewing administrative law judges. Four and a half years later, her case resulted in a sweeping Illinois Supreme Court determination that CPS’s neglect rule used in the finding against her (i.e., defining neglect as creating an “injurious environment”) was invalid. Further class litigation resulted in over 26,000 parents and caregivers getting similar findings removed from the child abuse register. See Julie Q. v. DCFS, 2013 IL 113783; Ashley M. v. DCFS, 2013 CH 20278 (class action); Etonia C. v. DCFS, (class action).

An especially troubling variant on this sort of hotline call occurs when the mother is fleeing domestic violence and where the hotline call is part of batterer’s attempt to maintain power and control. D. Redleaf, “Protecting Mothers Against Gender Bias” (Three Part Series), Children’s Rights Litigation, E-Newsletter, October 2011-July 2012. CPS systems have historically mishandled these cases in a “blame the victim” manner. See Nicholsen v. Scoppetta, 344 F.3d 1542^nd Cir. 2003), see also S. Schechter and J. Edelson, “Effective Intervention in Domestic Violence & Child Maltreatment Cases: Guidelines for Policy and Practice,” also known as the “Greenbook,” National Counsel of Juvenile and Family Court Judges) (1999).

I’m not “insinuating” that parents and children are contacted in baseless or misplaced cases like these – I’m asserting it. Indeed, it’s the norm that children in opened CPS investigations must be seen within 24 hours of a Hotline call. Children are then interviewed by strangers, sometimes undressed, and sometimes photographed without parental consent; see Doe v. Woodard, No. 18-1066 (10^th Circuit, argued September 24, 2018) (pending in the 10^th Circuit on appeal from the grant of qualified immunity). Opened investigations typically stay open for 60 or 90 days, including the majority of cases that get deemed “unfounded” at the end of the investigation. In physical and sexual abuse cases, children are questioned at length about their home lives, often pulled out of class for this purpose, and then examined by state-funded doctors, a highly traumatic experience for the child. See Camreta v. Greene, 09–1454 (U.S. Supreme Court, May 26, 2011); the case was deemed moot after argument, where 43 states joined the Oregon CPS system petitioner in seeking liberal permission to interrogate children at schools without a warrant, without probable cause, without parental consent, and without exigent circumstances.

Parents report understandable anxiety when CPS caseworkers knock on their doors to investigate a child abuse or neglect allegation against them. They readily become terrified that they may lose custody of their children even when such an outcome is very unlikely. Indeed, the threat used to secure safety plans is especially potent for the already frightened parent whose sole goal is to minimize trauma to their child.

Of course, if the child in question is being beaten to a pulp, used as a prostitute, caged, or starved, any anxiety the parent or child might feel about talking to CPS is outweighed in the legitimate balance of concern for the child. Incidental trauma to the family may be justified in cases well-grounded allegations of serious harm to children (severe physical abuse, sexual abuse, and abandonment). The overwhelming number of cases aren’t these, however. Most cases CPS investigates, the data show, are not abuse or neglect at all. Of the 3.5 million children subject to investigations by CPS in 2016, 2.8 million were deemed “non-victims.”

Hotline calls may seem benign and well-intended unless and until one’s own parenting comes under the microscope. Should we be devoting precious CPS resources to investigating every valid hotline call? I don’t think so.

Unfortunately, a constant drumbeat by child advocates, fueled by celebrated child deaths “known to the system” has caused ever-expanding numbers of “see something say something” hotline calls and simultaneously has made meritless calls more difficult to screen out. The system rightly takes professional mandated reporter calls seriously. Yet 16% of calls come from unidentified and anonymous sources that bear little indicia of reliability; these calls are founded at rates averaging just 1.5%; see Dale Margolin Cecka, “Abolish Anonymous Hotline Reporting,” 64 Cath. U. L. Rev. 51 (2014). While generally better grounded, mandated professional callers can abuse the hotline too, as a recent article in the Hechinger Report/Huffington Post shows, documenting a series of cases in which teachers or school administrators made dubious calls that encouraged behaviorally challenged and disabled students to go to school elsewhere. R. Klein and C. Preston, November 17, 2018, available at https://hechingerreport.org/when-schools-use-child-protective-services-as-a-weapon-against-parents/

Dwyer is also mistaken in claiming that founded cases all come into court, at least until differential response deflections came along. Most founded cases are simply registered in a child abuse register and closed without anyone seeing a judge. The HHS Child Maltreatment report for 2016 shows services were provided in just slightly more than half of the founded cases, with fewer than one quarter of the founded cases resulting in foster care. The definition of “founded” cases in many states is very relaxed, and the evidentiary burden varies considerably by state. Systems also vary dramatically in the independent review mechanisms available to challenge the basis for a founded decision. Millions of findings of abuse or neglect get registered and retained without any prior neutral adjudication of guilt. See D. Redleaf, “Child Abuse Registers Abuse Due Process,” Verdict Magazine, April 2018 (available at https://files.acrobat.com/a/preview/45d0172f-8241-4ee8-bffa-cdd679854179).

Findings of abuse or neglect should not make their way straight from caseworkers’ desks into state-maintained registers that operate as employment and volunteering blacklists. A qualified, neutral judge should determine guilt first. If there is probable cause to believe a child is abused or neglected by their parent or guardian, and a basis for demanding that the parent’s treatment of the child should change, then court action is appropriate. Without meeting that level of evidence, parents and children should simply be given the “right to be left alone,” since that right is the “beginning of all freedom.” (Public utilities Commission v. Pollak, 343 U.S. 451, 467 (1952)(Douglas, dissenting).

Dwyer’s discussion of Dupuy I—the phase of the case that challenged child abuse registries (Dupuy II challenged safety plans) as impairments of employment opportunity (due to their use as blacklists) is also confusing. Children as young as six could, at the time of the suit’s filing, be listed as child abuse perpetrators in registered decisions that lasted for up to 50 years. Sarah Dupuy herself was a 10-year-old who helped her mother in her day care home and was compelled to stay in another town during the investigation, under a CPS threat that the family’s day care business otherwise would close. The case did not challenge “preliminary findings”; it focused on founded guilt determinations that were placed in child abuse registers based on “practically nominal” amounts of evidence (in the language of the federal court, 141 F. Supp. 1090 (N.D. Ill. 2001).

It’s true, however, as Prof. Dwyer notes, that exoneration at the end of a child abuse investigation does not establish innocence; it merely means the state has failed to meet its burden of proof. Indeed, that’s one of the terrible consequences for parents of getting caught up in a child abuse allegation: names and reputations cannot be fully restored; corrective remedies don’t give the accused back lost time with children or restore lost careers.

It’s also virtually impossible to determine what percentage of all “founded” cases are accurate. Definitions of allegations vary by state. Systems to challenge “founded” decisions are rudimentary and difficult to navigate in many states (Illinois, post Dupuy, hears 20 times more register appeals than California does). Overturning rates vary dramatically from state to state as well. Advocates like me would welcome a major neutral study of how many millions of parents are wrongly listed in child abuse registers, but faulting me for a lack of data that isn’t maintained is a bit unfair. Setting a proper balance between Type I (false positive) and Type II (false negative) errors will not occur, however, if false positives are treated as harmless and discounted, and if all attempts to fix the over-intrusion problem are dead on arrival.

Understanding the potential negative consequences for families who get investigated and registered as perpetrators of abuse or neglect in error leads me to view community service referrals through differential response programs much more positively than Prof. Dwyer does. The record on differential response is less bleak than Prof. Dwyer suggests (as Richard Wexler’s comment notes). The research that Professors Dwyer and Bartholet cite is both equivocal and non-standardized, with differences in reporting of subsequent maltreatment relatively small and specific to state systems that may have improperly referred serious abuse cases to differential response in the first place.

Turning to the remaining questions Dwyer presses me to answer:

(1) There is nothing inconsistent between my claims that CPS over-investigates meritless claims while genuine abuse or neglect is underreported, as found in National Incidence Studies. Our shared goal should be accuracy and fair targeting.

(2) Safety plan separations continue in many states including Illinois, because despite the settlement of 5 post-Hernandez lawsuits, implementation of agreements has not been complete. There have been recent news reports of these separations in Delaware, Arizona and Texas.

Prof. Dwyer challenges me to expand on a parent/child/state jurisprudence. While neither of us has space in this forum to satisfy this challenge, my starting point would be different from Prof. Dwyer’s. Parent and child familial rights are properly treated as fundamental. Professor Dwyer wishes to elevate a child’s right to safety, judged by fallible state officials, as overriding parent’s (and child’s own familial rights). How else am I to read his proposed state “fiduciary duty” to create for children an appropriate home life? Much as I am dismayed by the current state of CPS, I’m even more troubled by a system that would generally empower the state to decide when any children or parents deserve each other, with children given a say on an equal footing with parents no matter their age.

I view families as groups of human beings who should presumptively be stuck with each other, for better and sometimes for worse. When it is for worse, the state’s powers still need to be carefully circumscribed, with strict scrutiny and higher burdens of proof than our CPS systems currently endorse. Empowering child representatives to speak for young children who cannot speak for themselves is a wonderful full employment system for lawyers and well-meaning volunteers, but does little to advance a fair adjudicative process. See M. Guggenheim, “The Right to be Represented but Not Heard,” 59 N.Y.U.L. Rev. 76 (1984). 

As a family defense lawyer, I take due process seriously. The state should have no inherent powers to intervene in family life. The state should be required to have at least probable cause to believe the parent has seriously mistreated or immediately endangers a child before it begins to limit the parent’s rights to decide what’s best for that child. Limits should be judicially enforced, not issued by caseworker fiats. I don’t advocate this scheme solely because it is a best for parents: it’s also best for children and for our society.

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When I was invited to write my opening essay, I chose one of the themes in my new book (They Took the Kids Last Night: How Child Protection Systems Put Children at Risk)—unwarranted safety plans issued without due process. I worried, however, that there wouldn’t be much to debate. Prof. Dwyer’s searching questions and critiques surprised me.

While Professor Dwyer and I differ substantially in our emphases and assumptions, we might agree substantially on what a reasonable lawful CPS system looks like. Do we both think well-grounded cases of abuse or neglect should come to court? I think so. Do we both worry about out-of-court arrangements that deflect cases into informal alternatives—yes, I focus on informal alternatives that needlessly separate families, while Dwyer is more concerned with deflections that keep children in unsafe homes. Do we both think investigations should happen in every case—maybe so, if the definitions of maltreatment were clearer to everyone and prima facie evidence were required first. Should parents be given options to cooperate or not, without being forced into court: yes, assuming they are not being baselessly threatened and if they, like major corporations negotiating in the shadow of the law, have meaningful access to counsel.

Do all of our agreed upon remedies require a better trained CPS workforce? Definitely, though training won’t solve confusions about what we expect CPS to do. Due process for the accused would answer many concerns.. Shadow processes need to be out in the sunlight. Maybe Professor Dwyer and I do not disagree so deeply after all.