Foster Care's Nuclear Option

In response to President Trump’s policy to separate children from immigrant parents seeking refuge in the United States, mental health professionals have been clear – taking children from their parents is devastating to their wellbeing.  A petition signed by over 13,000 psychologists, social workers and therapists reads, “From decades of research and direct clinical experience, we know the impact of disrupted attachment manifests not only in overwhelming fear and panic at the time of the separation, but that there is a strong likelihood that these children’s behavioral, psychological, interpersonal and cognitive trajectories will also be affected.”  Removal permanently alters the lives of children because the stress it creates can cause long-term damage to the brain.  Dr. Charles Nelson, Professor of Pediatrics at Harvard, explains, “[T]here is so much research on this that if people paid attention at all to the science, they would never do this.”  In other words, removal is the “nuclear option” for children.  Once it happens, the damage can never be undone.

The question in my mind is whether the collective outrage over President Trump’s action will cause us to look inward – at our child welfare system – to determine whether we are properly exercising the nuclear option.  In 2015-2016, governmental authorities – police officers, caseworkers and others – took a quarter of a million children from their parents and put them in foster care.  Did these children – more than twice the population of Ann Arbor – need to experience the trauma removal inevitably creates? 

Here are several reasons why we should be concerned by this number –

·        The overwhelming majority of removals in this country happen by unilateral decisions by child welfare caseworkers or police officers before any judicial review happens.  Typically, courts and lawyers only get involved after the trauma has already been inflicted on children.  In some states, children can stay in foster care for days or weeks before a judge even looks at the case.  And once a judge reviews a case, he or she is often reluctant to alter the status quo, thereby keeping a child in foster care.

·         Some state statutes give child welfare agencies broad authority to unilaterally remove children based on one person’s subjective opinion that a child has been neglected or abused.  Most states do not require the individual making this determination to have had any training on the legal standards or the trauma caused by removal.

·        Only a small percentage of children are removed for physical abuse (12%) or sexual abuse (4%).  In contrast, 61% of children are removed for neglect, an amorphous category poorly defined by federal regulations.  Put another way, we don’t have good data on know why “neglected” children are taken away.  All too often, neglect captures circumstances related to a family’s poverty – for example homelessness or a lack of income – that can be remedied through public assistance.

·        Court hearings to review a public agency’s decision to remove a child are often short and perfunctory.  Despite the fundamental constitutional rights at stake and the catastrophic effects of removal on children, many jurisdictions don’t even appoint lawyers to represent parents at these hearings.  Without attorneys, judges never hear evidence about the traumatic impact of removal on the child, what efforts should have been made to keep the family together, and why the law might require children to be returned home immediately.

·        Most states do not give parents or children the right to appeal a judge’s removal decision.  Thus, generally speaking, these life-altering decisions are never reviewed in any way, and as a result, legal standards governing the process are never elucidated. 

·        In 2016, nearly 1 out of every 10 children removed were released from foster care within 30 days of their removal.  Most (57.6%) of these children spent a week or less in foster care, living in the homes of strangers or in institutions.  Almost all of these children were released to a family member, with the bulk returning to the same caretaker from whom they were removed.  This data begs the question:  why are systems inflicting trauma on these children only to return them home quickly?

Given what we know about the impact of removing children, these dynamics should concern all of us.  To construct a child welfare system that respects the clear research about the harm of removal, here are some of the questions I hope child welfare systems will begin to wrestle with.   

·        Shouldn’t we only permit removals without court approval in the most extreme of circumstances? 

·        Shouldn’t state statutes require that children be in imminent danger of substantial harm before they are separated from their family?

·        Shouldn’t child welfare systems be required to report the precise reasons why children are removed for reasons of neglect? 

·        Shouldn’t every parent be entitled to a lawyer at (or before) the first court hearing to ensure that removal is absolutely necessary to protect a child?

·        Shouldn't children and parents have an immediate right to appeal removal orders and get a timely decision on whether removal was absolutely necessary to protect the child?

·        Shouldn’t child welfare systems be required to figure out why they
     are inflicting permanent trauma on children only to return them home within 30 days or less?

Perhaps the bigger question is this:  will the child welfare system have the courage to harness its outrage over President Trump’s removal policies to look inward and confront tough questions about whether it is properly exercising its nuclear option? 

For the sake of the 250,000 children taken from their families, I hope it will.


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