We need stop the unnecessary and harmful removal of children from their parents to protect children.

Why changes to federal law are needed.   Currently, federal law does not conform to the constitutional limits on when child protection authorities can take children from their parents. In fact, our country is massively subsidizing inappropriate and harmful removals of children from their homes based on standards that our courts have repeatedly repudiated. This practice has led to a bloated child welfare system that cannot care for children in genuine need of protection and it traumatizes children and families who should not be separated.

Currently, for states to receive federal subsidies for child removals, federal law requires nothing more than that a state judge concludes that a child’s remaining in their own home with their parents would be “contrary to the welfare of the minor.” This standard is basically indistinguishable from the “best interest of the child” standard, which is notorious for its open invitation to state officials to make decisions based on the officials’ own view of what is good for children. In practice, this open-ended standard leads to the removal of children from minority, disadvantaged, disabled and single female parents at disproportionate rates and without the exacting scrutiny of the true risks to the children. Such power and such uncabined discretion, when exercised to interfere with a fundamental right is not merely dangerous; it is unconstitutional. Narrowing the grounds for funding child removals makes great financial sense too. Our country should not be heavily subsidizing costly care of children outside their homes unless their parents cannot safely care for them.  

Our proposed simple “welfare reform” change to both the Social Security Act and CAPTA is supported by bipartisan child and family advocates.  It would go a long way towards reform of our broken child welfare system.

WHY THE PROPOSED AMENDMENT PROTECTS CHILDREN AND FAMILIES AND IS SOUND PUBLIC POLICY.  Instead of the amorphous “contrary to the welfare” standard, the proposed language requires states to focus on immediate child safety.  Child welfare experts, consistently with constitutional commands, agree that whether a child should be removed from their home turns on whether the child is unsafe in the home.  This tightened standard for child removal would more properly focus the court on the question of protecting the child from harm and would protect more children from the terribly traumatic effects of being removed from their parents’ care. Limiting removals whenever possible –and insuring that there is a child safety justification for every removal-- is best for children.

Currently,  the child welfare system’s highly subjective standards have a grossly disproportionate racial impact.  Some studies have found that a majority of African American children have come under scrutiny of child welfare authorities.  In addition, studies have repeatedly documented that more than 30% of the children now in foster care could be returned home if their parents had stable housing—which demonstrates that poverty rather than safety concerns cause many children to languish in foster care. Cost savings on removals could be targeted to family support programs and to children who genuinely need protection, and save not just dollars but end the trauma that comes from taking children from their homes.



You do have to very often wonder how it can be that you have children who would be perfectly safe at home—all they needed was the heater to be fixed, or the mother to have childcare—and then those children are traumatized for life by being placed in foster care. And you wonder how that can happen at the same time that a social worker can be well aware that a child is being starved at home and do nothing.”
— Dorothy Roberts, George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights, quoted in M. Goldberg, "Has Child Protective Services Gone Too Far," The Nation, September 30, 2015

What we hope to do

We propose to change the Social Security Act's provision for federal subsidies for children removed from their home so that our system no longer encourages removal of children who are safe at home.

The specific sections that need amendment are 42 U.S.C. 672, 673 and 673(b).

Federal child abuse reporting law also needs to be amended to tighten the standard for removing children from their homes. 42 U.S.C. 5106 and 5010  (sections of the Child Abuse Prevention and Treatment Act or "CAPTA").

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