The difficulty of righting wrongs in caught
This paper discusses removal of children, in a perceived emergency. The unwillingness of familycaught “judges” to admit that they have ever made a mistake or an error of judgement, results in bad decisions being difficult to impossible to reverse.
It is this rigidity that makes parents extremely fearful of losing a custody hearing in familycaught, as this may then seal them into a non-custodial role forever.
This realistic fear, increases the extortionate pressure onto the parents, from the “judges” and legal workers. People who behave in this way are showing that they have no integrity whatsoever.
NZ legislation “requires” “judges” and legal workers to work in a conciliative way. This is a serious conflict of interest, as they can scrape more money off parents, by enhancing extortionate winner-takes-all approach to familycaught hearings.
This rigidity may maintain an air of mythical infallibility for the familycaught, it also seriously degrades the upbringing that tens of thousands of NZ children receive and results in several unnecessary child deaths each year in CYFs custody.
He who has never made a mistake, has never done anything of value.
CYFs suffers from pathological lying by some social workers, largely related to poor staff wages, training and selection procedures.
The article is from USA, different legislation – but exactly the same evidence weighing skills deficit, ethical and integrity problems.
BURDEN OF PROOF BEGONE
The Pernicious Effect of Emergency Removal in Child Protective Proceedings
Paul Chill [Paul Chill is a New York Law Professor.]
This article examines the tendency of emergency child removal decisions-by social workers, police officers, and judges-to become self-reinforcing and self-perpetuating in subsequent child protective proceedings.
This snowball effect, as one court has referred to it, is widely acknowledged by lawyers who practice in juvenile court, yet is largely unknown beyond those circles.
The article explores the causes and consequences of this phenomenon in the age of the 1997 federal Adoption and Safe Families Act (ASFA), which converts every day that a child spends in foster
care into one more tick of the clock in a countdown toward termination of parental rights. The article provides some background on the law and practice of emergency child removal in the United States today, analyzes the factors that make initial removals outcome determinative in many child protection cases, considers the implications of this phenomenon in light of ASFA, and identifies possible solutions.
1. THE LAW AND PRACTICE OF EMERGENCY REMOVAL
On an average day, police officers and child welfare caseworkers throughout the United
States remove more than 700 children from the custody of their parents to protect them from
alleged abuse or neglect.Ã¯Â¿Â½ These children are typically seized without warning from their
homes or schools; subjected to intrusive interrogations, medical examinations, and/or strip
searches; and forced to live in foster homes or group residences while the legal system sorts
out their future.Ã¯Â¿Â½ Some of these Ã¯Â¿Â½emergency removalsÃ¯Â¿Â½ are preauthorized by judges in ex
parte proceedings similar to those for obtaining a search warrant; others are effected solely
on the authority of the law enforcement or child welfare agency conducting the removal.
Removals can be terrifying experiences for children and families. Often they occur at
night. Parents have little or no time to prepare children for separation. The officials conducting
the removal, as well as the adults supervising the placement, are usually complete strangers
to the child. Children are thrust into alien environs and separated from parents, siblings,
and all else familiar with little if any, idea of why they have been taken there.
FAMILY COURT REVIEW, Vol. 42 No. 3, July 2004 pages 540-553
2004 Association of Family and Conciliation Courts
Chill / BURDEN OF PROOF BEGONE 541
A former caseworker described her experience at New York CityÃ¯Â¿Â½s Emergency ChildrenÃ¯Â¿Â½s
Services (ECS), where 30 to 40 children were brought each night following removals while
placements for them were located:
When I first came to ECS, I tried to reach out to all the children who were crying or sitting alone,
shocked, and terrified. It was easier with the little ones, because 1 could hug them and they would
immediately respond. . . . [The people who make removal decisions] donÃ¯Â¿Â½t see a child having a
panic attack at 3 a.m. because he is suddenly alone in the world, or slamming his head against a
wall out of protest and desperation.
Such experiences may not only cause Ã¯Â¿Â½grief, terror and feelings of abandonmentÃ¯Â¿Â½ but may
Ã¯Â¿Â½compromiseÃ¯Â¿Â½ a childÃ¯Â¿Â½s very Ã¯Â¿Â½capacity to form secure attachmentsÃ¯Â¿Â½ and lead to other serious
problems.Ã¯Â¿Â½ The trauma may be magnified when the child is actually suffering abuse or
neglect in the home,Ã¯Â¿Â½ and in any event, it is increased when reunification with loved ones
does not occur quickly.Ã¯Â¿Â½
Not surprisingly, in light of the harsh human impact of removal, the law requires it to be
used sparingly. The US. Supreme Court has held that the Due Process Clause of the 14th
Amendment to the U.S. Constitution provides a fundamental right to Ã¯Â¿Â½family integrity,Ã¯Â¿Â½ a
right of parents and children to be free of unwarranted governmental interference in matters
of child rearing.Ã¯Â¿Â½ Consistent with that right, the state ordinarily must provide notice and a
hearing before forcibly separating a parent and child.Ã¯Â¿Â½ Courts have held that only an imminent
danger to a childÃ¯Â¿Â½s life or health can justify removal of the child without notice and a
hearing first.Ã¯Â¿Â½ Even then, a prompt post-removal hearing must be held.
In practice, however, children are seldom removed on anything but an emergency basis either
unilaterally, without a court order, or on the basis of some form of ex parte judicial
authorization. The number of emergency removals, moreover, has increased steadily for
the past two decades, to the point where removals now occur at nearly double the rate of 20
years ago. This has led to a dramatic expansion of the foster care population, which grew
from 262,000 children in 1982 to nearly 550,000 in 2001. The seemingly inexorable
growth of this population, fuelled by emergency removals, has led to a consensus that the
child welfare system is in crisis.
The rising use of emergency removal might be justified if it were necessary to protect
children from imminent danger.Ã¯Â¿Â½ In addition, a certain number of false positives can be expected from any enforcement scheme. Yet, the number
of such errors that actually occur is alarmingly large. According to statistics published by the
U.S. Department of Health and Human Services (HHS), more than 100,000 children who
were removed in 2001-more than one in three-were later found not to have been maltreated
at all.Ã¯Â¿Â½ That is only the tip of the iceberg. Because definitions of maltreatment are
extremely broad and substantiation standards it can be reasonably assumed that a significant
number of other children who are found maltreated, and for whom perhaps some
intervention-short of removal-is warranted, are nonetheless removed on an emergency
basis. Consider the following actual examples:Ã¯Â¿Â½
Child Protective Services (CPS) caseworkers remove twin 4-year-old boys after their mother
admits to inflicting two marks on the back of one boyÃ¯Â¿Â½s thigh with a belt and to occasionally
using this method to discipline the boys. The mother is a religiously devout, stably employed
mother of four healthy and happy children; no other issues of abuse or neglect exist or are
CPS caseworkers remove a 3-week-old baby girl after her teenage parents get into a loud argument
that culminates in the mother striking the father twice with her hands. During the altercation,
the infant lies safely in a crib in another room, unharmed. Although there is no evidence of
any previous physical violence, CPS investigators express concern about the coupleÃ¯Â¿Â½s history of
engaging in loud arguments, the motherÃ¯Â¿Â½s diagnosis of depression, and the fact that the mother
remains on probation for possession of marijuana while admitting that she still continues to use
the drug occasionally.
Although some state intervention may have been appropriate in these cases, it is difficult to
discern any immediate danger to the children warranting drastic protective action.
What accounts for the large and growing number of unnecessary removals? Although this
is a complex question, an important
factor appears to be the rise within child welfare practice of Ã¯Â¿Â½defensive social work.Ã¯Â¿Â½ This
refers to the tendency of CPS personnel, first identified in the early 1980s, to base removal
decisions on fear-fear of job discipline, fear of civil (and even criminal) liability, and especially
fear of adverse publicity resulting from the death of a child left with or returned to his
biological parents.Ã¯Â¿Â½ Defensive social work has flourished in the past 20 years, fuelled by the
news mediaÃ¯Â¿Â½s appetite for sensational child maltreatment stories as well as by laws that purposely
magnify the public visibility of child maltreatment fatalities and near fatalities.Ã¯Â¿Â½ This
has led to a series of removal stampedes or Ã¯Â¿Â½foster care panics,Ã¯Â¿Â½ in which thousands of children
have been swept up by child welfare authorities in the aftermath of high-profile child
fatalities. During such stampedes, the very creed of the governmentÃ¯Â¿Â½s action-often
expressed as Ã¯Â¿Â½erring on the side of safetyÃ¯Â¿Â½-invites overreaching in the name of the greater
What is forgotten or ignored during removal stampedes, however, and more generally in
modern child welfare practice, is the range and extent of harm that can result from unnecessary
removals. Members of affected families may suffer enduring harm psychologically,
financially, and in countless other ways, from the stresses of removal and its aftermath (leading
to divorce, job loss, etc.).
Removed children, moreover, are not necessarily safer in their
new placements. Rates of abuse and neglect, including fatal abuse and neglect, are significantly
higher in foster care than in the general population .
But it gets even worse. Once a child is removed, a variety of factors converge to make it very difficult for parents to ever get the child back.
The very focus of court proceedings changes-from whether the child should be removed to whether he or she should be returned.
As a practical matter, the parents must now demonstrate their fitness to have the child reunited with them, rather than the state having to demonstrate the need for out-of-home placement.
By seizing physical control of the child, the state tilts the very playing field of the litigation. The burden of proof shifts, in effect if not in law, from the state to the parents.
The remainder of this article considers the causes and consequences of this procedural phenomenon, and possible responses to it.
2. THE PIVOTAL PROCEDURAL ROLE OF EMERGENCY REMOVAL AND ITS CONSEQUENCES
Lawyers have long recognized the powerful influence that an initial removal exerts on
subsequent child protective proceedings. Twenty years ago, an American Bar Association
study reported that Ã¯Â¿Â½experienced litigatorsÃ¯Â¿Â½ in child protection cases found it difficult to get
children returned home Ã¯Â¿Â½once removed, whether the original removal was appropriate or not.
More recently, one such litigator put it this way: Ã¯Â¿Â½Possession is nine-tenths of the law.
Children who are with their parents at the beginning of a child protective proceeding are
likely to remain at home; children who have been removed are likely to remain in governmental
custody for a long time, even years.Ã¯Â¿Â½Ã¯Â¿Â½
One clinical law professor has labelled this phenomenon Ã¯Â¿Â½trackingÃ¯Â¿Â½-as in Ã¯Â¿Â½a train getting on a track and continuing to move down that track no matter what.Ã¯Â¿Â½Ã¯Â¿Â½
The sequentiality effect is based on findings from empirical studies of choice behaviour suggesting that judges, like other people, seek to avoid feeling or appearing responsible for negative outcomes, and that they feel more responsible for actions than for omissions.
These preferences lead to a Ã¯Â¿Â½status quo bias,Ã¯Â¿Â½ a tendency to avoid actions but not omissions that subject the decision maker to a risk of known failure.
To the extent that judges are vulnerable to this bias, they will be inclined to continue interim orders, and to do so in some cases where a change would be warranted.Ã¯Â¿Â½
The sequentiality effect is greatly magnified in child protective proceedings (and to some
extent in other child custody cases). Most important, it Ã¯Â¿Â½is reinforced by the child development
principle that custodial change becomes inherently and increasingly detrimental as the
existing custodial arrangement becomes more longstanding. Children desperately need
continuity of relationships, and the more time a relationship between a child and foster parents
has to develop-the more Ã¯Â¿Â½bondedÃ¯Â¿Â½ they become-the more harmful to the child disruption
of that relationship is likely to be. Thus, in cases where a child has already been
removed, judgesÃ¯Â¿Â½ natural inclination to avoid actions but not omissions that may cause harm
are strengthened by the knowledge that any change of custody is intrinsically likely to be
harmful. In other words, there is a compelling argument that the child should remain wherever
he or she is, regardless of whether the child should have been placed there initially.
This analysis suggests that efforts to reverse an emergency removal are most likely to succeed
if they are made very quickly following the removal. As discussed previously, due process
requires a prompt postremoval hearing even when summary removal is justified.
Yet these hearings are often shams.
They may be extremely brief, lasting 1 hour or 1ess. Lawyers
for parents and children, moreover, if there even are any at this point, may have barely
had a chance to meet their clients, much less to investigate the stateÃ¯Â¿Â½s evidence of imminent
danger and prepare a cogent response. Thus, the prospect of quickly undoing an unnecessary
emergency removal is fanciful at best in most cases.
A second factor that amplifies the sequentiality effect in child protection cases is the
decrease in the stateÃ¯Â¿Â½s substantive burden of proof between the postremoval hearing and the
adjudicatory and dispositional hearings.
As discussed earlier, a child may be removed on an
emergency basis only if he or she faces some imminent danger.Ã¯Â¿Â½Ã¯Â¿Â½ At the constitutionally
mandated postremoval hearing, the question of imminent danger generally remains the
focus. At the adjudicatory hearing, however, the substantive focus shifts to proving abuse
or neglect-broadly defined concepts that are diffuse enough to sweep in a great deal of
parental conduct. It may thus actually be easier to prove that a child has been abused or
neglected, even by a preponderance of the evidence, than to prove that the child faces imminent
danger by the same or a lesser standard. A finding that a child has been abused or
neglected, moreover, sets the stage for the disposition, at which the substantive focus in most
jurisdictions is on Ã¯Â¿Â½the best interests of the childÃ¯Â¿Â½-as amorphous a standard as exists in the
law. Again, it may be easier to establish that a childÃ¯Â¿Â½s best interests would be served by a 1 –
year Ã¯Â¿Â½commitmentÃ¯Â¿Â½ in foster care-especially if the child is already in care pursuant to a
removal-than to prove imminent danger. Thus, the legal obstacles to placing or keeping a
child in foster care decrease rather than increase as the case progresses, contributing to the
difficulty of reversing unnecessary removals.
At least two other factors exacerbate the sequentiality effect in child protection cases.
First, although significant risks may attend to removal and nonremoval, the latter inevitably
gets more play in court hearings. Ã¯Â¿Â½The proceeding, by its very nature, highlights the dramatic
and tangible risk that a child will be harmed at the hands of a person who has been identified
as a possible risk to that child.Ã¯Â¿Â½Ã¯Â¿Â½Ã¯Â¿Â½ Judges thus cannot ignore this risk, but it is much easier to
overlook the less sensational and palpable risks of family separation and substitute care. This
disparity is exacerbated by the resource disparity between the parties. In contrast to the government,
the overwhelming majority of parents in child protection cases are poor, and the
quality of the representation they receive from their court-appointed lawyers (if they have
counsel at all), is marginal or inferior. This leads to further exaggeration of the risks of
Second, although judges are supposed to operate as a check on CPS actions, they exhibit
the same defensive outlook as many CPS caseworkers. This results in what might be called
Ã¯Â¿Â½defensive judging.Ã¯Â¿Â½ Judges, like social workers, understand that a decision not to remove a
child, or to return a child home who has been unilaterally seized by CPS, is much more likely
to come back to haunt them than is a decision to uphold the status quo.Ã¯Â¿Â½6 Judges thus may
order or uphold an emergency removal even on dubious evidence because they do not want
to Ã¯Â¿Â½risk making a mistake and having a child die.Ã¯Â¿Â½
Another set of factors that tends to make emergency removal self-reinforcing stems from
the effect of the removal and its aftermath on the parents and child involved. Perversely, the emotional stress caused by these events may themselves become grounds for continued separation
and ultimately, termination of parental rights.
Many parents understandably become angry at, and highly suspicious of, caseworkers
who remove their children for reasons that are not readily apparent to them-especially
when, as is usually the case, the removal occurs without warning after parents have been
speaking and/or working voluntarily with CPS for several days, weeks, or months. Yet any
expression of anger may come back to haunt the parent at a neglect or termination hearing.
Descriptions of angry outbursts may be offered by the state and accepted by the court as evidence
of instability, lack of cooperation, or potential for violence. A parentÃ¯Â¿Â½s suspicious or
hostile attitude toward caseworkers may be construed as evidence of clinically significant
paranoia. A parentÃ¯Â¿Â½s disclosure to a court-appointed psychologist or psychiatrist that he or
she is experiencing depression, hopelessness, anxiety, or grief from being separated from the
child may become the basis for retaining custody of the child until treatment succeeds in alleviating
The psychological harm to children resulting from the removal and its aftermath may also
perversely become the basis for longer and even permanent separations. Most children who
remain in foster care for more than a few weeks experience multiple placements, that is, they
are repeatedly moved from one foster home to another!Ã¯Â¿Â½ This experience, combined with
that of the removal itself, may cause children to develop post-traumatic stress disorder,Ã¯Â¿Â½
reactive attachment disorder, or other major psychiatric illnesses. For children who
develop such Ã¯Â¿Â½special needs,Ã¯Â¿Â½ maintaining the status quo of their current placement is often
seen as crucial to helping the child to heal. In some cases, moreover, this becomes part of the
basis for terminating the parental rights of parents who may have undergone significant
Ã¯Â¿Â½rehabilitationÃ¯Â¿Â½ but not enough to be able to care adequately for a previously healthy child
who has now become emotionally fragile.
A removal and its aftermath also place tremendous strains on the parent-child relationship.
Visitation while the child is in foster care may present logistical problems if the childÃ¯Â¿Â½s
placement is far away, especially if (as is often the case) the parents must rely on public transportation
to get there. A Ã¯Â¿Â½lack of services and a sense of hopelessness or rageÃ¯Â¿Â½ may also cause
parents not to fully pursue contact with the child.Ã¯Â¿Â½ Visits may be further strained by the
childÃ¯Â¿Â½s feeling of being abandoned or rejected by the parents, and by anger at them for failing
to protect him or her from being removed; by the awkwardness of meeting in a strangerÃ¯Â¿Â½s
home or agency office under the watchful eyes of a caseworker; and by parents simply trying
to cram too much loving into a 1-hour weekly visit.Ã¯Â¿Â½ Any deterioration of the parent-child
relationship manifestly makes return of the child appear more risky and thus less likely.Ã¯Â¿Â½
Finally, the very knowledge by system insiders of the tendency of emergency removals to
become self-reinforcing itself contributes to the phenomenon. Parents are repeatedly told by
their court-appointed lawyers, CPS caseworkers, court personnel, and others-that
regaining custody of their child will be difficult.6x They are told that their best chance of
regaining custody quickly is by showing Ã¯Â¿Â½cooperationÃ¯Â¿Â½ and settling.Ã¯Â¿Â½ This creates enormous
pressure to settle, and most parents in fact do.Ã¯Â¿Â½Ã¯Â¿Â½ Ã¯Â¿Â½SettlingÃ¯Â¿Â½ in this context generally means
admitting or pleading nolo contendere to abusing or neglecting the child and accepting the
services deemed necessary by the CPS agency to permit the child to return home. Thus, some
cases that might actually result in a child being returned home quickly, if the parents were to
litigate the matter aggressively, wind up being settled with the child remaining in foster care
for an extended period.
Several relatively minor statutory changes would significantly reduce the risk that children
will be unnecessarily removed and that, once a removal does occur, it will become self-reinforcing
and self-perpetuating, while maintaining sufficient authority and flexibility for
CPS to seize a child on an emergency basis when such action is truly needed to protect the
States should clarify that the Ã¯Â¿Â½imminent dangerÃ¯Â¿Â½ required for emergency removal is an
imminent risk of serious physical injury or death. Although only a few courts have explicitly
established this as the constitutional threshold,Ã¯Â¿Â½ the dangers discussed in this article dictate
that the floor should be set no lower as a matter of policy. Yet few states have enacted such
narrow substantive limits on emergency removal.Ã¯Â¿Â½ Indeed, a few states provide limits that
contain no reference to any sort of Ã¯Â¿Â½imminentÃ¯Â¿Â½ or Ã¯Â¿Â½immediateÃ¯Â¿Â½ danger.Ã¯Â¿Â½ It is difficult to reconcile
provisions such as these with the constitutional standard, and courts have invalidated
at least two of them.
States should further specify that a child may be removed unilaterally by CPS officials or
police officers only when taking the time to obtain an ex parte court order would clearly jeopardize
the childÃ¯Â¿Â½s safety. Again, this condition may or may not be constitutionally required,
but it is dictated by policy considerations. Several states in fact already require it. Although
there is a great deal of pressure on judges to grant ex parte removal applications, for some of
the reasons discussed above, those pressures increase dramatically once the child is already
in placement. Requiring judicial pre-authorization of emergency removals whenever possible
is thus not a panacea but may prevent at least some unnecessary removals.
When judicial pre-authorization is sought, reasonable efforts should be made to allow the
parents or their counsel to provide at least some informal input to the court (through letters,
sworn oral or written statements, etc.). Obviously, this might have to be arranged very
quickly, depending on the circumstances, and sometimes it might be altogether impossible.
But there are other times-such as when an emergency removal is sought during the pendency
of a neglect case in which there was no initial removal-when the parents are already
before the court and represented by counsel, and giving the latter a limited opportunity to be
heard on extremely short notice may be quite workable. Indeed, in such circumstances, failing
to provide that opportunity seems fundamentally unfair and bad policy.Ã¯Â¿Â½
Once a child is removed, it is imperative that a meaningful temporary custody hearing be
promptly convened. Such a hearing should begin no later than one week following the
removal-just enough time for counsel for parents and children (who should be appointed
immediately when the case is filed in court) to prepare for trial.Ã¯Â¿Â½ At this hearing, judges must
be given enough information to make an informed and independent assessment of the threat
to the childÃ¯Â¿Â½s safety and the need for his or her immediate removal. This means providing sufficient
staffing and courtroom space for trials to exceed 1 hour, and to continue on successive
days, if necessary.Ã¯Â¿Â½~ It also means providing counsel for parents who cannot afford it at the
earliest possible time, and paying those counsel reasonable fees, so that lawyers will have the
time and incentive to advocate vigorously for their clients. To sustain an emergency removal
following a hearing, proof by no less than clear and convincing evidence that the child would
be in imminent danger of serious bodily harm or death if returned home, should be
Whenever judges rule on emergency removals, they should be required to expressly
weigh the risks of non-removal against those of removal. Statutes might even specify the
particular risks to be considered, including, but not limited to, the emotional trauma likely to
result from separation, the risk that the child will experience multiple placements, and the
heightened risk that the child will be abused or neglected in foster care. Decision makers
ought to be required to make specific, written findings as to why the risk of allowing the child
to remain at home substantially outweighs the risks of removing him or her.Ã¯Â¿Â½
All of these reforms, while helpful, would not address more fundamental structural problems
that cause tens of thousands of unnecessary removals every year. Although a full discussion
of these is beyond the scope of this article, several worth mentioning include the rise
of defensive social work, the perverse incentive structure of federal financial assistance,Ã¯Â¿Â½
the failure of the federal executive branch to enforce the requirement that states make Ã¯Â¿Â½reasonable
effortsÃ¯Â¿Â½ to obviate the need for removal in most cases:6 and the dual-role structure of
modern CPS agencies.
In addition, the proposed reforms do not address the prevailing attitude-among the general
public as well as many CPS insiders-that emergency removal is a magic bullet in the
battle against child abuse and neglect, a conservative, risk-free way of Ã¯Â¿Â½erring on the side of
safety.Ã¯Â¿Â½ As I have argued above, seizing a child catapults him or her into a legal world in
which checks and balances operate poorly, and that is at least as likely to perpetuate an initial
mistake as to correct it. Especially today, since the advent of ASFA, this may have devastating
and permanent effects. Ultimately, public education must counter the distorted image of
the child protection system, fostered by the mediaÃ¯Â¿Â½s statutorily enabled obsession with fatality
cases, and put an end to the dangerous misconception that emergency removal is a quick
fix to the problem of child maltreatment.
We have these same problems in NZ. While people stand around and talk about these problems, we have about 5 children die in CYFs custody each year and several thousand traumatised.
Please discuss your concerns with your local MPs.
Best regards, MurrayBacon.