Copyright (c) 2003 Sage Publications, Inc

October, 2003

41 Fam. Ct. Rev. 457

LENGTH: 8270 words

SPECIAL ISSUE: CHILD PROTECTION IN THE 21ST CENTURY: Burden of Proof Begone: The

Pernicious Effect of Emergency Removal in Child Protective Proceedings

NAME: Paul Chill

BIO: Author's Note: I am grateful to several colleagues, especially Jon Bauer

and Martha Stone, for their thoughtful comments; to my research assistant,

Jennifer Milici, for her valuable contributions; and to my wife, Brigid Donohue,

for her incisive editorial suggestions, wise counsel, and loving support. My

interest in the topic of emergency removal I owe to a former client and a

lawsuit I helped to bring on her behalf. Although the lawsuit led to structural

reform, my colleagues and students at the University of Connecticut Legal Clinic

and I were unable to help Pamela B. regain custody of her children, and her

parental rights to them were eventually terminated. In a just universe, this

lovely woman with mild mental retardation would not have been completely cut off

from her three young boys and they from her. This article is dedicated to Pamela

B. and the other clients whose struggles and excruciating losses have taught me

so much.

Paul Chill is a clinical professor at the University of Connecticut School of

Law, where he currently directs a clinic in which law students handle child

protection appeals. He has also supervised clinics focusing on civil rights,

disability, and mental health law and taught nonclinical courses on torts and

legal ethics. In 1998, he was selected as 1 of 10 Connecticut lawyers and judges

"who made a difference" that year for his work on a lawsuit that led to reform

of the state's juvenile court system. In 1999, he received the Connecticut Law

Review Award for excellence in legal scholarship and service to the legal

community. His writings include a treatise on The Law of Child Abuse and Neglect

in Connecticut (1997), a mock trail published by the National Institute for

Trial Advocacy (NITA), and several shorter publications.

SUMMARY:

... THE LAW AND PRACTICE OF EMERGENCY REMOVAL ... The rising use of emergency

removal might be justified if it were necessary to protect children from

imminent danger. ... Rates of abuse and neglect, including fatal abuse and

neglect, are significantly higher in foster care than in the general population.

... Twenty years ago, an American Bar Association study reported that

"experienced litigators" in child protection cases found it difficult to get

children returned home "once removed, whether the original removal was

appropriate or not." ... 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." ... Several relatively minor statutory changes would significantly

reduce the risk that children will be unnecessarily removed; once a removal does

occur, the process will become self-reinforcing and self-perpetuating while

maintaining sufficient authority and flexibility for the CPS to seize a child on

an emergency basis when such action is truly needed to protect the child. ...

HIGHLIGHT: 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 ASFA (the 1997 federal Adoption and Safe Families Act),

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. This 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.

Keywords: Foster care; termination of parental rights; ex parte; emergency;

summary; removal; children; self-perpetuating; self-reinforcing

TEXT:

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. n1 These children are

typically seized without warning from their homes or schools; subjected to

intrusive interrogations, medical examinations, and/or strip searches; n2 and

forced to live in foster homes or group residences while the legal system sorts

out their future. Some of these "emergency removals" are preauthorized by judges

in ex parte proceedings similar to those for obtaining a search warrant; n3

others are effected solely on the authority of the law enforcement or child

welfare agency conducting the removal. n4

Removals can be terrifying experiences for children and families. Often they

occur at night. n5 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. n6

Children are thrust into alien environments, separated from parents, siblings,

and all else familiar, with little if any idea of why they have been taken

there.

A former caseworker described her experience at New York City's Emergency

Children's 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 I could hug them and they would

immediately respond. . . . [The people who make removal decisions] don

't 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. n7

Such experiences may not only cause "grief, terror, and feelings of

abandonment" but may also "compromise" a child's very "capacity to form secure

attachments" and lead to other serious problems. n8 The trauma may be magnified

when the child is actually suffering abuse or neglect in the home, n9 and in

any event, it is increased when reunification with loved ones does not occur

quickly. n10

Not surprisingly, in light of the harsh human impact of removal, the law

requires it to be used sparingly. The U.S. Supreme Court has held that the due

process clause of the 14th Amendment to the U.S. Constitution provides a

fundamental right to "family integrity," a right of parents and children to be

free of unwarranted governmental interference in matters of child rearing. n11

Consistent with that right, the state ordinarily must provide notice and a

hearing before forcibly separating a parent and child. n12 Courts have held

that only an imminent danger to a child's life or health can justify removal of

the child without notice and a hearing first. n13 Even then, a prompt

postremoval hearing must be held. n14

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. n15 The number of emergency

removals, moreover, has increased steadily for the past two decades, to the

point where they now occur at nearly double the rate of 20 years ago. n16 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. n17 The seemingly

inexorable growth of this population, fueled by emergency removals, has led to a

consensus that the child welfare system is in crisis. n18

The rising use of emergency removal might be justified if it were necessary

to protect children from imminent danger. n19 In addition, a certain number of

false positives ("Type II" errors in statistical terms) 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. n20 And that is only the tip of the iceberg. Because definitions of

maltreatment are extremely broad and substantiation standards low, n21 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: n22

. Child protective services (CPS) caseworkers remove twin 4-year-old

boys after their mother admits to inflicting two marks on the back of

one boy's 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 suspected.

. 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 couple's history of engaging in loud

arguments, the mother's 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 (and one that will be the subject of a

forthcoming article), an important factor appears to be the rise within child

welfare practice of "defensive social work." 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 or her biological parents. n23 Defensive social work

has flourished in the past 20 years, fueled by the news media's appetite for

sensational child maltreatment stories n24 as well as by laws that purposely

magnify the public visibility of child maltreatment fatalities and near

fatalities. n25 This has led to a series of removal stampedes or "foster care

panics," n26 in which thousands of children have been swept up by child welfare

authorities in the aftermath of high-profile child fatalities. n27 During such

stampedes, the very creed of the government's action--often expressed as "erring

on the side of safety"--invites overreaching in the name of the greater good.

n28

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. n29 What is more,

unnecessary removals siphon resources and exacerbate problems within the already

strained system, leading to other new harms--such as overcrowded courts that

cannot provide hearings n30 and additional "missed" cases of fatal child

maltreatment. n31

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. One

court has referred to this as the "snowball effect." n32 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, as well as 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 "experienced litigators" in child protection

cases found it difficult to get children returned home "once removed, whether

the original removal was appropriate or not." n33 More recently, one such

litigator put it this way: "Possession 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." n34 One clinical law

professor has labeled this phenomenon tracking--as in "a train getting on a

track and continuing to move down that track no matter what." n35 And one

nationally known jurist has written that issuance of an ex parte removal order,

"in so many cases, is indeed the ball game." n36

It is not supposed to work this way. Consistent with due process, state laws

generally establish a two-step process for the state to obtain custody of a

maltreated child. In the first, or "adjudicatory," phase, the court must decide

whether allegations that the child has been abused or neglected are legally

sufficient and, if so, factually true. n37 In the second, or "dispositional,"

phase, the court must decide what remedy (assuming abuse or neglect has been

found) would be in the child's best interest. n38 In addition to "committing"

the child to the care and custody of the state CPS agency, dispositional options

typically include allowing the child to remain at home with (or return to) his

or her parents, with or without "protective supervision"; committing the child

to the care and custody of the agency for a specified (or, in some states,

indefinite) period of time; or transferring legal guardianship of the child to a

relative or other appropriate person. n39 The comments quoted above show that

emergency removal serves as an end-run around the adjudicatory and dispositional

phases, effectively predetermining their outcome and depriving them of their

intended purposes.

Many factors contribute to this phenomenon. To some extent, it merely

exemplifies the propensity of interim decisions in any kind of litigation to

become self-reinforcing. This has been labeled the sequentiality effect. n40

The sequentiality effect may in turn be an example of path dependence, the

principle that earlier events "affect the possible outcomes of a sequence of

events occurring at a later point in time." n41

The sequentiality effect is based on findings from empirical studies of

choice behavior suggesting that judges, like other people, seek to avoid feeling

or appearing responsible for negative outcomes, and they feel more responsible

for actions than for omissions. n42 These preferences lead to a status quo bias

, 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 in which a change would be warranted. n43

The sequentiality effect is greatly magnified in child protective proceedings

(and, to some extent, in other child custody cases). Most important, it "is

reinforced by the child development principle that custodial change becomes

inherently and increasingly detrimental as the existing custodial arrangement

becomes more longstanding." n44 Children desperately need continuity of

relationships, and the more time a relationship between a child and foster

parents has to develop--the more "bonded" they become--the more harmful to the

child the disruption of that relationship is likely to be. n45 Thus, in cases

in which a child has already been removed, judges' 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 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. n46 Yet these hearings are often shams. n47

They may be extremely brief, lasting 1 hour or less. n48 Lawyers for parents

and children, moreover, if there even are any at this point, n49 may have

barely had a chance to meet their clients, much less to investigate the state's

evidence of imminent danger and prepare a cogent response. n50 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 state's 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. n51 At the constitutionally mandated

postremoval hearing, the question of imminent danger generally remains the

focus. n52 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. n53 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 "the best interests of the child"--as amorphous a

standard as exists in the law. n54 Again, it may be easier to establish that a

child's best interests would be served by a 1-year "commitment" 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 both removal

and nonremoval, the latter inevitably get more play in court hearings. "The

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." n55 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 nonintervention.

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 "defensive judging." 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. n56 Judges thus may order or

uphold an emergency removal even on dubious evidence because they do not want to

"risk making a mistake and having a child die." n57

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. n58 A parent's

suspicious or hostile attitude toward caseworkers may be construed as evidence

of clinically significant paranoia. n59 A parent's disclosure to a

court-appointed psychologist or psychiatrist that she is experiencing

depression, hopelessness, anxiety, or grief from being separated from her child

may become the basis for retaining custody of the child until treatment succeeds

in alleviating those symptoms. n60

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. n61 This experience, combined with that of the removal

itself, may cause children to develop posttraumatic stress disorder, n62

reactive attachment disorder, n63 or other major psychiatric illnesses. For

children who develop such "special needs," 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 "rehabilitation" but not

enough to be able to care adequately for a previously healthy child who has now

become emotionally fragile. n64

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 child's placement is far away, especially if (as is

often the case) the parents must rely on public transportation to get there. A

"lack of services and a sense of hopelessness or rage" may also lead parents not

to fully pursue contact with the child. n65 Visits may be further strained by

the child's feeling of being abandoned or rejected by the parents, as well as

anger at them for failing to protect him or her from being removed; by the

awkwardness of meeting in a stranger's 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. n66 Any deterioration of the parent-child relationship

manifestly makes return of the child appear more risky and thus less likely.

n67

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. n68 They are told that their best chance of regaining custody

quickly is by showing "cooperation" and settling. n69 This creates enormous

pressure to settle, and most parents in fact do. n70 Settling 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.

Not every observer, it must be noted, agrees that systemic forces operate

solely to reinforce emergency removals and impede the return of children to

their parents. One scholar has argued that other forces pull strongly in the

opposite direction, particularly the tendency of judges (despite their superior

class background) to identify with parents "simply because the judges are also

adults and often parents" and because they, like most other people, believe

strongly in the right of family integrity. n71 Although these factors may have

some influence in private custody (i.e., divorce) cases, any impact they might

have in the child protection context is overwhelmed by the strength of the

forces discussed above that tend to preserve the status quo following an initial

removal. n72

Since the enactment of the Adoption and Safe Families Act (ASFA) in 1997,

prolonging a child's stay in foster care directly increases the risk that the

child's legal relationship to his or her parents will be completely severed.

ASFA generally requires states, as a condition of receiving federal funds, to

file for termination of parental rights with respect to any child who remains in

foster care for 15 out of 22 consecutive months. n73 Termination of parental

rights is a "devastatingly adverse action," n74 the most severe judicial remedy

known outside of the criminal law. n75 Under ASFA, parental rights can now be

terminated, or at least gravely threatened, on the basis of the mere passage of

time. n76

Given the enormity of the human interests at stake, it has generally been

assumed that termination of parental rights is reserved for cases of severe

abuse or neglect, abandonment, or parental incapacity. n77 ASFA's focus on a

child's length of time in foster care inherently reduces that substantive

threshold. Indeed, ASFA's focus on expediting "permanency" for children can be

viewed as a direct assault on that threshold. Thus, whether the mere passage of

time itself is explicitly made a basis for Termination of Parental Rights (TPR)

(as opposed to a mere trigger for the filing of a petition), the effect of ASFA

has been to lessen the extent to which a parent must be shown unfit for CPS to

obtain a judicial order permanently severing his or her parental rights. n78

Vague statutory grounds for termination compound this problem. Termination

may be authorized, for example, when the parent of a child previously found

abused or neglected has failed to achieve sufficient "personal rehabilitation"

so as to encourage the belief that within a "reasonable time," the parent "could

assume a responsible position in the life of the child" or in roughly analogous

circumstances. n79 Although statutes such as these have survived

void-for-vagueness constitutional challenges, n80 they clearly leave a great

deal of room for judicial discretion and subjectivity in determining what

constitutes a "failure to rehabilitate."

Now an anonymous call from a neighbor, who may be mistaken or even

vindictive, can set in motion a process that results in a shattered family and

traumatized, victimized children whose lives are permanently cut from those of

their parents and siblings despite never being in any real danger to begin with.

The next section explores how such tragedies--tragedies of overinclusion--might

be averted.

3. SOLUTIONS

Several relatively minor statutory changes would significantly reduce the

risk that children will be unnecessarily removed; once a removal does occur, the

process will become self-reinforcing and self-perpetuating while maintaining

sufficient authority and flexibility for the CPS to seize a child on an

emergency basis when such action is truly needed to protect the child.

States should clarify that the "imminent danger" 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,

n81 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. n82 Indeed, a few states provide

limits that contain no reference to any sort of "imminent" or "immediate"

danger. n83 It is difficult to reconcile provisions such as these with the

constitutional standard, and courts have invalidated at least two of them. n84

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 child's safety. Again, this condition

may or may not be constitutionally required, n85 but it is dictated by policy

considerations. Several states, in fact, already require it. n86 Although there

is a great deal of pressure on judges to grant ex parte removal applications,

for some of the reasons discussed above, n87 those pressures increase

dramatically once the child is already in placement. Requiring judicial

preauthorization of emergency removals whenever possible is thus not a panacea

but may prevent at least some unnecessary removals.

When judicial preauthorization 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 both fundamentally

unfair and bad policy. n88

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 1 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. n89 At this hearing, judges must be given enough information to make

an informed and independent assessment of the threat to the child's 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. n90 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 both 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 should be

required that the child would be in imminent danger of serious bodily harm or

death if returned home. n91

Whenever judges rule on emergency removals, they should be required to

expressly weigh the risks of nonremoval against those of removal. n92 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. n93

All of these reforms, although 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, n94 the

perverse incentive structure of federal financial assistance, n95 the failure

of the federal executive branch to enforce the requirement that states make

"reasonable efforts" to obviate the need for removal in most cases, n96 and the

dual-role structure of modern CPS agencies. n97

In addition, the proposed reforms do not address the prevailing

attitude--among the general public as well as by many CPS insiders--that

emergency removal is a magic bullet in the battle against child abuse and

neglect, a conservative, risk-free way of "erring on the side of safety." As I

have argued above, seizing a child catapults him or her into a legal world where

checks and balances operate poorly and where it 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 media's 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.

FOOTNOTES:

n1 CHILDREN'S BUREAU, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CHILD

MALTREATMENT 2001: REPORTS FROM THE STATES TO THE NATIONAL CHILD ABUSE AND

NEGLECT DATA SYSTEM, Table 6.5, available at

http://www.acf.dhhs.gov/programs/cb/publications/cm01/table6_5.htm (last visited

June 9, 2003 [hereinafter CHILD MALTREATMENT 2001]) (estimated 274,686 children

removed from home due to suspected maltreatment in fiscal 2001). This number,

moreover, probably represents an undercount. See id. Chapter 6, n. 4, available

at http://www.acf.dhhs.gov/programs/cb/publications/cm01/chaptersix.htm#supple

(last visited June 9, 2003).

n2 See E.Z. v. Coler, 603 F. Supp. 1546 (N.D.Ill. 1985).

n3 See, e.g., MASS. GEN. LAWS ch. 119, § 24 (2003); N.Y. FAM. CT. ACT § 1022

(McKinney 2003).

n4 See, e.g., CAL. WELF. & INST. CODE § 305(a) (West 2003); 325 ILL. COMP.

STAT. 5/5 (2003).

n5 See Akka Gordon, Taking Liberties, CITY LIMITS MONTHLY (Dec. 2000), at

http://www.citylimits.org/content/articles/articleView.cfm?articlenumber=665

(recollections of former New York City caseworker) (last visited July 31, 2003).

n6 Sometimes the placements are not with complete strangers. As of 2001, 24%

of all children in foster care were living with relatives (although some of them

may have started out in nonrelative placements). CHILDREN'S BUREAU, U.S.

DEPARTMENT OF HEALTH AND HUMAN SERVICES, ADOPTION AND FOSTER CARE ANALYSIS AND

REPORTING SYSTEM (AFCARS) REPORT NO. 8 (Mar. 2003), available at

http://www.acf.dhhs.gov/programs/cb/publications/afcars/report8.htm [hereinafter

AFCARS REPORT No. 8].

n7 Gordon, supra note 5.

n8 Ellen L. Bassuk, Linda F. Weinreb, Ree Dawson, Jennifer N. Perloff, & John

C. Buckner, Determinants of Behavior in Homeless and Low-Income Housed Preschool

Children, 100 PEDIATRICS 92-100 (1997). See also JOSEPH GOLDSTEIN, ALBERT

SOLNIT, SONJA GOLDSTEIN, & ANNA FREUD, THE BEST INTERESTS OF THE CHILD: THE

LEAST DETRIMENTAL ALTERNATIVE (1996).

n9 See Nicholson v. Williams, 203 F. Supp. 2d 153, 199 (E.D.N.Y. 2002)

(quoting expert testimony that removal in such circumstances may be "tantamount

to pouring salt on an open wound").

n10 "Children have a built-in time sense based on the urgency of their

instinctual and emotional needs. . . . Emotionally and intellectually, an infant

or toddler cannot stretch her waiting more than a few days without feeling

overwhelmed by the absence of her parents. . . . For children under the age of

five years, an absence of parents for more than two months is intolerable. For

the younger school-age child an absence of six months or more may be similarly

experienced." GOLDSTEIN ET AL., supra note 8, at 41.

n11 See Troxel v. Granville, 530 U.S. 57, 65 (2000); Santosky v. Kramer, 455

U.S. 745, 753 (1982); Parham v. J. R., 442 U.S. 584, 602 (1979); Quilloin v.

Walcott, 434 U.S. 246, 255 (1978); Wis. v. Yoder, 406 U.S. 205, 232 (1972);

Stanley v. Ill., 405 U.S. 645, 651 (1972); Prince v. Mass., 321 U.S. 158 (1944);

Pierce v. Soc'y, 268 U.S. 510, 534-35 (1925); Meyer v. Neb., 262 U.S. 390, 399

(1923).

n12 See LaChance v. Erickson, 522 U.S. 262, 266 (1998) (right to notice and

meaningful opportunity to be heard are "core of due process"). See also

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (predeprivation

hearing is "root requirement" of due process).

n13 The precise language varies. See, e.g., Tenenbaum v. Williams, 193 F.3d

581, 594 (2d Cir. 1999) (child must be "immediately threatened with harm");

Hollingsworth v. Hill, 110 F.3d 733, 739 (10th Cir. 1997) (immediate threat to a

child's safety); Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir. 1994) (imminent

harm to a child).

n14 See, e.g., Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir. 1994); Duchesne

v. Sugarman, 566 F.2d 817, 826 (2d Cir. 1977). Such postremoval hearings are

variously referred to as "emergency hearings," "shelter care hearings,"

"preliminary protective hearings," and "temporary custody hearings." See Shirley

A. Dobbin, Sophia I. Gatowski, & Margaret Springgate, Child Abuse and Neglect: A

Summary of State Statutes, 48 JUV. & FAM. CT. J. 43, 45 (1997).

n15 Although hard data are unavailable, it is clear that emergency removals

represent a very large percentage of all removals. See, e.g., e-mail from Mark

Hardin, Director, ABA National Child Welfare Resource Center on Legal and

Judicial Issues (Aug. 1, 2002) (on file with author) ("a good 90% of children

enter care through emergency removal," although "this is a pure guess" based on

questioning "many courts and agencies" over the years).

n16 STAFF OF HOUSE COMMITTEE ON WAYS AND MEANS, U.S. HOUSE OF

REPRESENTATIVES, 2000 GREEN BOOK: BACKGROUND MATERIAL AND DATA ON PROGRAMS

WITHIN THE JURISDICTION OF THE COMMITTEE ON WAYS AND MEANS, Table 11-18 (17th

ed. 2000), available at http://aspe.hhs.gov/2000gb/sec11.txt. (last visited July

30, 2003 [hereinafter 2000 Green book]).

n17 id. See also AFCARS REPORT NO. 8, supra note 6.

n18 See Martin Guggenheim, Somebody's Children: Sustaining the Family's Place

in Child Welfare Policy, 113 HARV. L. REV. 1716 (2000) (book review); cf.

Richard Gelles & Ira Schwartz, Children and the Child Welfare System, 2 U. PA.

J. CONST. L. 95, 110 (1999) ("The child welfare system has been in crisis for

nearly three decades.").

n19 Some have argued that the rise in removals is in fact so justified and

indeed has not been dramatic enough. See generally ELIZABETH BARTHOLET, NOBODY'S

CHILDREN: ABUSE AND NEGLECT, FOSTER DRIFT, AND THE ADOPTION ALTERNATIVE (1999).

n20 CHILD MALTREATMENT 2001, supra note 1, Table 6.5.

n21 See, e.g., CONNECTICUT DEPARTMENT OF CHILDREN AND FAMILIES, POLICY MANUAL

§ 34-3-6, available at http://www.state.ct.us/dcf/Policy/invest34/34-3-6.htm

(last visited June 9, 2003) (substantiated means "reasonable cause" to believe

that abuse or neglect occurred); ILL. ADMIN. CODE tit.89 § 300.110(i)(3)(A)

(2002) (allegation is indicated when "credible evidence" of abuse or neglect has

been obtained).

n22 I represented the parents in both of these cases. See Pamela B. v. Ment,

709 A.2d 1089 (Conn. 1998).

n23 Douglas J. Besharov, Protecting Abused and Neglected Children: Can Law

Help Social Work?, 7 CHILD ABUSE & NEGLECT 4, 421-34 (1983).

n24 Patrick Ayre, Child Protection and the Media: Lessons from the Last Three

Decades, 31 BRIT. J. SOC. WORK 887, 889 (2001).

n25 Under the federal Child Abuse Prevention and Treatment Act (CAPTA),

states are eligible to receive federal funding only if cases that result in a

child fatality or "near fatality" are exempted from the confidentiality

requirements that cloak most child protective services (CPS) activities in

secrecy. 42 U.S.C. § 5106a(b)(2)(A)(vi) (2003). In addition, laws in every state

now require multidisciplinary "child fatality review" panels to investigate and

report on deaths resulting from suspected maltreatment. NATIONAL CENTER ON CHILD

FATALITY REVIEW, SURGEON GENERAL'S HEALTHY PEOPLE 2000 CDRT GOAL MET, at

http://ican-ncfr.org/surgeon_general.shtml (last visited June 10, 2003).

n26 See RICHARD WEXLER, WOUNDED INNOCENTS 83 (1990).

n27 See, e.g., Scott Higham & Sari Horwitz, After Brianna, 'Pandemonium' in

D.C. Foster Care, WASH. POST, Mar. 3, 2000, at A1, available at 2000 WL 2288674;

Sari Horwitz & Scott Higham, Record Numbers of D.C. Children Go to Foster Care,

WASH. POST, Feb. 28, 2000, at A1, available at 2000 WL 2288101; Lynn Okamoto,

New Plan: Remove Abused Kids Faster; State Plans Faster Action on Child Abuse

Cases, DES MOINES REG., Sept. 9, 2000, at A1; Joe Sexton, More Families Are

Separated as Child Abuse Reports Rise, N.Y. TIMES, May 12, 1996, at A1; Elaine

Song, D.C.F.'s Sea Change Swamps Juvenile Courts, CONN. L. TRIB., Aug. 28, 1995,

at 1.

n28 See, e.g., Colin Poitras, Rowland Fires a Rebuke at DCF; "Disgusted" by

Case of Baby Who Died, HART. COURANT, May 21, 2003, at A1, available at 2003 WL

55330530; Karen Houppert, Crisis in Family Court, VILLAGE VOICE, Apr. 20, 1999,

at 41, available at 1999 WL 7396559.

n29 In 1999, for example, according to data compiled by the Department of

Health and Human Services (HHS), the rate of child maltreatment was more than

75% higher--and the rate of fatal maltreatment almost 350% higher--in foster

care than in the general population. See CHILDREN'S BUREAU, U.S. DEPARTMENT OF

HEALTH AND HUMAN SERVICES, CHILD MALTREATMENT 1999: REPORTS FROM THE STATES TO

THE NATIONAL CHILD ABUSE AND NEGLECT DATA SYSTEM (1999), Tables 3.2, 4.1,

available at http://www.acf.dhhs.gov/programs/cb/publications/cm99/index.htm.

(last visited July 30, 2003).

n30 See, e.g., Pamela B., 709 A.2d

n31 See, e.g., RICHARD J. GELLES, THE BOOK OF DAVID: HOW PRESERVING FAMILIES

CAN COST CHILDREN'S LIVES (1996), 46-47, 154 at 1089.

n32 Pamela B., 709 A.2d.

n33 DIANE DODSON, AMERICAN BAR ASSOCIATION, THE LEGAL FRAMEWORK FOR ENDING

FOSTER CARE DRIFT: A GUIDE TO EVALUATING AND IMPROVING STATE LAWS, REGULATIONS

AND COURT RULES 3-1 (1983) at 1100.

n34 David J. Lansner, Representing Respondents in Child Protective

Proceedings, in CHILD ABUSE, NEGLECT AND THE FOSTER CARE SYSTEM 1998: EFFECTIVE

SOCIAL WORK AND THE LEGAL SYSTEM; THE ATTORNEY'S ROLE AND RESPONSIBILITIES,

edited by Practicing Law Institute 583 (1998). See also DIANE BOYD RAUBER & LISA

A. GRANIK, AMERICAN BAR ASSOCIATION, REPRESENTING PARENTS IN CHILD WELFARE

CASES: A BASIC INTRODUCTION FOR ATTORNEYS 17-18 (2000).

n35 Janet Weinstein, And Never the Twain Shall Meet: The Best Interests of

Children and the Adversary System, 52. U. MIAMI. L. REV. 79, 115-16 (1997)

(internal quotation marks omitted).

n36 E-mail from the Hon. Frederica S. Brenneman (Nov. 11, 2002) (on file with

author). Judge Brenneman presided in juvenile court for more than 30 years and

is the mother of Amy Brenneman, star of the popular television series Judging

Amy, whose role is fashioned loosely after her. See

http://www.cbs.com/primetime/judging_amy/about.shtml (last visited Mar. 12,

2003).

n37 See, e.g., CONN. PRACTICE BOOK § 26-1(f) (2003); 705 ILL. COMP. STAT.

405/2-21 (2003).

n38 See, e.g., CONN. PRACTICE BOOK § 26-1(f) (2003); 705 ILL. COMP. STAT.

405/2-22 (2003).

n39 See, e.g., CONN. GEN. STAT. § 46b-129(j) (2003); 705 ILL. COMP. STAT.

405/2-26, 405/2-27 (2003).

n40 See Peggy Cooper Davis & Gautam Barua, Custodial Choices for Children at

Risk: Bias, Sequentiality, and the Law, 2 U. CHI. L. SCH. ROUNDTABLE 139, 146

(1995). My analysis in this section draws from Davis & Barua's compelling

analysis of the procedural consequences of emergency removal in child protective

proceedings.

n41 Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of

Legal Change in a Common Law System, 86 IOWA L. REV. 601, 604 (2001) (internal

quotations omitted). See also THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE

LAW 18 (Peter Newman ed. 1998).

n42 See id. at 148-49 n. 47-53 and sources cited therein.

n43 Of course, the act of reversing or modifying an interim decision is

arguably no different intrinsically from that of affirming one. What is

important, however, is how judges and others may perceive the difference between

the two kinds of acts. The law itself has long provided that different levels of

responsibility may attach to particular conduct depending on whether it is

deemed an act or omission. See, e.g., Merrill v. Navegar, Inc., 28 P.3d 116, 143

(2001) (discussing misfeasance-nonfeasance distinction in tort law).

n44 Davis & Barua, supra note 40, at 146.

n45 See GOLDSTEIN ET AL., supra note 8, at 21.

n46 See supra note 14.

n47 See Pamela B., 709 A.2d at 1095.

n48 See NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES, RESOURCE

GUIDELINES FOR IMPROVING COURT PRACTICE IN CHILD ABUSE & NEGLECT CASES 42

(1995), (recommending that no more than 1 hour be allotted for postremoval

hearings).

n49 Parents generally have no constitutional right to counsel in child

protection cases, although due process may, depending on the facts, require

appointment of counsel for indigent parents in some

termination-of-parental-rights cases. See Lassiter v. Dep't of Soc. Servs, 452

U.S. 18 (1981). A substantial majority of states nevertheless provide appointed

counsel for indigent parents in all child protection cases. NATIONAL COUNCIL OF

JUVENILE AND FAMILY COURT JUDGES, CHILD ABUSE AND NEGLECT CASES: REPRESENTATION

AS A CRITICAL COMPONENT OF EFFECTIVE PRACTICE (1998), 23-31.

n50 This creates a conundrum for parents. On one hand, postponing the

postremoval hearing for several days or weeks--assuming that such a postponement

is available--may be tactically advantageous; on the other hand, parents are

understandably desirous of being reunited with their child as soon as possible,

and any significant delay in reunification, as discussed in the text, tends to

reinforce the substitute custodial arrangement and make it that much harder to

undo.

n51 See supra note 13. This determination generally must be supported by

probable cause or the equivalent. See, e.g., FLA. STAT. CH. 39.401(b) (2002)

(probable cause); cf. CONN. GEN. STAT. § 17a-101g (2003) (reasonable cause); 325

ILL. COMP. STAT. 5/5 (2003) (reasonable belief); DEL. CODE. ANN. tit. 16 §

907(a) (2003) (reasonable suspicion); cf. ARIZ. REV. STAT. ANN. § 8-821(B)

(2003) (clear necessity).

n52 Here, however, the state's burden of proof may increase to a fair

preponderance of the evidence. See Care & Protection of Robert (Mass. 1990), 556

N.E.2d 993, 1001 (1990) (such proof constitutionally required at postremoval

hearings); In re Juvenile Appeal (83-CD), 189 Conn. 276, 300, 455 A.2d 1313, 325

(1983) (same). But see, e.g., 705 ILL. COMP. STAT. 405/2-10(1) & (2) (2003)

(only probable cause required).

n53 See, e.g., CONN. GEN. STAT. § 46b-120 (2003).

n54 See Andrea Charlow, Awarding Custody: The Best Interests of the Child and

Other Fictions, in CHILD, PARENT AND STATE (Randall S. Humm et al. eds., 1994),

3, 5-6 (best interest of the child "is not a standard, but a euphemism for

unbridled judicial discretion"). See generally Weinstein, supra note 35.

n55 Id. at 151.

n56 See Davis & Barua, supra note 40, at 152 (the adverse consequences of

removals "are rarely measured or made known to the court or to the public at

large").

n57 NEW YORK CITY SPECIAL CHILD WELFARE ADVISORY PANEL, REPORT ON FRONT LINE

AND SUPERVISORY PRACTICE 48 (2000) available at

http://www.aecf.org/child/frontline.pdf (last visited Mar. 12, 2003). Judges

interviewed for this report "spoke of the withering media attention to decisions

that turn out badly" and actually nodded their heads at the suggestion that "the

weaker the case" CPS presented, the more likely it would be to prevail ("because

judges would be especially afraid that something bad was going on in a home when

they couldn't get clear information"). Id. (emphasis in original).

n58 See, e.g., In re J.P. (Ill. App. Ct. 2002) (upholding finding of neglect

based in large part on father's angry outbursts to social workers and hospital

employees who were holding his child); cf. Julie B. v. Superior Court, Los

Angeles County, 2002 WL 86904 (Cal. Ct. App. Jan 23, 2002) (upholding

termination of reunification services where mother "went into a complete panic

and became irrational" and called the FBI to make a report when her son

disclosed that he had been sexually abused by another boy in a former foster

home).

n59 See, e.g., In re Alexander T., 2002 WL 31310709, at *11 (Conn. Super. Ct.

Sept. 23, 2002) (terminating parental rights of mother in part because her

refusal to cooperate with CPS workers and her "outright and unwarranted

hostility" toward them demonstrated that her alleged paranoid personality

disorder "continued unabated and untreated"). I represent the mother in this

case, which is currently being appealed to the Connecticut Appellate Court.

n60 See, e.g., J.M. v. State Dep't of Human Res., 686 So.2d 1253, 1254-55

(Ala. Civ. App. 1996) (affirming dependency finding in which two psychological

evaluators found the mother, who was not mentally ill and whose children had

been removed from her care pending trial, suffered from anxiety and depression

and the therapist testified that the "mother seemed capable of being a good

parent, but . . . seemed over-controlling because of her fear and anxiety for

the girls' safety").

n61 As of September 30, 1998, nearly two thirds of the children then in

foster care had experienced between one and two placements, 21% had experienced

three or four placements, and 16% had experienced five or more. 2000 GREEN BOOK,

supra note 16, Table 11-27.

n62 See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL

OF MENTAL DISORDERS 424-28 (DSM-IV, 4th ed. 1994).

n63 See id. at 116-18.

n64 See, e.g., In re Samantha C., 2002 WL 1902963 at *9 (Conn. Super. Ct.

July 18, 2002) (terminating parental rights of mother and father to 6-year-old

daughter who developed "special needs" from multiple foster placements and

sexual abuse suffered while in foster care; even though 3-year-old son who

remained in parents' custody appeared well cared for, "the critical issue is

whether the parent has gained the ability to care for the particular needs of

the child at issue") (emphasis added). I represent the mother in this case,

which is currently being appealed to the Connecticut Supreme Court.

n65 DIANE DODSON, AMERICAN BAR ASSOCIATION, THE LEGAL FRAMEWORK FOR ENDING

FOSTER CARE DRIFT: A GUIDE TO EVALUATING AND IMPROVING STATE LAWS, REGULATIONS

AND COURT RULES (1983).

n66 Children often express their anxiety around these issues by acting out

before and after visits, and this behavior may be erroneously construed as

evidence that they are being maltreated during visits or were so treated at home

prior to their removal. See, e.g., Failure to Protect: The Taking of Logan Marr

(PBS television documentary, "Frontline" series, Jan. 20, 2003) (transcript,

available at

http://www.pbs.org/wgbh/pages/frontline/shows/fostercare/etc/script1.html) (last

visited July 30, 2003).

n67 In extreme cases, the parent-child relationship may completely break down

(or fail to develop in the case of a newborn), leading to a petition to

terminate parental rights. Cf. In re Valerie D., (Conn. 492), 613 A.2d 748

(1992) (reversing termination judgment based on grounds of "no ongoing

parent-child relationship" because child's removal at birth and subsequent

placement in foster care made absence of such relationship inevitable); In re

Justin T., 640 A.2d 737, 739 (Me. 1994).

n68 See Amy Sinden, "Why Won't Mom Cooperate?": A Critique of Informality in

Child Welfare Proceedings, 11 YALE J.L. & FEMINISM 339, 353 (1999).

n69 Id. at 353-55.

n70 See Ann Moynihan, Mary Ann Forgey, & Debra Harris, Foreward to Fordham

Interdisciplinary Conference, Achieving Justice: Parents and the Child Welfare

System, 70 FORDHAM L. REV. 287, 299-300 (2001).

n71 James G. Dwyer, Children's Interests in a Family Context--A Cautionary

Note, 39 SANTA CLARA L. Rev. 1053, 1058-59 (1999).

n72 In addition, the differences between judges and parents in most child

protection cases--and the perceived divergence of parents from anything

resembling the middle-class norm--are simply too overpowering. See, e.g.,

Francis J. Foley III, An Unexpected Ministry: Reflections of a Judge in the

Juvenile Court, JUV. & FAM. CT. J. 67, 68-69 (1999) (contrasting typical parents

in divorce and child protection cases and presenting own self-described "cynical

and harsh" view of latter).

n73 42 U.S.C. § 675(5)(E) (2003). Exceptions are that the child is being

cared for by relatives, that the state has documented compelling reasons why

termination would be contrary to the child's best interests, and that the agency

has failed to provide the services required by the treatment plan in a timely

manner. See, e.g., CONN. GEN. STAT. § 17a-111a (2002); 705 ILL. COMP. STAT.

405/2-13(4.5) (2003). See generally 42 U.S.C. § 675(5)(E) (2003).

n74 M.L.B. v. S.L.J., 519 U.S. 102, 105 (1996).

n75 See id.; Santosky, 455 U.S. at 759 ("few forms of state action are both

so severe and so irreversible" as termination of parental rights). See also In

re Guardianship & Custody of Terrance G., 731 N.Y.S.2d 832, 836 (N.Y. Fam. Ct.

2001) (describing termination as "the jurisprudential equivalent of capital

punishment" in the civil context).

n76 State legislative responses to this requirement of ASFA have differed

greatly. One approach, exemplified by the Illinois statute, creates a new ground

for termination of parental rights based solely on the passage of time. 750 ILL.

COMP. STAT. 50/1(D)(m-1) (2003). Another approach, illustrated by the Indiana

statute, creates no new ground but merely directs that a termination petition be

filed by a certain time. IND. CODE § 31-35-2-4.5(a)(2) (2002). The Illinois

statute has been declared unconstitutional as violative of substantive due

process (See In re H.G. (Ill. 2001), while the Indiana statute has been upheld (

see Phelps v. Sybinsky, 736 N.E.2d 809 (Ind. Ct. App. 2000)). See generally

Katherine A. Hort, Is Twenty-Two Months beyond the Best Interest of the Child?

ASFA's Guidelines for the Termination of Parental Rights, 28 FORDHAM URB. L.J.

1879, 1881 (2001).

n77 Due process requires proof of parental "unfitness" before a court can

terminate parental rights over the parent's objection. Santosky, 455 U.S. at 760

n. 10 (1982); Stanley, 405 U.S. at 657-58.

n78 Although hard data on ASFA's impact remain hard to come by, there can be

little doubt that ASFA has created a sea-change in child welfare practice. See

U.S. GENERAL ACCOUNTING OFFICE, REPORT NO. GAO-02-585, FOSTER CARE: RECENT

LEGISLATION HELPS STATES FOCUS ON FINDING PERMANENT HOMES FOR CHILDREN, BUT

LONGSTANDING BARRIERS REMAIN 3 (June 2002).

n79 CONN. GEN. STAT. § 17a-112(j)(3)(B) (2003).

n80 See In re Shyliesh H. (Conn. App. Ct. 1999).

n81 See Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000) (emergency

removal constitutionally justified only when there is reasonable cause to

believe child is in "imminent danger of serious bodily injury" and removal is

"reasonably necessary to avert that specific injury"). Cf. Egervary v. Rooney,

80 F. Supp. 2d 491, 501-02 (E.D.Pa. 2000) (constitutional minimum is "imminent

threat of severe neglect or physical abuse").

n82 See CONN. GEN. STAT. § 17a-101g(c) (2003) (requiring "imminent risk of

physical harm") (emphasis added); VA. CODE ANN. § 63.1-248.9(A)(1) (Michie 2003)

(threat of "severe or irremediable injury"); ALASKA STAT. § 47.10.142 (Mitchie

2003) (immediate removal necessary to protect child's life).

n83 See 325 ILL. COMP. STAT. 5/5 (2003) (authorizing emergency removal when

circumstances "endanger[] the child's health or safety"); MICH. COMP. LAWS §

712A.14(1) (2003) (authorizing removal when a child's "surroundings are such as

to endanger his or her health, morals, or welfare"); KAN. STAT. ANN. §

38-1527(b) (2003) (authorizing emergency removal when continuing in the home

"would be harmful to the child").

n84 See Roe v. Conn, 417 F. Supp. 769, 777 (M. D. A2A 1976) (declaring

unconstitutional Alabama statute authorizing emergency removal "if it appears

that . . . the child is in such condition that its welfare [so] requires");

Siereveld v. Conn, 557 F. Supp. 1178 (E. D. Ky 1983) (declaring unconstitutional

Kentucky statute authorizing summary removal in nonemergency situations).

n85 Cf. Tenenbaum v. Williams, 193 F.3d 581, 596 (2d Cir. 1999) (holding that

unilateral seizure of child is unconstitutional "where there is reasonable time

safely to obtain judicial authorization consistent with the child's safety"),

with Doe v. O'Brien, F.3d, 2003 WL 21027249 (11th Cir. May 8, 2003) (agreeing

with dissenting opinion in Tenenbaum that this should only be one factor and

that the court should examine "all relevant circumstances" in determining

whether the prior court order was required).

n86 See, e.g., N.Y. FAM. CT. ACT § 1024(a) (McKinney 2003); 325 ILL. COMP.

STAT. 5/5 (2003); DEL. CODE ANN. tit. 16 § 907(a) (2003).

n87 See supra notes 56-57 and accompanying text.

n88 But see Miller v. City of Philadelphia, 174 F.3d 368, 373-74 (3d Cir.

1999) (holding that due process does not require parents or their counsel to be

included in such proceedings even if they are available because such a

requirement would "inhibit, deter and, at times, subvert the crucial function of

ex parte custody hearings--protecting children who are in imminent danger of

harm").

n89 States currently sanction anywhere from a 24-hour to a 24-day delay in

holding a hearing following an emergency removal. See Dobbin, Gatowski, &

Springgate, supra note 14, at 45. It seems likely that the lengthier of these

delays would be held unconstitutional if subjected to judicial scrutiny. See

Campbell v. Burt, 949 F. Supp 1461 (D. Haw. 1996), aff'd, 141 F.3d 927 (9th Cir.

1998) (declaring a 1-week delay in providing postremoval hearing

unconstitutional). Cf. Jordan v. Jackson, 15 F.3d 333, 351 (4th Cir. 1994)

(delay of 65 hours in providing postremoval hearing not unconstitutional but "is

near, if not at, the outer limit of permissible delay between a child's removal

from his home and judicial review" and probably would be unconstitutional "where

a removal is effected other than during, or shortly prior to, a weekend"). See

also Patterson v. Armstrong County Children & Youth Servs, 141 F. Supp. 2d 512,

541-42 (W.D.Pa. 2001) (holding that Jordan "clearly established" 72 hours as the

maximum constitutionally permissible delay).

n90 See, e.g., CONN. GEN. STAT. § 46b-129(f). This Connecticut statute, which

requires temporary custody hearings to be held on consecutive days absent

"compelling" circumstances, was enacted as a result of the Pamela B. v. Ment

lawsuit. See supra note 22. See generally Thomas Scheffey, A Baby Case with

Grown-Up Consequences: As Pamela B. Settles, the Courts Brace for an Onslaught

of Termination-of-Parental-Rights Cases, CONN. L. TRIB., Sept. 14, 1998, at 1.

The same statute also effectively guarantees that such hearings will commence no

later than 24 days following removal, much quicker than had been standard

practice before the lawsuit but still considerably slower apparently than

anywhere else in the country and probably too slow to satisfy due process. See

supra note 89.

n91 Cf. supra note 52. Proof by clear and convincing evidence is

constitutionally required in termination of parental rights cases. Santosky, 455

U.S. at 753. "[A] statute authorizing interim intervention might require a

standard of proof at least as great as that required for a final determination."

Davis & Barua, supra note 40, at 156.

n92 See E. Gambrill & A. Shlonsky, The Need for a Comprehensive Risk

Management System in Child Welfare, 23 CHILD & YOUTH SERV. REV. 79 (2001)

(arguing that risk assessment as currently employed focuses too much on risks

associated with biological parents while paying scant attention to "the risks

posed by the system and its larger context").

n93 See Davis & Barua, supra note 40, at 156-57, 159. Davis & Barua also

recommend that judges be "routinely informed of the consequences" of their

removal decisions, "whichever way they go," and that statutory language should

be reframed to "stress the active nature" of a decision to uphold a removal. Id.

at 157-58.

n94 See supra notes 23-28 and accompanying text.

n95 See, e.g., Martin Guggenheim, Somebody's Children: Sustaining the Family

's Placed in Child Welfare Policy, 113 HARV. L. REV. 1716, 1728 (2000) (book

review).

n96 See Shawn L. Raymond, Note, Where are the Reasonable Efforts to Enforce

the Reasonable Efforts Requirement? Monitoring State Compliance under the

Adoption Assistance and Child Welfare Act of 1980, 77 TEX. L. REV. 1235 (1999).

n97 See LEROY H. PELTON, FOR REASONS OF POVERTY 111 (1989).