A Cure Worse Than The Disease

Marquette Law Review
Volume 102 Article 6

Issue 4 Summer 2019
2019
A Cure Worse than the Disease? The Impact of Removal on

Children and Their Families
Vivek Sankaran
Christopher Church
Monique Mitchell
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Repository Citation
Vivek Sankaran, Christopher Church, and Monique Mitchell, A Cure Worse than the Disease? The Impact
of Removal on Children and Their Families, 102 Marq. L. Rev. 1161 (2019).
Available at: https://scholarship.law.marquette.edu/mulr/vol102/iss4/6
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SANKARANCHURCHMITCHELL, MULR VOL. 102, NO. 4 (DO NOT DELETE) 5/22/2019 6:08 PM
A CURE WORSE THAN THE DISEASE?

THE IMPACT OF REMOVAL ON
CHILDREN AND THEIR FAMILIES
VIVEK SANKARAN,* CHRISTOPHER CHURCH** & MONIQUE MITCHELL***
Removing children from their parents is child welfare’s most drastic

intervention. Research clearly establishes the profound and irreparable
damage family separation can inflict on children and their parents. To ensure
that this intervention is only used when necessary, a complex web of state and
federal constitutional principles, statutes, administrative regulations, judicial
decisions, and agency policies govern the removal decision. Central to these
authorities is the presumption that a healthy and robust child welfare system
keeps families together, protects children from harm, and centers on the needs
of children and their parents.
Yet, research and practice—supported by administrative data—paint a
different picture. They suggest a system that haphazardly and needlessly
removes children from parents through an impersonal process driven by the
convenience of the system at the expense of families. In fact, some of the
processes designed to protect children from harm directly cause trauma to
them. Too often, child welfare professionals remove children based on
misplaced confidence in that safety intervention and without careful
consideration of the consequences thereof. Whenever professionals remove
children from their parents without carefully balancing the risks created by that
intervention, they are culpable for the harm to children and their parents.
This Article focuses on how children and parents interacting with the child
welfare system experience the removal process, the genesis of a foster care
case. It analyzes the gaps and emergent issues in practice, research, and policy
related to child removal. The Article concludes with specific policy and
* Vivek Sankaran is a Clinical Professor of Law at the University of Michigan Law School and Director
of the Child Advocacy Law Clinic.
** Christopher Church is the Staff Attorney at the University of South Carolina School of Law’s
CHAMPS Clinic.
*** Dr. Monique Mitchell is the Executive Director of Life Transitions International and the Director
of Translational Research & Curriculum Development at The Dougy Center: The National Center for
Grieving Children & Families.
1162 MARQUETTE LAW REVIEW [102:1161
practice recommendations aimed at curbing child welfare’s reliance on

removal to foster care as its predominant safety intervention.
I. INTRODUCTION ........................................................................................ 1163

II. IMPACT OF REMOVAL ON CHILDREN AND THEIR PARENTS ................... 1165
A. The removal and placement of children in foster care can traumatize
children. .................................................................................... 1166
B. The removal and placement of children in foster care can traumatize
their parents. ............................................................................. 1169
C. There are insufficient practice standards and training for
professionals involved in the removal and placement of children in
foster care. ................................................................................ 1170
III. THE CHILD REMOVAL PROCESS ............................................................ 1171
IV. REMOVAL DYNAMICS IN THE FOSTER CARE SYSTEM .......................... 1177
A. The likelihood a child enters foster care varies significantly across
states, counties, and other geographical boundaries ................. 1177
B. The child welfare system knows very little about why children are
separated from their parent(s) ................................................... 1180
1. Circumstances of removal data are not well-defined ............ 1181
2. States interpret and report circumstance of removal data
inconsistently ...................................................................... 1183
3. Circumstances of removal data fail in specificity and vagueness
............................................................................................. 1184
4. Circumstances of removal data are biased towards observable
parental deficits at the time of removal. .............................. 1185
C. A proxy for unnecessary removals: quick discharges raise questions
about the necessity of the removal and reasonable efforts to
prevent the removal .................................................................. 1186
D. The weekdays when children are removed undermine the narrative
that removals are emergencies requiring ex-parte judicial
authorization ............................................................................. 1189
V. NEXT STEPS: RECOMMENDATIONS FOR REFORM .................................. 1191
VI. CONCLUSION ......................................................................................... 1193
2019] A CURE WORSE THAN THE DISEASE? 1163
I. INTRODUCTION
Taking children from their parents1 is the government’s most drastic
intervention to protect children. While the intervention may be necessary to
protect children, it can also inflict serious trauma on them. Because of this
trauma, the decision to separate children from their parents must be carefully
calibrated to ensure no child unnecessarily enters the foster care system.
To ensure this, a complex web of state and federal constitutional principles,
statutes, administrative regulations, judicial decisions, and agency policies
govern the removal decision, all intended to place a high burden on child
welfare professionals to avoid removal if at all possible. Yet overwhelming
inconsistencies plague the process by which child welfare professionals remove
children, resulting in a process that is often unpredictable, traumatizing, and
punitive for the children it is designed to protect.
Across the country, there is a wide range of practices concerning: (1) who
has the authority to remove a child; (2) who makes the decision to remove a
child; (3) the evidentiary burden required to remove a child; (4) how quickly an
impartial judicial officer must review the removal decision; and (5) what occurs
at that judicial review, including who must be given a lawyer. This Article
addresses these questions and others related to the process by which children
are removed from the custody of their parents.
Such questions are core to examining the government’s parens patriae
authority2 to protect children from harm. While the protection of vulnerable
children is certainly a compelling interest of any government, the United States
balances this governmental interest against a parent’s fundamental
constitutional right to family integrity, including the right to direct the care,
custody, and control of her children.3 Yet an examination of the foster care
system tells the story of a bureaucracy that fails to carefully scrutinize the
decision to separate children from their parents.
1. Throughout this Article, we use the term parent or parents for ease of reading to refer to the
person(s) with legal responsibility for a child that is the subject of a civil child abuse and neglect
proceeding. The authors recognize this term may apply to a variety of caretakers and the term may
inadvertently exclude many person(s). The authors recognize this term is defined differently based on
state law governing foster care proceedings.
2. Parens patriae, Latin for “father of the people,” refers to the power of the State to usurp the
legal rights of the natural parent, and to serve as the parent of any child who is need of protection. See
The History of Child Welfare Law, in CHILD WELFARE LAW AND PRACTICE: REPRESENTING
CHILDREN, PARENTS, AND STATE AGENCIES IN ABUSE, NEGLECT, AND DEPENDENCY CASES 113, 126
(Marvin Ventrell & Donald N. Duquette eds., 2005).
3. The Supreme Court has recognized this right in numerous decisions. See, e.g., Prince v.
Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925);
Meyer v. Nebraska, 262 U.S. 390, 400–01 (1923).
This Article contends that the process by which children are removed to
foster care is incongruent with the core values of child welfare and the legal
principles governing civil child abuse and neglect proceedings. This claim is
explored through clinical, legal, and empirical arguments that expose the need
for professionals to reexamine the values and principles that are guiding their
decision to involuntarily remove children from their parents and place them in
foster care. In Part Two, it examines the impact of removal on families,
focusing on the different types of trauma experienced by children and their
parents when children are involuntarily separated for the purpose of placement
in foster care. In Part Three, it presents a legal overview of the removal process,
highlighting the discrepancies across the country that are built into the legal
framework governing removals. These discrepancies magnify the dissonance
between child welfare removal practices and the important family rights at
stake. In Part Four, it provides an overview of the removal process through an
examination of administrative data collected by child welfare agencies
concerning the children and families involved in state foster care systems. 4
These data reveal: (1) the removal decision is haphazard; (2) significant
uncertainties exist as to why children enter foster care; and (3) children may
unnecessarily enter foster care. Finally, the Article concludes with specific
policy and practice recommendations aimed at curbing child welfare’s reliance
on removal to foster care as a safety intervention.
The idiom serving as the title of this Article has its origins in Virgil’s
Aeneid, when Virgil penned the Latin phrase aegrescitque medendo.5 Virgil
was forewarning readers of the unintended consequences of trying to help
people who are facing complex problems.6 Acting under color of state law,
child welfare professionals remove children from their parents more than
250,000 times a year.7 While removal is a necessary safety intervention to
4. Unless otherwise noted, the administrative data presented in this publication were made
available by the National Data Archive on Child Abuse and Neglect (NDACAN), Cornell University,
Ithaca, N.Y., and have been used with permission. Data from the Adoption and Foster Care Analysis
and Reporting System (AFCARS) are originally collected by the state’s child welfare agency pursuant
to federal reporting requirements. The authors, in partnership with Fostering Court Improvement, have
analyzed the data and analyses are on file with them. Neither the collector of the original data, the
funder, the Archive, Cornell University, or their agents bear any responsibility for the analyses or
interpretations presented in this paper. Correspondence related to data analysis should be directed to
cchurch@law.sc.edu.
5. VIRGIL, THE AENEID, bk. XII 391 (Charles W. Eliot ed., John Dryden trans., Harvard Classics
1909) (19 B.C.); see also Virgil, WIKIQUOTE, https://en.wikiquote.org/wiki/Virgil#Book_XII
[https://perma.cc/MNK7-NDRJ] (last visited Aug. 8, 2018).
6. See VIRGIL, supra note 5, at 394–97.
7. See AFCARS Files, supra note 4, FFY 2009–2017 (analysis on file with author).
protect some children, it is also disproportionately wielded against

impoverished families facing little more than social and environmental
stressors.8 Identifying services and resources to serve these families, rather than
separate them, has been a child welfare priority and legal requirement for
decades.9 Yet child welfare has habituated flawed removal practices in cases
in which services or resources may have alleviated the need for child–parent
separation. Child welfare professionals must get the removal calculus right and
invoke the remedy only when absolutely necessary to protect children from
serious, imminent harm. The insufficient knowledge about the traumatic
impact of removal on families and the malleability of removal practices across
the United States combine for an indefensible confidence in removal as a safety
intervention. In too many cases, removal is overutilized by well-meaning
professionals. In those instances, a difficult admission regarding child
welfare’s use of removal as safety intervention is deserved: aegrescitque
medendo.
II. IMPACT OF REMOVAL ON CHILDREN AND THEIR PARENTS

The moment children are removed from the custody of their parents, their
lives are forever changed. The placement in foster care separates children from
parents, siblings, teachers, friends, communities, and most other things familiar
to their lives. Familiarity is replaced by a pervasive sense of ambiguity: an
inherent confusion about what is happening and why, and when it will end.10
Ambiguity inundates the removal process: children are faced with
unpredictability, unfamiliarity, and a lack of clarity about: (1) why they are in
foster care (i.e., placement reason ambiguity); (2) the meaning of foster care
(i.e., structural ambiguity); (3) how long they will be in foster care (i.e.,
temporal ambiguity); (4) where they will be living (i.e., placement context
ambiguity); (5) the people with whom they will be living (i.e., relationship
ambiguity), and (6) their roles in familial environments (i.e., role ambiguity).11
8. See Clare Huntington, Mutual Dependency in Child Welfare, 82 NOTRE DAME L. REV. 1485,
1491 (2007) (noting that poverty plays a role in roughly half of all foster care cases); Jessica E. Marcus,
The Neglectful Parens Patriae: Using Child Protective Laws to Defend the Safety Net, 30 N.Y.U. REV.
L. & SOC. CHANGE 255, 257 (2006) (observing that most children placed in foster care come from
poor families, and that decreases in family income increases the likelihood of neglect); Andrea
Charlow, Race, Poverty, and Neglect, 28 WM. MITCHELL L. REV. 763, 789 (2001) (noting the
correlation between poverty and foster care placement).
9. See, e.g., JUDGE LEONARD EDWARDS, REASONABLE EFFORTS: A JUDICIAL PERSPECTIVE 7–
9 (2014).
10. MONIQUE B. MITCHELL, THE NEGLECTED TRANSITION: BUILDING A RELATIONAL HOME
FOR CHILDREN ENTERING FOSTER CARE 6 (2016).
11. Id. at 5.
Most importantly, when left unattended, ambiguity can and will traumatize
children who have been removed from their parents.12
A. The removal and placement of children in foster care can traumatize

children.
Within a child welfare context, trauma is often explored through the lens of
what has happened to a child before or after he/she enters foster care; however,
it is critical to consider how children may experience trauma due to entering
foster care.13 Not only are children in foster care forced to live apart from their
parents, they are also expected to form new relationships with unfamiliar people
(e.g., foster parents, lawyers, teachers, agency staff, providers, foster siblings).
Moreover, children can and often do experience multiple placements over the
course of their time in foster care.14 Unanticipated placement changes
negatively impact a child’s psychological well-being and can cause relational
losses, disenfranchised grief, and complex trauma.15 Complex trauma is caused
by exposure to multiple unresolved traumatic events that compromise personal
safety and interpersonal well-being.16 Children who have experienced complex
trauma may suffer from body dysregulation, difficulty managing emotions,
12. Monique B. Mitchell & Leon Kuczynski, Does Anyone Know What is Going On? Examining
Children’s Lived Experience of the Transition into Foster Care, 32 CHILD. AND YOUTH SERV. REV.
437, 438 (2009).
13. Id. at 437.
14. During the 2017 FFY, there were nearly 165,000 placement changes for the 719,000 children
that spent some amount of time in foster care. Just over one-third (36%) of those placement changes
were lateral placement changes. That is, they were placement changes between the same placement
type, i.e., a non-relative foster care placement to another non-relative foster care placement, or a child
caring institution to another child caring institution. The federal government has traditionally
measured placement instability largely agnostic to placement changes that may be planned and may
promote positive child welfare outcomes, such as a move from an institutional setting to a pre-adoptive
home. Although placement stability is a complex priority to measure with any single metric,
administrative data, such as those presented above, reveal many children suffer placement instability
that is likely unanticipated, thus compounding their trauma and sense of loss. See AFCARS Files,
supra note 4, FFY 2009–2017 (analysis on file with author).
15. See MITCHELL, supra note 10, at 6; Monique B. Mitchell, “No One Acknowledged My Loss
and Hurt”: Non-death Loss, Grief, and Trauma in Foster Care, 35 CHILD AND ADOLESCENT SOC.
WORK J. 1, 4–5 (2017) [hereinafter “No One Acknowledged My Loss and Hurt”]; Monique B.
Mitchell, The Family Dance: Ambiguous Loss, Meaning Making, and the Psychological Family in
Foster Care, 8 J. FAM. THEORY & REV. 360, 362 (2016) [hereinafter The Family Dance]; David M.
Rubin et al., The Impact of Placement Stability on Behavioral Well-being for Children in Foster Care,
119 PEDIATRICS 336, 343 (2007).
16. Complex Trauma, NAT’L CHILD TRAUMATIC STRESS NETWORK,
https://www.nctsn.org/what-is-child-trauma/trauma-types/complex-trauma [https://perma.cc/YG58-
PPHF] (last visited Aug. 8, 2018).
dissociation, poor self-regulation and self-concept, cognitive impairment, and

multiple long-term health consequences.17 Therefore, it is critical for child
welfare professionals to consider the impact of trauma and ensure that all efforts
have been made to mitigate the potential for complex trauma by keeping
families safe and together.
Research, policy, and practice indicate that child removal and entry into
foster care evokes emotional and psychological trauma and is the most drastic
safety intervention utilized by a child welfare agency. 18 The harm that can
occur as a result of removal results in a “monsoon of stress
hormones . . . flood[ing] the brain and body.”19 Even brief separations can
cause the release of higher levels of cortisol—stress hormones—that begin to
damage brain cells.20 And, unlike other areas of the body, research suggests
that “most cells in the brain cannot renew or repair themselves.”21 The evidence
about the harm of involuntarily separating children from their parents is so
overwhelming that Dr. Charles Nelson, professor of Pediatrics at Harvard
Medical School, concluded: “There’s so much research on this that if people
paid attention at all to the science, they would never do this.”22 In the context
of foster care cases, perhaps not never, but certainly less.
17. See id.

18. Id.; see Kimberly Howard et al., Early Mother–Child Separation, Parenting, and Child Well-
Being in Early Head Start Families, 13 ATTACHMENT & HUM. DEV. 5, 21 (2011) (finding that
separating children from mothers led to higher negativity towards mother and aggression); Allison
Eck, Psychological Damage Inflicted By Parent–Child Separation is Deep, Long-Lasting, NOVA
NEXT (June 20, 2018), http://www.pbs.org/wgbh/nova/next/body/psychological-damage-inflicted-
by-parent-child-separation-is-deep-long-lasting/ [https://perma.cc/ND65-53GP] (“The scientific
evidence against separating children from families is crystal clear . . . . We all know it is bad for
children to be separated from caregivers.”); Sara Goudarzi, Separating Families May Cause Lifelong
Health Damage, SCI. AM. (June 20, 2018), https://www.scientificamerican.com/article/separating-
families-may-cause-lifelong-health-damage/ [https://perma.cc/2K8M-K2J4] (describing how removal
can cause developmental regression, difficulty in sleeping, depression and acute stress, and can also
lead to long-term chronic medical conditions like cardiovascular disease, hypertension, obesity and a
shorter lifespan); William Wan, What Separation from Parents Does to Children: ‘The Effect Is
Catastrophic,’ WASH. POST (June 18, 2018), https://www.washingtonpost.com/national/health-
science/what-separation-from-parents-does-to-children-the-effect-is-
catastrophic/2018/06/18/c00c30ec-732c-11e8-805c-
4b67019fcfe4_story.html?utm_term=.2731f2fd1d3 [https://perma.cc/59KF-UY2S] (describing
studies showing that children separated from parents had lower IQ test scores, higher rates of
aggression, and were more likely to be involved in the criminal justice system and suffer from
substance abuse issues).
19. Eck, supra note 18.
20. Id.
21. Wan, supra note 18.
22. Id.
Significant gaps exist in state policy and practice, which fail to address the
impact of child removal on children and their parents. This intervention, which
is intended to mitigate serious, imminent harm, has the potential to cause its
own serious, imminent harm. The apprehension transaction (i.e., the
transaction involving a child’s removal from his/her original home and the
successive transfer into foster care) exposes children to an event that challenges
their understanding of self, interpersonal relationships, and the safety and
stability of the world in which they live.23 When children are removed from
their families—often suddenly and without warning—and transferred to a new
family environment, children have a harmful physiological response, rooted in
stress, and far too often are traumatized.24 While discussing their involvement
in the apprehension transaction, children report experiences of ambiguity, loss,
and trauma and often equate child removal to kidnapping.25 Children’s reports
suggest that the apprehension transaction is often interpreted as a threat to their
well-being and an event that should be avoided if at all possible. When it is
necessary to remove a child due to safety issues that cannot be addressed in less
intrusive ways, this transaction requires sensitivity, competency, and trauma-
informed knowledge.
More than half of the children who enter foster care will be placed with
people whom they have never met.26 This experience of relationship ambiguity
further complicates a child’s experience. In addition to their trying to make
sense of the reason they were removed from their home, children struggle with
acclimating to unfamiliar people and unfamiliar environments. This dynamic
can evoke further experiences of ambiguity: role ambiguity.27 As a result of
being forced to engage in familial environments which involve unfamiliar
people and unfamiliar environments, children may question whether the family
roles in which they served prior to entering foster care (e.g., identifying as a
son/daughter, brother/sister, etc.) can be preserved or are now obsolete.28 The
anguish experienced by role ambiguity can have a significant strain on a child’s
psychological and emotional well-being and interpersonal relationships.29
23. Mitchell & Kuczynski, supra note 12, at 440–41.

24. The Family Dance, supra note 15, at 362.
25. Mitchell & Kuczynski, supra note 12, at 440.
26. On September 30, 2017, only 32% of children in foster care were placed in a Relative Foster
Care placement and 5% in Trial-Home Visit (a placement for children to be with their parent as the
case progresses towards reunification). See AFCARS Files, supra note 4, FFY 2017 (analysis on file
with author).
27. Mitchell & Kuczynski, supra note 12, at 443.
28. See id. at 441, 443.
29. See id.
While experiencing this strain, children also struggle with the separation from
their family and friends.
Ambiguous loss (a lack of clarity about the psychological or physical
presence of members in the psychological family) can traumatize children
because they are grieving the loss of a family member who is not dead, but is
out there somewhere.30 Ambiguous loss, a non-death loss, can provoke anxiety,
confusion, despair, and other negative mental health experiences.31 Research
suggests that these experiences are often left unattended by the child welfare
system.32 Without adequate attention, children may suffer from additional
stressors that can have a negative impact on their mental and behavioral health,
and immediate and long-term well-being. In one prominent study of foster care
alumni, 25% of foster care alumni were found to experience post-traumatic
stress disorder, a rate which is nearly twice as high as the rate documented by
U.S. war veterans.33 These findings challenge us to consider how to mitigate
the long-term negative effects on children who have been separated from their
parents and linger, sometimes needlessly, in foster care.
B. The removal and placement of children in foster care can traumatize their
parents.
Child removals not only pose a psychological threat for the children who
have been removed; family separation can cause ambiguity for the entire
family. In a study involving mothers who had experienced the removal of their
children, participants reported that their identity as mothers were challenged by
having their children removed.34 For example, one mother reported, “They’ve
[CPS] taken my kids away. I don’t have anybody to mother.”35 In other words,
mothers reported that their inability to assert their rights, responsibilities, and
identity as a mother resulted in role ambiguity. Role ambiguity causes
confusion, grief, and trauma for mothers when they no longer believe they have
a parental role to serve in their children’s lives.36 In addition to experiencing
30. See PAULINE BOSS, AMBIGUOUS LOSS: LEARNING TO LIVE WITH UNRESOLVED GRIEF 5–8
(1999).
31. Id. at 23–24.
32. See “No One Acknowledged My Loss and Hurt”, supra note 15, at 4.
33. PETER J. PECORA ET AL., IMPROVING FAMILY FOSTER CARE: FINDINGS FROM THE
NORTHWEST FOSTER CARE ALUMNI STUDY 1, 1 (Casey Family Programs 2005).
34. Kendra L. Nixon et al., “Every Day It Takes a Piece of You Away”: Experiences of Grief
and Loss Among Abused Mothers Involved with Child Protective Services, 7 J. PUB. CHILD WELFARE
172, 182–83 (2013).
35. Id. at 183.
36. Id. at 176.
role ambiguity, parents who have had their children removed report
experiencing ambiguous loss, not knowing when they would get their children
back.37 Parents discuss how knowing their children are out there somewhere
yet not with them can evoke feelings of grief, loss, confusion, and despair.38 As
one mother explains:
I went insane. I broke down, nearly died. I couldn’t stay in
my house. I couldn’t be around their clothes . . . I found
myself just wandering around looking for them. Even though,
you know, they are not there. It’s just—it’s traumatizing. It’s
awful. [sobbing] . . . It’s as if the three of them died. One day
just died. That’s the grief that I went through. That’s the pain
that I went through. But meanwhile they didn’t [die].
Somebody’s got them. Somebody’s keeping them from
me . . . It was too much.39
Undoubtedly, the mental and social health outcomes of parents can
deteriorate when a child is removed from their home and placed into foster
care.40 Mothers who have been separated from their children and whose
children have been placed into foster care were found to have increased rates
of anxiety and substance use disorder diagnoses within two years of being
separated from their children.41 Support is not only needed, it is necessary.
Ideally, the provision of this support would be provided to parents well before
the need to warrant a child’s removal as child removal often exacerbates the
problem.
C. There are insufficient practice standards and training for professionals

involved in the removal and placement of children in foster care.
Despite the trauma that is caused by child removal, very little guidance is
offered in policy and practice regarding how to mitigate child removals and, for
non-preventable child removals, how to conduct child removals within a
trauma-informed framework. For example, law enforcement, an entity that is
regularly authorized by law to remove children from their parents, are not
required to receive trauma-informed training on the psychological and
emotional impacts of removals on children and their parents during the
37. Id. at 184.

38. Id. at 180.
39. Id. (alteration in original).
40. Id. at 183; E. Wall-Wieler et al., Maternal Health and Social Outcomes After Having a Child
Taken into Care: Population-based Longitudinal Cohort Study Using Linkable Administrative Data,
71 J. EPID. COMM. HEALTH 1145 (2017).
41. See Nixon et al., supra note 34, at 186.
apprehension transaction.42 Furthermore, many states do not require a trauma-

informed clinician to be present and available to children and their parents when
children are being physically removed from their home. 43 Consequently,
children and their parents never receive the psychological and emotional
support needed during moments where they are vulnerable to conditions that
will almost certainly traumatize them. Further complicating this issue, state
child welfare agency policies permit up to seven days before a caseworker is
required to establish an initial visit with a child post-removal.44 Therefore, the
trauma experienced by children during this period where little communication
occurs is at odds with child welfare’s core charge: protecting children from
harm. This process of non-communication creates more problems for a child
than it is designed to resolve.
The United States’ child welfare system authorizes considerable stressors
on the children and parents it aims to serve, most of which are preventable.
III. THE CHILD REMOVAL PROCESS

Given the trauma the removal process can inflict on children and their
parents, it is crucial that the legal system closely monitors this process to ensure
that only those children who must be removed are removed. Yet, in various
ways, the process by which children can be removed is haphazard—varying
from jurisdiction to jurisdiction—raising serious questions about the efficacy
of the legal system in preventing unnecessary removals.
First, state laws vary on who can immediately remove children from their
parents without a court order in emergency situations. In most states, statutes
authorize law enforcement officers to remove children from their parents.45 In
some states, child welfare agency staff (e.g., case workers or investigators) can
remove children.46 Other states authorize private citizens (e.g., doctors,
prosecuting attorneys, nurses, or nurse practitioners) with the discretion to
42. LISA H. THURAU, OJP DIAGNOSTIC CTR., FIRST, DO NO HARM: MODEL PRACTICES FOR
LAW ENFORCEMENT AGENCIES WHEN ARRESTING PARENTS IN THE PRESENCE OF CHILDREN 5
(2012).
43. See, e.g., ALA. CODE § 12-15-306 (2018); MICH. COMP. LAWS ANN. § 712A.14a(1) (West
2018); N.M. STAT. ANN. §§ 32A-3B-3(A), 32A-3B-4(A) (West 2019).
44. See, e.g., GA. DIV. OF FAMILY & CHILD. SERVS., CHILD WELFARE POLICY MANUAL,
CHAPTER 10 FOSTER CARE § 19 (June 2016); OR. DEP’T HUMAN SERVS., CHILD WELFARE
PROCEDURAL MANUAL, CHAPTER 3 MANAGING CHILD SAFETY, § 3 TRANSFER OF A CASE 2.
45. See, e.g., ALA. CODE § 12-15-306(a); COLO. REV. STAT. § 19-3-401(1) (2018); MICH.
COMP. LAWS ANN. § 712A.14a(1); N.D. CENT. CODE § 27-20-13 (2017); N.M. STAT. ANN. § 32A-
3B-3.
46. See, e.g., ARK. CODE ANN. § 12-18-1001(a) (2018); MONT. CODE ANN. § 41-3-301(1)
(West 2017); N.C. GEN. STAT. § 7B-500(a) (2018); TENN. CODE ANN. § 37-1-113(a)(3) (2018).
separate a parent from their child.47 The breadth of people lawfully authorized
to remove children from their parents raises questions about their training,
qualifications, and capacities to make this life-changing decision.
Second, in addition to states varying in the designations of professionals
authorized to remove a child without a court order, states also vary on the legal
standard that must be met before an emergency removal can occur. For
example, some states such as Florida and North Carolina allow removals to
occur whenever an authorized individual has reason to believe that a child is a
victim of abuse or neglect.48 Others states, such as Alabama, Connecticut and
Kentucky, demand evidence that a child is in imminent danger of serious or
substantial harm.49 Several states, including Colorado and Michigan, mandate
a demonstration that no service or program could be delivered to the family that
would obviate the need to remove the child from the home.50 This is consistent
with federal law that requires states to make reasonable efforts to prevent
children from entering foster care,51 although this requirement is inconsistently
enforced.52 Lastly, there are other states, for example, Illinois, Indiana and New
Jersey that require a particularized showing that immediate removal is
absolutely necessary because the delay in proceeding to court and obtaining an
order would create the risk of significant harm to the child.53
The following example illustrates the significant differences between these
standards. Consider the case of Debra Harrell, whose nine-year-old child was
found playing alone at a local park while her mother worked a shift at
McDonald’s.54 Ms. Harrell could not afford day care so, rather than have her
child stay at McDonald’s, she sometimes allowed the child to play at the park.55
47. See, e.g., IOWA CODE ANN. § 232.79(1) (West 2018); KY. REV. STAT. ANN. § 620.040(5)(b)
(West 2018); WYO. STAT. ANN. § 14-3-405(b) (West 2018).
48. FLA. STAT. ANN. § 39.401(1)(b) (West 2018); N.C. GEN. STAT. § 7B-500(a).
49. ALA. CODE § 12-15-306(a)(1); CONN. GEN. STAT. ANN. § 17a-101g(e) (West 2019); KY.
REV. STAT. ANN. § 620.040(5)(c).
50. COLO. REV. STAT. § 19-3-401(1.5); MICH. COMP. LAWS ANN. § 712A.14b(1)(c)–(d) (West
2018).
51. 42 U.S.C. § 671(a)(15) (2019).
52. See Vivek S. Sankaran & Christopher Church, Easy Come, Easy Go: The Plight of Children
Who Spend Less than Thirty Days in Foster Care, 19 U. PA. J.L. & SOC. CHANGE 207, 226–29 (2016).
53. ILL. ADMIN. CODE tit. 89, § 300.120(a)(1)–(2) (2018); IND. CODE ANN. § 31-34-2-3(a)(2)
(West 2018); N.J. STAT. ANN. § 9:6-8.29(a) (West 2018).
54. See Diana Reese, South Carolina Mom Who Left Daughter at Park Sues TV Station, WASH.
POST (Aug. 14, 2014), https://www.washingtonpost.com/blogs/she-the-people/wp/2014/08/14/south-
carolina-mom-who-left-daughter-at-park-sues-tv-station/?utm_term=.13e5b2bad4a1
[https://perma.cc/X2TR-LN5M].
55. See id.
But when another adult noticed the child by herself, she called the police.56
After the police officer arrived, he arrested Ms. Harrell for child abandonment
and placed her daughter in foster care.57
The various legal standards significantly alter the legal response to such a
situation. In some jurisdictions, regardless of whether the officer could have
contacted the court to obtain an order, if the officer determines that the child
has been neglected—an inherently subjective determination—the officer can
remove that child immediately.58 In other states, the police officer must also
determine that the child is in immediate danger of substantial harm.59 In a few
other states, the officer would have to ascertain whether any services can be put
in the home to prevent the removal.60 Some states would not permit the
immediate removal unless the officer first determined that the situation was so
life endangering that the officer did not have time to seek a court order.61 These
differences play a major role in how individuals view their authority to take
children from their parents without a court order.
The statutes also send a clear message about how states view the impact of
removal on children and their parents. States that permit individuals to remove
a child based solely on suspicion of abuse or neglect have created a scheme that
encourages removals based on one individual’s subjective determination.62
This scheme does little, if anything, to ensure a removal is absolutely necessary
prior to the apprehension transaction. Whereas other states, with a stringent
standard for ex parte removals, require not only a finding of abuse or neglect,
but also a finding of immediate danger that demonstrates that services cannot
address the problem and that proceeding to court is not feasible.63 Ultimately,
states with stringent standards for ex parte removals reaffirm the notion that
children should only be removed as a means of last resort.
56. See id.

57. See id.
58. See, e.g., FLA. STAT. ANN. § 39.401(1)(b) (West 2018); N.C. GEN. STAT. § 7B-500(a)
(2018).
59. ALA. CODE § 12-15-306(a)(1) (2018); CONN. GEN. STAT. ANN. § 17a-101g(e) (West 2019);
KY. REV. STAT. ANN. § 620.040(5)(c) (West 2018).
60. COLO. REV. STAT. § 19-3-401(1.5) (2018); MICH. COMP. LAWS ANN. § 712A.14b (West
2018).
61. See, e.g., ILL. ADMIN. CODE tit. 89, § 300.120(a)(1)–(2) (2018); IND. CODE ANN. § 31-34-
2-3(a)(2) (West 2018); N.J. STAT. ANN. § 9:6-8.29(a) (West 2018).
62. See, e.g., N.C. GEN. STAT. § 7B-500(a) (2018).
63. ILL. ADMIN. CODE tit. 89, § 300.120(a)(1)–(2); IND. CODE ANN. § 31-34-2-3(a)(2); N.J.
STAT. ANN. § 9:6-8.29(a).
In addition to determining who has the authority to remove and which

findings are necessary to remove, states also vary on the timing of how quickly
courts must review an emergency removal once it has occurred. A number of
jurisdictions require courts to hold hearings within twenty-four hours after a
child has been removed.64 Other jurisdictions grant courts longer timeframes,
between forty-eight and ninety-six hours, to review the emergency removal.65
Yet there are a few outliers. For example, Arizona requires a hearing “not fewer
than five days nor more than seven days” after a child is removed from their
parents.66 North Carolina permits the hearing to be held within seven calendar
days.67 New Mexico mandates a hearing to be held within ten days after a
petition is filed.68 Montana only requires a hearing to occur within twenty days
of the emergency removal.69 That is, in Montana, a child and parent may wait
nearly three weeks before they will have the opportunity to challenge the
lawfulness of an agency’s removal of the child from their home.
The differences in due process protections among states raise significant
concerns. Some parents and children have the opportunity to contest an
emergency removal order within twenty-four hours of the apprehension
transaction. However, for parents in other states, it may take weeks before they
have any opportunity to appear before a judge. In the interim, without active
court oversight, important decisions are made exclusively by the child welfare
agency, decisions which could mitigate or intensify the trauma experienced by
children and their parents including where children are placed, what school they
attend, what services they receive, and how often children see their parents.70
Given the traumatic impact of a removal, states must consider whether their
standards and respective processes sufficiently safeguard against unnecessary
removals.
Finally, when a parent appears in court, their ability to effectively challenge
an emergency removal will vary based on whether they are afforded the right
to receive the assistance of an attorney. Attorneys play a critical role in
64. See, e.g., FLA. STAT. ANN. § 39.401(5) (West 2018); MICH. CT. R. 3.965(A)(1) (2019);
MISS. CODE ANN. § 43-21-303(4) (West 2018); N.J. STAT. ANN. § 9:6-8.31(a) (West 2018).
65. See, e.g., CONN. GEN. STAT. ANN. § 17a-101g(f) (West 2019); MINN. STAT.
ANN. § 260C.178(a) (West 2019); N.H. REV. STAT. ANN. § 169-C:6 (2018); NEV. REV. STAT.
ANN. § 432B.470(1) (West 2017); S.C. CODE ANN. § 63-7-710(A) (2016); S.D. CODIFIED LAWS § 26-
7A-14 (2019); WYO. STAT. ANN. § 14-3-405(d) (West 2018).
66. ARIZ. REV. STAT. ANN. § 8-824(A) (2018).
67. N.C. GEN. STAT. ANN. § 7B-506(a) (West 2018).
68. N.M. STAT. ANN. § 32A-4-18(A) (West 2018).
69. MONT. CODE ANN. § 41-3-301(7) (West 2017).
70. See Sankaran & Church, supra note 52, at 209.
challenging erroneous removals. They remind the court of the correct legal
standards, provide key information to the court and, when removal is necessary,
can identify alternative placements and resources for the children.71 Attorneys
also counsel clients on their options, explain complicated legal processes, and
help guide parents through a complex and overwhelming bureaucracy.
Unsurprisingly, research has demonstrated that the early appointment of
counsel can reduce the need for children to be removed or can expedite
reunifications.72 A national consensus has coalesced around the notion that
parents’ attorneys must be appointed at the outset of a child welfare case.73
Yet many states do not appoint counsel for parents early in the child welfare
process. For example, in Mississippi, no statute affords parents an absolute
right to counsel, allowing courts to completely deny parents the right to a
lawyer throughout an entire child welfare case, even prior to the termination of
their parental rights.74 In other jurisdictions, while parents may receive the
assistance of a lawyer at some later stage of a child welfare case, they are not
entitled to a lawyer at the first removal hearing. For example, in Texas, parents
are first appointed counsel at the full adversary hearing, which only occurs
fourteen days after the child has been removed.75 This delay in appointment
increases the likelihood that the court will be deprived of information to
properly vet the removal decision. Other states provide courts with discretion
to appoint counsel. For example, in Delaware, a court’s decision whether to
appoint counsel is purely discretionary, based on “the degree to which the loss
of parental rights are at stake; the risk of an erroneous deprivation of those rights
through the dependency proceedings; and the interest of [the child welfare
71. For information about the different ways in which parents’ attorneys can assist their clients,
see generally MARTIN GUGGENHEIM & VIVEK S. SANKARAN, REPRESENTING PARENTS IN CHILD
WELFARE CASES: ADVICE AND GUIDANCE FOR FAMILY DEFENDERS (2015).
72. See Elizabeth Thornton & Betsy Gwin, High-Quality Legal Representation for Parents in
Child Welfare Cases Results in Improved Outcomes for Families and Potential Cost Savings, 46 FAM.
L.Q. 139, 154 (2012) (documenting studies showing that strong parent representation services the
interests of children in child welfare cases).
73. See, e.g., U.S. DEP’T OF HEALTH & HUMAN SERVS., ACYF-CB-IM-17-02, HIGH QUALITY
LEGAL REPRESENTATION FOR ALL PARTIES IN CHILD WELFARE PROCEEDINGS 3 (Jan. 17, 2017).
74. MISS. CODE ANN. § 43-21-201(1) (West 2018) (listing no right to appointed counsel); MISS.
CODE ANN. § 93-15-113(2)(b) (West 2018) (“If an indigent parent does not have counsel, the court
shall determine whether the parent is entitled to appointed counsel under the Constitution of the United
States, the Mississippi Constitution of 1890, or statutory law . . . .”); see also J.C.N.F. v. Stone Cty.
Dep’t of Human Servs., 996 So. 2d 762, 772 (Miss. 2008) (finding that the trial court did not err in
denying counsel to an indigent parent); K.D.G.L.B.P. v. Hinds Cty. Dep’t of Human Servs., 771 So.
2d 907, 910 (Miss. 2000) (noting that “appointment of counsel in termination proceedings, while wise,
is not mandatory . . . .”).
75. TEX. FAM. CODE ANN. § 262.201(a) (West 2017).
agency] as to the ultimate resolution.”76 Similar statutory frameworks exist in

Minnesota,77 Nevada,78 Oklahoma,79 Wisconsin,80 Virginia,81 Missouri,82 and
Wyoming.83 In these jurisdictions, courts have vast discretion, on a case-by-
case basis, to determine whether parents should be appointed counsel.
Even in states in which parents’ right to counsel at the first court hearing
appears to be strong, problems with early appointment exist. For example, in
Michigan, although indigent parents are entitled to counsel at their first court
appearance, hearings can be continued—for up to two weeks—to allow courts
the time to locate attorneys willing to take such appointments.84 While a court
can continue the hearing to find a lawyer, it can also continue the placement of
a child outside her home, away from her parents, during that time. 85 Thus, in
practice, many parents still lose their children to foster care without ever having
a lawyer advocate on their behalf. In Washington, D.C., a statute permits courts
to appoint a guardian ad litem for children86 immediately upon the child’s
removal—prior to the first court hearing—presumably to allow the attorney to
work with others to try to resolve issues, including the need for an out of home
76. DEL. FAM. CT. R. CIV. PRO. 206(a)–(b) (West 2018).

77. MINN. STAT. ANN. § 260C.163(3)(c) (West 2018) (court may appoint counsel “in any case
in which it feels that such an appointment is appropriate . . . .”).
78. NEV. REV. STAT. ANN. § 128.100(2) (West 2017).
79. OKLA. STAT. ANN. tit. 10A, § 1-4-306(A)(1)(a) (West 2018) (“counsel may be appointed by
the court at the emergency custody hearing . . . .”).
80. Wisconsin has no statute allowing trial courts to appoint counsel for parents prior to the
termination of parental rights hearing, but its supreme court has ruled that courts must have the
discretion to appoint counsel when necessary. See Joni B. v. State, 202 Wis. 2d 1, 18, 549 N.W.2d 411,
417–18 (1996) (“We emphasize that the key to an individualized determination is that the need to
appoint counsel will differ from case to case. In other words, a circuit court should only appoint
counsel after concluding that either the efficient administration of justice warrants it or that due process
considerations outweigh the presumption against such an appointment.”).
81. VA. CODE ANN. § 16.1-266(D) (West 2018) (“Prior to a hearing at which a child is the
subject of an initial foster care plan filed pursuant to § 16.1-281, a foster care review hearing pursuant
to § 16.1-282 and a permanency planning hearing pursuant to § 16.1-282.1, the court shall consider
appointing counsel to represent the child’s parent or guardian.”).
82. MO. ANN. STAT. § 211.211(4) (West 2018) (court shall appoint counsel only if it finds: “(1)
That the custodian is indigent; and (2) That the custodian desires the appointment of counsel; and
(3) That a full and fair hearing requires appointment of counsel for the custodian.”).
83. WYO. STAT. ANN. § 14-2-318(a) (West 2018) (“The court may appoint counsel for any party
who is indigent.”).
84. MICH. CT. R. 3.965(B)(11) (2019).
85. Id. R. 3.965(B)(11)–(13).
86. A guardian ad litem is an advocate appointed to represent what he or she believes is in the
child’s best interest.
placement for the child.87 However, the statute does not allow those same
courts to appoint lawyers to represent parents until the day of the actual hearing,
which could be three days after the child’s removal.88 This system denies the
parents’ lawyers the same chance to adequately prepare for the hearing and
have a meaningful impact on the outcome. It also ignores the expansive body
of research on traumatic separation related to children removed to foster care
and deprives parent attorneys the opportunity to promote family autonomy by
preventing unnecessary removals before they occur.
The procedural infirmities that surround the removal process should
concern anyone seeking to ensure that children are not traumatized by
unnecessary removal and placement in foster. But how often are unnecessary
removals actually taking place in the United States? While not conclusive, the
next Section examines administrative data that raise concerns about the removal
process.
IV. REMOVAL DYNAMICS IN THE FOSTER CARE SYSTEM

This Section contains an empirical exploration of the clinical and legal
claims advanced in this Article, raising concerns about how often children are
removed, why children are removed, and whether children are unnecessarily
removed.
Each year since 2009, the United States foster care system has removed
children from their parents on more than 250,000 occasions.89 In other words,
the efforts by the U.S. child welfare system to prevent removal from the home
fail over 250,000 times per year. Each time, an individual, acting under color
of state law, physically separated a child from their parents representing to a
court that reasonable efforts were made to prevent the removal or the
circumstances fit an exception.90 While not dispositive, the patterns in the
variation of the data raise many concerns as to how often this intervention is
appropriately invoked.
A. The Likelihood a Child Enters Foster Care Varies Significantly Across

States, Counties, and Other Geographical Boundaries.
One major criticism advanced in this Article is the lack of uniformity
among policies and practices governing the decision to involuntarily remove a
child from their parents. The data support this claim.
87. D.C. CODE Ann. § 16-2312(a)(1)(A) (West 2019).

88. Id. § 16-2312(c).
89. See AFCARS Files, supra note 4, FFY 2009–2017 (analysis on file with author).
90. 42 U.S.C. § 671(a)(15) (2019).
During the 2017 federal fiscal year (“FFY”), there were 266,738 child
removals, which represented an average monthly removal rate of 3 child
removals for every 10,000 children in the population.91 While some differences
in rates of removal across geographies is expected, the extent of the variance is
concerning. Consider West Virginia, where the average monthly removal rate
(10.9 per 10K children) during the 2017 FFY was more than ten times that of
neighboring Virginia (1.2 per 10K).92 Across all states, the average monthly
removal rate varies by a factor as much as 10 to1 (see Figure 1).93
Figure 1: Statistical Dispersion Across States in Average Monthly Removal

Rate, 2017 FFY94
Similar variance exists within states across county lines, agency regions,
judicial circuits, and other geographical boundaries.95 Variance within states
may be more concerning, because local jurisdictions presumably operate under
91. See AFCARS Files, supra note 4, FFY 2017 (analysis on file with author).
92. Id.
93. Id.
94. Id.
95. Id.
a more consistent removal standard informed by state law and state agency
policy. Yet there is no shortage of examples that demonstrate the significant
statistical dispersion in removal rates within a state. Consider the Atlanta, GA
metropolitan area: the average monthly removal rate in DeKalb County (2.1 per
10K) during the 2018 FFY was twice the rate of neighboring Gwinnett County
(1.4 per 10K).96
It is tempting to justify this dispersion on grounds such as differences in
child poverty rates, caretaker substance abuse, or available resources in a
community. Such justifications line up with the many prevailing views on why
differences in removal rates may be so stark across geographies.97 Yet child
poverty, among the more commonly offered explanatory variables,98 measured
against removal rates yields a very weak association.99 More practically,
reconsider these data for the Atlanta Metropolitan area by county example, as
shown below.100
Child Poverty Avg. Monthly

Rate Removal Rate
Gwinnett County 16.5% 1.0 per 10K
DeKalb County 25.8% 2.1 per 10K
Fulton County 24.3% 1.6 per 10K
Georgia 23% 2.7 per 10K
96. Regional Rankings on Select Performance Indicators, FOSTERING COURT IMPROVEMENT

(2017–2018), www.fosteringcourtimprovement.org/ga [https://perma.cc/6CXL-WBBW].
97. See, e.g., Jeff Jenkins, Kanawha County Child Removal Numbers Staggering, METRONEWS
(Aug. 3, 2018), http://wvmetronews.com/2018/08/03/kanawha-county-child-removal-numbers-
staggering [https://perma.cc/6EU5-AHLT] (substance abuse); Ben Renner, Opioid Epidemic Linked to
Alarming Spike in Children Sent into Foster Care, STUDY FINDS (Aug. 6, 2018),
https://www.studyfinds.org/opioid-epidemic-children-foster-care-florida [https://perma.cc/Q63T-
F485]; Katie Stancombe, Neglect or Not? DCS Study Takes Aim at CHINS Statute, IND. LAW. (July
25, 2018), https://www.theindianalawyer.com/articles/47657-neglect-or-not-dcs-study-takes-aim-at-
chins-statute [https://perma.cc/D9BM-SAUT].
98. See, e.g., Emma S. Ketteringham, Live in a Poor Neighborhood? Better Be a Perfect Parent.,
N.Y. TIMES (Aug. 22, 2017), https://www.nytimes.com/2017/08/22/opinion/poor-neighborhoods-
black-parents-child-services.html [https://perma.cc/DEF3-A4PV].
99. The coefficient of determination between the child poverty rate published by KIDSCOUNT
for the 2016 calendar year and annual child removal rate computed using federal data is .0002. See
THE ANNIE E. CASEY FOUND., Children in Poverty (100 Percent Poverty) in the United States, KIDS
COUNT DATA CTR., https://datacenter.kidscount.org/data/tables/43-children-in-poverty
[https://perma.cc/6QM6-SR9Q]; AFCARS Files, supra note 4, FFY 2017 (analysis on file with
author).
100. See THE ANNIE E. CASEY FOUND., supra note 99; Regional Rankings on Select
Performance Indicators, supra note 96.
Although Gwinnett County and DeKalb County have very different child
poverty rates, child poverty is not a strong explanatory variable for variance in
removal rates. Neighboring Fulton County has a similar child poverty rate to
DeKalb County, yet removes far fewer children. Removal rates likely need
multiple explanatory variables, some which are not readily measurable.
Explaining the variance in removal rates by referring to any single variable
(caretaker drug use, child poverty, lack of services, etc.) is a damning
oversimplification, and it sidesteps the question of whether the likelihood that
a child is removed has any relationship to an objective assessment of child
safety.
B. The child welfare system knows very little about why children are
separated from their parent(s).
Before a child is removed to foster care, the state agency must demonstrate
it made reasonable efforts to prevent the removal, or that the case fits an
exception.101 This is an important requirement to protect parents’ and
children’s constitutional rights to family integrity. Yet federal administrative
data contain little or no information concerning what efforts were made to
prevent the removal and why they failed, a significant deficit in our regulatory
landscape. The reason(s) a child enters foster care is provided by states,102 but
those data have several limitations including: (1) state differences in how
reasons for removal are reported;103 (2) mutual inclusivity and overlap of certain
removal reasons;104 (3) the timing at which circumstances of removal data are
finalized;105 and (4) a lack of reporting on the efforts the state made to prevent
removal.106
State agencies must make reasonable efforts to prevent removal to foster
care, unless the case fits an exception.107 Yet federal regulations only require
the state child welfare agency to describe the child and family circumstances at
removal, with no requirement to document the case-specific efforts made to
prevent removal.108 Furthermore, each circumstance of removal is defined in
101. 42 U.S.C. § 671(a)(15) (2019).

102. See Sankaran & Church, supra note 52, at 216 n.65.
103. Id. at 223.
104. See infra Section IV.B.3, at 25.
105. 45 C.F.R. § 1355.43(a) (2016).
107. 42 U.S.C. § 671(a)(15) (2019).
108. 45 C.F.R. § 1355.44(d)(6).
the federal regulations as an individual or family deficit, for which a parent’s

hope for reunification typically hinges upon remedying.
The Children’s Bureau has defined how family circumstances are to be
reported in federal administrative data submissions by providing fifteen data
elements that must be used to identify circumstances of removal.109 Each state
is charged with identifying all relevant circumstances, so there can and often
are multiple reasons reported for a single removal.110 Were these data required
to be reported with any sort of fidelity, a quantitative narrative justifying why
approximately 265,000 child removals were necessary during the 2017 FFY
might exist. If these data elements had envisioned state accountability rather
than just documenting family deficits, states would be required to report on each
failed effort to assist a family in the hopes of preventing a removal. Were these
data aligned with the core child welfare value of family preservation, perhaps
the system could quantify how often reasonable efforts are made to successfully
prevent a removal. Yet there is no such fidelity, no such vision, and no such
alignment. Thus, child welfare is left with no such confidence in any narrative
claiming to justify why children enter foster care. In its wake, there is only
conjecture, hyperbole, and emotion-ridden explanations.
1. Circumstances of removal data are not well-defined.

Although the circumstances of removal data provide insight into the
worker’s impressions of the conditions or risks at the time of removal, the data
do not explain why children are separated from their parents. First, some
circumstances of removal criteria are too broad to be informative. Consider
neglect, the most common circumstance of removal nationally.111 Neglect is
circularly defined as negligent treatment in the federal regulations.112 During
the 2017 FFY, 62% of removals were attributed to neglect, with states ranging
from 92% (Maine and Idaho) to 22% (Iowa and North Dakota).113 How neglect
is operationalized and further defined certainly differs across state lines,114
reasonably so. However, those differences preclude a systemic understanding
of why children are placed in foster care, and whether certain removals might
have been preventable.
109. See Foster Care and Adoption Record Layouts, Appendix D, 45 C.F.R. § 1355 app. D
(2016); see also U.S. DEP’T OF HEALTH & HUMAN SERVS., CHILDREN’S BUREAU, AFCARS
TECHNICAL BULLETIN #1: DATA ELEMENTS 7–10 (2012).
110. See 45 C.F.R. § 1355.44(d)(6).
111. AFCARS Files, supra note 4, FFY 2017 (analysis on file with author).
112. 45 C.F.R. § 1355.44(d)(6)(vi).
114. See GUGGENHEIM & SANKARAN, supra note 71, at 1–2; Charlow, supra note 8, at 788.
Other circumstances of removal fail for their specificity: compare the

criteria of neglect, defined as “negligent treatment or maltreatment of the child,
including failure to provide adequate food, clothing, shelter or care”115 with
child’s disability, defined as:
clinical diagnosis by a qualified professional of . . . one or
more of the following: Intellectual disability, emotional
disturbance, specific learning disability, hearing, speech or
sight impairment, physical disability or other clinically
diagnosed handicap. Include only if the disability(ies) was at
least one of the factors which lead to the child’s removal.116
This definition’s insistence on a clinical diagnosis by a qualified
professional is at odds with other definitions. Compare child disability with
caretaker drug or alcohol abuse: each require the abuse be of a “compulsive
use” and “not of a temporary nature” but caretaker drug or alcohol abuse
makes no such reference to a formal diagnosis or limits who may make such a
determination.117 Similarly, caretaker’s inability to cope due to illness or other
reason focuses on a caretaker’s “physical or emotional illness or disabling
condition,” again without reference to a formal diagnosis or limits on who
makes the determination.118
The implications of these limitations are straightforward. According to
federal data, only 4,281 child removals implicated child disability as a
circumstance of removal during the 2017 FFY, just 1.6% of all removals.119 Do
these data suggest a child’s complex medical health needs are not a significant
reason why children are removed? What about when a caretaker neglects to
address a child’s disability through appropriate medical care? Perhaps then, the
technical definition of child disability is too limiting, and the broader definition
of neglect too inviting, to accurately reflect why a child is removed to foster
care.
These deficits also highlight the important consideration of whether certain
removals are preventable. More fidelity and specificity in reporting
circumstances of removal data and an additional focus on state accountability
to document case specific efforts to prevent removal would inform whether
115. 45 C.F.R. § 1355.44(d)(6)(vi).

116. Id. § 1355.44(d)(6)(xvii); see also AFCARS TECHNICAL BULLETIN #1, supra note 109, at
9.
117. 45 C.F.R. § 1355.44(d)(6)(xi)–(xii); see also AFCARS TECHNICAL BULLETIN #1, supra
note 109, at 9.
118. 45 C.F.R. § 1355.44(d)(6)(xxiii)–(xxiv); see also AFCARS TECHNICAL BULLETIN #1,
supra note 109, at 10.
removal is truly used as a safety intervention of last resort. Many parental

addictions, familial living conditions, and other determinants of child
maltreatment are treatable without necessitating an involuntary separation of
the child from their parents.120 States should be required to document how they
tried and failed at treatment. Local variations in both ability and motivation to
treat a family’s identified circumstances of removal contributes to the
dispersion in removal rates across jurisdictions.121
2. States interpret and report circumstance of removal data inconsistently.

Another limitation relates to the inconsistency across states in reporting
circumstances for removal data. For example, a single state, Texas, accounted
for nearly half (47.3%) of the 4,281 removals nationally that included child
disability as a circumstance of removal.122 It is hard to imagine Texas is
experiencing a crisis with respect to cases of children with disabilities not
receiving minimally adequate parental care.
Such interpretations, however, are not uncommon. Consider the opioid
epidemic in the United States.123 While this nation is facing a growing problem
with opioid dependency that will certainly have implications for children and
families, it is short-sighted to suggest a causal relationship between the
increasing number of children in foster care and the increase in opioid abuse.
Inferring a causal relationship is speculative at best, and indirectly puts forth an
imprudent suggestion of foster care serving as the go-to treatment for parental
opioid abuse.124
Yet, such an inference is well-documented in coverage of Indiana’s foster
care system.125 Caretaker drug or alcohol abuse is increasingly reported as a
120. See Charlow, supra note 8, at 785–86, 788.

123. See, e.g., What Is the U.S. Opioid Epidemic?, U.S. DEP’T OF HEALTH & HUMAN SERVS.,
https://www.hhs.gov/opioids/about-the-epidemic/index.html [https://perma.cc/9Z62-CE3X] (last
visited Mar. 6, 2018).
124. See Decisions Related to the Development of a Clearinghouse of Evidence-Based Practice
in Accordance with the Family First Prevention Services Act of 2018, 83 Fed. Reg. 29,122, 29,123
(June 22, 2018) (proposing limits of development of evidence-based services to only three types of
maltreatment—substance use, mental health, and parental training—with no evidence offered that
these are the predominant conditions leading to removal).
125. See, e.g., Data: Opioid Epidemic Driving More Children into Foster Care, ASSOCIATED
PRESS (Feb. 5, 2018), https://apnews.com/87e412e7563c4ed691734ca82a10293f
[https://perma.cc/Z2HG-5QST]; Opioid Crisis Strains Indiana Foster System as Kids Removed from
Homes, FOX 59 (Dec. 12, 2017), https://fox59.com/2017/12/12/opioid-crisis-strains-indiana-foster-
system-as-kids-removed-from-homes [https://perma.cc/DUA6-7QMC].
circumstance for removal, currently implicated in 64% of cases, the fourth most
across states.126 The narrative of the data is irresistible: the opioid epidemic is
behind the state’s considerable increase in removals and number of children in
foster care.127 Contrast these data with neighboring Ohio’s foster care
dynamics, which are much more stable. In Ohio, there are far fewer removals
for caretaker drug or alcohol abuse (32% compared to 39% nationwide) and a
relatively steady number of children in care.128 Yet Ohio has the nation’s
second highest rate of fatalities due to opioid overdoses.129 Despite being
similarly affected by the opioid crisis, why does Indiana remove far more
children than Ohio?
States also report removal data inconsistently because each state has
different circumstances of removal categories. While each state must
ultimately report in AFCARS the child and family circumstances of removal
data pursuant to federal regulations,130 state data systems initially capture child
and family circumstances of removal pursuant to state law and agency policies.
State data systems and AFCARS data elements do not always line up one-to-
one. Consider South Carolina, where the state agency reported the fourth most
common reason for removal as family instability.131 There is no federal
guidance on mapping various state removal reasons, such as family instability
that have no clear counterpart in federal regulations, to the state’s AFCARS
submissions. This contributes to inconsistencies in reporting across states.
Circumstances of removal data are far from absolute truth, despite the
temptation to call upon them when they fit a desired or compelling narrative.
3. Circumstances of removal data fail in specificity and vagueness.

The interrelatedness of circumstances of removal definitions limit the child
welfare system’s ability to understand why children enter foster care. Neglect
is perhaps the least specific circumstances of removal data field. While neglect
127. See, e.g., Teresa Wiltz, Drug-Addiction Epidemic Creates Crisis in Foster Care,
STATELINE (Oct. 7, 2016), http://www.pewtrusts.org/en/research-and-
analysis/blogs/stateline/2016/10/07/drug-addiction-epidemic-creates-crisis-in-foster-care
[https://perma.cc/B6Q2-NBBP].
129. See, e.g., Drug Overdose Deaths, CTRS. FOR DISEASE CONTROL & PREVENTION,
www.cdc.gov/drugoverdose/data/statedeaths.html [https://perma.cc/H54G-L3HW] (last updated Dec.
19, 2018).
130. 45 C.F.R. § 1355.43(b) (2016).
131. S.C. DEP’T OF SOC. SERVS., REASONS YOUTH ENTERED FOSTER CARE DURING SFY 2017
(Aug. 1, 2017), https://dss.sc.gov/media/1579/reasons-that-children-entered-foster-care-rev.xlsx
[https://perma.cc/PN3R-9P6U].
is certainly intended to capture many typologies of neglect, including medical

neglect,132 there are circumstances of removal data elements outside of neglect
that would better classify when a child needs to be removed to foster care due
to medical neglect. For example, there are many instances when the
circumstance of removal for child disability would qualify as medical neglect,
defined in federal regulation as the “failure to provide for the appropriate health
care of the child by a person who is responsible for the child’s welfare, although
the person was financially able to do so, or was offered financial or other means
to do so.”133 Where does medical neglect fit as a circumstance of removal:
neglect, child disability, both? Federal regulations and technical bulletins fail
to answer this question. The same is true for other circumstances of removal,
where the most common of case scenarios fit within multiple circumstances of
removal categories.
Without rigorous guidance on how to report the circumstances of removal
across even the most common of scenarios, data designed to track why children
enter foster care will fail to answer the important question of why children enter
foster care.
4. Circumstances of removal data are biased towards observable parental

deficits at the time of removal.
Finally, the regulations require these data to reflect the circumstances at
removal, without the benefit of hindsight.134 The decision to remove is often
made in an emergency situation,135 where the totality of circumstances
surrounding the family’s strengths and vulnerabilities is unclear. These data
capture the child welfare professional’s impressions of the family’s weaknesses
at the time of removal, with no requirement to balance that narrative with
observable data concerning a family’s protective capacities.136 Once an
emergency removal is effectuated, there will certainly be a more thorough
investigation accompanied by more formal assessments, all of which unearth
child and parent circumstances—both protective capacities and
vulnerabilities—that were present at the time of the removal, yet unknown to
the professionals effectuating that removal. A child exposed to domestic
violence may also be the victim of physical violence, yet that violence may go
132. 45 C.F.R. § 1355.44(d)(6)(vii).

133. Id.; see also AFCARS TECHNICAL BULLETIN #1, supra note 109, at 8.
134. 45 C.F.R. § 1355.44(d)(6) (emphasis added).
135. See Charlow, supra note 8, at 783.
136. See 45 C.F.R. § 1355.44(d)(6).
undetected until an evaluation is completed. Such additional information is not

reported or identifiable in federal administrative data.
Although a cornerstone of federal law, circumstances of removal data also
fail to capture any information concerning the agency’s efforts to prevent
removal, despite the fact that such efforts are clearly observable.137 This
fundamentally misguided data design belies a misguided goal of federal data
collection: to document evidence of a parent’s failings and deficits.138 The basis
for federal data collection is to document information related to federal
spending on, among other priorities, efforts to prevent removal, none of which
are recorded in the data.
The circumstances of removal data are unreliable and disoriented. If
knowing why children enter foster care is important, then states should be
required to report clearly on why children enter foster care. If knowing whether
a state first made efforts to treat the circumstances of removal is important,
states should be required to report on those efforts. Until then, circumstances
of removal data’s only use should be a constant reminder of how little we know
about why children are separated from their parents and placed in foster care,
and what the state agency did to prevent such a removal. Preventing the
unnecessary removal and placement of children in foster care is a core value of
the United States foster care system.139 Requiring states to make reasonable
efforts to prevent removal to foster care is a core value of the United States
justice system.140 The inability to meaningfully report on why children enter
foster care and why states failed to prevent those removals represents the
epitome of failure in measuring our values.
C. A proxy for unnecessary removals: quick discharges raise questions about

the necessity of the removal and reasonable efforts to prevent the removal
Preventing unnecessary foster care placements reflects the foster care
system’s respect for parents’ fundamental right to family integrity. While
administrative data cannot directly answer whether a child should have been
removed to foster care, a proxy measure is the number of children that enter
and exit foster care rather quickly. These removals beg the question of whether
a child needed to be removed in the first place. What imminent safety threat
was addressed during the child’s brief stay in foster care that could not have
been addressed through appropriate preventative services?
137. See id.

138. See id.
139. See 42 U.S.C. § 671(a)(15) (2019).
140. See id.
During the 2017 FFY, nearly one out of every ten children removed were
discharged from foster care within thirty days of their removal.141 Most of these
children spent a week or less in foster care (56.7%) in an unfamiliar placement
(67.8%).142 Almost all (90.5%) of these children were discharged to a family
member, with the bulk (73.9%) returned to the same caretaker from whom they
were removed.143 These data have been relatively stable over time.144 During
the 2017 FFY, twenty-six states discharged more than one out of every ten
children they removed within thirty days of their removal.145 Figure 2
represents the percent of children that were discharged within thirty days of
their removal, by state. There are a non-trivial number of children in a non-
trivial number of states that enter and exit foster care rather quickly.
142. Id.
143. Id.
144. Id.; AFCARS Files, supra note 4, FFY 2009–2017 (analysis on file with author); see also
Sankaran & Church, supra note 52, at 217–18.
Figure 2: Children Discharged Within 30 Days of Removal, 2017 FFY146
At the most extreme is New Mexico, where 42% of children removed spent
less than thirty days in foster care.147 Yet even the thirty-day timeframe hides
the true narrative of what is happening on the front lines of child welfare. In
New Mexico, 45% of children removed—more than one out of every three
children in its foster care system—spent less than three days in foster care.148
These data may hold our best hope for quantifying how many children are
unnecessarily involuntarily separated from their parents for purposes of
placement in foster care.149
Our system should continuously calibrate its removal process to ensure no
child unnecessarily passes through our foster care system. Yet year after year,
roughly one in ten children removed exit foster care within thirty days.150 These
146. Id.
147. Id.
148. Id.
149. See Sankaran & Church, supra note 52, at 217–18.
removals, some of which are certainly preventable, seem undetected. Perhaps

this is due to the federal government’s practice of censoring them from
important federal monitoring efforts.151 Rather than censor these children’s
foster care episode, the federal government should shine a light on their
experience as an opportunity to address whether local jurisdictions have a
deliberate and robust removal process. Whether it is one out of every three
children, or one out of every ten children, an unnecessary removal to foster care
represents the nadir of government overreaching, directly harming children and
their parents.
D. The weekdays when children are removed undermine the narrative that
removals are emergencies requiring ex-parte judicial authorization
Child removal is often characterized as a chaotic experience, where child
welfare staff are making real-time decisions in emergency situations. While
this aligns with many of the experiences of the authors, there is a more troubling
narrative revealed by examining precisely when children are removed to foster
care. Utilizing removal data from eighteen states—representing more than 237
aggregate years between 2000 and 2017—most (approx. 93%) removals occur
during the business week (Monday through Friday), with a very small
percentage (approx. 7%) of removals occurring over the weekend.152
151. See Statewide Data Indicators and National Standards for Child and Family Services
Reviews, 79 Fed. Reg. 61,241, 61,244 (Permanency Performance Area 1), 61,245 (Permanency
Performance Area 4), 61,246 (Proposed Permanency Performance Area 4) (Oct. 10, 2014) (to be
codified at 45 C.F.R. pt. 1355); see also Child Well-being Data Portal: Entering Out-of-Home Care
(Rate), PARTNERS FOR OUR CHILD., http://pocdata.org/visualizations/ooh-entry-rates
[https://perma.cc/V2VW-FWGX] (last visited Aug. 13, 2018) (an organization using administrative
data to “promote[] access to and understanding of child welfare” encouraging users to “exclude short
episodes”).
152. Fostering Court Improvement, (2000–2017 FFY) (analysis on file with author).
Figure 3: Removals to Foster Care by Day of the Week of Removal153
There may be several reasons why children are not removed over the
weekend at a rate consistent with weekday removals. Children may have less
exposure to, or interaction with, mandated reporters over the weekend. Child
welfare agencies may be understaffed on the weekends as compared to the
weekdays. Of course, these explain characteristics of the state reporting
systems unrelated to child safety. It is very unlikely that children are not
removed on weekends because they are somehow safer on weekends, somehow
less at risk of imminent harm on days when most children spend greater
amounts of time with adult family members, the very persons who are often
identified as the primary perpetrators of child abuse.154
How do these data line up with our narrative that most removals arise out
of emergency situations, where the risk of harm to the child eclipses a family’s
fundamental right to due process? These data suggest the opposite: delaying
the removal decision to allow for due process may not increase the risk of harm
to the child. Perhaps our system’s reliance on ex parte removal orders is
exaggerated and, instead, full court hearings could be convened more routinely
to determine whether a child, in fact, must be involuntarily separated from their
parents. The troubling aspect of these data is self-evident: removals may have
153. Id.
154. AFCARS Files, supra note 4, FFY 2009–2017 (analysis on file with author).
little to do with child safety, and more to do with the convenience of the system
created to treat it.
Removal standards, policies, and practices should continuously be
calibrated to ensure the only children that enter foster care are those that
unequivocally require such a drastic safety intervention. Whenever data,
practices, or observations of child welfare professionals call into question the
sensitivity or specificity of the removal process, recalibration should occur.
Otherwise, children may unnecessarily enter foster care, subjecting children
and their parents to harm, grief, and loss at the hands of well-meaning state
officials. Although removal undoubtedly saves many children from serious,
imminent harm, it just as certainly irreparably damages others.
V. NEXT STEPS: RECOMMENDATIONS FOR REFORM

The Article has established the case for why child welfare professionals
should be alarmed about the process by which children are removed from their
parents and placed in foster care. The first Section detailed the profound trauma
removal inflicts on children and their parents. The next Section raised serious
concerns about how carefully the judicial system is overseeing the removal
process, thereby increasing the likelihood that children are needlessly entering
foster care. The last Section detailed the haphazard nature of the removal
process, revealing the fact that far too many children are likely unnecessarily
removed from their parents. At the very least, child welfare systems must
prioritize a conversation about how to address these disturbing dynamics.
But systems must do more. The following recommendations are intended
to highlight some of the steps the authors believe are necessary to ensure
removal is truly a safety intervention of last resort. This list is offered as a
starting point, not an exhaustive summary of interventions. In other words,
these recommendations are initial steps to create a child welfare system that
seeks to prevent children from unnecessarily experiencing trauma and removal
from their parent(s).
● Only government agents—like child protective service
workers and police officers—can remove children from
their parents without a court order. Additionally, all public
officials empowered to remove children must receive
training in the legal standard required to remove, the legal
rights of families, the trauma experienced by children and
parents during the removal, and how to mitigate that
trauma when removal is necessary.
● Government officials can only remove a child—without a
court order—upon evidence that: (1) the child is in
imminent and substantial risk of harm to her life, physical
health, or mental well-being; (2) no service or other

arrangement except removal of the child is reasonably
available to adequately safeguard the child from harm,
and; (3) there is insufficient time to obtain a court order
authorizing the removal.
● Juvenile courts—absent a full contested hearing—can only
issue an ex parte removal order upon a showing that:
(1) the child is in imminent and substantial risk of harm to
her life, physical health, or mental well-being; (2) no
service or other arrangement except removal of the child is
reasonably available to adequately safeguard the child
from harm; and (3) the child will suffer irreparable harm if
a contested hearing is held prior to the removal. Courts
must only issue these orders when absolutely necessary to
immediately protect a child.
● When an emergency removal occurs, the court must
convene a hearing to review the decision no later than
twenty-four hours after that removal. At that removal
hearing, the court must provide the parent with an attorney
and must give that attorney the opportunity to challenge
the lawfulness of the removal.
● Jurisdictions should explore providing parents with the
assistance of counsel during the investigation process,
similar to the model pioneered by the Detroit Center for
Family Advocacy.155 Providing parents with attorneys
during this stage can reduce the need for a removal by
addressing collateral legal matters that are adding stress to
an already fragile family. State child welfare agencies
should be able to include funding for this prevention
service in their state plan, and accordingly, be reimbursed
under their federal Title IV-E cost allocation plan
according to their Title IV-E rate.156
● At the initial or preliminary hearing in which the court
must determine whether the child was lawfully removed
(and needs to remain in care), the court should utilize
bench cards, summarizing the laws of the state, to ensure
155. U.S. DEP’T OF HEALTH AND HUMAN SERVS., ACYF-CB-IM-18-05, RESHAPING CHILD
WELFARE IN THE U.S. TO FOCUS ON STRENGTHENING FAMILIES THROUGH PRIMARY PREVENTION OF
CHILD MALTREATMENT AND UNNECESSARY PARENT–CHILD SEPARATION 19–20 (Nov. 16, 2018).
156. For more information about the merits of providing parents with a lawyer before the child
is removed, see Vivek Sankaran, Using Preventive Legal Advocacy to Keep Children from Entering
Foster Care, 40 WM. MITCHELL L. REV. 1036, 1037–38 (2014).
that it is making all of the appropriate inquiries. A study

by the National Council of Juvenile and Family Court
Judges revealed that children were far more likely to return
home at the initial removal hearing when judges used
bench cards to thoroughly understand the case.157
● Parents and children should have an immediate right to
appeal a removal order in an expedited process. The
District of Columbia provides an excellent model. The law
allows children to appeal removal orders within two days
of the court’s decision.158 Within three days of the appeal’s
filing, the Court of Appeals must hear oral argument on the
issue.159 The Court must then issue its decision within a
day of the oral argument.160 This type of expedited process
will provide a necessary check on trial courts to ensure that
they are fulfilling their legal obligation to avoid
unnecessary trauma to children and their parents and
oversee the removal process.
● The federal government should develop more specific data
fields in AFCARS to capture the reasons for and efforts to
prevent a child’s removal and should require jurisdictions
to distinguish whether removals were emergency removals
or authorized under an ex parte court order prior to the
apprehension transaction.
● Juvenile courts and child welfare agencies should convene
intra-agency workgroups to review each case in which a
child who is removed returns home within thirty days.
These groups should examine why the removal happened
and what services could have been implemented to prevent
the short-term removal.
VI. CONCLUSION
The sanctity of the family is one of this nation’s core fundamental
principles. While our government has a responsibility to ensure that each child
is safe and free from harm, it has a commensurate responsibility to ensure that
it does not unnecessarily inflict harm on children by taking them from their
157. See NAT’L COUNSEL OF FAMILY AND JUVENILE COURT JUDGES, RIGHT FROM THE START:
THE CCC PRELIMINARY PROTECTIVE HEARING BENCHCARD STUDY REPORT 1, 3 (2011),
https://www.ncjfcj.org/sites/default/files/CCC%20Benchcard%20Study%20Report.pdf
[https://perma.cc/DKC4-99CR].
158. D.C. CODE Ann. § 16-2328(a) (West 2019).
159. Id. § 16-2328(b).
160. Id.
parents when no need exists. This Article argues that our child welfare system
may be doing so by institutionalizing a removal process that does not carefully
vet when a child must be removed. As a result, children might be unnecessarily
removed from their parents, resulting in preventable harm at the hands of state
actors.
While suggesting several prescriptive measures to address this dynamic, the
authors believe that stakeholders must first engage in an authentic conversation
on standards of removal in their community. Stakeholders must persuade
themselves that this is a serious enough problem to merit a frank discussion and
a follow-up investigation on what might be occurring in their jurisdiction. But
until stakeholders are persuaded that many more children are better off with
their parents than in foster care, substantive reforms will be difficult—or nearly
impossible—to implement. This might explain why broken systems continue
to inflict harm on children and their parents. Until individual removal decisions
are scrutinized in proportion to the potential for harm they carry, Virgil’s
words—aegrescitque medendo—bring to mind a cure child welfare has
discovered that may be worse than the disease it aims to ameliorate.

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Marquette Law Review

Volume 102 Article 6

A Cure Worse than the Disease? The Impact of Removal on

Follow this and additional works at: https://scholarship.law.marquette.edu/mulr

A CURE WORSE THAN THE DISEASE?

VIVEK SANKARAN,* CHRISTOPHER CHURCH** & MONIQUE MITCHELL***

Removing children from their parents is child welfare’s most drastic

1162 MARQUETTE LAW REVIEW [102:1161

practice recommendations aimed at curbing child welfare’s reliance on

I. INTRODUCTION ........................................................................................ 1163

2019] A CURE WORSE THAN THE DISEASE? 1163

1164 MARQUETTE LAW REVIEW [102:1161

2019] A CURE WORSE THAN THE DISEASE? 1165

protect some children, it is also disproportionately wielded against

II. IMPACT OF REMOVAL ON CHILDREN AND THEIR PARENTS

1166 MARQUETTE LAW REVIEW [102:1161

A. The removal and placement of children in foster care can traumatize

2019] A CURE WORSE THAN THE DISEASE? 1167

dissociation, poor self-regulation and self-concept, cognitive impairment, and

17. See id.

1168 MARQUETTE LAW REVIEW [102:1161

23. Mitchell & Kuczynski, supra note 12, at 440–41.

2019] A CURE WORSE THAN THE DISEASE? 1169

1170 MARQUETTE LAW REVIEW [102:1161

C. There are insufficient practice standards and training for professionals

37. Id. at 184.

2019] A CURE WORSE THAN THE DISEASE? 1171

apprehension transaction.42 Furthermore, many states do not require a trauma-

III. THE CHILD REMOVAL PROCESS

1172 MARQUETTE LAW REVIEW [102:1161

2019] A CURE WORSE THAN THE DISEASE? 1173

56. See id.

1174 MARQUETTE LAW REVIEW [102:1161

In addition to determining who has the authority to remove and which

2019] A CURE WORSE THAN THE DISEASE? 1175

1176 MARQUETTE LAW REVIEW [102:1161

agency] as to the ultimate resolution.”76 Similar statutory frameworks exist in

76. DEL. FAM. CT. R. CIV. PRO. 206(a)–(b) (West 2018).

2019] A CURE WORSE THAN THE DISEASE? 1177

IV. REMOVAL DYNAMICS IN THE FOSTER CARE SYSTEM

A. The Likelihood a Child Enters Foster Care Varies Significantly Across

87. D.C. CODE Ann. § 16-2312(a)(1)(A) (West 2019).

1178 MARQUETTE LAW REVIEW [102:1161

Figure 1: Statistical Dispersion Across States in Average Monthly Removal

2019] A CURE WORSE THAN THE DISEASE? 1179

Child Poverty Avg. Monthly

96. Regional Rankings on Select Performance Indicators, FOSTERING COURT IMPROVEMENT

1180 MARQUETTE LAW REVIEW [102:1161

101. 42 U.S.C. § 671(a)(15) (2019).

2019] A CURE WORSE THAN THE DISEASE? 1181

the federal regulations as an individual or family deficit, for which a parent’s

1. Circumstances of removal data are not well-defined.

1182 MARQUETTE LAW REVIEW [102:1161

Other circumstances of removal fail for their specificity: compare the

115. 45 C.F.R. § 1355.44(d)(6)(vi).

2019] A CURE WORSE THAN THE DISEASE? 1183

removal is truly used as a safety intervention of last resort. Many parental

2. States interpret and report circumstance of removal data inconsistently.

VIVEK SANKARAN,* CHRISTOPHER CHURCH & MONIQUE MITCHELL*