Chapter 4 Challenging the Removal of Children

• Library: Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.)

CHAPTER 4 Challenging the Removal of Children

Lauren Shapiro

4.01 Introduction

Perhaps the most important court decision made at the outset of a child protection case is whether to remove a child from his or her home or whether to approve a removal if one has been made extrajudicially. If counsel is able to prevent the child's removal, the risk of a parent losing parental rights is sharply reduced. But, particularly since the passage of the Adoption and Safe Families Act in 1997, Public Law 105-89, when children are placed in foster care, there is a substantial risk that the final outcome will be termination of parental rights. See Paul Chill, Burden of Proof Begone: The Pernicious Effect of Emergency Removal in Child Protective Proceedings, 42 Fam. Ct. Rev. 540 (2003).

With this much at stake, there is a good deal that parent's counsel must do. The good news is that there are important constitutional, federal, and state statutory and regulatory provisions upon which counsel may rely when challenging a removal. Even when counsel is unable to prevent removal, counsel can try to advocate for a placement that the parent wants, such as with family members. That question is second in importance to preventing removal altogether.

This does not mean it is strategically wise in every case to challenge removal. When there are no grounds for such a challenge, it will rarely be wise to raise one. But things can change during the pendency of the case, and counsel should take steps to ensure that the decision not to challenge the removal immediately does not waive the right to make such a challenge when circumstances change. In some states, there is a non-waivable statutory right to challenge a child's foster care placement at any time before the adjudicatory hearing. See, e.g., N.Y. Fam. Ct. Act § 1028 (2013). In all cases, there is a strong constitutional argument that a parent has the right to challenge the child's continuing foster care placement at any time upon a showing of changed circumstances.

This chapter examines the grounds upon which the state may remove children from their parents' care without prior court authorization, the constitutional issues involved in these removals, the statutory rights accorded parents to challenge an Agency's efforts to place a child in foster care over parental objection, and various strategic decisions to consider when representing a parent whose child has been placed into foster care.

4.02 Grounds for Emergency Removal of Children from Their Parents' Care

Most state statutes authorize local child protective agencies to remove children from their homes in emergency circumstances before going to court. In some states, statutes carefully set forth the grounds upon which children may be removed from their families and the circumstances under which they may do so without prior judicial approval. In New York, for example, removals without prior court approval are lawful only when there is reasonable cause to believe that the failure to remove the child would create an imminent risk to the child's life or health and there is not enough time to seek a court order without subjecting the child to such risk. See N.Y. Fam. Ct. Act § 1024 (2014). Many states have comparable rules. See, e.g., Ark. Code Ann. § 9-27-313(a)(1)(c) (2014) (extrajudicial removals are permissible only when the child is in "immediate danger," "removal is necessary to prevent serious harm," and "there is not time to petition for and to obtain an order of the court prior to taking the juvenile into custody"); Mo. Ann. Stat. § 210.125.2 (2014) (extrajudicial removal authorized where "imminent danger" and "reasonable cause to believe the harm or threat to life may occur before a juvenile court could issue a temporary protective custody order or before a juvenile officer could take the child into protective custody").

In many states, however, statutes that authorize police officers and child protective caseworkers to take children into protective custody without prior judicial approval contain considerably more open-ended language. For example, Oregon merely requires a caseworker's conclusion that "the child's condition or surroundings reasonably appear to be such as to jeopardize the child's welfare." Or. Rev. Stat. Ann. § 419B.150(1)(a) (2014).

4.02(a) Constitutional Issues Involving Emergency Removals

The Supreme Court has never decided a case involving the legality of a child's removal without a court order for protection purposes. Federal courts are divided on whether the Constitution ordinarily requires judicial approval, unless exceptional circumstances justify forgoing such approval. At least three circuits, the Second, Ninth, and Tenth, have held that, in the absence of special justification, state officials act illegally when they remove children from their parents' care without a court order. In these circuits, "exigent circumstances" are required for non-judicially approved removals to be lawful. See Roska v. Peterson, 328 F.3d 1230, 1246 (10th Cir. 2003); Mabe v. San Bernardino Cty. Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001); Tenenbaum v. Williams, 193 F.3d 581, 594 (2d Cir. 1999). The First and Eleventh Circuits have held that the Constitution allows for special rules when officials seek to protect children from neglect or abuse. In these circuits, it is lawful to remove children without securing judicial approval, even when there would have been time to do so. See Doe v. Kearney, 329 F.3d 1286, 1296 (11th Cir. 2003); Tower v. Leslie-Brown, 326 F.3d 290, 299 (1st Cir. 2003). Other circuits have discussed the issue but have not made a definitive ruling on the question. See, e.g., Brokaw v. Mercer Cty., 235 F.3d 1000 (7th Cir. 2000); Weller v. Dep't of Soc. Servs. for Baltimore, 901 F.2d 387 (4th Cir. 1990).

Even if the Constitution prefers judicial approval for the removal of children, all courts recognize the state's strong interest in protecting children from abuse and, therefore, allow officials to take children into custody without a court order in "emergency circumstances." But courts more insistent on traditional application of Fourth Amendment principles have held that when "the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization . . . there is no reason to excuse the absence of the judiciary's participation in depriving the parents of the care . . . of their child." See Tenenbaum, 193 F.3d at 594. See also Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir. 2012).

If counsel practices in a jurisdiction in which children are routinely removed from families without court orders, counsel should consider meeting with local authorities to alert them to the risks associated with continuing unconstitutional practices. A few years ago, lawyers who represent parents in New York City were able to persuade local child welfare officials to change their removal practice. In New York City, family defense is a relatively new field. In 2007, the city agreed to fund institutional providers that employed lawyers, social workers, and parent advocates to represent parents in child welfare proceedings. Lawyers in these new offices noticed that New York City child welfare officials routinely removed children from homes, schools, and hospitals in non-emergency situations without seeking prior judicial approval even when there was time to do so. These actions were plainly illegal under state law and controlling precedent in the United States Court of Appeals for the Second Circuit. In 2011, several of these new offices met with local officials and threatened to sue them unless they agreed to change their practice. The advocates brought with them numerous case examples in which children were removed without a court order, only to be returned to their homes after immediate judicial review at emergency hearings. This practice caused children the unnecessary harm of being removed from their families, which would have been prevented had the Agency sought judicial approval prior to removal.

In response, child welfare officials agreed to issue a new protocol for conducting removals without a court order and to train its entire workforce on the protocol. The revised procedure permits removal without a court order only when "the imminent danger to the child's life or health is so immediate that leaving the child with the parent while obtaining a court order will likely result in immediate harm to the child and there is no other safety intervention available." See N.Y.C. Admin. for Children's Servs., Conducting Emergency Removals, Policy #2011/01 (2011).

In addition to addressing when to remove children without prior judicial authorization, the New York City policy also clarified when removals should be sought in the first place. The policy states that removals "should never be based solely on the parents' failure to effectively engage with services unless there is a clear link between the parent's behavior and immediate danger to the child. The critical focus in assessing the need for a removal is always whether the child is in immediate danger." See id. This informal advocacy has helped reduce the number of emergency removals without prior authorization.

Whether parents live in states with a large or small number of constitutional protections, a parent's remedy for a constitutionally illegal seizure of one's child is limited to a damages action in federal court pursuant to 42 U.S.C. § 1983 (2014). Counsel should contact local civil liberties groups and law offices that seek damages in federal court for constitutional violations to challenge illegal removals through damages actions. If these removals do not violate state law, counsel should consider advocating for legislative change. At present, parents are unable to challenge a removal in juvenile court on the grounds that it was unconstitutional because the Agency did not first seek court...