Martinis, Manhattans, and Maltreatment Investigations: When Safety Plans Are a False Choice and What Procedural Protections Parents Are Due

• Author: Ryan C. F. Shellady
• Position: J.D. Candidate, The University of Iowa College of Law, 2019; B.A., The University of Iowa, 2016
• Pages: 1613-1648

1613

Martinis, Manhattans, and Maltreatment

Investigations: When Safety Plans Are a

False Choice and What Procedural

Protections Parents Are Due

Ryan C. F. Shellady*

ABSTRACT: Over the last two decades, states have increasingly adopted

differential response approaches as a supplement or alternative to child

maltreatment investigations. This trend reflects growing concerns regarding

the short-comings of traditional, adversarial approaches. Some critics believe

traditional approaches overemphasize the role of parental fault. In response

to these criticisms, a new investigatory tool was born: the safety plan. Safety

plans borrow aspects from both differential response and traditional

approaches. The plans are meant to be collaborative resolutions that alleviate

immediate dangers identified during an investigator’s initial maltreatment

safety assessment while simultaneously allowing a traditional adversarial

investigation to continue. Ideally, safety plans minimize the need for

emergency, ex parte child removals at the outset of a maltreatment

investigation. If, however, investigators abuse safety plans, then, the plans

can deprive parents of fundamental liberty interests without any procedural

due process protections. When investigators give parents an ultimatum—sign

this plan, or I will remove your child—it should trigger due process

protections. Unfortunately, current case law says otherwise. This Note first

deconstructs the Seventh Circuit’s opinion in Dupuy v. Samuels to establish

why due process protections are necessarily triggered when child protection

investigators offer safety plans. Next, this Note examines states’ varying safety

plan frameworks to identify what, if any, protections exist for parents

*

J.D. Candidate, The University of Iowa College of Law, 2019; B.A., The University of

Iowa, 2016. Thank you to Diane Redleaf, Sara Gilloon, and the Family Defense Center staff for

giving me direction and support on this project. Thank you to the University of Michigan Child

Advocacy Law Clinic and the Bergstrom Fellowship staff for providing tools and opportunities

without which this project could not have come to fruition. Thank you to Professors Paul Gowder,

Sacha Coupet, Vivek Sankaran, and Michael Bandstra, and to Carolyn Kubitschek for taking time

out of their schedules to offer their support and guidance. Thank you to my fiancée, Victoria, for

putting up with me. Lastly, thank you to Ghost Dog—you know who you are. The views and

opinions in this Note are those of the author and do not necessarily reflect the express views of

the Family Defense Center or of Latham & Watkins, LLP.

1614 IOWA LAW REVIEW [Vol. 104:1613

subjected to a safety plan. Finally, this Note encourages a new legislative

regime that requires the least restrictive solution available, extends procedural

rights to parents subjected to a safety plan, and encourages data collection

quantifying annual use of safety plans around the country.

I.INTRODUCTION ........................................................................... 1615

II.BACKGROUND ............................................................................. 1617

A.CONSTITUTIONALLY PROTECTED FAMILIAL INTERESTS ............ 1620

B.DUTIES OF STATE AGENCIES AND LEGAL PRESUMPTIONS .......... 1623

C.SAFETY PLANS AND HOW THEY FIT INTO THE CHILD

WELFARE SYSTEM .................................................................. 1624

III.FAILURES OF THE SAFETY PLAN SYSTEM ...................................... 1626

A.CROFT, DUPUY, AND FALSE VOLUNTARINESS ......................... 1627

1.Investigator Lacks Removal Authority; Parent

Refuses Safety Plan ...................................................... 1631

2.Investigator Lacks Removal Authority; Parent

Agrees to Safety Plan ................................................... 1631

3.Investigator Has Removal Authority; Parent

Refuses Safety Plan ...................................................... 1632

4.Investigator Has Removal Authority; Parent

Agrees to Safety Plan ................................................... 1632

IV.VARIED STATE APPROACHES AND DUE PROCESS

IMPLICATIONS ............................................................................. 1634

A.DUE PROCESS ........................................................................ 1634

B.THE ILLINOIS APPROACH ....................................................... 1636

C.THE ARIZONA APPROACH ...................................................... 1638

D.THE LOUISIANA APPROACH ................................................... 1640

V.THE IDEAL APPROACH: A LEGISLATIVE FRAMEWORK

EXTENDING PROCEDURAL PROTECTIONS TO SAFETY PLANS ....... 1641

A.THE INITIAL SAFETY DECISION: REQUIRING THE LEAST

RESTRICTIVE SOLUTION ......................................................... 1641

1.Is There Time to Obtain a Court Order? .................. 1641

2.Is an In-home Safety Plan Sufficient and

Appropriate? ................................................................ 1642

3.Offer an Out-of-home Safety Plan.............................. 1643

4.Executing an Emergency Removal ............................ 1644

B.PROVIDING NOTICE ............................................................... 1644

C.OPPORTUNITY TO BE HEARD ................................................. 1646

D.POST-HEARING PROCESS ........................................................ 1647

E.EFFECTUATING THIS SYSTEM ................................................. 1647

2019] WHAT PROCEDURAL PROTECTIONS PARENTS ARE DUE 1615

F.DATA COLLECTION ................................................................ 1648

VI.CONCLUSION .............................................................................. 1648

“[V]nitatem in neceſſarijs, in non neceſſarijs libertatem, in omnibus

caritatem.” – Marco Antonio de Dominis, 16171

I. INTRODUCTION

Few principles are more apt for child welfare law—and indeed all of the

law— than De Dominis’s 17th century observation. His words roughly

translate to “In necessary things unity, in uncertain things liberty, in all things

love.” How precisely does one strike a balance between two competing,

equally indispensable principles? Unfortunately, there is no easy answer; yet,

this is precisely the challenge facing child welfare workers, attorneys, judges,

and state legislators every day. “Under the . . . [parens patriae doctrine], the

state has an obligation to ensure the safety and well-being of children.”2 The

federal government also provides funding to states to support “prevention,

assessment, investigation, prosecution, and treatment” services relating to

child welfare.3 Despite this obligation, a parent’s right to “the care, custody,

and control of their children[] is perhaps the oldest of the fundamental

liberty interests recognized by th[e] [U.S. Supreme] Court.”4 Undoubtedly,

there are circumstances where children must be removed from their homes.5

1. MARCO ANTONIO DE DOMINIS, DE REPUBLICA ECCLESIA STICA, LIBRI X., 676 (1617).

Marco Antonio de Dominis was a Dalmatian Ecclesiastic with a controversial history of criticizin g

the Catholic Church. See Marco Antonio de Dominis, CATH. ANSWERS, https://www.catholic.com/

encyclopedia/marco-antonio-de-dominis (last visited Dec. 22, 2018).

2. Kay P. Kindred, God Bless the Child: Poor Children, Parens Patriae, and a State Obligation to

Provide Assistance, 57 OHIO ST. L.J. 519, 521 (1996). Parens patriae translates to “parent of his or

her country.” Parens Patriae, BLACK’S LAW DICTIONARY (10th ed. 2014). The doctrine gives the

state the power to protect those people who would otherwise be unable to protect themselves. See

id. This doctrine is discussed thoroughly in child welfare because children are a parens patriae

class of protected persons.

3. CHILDREN’S BUREAU: CHILD WELFARE INFO. GATEWAY, FACTSHEET—ABOUT CAPTA: A

LEGISLATIVE HISTORY 1 (2017), https://www.childwelfare.gov/pubPDFs/about.pdf.

4. Troxel v. Granville, 530 U.S. 57, 65 (2000).

5. See, e.g., Christine Clarridge & Sonia Krishnan, Carnation Couple Charged in “Worst Case”

Child Abuse of Teen Daughter, SEATTLE TIMES (Oct. 13, 2008, 7:41 PM), https://www.seattletimes.com/

seattle-news/carnation-couple-charged-in-worst-case-child-abuse-of-teen-daughter (discussing a case

where police found a 14-year-old girl so malnourished she weighed only 48 pounds); Kristine

Phillips, Parents of Skeletal, Infected Infant Twins Arrested in ‘Worst C ase of Child Abuse,’ WASH. POST

(Dec. 15, 2016), https://www.washingtonpost.com/news/true-crime/wp/2016/12/15/parents-

of-skeletal-infected-nine-month -old-babies-arrested-in-worst- case-of-child-abuse (describing a c ase

where two nine-month-old infant children were extremely malnourished, had various infections,

severe rashes, and bedsores); Michael P. Rellahan, Ex-Phoenixville Sentenced for ‘Worst’ Child Sexual

Abuse Case in Chesco, DEL. CTY. DAILY TIMES (June 18, 2015), http://www.delcotimes.com/genera l-

news/20150617/ex-phoenixville-sentenced-for-worst-child-sexual-abuse-case-in-chesco (recount ing