Toward a Public Health Legal Structure for Child Welfare

• Publication year: 2021

92 Nebraska L. Rev. 897. Toward a Public Health Legal Structure for Child Welfare

Toward a Public Health Legal Structure for Child Welfare

Josh Gupta-Kagan(fn*)

ABSTRACT

The present American child welfare system infringes upon the fundamental liberty interests of millions of children and parents, is adversarial and punitive, and fails to prevent child maltreatment or protect children adequately from its most severe forms. Many in the field now recognize that a public health model would more effectively support the parent-child relationship and protect children from maltreatment than the current paradigm. Despite much attention to such an approach, the field has yet to develop a clear vision for how the law could or should support a public health approach or shape the actions of individuals and institutions best suited to lead a public health response. This Article is the first to identify the core legal reforms necessary to shape a public health approach to child welfare.

This Article identifies several legal pillars of the present parental-fault paradigm that impede a public health approach and conceptualizes new laws designed to foster a public health approach. First, mandatory reporting and mandatory investigation laws-requiring professionals to report and child protection agencies to investigate all instances of suspected neglect-inhibit a public health response by imposing a coercive legal regime on an overly broad category of cases and preventing professionals from making more effective interventions for millions of children.

Second, state laws' overly broad definitions of "abuse" and "neglect" expand the range of situations subject to mandatory reporting and mandatory investigations laws and permit coercive interventions to become the dominant means of responding to serious child welfare problems.

Third, the law should separate provision of services to children and families from findings of fault by CPS agencies. In the aggregate, fam-

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ilies involved with CPS agencies have relatively high levels of need and would benefit from services provided as soon as possible. Yet CPS agencies tie services to findings of fault, denying services to many families.

Fourth, federal funding law should cease preferred treatment of foster care and permit greater flexibility to provide a full spectrum of interventions.

Fifth, the law should identify institutions, such as schools, hospitals, and doctors, poised to implement a public health approach and should develop legal reforms to push those institutions to do so.

TABLE OF CONTENTS

I. Introduction .......................................... 898

II. Parental Fault, Public Health, and the Present Child Welfare System's Failures ............................. 903
A. Parental-Fault Paradigm .......................... 903
B. The Present Parental-Fault Paradigm Has Not Succeeded ......................................... 908
C. Public Health Paradigm ........................... 920

III. Limiting the Coercive Intervention by Reforming Reporting and Investigation Laws ..................... 928
A. Mandatory Reporting Statutes ..................... 929
B. Mandatory Investigation Statutes and the Trend Toward Differential Response ...................... 937
C. Specific Reforms ................................... 941

IV. Establishing Narrower Definitions of Abuse and Neglect and More Consistent Standards for the Most Invasive Actions ............................................... 943

V. Legal Reforms to Provide Families Services Regardless of CPS Finding Parental Fault ........................ 947

VI. Reforming Federal Child Welfare Funding to Support a Public Health Approach ............................... 949

VII. Building Institutional Capacity Beyond CPS to Apply a Public Health Approach in Common Fact Patterns ..... 953
A. Building a School-to-Health Pipeline ............... 954
B. Maternity Wards, Physicians, and Prenatal Drug Exposure .......................................... 958

VIII. Conclusion ............................................ 965

I. INTRODUCTION

The present American child welfare system follows a parental-fault paradigm: the system uses legal power to identify and prove bad parenting, then protect children from its consequences. Essential decisions focus on individual events of alleged parental misconduct

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rather than the full context of children's and parents' lives and needs. The law has given this system a tremendously wide scope-whenever there is reasonable suspicion that some parental fault exists, broadly defined, the law triggers coercive state power. The result is a system that infringes upon the fundamental liberty interests of millions of children and parents, costs billions of dollars, is adversarial and punitive, and fails to prevent child maltreatment or protect children adequately from its most severe forms.

Many in the field now recognize that a public health model would provide a more effective means of supporting the parent-child relationship and protecting children from maltreatment than the current paradigm. A public health approach would provide a wider range of interventions to achieve the goal of preventing future maltreatment more effectively. It would label parental fault only when coercive state intervention is necessary to protect children and when less invasive alternatives will not work or have not worked. It would respond to children's evident needs by considering them in their full context-which scholars have rightly identified as crucial to a truly child-centered approach(fn1)-and providing services without waiting to determine parental fault first. Such an approach would better account for the competing constitutional values at stake in child welfare-seeking the most effective protection for children and assistance to families while minimizing government coercion, invasions of core liberty interests, and sanctions.

Still, the field has yet to develop a clear vision for how the law could support a public health approach or shape the actions of individuals and institutions best suited to lead a public health response. This Article seeks to fill that void and identify the core legal reforms necessary to shape a public health approach to child welfare. It identifies several legal pillars of the present parental-fault paradigm that impede a public health approach and conceptualizes new laws designed to foster a public health approach across a range of entities.

First, a set of laws that have structured the existing American child protection system-in particular, mandatory reporting and mandatory investigation laws-inhibit a public health response by imposing a coercive legal regime on an overly broad category of cases.(fn2) When a professional is concerned about a family, the law directs that professional to call in the concern to child protection agencies and instructs those agencies to investigate whether a parent is at fault. Mandatory reporting statutes have become canonical in the United States, but other developed countries protect children without them. Child welfare experts from competing perspectives have offered robust

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criticisms of these laws, which overwhelm child protective services (CPS)(fn3) agencies with large numbers of relatively minor allegations and make it harder for those agencies to protect children from the most severe maltreatment.(fn4) A public health perspective adds a new critique: many mandatory reporters are best suited to coordinate a public health response for the more than three million American children annually reported to CPS agencies,(fn5) but they do not do so because mandatory reporting laws instruct them to call CPS and then let CPS handle the situation.

Mandatory investigation statutes-which require CPS agencies to investigate every allegation of child abuse or neglect-cause CPS agencies to invade the privacy of children and parents through coercive and adversarial investigations. Scholars have begun to recognize how these investigations violate children's and parents' Fourth Amendment rights and are themselves harmful to children.(fn6) When these investigations lead agencies to determine that a parent has neglected a child, agencies then place parents' names on child protection registries. This sanction often succeeds only in limiting parents' job prospects and thus their children's economic futures. Perhaps most importantly, mandatory CPS investigations have been shown to miss opportunities to prevent child abuse or neglect because they try to find parental fault, not provide effective interventions.(fn7)

Although mandatory investigations remain the norm, they have begun to fall into disfavor, as a growing number of CPS agencies apply "differential response" approaches. These agencies triage less severe allegations and offer voluntary services to affected families without an investigation and without placing parents on a registry. Child protection investigators are then freed to focus on more severe allegations and can more effectively protect children from the worst forms of abuse and neglect. While a significant step forward, differential response involves implicit warnings that CPS will impose sanctions on families that do not comply with services, a level of coercion that may be unnecessary. It still centralizes interventions in CPS agencies, without fully involving individuals and institutions best suited to provide a public health response.

Second, state laws' definition of "abuse" and...