By Eli Hager / ProPublica
Every year, child protective services agencies across the nation investigate the family lives of roughly 3.5 million children, or about 1 out of every 20 American kids.
In these cases, government officials frequently accuse parents of wrongdoing. They enter homes to conduct searches and interrogations, and what they find can be used against the parent by a state attorney in court. And the accused will face punishment — including, often, having their children removed from them indefinitely.
Child welfare cases, that is, operate a lot like criminal ones.
Yet the mostly low-income families who are ensnared in this vast system have few of the rights that protect Americans when it is police who are investigating them, according to dozens of interviews with constitutional lawyers, defense attorneys, family court judges, CPS caseworkers and parents.
“You get more due process protections when facing a couple months in jail than you do when you’re facing losing your kids forever,” said Josh Gupta-Kagan, founder and director of the Family Defense Clinic at Columbia Law School and an expert on civil liberties as they apply to child protective cases.
The right to remain silent, the right to a public jury trial, the right to face your accuser and so on are not recognized and enforced by the courts in the child welfare system, according to our interviews and a review of case law. Neither is the related ideal of “innocent until proven guilty” or the standard that guilt must be proven beyond a reasonable doubt.
A look at several of the amendments in the Bill of Rights reveals this disparity.
The Fourth Amendment, for example, says that citizens must be protected from unreasonable searches and seizures by the government, and that a warrant to conduct a search should be based on “probable cause” that specific evidence will be found. Yet as ProPublica and NBC News reported this fall, child protective services agencies conduct millions of warrantless home searches every year, rifling through refrigerators and closets and inspecting children’s bodies without going to court first to say what they are looking for. (In New York City, child welfare workers obtain a warrant fewer than 94 times a year, on average, while conducting at least 56,000 searches annually.)
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The Fifth Amendment, meanwhile, allows criminal defendants to remain silent to avoid self-incrimination, commonly called pleading the Fifth. But in a child welfare case, which is a civil proceeding, courts are legally permitted to assume the worst of a parent who has decided not to talk.
Then there’s the Sixth Amendment, which says that defendants have the right to a public trial by jury as well as the right to an attorney, among other protections. But if an accused parent in this system even gets a trial, it likely will not be public: Child welfare cases are heard in closed courtrooms in at least 30 states, according to a ProPublica survey of statutes.
Fewer than a dozen states offer the option of a jury trial in these cases.
As for a lawyer, while some states provide one for some types of child welfare hearings, the Supreme Court has found that even people facing permanent termination of their parental rights have no constitutional right to legal counsel — because they are ostensibly not at risk of losing their own physical liberty by going to jail.
Yet evidence gathered by CPS workers without a warrant can be passed to police and prosecutors for use in criminal prosecutions of parents, who may be locked up as a result, according to attorneys, caseworkers and police as well as cases we found in which this has happened.
Parents interviewed by ProPublica also felt that having a son or daughter taken from them forever is a far more severe punishment than spending time in prison, and therefore viewed these cases as equally deserving of due process.
Finally, double jeopardy, or prosecuting a person twice for the same offense, is also allowed in child welfare cases, even though it is otherwise prohibited by the Constitution. Some parents even have their rights to a newborn baby terminated because their rights to a previous child had been terminated, even if there hasn’t been any new allegation.
To be sure, constitutional rights are far from perfectly protected in the criminal justice system. Talk to public defenders and they will tell you that police routinely get away with unconstitutional home searches by using coercive tactics to avoid having to get a warrant, or by saying that something they found in a drawer was actually in “plain sight” and therefore could be collected without a warrant. The right to a trial in criminal court, too, is undermined by prosecutors dangling extreme prison sentences over defendants to get them to plead guilty before there’s a full hearing of the evidence; this plea bargaining process accounts for about 95% of felony convictions.
Still, the rights themselves have been firmly upheld by the Supreme Court and other federal courts — and are therefore part of how police are trained — which is not true in child welfare.
Why Fewer Rights?
One clear reason for this mismatch in rights is that there was no formal child welfare system when the Constitution was written, so some amendments in the Bill of Rights were worded to apply only to criminal matters.
More broadly, child welfare proceedings occupy a nebulous space between criminal and civil justice.
In the very few instances when the Supreme Court or federal circuit courts have addressed whether such rights should apply in child protection investigations, the rulings have largely said that if law enforcement is involved (like a police officer with a badge and gun being in the room while a CPS worker is interviewing a child), the rights exist. Otherwise, maybe not.
This reflects, in part, the history of child welfare courts, which were set up to be “problem-solving” rather than adversarial — to serve kids rather than to litigate guilt. This was a progressive vision of a system where social services workers, families and judges would work together to improve the child’s situation, rather than a prosecutor-versus-defendant setup.
So when the 1960s brought a due process revolution in criminal justice — the Supreme Court institutionalizing the right to an attorney in Gideon v. Wainwright and the practice of being read your rights in Miranda v. Arizona— child welfare practitioners were not thinking in the same terms.
“We are a pathetic field, still in our infancy,” said Marty Guggenheim, a longtime New York University family law professor who in 1990 founded what was for years the only parental defense clinic in the nation. (There are now about a dozen, according to a ProPublica review of law school offerings and interviews with heads of clinics.)
The problem is perpetuated by law schools, where criminal and corporate defense are deemed essential but family defense is not, ProPublica’s reporting has found. In a review of the curricula of every Ivy League law program and a dozen major state schools around the U.S., almost none appear to provide a class that’s strictly about defending parents accused of child maltreatment. Many offer family law coursework, but it is focused on typically middle-class issues like divorce, custody and wills and trusts.
Zoe Russell, a Harvard Law School graduate who is going into the family defense field, said that the classes she was offered centered on families with money, and that to develop her understanding of her area of interest, she had to read the footnotes of academic papers and attend conferences of her own volition.
And then there’s the stigma, the idea that this kind of law — with children in potential danger — is morally dubious. (Russell notes that many lawyers who are skittish about her field will still defend clients accused of murder, or of serious white-collar crimes, types of work that she says she doesn’t judge but shouldn’t be seen as more valuable or important than her own.)
“I describe my upcoming job differently depending on who I’m talking to and their reaction,” she said. “This is an area that is trivialized, demeaned.”
What Is the Purpose of Rights?
When ProPublica and NBC News in October found that child welfare agents in New York were routinely conducting warrantless home searches, the city’s Administration for Children’s Services disagreed with some of the rhetorical framing of that reporting.
Perhaps most importantly, agency officials said that when caseworkers enter a home, it is not to conduct a “search” but rather an “evaluation” of the residence. Based on what the workers see, they can then connect families with services to provide food if the fridge is empty or window guards to keep kids safe.
But child welfare experts including Tarek Ismail, a law professor and civil rights attorney at the City University of New York School of Law, noted that what the Administration for Children’s Services does is “suspicion-based”and thus deserving of due process.
In other words, Ismail said, these are not building inspectors going to every apartment in a building and “evaluating” whether each one has a proper window guard so they can generally protect kids. Instead, these are investigators who have received a specific allegation of wrongdoing and are being sent to a specific apartment to look for evidence of it.
And these agents, along with the prosecutors who follow up on what they find, have the power to punish.
Some of this boils down to a question of language, said Guggenheim, who began his career five decades ago in a parallel field: juvenile justice.
Juvenile detention officials, Guggenheim said, often used terminology suggesting that in their line of work there were “no convictions, no prisons, no punishment at all.” Instead, he said, “there were juvenile delinquents, adjudications, placements, training schools.”
And as he worked on legal challenges to the solitary confinement of children in youth prisons, officials called such isolation cells “time-out rooms.”
But the Supreme Court, in a landmark case called In re Gault, ruled in 1967 that “it doesn’t matter what the system calls these things, what matters is the reality of what they are doing,” Guggenheim said.
This push to describe the harms of juvenile incarceration in clearer language, and to enumerate the rights that should therefore be provided to the kids facing it, helped bring about real reforms in that system.
Meanwhile, the child welfare field still leans on benevolent language and concepts such as “child welfare” instead of “family policing” (a phrase that activists have begun using recently); “caseworkers” instead of investigators or agents; and “court-appointed special advocates” filling the shoes of lawyers.
In turn, the rights that most U.S. citizens consider fundamental are hardly rights at all when it is a child protective services “caseworker” knocking on the door.