Differential Response Built on Flawed Assumptions

Credit:  University of Michigan Law School Frank Vandervort

Credit: University of Michigan Law School
Frank Vandervort

Those who advocate for the wider use of Differential Response (DR) in child welfare do so from a flawed set of assumptions. The most common are that children’s protective services (CPS) professionals are hostile to families; that children are routinely removed from their parents’ custody without good cause; and that all families can safely provide for their children.

From their earliest days, proponents of DR have criticized CPS as a means of advancing their preferred paradigm.  But since 1980 our national policy has been to preserve families whenever possible. As a result, CPS has for a quarter century worked with families to identify and eliminate conditions that place children at risk of harm and removal from home, mostly successfully.

Indeed, in the fifteen years after the enactment of the Adoption Assistance and Child Welfare Act of 1980 CPS agencies around the country were so loathe to remove children that many children were seriously injured or died while CPS essentially did nothing. This situation came about because Congress’s “reasonable efforts” requirement was interpreted on the ground as requiring “every conceivable effort” before a child welfare agency would remove a child. This overemphasis on family preservation led to the enactment of the Adoption and Safe Families Act (ASFA) in 1997 in which Congress clarified that children’s safety was to be the paramount consideration for CPS.

In that same law, Congress reaffirmed its intention that families be preserved when doing so is safe for children. The Children’s Bureau, which is charged with implementing federal child welfare policy, has continued its strong focus on family preservation, which, through federal regulations, is at work in the states.

A second inaccurate assumption forming the basis for DR, which is closely related to the first, is that CPS routinely removes children from their parents unnecessarily. The only way that a child can be removed from a parent’s custody involuntarily is through court action. However, in only about 21 percent of substantiated child maltreatment cases is court action ever taken to remove children from their parents. The vast majority of cases, then, are handled by CPS agencies without the involvement of courts and without any effort to remove children from parental custody. This hardly suggests wanton removal of children.

Indeed, CPS continues to focus on family preservation at the expense of children’s safety.

For years I have served on Michigan’s Citizen Review Panel on Child Death. Last year we reviewed a case in which a mentally ill mother was referred to CPS 16 times over three years because of concern about her ability to care for her four young children. Each time CPS put in-home services in place. After three years of near constant family preservation efforts, the 17th referral was made after a prematurely born infant died because the mother did not respond to a medical emergency. We review a dozen or more cases like this each year.

A third inaccurate assumption underlying the DR philosophy is that virtually every family is treatable and that when families fail it is because professionals simply haven’t worked hard enough or with sufficient acumen to engage the family. But we have long known that some families are so damaged that they cannot or will not be helped. ASFA recognized this by providing that in any appropriate case a CPS agency may seek and the court may find that “reasonable efforts” to reunify a family are not required, allowing the agency to seek an immediate permanency plan other than reunification. In the few states that have written these provisions into their laws, they are almost never used.

Before DR is expanded, its foundational assumptions should be carefully scrutinized.

Frank Vandervort is a clinical professor of law at the University of Michigan whose primary interests include juvenile justice, child welfare, and interdisciplinary practice. Vandervort is the president of the American Professional Society on the Abuse of Children and serves as a consultant to Trauma Informed Child Welfare Systems, a federally funded training and technical assistance program.

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