Let’s say that my neighbor is upset because he believes I encroached on his property by building a fence on it. So he sneaks into court – without my knowledge – and obtains a court order from a judge requiring me to immediately remove the fence.
I never had a chance to present my facts, or to challenge his. I never had the opportunity to present my arguments before the court made its decision.
Would any of us consider this a fair process? Of course not. But this is the one-sided legal process through which the child welfare system routinely tears families apart.
Juvenile courts in America routinely grant requests to separate children from their parents without ever giving anyone other than the child protective services (CPS) investigator an opportunity to present evidence.
Over nearly two decades of representing children in the foster care system, I can only recount a handful of times – maybe five or fewer – in which my clients had not already been removed prior to the first court hearing. Most had been taken away as a result of an ex parte court order, which is issued by a court relying only on information from the CPS investigator. In other words, the court immediately granted the request for removal without giving any other party the opportunity to rebut the information presented by the investigator.
The prevalence of this practice would make sense if every removal truly reflected an emergency. If immediate court action was necessary to protect a child from substantial harm, none of us would balk at the court’s decision to act right away. Despite the different hats we each wear within the child welfare system, I’ve never encountered anyone who didn’t want children to be safe.
But data strongly demonstrates that not every removal results from such immediate safety concerns. Nationally, of the 200,000 or so children removed into foster care each year by child welfare agencies, 17,000 return home within 10 days.
The fact that systems are willing to reunify children so quickly suggests that these cases did not involve the serious and immediate safety concerns necessitating immediate removal. This is unsurprising given the fact that more than 60% of child welfare cases involve neglect, an amorphous and ill-defined category susceptible to considerable disagreement amongst professionals and heavily influenced by a family’s poverty.
My own experiences support this. I’ve had countless cases in which there was absolutely no justification for a court to issue an ex parte removal order. One case involved a baby who had tested positive for drugs in the hospital. The baby was not set to be released by the hospital for a few weeks – giving ample time for the court to hold a contested hearing on whether the child should be removed from his parents’ custody. Nevertheless, the court still granted an ex parte order removing the child immediately. By the time we had a court hearing, the child was already in foster care.
Another case involved a family that had been working with CPS for many months. CPS was unhappy about the family’s level of engagement in services and ultimately decided that the children needed to be in foster care. So in the middle of the night, they contacted a judge who signed an emergency removal order.
The next day, while eating lunch at school, my client – a 9-year-old girl – was removed by CPS and placed in foster care. Despite the fact that there was absolutely no immediate danger to the child, the court still granted the emergency request to take her from her family.
This practice threatens the well-being of children in several ways. First, research has documented the devastating impact that separating children and parents can have on a child’s well-being. Even a short stay in foster care can have lifelong repercussions. Before taking a child from her family, we must be absolutely certain that removal is the only option. And the best way to do that is to give all parties a chance to present information before the decision is made.
Second, from my experience, once a court enters an order removing a child from his parent, it is far more inclined to preserve the status quo. Once attorneys finally appear in court after a judge or magistrate has already decided to place a child in foster care, they must persuade the court to rescind its previous order, even though they never had the chance to contest the issuance of the order in its first instance.
The unfairness of this process is precisely why every other area of the law makes it nearly impossible to obtain an ex parte court order without giving the other side the chance to object. Yet in child welfare, despite knowing that family separation can traumatize a child for the rest of his life, this practice has become the norm.
Courts can fix this problem immediately. They can refuse to grant ex parte removal orders unless the immediate orders are necessary to protect a child from a substantial risk of harm. To determine this, judges must ask CPS investigators the following types of questions before making a decision:
- Why is this order immediately necessary to protect the child from a substantial risk of harm?
- Why must this order be issued prior to a contested hearing?
- What efforts were made to avoid the immediate removal of the child?
- Was a safety plan offered in order to allow time to have a contested court hearing?
Judges – like they are in every other area of the law – must be skeptical of granting these requests. Unless absolutely necessary for the child’s safety, they must deny them.