When the state proves or even merely alleges that a parent has abused or neglected a child, a court may remove the child from the parent’s care. However, research shows separating a child from her parent(s) has detrimental, long-term emotional and psychological consequences that may be worse than leaving the child at home. This is due to the trauma of removal itself, as well as the unstable nature of, and high rates of abuse in, foster care. Nevertheless, the child welfare system errs on the side of removal and almost uniformly fails to consider the harms associated with that removal. Only two jurisdictions require courts to consider the harms that will occur when a child is taken from her family. And while recent federal law recognizes the importance of family preservation and the negative effects of separation, it does not solve the problem by itself. This article is the first to comprehensively examine why the harm of removal should be a featured part of every child welfare decision. After doing so, it continues to analyze existing law and legal practices to demonstrate how consideration of the harms of removal can be built into existing legal frameworks to achieve the stated purpose of the child welfare system and truly protect our children.
In many jurisdictions, once a parent has her rights terminated to one child, the State can use that decision to justify the termination of parental rights to another child. The State can do so regardless of whether the parent is
Tara Urs† Abstract In Kennedy v. Louisiana, the Supreme Court noted that the problem of “unreliable, induced, and even imagined child testimony” creates a “special risk of wrongful execution in some child rape cases.” Indeed, empirical research has repeatedly demonstrated
States should use parens patriae power to assist children living in poverty, instead of using it only when children are removed from their families.
This article aims to point out that the understanding of freedom in the U.S. legal system is too narrow since it disregards other significant aspects of freedom.