Child Welfare Requires Adequate Remedial Services

Raymond C O'Brien (Catholic University of America), Child Welfare Requires Adequate Remedial Services, 92 Miss. C.L. Rev. at 107 (2022):

Each year an increasing number of minors are determined to be at risk of harm because of the abuse or neglect of their parents. Until recently, the vast majority of these minors were involuntarily removed from the custody of their parents and placed with relative foster care, nonrelative foster care, or group homes. Removal is always traumatic for the child and family, often augmented by unjust racial or economic stereotyping. This is especially true when removal is prompted by allegations of the suspicion of imminent abuse, anticipatory neglect, or what is most often termed predictive neglect. That is, even though there is no actual harm committed, there is a preponderance of the evidence that, based on conditions, circumstances, or associations, there is an imminent—predictive—risk of abuse or neglect of a child. Facts illustrate that a disproportionate percentage of these at-risk children identified are Native American, African American, or Hispanic and, as such, are unduly susceptible to discriminatory stereotypes associated with families of single parents, poor parents, parents adversely affected by mental illness, substance abuse, or simply erratic parenting skills. Until recently, federal financial support for state services offered to parents to correct the cause of the removal could only be obtained if the child were removed from the parents’ custody and the parents qualified for remedial services. Upon removal, the parents were offered services in accordance with a state-proposed parenting plan designed to correct actual or predictive neglect, but time limits were imposed, which heightened the anxiety caused by enforced parent- child separation, and in some cases, the looming possibility of termination of parental rights. Then, in 2018, Congress passed the Family First Prevention Services Act (“Family First”), which made federal funds available to states to pay for in-home remedial services and discouraged states from planning permanent placements with persons other than the parents of the child. Many laud the new legislation as a major innovation, but others argue it does not do enough to support prevention services, fund innovative remedial services, or support states seeking to address perennial risk factors through community involvement.

This Article argues that Family First is neither good nor bad. Rather, the federal legislation focuses renewed attention on the significant number of children at risk of abuse or neglect and on asking what more can be done to promote child welfare. To illustrate the extent of this legislation, this Article first discusses the parameters of child endangerment, the statistical profile of affected minors and their parents. Parents of color, disproportionately involved in involuntary removal and often termination of parental rights are particularly susceptible to identifiable risk factors. Predictive neglect offers an illustration of how stereotypes may thwart the Due Process rights of these parents.

Second, this Article discusses the context and impact of selected federal legislation, including the Family First Prevention Services Act, which incentivizes states to update infrastructure and develop new remedial services to assist families. The 2018 legislation is a significant departure from the approach of the Adoption and Safe Families Act (1997), which prioritized the removal of children from parents, but both approaches are dependent upon the adequacy of state remedial services offered to families prior to and after risk warrants state intervention.

Third, this Article argues that Family First’s funding of in-home services is a welcome addition to the arsenal of tools used to promote child welfare, but it does not adequately address what is needed most, which remains funded community-based prevention personnel and programs and innovative parenting plans to provide adequate remedial services. Rather than discussing the merits of Family First, this Article concludes that it best serves as another clarion call to concretely fund state efforts to adequately address domestic violence, the consequences of poverty, drug and alcohol dependency, and a shortage of continuing caseworkers—who must be adequately paid and supported. Until this is done, the adequacy of child welfare preventative and remedial services remains unsatisfied.