The Harm of Child Removal (2019) (original) (raw)

2019, SSRN Electronic Journal

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. ¥ Shanta Trivedi is a Clinical Teaching Fellow in the University of Baltimore Bronfein Family Law Clinic. This article is dedicated to the extraordinary attorneys of the Brooklyn Defender Services Family Defense Practice, particularly Lauren Shapiro and Lynn Vogelstein, who first introduced me to the harms inflicted by the child welfare system and taught me how to fight against them. I am forever indebted to the faculty at the University of Baltimore School of Law's Clinical Law Program for their tremendous support and inspiration, especially Margaret E. Johnson for her thoughtful and exceptional guidance throughout this process and Michele E. Gilman for her insight and advice. Thank you also to Ann Shalleck and my colleagues at the NYU Clinical Writers' Workshop for their helpful feedback at the early stages of the writing process, and my peers at the Association of American Law Schools Conference on Clinical Legal Education Works in Progress Workshop for their contributions at the end. To Matthew I. Fraidin, thank you for giving me the idea to explore this topic that is so important to me. Thank you to Marty Guggenheim for taking the time to review this article. Also, huge thanks to Tarek Ismail, for generously sharing your statutory research and to Samuel Draper, Brett Smoot, and especially Katherine Haladay for their tremendous research support. To my N.Y.U. Review of Law & Social Change editorial team, Cody Cutting, Joanna R. Loomis, and Molly Griffard-you are all wise beyond your years. To my parents and Nirad & Cheryle, thank you for your lifelong support. And finally, to Somil, Dylan, and Serena, thank you for your unconditional love and patience (and excellent in-house editing).