Confronting Indeterminacy and Bias in Child Protection Law

Details

Author(s):
  • Josh Gupta-Kagan
Publish Date:
2022
Publication Title:
Stanford Law & Policy Review
Format:
Volume 33 Issue 2 Pages 217-287
Citation(s):
  • Josh Gupta-Kagan, Confronting Indeterminacy and Bias in Child Protection Law, 33 Stan. L. & Pol'y Rev. 217 (2022).

Abstract

The child protection legal system faces strong and growing demands for change following at least two critiques. First, child protection law is substantively indeterminate; it does not precisely prescribe when state agencies can intervene in family life and what that intervention should entail, thus granting wide discretion to child protection agencies and family courts. Second, by granting such discretion, the law permits race, class, sex, and other forms of bias to infect decisions and regulate low-income families and families of color.

This Article extends these critiques through a granular analysis of how indeterminacy at multiple decision points builds on itself. The law does not tether permissible interventions to specific types of maltreatment. Minor cases can lead
to family separations and even terminations of parent-child relationships. Steps required for reunification can become unrelated to grounds for state intervention. States expend many resources to separate families after failing to spend similar amounts to preserve families.

A child protection reform legislative agenda has begun to emerge, but without comprehensively addressing the indeterminacy at the heart of the present legal structure. This Article argues a transformed system must include determinate substantive standards for various stages of child protection cases to limit the system’s scope and the potential for biased decisionmaking. The law should define neglect and abuse with precision, both to limit unnecessary state intervention and set maximum levels of state intervention based on the specific maltreatment at issue. The law should require states to spend as much money on helping families stay together as they would on maintaining children in foster care. State action to terminate the legal relationship between parents and children should be limited to situations in which any form of parent-child relationship is harmful to the child.