December 14, 2020 by Robert Franklin, JD, Member, National Board of Directors
I wrote recently about Lenore Skenazy’s op-ed that challenged a school principle’s decision to, in contravention of their mother’s permission, prohibit three children from walking to and from school.
Skenazy has long been one of the country’s most effective and sensible advocates for children’s autonomy and independence from state oversight. She started the organization Free-Range Kids that’s now morphed into the organization Let Grow. Let Grow has embarked on a serious campaign to alter state laws governing what constitutes parental neglect of children and, in the process, limit child welfare authorities’ power to intervene in parental decision-making.
Here’s an excellent and informative article by Diane Redleaf – herself a long-time advocate for children and against governmental overreach into families – detailing some of the efforts to change laws to keep states from micro-managing parents and their kids (American Bar Association, 9/11/20).
As I wrote about here, Utah passed the first such law back in 2018. But the movement to limit the power of the state over the behaviors of parents and kids is just getting started. And, for me, it can’t gain momentum quickly enough. Redleaf summarizes the nature of child neglect statute thus:
Typically, the child neglect laws that authorize child protection investigations are very broad and vague. They include terms of unlimited potential scope—words like “injurious environment,” “lack of proper care,” and “inadequate supervision”—that invite open-ended discretionary, standardless, and discriminatory applications. Moreover, these laws generally do not defer to parents to decide when their children are “old enough” to manage activities alone. As a result, parents largely remain in the dark as to when and how they can safely make those decisions and what the state will judge as neglect.
All that means many things. For one, those state laws appear to be patently unconstitutional as overly broad and vague. When parents can’t guess what state officials will deem “neglect” and what they won’t, the law gives insufficient guidance to lawful behavior and can’t withstand constitutional scrutiny.
Plus, if parents can’t figure out what the law requires, CPS caseworkers probably can’t either. That gives the state carte blanche to interpret the law any way it wants, which in turn typically means erring on the side of overreach. We see that every day.
Finally, nowhere in those laws is there a presumption that parents act in the best interests of their children. In a different context, the U.S. Supreme Court articulated such a presumption in the case of Troxel v. Granville and I believe that presumption should be extended to child protective officials when deciding cases of alleged neglect. Too often those officials simply substitute their own ideas about appropriate parenting for those of parents. But fit parents know their kids and their kids’ capabilities better than anyone. One 9-year-old can be more mature and capable than the next 9-year-old, but state agents don’t spend enough time in enough different situations with the child to know which is which. Parents of course do exactly that.
Meanwhile, states like Illinois have taken steps to limit their more egregious statutes. For example, the state’s statute on child neglect once included the notion that “inadequate supervision” of a child constituted neglect. Of course what constituted inadequate supervision was anyone’s guess and it took a lawsuit to get the state to stop using the concept in child welfare cases. Amazingly the Illinois Legislature had excluded the concept of “inadequate supervision” from its child neglect statute in 1980, but its child welfare officials simply ignored the law and used the term until ordered to desist by the state Supreme Court in 2011. That’s 31 years of lawless behavior aimed specifically at allowing child welfare authorities greater power over families than lawmakers permitted them to have.
Since then, Illinois’s legislature has made major changes to the statutes governing neglect of children.
In the wake of this litigation and as a result of negotiations that involved parents who had been directly affected by overbroad neglect allegations, in 2013, Illinois’s legislature adopted much tighter language that defined neglect as “blatant disregard” of “obvious dangers” that are likely to result in serious harm to the child and as to which the parent “failed to take responsible precautionary measures.” This language drew on another of the Family Defense Center’s appellate court cases, a decision in In re Slater, which held that neglect requires more than mere momentary inattention; to be cited for neglect, a parent must unreasonably ignore obvious dangers to a child.
All that looks like a legislature and a state Supreme Court that were none too pleased with child welfare officials for ignoring the law. Have they changed their ways? Do they now abide by the restrictive definition of child neglect? Or do caseworkers and managers continue to substitute their own preferences about parental behavior for those of actual parents? Who knows? Certainly the law is clear and an obviously strict limitation on governmental power. But the huge majority of child welfare cases involve poor and poorly educated parents, i.e. those who don’t know the law and, even if they do, don’t have the money to stand up to the power of the state. Those families typically fly under the radar of the legal system and the press, and we can rest assured that child welfare workers know it.