Progressive Developments in California Child Protection Law

• RSVP link forthcoming.

This event, a panel discussion and dinner, brings together thinkers and practitioners in the child protection law space to discuss what policies might help reduce a problematic indeterminacy that permeates the process. The event will begin a panel discussion jumpstarted by a piece by Professor Joshua Gupta-Kagan on the subject that is being published this year in the Stanford Law & Policy Review. An abstract of that paper can be seen below. The panelists are all practitioners and scholars in the area of child protection law, including Angie Schwartz at the Department of Social Services; former Superior Court judge Leonard Edwards; Professor Kagan; and Professor Michael Wald. The event will end with a dinner for the policymakers and scholars in attendance. We believe this event could lead to big, positive developments in California child protection law and jumpstart a national conversation on the topic. 

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 decision-making. 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.