Salihah Denman (Pace University School of Law) has recently posted to SSRN her paper, Safeguarding Children from State Intervention. Here is the abstract:
The right to family integrity and a parent's right to raise their child how they see fit are two fundamental rights in constitutional law decisions in the area of family law. In the context of child welfare investigations, there is frequent tension between these two fundamental rights. The tension exists where a parent cannot act to protect their child from state intrusion, often to the detriment of both parent and child. An investigation first begins with a call to the state's registry of child maltreatment to report suspected child abuse or neglect. This call starts an intrusion into the family in the form of an investigation by the government's child welfare agency, which results in trauma to children and their parents regardless of the investigation's outcome. The trauma is immediate, and its effects can be long-lasting. This Article argues that the representation of children during the investigation phase is one potential tool to mitigate these effects.
The government attempts to protect children from potential harm when there seems to be a conflict between the children's best interest and their parents' or guardians' actions or choices. However, child welfare agencies often fail in this core mission by both "overprotecting" and "underprotecting" children. Various social justice and legal reform movements are attempting to minimize or prevent this trauma to children and families caused by unnecessary investigations and court cases when agencies act to "overprotect" children as well as to reduce the disproportionate representation of communities of color in the Child Welfare system. One such effort seeks to ensure legal representation for parents facing a child maltreatment investigation before the case ever gets to court. With the aid of counsel, parents with investigatory stage representation can often address the concerns of child welfare agencies and head off court filing and or removal of children from their custody. Missing from this push for parent representation at the investigatory stage is a corresponding call for legal representation for children during this initial point in the phase of child welfare. This is the first Article to explore a child's right to counsel during the investigatory stage of child welfare proceedings.
Parent's counsel cannot represent children's interests where those interests diverge from the interests of their parents as they do in some cases. Most states appoint counsel or other representation for children once a child welfare agency files a petition, which is too late. By this point, many children have already suffered substantial trauma from the investigatory actions of child welfare agencies. This Article argues that states have a duty to better protect children's best interests by guaranteeing a child's right to counsel through their parens patriae power during the investigatory stage of these proceedings.