Failure to Protect
homelogan marrcaseworker fileschild policydiscussion
interview: martin guggenheim
photo of martin guggenheim

One of the leading voices of the "family preservation" movement, Guggenheim believes that child protective services often remove children from their homes too quickly, without sufficiently considering parents' rights or the harm that removal can do to children. A professor at New York University Law School and director of its clinical and advocacy programs, Guggenheim argued successfully before the U.S. Supreme Court in 1982 that states should apply a higher standard of proof to terminate parental rights (Santosky v. Kramer). He is the author of The Rights of Families: The Authoritative ACLU Guide to the Rights of Family Members Today (1996).

A child has a right to be with her parents unless it is necessary not to be with her parents.  What constitutes necessary?  For my money, thus far, the answer has been too far on the side of making it too easy to remove children.

What was the family preservation movement?

The family preservation movement was a movement that began in the early 1980s [that] was an antidote to an understanding that child protection had overemphasized removing children from parents upon allegations of misfitness. And family preservation was an effort to work with families as the first response, instead of removing, separating children from parents.

[And what went wrong]?

It's not clear to me what went wrong. Partly what went wrong with family preservation was a political response. There were people who didn't like the notion of family preservation and trashed it. I don't think the evidence ever was conclusive that it was a failure. To my mind, the principal failing of child protection in the United States over the past 35 years ... is that family preservation has not been taken seriously enough almost anywhere in this country. ...

If we care about the safety of children, why should our focus be on family preservation when [these are] the families that are hurting children, presumably?

Well, family preservation can't be a blueprint for every case. There are certainly circumstances in which parents have done things to their children that would make the notion of keeping children with them, certainly in the immediate future and perhaps even in the long-term future, unacceptable and inappropriate. However, those cases are, in this country, rare and certainly a distinct minority of the cases that are in the system. So when one poses the question of family preservation versus protecting a child in a dangerous home, one poses the extreme choice.

Family preservation is appropriate for the majority of cases in which violence is not a serious issue and in which safety is not the first concern. The vast majority of children who are separated from their parents in the United States are separated for reasons that even state officials concede have nothing to do with the true meaning of safety. That is, those children are not in jeopardy of being physically harmed by their parents. There are deficiencies in the home that perhaps warrant state attention and state intervention of some sort. But the least restrictive intervention, the one that keeps children connected to their families, is the one that is best for children.

All children removed from parents, even children removed from parents for very good reasons, ... suffer mightily in the process of the removal. Preventing that suffering is itself a worthy goal of the state. ...

Going back to the reversal or undermining of the family preservation movement, describe, if you will, the role that very splashy media cases played in this pendulum swing. ...

The media understandably focuses on traumatic, highly visible incidents. ... Sensational murders ... of children committed by parents. They are an extremely odd statistic in our country. They're very rare cases. There certainly is no significant problem [or] danger in the United States of parents killing their children. However, those cases are what has driven policymakers to ensure that they not be repeated, even though there's no way to prevent their repetition, in fact. So the media attention on these sensational cases has led to policies that favor removing children at the first potential sign of danger. ...

There's always the public policy question of, how far do we go to prevent the extreme case? Preventing child abuse from parents certainly can only be accomplished by removing all children from parents. Obviously we're never going to do that. But what the media's focus on the celebrated cases in child protection over the last 15 years has done to the family preservation movement is undermined it dramatically [and] made it very difficult for officials to continue to press for the notion that we do best by the majority of children by keeping them with their parents, even when we have reason to be concerned about a parent's adequacy of caregiving. ...

What is the effect on the agencies themselves when one of these kinds of events takes place? ...

When the agency itself was involved in the sensational case that gets in the media, a form of panic and hysteria actually takes over. Each employee asks the first question in the next case: What can I do to be sure I don't get my name in the paper tomorrow? And the answer to that question almost invariably is, remove the child. There have never been media headlines over a wrongful removal of a child from a parent's home. The headlines have always been about the failure to remove a child. So the system gets skewed dramatically in favor of overprotection. Overprotection here now is not just overprotection of the child, because that discounts the harm to children. This is not simply a question of, are we always protecting children by removing them from parents? Because the answer to that is no. We are sometimes dramatically harming children by removing [them from] their parents.

The protection that's involved in this issue is the worker's protection from getting in trouble from not handling the case properly, even though removal may have been an improper handling of the case. For that wrongful decision, a caseworker will never find herself in trouble.

In essence, what you're saying is that the dichotomy between family preservation and child safety is a false dichotomy, in some ways.

The dichotomy between family preservation and child safety falsely implies that removing children is good for them. Removing children is not good for children. It may be a necessary harm to impose on children. But we should understand, it is always adding harm to a child. ... Of course, I am not saying that no removal is appropriate. What I am saying is that as a child experiences removal, it is very harmful.

Family preservation is simply another way of saying we should apply services to a family whenever feasible in order to prevent additional trauma to a child. ... Family preservation is simply a kinder, gentler way of treating children. It's less about a parent's right to keep her child than it is about a child's right to be raised by loving parents, albeit sometimes in need of assistance from the state.

If the [death] or the serious abuse case is the exceptional case dealt with by child protection, what is the standard issue case? ... Is it abuse? Is it neglect? What are we usually dealing with?

The majority of cases that come into any child protection system involve what is technically called neglect. Neglect is, in the United States, almost invariably associated with poverty. Cases that lead to children coming into care or to coming to the state's attention, even as potential cases for removal, commonly involve a poor, single parent with limited resources, who sometimes [is] living in inadequate conditions because that's what available -- tenement housing, dangerous electrical wires, inadequate heating. Sometimes a child gets ill. ... When a parent gets ill and a child gets ill, what does one do? You run out of food; it's cold out; you have to run to the store. But your child's got a fever and you can't bring your child with you. What do you do?

Well, many parents make decisions that are calculated risks. A compassionate person would first say, "I'm sorry you were forced to have to [make] the choice that you faced." A police-like response to a parent who made a particular choice is, "That was a forbidden choice and now you will pay the penalty." Child protection policy in the United States, unfortunately, has tended far too much toward the police-like response than the family-affirmative, friendly response that a different vision of child protection could include. Most of the children in care, all critics and scholars of the child welfare system in the United States concede, do not involve serious danger to the children, but rather poverty-related inadequacies in the home. ...

What underlies the police mentality of the child protective system? ... Why have we drifted so far from the family preservation model?

Child welfare policy and practice in the United States can't be understood fully in isolation of other larger social phenomena in our country. We are a country that proclaims a child-loving philosophy, which is belied by harsh statistics that suggest for an advanced, industrialized country, we do very poorly by and for our children. We have a shockingly high infant mortality rate; we have known environmental pollution conditions in many, many industrialized cities, in which children suffer from life-threatening asthma at shockingly high rates; we have inadequate housing; we have inadequate income assistance for many, many children in this country. Given our relative wealth, one could say objectively we are one of the poorest distributors of income to children in any advanced country. We have the highest rate of poverty among children in any advanced country.

Now, against that backdrop, we also have the most vigorous, largest, aggressive child protection policy of any advanced industrial country. Why is that? Well, I would suggest that is in part because of a political compromise that was made in the 1970s, actually engineered by then-Sen. Walter Mondale, who created the 1974 legislation that brought into being the modern child protection system. And that system deliberately labeled the subject of child protection as about protecting children from bad parents, even though, in fact, caseworkers throughout the country understand that their first job, really, is assisting needy families.

If we made child protection too family-friendly, we would bump up against another political reality of U.S. politics, particularly as evidenced by 1994 and 1996 legislation in Congress eliminating welfare, insisting that families [and] individuals find a way to survive on their own. Child welfare is, in some ways, the residual outcome of a political choice in our country not to help families directly. But if it became too family-friendly, it would become an indirect subsidy just for needy families. So what we require instead is not merely that you demonstrate a need, but that we decide -- we, meaning the officials who will help you -- that you have failed in some respect.

So we've made a global, societal problem of the well-being of children into an individual, family-only failing. And it's in that model, within that model, that child protection operates in this country. It need not be that way and it isn't that way in most countries in the world. In most countries in the world, child protection systems are seen as helping families first, and then separating out those that can be helped and should be helped from those that either can't be helped or ought not be helped because they're too far gone. In our country, we start with an assumption, in far too many jurisdictions, that the families can't be helped first, and children are removed. ...

It's almost an American way to bring judgment and punishment into an equation like this. ... Nina Bernstein [author of The Lost Children of Wilder] said that you can't give help without some judgment and punishment because it might become too attractive to people.

Child welfare is understood by many local officials to be a scheme by which, if the population it is serving felt too good about the services it was getting, it would become inundated with requests for help. Unfortunately, the consequence of making it a rather unfriendly system is that in many communities, child protection officials, or caseworkers, are seen as the enemy of families. That was never anybody's intention. And it certainly isn't the feeling in the hearts of the caseworkers going into those communities. But it is the way they are perceived by recipients.

And I think the greatest reform that could come in child protection would come from the voices of the recipients of the system who say, "It's not that I object to your helping me. I object to the condescending manner in which you interact with me." ...

Talk about that perception of child welfare by the recipients, the coerciveness, the brutality of the system in their own eyes. Describe how that gets in the way of the well-intentioned aims and goals of the caseworkers. How do these things work at opposition to each other in some ways?

Child protection officials are almost permanently in the business of judging the parents with whom they're working. They're obliged to write reports and to keep notes and to constantly report to a higher official about their assessment of whether a parent is doing what is necessary to earn the return of their child. That judgment itself is dramatically affected by the interaction between the parent and the child.

One sees time after time in actual cases the implicit or explicit demand by the caseworker that the parent say certain words that the caseworker insists be uttered. A parent's insistence on maintaining her dignity -- refusing to say something that she knows isn't what she believes, but what would achieve the desired end -- leads some parents to not play the game well, to insist upon keeping their dignity and self-respect. That causes caseworkers to judge them as inadequate parents. The peculiar truth of that is that these parents very often are exactly the kinds of people we should be rejoicing in. And yet they are the ones who have the most difficulty with child protection. The parents who play the game by going along and saying, "Yes, ma'am. Yes, sir," whether they believe it in their hearts or not, are far more likely to get their children back sooner. ...

These caseworkers are -- putting aside for a second their youth and their inexperience and their training -- ... well-intentioned people. ... What is it like for a caseworker to be put in this role?

Caseworkers have a very difficult job, and it's very easy for me to be critical of them, even if I recognize that if I were in their position I might behave quite similarly to the way they do. Caseworkers are obliged, instantly, to make a judgment about the seriousness of the danger of a child's condition, recognizing, again, that they will only be likely to be challenged for their decision if they decide not to remove a child. If they decide to remove a child, they understand there won't be any serious challenge to that decision, internally or in the media.

At the same time, many caseworkers want nothing more than to be of genuine help to a family. But they understand that there are real limits to most current child welfare systems' ability to provide help. Very few systems today have an all-encompassing services package that provides families with housing, with medical insurance, with the real things -- babysitters -- that parents need that would make all the difference in their lives.

Many caseworkers are genuinely frustrated by the recognition that they are unable to supply the particular service that a parent needs to make her home very good, and then is forced either to blink at what is deficient in the home or remove the child as a choice. I think caseworkers would tell you that they find their job to be unsatisfying very often, because they aren't given the opportunity to help families in the way that they believe families deserve to be helped.

But how about more specifically the dual role they're asked to play? Of service provider and judge and prosecutor? How does that coexist in the same person easily? ...

The interesting thing about that conflicting role ... is that the parent is aware that the caseworker is playing that dual role and understands that the interaction between them will be vital to the ultimate outcome. The savvy parents who are willing to do what is necessary to win back their children learn to interact with caseworkers in a way that they understand caseworkers like. ...

Do you think that this difficult dual role that caseworkers [are] forced to play has anything to do with the high turnover rate that is endemic in the system?

There's an extraordinary turnover rate among caseworkers in child protection. I think the principal cause of that turnover is low pay, low prestige. It is a job that many take, with a high burnout rate. I think most caseworkers would say the job doesn't have enough internal satisfying qualities. They don't feel often enough that they've helped families to give the job the kind of internal rewards that would make staying sensible.

On the other hand, there have been movements made -- New York City among them -- to find a way to encourage people to stay on the job more than a few years by having salary increases and higher responsibilities. But it is a classic burnout job, a very difficult job.

I want to talk about the very beginning of the process, the moment of intake, as it were, and the flood of referrals generated by mandatory reporting requirements and how [a child welfare agency] generally is forced to respond to those. ... Are we taking in too many of these cases to begin with?

One of the extraordinary phenomena of child protection in the United States is the requirement that certain officials ... report any suspicion of child abuse to a hotline maintained by each state, and that the rest of the society is encouraged to make such calls, under promises of immunity, in order to trigger an investigation. As a consequence, we get about 3 million such calls a year. We don't have nearly the capacity to handle those calls. If we funded all the positions necessary to make thorough investigations of that number, we would be quadrupling our costs of child protection without ever getting the child protection because that's only investigative.

So what we've done instead is place enormous pressure on agencies at the very beginning to make decisions [about] which call really is worthy of serious attention. In most states, there's a requirement that there be a full investigation within 24 hours, including a home visit. But two-thirds of those investigations -- 2 million cases a year -- are dropped instantly upon such an early investigation, on the basis that there is no basis even to think that there's anything worth investigating.

Now it's not clear how many of those 2 million cases really have something lurking in them, but most observers believe most do not. Now of that other million which result in some follow-up investigation, the vast majority of them are also ultimately dismissed, having gone nowhere. And of the few remaining, about 90 percent involve mere neglect, as distinct from abuse.

And I don't mean that neglect is something we should pay no attention to in our society. What I mean is that neglect, as defined in most state laws, [rarely] involves imminent danger to a child's health or safety. What it involves instead is some condition in the home that's below adequacy that deserves attention.

So we have this huge apparatus of attention paid to immediate reports of abuse and what we find when we're through working that out is very few cases fit that category.

Would you eliminate mandatory reporting?

I would eliminate mandatory reporting of acts other than child abuse. Child abuse being a much, much more narrow category of harm to children, involving risk of serious physical injury. ...

The services that are [offered to the parents of children in foster care] -- ... parenting classes and group therapy and individual therapy and there's therapy for the kids. ... Isn't that a good thing? ...

One of the questions about therapies and programs like parenting classes is how well-adapted they are to the individual person they claim to be serving. When they become cookie-cutter-like rules, like recipes for making soup, they rarely translate to anything meaningful in a person's life. Things like "Listen carefully to your children and treat them with respect" don't really cut it when they are spoken at a level of a sermon-like, in a church, statement of good parenting. Rather, serious help for individuals comes at the level of a significant interaction with a thoughtful therapist. And I'm not always certain that the programs offered to parents have those professionals in place. ...

It's often been said to us, "Look, the agencies themselves are not making these decisions to remove. There's a whole court system in place to do that and these parents are given representation and it's adjudicated and so forth." First of all, give me an overall evaluation of the court side of this system. How well does it operate?

The United States child welfare system really is divided into 51 jurisdictions, counting the District of Columbia. And then, even more bizarrely, into individual counties. So that in New York State, for example, there are 62 family courts that handle child protection cases. No two operate precisely alike. In some, there's never a contested hearing that's held; everything's done informally in conversation. In others, there's less conversation and more formality.

My experience over 25 years of representing parents and children in these kinds of cases is that the court system operates least like a court of any court system I've ever experienced. Agencies almost always win the position that they seek, by having judges either be persuaded that the agency should win or by just starting out with the presumption that the agency has worked so closely with the facts that it knows what is best. This is not a system of law that operates like most others, in which there is an understanding that an independent fact finder, the judge, is to play the prominent role in what happens. Instead, child welfare is seen mostly as case management, and that the expert is not the judge but the case supervisor. And so judges tend to give great deference to what is recommended. And in most jurisdictions, most of the time, what the agency seeks, it gets.

And in fact the burdens of proof, I understand, are different in these kinds of settings than they would be, let's say, in a criminal court, even though the punishment, as it were, might be just as severe.

The burden of proof in a child protection case is to satisfy a court by a preponderance of the evidence that there is a basis for the position that the agency is taking. That's in dramatic contrast to criminal courts, where it must be proof beyond a reasonable doubt. No one can quantify the difference, but the one is a presumption that you don't find somebody guilty, and you must have that overcome by some substantial degree. And the other, no presumption at all. Whatever comes out, comes out.

And I'm not sure we could have it otherwise. Because in the criminal law system, if a guilty person goes free, rarely do we understand that the cost of that is that a particular individual is placed in jeopardy. But rather that the harm is shared by society at large. In child protection, very often, we understand that if we free a parent, absolve a parent of all wrongdoing, the child is exposed to whatever lingering fear we have of a parent's wrongdoing. So that very few courts would be comfortable dismissing a case where they believed, by a preponderance of the evidence, a parent did something wrong, but weren't persuaded beyond a reasonable doubt. ...

How does this system weigh these conflicting, fundamental rights: the right of children to be safe; the right of parents to be free of interference from the state. Which should win out?

One of the realities of child welfare in this country is that it is an experiment, an experiment in the human condition. We aren't doing very much follow-up to ask the question, what is the long-term impact on children removed from parents? Many see the choice [of] keeping a child with the parent as being a parent's right; removing a child from the parent as being a child's right; [and] the state not really having an independent interest, but wanting to protect [and do] right by the child.

That I think is a false dichotomy. I think that properly perceived, a parent's right to have her children is a child's right to be with her parents. And that removing children from parents is not just violating a parent's right, but often is violating what could be considered as a child's right. A child has a right to be with her parents unless it is necessary not to be with her parents. And that rule of being necessary is what the whole system is all about. What constitutes necessary? We have a long way to go before we'll know the full answer to that question. But for my money, thus far, the answer has been too far on the side of making it too easy to remove children.

What has been the legacy of [the Adoption and Safe Families Act of 1997 (ASFA)]? ...

One of the most disturbing trends in the past eight years in child welfare, for me, has been some general consensus that formed, which is utterly false, that the leading problem in child welfare over the past 25 years has been that states have worked too hard to keep children at home. To my perspective, that's a false belief, and rather children have entered care too easily.

What has happened since 1997 in the United States is that there is a new consensus that once children have been removed from their homes, whether their removal should or should not have occurred, there will now be a desire to permanently terminate parental rights and banish birth parents forever from the lives of their children unless they're able to get them back within a relatively short period of time, a year or two. That is a grand human experiment that I believe 50 years from now we will look back upon as a very dark period in our history, which we will have condemned as a mistaken way of treating children and their parents. Pretending to children that your parents no longer exist, when they live on the other side of town, in the name of loving children, I think, will come to be seen as a massive mistake that the United States has undertaken.

Isn't ASFA addressing a real problem in the limbo that many children were in, in one foster home after another, while parents took forever to try to reform themselves? ...

One of the empirical questions about children who are in foster care for a long time is, what kind of foster care are they in? The worst thing we do to children is move them around from one foster home to another because children need attachment and they need to feel wanted and loved. Many children have been in long-term foster homes, where they did feel that love, but also a connection to their birth families. ASFA arguably denies children the opportunity to keep both relationships, even when there's little evidence to suggest there was anything harmful to the children to remain in that foster care. Their idea that remaining in foster care for a very long time is by itself proof of bad policy or practice is something I don't accept. It all depends on what we mean by it.

There are many stabilized, long-term foster homes who now are required to say, "I agree to adopt the child," or they'll lose the child even though they don't believe adopting the child and banishing the birth parent is right for the child. And again, the power imbalance forces many foster parents to do what they're asked, even if they don't believe it's good for their own children. ...

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