Differential Response in Child Protection Services: Is Choosing Between Voluntary Services and a Child Protection Investigation as Inconsequential as Choosing Between a Martini and a Manhattan
Soledad Adrianzen McGrath
Loyola University of Chicago
August 16, 2010
Through their varied implementation of differential response, one of the most promising developments in child protective services, states come perilously close to violating the constitutional rights of their families. Differential response is an approach that allows a child welfare agency to address concerns about child abuse or neglect in alternative ways. When an agency becomes aware of actual or potential child maltreatment, it may present a family that may not meet formal criteria for a child-welfare investigation with the option of agreeing to be assessed for safety and risk and to participate in recommended services aimed at correcting identified deficiencies, even without a formal determination of abuse or neglect. If the parents refuse to be evaluated or fail to participate in recommended services, they risk formal investigation and possible court involvement.
There is a paucity of case law analyzing the voluntariness of parental participation in the context of differential response systems. However, there are a handful of cases in which courts have reviewed safety plans offered to families in the early stages of child protection cases; these cases indicate that, in certain circumstances, a parent’s agreement to abide by a safety plan or participate in services may not be truly voluntary, and may deprive parents of constitutionally-protected due process rights. This is especially true in cases where the safety plan involves visitation restrictions or a threat to separate children from their parents.
A family’s decision to participate in assessment, safety planning and/or services in lieu of a child protection investigation may seem to be a relatively simple, proactive choice, but it is a choice that can lead to severe consequences for a family and is, in fact, no choice at all. By offering families the opportunity to consent to voluntary services, states circumvent the need to provide due process protections and, as such, parents may risk separation from their children without procedural due process. To effectively implement a differential response system, we must abandon the pretense that families have a choice and focus instead on providing the necessary procedural safeguards to ensure due process rights are protected.
Keywords: differential response, voluntariness, due processworking papers series
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