Burden of Proof Begone: The Pernicious Effect of Emergency Removal in Child Protective Proceedings

Abstract

This article examines the tendency of emergency child removal decisions – by social workers, police officers, and judges – to become self-reinforcing and self-perpetuating in subsequent child protective proceedings. This "snowball effect," as one court has referred to it, is widely acknowledged by juvenile court lawyers and judges but is largely unknown outside their circles. The article explores the causes and consequences of this phenomenon in the age of ASFA2 (the 1997 federal Adoption and Safe Families Act), which converts every day that a child spends in foster care into one more tick of the clock in a countdown toward termination of parental rights. The article provides some background on the law and practice of emergency child removal in the United States today; analyzes the factors that make initial removals outcome determinative in many child protection cases; considers the implications of this phenomenon in light of ASFA; and identifies possible solutions.

Keywords: Foster care; termination of parental rights: ex parte; emergency; summary; removal; children; self-perpetuating; self-reinforcing