By Eleanor Khirallah*
Our legal system prides itself on the right to due process when facing deprivations of “life, liberty, or property.” It is this right that is virtually nonexistent for families in the child welfare system.
The child welfare system involves various entities and organizations that in an ideal world, “work together to strengthen families and keep children safe.” In practice, the child welfare system relies on administrative processes that deprive families of legal rights to challenge decisions that threaten to separate them; in doing so, the system propagates racial and ethnic inequities and largely fails to treat families equally. Families of color are the most affected at every stage of the decision-making process within the system. Black and Indigenous children are particularly disproportionately represented within the child welfare system, including foster care and court proceedings – for example, nationally, Black kids are “in foster care at a rate that is 1.66 times their portion of the overall population.” Further, Indigenous kids are represented at a rate that is “2.84 times their portion of the population.”
One of the widely used administrative practices employed by the child welfare system to monitor families is a safety plan. These plans are “written agreements” that intend to allow parents to work on issues that created alleged unsafe conditions to allow them to “safely and sustainably” care for their kids without too much intrusion. Child safety plans can involve anything from mandating parenting classes or drug treatment to removing children from their homes for an indefinite period, as mandating permanent removal does require a judicial order.
While these plans are supposedly voluntary and lack the court’s involvement, there have been many questions about the coercion involved in having parents sign these agreements. This is particularly true because these plans may be used to deprive parents of their right to custody of their children without due process of law.
THE BASIS FOR USE OF A SAFETY PLAN
Safety plans are typically used in the beginning phases of an investigation following a report to a child services organization about allegations of abuse or neglect. These occur prior to court involvement and often when the social worker does not have the evidence to support court-ordered removal.
There are legal standards for removal that differ state-by-state. While some states have a lower standard based on “suspicion of child abuse or neglect,” others allow court-ordered removal “only when there is imminent danger and all other options have been exhausted.”
Although these legal standards exist, safety plans exist outside of the court system. Often, child welfare case workers make initial determinations of the risk of such imminent danger or suspicion of neglect or abuse, and they opt to develop a plan with the caregiver or parent to prevent involving the court and seemingly, the immediate removal of the child or children from the home. However, the extent to which these case workers could justify removal in court is unclear, and the standards for implementing these plans and what they consist of are agency-specific and often internally created.
For example, in Illinois, case workers use a checklist for assessing the risk of potential danger, with the bare minimum standard being “whenever evidence or circumstances suggest that a child’s safety may be in jeopardy.” This may mean that there is no presence of actual abuse or neglect, but only the case worker’s belief that the child could become at risk of abuse or neglect.
Such discretion and open-endedness is particularly notable when thinking about who is often making these decisions and who is most affected by them. For example, 65.9% of child welfare caseworkers are white even though the populations they are monitoring, reporting on, and investigating are overwhelmingly people of color. White case workers not only bring racial biases that interfere with their decision making, but they also often “lack exposure to cultures other than their own and had no context for understanding the cultural norms and practices of minority populations.” This has significant effects on the disparities we see in the system – Black children were 15% more likely to be assigned to an out-of-home placement following a CPS investigation even when they had lower risk assessment scores for abuse or neglect than White children and families.
THE VOLUNTARINESS OF SAFETY PLANS
Although these plans are posited as voluntary, critics and caregivers who have been subject to such plans say otherwise. While a parent does not technically have to sign the safety plan, if they refuse to comply with the plan, it may lead to temporary removal.
In Minnesota, there are multiple types of safety plans, with varying levels of arguable “voluntariness.” For that initial service plan, for example, social workers develop a plan and seek the parents’ agreement; in cases where the parent or parents do not agree, the social worker can ask the country or trial attorney to file a Child in Need of Protection or Services (“CHIPS”) petition that “would seek either temporary legal custody of the child,” or “a court order that the parent or caregiver participate in services.” Notably, even temporary removal has been deemed an “adverse childhood experience,” leading to potential trauma.
While these agreements ideally occur through administrative channels to avoid court involvement or be “less intrusive,” others believe that “safety plans present families with a false choice — either comply with CPS’s open-ended demands or have their children taken away.”
The question remains how voluntary such agreements are given the power dynamic between a social worker who potentially can access the power of the court to enforce removal of children from homes and a parent who is facing allegations of abuse or neglect – often allegations they may not truly understand or that are not fully substantiated.
LEGAL CHALLENGES TO SAFETY PLANS
The State is in a difficult position when it comes to child welfare and suspected abuse and neglect. On the one hand, the guiding principle of parens patriae, the government “has an obligation to ensure the safety and well-being of children.” Alternatively, the Supreme Court described the “interest of parents in the care, custody, and control of their children,” as the “oldest fundamental interests recognized by th[e] Court” in Troxel v. Granville. This seemingly would create a tension as courts struggle with their role in protecting children versus protecting the right of parents to parent.
With that in mind, it is striking that courts routinely justify the use of child safety plans. Litigation around such plans is rare largely due to how unsuccessful such claims have been.
In Dupuy v. Samuels, the Seventh Circuit held that due process does not mandate judicial hearings for the implementation of safety plans because of their “non-coercive nature.” The court compared safety plans to legal settlements in litigation, drawing an analogy between a plaintiff who “obtain[s] a favorable settlement on the basis of an implicit threat to litigate to an outcome that would have made the defendant worse off than if he settled.” It ultimately found that it is not unduly coercive to threaten removal of children unless parents agree to these plans because the state agency is merely enforcing its legal right to remove children from their homes. Coercion, it held, is “objectionable . . . when illegal means are used to obtain a benefit.” Because the agency had the legal authority to threaten certain actions should the parents not sign the agreement, it was not coercive. Although the court reasoned that “downside[s] to refusing to settle” allow such settlements to be made, it oversimplified the relationship between the child welfare system and these parents and failed to consider the severity of the removal of a child from their home.
Similarly in Smith v. Williams-Ash, the Sixth Circuit adopted the same reasoning, holding that “temporary removal of children and inability to recover them thereafter did not violate parents’ due process rights,” given the existence of the safety plan. The court did acknowledge that the parent-child relationship “g[ave] rise to a liberty interest that a parent may not be deprived of absent due process of law” under the Fourteenth Amendment. However, due to the voluntary nature of the plan and process by which the parents could seemingly revoke consent, it did not think that such an intrusion on said relationship justified due process of the law.
The bulk of lawsuits around these safety plans have failed in light of these circuit decisions. As it stands, the future of such litigation is unclear given how much deference courts have given to these agencies in these situations, as well as the lack of care courts seemingly have regarding the coercive nature of these agreements.
While the right to parent is presented as a fundamental due process right, it is something that can be taken away indefinitely through a single signature on a slip of paper. Removal from the home is one of the more extreme options from these safety plans, but parents may be subjected to countless conditions that make it impossible not only to parent, but to survive. Without due process of the law, parents are signing away their children to the jurisdiction of a child welfare social worker, a burden most experienced by Black and Indigenous families.
*Eleanor Khirallah, J.D. Candidate, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member
 Troxel v. Granville, 530 U.S. 57, 65 (2000).
 Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006).
 Id. at 762.
 Id. at 761.
 Smith v. Williams-Ash, 520 F.3d 596 (6th Cir. 2008).
 Id. at 599 (citing Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir.2006)).
 See, e.g., Wilbur v. LaFauce, 876 N.W.2d 813 (Iowa Ct. App. 2015) (finding a mother lacked standing because of failure to state a constitutional violation as it pertains to safety plans and overturning district court’s finding that a mother’s due process rights were violated when a child welfare agency used a safety plan signed by only one parent – the non-custodial father – to remove children from other’s home).