In an excellent opinion piece in Today’s Philadelphia Inquirer Dr. Mical Raz highlights some important concerns about the Philadelphia Department of Human Services’ (DHS) ongoing efforts to clean up its image.

Philadelphia DHS is one of the busiest child protective agencies in the country, and it also has a reputation for making serious and terrifying errors. In particular, DHS has infamously failed to remove children from unsafe circumstances, resulting in preventable and tragic deaths.

Because of that bad reputation, DHS has recently erred on the side of removing children from homes. As Dr. Raz notes, “Philadelphia currently has the highest rate of removal of children from their homes in the country.”

This shift in policy has just resulted in separate tragedies. In its rush to avoid looking like it allows abuse or neglect, DHS has removed children improperly and unnecessarily. Worse, this has resulted in lax oversight of foster care providers and avoidable tragedies for children under DHS supervision. Dr. Raz also laments the fact that, often, “no one is accountable to children or their families when unnecessary removal occurs.”

What Dr. Raz does not go into is why no one is held accountable. As a civil rights lawyer, maybe I can shed some light on this subject.

Children have a constitutional right to be with their parents, and vice-versa. As a result, DHS can’t take someone’s children away from then without following a strict set of rules and making a very high showing that it is necessary. Once removed from a home and placed in temporary case, children also have a constitutional right not to be harmed by the people who are now taking care of them.

This all seems obvious and resonates with us on a gut level.

When these rights are violated it is nevertheless very difficult for a parent or child to have their rights vindicated.

First, this is because the precise contours of these constitutional rights are very complex. In order to sue in federal court for a violation of these rights, a plaintiff must allege a clear constitutional or statutory right that was violated. Even though we all have an internal sense that having your children live with you is a fundamental right, the constitutional source of that right is fuzzy. It is generally thought to be a substantive due process right, but even that is hard to define. Similarly, a state generally doesn’t have to protect you from someone else’s harm. In the infamous case of DeShaney v. Winnnebago County DSS, the Supreme held that child protective services couldn’t be held responsible when it failed to remove a child from an abusive father’s care, even though it knew the child was being abused and the child was ultimately beaten so severely by the father that he suffered permanent brain damage. While this rule doesn’t necessarily apply if a child is in the care of the state when he or she suffers mistreatment, DeShaney and its progeny cases can drastically limit a parent or child’s protected interests.

The complexity of the rights involved gives way to the second problem – plaintiff’s lawyers are risk-averse and reluctant to take novel cases. Plaintiff’s lawyers generally work on contingency because wronged plaintiffs usually don’t have the money to pay hourly fees. Contingency fees are good for making sure poor people can get lawyers. The problem though is that an attorney won’t take a case on contingency unless he thinks he can win. Plaintiffs can win lawsuits against DHS, but many plaintiffs’ lawyers get scared by how complex the issues are. If they feel uncertain with the area of law, they simply won’t take the case.

Third, many parents and children who are harmed by DHS errors have trouble pursuing justice because they are often in disadvantaged populations to begin with. It is probably not very controversial to say that DHS focuses on families that are at or near the poverty line, and families where one or more parent might have a criminal record. I would imagine that many people who are victims of unnecessary removals or have children who are harmed in foster care are within these groups. While this should not in any way diminish the harm caused to these families and children by DHS violations, in many attorneys’ eyes it does.

Finally, many parents and children who suffer these harms might not even be aware that they have any rights at all. It is certainly not difficult to imagine that many people who fall victim to DHS errors might not have the extra time and resources to be able to research the issue on their own.

Because of these problems, many egregious civil rights violations and DHS errors go unaddressed. This is a tragedy, and one that can be avoided. If more parents and children were able to hold DHS accountable, not only would they have their individual rights vindicated, but this would send an important message to DHS more broadly that it cannot make up for past errors by using heavy-handed and illegal tactics.

There is hope though. Some attorneys, like me, are willing to take these cases, precisely because they are difficult. The more lawyers fight these kinds of cases, the more settled the law becomes. This allows other attorneys to follow suit.

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