The Perils of “Parens Patriae”

November 21, 2017 by bmc85

by Rajan Bal

To learn more about the doctrine of parens patriae, check out The Adoption and Safe Families Act of 1997: A Collision of Parens Patriae and Parents’ Constitutional Rights, by Amy Wilkinson-Hagen, available on Westlaw and LexisNexis.

It is conceptually uncontroversial that the government has an interest in protecting children from harm. Children as a demographic are more vulnerable than adults considering how many of their choices are not their own decision (such as where they live and who they live with), and as a result the government maintains a special responsibility towards ensuring their protection.[1] The doctrine of parens patriae, “parent of the country,”[2] allows the government to embrace this responsibility by intervening in the family unit to protect children whose welfare may be at risk. Under the guise of exercising this responsibility, the government often takes overly invasive action by forcibly removing children from their homes and placing the children under the care of the state. While the government should take children out of abusive households, it often confuses abusive households with poor ones.[3] As a result, poor families, often on welfare or headed by a single parent,[4] are subject to higher rates of having their family disrupted often just because they are poor.

The government must reconcile its special responsibility to protect children with parents’ unique interest in raising their children.[5] In Meyer v. Nebraska, the Supreme Court held that parents’ right to raise their own children is a fundamental right.[6] If the government aims to interfere with the family unit to protect the welfare of the children, it must narrowly tailor its intervention to accomplish that objective.[7] If it does not, the government runs the risk of evaluating its need to intervene based on standards of care for middle-class White families, which could impose untenable standards to functioning and healthy families of different backgrounds that result in damaging outcomes.

The Child Abuse Prevention and Treatment Act (“CAPTA”) was designed to help the government combat child abuse by funding state child protective services and by establishing incentives for states to encourage good faith reporting of child abuse.[8] Since CAPTA incentivizes reports of suspected child abuse[9] and offers prosecutorial immunity[10] for people making a report of suspected child abuse who do so without intending to offer a false report, what child abuse actually is can fall by the wayside. In cases in which child abuse or neglect is not blatantly clear, child abuse cases would invariably be influenced by the subjective evaluation of the situation by the person reporting the child abuse and the person evaluating the report and whether the circumstances appear like child abuse to them.[11]

Since states encourage individual parties to file reports, there is substantial over-reporting within child protective services.[12] While the government should take each claim seriously due to its compelling interest in protecting children, individual states waste many resources by investigating unfounded reports and in doing so irreparably harm approximately 700,000 families.[13] Socioeconomic differences and poverty-related circumstances often lead to misunderstandings that become the basis for these unfounded concerns and contribute significantly to the problem of over-reporting.[14] A child wearing tattered clothes and unwashed hair might appear to be a source of concern to a privileged outsider who consistently has access to clean clothing and utilities. An inspector might perceive a home with the dishes piled up and laundry on the floor and a toddler running around without the protection of baby gates might seem to be an unfit environment to raise a child. However, these factors are not necessarily indications of threats to the child’s physical or emotional safety. States are more likely to take poor children from their homes and place them in foster care than the children from more privileged families who are actually experiencing abuse and need the protection of the government.[15]

It is difficult to calculate the effects of the psychological trauma for children who are forcibly taken from their family and forced to languish in foster care when they were previously living in happy homes. Though the government interest in keeping children safe is compelling, states should be careful not to disrupt families that do not require intervention. It is important to systemically protect minority and impoverished families within child protective initiatives so that children are not needlessly taken from their homes and so that the good will of the government does not become a family’s greatest fear.

[1] Robert H. Mnookin & D. Kelly Weisberg, Child, Family, and State: Problems and Materials on Children and the Law 199 (7th ed. 2014).

[2] Parens patriae, (last visited Oct. 28, 2017),

[3] Poor families make up the majority of families reported to authorities, with the association being even clearer for families on welfare. Douglas J. Besharov, Child Abuse Realities: Over-Reporting and Poverty, Va. J. Soc. Pol’y & L. 1, 19 (2001).

[4] Id. (citing Minn. Dept. of Human Servs., Child Maltreatment Report: 1982-1991, 48-49 (1993)).

[5] See Prince v. Massachusetts, 321 U.S. 158, 165 (1944).

[6] See Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

[7] See Wisconsin v. Yoder, 406 U.S. 205, 228 (1972) (saying that because the government’s rule requiring fifteen- and sixteen-year old children to attend school is not so substantial to force Amish children to remain in school at the protest of their parents that the imposition on their rights is an unconstitutional interference).

[8] See Mnookin & Weisberg, supra note 1, at 220.

[9] See 42 U.S. Code § 5106a; 42 U.S. Code § 5116.

[10] See 42 U.S. Code § 5106a (requiring as a condition of grant eligibility that government child abuse or neglect treatment programs would include provisions for the prosecutorial immunity for individuals making good faith reports).

[11] See e.g., Robert S. Daniel, Disciplined Intuition: Subjective Aspects of Judgment and Decision Making in Child Protective Services, Tex. A&M Univ. (2003).

[12] See Mnookin & Weisberg, supra note 1, at 239.

[13] Id.

[14] See id. at 241 (citing examples of poverty-related factors that could be construed as child abuse or neglect).

[15] Id. at 239.