Every Family Deserves the Benefit of the Doubt

Vivek Sankaran
Vivek Sankaran, University of Michigan Law School

Every family enjoys its stories. Several years ago, mine had its “Home Alone” moment.

My brother, his wife and their two children were visiting my parents in New Jersey. They agreed to head out to dinner – in two cars – to a restaurant about 45 minutes away. When everyone arrived at the restaurant, they all jokingly asked where one of my nephews was, assuming he was in the other car. Only after a few long seconds passed did they realize that they had accidentally left him behind!

My nephew – around 10 at the time – was busy tending to the backyard garden when both cars had departed. Upon realizing that everyone had left without him, he went to a neighbor’s house and patiently waited for their return. Eventually, laughs were exchanged by all, recognizing that accidents happen. Nobody called the police. Or child protective services. The story remains a favorite in our family lore.

About a year after our “Home Alone” moment, one of my clients – a single mother of several children – accidentally allowed her child to be alone. My client had worked late and had committed the unforgivable sin of sleeping in. Her son, a precocious 4-year-old boy, decided to let his mother sleep in and instead took his dog for a walk, by himself, in the park across the street.

Quickly, neighbors noticed the boy alone with his dog and called the police. The police brought the boy to his house, questioned my client, recognized that it was an accident and left. But since a child was involved, the police felt legally compelled to notify child protective services.

For two days, child protective services did nothing. But then they discovered that my client had prior history with the agency – nearly a decade-old, related to domestic violence incidents – and immediately came to the home. Rather than view the incident as an accident, they presumed that it showed a pattern of poor decision-making. What kind of parent remains asleep when their 4-year-old is awake?  So they removed the child and requested that the judge suspend all contact between the child and his mother.

The judge granted the request. It took over three years – and an appellate court – to get this child reunified with his mother.

So much of our work in child welfare hinges on who gets the benefit of the doubt. As every parent knows, accidents happen all the time. Children fall. They get lost. They do dumb things. They get hurt. Every single family experiences these types of things every day. Thank goodness no one is watching my parenting missteps.

But when accidents happen, some of us operate with the presumption that we are good parents. Society presumes we are making good decisions for our children. Thus, accidents are viewed through this lens, precluding anyone from seriously questioning the decisions we make as parents. Spend enough time in any privileged neighborhood and you’ll hear about a lot of sketchy parenting decisions that the government never questions.

Others, however – because of their poverty, gender, marital status, race and education, among other factors – don’t get this presumption. They are viewed with suspicion. Their decisions are constantly questioned and scrutinized. When accidents happen, they are often seen as further evidence that the “bad” parent has “let” another bad thing happen – yet another reason demonstrating why the child shouldn’t be living with that parent.

Family Preservation
A privileged family’s “Home Alone” moment can be a harrowing foster care experience for other parents.

I remember when the child of a former colleague – who was white – accidentally ingested a lot of medicine, requiring a trip to the emergency room. She raced home to meet her husband so that they could transport their toddler to the hospital.

But she paused, and then told her husband to stay home. Although she was white, he was black, and she rightfully assumed they’d get fewer questions and accusations if he stayed home. So he did.

The professionals wrote the incident off as a silly accident, and the child returned home quickly. As a white woman, she got the benefit of the doubt. But her husband – a black father – may not have.

Those of us in the privileged class need to think about who gets the benefit of the doubt. Here’s a radical thought: let’s extend it to everyone.

Do we really want to live in a society where we blame people for every accident that happens? Do we really want to micromanage every parenting decision, waiting for a misstep so that the government can intervene?

If this were our reality – which again, for the privileged class it is largely not – think about how that would paralyze our ability to make decisions for our children. Imposing strict liability for every accident that involves your children? Count me out.

Instead, why not recognize that accidents happen every day to all of us parents?  (Just head to the Lost Child counter at Disney World if you need a reminder). When they happen, let’s help parents make sure that their child is OK, share a laugh with the family and make the story a part of their family lore. And then we can move on to the many issues that should really concern us.

Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School. Follow him on Twitter at @vivekssankaran.

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