In March, the national Commission to Eliminate Child Abuse and Neglect Fatalities issued its final report, “Within Our Reach: A National Strategy to Eliminate Child Abuse and Neglect Fatalities.”
In my opinion, one item in this strategy is of particular note because it represents a step away from traditional (and insufficiently effective) approaches, is especially effective and entails little cost.
The emerging practice of “birth match” is a simple process by which states take identifying information birthing facilities routinely report to the health department about biological parents of newborn children, and compare this information to registries of past child maltreatment. A match results in notice to a local child protection agency, which assesses the birth parents’ current situation.
If the agency finds the parents no longer have the problems that caused earlier maltreatment, or that the newborn child will be safe if the agency secures services and assistance for the parents, then the state reposes custody of the newborn child with the birth parents and provides whatever assistance is appropriate. If, however, the agency finds the newborn child would be at substantial risk of maltreatment in the birth parents’ custody, the agency takes custody of the newborn and proceeds as it would in any other case of protective removal.
The rationale for birth match is so obvious one wonders why it is only in the past decade that states began to adopt the practice.
People who seriously maltreat one child are highly likely to maltreat another; a record of past maltreatment is the leading predictor of future maltreatment.
“We know that at least half of the families of children who die from maltreatment were known to CPS agencies,” the commission report states.
Babies are at greatest risk of serious maltreatment and death for several reasons – their vulnerability, lack of contact with the outside world, inability to communicate and extraordinary needs.
A prefatory letter from the commission’s chairman states that child welfare leaders are now finally “ready to get ahead of the curve in order to prevent fatalities.” They can no longer tolerate “[o]ur current approach,” which “waits until a child is severely injured before intervening with vital support.” Child welfare agencies “need to dramatically redesign our approach,” above all else shifting from reaction to prevention.
Birth match is an essential component of effective prevention.
I proposed examination of birth parents’ history in a 2006 book entitled Children’s Relationship Rights. I explained that it does not entail obtaining new information about people, but simply combining two databases already in the state’s possession, and so has no effect on privacy. I explained that the state bears responsibility for harm to children by birth parents if the state knew, when the child was born, that those parents posed a serious danger because of their past behavior or current dysfunction (e.g., severe substance abuse), yet nevertheless empowered those birth parents to take unsupervised custody.
The state creates legal parent-child relationships and confers legal custody of children on particular people, whether biological parents or adoptive parents. Certainly if the state placed a child with adoption applicants who had previously abused children, we would accuse the state of wrongdoing and demand accountability.
Now four states have legislation instituting a form of birth match.
Maryland and Texas look only for past child maltreatment that resulted in involuntary termination of parental rights, and authorize only an assessment and the offer of services. Even this very limited matching has resulted in open CPS cases for many newborns who otherwise would not have come to CPS’ attention until after being maltreated, according to a study published in the Journal of Public Child Welfare and a report in the Austin American-Statesman.
Michigan checks maltreatment records for not only involuntary terminations but also parents whose rights as to another child would have been terminated except that: a) the abused child died; b) the child was placed in a permanent guardianship; or c) the child would remain with the other parent and a no-contact order was in place, thereby identifying over a thousand children per year at high risk but otherwise not known to CPS. And Michigan law requires a full investigation of those birth parents’ current conditions and circumstances.
New York City’s Administration for Children’s Services, by agency directive, requires case workers who know a parent in their caseload is expecting a child to create a record of that so the birthing facility notifies the agency when the child is born. The case worker takes custody of the newborn child unless the parents show this is unnecessary for the child’s safety. Removals of children less than one month of age in NYC more than doubled by this policy, from 250 per year to over 550 per year, sparing over 300 children from high-risk situations.
Minnesota has the most comprehensive program, identifying for assessment or investigation all birth parents who have previously subjected a child to “egregious harm,” been found “palpably unfit,” had parental rights involuntarily terminated, or “committed an act that has resulted in the involuntary transfer of permanent legal and physical custody of a child to a relative,” according to statute.
The federal commission’s report should motivate many other states to adopt this effective and ethically requisite step to preventing predictable child abuse and fatalities.
Jim Dwyer is the Arthur B. Hanson Professor of Law at the William & Mary School of Law. He teaches courses in Youth Law and Family Law, and his scholarship focuses on child welfare and children’s rights.