Why We Stand Firm: The Harmful Effects of CPS Investigations

If this story sounds familiar to you, that’s because this is the second time in recent years that this has happened to an HSLDA member family in Texas.

Back in 2020, I wrote an article for the Court Report titled, “On the Shoulders of Giants . . .,” which told the story of the Berrymans. Like the Pfaffs, the Berrymans were a Texas family reported to DFPS for something that happens all the time and isn’t in itself neglect. (The family had converted a walk-in closet into a nursery where their infant slept.)^[2] DFPS obtained an ex parte order from a judge to enter the Berrymans’ home and conduct a “home visit,” which would have involved detailed inspection of the house along with possible physical examinations of the children.

The article talked about how we quickly halted the Berrymans’ court order by using arguments and leaning on precedents from previous HSLDA cases, such as Calabretta v. Floyd,^[3] In re Stumbo,^[4] In re Petition to Compel,^[5] and Curry v. Kentucky Cabinet.^[6] We successfully defended the Pfaffs using the same legal playbook we used in the Berryman case.

At this point, you may be wondering: If HSLDA’s mission is to advocate for homeschool freedom, why do we take cases involving Child Protective Services (CPS) investigators and home visits? What do these situations have to do with homeschooling?

The answer goes back to 1983, when HSLDA was founded. With homeschooling rare and not even legal in all 50 states, it was not uncommon for our member families to receive visits from truancy officers or CPS investigators after a suspicious neighbor reported children “not in school.” In such situations, defending these families’ right to homeschool meant protecting their Fourth Amendment rights in the context of an unwarranted child abuse investigation.

The heart of homeschooling has always been the love and care that parents have for their children, which makes possible a safe, nurturing, and high-quality education. And unfortunately, CPS investigations are designed in a way that often violates the security and well-being that children rely on their parents to provide.

A sweeping system affecting millions of families

Millions of children are brought into the CPS system each year, and the numbers continue to grow. In 2011, some 3.4 million referrals were made to child protection hotlines, involving 6.2 million children.^[7] Those numbers jumped to 4.4 million calls and 7.9 million children in 2019.^[8]

In 2013, Stanford Law Professor Michael Wald estimated that by the time they turn 18, as many as 15% of children born in the United States will be reported to a child protection agency.^[9] Four years later, a study published in the American Journal of Public Health estimated that the percentage was even higher. The study found that “37.4% of all children experience a child protective services investigation by age 18 years.”^[10]

37.4% of children in the US experience a child protective services investigation by age 18.

In the last 20 years, significant research has been conducted to determine the impact of these investigations on the people they are designed to protect: children. These research concerns were prompted, in large part, by the fact that child protection investigations disproportionately focus on families who are impoverished, of a minority background, or disabled.

Families in poverty are 22 times more likely to be involved in the child protection system than families with incomes above the poverty line.^[11] These families can be unfairly targeted for investigation based on factors that should not determine whether a parent is fit. As Anna Belle Newport warns in the Columbia Law Review, an investigator might determine that a family cannot care for their children because they live in a “dirty home,” when that could “just as easily be a telling indicator of poverty.”^[12]

Racial minorities are also far more likely to be caught up in an abuse or neglect investigation. A 2017 report published in the American Journal of Public Health found that 53% of African-American children will deal with a CPS investigation during their childhood.^[13] It also found that Hispanic children suffer the “highest lifetime prevalence for investigated emotional abuse reports.”^[14]

Parents with disabilities and their families also suffer unfairly in the CPS system. Robyn Powell and Sasha Albert point to “decades of research” that find parents with disabilities are more likely to be involved with CPS and have their rights as parents terminated than nondisabled parents.^[15]

“The label of disability specifically impacts how parents are treated, including whether they are offered meaningful support and an equal opportunity to be reunited with their children,” said Professor Sarah Lorr, who directs the Disability and Civil Rights Clinic at Brooklyn Law School. “Indeed, the label of disability is used to strip parents of rights and credibility.”^[16]

These troubling trends become even more alarming when one considers that most CPS investigations involve situations where the investigator ultimately determines that no child was neglected or abused. Reporting data released by the states has consistently shown that the vast majority of reports received by CPS—83% in 2019—are either “screened out” (meaning the report does not meet the legal definition of “abuse” or “neglect”) or are deemed “unsubstantiated” (meaning there is insufficient evidence that a child was abused or neglected).^[17]

The vast majority of CPS reports ultimately prove unfounded. But that doesn’t mean the investigations that result are harmless.

Unintended harm to children

Regardless of their wealth or demographics, all families who face an investigation, whether it ends up substantiated or not, find themselves caught up in an “inherently coercive relationship” with CPS investigators, according to Northwestern University Law Professor Soledad McGrath.^[18]

McGrath conducted a lengthy look at this relationship while serving as chief counsel for the American Bar Association’s Justice Center. She found that most parents experience “feelings of helplessness, vulnerability, and fear,” during CPS investigations, because they are “predominately seen as adversarial and are accompanied by a daunting threat of the child’s removal from the home.” These fears are “magnified by the perception that CPS is an indomitable force that cannot be confronted or questioned,” she added.^[19]

These fears are well-grounded. Courts and legal scholarship have consistently found that CPS investigations often have significant, harmful effects on families—especially in situations where the parents or guardians have done nothing wrong.

Nineteen years ago, in her seminal article on the effects of child welfare investigations, Duke Law School Professor Doriane Coleman cautioned that, “The majority of intrusions on family privacy do not directly benefit the children involved, and in many instances actually cause them demonstrable harm.”^[20]

Further study has confirmed that “initial visits by CPS workers, regardless of the outcome of the case, can create lasting fear and trauma within the family.”^[21] And the potential for harm escalates when children are separated from their parents for any length of time.

Some removals are temporary: a child is separated from his or her parents to answer questions or undergo diagnostic tests. Other removals may be of short duration, long duration, or even permanent. But regardless of the circumstances and duration, the harms posed by separation are real.

The American Association of Pediatrics noted in 2018 that the separation of a parent from a child, even for a short time, can lead to “irreparable harm, disrupting a child’s brain architecture and affecting his or her short- and long-term health. This type of prolonged exposure to serious stress—known as toxic stress—can carry lifelong consequences for children.”^[22]

The damages can be compounded when children end up in the foster care system. MIT Professor Joseph Doyle found in 2007 that at-risk children who end up in the foster care system for any length of time are two or three times as likely to be arrested and imprisoned as adults than their at-risk peers who stay with their parents.^[23]

Finally, these long-term harms are even more unfortunate because, as Columbia Law School Professor Josh Gupta-Kagan found, citing a consensus among child welfare agencies and commentators, “The majority of children who enter and leave foster care in short periods of time ‘should have never come into care’ in the first instance.”^[24] As many as 35% of children placed in foster care are “ultimately deemed to not have been victims of abuse or neglect,” and eventually returned to their families.^[25] The harms they suffered in the meantime may have been unintended, but that does not make them any less tragic.

Unconstrained government monitoring

Even if CPS investigators never place a child in foster care, permanent and severe damage can be done to families during their investigations. All investigations involve some degree of intrusion and surveillance by government officials, which “may affect the mental health of parents and children, and financially destabilize families,” Rachel Kennedy wrote in a 2023 law journal.^[26]

As Professor Anna Arons of Washington University observes, one common investigative tactic is the “home visit”—a term that “fail[s] to capture the invasiveness of the practice.”^[27] She then went on to describe the process:

The investigator enters the home to “assess everything from the physical status of the home, to the quantity and quality of food, provisions and clothing on hand.” Investigators “may enter every room, open medicine cabinets and refrigerators, and demand identifying information for every person associated with the home.” They may even perform “body checks” on children, “stripping them of their clothing to examine their nude bodies.”^[28]

And because state laws typically require a comprehensive home search for every report of abuse or neglect, most families are subjected to a home visit regardless of what the initial report alleged: “A report that a child missed too much school leads to the same type of search as a report that a child injured themself playing with exposed wiring,” Arons wrote.^[29]

Protecting families, one case at a time

In sum, children deserve every protection from abuse they can be afforded, but they should also be protected from intrusive and traumatic questioning from strangers.^[30]

As Terri Dobbins-Baxter, professor of law at the University of Tennessee, has observed, investigations that “are unnecessarily intrusive or that separate children from their caregivers, can be traumatic and psychologically harmful to the children as well as damaging to the family as a whole.”^[31]

Or to borrow the words of the Ninth Circuit Court of Appeals more than 20 years ago, “The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.”^[32]

It is this privacy, dignity, and lawfully exercised authority on which homeschooling is built. And while HSLDA generally focuses our advocacy on the homeschooling part of that equation, there are times when the best way to defend homeschool freedom is to advocate for Fourth Amendment and parental rights.

The Constitution is clear that an investigator’s entrance into a home requires consent, a true emergency, or a court order based on probable cause to believe that abuse or neglect is occurring. When an investigator seeks a court order, it is the job of the judge to make sure that constitutional rules are followed and families are protected from needless intrusion.

And we’ll continue to be there, making sure judges complete that task.