“Stop-and-Frisk” for Caregivers: How Expanded Mandated Reporting Laws Hurt Families

Part of the Series

Severed Ties: The Human Toll of Prisons

This story is the tenth piece in the Truthout series, Severed Ties: The Human Toll of Prisons. This series dives deeply into the impact of incarceration on families, loved ones and communities, demonstrating how the United States’ incarceration of more than 2 million people also harms many millions more — including 2.7 million children.

Imagine your child casually mentioning to her pre-K teacher that she sleeps with you and your partner in the same bed. Or your kind but nosy new neighbor, who has just dropped off some food, noticing that your six-month-old baby sometimes sleeps with you instead of in a crib. Co-sleeping or “bed-sharing” is common, and according to a number of experts, beneficial. However, many states‘ child protective services departments, and the American Academy of Pediatrics, warn against it.

If your pre-K teacher suspects your sleeping arrangement is a form of child endangerment, they are legally obligated to call child protective services (CPS). Across the US, teachers are designated as “mandated reporters” to child protective services. But increasingly, mandated reporting laws are expanding to include nearly every single one of us. In 18 states across the United States, if your nosy neighbor, or any other person, suspects that you are putting your child in danger in some way, they are mandated by law to contact CPS and report your actions — potentially resulting in a disruptive investigation and the possible removal of your child.

Co-sleeping is just one of many prevalent practices that can be considered “neglect” in the eyes of some child services agencies. Harm done to children is, of course, a real and serious problem. Yet, in addition to acts of physical harm — which make up only a small percentage of the substantiated reports — a wide range of behaviors can be classified as “neglect” or “abuse,” including personal substance use, and, in some states, a parent being a victim of domestic violence (if a child witnesses that violence). In states with universal reporting requirements, even the most misguided suspicion of abuse or neglect technically necessitates a phone call that could set a devastating legal process in motion that, in many cases, harms both parents and children.

Eighteen states now have “universal” reporting requirements, making all residents mandated reporters to child protective services, with exceptions in most states for defense attorneys and in some states for clergy. More such bills are in the works around the country. For example, in Illinois, a 2017 House bill would have essentially made all residents of the state mandated reporters. The proposed bill died in committee, thanks to the efforts of advocates, but other efforts are alive and well in other states.

The trend toward universal mandated reporting laws has been gaining steam since 2011. Why?

Mandated reporting laws were expanded in Pennsylvania after Penn State football coach Jerry Sandusky was convicted on 42 charges of sexual abuse, and an investigation revealed his actions had been previously reported, but dismissed, by co-workers and supervisors. Sandusky was convicted in 2011, and the following year saw an explosion of new legislation, and not only in Pennsylvania: 105 state bills on child abuse reporting were introduced in the first few months of 2012. Ten states enacted expanded reporting laws by June of that year.

These expansions of mandated reporting are often seen by the public as unquestionably beneficial, but they are rife with consequences.

Consider Natasha Felix, a Latina single mother, whose children — ages 5, 9 and 11 — were playing in a Chicago park next to her home on a summer day several years ago. Felix allowed the children to play outside for about a half hour. She asked her 11-year-old to keep an eye on his siblings, and Felix periodically checked on the kids from her kitchen window. An adult at the park noticed the three children playing without a caregiver present, and called the Department of Child and Family Services (DCFS) to make a report. The judge who reviewed Felix’s case pronounced the situation “neglect,” explaining that the two older children, who had been diagnosed with ADHD, were not taking medication. The children’s doctor had said that they did not need to do so over the summer. However, DCFS assumed that the 11-year-old child’s diagnosis made him unfit to supervise his siblings. Although Felix was eventually cleared of the “neglect” charges, the family endured an invasive investigation and a DCFS finding that severely disrupted their lives, including Felix’s employment, according to her lawyer Diane Redleaf, founder of the Family Defense Center.

“Even though she did nothing wrong in letting her kids play outside, her career was deeply affected and her ability to support her children put on hold — because she worked as a home health aide — after she was wrongly labeled a child neglector,” Redleaf said.

Illinois currently does not have universal mandated reporting. In a state with such a law on the books, how many more situations like Natasha Felix’s would arise? How many more families would find themselves the subjects of DCFS investigations?

Beyond the fact that co-sleeping does not equal child endangerment, not all families are at equal risk for being the target of a mandated report. For example, many middle-class and wealthy white parents engage in co-sleeping as a part of “attachment” parenting — an approach to child-rearing that emphasizes fostering a close bond between parent and child. They are less likely to be targeted than families for whom a lack of space or resources, or kinship and cultural norms, necessitate or normalize bed-sharing. In other words, whether caregivers or parents are singled out by child protective services often hinges not on whether they’re actually endangering their children, but on race, class and geography. Parents and caregivers who are most likely to be targeted are those who are part of marginalized groups that are already under surveillance.

“Expanding mandated reporting is like stop-and-frisk,” Dorothy Roberts, author of Shattered Bonds: The Color of Child Welfare and a law professor at University of Pennsylvania, told Truthout. “Because of individual and institutionalized racial bias in child maltreatment reporting, like the bias in police surveillance, these seemingly neutral practices that are supposed to increase safety end up unjustly punishing people of color.”

Data has shown that states that have recently expanded mandated reporting have received significantly more complaints coming into CPS hotlines. Notably, after CPS investigates, the vast majority of these complaints do not end up being substantiated.

However, while an investigation is being carried out, families are seriously disrupted. Children are often subject to invasive searches, traumatic interrogations and sometimes removal from the home.

As legislators push to expand mandated reporting in order to “protect” children, how many families are being torn apart?

More Harm Than Good

When critiques of the expansion of mandated reporting are raised, a common response is: “If it helps prevent child abuse, isn’t it a good thing?” Yet recent research indicates these laws do not reduce violence against children; in fact, a 2017 article in Pediatrics notes that they might result in deepening a culture of harm. For one thing, the article notes, expanding the bounds of reporting “diverts attention away from children who need it the most.”

We can see this diversion playing out in Pennsylvania, where legislators, spurred by the Sandusky case, passed a law in 2014 that greatly expanded mandatory reporting. Since then, Philadelphia’s child abuse hotline has been overwhelmed with calls. A May 2016 audit of the state’s child abuse hotline, ChildLine, found overlong wait times and a steep increase in the number of unreturned calls. When workers are left scrambling under the weight of constant reports — many of them unfounded — children who are actually experiencing severe violence may be overlooked.

Universal mandated reporting results in a higher rate of reports, according to a 2014 study — but an increase in reports is not an end in itself. In fact, the researchers noted, “changing from professional mandated reporting to universal reporting may significantly increase the numbers of reports without increasing the numbers of maltreated children identified.”

Child protective services is tasked with addressing every report as if it’s both genuine and serious, Martin Guggenheim, law professor at New York University and author of What’s Wrong With Children’s Rights, noted in an interview with Truthout. A flood of calls to a child services hotline is akin to a flood of calls to a fire department. However, he points out, we won’t be seeing a universal mandate to pull smoke alarms anytime soon. Why? Because, in all likelihood, the costs would outweigh the benefits. The same, Guggenheim says, is true for universal mandated reporting.

Beyond diverting resources, the steps that follow a call can be treacherous for children and families. After a report happens, youth are often subjected to an intensive investigation that may include full-body searches and invasive exams.

“It is an extremely painful and frightening experience to be visited by these agencies, particularly when they come late at night into one’s home,” Guggenheim said.

In 2011, in the wake of the Sandusky conviction and the rush for universal mandated reporting, Joette Katz, commissioner of the Connecticut Department of Children and Families, warned her state against passing such a law. In an op-ed, she wrote, “I worry about the children, some of whom will be traumatized by being needlessly subjected to forensic interviews and invasive medical procedures — a form of child abuse in and of itself.”

Meanwhile, research shows that mandated reporting actually deters many child survivors of violence from seeking help.

In a recent survey of people who sought support through the National Domestic Violence Hotline, more than a third of participants said they “have not asked someone for help for fear the person would be legally required to report what they shared.”

For children, this number was even higher: Almost half of participants under 18 chose not to seek help because they feared that what they shared would be reported. The study’s authors noted, “This suggests that negative perceptions or experiences of mandatory reporting laws reduce opportunities to receive support for domestic violence, especially among youth.”

Of the survey participants who were reported when they sought help, the majority said that the report either did nothing or made their situation worse.

Even self-reporting — or asking child services for help with one’s own situation — can start a dangerous process. Charity Tolliver, founder of Black on Both Sides, a Chicago-based group working against the foster-care-to-prison pipeline and the criminalization of Black mothers, told Truthout of a mom who voluntarily put her child in foster care temporarily to ensure her child’s safety and then managed to get her child back — but lost her job as a teacher, because the process created a record that associated her with child neglect and abuse, despite the fact that she never harmed her child.

In an interview with Truthout, Carolyn Hill, a grandmother and member of the all-volunteer Philadelphia-based advocacy organization DHS Give Us Back Our Children!, which was founded by parents and caregivers targeted by child services, offered similar examples of attempts at self-reporting. Hill concluded, “They say go to them for help — and then they take your kids and spread them out!”

Who Gets Reported On?

When it comes to the impact of mandated reporting, whose kids are being taken and dispersed? The answer is an eerie echo of this country’s history of slavery and colonialism: Black and Indigenous mothers are targeted in vastly disproportionate numbers.

Nationwide data on reporting disparities is not available, but some state-level data exists. In Colorado, Black children were referred to CPS nearly two and a half times as often as white children in 2009. In California, Black children made up 5.8 percent of the child population in 2008 but comprised 13.8 percent of “child maltreatment referrals.” According to data from Washington State, Native children are almost three times as likely to be reported to CPS as white children.

Fifty-three percent of African American children will experience a child protective services investigation by the time they turn 18, according to a January study published in the American Journal of Public Health.

“This rate of reporting of abuse or neglect essentially shows that African American family life is under intense scrutiny,” Redleaf said.

Moreover, reports tend to target people living in poverty, particularly since a lack of resources — food, clothing, housing — is often labeled “neglect.”

“‘Neglect’ is often a sign of poverty,” explained Mical Raz, a physician and historian at the University of Pennsylvania, and, “finding work, offering assistance with child care, a cooked meal, may be be more helpful for a struggling family than calling CPS.”

Hill reports that in Philadelphia, failing to provide a separate bed for each of the children in your care is a reason to report and remove a child. (Yet foster homes, which are often overcrowded, are provided resources to purchase bunk beds, she said.) Even a lack of formal education can be used as a justification, as Hill knows well: Child protective services took away her own nieces, whom she was caring for, and cited her lack of a high school diploma or GED as part of the rationale.

In an interview, Pat Albright, with the Every Mother is a Working Mother Network that coordinates DHS Give Us Back Our Children!, pointed out the ways in which current child services policies — which blame poor parents and caregivers for their economic circumstances — are intertwined with decades of “welfare reform.” She noted that as welfare has shrunk, child protective services has grown, moving “from an entitlement to a system that removes children.”

The ongoing disinvestment of resources from marginalized communities has had a profound impact on families’ abilities to provide for their children. For example, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) required states to create programs that had lifetime limits on access to federal benefits, tied benefits to employment, and instituted a lifetime ban on accessing aid for people with drug-related convictions. PRWORA was the final nail in the coffin of the “social welfare programs of the ‘war on poverty’,” Roosevelt University women’s studies professor Leslie Bloom told Truthout in an email, morphing what used to be social supports into a “nasty war on the poor.”

A Broken-Windows Approach to Child “Protection”

Roberts’ analogy about expanded mandatory reporting being akin to stop-and-frisk policies highlights the ways in which child protective services practices often mirror those of policing. Mandated reporters, worried about being held liable for neglecting to report a case, tend to over-report, “just in case.” As in “broken windows”-style policing, expansions of mandated reporting multiply the number of reports — and the number of marginalized people at whom fingers are pointed — without enhancing safety.

Like policing and imprisonment, child protective services and foster care have a long history grounded in white supremacy. The system’s overwhelmingly disproportionate seizure of Black and Native youth carries on slavery’s legacy of splitting Black mothers from their children and the colonial pattern of tearing apart Indigenous families.

Moreover, in recent decades, the increases in mandated reporting have paralleled the rise of the war on drugs and mass incarceration, furthering the marginalization of Black communities.

Mandated child services reporting and the criminal punishment system feed each other. Dorothy Roberts points out that while both systems independently target Black mothers, they also supplement one another’s efforts.

“Police are mandated reporters and one reason why Black families are more at risk of being reported to child protective services is because they are in greater contact with police,” Roberts said. “Police are more likely to raid their homes, making them vulnerable to child abuse and neglect reports by officers…. Conversely, increasing the risk of state investigation of parents for child maltreatment also increases the risk that state agents will report a crime committed by the parents — drugs found in the home, for example.”

Just as police make reports to child protective services, the reverse is often true. Redleaf notes that when “priority one” cases are called in to DCFS, they are cross-reported to states attorneys and police, even though the mere calling-in of a report does not indicate credibility, and in fact, most reports are found to be groundless.

Certain types of reports are particularly likely to lead to criminalization. Guggenheim says reports of substance abuse often lead to both the seizure of children and the criminalization of mothers.

Domestic violence is another area in which mandated reporting and criminalization collude, and where expanded reporting can lead to intensified criminal surveillance, according to Redleaf.

“We often see victims arrested along with perpetrators and automatic calls to DCFS even when the kids were asleep and witnessed nothing,” she said. “We believe this is a strong deterrent to help-seeking by [domestic violence] victims.”

Mandated reporting and the criminal system are linked in another way. If the state is requiring that certain people — or all people — make reports when they suspect abuse or neglect, there’s often a penalty on the books for those who don’t. Consider New Jersey’s universal mandated reporting law, which states, “Any person knowingly violating the provisions of this act including the failure to report an act of child abuse having reasonable cause to believe that an act of child abuse has been committed, is a disorderly person.” A “disorderly person” may be subject to a six-month jail sentence or a thousand-dollar fine.

It’s highly unusual for those penalties to actually be implemented. (A standout exception: In 2017, Penn State’s former president, Graham Spanier, was sentenced to jail time for a number of crimes, including failing to report abuse, in the Sandusky case. Two other administrators were also sentenced.) Still, the threat of punishment may give those who are on the fence about reporting an extra push to do so.

Reimagining Community Welfare

So, if universal mandated reporting laws won’t keep children safe, where should we turn? According to Roberts, “the entire ideology of the child welfare system must shift,” moving away from the practices of policing caregivers and removing children from their homes and toward providing resources to families.

In a “radically transformed system based on supporting families rather than investigating parents,” Roberts asked, would any kind of mandated reporting be necessary?

For example, what if a child really was at risk of experiencing harm? Roberts’ new paradigm, in which funds that are currently used for parental surveillance and child removal are channeled toward accessible and free health care and child care, might enable teachers and neighbors to connect caregivers with support and services — instead of being forced to report.

This paradigm would require a dramatic rethinking of how our tax dollars are allocated. In 2012, federal, state and local sources spent over $28.2 billion on child welfare activities, including foster care, adoption, investigations and case management. What if just a fraction of these resources were spent supporting families?

Tolliver does the math. “In Illinois, it costs $40,000 – $42,000 a year to keep a child in foster care, yet most families where that child lives are living below the poverty line.” She says it would make an “extraordinary difference” for that family to have access to even a portion of these resources.

“We aren’t solving anything by removing kids,” Tolliver said. “Most will not go back to homes that are healthier or stronger. Rather, the state has done damage, pulling parents from their jobs, placing them in a panic mode and under surveillance, and not investing in families.”

Albright agrees that public policies need to change to invest in families. She points to proposed federal legislation, such as the RISE Out of Poverty Act, introduced in 2015 and supported by a network of grassroots organizations, saying that it seeks to “push back to create welfare as an entitlement to end child poverty and reduce the amount of children in foster care.”

Perhaps a key piece of the work to facilitate systems change is to educate the public about what does and doesn’t work to make children and families stronger. Taking any step — whether it is effective or not — in the name of supporting “at-risk” children is an “easy gain,” a “good headline,” for policymakers, Guggenheim notes. This makes it all the more critical that we work to inform lawmakers and the public about the ways in which expanding mandated reporting harms children.

In the meantime, knowing that small things like co-sleeping with one’s baby can trigger a punitive landslide, women on the ground also know that resistance is in the small acts.

Grassroots groups like Black on Both Sides — and others like Welfare Warriors, in Milwaukee — are doing the everyday work that transforms people’s lives and begins to shift the system. Albright cites a recent win: Through protesting and organizing, members of the Every Mother is a Working Mother Network secured the right to attend court to support women facing child removal in Philadelphia. Hill also outlines the importance of talking with women who are caught in the child protective system and their court-appointed lawyers, aiding them in becoming savvier and stronger advocates. Tolliver describes an organized group of mothers “showing up and cleaning your house — because you need that to be able to pass a DCFS inspection.”

These organizers know that things like a clean house, an extra bed, or an ally and advocate in court or on the phone are not just small things. Rather, they can make the difference between families staying together and being broken apart. These actions also provide a crucial sense of connectedness to those struggling against a system that seeks to isolate and criminalize them.

“These movements are so important because they shift what is framed as an individual issue and remind the women impacted — in Chicago, this is really Black women — that you are not alone,” Tolliver said. “Your suffering is connected to a larger picture, not an individual issue.”