Parental Rights of “Non-Offending” Out-of-State Parents

In a recently filed Section 1983 lawsuit, two Maryland dads are challenging how Washington, DC’s child welfare system treats out-of-state parents. The mere existence of this suit sheds light on the significant challenges inherent to reforming child welfare agencies.

The legal challenge centers on how the DC child welfare agency interprets the Interstate Compact on Placement of Children.  The Compact – which DC and all 50 states have signed – requires special investigations for out-of-state foster care placements, with the idea of ensuring that these placements are safe and nurturing for the kids. In this case DC declined to release the children into the Maryland fathers’ care until their home state completed a lengthy, in-depth investigation into their fitness – even though there were no allegations against Adgerson and Wilson.  As a result, Adgerson and Wilson’s children languished in foster care for several months before DC approved a move to their fathers’ homes.

The controversial thing is that DC’s child welfare agency requires these heightened investigations even when the “out-of-state placement” is with a child’s parent, and even where there is no allegation that the out-of-state parent is unfit.

What Andre Adgerson and Sam Wilson (the plaintiffs in the suit) and their children experienced – a child in foster care, separated from her parent, for an unpredictable period of time – would be a nightmare for any family.  And, at the pleadings stage, the case raises a very solid argument that DC deprived the dads of their constitutional rights.  Parents, of course, have a constitutionally protected interest in their relationship with their children under the Fourteenth and Fifth Amendments (see, for example Troxel v. Granville and Pierce v. Society of Sisters), plus a right to due process before the state encroaches on that interest (see, for example, Stanley v. Illinois).  Adgerson and Wilson’s case also raises equal protection concerns, based on DC’s differential treatment of out-of-state parents versus DC residents and (potentially) on discriminatory treatment of fathers.

Given the seriousness of the fathers’ constitutional claims and the sympathetic nature of their story, one can’t help but wonder: why is a lawsuit necessary to resolve this problem and spur a revision to DC’s policies?

As the Washington Post reported, DC’s interpretation of the Compact impacts about 12 families each year.  This is a non-negligible number of families, of course, and the harm to each is significant.  But the relatively narrow scope of the problem suggests that it would be a simple fix for the agency, one that wouldn’t require significant changes to its overall operations.  Why, then (assuming advocates tried other means of persuading the agency before litigation, which seems very likely), did the child welfare agency resist changing its policies for out-of-state parents?

One idea is that DC’s policy on out-of-state parents is tied to a larger issue, namely how child welfare agencies deal with parents who are not charged with abuse and neglect.  In a recent article, Vivek Sankaran explains that the majority of states in some way restrict the parental rights of “non-offending parents” even when there is no evidence of wrongdoing or unfitness by that parent.  Perhaps DC’s agency was reluctant to revise its policies on non-offending out-of-state parents because it might then have to reexamine its approach to all non-offending parents.  (And the agency may have a very good reason for its hesitance, that is, concern about endangering its mission to protect children.)  Extrapolating to a more general conclusion, even apparently minor reforms to the child welfare system may prove challenging when they are connected to broader issues.