A. Poverty as Grounds for Termination
Poverty frequently plays a role in child removal and failed reunification, (81) with studies indicating that "[o]nly when there is no adequate source of income are the children more likely to be removed, and at a very high rate." (82) As a related matter, Professor Dorothy Roberts has observed that "[p]arental income is a better predictor of removal from the home than is the severity of the alleged child maltreatment or the parents' psychological makeup. ... Child removal continues to relate more to saving children from poverty than protecting them from physical harm." (83)
Indeed, child protection agencies most frequently cite neglect, which is the failure of a parent to provide for the basic needs of the child, (84) "as the primary reason children are removed from the custody of their parents." (85) Data from 2008 show that 78.3% of child maltreatment reports indicated neglect, while 17.8% indicated physical abuse, 9.5% indicated sexual abuse, and 7.6% indicated psychological maltreatment. (86) Neglect may be manifest, for example, in malnutrition, failure to provide shelter, lack of adequate clothing, poor hygiene, inadequate health care, and lack of appropriate supervision. (87) However, these concerns also tend to be consequences of poverty, and they may reflect differing cultural values or community standards of care. (88) Historian Linda Gordon explains that "[p]overty is confused with neglect ... because '[poverty] often comes packaged with depression and anger, poor nutrition and housekeeping, lack of education and medical care, leaving children alone, exposing children to improper influences.'" (89) This confusion leads to judgments that parents are unfit, even when they merely lack adequate resources to provide for their children. (90)
Recognizing that low socio-economic status can undermine a parent's ability to care for a child because of the attendant struggle to meet the child's first-order needs such as food, shelter, and healthcare, some state legislatures have forbidden termination of parental rights solely on the basis of poverty. (91) Courts, too, have held that poverty alone is an insufficient ground for terminating parental rights. (92) Despite these judicial and statutory limitations, many states continue to infer child neglect based on poverty alone.
We acknowledge the great difficulty in drawing a line between poverty-driven neglect on the one hand and intentional or active parental neglect on the other. The former might be thought of as passive on the part of the parents, whose circumstances are beyond their control and who do not choose to deprive their children. The latter implicates the parents' agency and culpability, and such behavior would justify child removal.
The difficulty in drawing a line between the two scenarios presumably reflects the fact that most situations lie along a continuum between them. indeed, we found no commentator who seriously attempts to explain how child protective authorities and courts should distinguish between the two when deciding cases. In fact, few courts seriously grapple with the distinction between the two. (93)
But the challenge of differentiating between willful or active neglect on the one hand and the consequences of insufficient resources on the other does not justify removal of children living in poverty. instead, this very difficulty should make authorities more cautious about removing children from impoverished families based on a finding of neglect. Further, if courts do not take seriously this distinction, parents living in poverty will be discouraged from seeking the information and assistance they need out of fear that doing so might attract the state's attention and eventually lead to the loss of their children.
B. Under Scrutiny
Family reluctance to seek public assistance may be justified. in fact, child welfare agencies are four times more likely to investigate families receiving public assistance and to remove their children, compared to other families. …