Throwing the Baby Out With the Bathwater

George Mason University Law Professor David Bernstein has a thought-provoking post on the seizure of hundreds of children, including nursing infants, from their mothers, who belong to a strange polygamist sect (FLDS).  At the end of the day, the sect’s disturbing practices (such as allegedly conditioning adolescents to accept underage polygamous marriages) may well warrant removal of many of the children from their parents’ custody, but the decision by Judge Barbara Walther allowing the immediate seizure of all the children, regardless of age, prior to a full judicial hearing (based on a single, anonymous, apparently false allegation of abuse), and absent an imminent threat to their health, seems indefensible and in violation of due process and the children’s constitutional rights.

Taking an infant away from its mother can be very damaging to the infant.  (For example, my daughter, a very finicky eater, will not let anybody other than my wife or me feed her, and she usually only lets me feed her if it’s early in the morning.  We have to work diligently to get her to eat enough).  That’s especially true for nursing infants.

Being placed in foster care can be cause devastating psychological harm to a young child, as Judge Kleinfeld noted in Doe v. Lebbos.

Moreover, erroneous child abuse charges can have legally permanent, irrevocable consequences that devastate a family.  In Arlington County, Virginia, parents proved themselves innocent of a false, anonymous charge that they were starving their child (who was actually at her proper weight when CPS workers snatched her), but the judge later refused to return the child to them, permanently cutting off their parental rights based heavily on his conclusion that the child — seized as a newborn — had developed a bond with her foster parents as a result of being snatched.  (That ruling is on appeal).

Federal law provides financial incentives for CPS agencies to seize and adopt out children, which may lead to overzealous child-snatching.