Hi, I’m Lauryn Barbosa and I am a second-year student at Santa Clara University School of Law. I was born and raised in the Bay Area and received a B.A. in Intercultural Peace and Justice Studies, with a minor in History, at Holy Names University in Oakland. During my undergraduate studies, I was exposed to, and became passionate about, social justice. What I learned about the injustice of our criminal “justice” system, coupled with the experiences of members of my family affected by that system, drove me to attend law school. I hope to become an attorney to advance social justice by representing indigent clients in criminal defense.
Throughout this policy seminar, I will be exploring the role that the police and the Agency ― the majority of California counties refer to Child Protective Services under that moniker ― play in the removal of children and how reliance on its discretion results in an inconsistent application of the law. In 2018, the United States Court of Appeals for the Ninth Circuit held in Demaree v. Pederson that “there is no qualified immunity for investigators who remove children from a home without a warrant or immediate threat of serious physical harm to the child at all.” In this instance, a couple appealed an order of summary judgment in favor of a social worker who was alleged to have committed a violation of their constitutional rights. The couple faced criminal charges and their children were removed from their home for a month after a Wal-Mart photo technician reported photos of their children in the bathtub. A police officer made an unsubstantiated recommendation that the children were being sexually abused, which the social worker decided was determinative ― even though the children underwent medical exams for sexual trauma that came back normal and there was no other evidence. While this decision was essential for accountability and should be celebrated, this is just one instance in a sea of many where the state’s intervention did much more harm than good.
As mentioned above, local agencies retain broad discretion, under California Health and Institutions Code § 300, to remove children and this often leads to inconsistent application of the rules, especially when it comes to substance abuse related neglect. This is the niche area I will hone in on. Because every family situation is unique, I understand the necessity of some discretion on the part of the government agencies. However, I believe this unbridled discretion has created a culture where children are either snatched away from their families and placed in foster care preemptively or suffer serious harm or death because the state refuses to step in. There has to be a way to develop better statutory and policy standards that can hold the Agency and the police accountable before the only relief available is a lawsuit, since at that point the damage is already done and the trauma has already been inflicted.
This area is of particular interest to me because I have witnessed the lives of children be severely impacted by the decisions of the police and the Agency in this exact area and the courses of action were drastically different in each case. While the cases I witnessed first-hand will not be the focus of my research, I will use other cases to compare the facts and identify patterns in the actions of the Agency and police officers regarding the removal of children. I will also use current police manuals and policy guides to demonstrate the issues with current protocol. I am intending to use those patterns and current policy guides to formulate policy recommendations that will provide for a more consistent application of the state’s obligation to protect children under California Health and Institutions Code § 300.
CrimLawandPolicy 