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THE CASE FOR REQUIRING PROBABLE CAUSE
BEFORE THE STATE CAN TAKE CUSTODY OF A CHILD
Across Oregon, state employees take children from parents in an effort to prevent or stop physical, sexual or emotional abuse. The days when government could not intrude into the family are past, and the protection of our most vulnerable, our children, is now part of the law, as it should be. But the pendulum has swung too far. A more reasonable, less intrusive, less potentially destructive set of policies to govern the taking of custody from parents is needed. I believe the best and most straightforward way to reach the right balance between respect for the family and parental rights, and the need to protect the most vulnerable, is to require “probable cause” and a court-signed warrant based upon it, absent emergency circumstances, before the state can take a child.
If you review the ORS that gives the state the power to take a child from its parents, you will find that authority is not limited to circumstances of known or reasonably believed physical or sexual abuse or severe neglect or abandonment. Those reasons are present, but, so, too, is a clause that allows taking custody “for any other reasonable cause.” This grant of authority basically says that the state can take a child for any reason, if not totally crazy, that it’s agents may choose.
And it is not only the reasons for which custody can be taken that is crazy. So, too, is the burden of proof the state must make in meeting the statutory bases for taking custody. The state cannot search someone without probable cause, nor take away one’s right to drive without probable cause that he has committed a violation endangering life, limb or property. While protecting a child against violence or sexual abuse is very important, it is not more important that preventing a drunk or “stoned” driver from killing someone (perhaps even a child). In either case, the right way to create a state power is to define it and limit it to appropriate circumstances. American law has a long history of successfully balancing such competing concerns. It has found that a standard of probable cause, before the state can act against a person’s rights, is viable and appropriate.
It is simply amazing that the law now allows the state to take a child from its parents for “any reasonable cause” and that the burden the state must meet before doing so is nowhere defined. Under current rules, allowing a child to watch ugly television or listen to offensive music, or not providing enough reading or education at home can, conceivably, be grounds for losing custody. While this is an extreme, and unlikely, situation, it is one that is authorized by current law.
The results of current law are harmful. We are spending resources on cases where state intervention is or questionable or even perhaps wrong,, or where a normal burden of proof could not be met. Some children now tell their parents that, if they do not get their way, they will “turn you in” to the government. This is wrong, and it hurts the children At the same time, by stretching our social services resources impossibly thin, we make inevitable bureaucratic failures like those that allowed the killing of two young girls by Ward Weaver.
We should focus our limited resources on the cases where state intervention is clearly needed, make sure those interventions do happen, and stop trying to make the state into the parent except where clearly needed. We need a tested, viable legal standard for when the state should act, and for what level of evidence is needed before it may act. At present, we have neither. We need to remove the clause that allows the state to take a child for “any reasonable cause” and require probable cause that actual violence, abuse or severe neglect has occurred before custody can be taken.
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Ed Johnston 541-336-7045
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