Under the Watchful Eye of All: Disabled Parents and the Family Policing System’s Web of Surveillance

The child welfare system, more accurately referred to as the family policing system, employs extensive surveillance that disproportionately targets marginalized families and subjects them to relentless oversight. Scholars observe that this ongoing surveillance obstructs effective parenting, exacerbates existing injustices, and contradicts the system’s stated protective purpose. Instead of safeguarding families, surveillance becomes a tool to control those it should assist, particularly the already vulnerable. This Article extends the analysis of the family policing system’s surveillance practices to encompass parents with disabilities and their children, revealing the unique consequences of continuous observation. The system’s ableism amplifies scrutiny of disabled parents, disregarding their disability-related needs and causing harm under the guise of protection. This persistent surveillance culminates in heightened systemic harm, trapping families in an inescapable cycle of perpetual scrutiny.

This Article provides a nuanced and novel analysis of the family policing system and its extensive surveillance targeted at disabled parents and their children. It begins by detailing the legal framework that supports the surveillance apparatus, investigating constitutional protections, federal and state statutes, and disability rights laws. The exploration then turns to the intricate network of surveillance mechanisms that ensnare disabled parents and their families. This pervasive scrutiny includes mandated reporting, family policing system investigations, “service” plans, child maltreatment registries, and digital surveillance tools. Subsequently, this Article uncovers the harms arising from such surveillance, both directly and within the broader context of societal injustice. Concluding with a call to action, this Article proposes normative legal and policy solutions to challenge the system’s surveillance. These measures include revising the definition of neglect, constraining the system’s scope of surveillance, establishing rights akin to Miranda warnings, revoking mandated reporting laws, ensuring prompt access to legal representation, and reimagining support systems for families. These solutions must be integrated into broader initiatives aimed at abolishing the family policing system entirely, freeing marginalized families from the cycle of being pathologized, controlled, and punished. Ultimately, the only path to liberating disabled parents and their children from perpetual scrutiny is through the complete dismantling of the family policing system, ensuring they are no longer under the watchful eye of all.

Table of Contents Show

Introduction

In February 2018, Alysha Princess Cesaire, who has a genetic neurological disability affecting her mobility, hand coordination, and speech, gave birth to her son Elijah in a Florida hospital.[1] Due to Cesaire’s disability, someone at the hospital contacted the local child abuse hotline expressing doubts about her fitness as a mother.[2] In response, Cesaire’s extended family rallied together to create a comprehensive care plan for the newborn.[3] This involved various relatives taking time off from work and devising a strategy that would eventually include enrolling Elijah in daycare.[4] However, this carefully devised plan was never given a chance to unfold.[5] Instead, the Broward County Sheriff’s Office (BSO), tasked with investigating child neglect and abuse cases, intervened by removing Elijah from the family’s care and initiating legal proceedings to place him under state custody.[6]

Fortunately, the BSO’s petition was dismissed by a judge who recognized that there was no basis to take away this newborn, who had yet to even leave the hospital.[7] As a result, Elijah was reunited with his family.[8] Nonetheless, the repercussions of this distressing experience lingered for Cesaire and her son.[9] Over the subsequent three months, BSO continued its intrusive oversight of the family, repeatedly calling and showing up at the family’s home, demanding access to Elijah at all times of the day.[10] This ongoing scrutiny left Cesaire feeling targeted and unfairly treated, as if she had done something wrong—emotions that endured years later.[11]

In 2022, Lauren and Andrew Hackney similarly became ensnared within the family policing system[12]—a consequence of the system’s extensive surveillance of families like their own.[13] The Hackneys’ initial joy, following the birth of their daughter, quickly turned into distress when she abruptly began rejecting her bottles.[14] This occurred during a nationwide formula shortage, which only made matters worse. In search of nourishment for their daughter, the couple traveled from Pennsylvania to West Virginia and ultimately switched formulas, which unfortunately caused her once vibrant demeanor to fade into lethargy.[15] After consulting their pediatrician, the Hackneys admitted their daughter to the hospital. A heart-wrenching, two-week period ensued, during which she grappled with severe dehydration and malnutrition. Throughout it all, the Hackneys, who both have developmental disabilities—Lauren’s attention-deficit hyperactivity disorder impacting her memory, and Andrew’s comprehension challenges and stroke-induced nerve damage—remained steadfastly by their daughter’s side.[16]

After a transfer to a rehabilitation facility, the Hackney’s eight-month-old daughter gradually regained her appetite.[17] Just as the Hackneys prepared to bring her home, the Allegheny County Office of Children, Youth, and Families (CYF) intervened, suspecting negligence and taking custody of the child.[18] On February 29, 2024, the Hackneys filed a lawsuit against CYF, alleging disability-based discrimination.[19] During this period, the Hackneys’ interactions with their daughter were limited and supervised, a painful reality for parents who have endured separation from their daughter during most of her early years.[20]

Meanwhile, the couple was left questioning whether CYF’s use of a predictive artificial intelligence (AI) tool unfairly targeted the couple based on their disabilities.[21] Rather than objectively assessing parenting ability, the AI risk-assessment tool could potentially discriminate by incorporating disability status, or related factors like income and benefits receipt, in a way that equates disability with higher risk.[22] Indeed, when the Hackneys asked their caseworker what they could do to get their daughter back, the caseworker said, “I’m sorry. Your case is high-risk. The machine has labeled you as high-risk.”[23] This concerning experience has sparked a U.S. Department of Justice (DOJ) investigation to examine whether the county’s utilization of this algorithm discriminates against disabled parents[24] and other marginalized communities.[25]

Regrettably, the accounts of these families are not isolated incidents; rather, they reflect a distressing pattern that is all too familiar. As I and other scholars have explored extensively, parents with disabilities and their families confront alarmingly high rates of family policing system involvement and encounter disproportionately adverse outcomes compared to parents without disabilities and their families.[26] At each stage of their involvement with the system, from initial referral to the severing of family ties, disabled parents and their families face greater scrutiny and harsher sanctions—including increased rates of reports, investigations, child removals, and termination of parental rights—than their nondisabled counterparts.[27] While scholars have thoroughly studied the experiences of disabled parents and their families trapped within the family policing system, scant scholarship has scrutinized how the system inflicts distinct injuries upon these families through its pervasive surveillance mechanisms. To bridge this scholarly gap, this Article examines the omnipresent surveillance imposed on disabled parents and how it contributes to distrust, stigma, unnecessary family separation, and poor outcomes in the family policing system. The stories described above underscore the need for this analysis.

The family policing system employs extensive surveillance that unfairly targets marginalized families, subjecting them to constant and oppressive scrutiny.[28] Far from protecting these families, the system’s unrelenting monitoring hinders parents’ ability to care for their children and perpetuates injustice.[29] The compliance-driven structure enables the weaponization of surveillance against the very families it claims to safeguard.[30] Legal scholars Dorothy Roberts and S. Lisa Washington assert that this pervasive oversight constitutes “state violence” against marginalized communities.[31] Ultimately, the system’s authoritarian methods destroy far more families than they help.[32] As this Article will demonstrate, this repressive surveillance regime disproportionately impacts parents with disabilities, placing their every move under a “societal magnifying glass.”[33] The system arbitrarily and incorrectly presumes marginalized parents, including disabled parents, are risky and deficient. In the name of a child’s “protection,” the system’s invasive practices injure families rather than support them. The result is systemic harm under the guise of benevolence.

This Article is organized as follows. Part I describes the legal framework enabling the family policing system’s surveillance apparatus. It examines constitutional protections, federal and state statutes, and disability rights laws. Part II then explores the pervasive web of surveillance that disabled parents and their families are caught in, including mandated reporting, family policing system investigations, “service” plans, child maltreatment registries, and digital surveillance tools. Thereafter, Part III explores the harms inflicted by this surveillance, both directly and in connection with broader injustices. Finally, Part IV considers normative legal and policy solutions for challenging the system’s expansive surveillance. These measures include amending the legal definition of neglect, eliminating abusive forms of reporting, enacting Miranda-type rights, repealing mandated reporting laws, ensuring early access to legal representation, and reimagining support for families. Fundamentally, these proposals need to be woven into larger initiatives aimed at abolishing the family policing system altogether, so marginalized families are no longer pathologized, controlled, and punished.[34] Indeed, the only path to liberating disabled parents and their families from perpetual scrutiny is through the complete abolition of the family policing system, thus ensuring that they are no longer under the watchful eye of all.

I. Legal Framework Enabling Surveillance

Surveillance is imbued into the very fabric of the family policing system’s legal framework. This Part explores this framework and its expansive powers, including constitutional protections—like the Fourteenth Amendment’s Due Process Clause and the Fourth Amendment’s prohibition on unreasonable searches—as well as federal family policing system laws, including the Child Abuse Prevention and Treatment Act (CAPTA), the Adoption Assistance and Child Welfare Act (AACWA), the Adoption and Safe Families Act (ASFA), and the Family First Prevention Services Act (FFPSA). It also describes states’ mandated reporting statutes, which compel certain people to report any suspicions of child maltreatment. Finally, this Part considers the application of federal disability rights laws, like the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, to disabled parents who are involved with the family policing system, specifically analyzing how these laws may or may not constrain the system’s surveillance apparatus. While, on paper, this legal framework aims to balance child safety and family privacy, in practice, these constitutional protections, federal and state statutes, and disability rights laws provide limited constraints on the family policing system’s discretion to conduct sweeping surveillance and monitor families. Thus, the current legal framework grants the family policing system far-reaching surveillance powers with few substantive checks or balances. This Section demonstrates that surveillance is embedded throughout the family policing system’s legal scaffolding.

A.     Constitutional Protections

The family policing system’s vast surveillance apparatus tests the boundaries of constitutional protections. In particular, two key constitutional provisions are relevant: the scope of parental rights under the Fourteenth Amendment’s Due Process Clause and the degree of privacy afforded by the Fourth Amendment’s prohibition on unreasonable searches and seizures. With respect to the former, the Supreme Court recognizes parents’ fundamental liberty interest in raising children free from undue state interference; but this parental authority is limited by the state’s parens patriae power to protect children’s well-being, including by severing the parent-child relationship when necessary. [35] As for the Fourth Amendment, it aims to safeguard people from unwarranted government intrusion. However, these privacy protections often prove weak or meaningless for families ensnared in the family policing system. This Section explores these critical issues in turn.

1.     Due Process Protections

The substantive due process rights provided by the Fourteenth Amendment allow parents to make childrearing decisions free from undue governmental interference. Additionally, procedural due process protects against the permanent deprivation of fundamental parenting rights without fair procedure. The Supreme Court has repeatedly held that a parent’s right to the care, custody, and control of their children is vital “to the orderly pursuit of happiness.”[36] The Court first recognized the existence of a substantive due process right to direct the upbringing of one’s child in the 1923 case Meyer v. Nebraska.[37] In Meyer, the Court struck down a Nebraska law prohibiting the teaching of foreign languages to students before the ninth grade, overturning the conviction of a teacher who violated the law by speaking German in the classroom. It found that this law impermissibly infringed on parents’ liberty interests under the Due Process Clause of the Fourteenth Amendment, which protected their control of the education and upbringing of their children (including exposure to foreign language instruction).[38] Two years later, in Pierce v. Society of Sisters,[39] the Court again affirmed this parental right by striking down a law that required parents to send their children to public schools.[40] The Court famously stated, “The child is not the mere creature of the State; those who nurture [them] and direct [their] destiny have the right, coupled with the high duty, to recognize and prepare [them] for additional obligations.”[41]

In subsequent decades, the Court reaffirmed and expanded the rights articulated in Meyer and Pierce. For example, in Prince v. Massachusetts,[42] the Court described the parental right as a “sacred private interest[],” even while upholding a child labor conviction.[43] Following Meyer, Pierce, and Prince, the Court has relied on the parental right to limit state intervention in family matters concerning a child’s religious upbringing,[44] familial associations,[45] and medical care.[46] This jurisprudence rejects the notion that the state is the primary guardian of the child, instead carving out a sphere of decision-making authority that constitutionally belongs to parents. Parental rights have become a firmly established component of substantive due process rights and restrain the government’s excessive intrusion into family life.

Moreover, the Court has clarified that parents are entitled to procedural fairness when the state seeks to infringe on parental rights. Determining what procedural protections are required under the Due Process Clause involves balancing the private interests at stake, the government’s interests, and the risks of erroneous decisions under the procedures used.[47] In Stanley v. Illinois,[48] the Court held that an unwed father was entitled to a fitness hearing before losing custody when his children’s mother died.[49] Moreover, in Santosky v. Kramer,[50] the Court ruled that, given the permanency and gravity of terminating parental rights, states must prove allegations with “clear and convincing evidence” before making such a determination.[51] Santosky establishes that, when severing the parent-child relationship, more than a preponderance of the evidence is required to satisfy due process.[52] In Lassiter v. Department of Social Services,[53] the Court found that due process may require appointing counsel for parents in some termination proceedings.[54] Additionally, in M.L.B. v. S.L.J.,[55] the Court ruled that free trial transcripts must be made available to poor parents appealing the termination of their parental rights.[56] On multiple occasions, the Court has described even temporary disruptions of the parent-child relationship through family policing system interventions as a “unique kind of deprivation,”[57] warranting greater procedural safeguards than typical civil cases. By underscoring the fundamental nature of parental rights, the Court’s jurisprudence has compelled elevated due process protections against undue state interference in the family.

Notwithstanding these constitutional protections, parental rights are not absolute. In certain situations, as observed in Wisconsin v. Yoder,[58] parental decisions may be limited when they jeopardize the child’s health or safety or have significant social implications.[59] Thus, under the state’s parens patriae interest in promoting the well-being of children, it retains the authority to permanently sever parental rights if necessary to protect the child.[60] This legal authority is exercised through the family policing system, which empowers states to investigate child abuse and neglect allegations and to take action, including surveillance and termination of parental rights, when necessary to safeguard children’s welfare.

2.     The Fourth Amendment

The Fourth Amendment of the Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”[61] Privacy is at the core of the Fourth Amendment. More than just safeguarding property, the Fourth Amendment aims to protect people from unwarranted government intrusions into their private lives and affairs.[62] The Warrant Clause in the Fourth Amendment operationalizes these protections by requiring that search warrants only be issued when there is probable cause.[63] Additionally, warrants must be supported by oath or affirmation and describe with particularity the place to be searched and items or people to be seized.[64] In Mapp v. Ohio,[65] the Supreme Court ruled that the Fourth Amendment applies to states through the Due Process Clause of the Fourteenth Amendment.[66]

For marginalized communities, particularly poor people and people of color, the promise of privacy within the home often proves hollow. Legal scholar Khiara Bridges’s research reveals that poor Black mothers face significant privacy infringements across various contexts, including reproductive healthcare and informational privacy.[67] This erosion of privacy extends beyond healthcare into the homes of people who receive public assistance, as evidenced by the Supreme Court’s ruling in Wyman v. James.[68] In this landmark decision, the Court sanctioned warrantless home inspections for welfare recipients, deeming such surveillance a “reasonable administrative tool” that did not violate Fourth Amendment protections against unreasonable searches and seizures.[69] The Court’s reasoning that these visits did not constitute “searches” under the Fourth Amendment because recipients had consented to them as a condition of receiving benefits, and that, even if considered searches, they required only “[r]easonableness” rather than warrants or probable cause,[70] further underscores the systemic denial of meaningful privacy rights to marginalized communities. This decision effectively created a lower standard of privacy protection for those relying on public assistance, disproportionately impacting poor communities and people of color, and illustrating how the assurance of privacy within the home remains a privilege not equally extended to all members of society.

Bridges argues that the rationale behind rulings like Wyman is rooted in moral judgments of poverty. The Court and welfare officials operate under the assumption that poverty signals moral failure, which warrants increased monitoring of welfare recipients.[71] Moreover, Bridges highlights how these searches are falsely portrayed as consensual. When consent to visits is required to continue receiving public assistance, it is coerced. On the one hand, a poor parent might choose to accept public assistance and thus relinquish privacy rights within their home. On the other hand, they could decide against receiving such benefits, but this could lead to a family policing system inquiry due to their inability “to provide [their] children with consistent food, clothing, shelter, and healthcare.”[72] In such a situation, the parent is left without a viable route to maintain their privacy.

Despite precedents like Wyman, most federal circuit courts have held that the Fourth Amendment requires family policing system caseworkers to obtain a warrant, consent, or have grounds for a warrant exception before searching a home.[73] However, in contrast to the criminal legal system, where getting a search warrant necessitates a determination of probable cause,[74] only a handful of jurisdictions mandate probable cause for granting home entry orders in family policing system investigations. The term “probable cause” is explicitly mentioned in only five states’ statutes,[75] while other states set lower thresholds of evidence, such as “reasonable suspicion” or “if necessary.”[76] Some statutes are even more ambiguous, mentioning no standard at all.[77] This range of standards, or lack thereof, provides the judiciary significant discretion in family policing system cases. [78] Where lax or no standards are in place, judges may rely more heavily on personal values or subjective interpretations rather than established legal criteria. This situation stands in stark contrast to nonadministrative contexts where the probable cause requirement serves as a crucial safeguard against unreasonable searches. The absence of a uniform, rigorous standard in family policing system cases potentially undermines the Fourth Amendment protections that the warrant requirement is designed to ensure.

Accordingly, family policing system investigations exist in a legal gray area of constitutional protection. The Supreme Court has not ruled on whether the Fourth Amendment fully applies to family policing system investigations.[79] Meanwhile, family policing system workers are not law enforcement, yet they conduct searches and seizures like police do.[80] Over the years, courts have effectively created a “child welfare exception” to customary Fourth Amendment requirements for warrants and probable cause.[81] Agencies and courts view safeguarding family privacy as jeopardizing child well-being, providing justification to overlook constitutional search protections.[82]

Moreover, the Fourth Amendment’s theoretical privacy protections rarely materialize as meaningful privacy safeguards for poor families. As with other rights, the privacy rights of poor parents often prove “weak” and “meaningless.”[83] Consequently, few parents under investigation by the family policing system can “retreat into [their] own home and there be free from unreasonable governmental intrusion.”[84] Indeed, family policing system agencies perform countless investigations each year, routinely requiring access to families’ residences as a standard procedure in nearly every case. Parents remarkably, but not unsurprisingly, comply with these requests most of the time. According to some calculations, at least ninety percent of families agree to searches by family policing system officials. But the coercive power dynamics at play call into question whether such “consent” is truly voluntary.[85] As a result, most of these invasive home searches occur without meaningful judicial oversight or endorsement.[86] Ultimately, the prevailing ethos within the family policing system fosters a sense of normalcy around informal surveillance in the form of home visits to the extent that family policing system agencies seldom make attempts to secure court orders or warrants before initiating searches.[87]

B.     Family Policing System Statutes

Mandated reporting laws, which require designated people to disclose suspected child maltreatment to authorities, are a central pillar of the family policing system’s surveillance apparatus that emerged in the 1960s as societal consciousness of child abuse and neglect expanded. The impetus was a 1962 medical journal article titled “The Battered-Child Syndrome” by Dr. C. Henry Kempe and colleagues, which brought attention to the issue of child abuse.[88] Subsequently, in 1963, the federal Children’s Bureau issued model legislation for states to adopt requiring child maltreatment reporting.[89] Within a few years, between 1963 and 1967, all fifty states and the District of Columbia had implemented mandated reporting laws in response to this model legislation and growing public concern.[90] However, these early statutes were limited in scope, applying only to medical professionals and focusing narrowly on reporting physical abuse and severe neglect.[91]

In 1974, amid concerns that existing state laws were failing to adequately identify and address child maltreatment, Congress enacted the Child Abuse Prevention and Treatment Act (CAPTA) to establish a comprehensive federal framework and funding for child protection efforts.[92] CAPTA defined “child abuse and neglect” or “child maltreatment” in broad and arguably vague terms, combining both intentional acts and acts of omission within the concept.[93]

CAPTA brought about significant growth in both the reach and impact of mandated reporting laws. It provided financial incentives for states to extend reporting mandates to improve identifying and responding to child abuse and neglect.[94] Consequently, state legislators broadened the range of professionals required to report maltreatment to include teachers, social workers, law enforcement, and others.[95] The types of reportable maltreatment were also expanded beyond physical abuse and neglect to include sexual, emotional, and psychological abuse.[96] In addition, CAPTA removed qualifying language about the severity of suspected maltreatment that had limited reporting, requiring the disclosure of all alleged instances.[97]

Originally, CAPTA described “child abuse and neglect” as “the physical or mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of eighteen by a person who is responsible for the child’s welfare under circumstances which indicate that the child’s health or welfare is harmed or threatened thereby.”[98] The current definition remains similarly expansive, encompassed as “any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation . . . or an act or failure to act, which presents an imminent risk of serious harm.”[99] States can define child abuse and neglect more specifically but must comply with the federal definition.[100] At the federal and state levels, “neglect” is generally defined as a failure to meet a child’s basic needs, while “abuse” refers to acts of commission like physical assault, sexual abuse, or emotional abuse.[101] Notably, even if only neglect is found, the typical response is removal of the child rather than providing parents with support to minimize harm.

In subsequent years following the passage of CAPTA, the number of child maltreatment reports skyrocketed across the United States because of expanded mandated reporting laws and broader definitions of maltreatment.[102] While this influx of reports prompted many states to implement child abuse and neglect hotlines and services to receive and investigate allegations, there was little evidence that dramatic increases in reporting were improving the identification of children who were genuinely at risk.[103] The flood of reports strained states’ investigative capacities as the family policing system struggled to keep up with the high volume of allegations.[104] This surge in reports also unnecessarily overwhelmed the foster care system, as many children were removed from their families and placed into foster care even in cases where the allegations were ultimately unsubstantiated or the situation did not warrant removal.[105] The unintended consequences of the expanded reporting system highlight the challenges in balancing the need to identify and protect children at risk with the importance of avoiding unnecessary family separation and system overload.

Despite dubious benefits, mandated reporting continued to grow in scope over the following decades.[106] By 2019, seventeen states had implemented universal mandatory reporting laws that obligate all citizens to disclose any suspicions of child maltreatment.[107] With such expansive requirements in place, reporters must often make subjective judgments about “reasonable suspicion” of maltreatment based on nothing more than the possibility of future harm, even without evidence of current injury.[108] This inconsistent and overly broad application of reporting mandates raises concerns about privacy and family autonomy. It also risks disproportionate intrusion into the lives of marginalized families, who are more likely to face increased surveillance and unwarranted intervention.

Notably, every state has enacted laws offering some degree of protection from prosecution for mandated reporters.[109] In forty states, mandated reporters are subject to potential misdemeanor charges if they fail to report suspected child maltreatment.[110] For instance, in Florida, the failure to report neglect, as mandated by law, is classified as a felony, carrying a possible sentence of five years in prison.[111]

Meanwhile, in 1980, Congress passed the Adoption Assistance and Child Welfare Act[112] (AACWA) to ostensibly reduce the escalating foster care population and strengthen family preservation efforts. The precipitating concerns were the rising number of children placed in the foster care system during the 1970s and the negative impacts on families.[113] To address these issues, AACWA mandated that states make “reasonable efforts” to prevent removing children from their homes and facilitate reunification of separated families.[114] However, AACWA failed to define “reasonable efforts,” leading to inconsistent interpretations and implementation of this standard across different states.[115] Despite its rhetorical promotion of family preservation, AACWA simultaneously allocated significant resources to expand foster care and adoption systems by creating an open-ended entitlement funding stream under Title IV-E of the Social Security Act.[116] This funding mechanism demonstrated a clear preference for growing the foster care system over investing in family preservation services.

The contradiction between AACWA’s rhetoric and effects became evident in subsequent years. As federal spending favored foster care over alternative family supports, the number of children entering and remaining in the foster care system swelled substantially during the 1980s and 1990s. More children experienced prolonged stays and multiple placements, highlighting an increasing reliance on the foster care system.[117] This growth undermined AACWA’s initial goal of reducing foster care populations and keeping families together.

In 1997, Congress enacted the Adoption and Safe Families Act (ASFA),[118] fundamentally transforming family policing system policy by elevating adoption as the primary means of promoting child permanency—a term referring to a purportedly stable, long-term living arrangement—rather than family reunification.[119] With many children languishing in foster care limbo,[120] ASFA aimed to expedite adoptions and streamline the termination of parental rights.[121] Key provisions mandated initiating termination of parental rights after fifteen months in the foster care system[122] and, in some cases, allowed bypassing reunification efforts.[123] Even when offering services, ASFA required simultaneous adoption planning, undermining family preservation in practice.[124]

Although paying rhetorical respect to families, ASFA’s substantive provisions systemically reoriented the family policing system apparatus toward the dissolution of parent-child bonds rather than providing meaningful support.[125] By standardizing the termination of parental rights and aligning funding, ASFA enabled more significant state interference in families under the auspices of securing child permanency.[126] Despite severing legal familial relationships permanently, ASFA codified this as a standardized process centered on timeline compliance rather than judicial discretion. ASFA’s last legacy has been the entrenchment of adoption as the premier solution over preserving families.

Most recently, in 2018, Congress enacted the Family First Prevention Services Act (FFPSA),[127] which was heralded as a transformational shift toward providing supportive services to families to prevent unnecessary foster care placements. On its face, FFPSA appeared to be a significant step forward, as it allocated federal funding for time-limited parenting skills programs, mental health care, and substance abuse treatment for the first time.[128] However, a closer examination reveals the law’s limited scope and harmful provisions.

First, FFPSA does not mandate states to provide prevention services. Instead, they must opt in to access funding, which covers only 50 percent of costs until 2026.[129] Moreover, to receive services, families must already be involved with the family policing system, further embedding them within it.[130] In addition, even when not court mandated, if families do not comply with the programs offered through the FFPSA, it is often viewed as unfit parenting.[131] This can lead to either removing children from their homes or years of ongoing family policing system surveillances.[132] Consequently, if they receive services funded under the law, families are subjected to the punitive nature of the system, including surveillance.

Furthermore, FFPSA’s passage led to a Title IV-E Prevention Services Clearinghouse that determines eligible services for federal funds.[133] These services are only available to children who are at “imminent risk of entering foster care . . . but who can remain safely in the child’s home or in a kinship placement as long as services or programs specified in section 471(e)(1) that are necessary to prevent the entry of the child into foster care are provided.”[134] This clearinghouse relies on purported “evidence-based” services that are claimed to be effective. Still, experts like J. Khadijah Abdurahman say they are ineffective and harmful.[135] Abdurahman suggests that the FFPSA has contributed to the creation of “prevented populations,” mainly comprised of marginalized communities forced into community surveillance programs by the family policing system.[136]

FFPSA not only pushes certain children into these questionable programs, but it also mandates continued risk assessments, family tracking, and new shared databases.[137] The law requires states to monitor child safety through periodic risk reviews and plan reevaluation.[138] It also necessitates procedures for an electronic interstate case system to expedite out-of-state placements.[139] Additionally, FFPSA demands integrated data linking to law enforcement, the Federal Bureau of Investigations (FBI), and other systems to comply with background checks.[140]

Thus, while FFPSA was lauded as a progressive shift, its limited reach, reliance on questionable programs, and expanded surveillance measures further entrenched the system’s punitive pillars of pathology, control, and punishment.[141] Rather than enacting meaningful reforms to address the family policing system’s fundamental harms, FFPSA’s provisions largely reproduce existing policy. Truly transformative change would require shifting away from the system’s current emphasis on pathologizing families, controlling their lives through invasive surveillance and mandates, and punishing parents deemed unfit. A reimagined system would provide noncoercive support to keep families together, respect parental autonomy, address root causes like poverty, and avoid the trauma of family separation. By failing to challenge the status quo, FFPSA represents a missed opportunity to move closer to this vision of a more humane and effective approach to child and family well-being.

C.     Federal Disability Rights Laws

The Americans with Disabilities Act of 1990 (ADA),[142] and its predecessor, Section 504 of the Rehabilitation Act of 1973 (Section 504),[143] are broad civil rights laws intended to protect people with disabilities from discrimination. Under these laws, disability is defined expansively: (1) “a physical or mental impairment that substantially limits one or more major life activities;” (2) “a record of such an impairment;” or (3) “being regarded as having such an impairment.”[144] The definition includes episodic disabilities as well as mitigated disabilities.[145]

Title II of the ADA governs access to state and local government services, including family policing system agencies and courts.[146] It requires these entities to reasonably accommodate parents with disabilities so they can participate equally in programs and services.[147] Section 504 imposes similar requirements on organizations receiving federal funds.[148] Together, these laws apply to all aspects of the family policing system, including surveillance measures.[149] Specifically, the family policing system must provide disabled parents an equal opportunity to participate,[150] administer services in an integrated setting,[151] and make reasonable modifications to policies and practices to avoid discrimination.[152] Imposing discriminatory eligibility criteria or additional charges on disabled parents is prohibited.[153] Physical accessibility regulations also apply.[154]

The ADA and Section 504 demand individualized treatment of disabled parents based on their specific circumstances, not stereotypes or generalizations.[155] For instance, the “reasonableness” of a requested modification depends on factors like the nature of the parent’s disability and the resources available to the family policing system or court.[156] This case-by-case approach is central to the ADA and Section 504’s protections for disabled parents in the family policing system. However, there are some exceptions to these mandates. Covered entities do not need to provide modifications that would fundamentally alter their programs,[157] create undue financial or administrative burdens,[158] or pose direct safety risks.[159]

While the ADA and Section 504 provide essential protections in theory, they have fallen short in practice.[160] Compliance is lacking, and the reasonable modifications standard is applied inconsistently.[161] Moreover, these laws have fundamental limitations in their ability to shield disabled parents from the pervasive bias within the family policing system, especially its surveillance apparatus.[162] The ADA and Section 504 focus narrowly on procedural rights and reasonable modifications but cannot dismantle the ableist assumptions and stereotypes that drive disproportionate intervention in families with disabled parents.[163] Nor can they address how the system’s emphasis on compliance and control uniquely disadvantages parents with disabilities.[164]

Truly protecting disabled parents requires more radical change.[165] The family policing system is predicated on monitoring, investigating, and punishing marginalized families. For disabled parents, this often means intense scrutiny of their parenting abilities and a presumption of unfitness.[166] Merely providing accommodations within this fundamentally flawed framework is insufficient.

Only abolishing the family policing system and completely reimagining family support can end the systemic discrimination faced by parents with disabilities.[167] This transformation should be grounded in supporting families, respecting parental autonomy, and addressing underlying social conditions. Resources must be shifted from surveillance and removal to voluntary community-based services that empower disabled parents. The narrow rights-based approach of the ADA and Section 504 can supplement, though not substitute, the need for a total transformation.[168]

II. Mechanisms for Surveilling Disabled Parents

The family policing system ensnares families within a vast surveillance regime. This Part examines the mechanisms for surveillance that disabled parents and their families encounter, including mandated reporting rules that compel certain people to report any suspicion of abuse or neglect, invasive investigations that grant the system unprecedented access to medical records, conversations with friends and neighbors, and observations of parent-child interactions, which may even occur inside of families’ homes. It also looks at coercive “service” plans that enable ongoing compliance checks under the guise of support, maltreatment registries that create lasting stigma, and emerging digital tools like predictive risk models. Disabled parents must navigate this complex web of surveillance that invades their privacy and family life at every turn, overriding their rights to autonomy in the name of child safety. At each step, from mandated reporting to digital tracking, the system employs an expansive apparatus to watch, collect data on, and retain information about disabled parents and their families, with little regard for their civil liberties.

A.     Mandated Reporting

The family policing system relies extensively on surveillance by a broad network of “deputized agents”[169] across institutions like healthcare, education, and law enforcement.[170] Through mandated reporting laws, these entities become the “eyes and ears”[171] of an expansive monitoring apparatus that disproportionately scrutinizes marginalized families, including those with disabled parents, who frequently interact with mandated reporters.[172] This pervasive surveillance significantly impacts these families, funneling them into an oppressive system rather than providing support.[173] The scope of this surveillance reaches throughout society, as engaging with social services or public assistance exposes families to heightened monitoring.[174] While some reports are rooted in genuine concern, they often trigger investigations rather than help.[175] Overall, this vast surveillance network has deeply troubling implications for justice, autonomy, and privacy of families subjected to its overreaching intrusions.

Mandated reporting laws require professionals across sectors to report any suspected child maltreatment. This effectively transforms service providers from empowering sources of direct support families into informants that police marginalized families.[176] In 2021, the family policing system received nearly four million referrals alleging maltreatment involving approximately 7.2 million children.[177] Nationally, sixty-seven percent of referrals accepted for investigation (known as “screened-in”) come from professionals, primarily legal, education, and medical personnel.[178] Of the four million referrals in 2021, 48.5 percent were “screened out,” meaning that they were determined not to meet the threshold for investigation due to lack of evidence of abuse or neglect.[179] Of screened-in reports, nearly 80 percent were unsubstantiated after the investigation, meaning insufficient evidence was found to confirm the allegations.[180] Ultimately, out of over seven million investigated children, only 0.1 percent were determined to be victims of maltreatment.[181] While proponents may argue that an overinclusive system is necessary to protect children from harm, the current regime’s low substantiation rate suggests it is causing widespread family disruption and trauma in pursuit of a small number of actual maltreatment cases. The investigations themselves, even when unsubstantiated, can be deeply damaging to families, eroding trust in service providers and deterring parents from seeking needed support.[182]

Because substance use disorders are considered disabilities under the ADA, laws allowing civil commitment and mandated reporting for substance use during pregnancy are also relevant to the discussion of how the family policing system targets disabled parents.[183] Many states still take a punitive approach toward pregnant people with these disabilities, treating substance use as grounds for reporting to the family policing system rather than as a health condition requiring support and treatment. Currently, twenty-four states and Washington D.C. have laws that treat substance use during pregnancy as child abuse.[184] Moreover, twenty-five states and D.C. mandate medical professionals to report any suspected prenatal drug use.[185] Some eight states require testing pregnant patients, without consent, when use is suspected, potentially violating pregnant people’s Fourth Amendment rights against unreasonable searches.[186]

Proponents argue these policies are necessary to protect fetal health and deter substance use during pregnancy. However, a growing body of research suggests this punitive approach is counterproductive and harmful.[187] These policies deter people from seeking prenatal care, undermine the ADA’s protections, disproportionately target people with substance use disorders, thus infringing on their rights, and endanger the welfare of pregnant people, infants, and families. Instead of punishment, pregnant people with substance use disorders need access to evidence-based treatment, harm reduction services, and comprehensive prenatal care. A public health approach grounded in principles of reproductive justice and disability rights would prioritize the health and autonomy of pregnant people while providing the necessary resources and support to promote healthy pregnancies and families.

For over fifty years, mandated reporting has continued to drive extensive scrutiny of families without empirical evidence of improving child well-being.[188] The policy’s assumptions have proven erroneous. Instead of protecting children, it has led to more surveillance and separation of marginalized families.[189] Critics also argue that mandated reporting overwhelms the system with unsubstantiated reports, diverting resources from families most in need.[190] It deters people from seeking help, erodes community ties, and, due to its biased application, disproportionately impacts marginalized families.[191] Families endure trauma from invasive investigations launched by reports lacking evidence.[192] Notably, data from the COVID-19 pandemic—during which time contact with mandated reporters decreased—did not show an increase in child abuse.[193] This suggests that the current level of surveillance may not be as crucial for child safety as previously assumed. Moreover, the prevalence of unsubstantiated reports—nearly 80 percent in 2021—suggests that the current system is ineffective at identifying and addressing actual maltreatment.[194]

Although some may argue that children’s vulnerability justifies casting a wide net, even if it means subjecting many families to unnecessary investigations, this perspective fails to consider the severe and lasting harms caused by oversurveillance and family separation, which can be more detrimental to child well-being than the small risk of missed maltreatment. A more effective approach would prioritize prevention and support instead of mandated reporting and invasive investigations. This could include universal access to high-quality childcare, healthcare, and parental leave; community-based services to address poverty and stress; and targeted interventions for families facing challenges. By investing in families upfront, we can create an environment where children thrive without subjecting marginalized communities to constant surveillance and control. In the end, mandated reporting’s vast net ensnares families rather than effectively safeguarding children.

Mandated reporting laws unjustly target marginalized families, especially those living in poverty, by misconstruing poverty as parental neglect.[195] In 2021, a striking 63 percent of family policing system cases involved neglect allegations, which are often rooted in subjective judgements of poverty.[196] While poverty alone does not cause maltreatment, research shows that poor families face higher child neglect referral rates because referrals are correlated to socioeconomic factors rather than parenting risks.[197]

This excessive scrutiny falls heavily on disabled parents receiving disability services, such as in-home assistance.[198] Analysis reveals that disabled parents have significantly higher referral odds, particularly from social service providers.[199] These cases are also more likely to be substantiated by the family policing system, even when the allegations stem from biased assumptions rather than actual parenting deficiencies.[200]

This dynamic has reverberating effects in the broader medical services landscape. Parents with disabilities must balance whether to seek medical care or risk family separation due to deeply ingrained provider biases doubting their parental fitness.[201] Relatedly, studies demonstrate appallingly high removal rates for infants born to disabled mothers and a flood of unsubstantiated allegations of neglect after childbirth.[202] Alysha and Elijah’s heartbreaking experience serves as a poignant example of this unsettling reality.[203] Notably, providers often report families, particularly those with disabled parents, to the family policing system with the intention of helping them access resources. However, these well-meaning referrals frequently become misconstrued as signs of child endangerment due to pervasive biases and assumptions equating disability with unfitness.[204]

Biased professional judgments significantly impact disabled parents, leading to heightened and often unwarranted surveillance. Many providers lack adequate disability education, harboring misconceptions that influence reporting decisions.[205] Without proper training, they often overestimate risks, make unfounded assumptions about parenting capabilities, and ignore strengths.[206] Stigma affects how professionals assess disabled parents, often unfairly judging them as unfit.[207] Consequently, they focus excessively on potential disability-related risks rather than recognizing parents’ abilities.[208] This skewed risk perception prompts recommendations for greater policing rather than support. As a result, disabled parents endure continuous, stressful evaluations of fitness starting from childbirth.[209] Ultimately, biased professional judgments rooted in stigma perpetuate discrimination, erode privacy, and justify the system’s overzealous interventions as opposed to the system’s purported goal of empowering families.

Law enforcement is deeply entwined with the family policing system, collaborating on investigations, data sharing, and removals.[210] Most states mandate cross-reporting between the family policing system and law enforcement, enabling the criminalization of poverty and disability even when allegations are unsubstantiated.[211]  This occurs because the mere presence of a police report, regardless of its validity, can be used to justify intrusive interventions and even the removal of children from their families.[212]

This close relationship leads to invasive surveillance, especially for marginalized families.[213] Allegations of abuse have higher substantiation rates when police are the reporters, but this does not necessarily indicate that police reports are more accurate.[214] Instead, it likely reflects the significant weight given to law enforcement’s perspective, even when their involvement stems from bias and over-policing rather than genuine safety concerns. This dynamic is particularly alarming for disabled parents, given the overrepresentation of disabled people within the criminal legal system.[215] People with disabilities, especially Black people with disabilities, are disproportionately targeted, comprising half of those killed and incarcerated by law enforcement.[216] For disabled parents, these colluding systems create heightened scrutiny and monitoring over minor issues in the name of child safety. Among professionals, law enforcement reports the highest number of parents with disabilities to the family policing system, and these referrals are more likely to be substantiated.[217] Again, this high substantiation rate does not prove the validity of these referrals. Instead, it demonstrates how the family policing system’s ableist assumptions and deference to law enforcement lead to unnecessary separations of disabled parents from their children.

Biased policing does not protect families; it fractures families. Indeed, the enmeshed systems of policing and child welfare impose trauma, unnecessary family separations, and discriminatory surveillance of disabled parents and their children. The criminalization of disability and poverty through the family policing system’s collaboration with law enforcement perpetuates systemic inequities and undermines the rights of marginalized families.

Overall, the extensive surveillance conducted by the family policing system and its broad network of “deputized agents”[218] has profoundly troubling implications for the justice, autonomy, and privacy of marginalized families, especially those with disabled parents. This pervasive monitoring targets parents with disabilities through biased reporting and heightened scrutiny and deters them from seeking vital support. The vast referral network casts too wide a net, overtaxing the system with unsubstantiated allegations that subject families to traumatic investigations. Ultimately, the system’s reliance on excessive surveillance by mandated reporters represents a fundamental failure to empower families with resources, respect, and self-determination.

B.     Investigations

Once reported to the family policing system, families undergo extensive surveillance and invasive investigations that infringe on fundamental civil liberties.[219] Without first obtaining search warrants or providing Miranda[220] warnings, caseworkers arrive unannounced at family homes to conduct intensive inspections.[221] They search rooms; open refrigerators and medicine cabinets; scrutinize living conditions; and extensively evaluate available food, supplies, and clothing.[222] They also scrutinize the potential existence of alcohol or drugs, as well as the “traffic in and out of the home” and the overall neighborhood.[223] Sometimes, they may even physically examine the children’s unclothed bodies—a practice that can be deeply traumatic for children.[224] Strip searches cause children lasting psychological harm, including nightmares, anxiety, and fear.[225]

These coercive, warrantless home searches compel parents to “consent” through implicit threats of having their children removed if they dare to resist a caseworker’s entry.[226] Objecting to the traumatic invasion of privacy inherent in these probes presumes parental guilt, as parents face immense pressure to fully comply without question.[227] This puts parents in a catch-22: to avoid losing their children, they must cooperate with an investigation that is often biased, inaccurate, and risks precisely that outcome.[228] The family policing system’s invasive investigations operate under a presumption of guilt, forcing parents to prove their innocence while subjecting them and their children to traumatic scrutiny. This approach undermines due process, violates privacy rights, and disproportionately targets marginalized families.

Beyond homes, the system also surveils all aspects of family life through the coercive gathering of confidential information. Caseworkers compel parents to sign broad releases granting access to records from schools, doctors, therapists, and more.[229] They directly interrogate children at schools and daycares without parental notice or consent.[230] This boundless monitoring enables the collection of vast amounts of personal data, reaching far into the most private details of family life.[231] It operates on a presumption that reported families are guilty until proven innocent, demanding their constant compliance and disclosure of personal information to avoid having their children removed.[232] Ultimately, under the pretense of “child protection,” the system’s intrusive investigations significantly widen the reach of state surveillance, expanding from the public sphere into previously sacrosanct private family spaces.[233]

These discriminatory investigatory practices disproportionately target parents with disabilities, who face alarmingly high rates of family policing system investigation and child removal compared to parents without disabilities.[234] Driven by ingrained societal ableism and misconceptions about the fitness of disabled people to parent, the system presumes deficiency in parents with disabilities rather than providing appropriate accommodations tailored to any disability-related needs.[235] For instance, research shows that mothers with intellectual disabilities, as compared to mothers without, see dramatically higher reporting rates to the family policing system soon after giving birth.[236] Moreover, the repercussions of this ability-driven system extend further to encompass other dimensions of identity, as research indicates that female, Black, or poor parents with disabilities face an even greater risk of becoming entangled in the family policing system.[237] Subject to heightened scrutiny and interventions at every stage, disabled parents endure severe infringements on fundamental privacy and parental rights through the family policing system’s discriminatory practices.

C.    “Service” Plans

Behind the facade of supportive services, the family policing system exerts invasive control over parents through coercive surveillance mechanisms that disempower them. Once entangled in the system after an allegation of child maltreatment, a family quickly finds itself caught in an extensive web of oversight, masked as support, stemming from mandatory “service plans” (detailed requirements parents must comply with, often including parenting classes, therapy, drug testing, and home visits) and stilted, supervised visits that enable authorities to monitor and regulate parents continually.[238] As parents strive to navigate these demands, they face heightened scrutiny from caseworkers, who often prioritize compliance over the provision of meaningful resources and support.[239] The coercive scrutiny is amplified for disabled parents, who face additional barriers and biased assessments. They are often denied necessary accommodations while subjected to heightened monitoring and judgment based on assumptions about their parenting capabilities.[240]

Indeed, whether physically separated or not, families face an intrusive surveillance regime once a case is opened.[241] Services, such as parenting classes, anger management, and substance use treatment, are often presented as supportive measures to help parents address challenges and improve their parenting skills.[242] While these services can play a legitimate role in some cases, they have increasingly become a central means of monitoring and controlling families in the family policing system.[243]

Once a family is involved with the family policing system, caseworkers, who are often contracted through service providers, conduct regular home visits and implement a prescriptive “service plan.”[244] This duplicates oversight already occurring through the family policing system agency’s monitoring, subjecting families to multiple layers of intrusive supervision and increasing the likelihood of perceived noncompliance.[245] This vast network of surveillance includes performing in-home visits, providing referrals to mandated programs, and sending detailed reports on family life to courts and family policing system agencies.[246]

Families must adhere to caseworker directives or risk sanctions, such as the removal of their children or the termination of their parental rights.[247] Far from empowering change, this monitoring treats parents as suspects under investigation.[248] Services enable continuous inspection of family life, with caseworkers and service providers acting as probation officers enforcing compliance.[249] Intrusive surveillance persists regardless of whether a family remains intact.[250] The focus shifts from providing meaningful support to conforming families to narrow standards, often without considering their unique circumstances or the systemic barriers that they face.[251]

Treatment and therapy programs, while potentially beneficial when voluntarily accessed, often serve as another avenue for surveillance when mandated by the family policing system. These programs compel parents to engage with providers who may share details of their participation and progress with the system, leading to judgments about their parenting abilities based on limited information.[252] Especially pernicious is mandated mental health treatment, which grants the system extensive access to parents’ innermost thoughts and emotions and can be harmful by infringing upon their dignity and privacy.[253] Mental health practitioners in these contexts are often embedded within the family policing system and are required to report on parents’ engagement and progress. This can lead to sensitive information being shared with caseworkers and courts, which may be misinterpreted or used to pathologize parents, particularly those with disabilities, based on ableist assumptions. These services assist the system in regulating parents by leveraging the threat of family separation if parents fail to comply.[254] Meaningful support would entail voluntary, confidential services tailored to families’ self-determined needs, provided in a manner that respects their autonomy and privacy. It would focus on addressing structural barriers and providing resources to enhance family well-being, not on monitoring and controlling parents.

This dynamic is especially apparent for disabled parents, who face heightened scrutiny through inappropriate evaluations.[255] Biased assessments conducted by the family policing system often rely on measures unrelated to parenting ability, like IQ tests, to pass judgment on disabled parents.[256] These evaluations frequently fail to accommodate parents’ disability-related needs, further amplifying oversight of disabled parents within a system already stacked against them.[257]

The case of Alice Goltz, a mother living with fragile X syndrome—which entails a “mild cognitive disability” and dystonia resulting in stress-induced arm tremors—exemplifies the utilization of biased assessments to unfairly judge disabled parents.[258] After Alice gave birth to her daughter in 2007, the Vermont Department of Children and Families (DCF) immediately raised concerns about her ability to parent solely due to her disabilities.[259] DCF initially engaged a psychologist to appraise Alice’s parental capabilities.[260] Twice, the psychologist concluded that Alice could parent effectively with appropriate assistance.[261] Nevertheless, DCF compelled Alice to undergo a third assessment by an individual lacking expertise in evaluating disabled parents.[262] During this evaluation, Alice was made to carry her daughter upstairs, causing her arms to tremor.[263] The evaluator seized upon this to argue for Alice’s unsuitability as a parent, ultimately resulting in the termination of her parental rights.[264]

The extensive surveillance throughout the family policing system disempowers parents and impedes family autonomy. The perpetual threat of losing their children compels parents to comply with prescribed services misaligned with their families’ actual needs and challenges.[265] This coerced conformity to officials’ directives suppresses parents’ voices and overlooks their lived experiences. Parents are often required to engage in services that may not be culturally responsive, linguistically accessible, or tailored to their unique circumstances. This one-size-fits-all approach fails to consider the expertise parents have about their own families and the structural barriers they face, such as poverty, discrimination, and lack of community resources.

The dual roles of many service providers and caseworkers, as both supporters and informants against parents, further amplify the power imbalance. Information from therapists, parenting classes, and other mandated programs are shared directly with the punitive family policing system, making parents vulnerable to negative judgments and consequences based on their participation and progress.[266] Highlighting this dynamic where caseworkers and providers are supposed to simultaneously support and police families, one disabled mother astutely observed that “you can’t walk both sides of the fence.”[267] This dual role creates a profound conflict of interest that undermines the effectiveness of these services and is particularly harmful to disabled parents, who may require accommodations or specialized support to fully benefit from services.

Even supervised visitations, ostensibly designed to nurture and strengthen familial bonds, often morph into exercises of meticulous scrutiny. For instance, parents may be closely observed for any potential missteps or perceived parental inadequacies during these visits, with officials prepared to intervene if necessary. These sterile and controlled environments, coupled with the watchful eyes of officials vested with the authority to intervene, inadvertently give rise to unnatural and uneasy interactions.[268] Particularly because visitation occurring outside the home environment can prove inaccessible and burdensome, these interactions can become particularly challenging for disabled parents.[269] Despite these hurdles, the obligatory nature of these stress-inducing visits, conducted under the gaze of the system, conveniently provides a pretext for asserting that the family lacks a healthy and strong attachment if the parents fail to attend or exhibit any perceived shortcomings during the visits. This underscores the complex dynamics that arise within such a structured framework, where the system’s constraints often overshadow the original intent of fostering relationships.

For parents with disabilities, the effects of constant surveillance are particularly detrimental. The family policing system subjects them to oversight through inappropriate supports and assessments tailored for parents without disabilities while systematically denying services that meet their specific needs.[270] This scrutiny, coupled with a lack of appropriate accommodations, further disempowers disabled parents within a system that fails to recognize or address their unique circumstances.[271] The message becomes clear: to maintain family integrity, parents must comply with the system’s terms—terms that are often inherently biased against disabled parents—or risk forfeiting their parental rights.

Consequently, the extensive surveillance mechanisms woven throughout the family policing system undermine families and violate their dignity. What is touted as protection and support enables authorities to continually monitor and control parents through subjective assessments of parental fitness that are heavily influenced by societal biases—not objective criteria of actual risks posed to children’s well-being. The looming threat of family separation compels compliance with inappropriate, generic services and assessments that ignore families’ authentic needs. This crisis of control is amplified for parents with disabilities, who face additional barriers and biased scrutiny stemming from deeply entrenched prejudices about their ability to parent effectively. The power imbalance is untenable, with officials leveraging invasive oversight while systemically denying disabled parents accessible and appropriate support services that could empower them. Far from empowering families, these practices rooted in subjective judgments, over individualized evaluations, disempower and splinter bonds in the name of a paternalistic conception of child protection.

D.    Registries

Central child abuse and neglect registries represent another insidious form of state surveillance imposed on families. Currently, forty-seven states maintain expansive databases cataloging child maltreatment records, including sensitive investigation details.[272] Ostensibly created to inform future inquiries, these registries actually enable unrestrained tracking of families who are already hyper-monitored in government systems.[273]

Once a maltreatment allegation is substantiated, the accused parent is logged into the registry until the child becomes an adult. Shockingly, in certain states like New York, parents are added even when maltreatment is not substantiated, but rather only  suspected in an investigation.[274] This stigmatizing information is then used for background checks by employers, landlords, and licensing agencies.[275] Registered parents are routinely barred from jobs involving children or vulnerable groups, regardless of the specifics of their case.[276] Yet no evidence shows that such registries actually improve public safety.[277] Instead, they erect barriers to economic stability and promote marginalization.[278]

Central registries routinely punish marginalized families, especially low-income mothers of color, without evidence of improving child welfare. For example, in New Jersey, Black people are nearly four times more likely than White people to be placed on the registry.[279] Being placed on a registry has a “snowball effect,” meaning that these databases restrict parents’ employment and housing options based merely on unproven allegations, which fuels cycles of poverty and instability that heighten the risk of family separation down the line.[280] Even parents who fully comply with the family policing system’s demands face enduring stigma and surveillance, as their names remain on the registries indefinitely, acting as a permanent scarlet letter that can hinder future job prospects and housing opportunities.[281] For instance, a mother may be denied a job at a daycare center or be unable to rent an apartment years after an initial allegation, even if it was ultimately unsubstantiated. Through registries, the family policing system does not protect but instead jeopardizes the well-being of children by undermining family stability. Registries enable unproven claims to inflict disproportionate economic and social penalties on vulnerable families.[282]

Significantly, central registries exacerbate the myriad challenges faced by disabled parents, erecting formidable barriers that intensify the difficulties they already encounter in pursuing employment and securing suitable housing. These registries, notably, cast a stigma on people listed within them, effectively deterring potential employers from considering disabled parents for job opportunities. For instance, an employer may automatically dismiss a disabled parent’s job application upon seeing their name listed on a central registry, regardless of whether the allegations were substantiated or what efforts the parent has made to address past issues. This undue prejudice restricts disabled parents’ access to steady employment and perpetuates an unjust cycle of joblessness—a particularly acute concern given that disabled parents already contend with higher unemployment rates than their nondisabled counterparts.[283] Consequently, they find themselves under an even greater financial strain, struggling to provide for their families’ basic needs and to cover disability-related expenses.[284] Furthermore, being listed on these registries directly impedes disabled parents’ ability to secure accessible and affordable housing, as landlords frequently conduct background checks and may deny housing to those named in the databases, even if the allegations are unproven. Housing discrimination, exacerbated by the registries, deepens the housing instability experienced by many disabled parents, heightening their vulnerability to family policing system scrutiny and escalating the distressing prospect of losing custody.[285]

Moreover, most states impose formidable bureaucratic hurdles to those who attempt to appeal their inclusion in child registries. Deadlines, confusing processes, and lack of access to legal representation[286] deter many from appealing. However, for those who successfully file and navigate the cumbersome procedures, the outcomes are striking.[287] An analysis found that, over a ten-year period, nearly two-thirds of people who appealed their listing succeeded in having their names removed from the registries in Pennsylvania and New Jersey.[288] More recently, success rates on appeal reached as high as 74 percent in New Jersey.[289] The frequent overturning of listings casts serious doubt on the validity and fairness of the initial inclusion decisions, which appear to disproportionately target marginalized groups like disabled parents based on biases and the inability to evaluate their unique parenting strengths properly. Over twenty-five years ago, in Valmonte v. Bane, the Second Circuit considered registry appeal data showing that 75 percent of parents succeeded in removal challenges, likening the family policing agency to a car dealer whose vehicles break down three-quarters of the time.[290]  If three out of every four parents can get removed from a registry upon appeal, there must be systemic failures in accurately assessing child maltreatment risks, which seem to be compounded by ableist assumptions that discount disabled peoples’ parenting capabilities.

Thus, central registries offer another window into the family policing system’s vast surveillance apparatus. These registries enable ongoing scrutiny of parents by barring them from jobs without evidence of improving safety. The registries disproportionately target marginalized families, including parents with disabilities and their children, and, as a result, exacerbate economic hardship and perpetuate cycles of poverty. By restricting employment and housing options through stigma and assumptions of unfitness, central registries surveil and punish vulnerable families. Their invasive monitoring continues long after the initial allegations, severely undermining parents’ rights and family integrity.

E.    Digital Surveillance

Finally, the family policing system has entered the digital age, which means that it increasingly deploys technologies like big data processing, algorithms, and artificial intelligence to monitor and control families. Jurisdictions now use opaque algorithmic tools created by private companies to assess risk and enable expanded tracking of particular families.[291]  Behind the veneer of innovation, this proliferating surveillance apparatus amplifies discrimination and threatens privacy. These digital mechanisms allow systemic biases to infiltrate decisions, potentially leading to unfair assessments and interventions, especially for marginalized communities including disabled parents. Moreover, the knowledge of such pervasive digital monitoring may deter families from seeking necessary support or openly communicating with service providers, fearing that any information shared could be used against them by the family policing system. All of this occurs while the root causes of family stress and instability remain unaddressed, extending state control without providing meaningful assistance.

For example, in recent years, some of the largest family policing system agencies in states like California, Florida, Illinois, Pennsylvania, and Texas have implemented automated risk assessment tools.[292] These tools claim to predict child maltreatment risk through impartial data analysis.[293] However, as the Hackney family’s experience illustrates,[294] such tools often magnify discrimination against disabled parents and families living in poverty.[295]

Algorithms like the Allegheny Family Screening Tool (AFST) generate risk scores relying heavily on past system involvement and economic factors.[296]  Key factors include family demographics and prior interactions with the family policing system, as well as histories of incarceration, probation, and behavioral health system involvement.[297] Subsequently, family policing caseworkers utilize the AFST risk score to determine whether to initiate a home visit, start a formal investigation, or dismiss the complaint.[298] For parents with disabilities, these mechanisms perpetuate disadvantage in decision-making processes, sidestepping the nuanced considerations necessary for equitable treatment.[299] Furthermore, these algorithms disproportionately subject disabled parents to heightened surveillance solely because of their disability rather than any genuine indication of future risk, ultimately cultivating fear rather than promoting safety.[300]

Paradoxically, instead of impartiality, these algorithms mechanize systemic ableism, racism, and classism. As legal scholar Dorothy Roberts incisively observes, they eliminate public accountability by placing authority and trust in corporations’ unregulated computer systems designed to maximize profit.[301] This further ingrains prejudice, cloaked as technological advancement, in the family policing system.

Algorithms constitute just one example of the family policing system’s growing reliance on technology for surveillance purposes. Another illustration of this increased reliance on technological surveillance is the emergence of remote learning, which gained prominence during the COVID-19 pandemic and introduced a novel method of observing families’ residences.[302] With virtual classrooms becoming the standard, educators and school administrators unwittingly gained access to students’ homes.[303] Families suddenly found their living spaces transformed into educational environments, unintentionally subjecting themselves to scrutiny.[304] Consequently, this heightened surveillance of private domestic areas resulted in increased reports and unnecessary intervention from the family policing system, disproportionately affecting marginalized families.[305]

Looking ahead, the proliferation of technologies like videoconferencing for remote learning and virtual parent-teacher meetings could perpetuate these privacy invasions and lead to further surveillance of families’ homes, particularly for disabled parents who may face accessibility barriers in facilitating their children’s online education.[306] Under the guise of educational engagement and child well-being monitoring, such technological incursions into the quintessential private sphere, the home, raise concerning implications for families’ rights and autonomy. Through these digital windows into their homes, disabled parents, who are already contending with societal biases, may find themselves subjected to heightened scrutiny and the risk of unwarranted family policing system intervention.

Moreover, in recent years, there has been a concerning push to expand surveillance and data tracking of families involved with the family policing system through integrated multi-agency databases, contractual information sharing between the family policing system and other entities like law enforcement and healthcare organizations, and multidisciplinary teams that gather information on families.[307] While proponents assert that this burgeoning system of information-sharing is essential and justified in the name of “child protection,” a growing number of critics have sounded the alarm about the emergence of a “surveillance state” that excessively polices marginalized families.[308] With little oversight or accountability, mass data collection on families poses risks to privacy and consent.

For disabled parents, who often are in regular contact with multiple agencies due to their unique needs, the surveillance facilitated by multi-system information-sharing networks is especially disconcerting. For example, the merging of data across various sectors can inadvertently expose parents’ private lives to a broad spectrum of professionals without their explicit consent or knowledge. This raises questions about the potential misuse of data and how these surveillance mechanisms interact, potentially leading to an even more invasive picture of peoples’ lives than intended. As the family policing system becomes more intricately intertwined with other sectors, the prospect of extensive and unregulated surveillance becomes a significant concern for disabled parents who are seeking support and assistance, not unwarranted intrusion into their private lives.

Lastly, in tandem with databases and algorithms, the family policing system employs an array of digital platforms, tools, and devices to intensify its surveillance of families. Electronic case files expedite the sharing of sensitive information between agencies, amplifying data collection on parents.[309] This interconnected system can inadvertently compromise privacy and engender mistrust, as intimate details are transmitted across different sectors without adequate oversight. Additionally, family policing system agents monitor parents’ social media by actively reviewing their public posts and activity.[310] This expands the boundaries of official oversight beyond what is publicly accessible and into parents’ private communications and activities, which can lead to misinterpretations.[311] Invasive assessments of parents’ fitness based on online behaviors raise concerns about blurring the line between personal life and state observation.[312] Finally, the family policing system’s use of recording devices, often deployed during home visits, is also used to surveil families. This tool allows state agents to gather evidence on parents, which may subsequently be used against them to support child removal or the termination of parental rights.[313] While these technological endeavors purportedly aim to streamline processes, the lack of proper safeguards renders families susceptible to overreach and unjust scrutiny. Already marginalized parents, like those with disabilities, face heightened surveillance and experience more severe privacy violations.

III. Surveillance Harms

Against the backdrop of systemic oppression, the family policing system uses its expansive network of surveillance to inflict disruption and trauma upon marginalized families, disproportionately impacting disabled parents and their children. This unrelenting surveillance breeds a pervasive fear among parents, who dread the risk of discriminatory targeting and familial separation, which, in turn, severely constrains their autonomy. The intense scrutiny of marginalized families produces distressing outcomes, including an elevated risk of child removal, the heart-wrenching severance of family bonds, and a chilling effect on families who would otherwise seek government assistance. Ultimately, by fracturing families, the family policing system’s biased surveillance fails to provide necessary support and inflicts profound harm. This Part delves into the anguish wrought upon families because of the family policing system’s surveillance apparatus. It first illuminates the injustices faced by disabled parents and their children who are under the system’s purview, emphasizing how heightened surveillance exacerbates inequities that these families are already subjected to. It then explores the broader harm inflicted on parents and children due to the system’s operations, before unraveling the unique challenges experienced by parents with disabilities and their children. This comprehensive analysis sheds light on the extensive devastation the system’s surveillance mechanisms leave in its wake.

A.     Injustices in the Family Policing System

Extensive surveillance and scrutiny of parents with disabilities enable systemic biases, resulting in marked disproportionalities and disparities in family policing system involvement and outcomes.[314] While research shows that with proper supports and accommodations, parents with disabilities can parent as capably as parents without disabilities,[315] the former face disproportionately higher rates of referral, investigation, child removal, and termination of parental rights.[316] One particularly striking analysis of national data demonstrated that up to 19 percent of children were removed from their homes and placed in foster care, at least in part because their parents were disabled.[317] Some studies have found parents with psychiatric disabilities to be up to eight times more likely to be reported to the family policing system than parents without such disabilities.[318] Remarkably, some studies have revealed that for parents who have intellectual or psychiatric disabilities, removal rates can be as high as 80 percent.[319]

Laws and policies further perpetuate this inequitable surveillance. In fact, laws in forty-two states and the District of Columbia explicitly allow the family policing system to terminate the parental rights of disabled parents solely due to their disability status.[320] Once entangled in the family policing system, disabled parents encounter more significant risks and obstacles. Case plan goals often emphasize placing children in foster care, instead of reunification with disabled parents, making it more likely for children to be placed with nonrelatives.[321] Due to their ableist biases, caseworkers may presume disabled parents are incapable of adequately caring for their children. As a result, reunification services aimed at addressing issues and transitioning children home are frequently deprioritized or denied in favor of initiating permanent separation through foster placements, adoptions, or guardianships. Furthermore, disabled parents are disproportionately deprived of family preservation or reunification services,[322] and when provided, these services are often inadequately tailored to meet their unique needs.[323] Lastly, disabled parents disproportionately face termination of parental rights—with some studies finding rates up to 93 percent.[324] Thus, constant discriminatory surveillance fuels profound disparities for disabled parents and their families at all stages.

B.    Harms to Children and Parents

The extensive and all-encompassing surveillance carried out by the family policing system inflicts profound and lasting trauma upon children and their parents, especially those who are members of marginalized communities.[325] The intrusive nature of this monitoring not only hampers parenting efforts but also discourages families from seeking the support they desperately need.[326] Further, the subsequent removal of children from their homes results in enduring and far-reaching harm.

The family policing system’s unrelenting web of surveillance and the looming possibility of system intervention shatter families’ sense of safety and stability.[327] This constant monitoring instills fear and hesitancy in parents, who, for example, become deterred from accessing essential healthcare services for their children in fear that they will be reported to the family policing system.[328] The weight of this surveillance amplifies stress levels and erodes familial relationships as parents grapple with the constant worry that their actions will be unfairly scrutinized and potentially lead to the permanent severance of their family unit.[329] This unrelenting tension also takes a toll on children who experience heightened anxiety due to the persistent fear of being removed from their homes.[330]

The investigative process and subsequent removals are invasive and dehumanizing, further aggravating existing trauma within targeted families. The family policing system’s scrutiny highlights existing power imbalances and intensifies parents’ feelings of helplessness and loss of control.[331] Families that have previously undergone traumatic oversight from other systems, such as the criminal legal system or social safety-net programs, are particularly vulnerable to being retraumatized, seeing as this intrusive process rekindles past wounds.[332] The immense stakes tied to the potential removal of children from their homes also further strain parent-child relationships.[333]

In addition, the removal and subsequent placement of children into the foster care system severs critical familial and community ties, triggering intense feelings of abandonment and isolation.[334] This separation disrupts immediate family bonds and disconnects children from their broader support networks.[335] The consequences of removal are far-reaching and dire for children, leading to an increased risk of long-term mental health conditions, developmental delays, reduced educational attainment, entanglement with the criminal legal system, decreased employability, poverty, and homelessness.[336]

Moreover, placement in the foster care system often exposes children to other types of substantial harm as well. Rates of sexual abuse within the foster care system are two to four times higher than in the general population.[337] Up to one-third of youth in the foster care system report experiencing abuse or neglect, including lack of food and clothing, which are often the very circumstances that prompted removal in the first place.[338] Foster care placements are also highly unstable. This is reflected by the term “foster care drift,” which refers to the phenomenon in which children are moved from one temporary placement to another without a permanent home.[339] Though estimates vary, studies consistently show children in the foster care system frequently endure multiple placements, averaging three to six homes, with some children experiencing as many as fifteen in their first year.[340] This constant shuffling further traumatizes already vulnerable children.

In sum, the relentless cycle of discriminatory surveillance combined with the enduring trauma that results from family disruption wreaks havoc on families. The repercussions of this multifaceted ordeal are profound, touching on every aspect of children’s and parents’ lives and leaving an indelible mark on their well-being and prospects. In other words, the system allegedly designed to protect children too often breeds abuse and chaos in their lives.

C.     Unique Harms to Children and Their Disabled Parents

Beyond the multifaceted, extensive, and indiscriminate harms inflicted upon all families entrapped within the clutches of the family policing system, a distinct set of challenges emerges for disabled parents and their children. These challenges, borne out of the interplay between ableism and the system’s intrusive mechanisms, give rise to a range of unique and nuanced adversities that further underscore the inequity and injustice that these families face.

Several studies have found that children of disabled parents often live with the distressing awareness that they could be separated from their parents, temporarily or permanently, solely because ableism dictates that their parents are incapable of caring for them.[341] This anticipation of potential forced separation, and thus trauma, causes significant harm on its own. Strikingly, one study of adult children who had been removed from their parents with intellectual disabilities found that most eventually re-established contact with their parents upon aging out of the system.[342] This speaks powerfully to the endurance of parent-child bonds despite forced separation and underscores the needless trauma inflicted by family disruption.

Moreover, pervasive surveillance and the omnipresent threat of family policing system involvement detrimentally affect disabled parents’ ability to experience the joys of parenting.[343] As legal scholar Michael Ashley Stein observes, parents with disabilities often fear their children will be removed solely because of misconceptions about their capabilities, diminishing their parental fulfillment.[344] Tellingly, nearly all of the disabled parents interviewed for a National Council on Disability report expressed that they lived in constant fear of being reported to the family policing system solely because of their disability.[345] This climate of fear leads some parents to avoid public activities with their children, while others are deterred from seeking assistance for fear that it will be misconstrued.[346] The persistent threat of unwarranted family policing system involvement causes parents with disabilities overwhelming distress and prevents them from thriving with their families.[347] In sum, the looming specter of biased scrutiny and separation inflicts severe harm on disabled parents and their children.

In addition, research shows that family policing system involvement severely harms the mental health of parents with psychiatric disabilities.[348] Studies reveal that the trauma inflicted by the termination of parental rights far outweighs the challenges of supporting parents’ mental health needs and repairing relationships through therapeutic services.[349] Specifically, family policing system involvement often worsens parents’ mental health, decreasing the likelihood of reunification.[350] The stigma of parenting with a psychiatric disability and the terror of losing one’s children deters parents from acknowledging struggles or seeking medical treatment.[351] Constant agonizing over potential child removal heightens parental stress, which can exacerbate symptoms.[352] Thus, the psychological pressure that the family policing system places on parents with mental health and psychiatric disabilities actually sabotages their mental health and decreases the likelihood of family unification.

In the end, the family policing system’s pervasive surveillance and scrutiny of disabled parents is rooted in systemic ableism and has devastating consequences. Through heightened monitoring that imposes constant fear and forced separation that inflicts enduring trauma, the system disproportionately disrupts and harms disabled families. Rather than providing adequate and tailored social services and medical support, the family policing system’s discriminatory surveillance tears disabled parents and children apart, inflicting profound harm in the process.

IV. Challenging Surveillance

Guided by the principles of the abolition movement’s “non-reformist reforms,”[353] this Section offers legal and policy measures to systematically dismantle the intricate surveillance network woven by the family policing system, particularly as it relates to disabled parents and their children. While initial reforms serve as stepping stones, the most comprehensive solution prioritizes family well-being through noncoercive support. This transformative path entails deconstructing monitoring mechanisms, fostering family empowerment, and transitioning from a policing orientation to one rooted in empowerment. Accordingly, legal and policy solutions include refining the definition of neglect, constraining the scope of surveillance, enacting rights akin to Miranda rights, repealing mandatory reporting laws, ensuring timely access to legal representation, and fundamentally reimagining the nature of family support. This holistic approach demands investment in communities and a paradigm shift that allows families to experience state assistance as an inherent right, not a potential threat. Authentic justice can only prevail by eradicating discriminatory surveillance. This approach envisions a future that extends comprehensive support beyond surveillance reform, ultimately paving the way for a future defined by justice, equity, and empowerment for disabled parents and their children.

A.     Amending the Definition of Neglect

Child neglect laws and their enforcement have long unfairly punished poor families, especially those with disabled parents. This uneven treatment stems from two key factors within the child welfare apparatus: first, its conflation of poverty with parental unfitness, and second, its failure to recognize systemic inequity. This posture disproportionately impacts marginalized families, as evidenced by the strikingly high rate of neglect cases. In 2021, neglect comprised 63 percent of child welfare cases, vastly outpacing physical abuse (12 percent) and sexual abuse (4 percent).[354] Vague statutory definitions of neglect give investigators significant discretion to judge impoverished parents as unfit, even though poverty is often the product of government divestment.[355] This misjudgment diverts resources away from families in need, including resources that could improve access to housing, employment, healthcare, and other fundamentals. CAPTA and state laws define neglect expansively as the failure to meet a child’s basic needs in any manner that risks harm.[356] While details vary, state laws characterize neglect as the inability to adequately provide food, clothing, shelter, and medical care for a child.[357] To stop the criminalization of family poverty, legal and policy efforts must focus on three key areas: adopting precise definitions of neglect that enumerate specific types of behavior; ensuring government interventions are appropriate and proportionate to the actual harm identified; and limiting investigators’ discretion to remove children in cases where poverty, not intentional deprivation, is the root cause of the family’s challenges.

A substantial body of research demonstrates that high rates of child neglect referrals correlate strongly with socioeconomic risk factors like poverty.[358] This reflects a historical shift as the government has defunded social safety net programs while increasing funding for the family policing system.[359] Federal guidelines for defining and identifying child abuse and neglect, while stating that “living in poverty [should] not [be] considered child abuse or neglect,”[360] ultimately falls short of this principle in practice. These guidelines allow those who report or investigate neglect to ask whether impoverished caregivers are utilizing “available information and resources” to provide for their children, effectively granting them the discretion to judge poverty itself as a parental failure.[361] This approach forces parents to navigate insufficient, underfunded, and often inaccessible social services and benefits programs—ultimately punishing families in need for systemic inequality and government divestment rather than assisting them.[362]

Notably, over the years, some states have modified their child neglect laws by providing more precise definitions. Specifically, laws in twenty-seven states and the District of Columbia include a “poverty exemption.”[363] In these jurisdictions, the laws explicitly exempt from the definition of neglect the financial inability to provide for one’s child. Building from this, more work is needed to address the conflation of poverty and neglect. At the federal level, advocates should push for amending CAPTA to require specific definitions of neglect rather than setting broad minimum standards. Similarly, state legislatures should enact precise statutory definitions of neglect that limit discretion in enforcement. In particular, laws should differentiate the various types of neglect, such as “educational neglect,” “medical neglect,” and “unsafe housing conditions.” This change would enable investigative responses to be tailored appropriately to any substantiated allegations. For instance, reports of unsafe housing may warrant home inspections, while educational neglect may call for parent interviews and school consultations outside the home environment. States like Illinois already base home visit requirements on the type of alleged neglect.[364] Differentiating these definitions and responses would refocus interventions on serving children rather than punishing poor families.[365]

Recently, organizations like the American Law Institute, United Family Advocates, and Let Grow have proposed redefining and narrowing the legal definition of child neglect to address this concern that current neglect laws are overly broad and vague.[366] They argue that this leads to harmful overreporting and unnecessary family separation, which disproportionately impacts marginalized communities.[367] Their proposals aim to tightly define neglect as serious physical harm or substantial risk of harm due to blatant parental failure to meet a child’s basic needs.[368] However, turning these proposals into law will require building a broader coalition, expanding legal advocacy programs, and eliminating mandatory reporting absent a clearer definition of neglect. The goal should be to focus on responding to children’s needs and protecting them from harm rather than investigating ill-defined neglect claims that often further traumatize families. The push must be away from using neglect laws to broadly criminalize poverty and nonconformity and towards carefully targeting state intervention in cases of serious harm.

Ultimately, imprecise statutory definitions of child neglect have long allowed poverty to be misconstrued as parental unfitness—unfairly punishing families, including those with disabled parents. By adopting more precise categories and definitions of neglect and matching investigative responses to substantiated allegations, states can limit the criminalization of poverty. Rather than policing struggling families, we can better support them by carefully assessing different types of neglect—educational, medical, environmental, and the like—and directing resources to address each family’s specific needs. Thoughtfully delineating neglect will refocus the system on constructive interventions to help parents provide for their children’s well-being.

B.     Eliminating Abusive Forms of Reporting

The family policing system’s surveillance and policing practices have long infringed on parental rights and family integrity, especially for marginalized families like those with disabled parents. To challenge this overreach, legislation is urgently needed at both the federal and state levels to bolster the rights of parents entangled in the system and to limit the scope of government surveillance. This is crucial to uphold the fundamental principles of parental autonomy and family integrity while also addressing the broader issues of social inequality and discrimination that often contribute to these infringements.

For example, Texas recently took steps to deter false and harassing child maltreatment reports by enacting a law banning anonymous allegations.[369] Previously, accusers could make anonymous complaints to the family policing system without revealing their identity. This enabled submitting unsubstantiated claims out of malice or retaliation against parents.[370] Under the new Texas law, accusers making reports are required to provide their name and contact information. However, the accuser’s identity remains confidential to protect their safety and privacy.[371] Only family policing authorities are informed of the reporter’s details, while the accused parents are told that a confidential report was filed. The purported goal of Texas’s new law is to reduce unfounded anonymous allegations without deterring reports of genuine concerns.[372] Officials contend that banning anonymous reports will enhance the credibility of the reporting system and stop abusive anonymous claims from diverting resources away from assisting families in real need.[373]

The New York legislature has also contemplated bills that aim to curb harmful and overreaching practices within the family policing system.[374] Like Texas’s new law, one proposed measure calls for those reporting suspected child abuse or maltreatment to disclose their identity and contact information.[375] Crucially, the bill also maintains the reporters’ confidentiality. Another New York bill would require healthcare providers to secure explicit and informed consent before subjecting new parents and newborns to drug testing, since a medically unnecessary drug test has the potential to ensnare a family in the family policing system’s surveillance apparatus.[376] Each of these proposed changes is geared toward limiting harmful surveillance practices within the family policing system and redirecting resources to cases indicating substantial harm. Neither of these bills have been enacted yet.

Further legislative reforms are needed to curb surveillance and fully protect families from overreach. Laws should require that reporters provide contact information to allow for accountability. Parents should also have expanded legal avenues and longer timeframes to appeal unjustified listings on child maltreatment registries, which restrict their employment and custody rights. In addition, parents deserve the presumption of innocence and the right to record interactions with the family policing system to ensure accurate representation. Such measures would properly balance the child’s well-being with the parents’ civil liberties.

Thus, legal and policy measures are imperative to counter the oversurveillance and overreach that has long plagued the family policing system and harmed parents with disabilities and their children. Recent legislation in Texas has paved the way for increased rights and decreased anonymous targeting of parents. Building on these existing models, other states should implement and expand reforms to enhance accountability for reporters, strengthen legal protections for parents, and rebalance the scales of justice within the family policing system. Ongoing advocacy campaigns give momentum to advance these protections nationwide. With diligent oversight and limitations built into the system, it can shift away from punitive policing and toward supportive practices that keep families together.

C.     Enacting Miranda-Type Rights

Family policing system investigations, which allow for warrantless searches and questioning and involve no Miranda-type warnings, frequently infringe on families’ constitutional rights.[377] In the name of protecting children, these coercive practices compromise parents’ due process rights and broader civil liberties. However, reforms to enact Miranda-type rights are gaining momentum and would require investigators to inform parents of their protections against self-incrimination and unwarranted intrusion. Guaranteeing Fourth and Fifth Amendment rights properly balances child safety with family dignity and autonomy.

Some states have recently enacted or proposed bills to provide Miranda-type protections for parents caught up in the family policing system. In 2022, Texas passed legislation requiring investigators to inform parents of their rights at the start of an inquiry, similar to reading Miranda rights.[378] Previously, caseworkers could search homes, interview children, and demand medical records and drug tests without informing parents of the complaint allegations or reporters’ identities.[379] Now, caseworkers must notify parents of their legal rights, such as their right to an attorney and to refuse to answer questions.[380]

Meanwhile, in New York, a nearly identical bill recently failed.[381] The proposed law would not have created any new rights but rather would have educated families on their existing rights.[382] The proposal also would not have hindered caseworkers’ ability to enter a home without a warrant if a child was in danger. Despite publicly supporting the spirit of the bill, the state’s family policing agency lobbied against it.[383] The agency even requested that the legislature remove the word “rights” from the bill’s language.[384] Faced with resistance and obfuscation from the very system meant to implement the bill, the legislature was unable to pass it.[385] The failure of this legislation, which sought merely to increase transparency around families’ current legal protections, demonstrates the family policing system’s aversion to reforms that empower parents and families under its supervision. That this agency was threatened by, and even undermined through backdoor political maneuvering, a modest attempt to educate families about their rights, already enshrined in law, demonstrates that the family policy system is unwilling to relinquish its unfettered authority over families’ autonomy and due process.

Organizations like the Parent Legislative Action Network and the Movement for Family Power are building coalitions, lobbying legislators across multiple states, and mobilizing impacted parents to demand Miranda-style notifications when interacting with the family policing system.[386] Their efforts gained significant momentum from the recent case, Gould et al. v. City of New York, where parents are challenging the city’s practice of allowing family policing system investigators to coerce their way into homes by failing to explain that parents have a right to refuse warrantless entries.[387] Public interest and private lawyers are currently providing critical support for the activist movement driving this pivotal suit.

Disability rights and justice activists must be included in these efforts. People with disabilities, especially those with intellectual, psychiatric, or sensory disabilities, are disproportionately vulnerable to having their parental rights terminated based on biased assessments and violations of their civil liberties during family policing investigations. Future policy proposals must constrain this overreaching state intrusion into family life by realigning child welfare practices with constitutional protections against self-incrimination and unreasonable searches and seizures.

Reasonable efforts to ensure child safety can still be pursued without wholesale disregard for constitutional due process rights and privacy protections, which guarantee either informed consent or judicial oversight prior to invasive home monitoring and entry. Despite fierce resistance from entrenched family policing system agencies, grassroots coalitions provide hope for finally securing long-overdue rights-based reforms. With sustained multiracial activist efforts, laws mandating affirmative advisement of rights akin to Miranda, along with other procedural safeguards, could become a reality. This underscores that efforts to protect child well-being and uphold family integrity need not be framed as fundamentally opposing those to institute proper civil liberty constraints.

Thus, constitutional protections against unwarranted searches and compelled self-incrimination should apply as stringently to family policing system investigations as they do to criminal investigations. Recent legislative efforts to enact Miranda-style rights demonstrate the push for reform, despite systemic obstruction by entrenched parties. Guaranteeing Fourth and Fifth Amendment rights would properly balance child safety and family dignity, and curb state overreach under the guise of protection. With diligent oversight and limitations, the family policing system can keep families, including those with disabled parents, together while upholding core civil liberties.

D.    Repealing Mandated Reporting Laws

Mandatory reporting laws require professionals to report suspected child maltreatment and thus fuel widespread the family policing system’s surveillance of families, especially those with disabled parents.[388] However, these laws have proven ineffective and harmful, prompting unnecessary investigations and family separations based on subjective judgments about parenting.[389] Indeed, despite over five decades of mandated reporting, nearly 80 percent of reports are unsubstantiated, meaning that, in the majority of cases, families have been needlessly scrutinized by the system.[390] Often, subjective judgments lead poverty to be misconstrued as neglect, especially for marginalized families.[391] Overreporting also overwhelms the family policing system, diverting resources away from families truly needing support.

Repealing mandated reporting would substantially lower the frequency of unsubstantiated claims and inappropriate interventions into family life. Without liability fears, professionals could exercise discretion to report only when their expertise compels it. This would help refocus the system on providing family support as opposed to disrupting families based on individual mandatory reporters’ subjective standards. Investigations could rely on evidence-based indicators of harm, rather than poverty or disability status. With less of their already strained resources diverted to unsubstantiated cases, family policing system agencies could better assist families in crisis. The priority would shift to first preserving families rather than reflexively investigating them. Critically, repealing mandated reporting statutes would not eliminate the ability to report suspected maltreatment voluntarily. Anyone in the community with sincere concerns about a child’s welfare could still contact the family policing system, even without liability. This maintains a safety valve for intervention in legitimate cases. However, removing the mandate helps ensure reporting is thoughtful rather than reflexive and restores community discretion instead of top-down surveillance.

To enact this reform, Congress must first repeal CAPTA’s requirement that states have mandated reporting laws. The federal legislation passed in 1974 has coerced states into adopting rigid reporting mandates. With CAPTA repealed, states would then have the latitude to repeal their own statutes that require professionals to report.

Undoubtedly, repealing mandated reporting laws would significantly reduce unnecessary family investigations and system involvement rooted in subjective judgments. This would profoundly improve the lives of disabled parents and their children. The federal and state repeal process is imperative to end mandated surveillance and curtail systemic overreach. This reform would allow voluntary reporting to continue and enable supportive and equitable approaches focused on family preservation. The primary aim would be assisting families in crisis, not coercive scrutiny based on prejudice.

E.     Ensuring Early Access to Legal Representation

Rather than waiting for a family policing system case to reach court, parents need access to legal representation once there is any sign of family policing system involvement.[392] Early defense empowers families to limit state intrusion and challenges the current system’s core presumption of inevitable or benevolent intervention. Attorneys can advise parents on their rights against unwarranted searches and seizures, provide counsel during interrogations, and negotiate the scope of consent with agencies.[393] Early intervention is critical to curbing investigative overreach that otherwise inflicts trauma and coercion on families before any findings of harm have been made. For parents with disabilities, in particular, early representation can ensure they are treated equitably and receive appropriate accommodations.

Early legal representation is vital because family policing system investigations inflict harm on families even without removal or court proceedings.[394] Most cases never reach court, so consent is routinely given by families without realizing they can refuse.[395] Yet invasive inquiries and surveillance cause lasting trauma regardless of the outcome.[396] Procedural court protections also rarely deter overreach in initial investigations. Thus, early defense is essential to assert parents’ fundamental rights to dignity and autonomy before significant damage is done.

Moreover, for parents with disabilities, early legal representation is essential to enforce ADA protections that might otherwise be overlooked. [397] Attorneys skilled in disability rights law can advocate for reasonable accommodations and modifications during the family policy system’s investigation process. By counseling clients on how to comfortably discuss their needs and disabilities, lawyers can strengthen parents’ position and prevent discrimination during the investigation stage. Parents’ attorneys should also develop partnerships with disability rights attorneys to advise on effective strategies.[398] With competent representation from the start, parents with disabilities can avoid unnecessary interventions and assert their right to parent with dignity.

In Lassiter v. Department of Social Services,[399] the Supreme Court held that the Due Process Clause does not automatically confer a right to counsel for low-income parents in cases involving the termination of parental rights.[400] However, most states have enacted a statutory right to counsel in such proceedings, but appointments often occur after the first hearing.[401] Notably, a 2020 Executive Order promoted pre-trial representation by encouraging states to utilize federal funds to ensure high-quality legal counsel for parents early in the trial process.[402] This order emphasized that such measures would prevent unnecessary family separations and protect parents’ rights.[403] Moreover, law schools, like Harvard Law, have begun providing early legal representation to parents involved with the family policing system.[404] While progress is uneven, these efforts represent promising steps toward guaranteeing legal representation before families face the threat of permanent dissolution. With sustained advocacy and policy changes, the goal of universal access to counsel, from the outset of system involvement, can be achieved. Ensuring that parents understand and can exercise their rights when stakes are highest protects their due process. Establishing early representation is essential to just and equitable treatment of families, especially those with parents with disabilities.

Aside from preserving constitutional guarantees, early legal representation amid initial family policing system contact is imperative to curtail surveillance overreach. Challenging presumptions of benevolent state intervention, skilled attorneys can advise families on refusing consent and asserting their rights. As discussed, for parents with disabilities, early representation provides opportunities to request needed accommodations and constrain surveillance. By empowering parents from the outset, early defense upholds dignity and self-determination as paramount values, even amidst wrongful allegations. Families can engage these systems on their terms with support to limit coercion and trauma. Thus, efforts should be made to expand access to early legal representation for parents, especially those with disabilities.

F.     Abolition and Reimagining Support for Families

While the reforms discussed in previous Sections offer immediate improvements, they are ultimately temporary solutions within a fundamentally flawed system. The long-term agenda must be more radical: the complete abolition of the family policing system and a reimagining of how we support families. Legal and policy responses are needed to dismantle the family policing system and prioritize investment in parents and their children.[405] Abolishing the family policing system is critical to eliminating the pervasive surveillance of disabled parents and their families.[406] This approach goes beyond piecemeal reforms to address the root causes of systemic discrimination and oppression. Moreover, reimagining support for families involves investing in disabled parents and their children, providing them with appropriate and accessible resources to address their needs. This ensures they have the opportunity to raise their families with dignity and autonomy, free from the threat of unwarranted state intervention. By shifting resources from punitive measures to community-based support systems, we can create a more just and equitable environment for all families, particularly those with disabled parents.

To reimagine support for families, it is essential to divert resources from the family policing system and channel them into community-based programs and services tailored to families’ unique needs and circumstances. These types of programs, which provide supportive services, counseling, parenting education, and other skill-building assistance in a nonjudgmental setting, can help prevent unnecessary family policing system involvement and facilitate family reunification when temporary separation has occurred.[407] While existing support services for parents with disabilities are currently limited and often inadequately adapted, emerging community-based models like Positive Parenting offer promise for more effective, long-term impact when implemented and funded at a broader scale.[408]

The Positive Parenting program, run by the United Arc in Massachusetts, exemplifies key characteristics of effective support programs for parents with intellectual disabilities through its provision of intensive, in-home parenting skills education specifically tailored for this population.[409] The program incorporates hands-on coaching, role-playing, visual aids, and other accessibility accommodations to ensure its effectiveness.[410] Crucially, it aims to work with parents in a supportive rather than punitive manner to build knowledge and skills.[411] With increased funding and support to replicate such programming nationwide, the Positive Parenting model could serve as an empowering alternative to the coercive family policing approach for disabled parents and all families.

Further, it is essential to empower organizations led by and for people with disabilities. Centers for Independent Living (CILs), of which there are more than 400 nationwide, are community-based, cross-disability, nonprofit organizations designed and operated by people with disabilities to provide peer support, advocacy, skills training, and more.[412] CILs operate according to a strict philosophy of consumer control, meaning that people with all types of disabilities directly govern and staff the organizations. In addition to CILs, there is a growing number of mutual aid groups within the disability justice movement that can assist disabled parents and their children.[413] Redirecting funds from family policing system agencies to CILs and other community-based organizations aligns with the broader movement for transforming and abolishing the family policing system. It enables tailored services to meet the unique needs of disabled parents and their children rather than disrupting families through child removal. Supporting disability-led organizations allows parents with disabilities to receive accommodations and support that account for their specific disabilities and lived experiences. This empowering, compassionate approach provides real solutions for keeping families safely together.

Expanding existing services, like government-funded personal assistance programs, is also vital to better support disabled parents. Presently, federal regulations limit how personal assistants can help parents with disabilities complete parenting responsibilities.[414] For example, under current rules, assistants cannot lift disabled parents’ children or assist with feeding, bathing, or other child-rearing tasks. Revising these restrictive policies to allow personal assistants to provide a range of parenting supports would greatly enhance disabled parents’ quality of life and ability to raise their children.

A comprehensive legal and policy approach is pivotal to addressing the systemic poverty often endured by parents with disabilities and their children. For example, implementing a universal basic income (UBI) holds promise in combating economic insecurity.[415] Unlike traditional means-tested programs, UBI provides unconditional cash transfers to every person, helping them meet basic needs without complex eligibility criteria.[416] Countries like Canada, Finland, and India have experimented with UBI programs, indicating their potential to prevent child maltreatment.[417] Furthermore, UBI could streamline benefits administration, reduce government spending, and offer timely assistance without bureaucratic hurdles.[418] While the vision of implementing UBI is forward-looking, immediate strategies should focus on expanding existing government assistance programs like Supplemental Security Income (SSI). This involves increasing benefit amounts and eliminating restrictive program rules that exacerbate the financial struggles of people with disabilities and their children.[419]

Addressing broader societal issues is also essential to adequately supporting families. Advocating for livable wages, expanding education and employment opportunities, ensuring accessible housing, providing universal health insurance, and establishing affordable childcare are all vital components of this comprehensive approach. Furthermore, when substantiated instances of abuse or neglect do arise, we should not default to placing parents in the carceral system; instead, community-led safety initiatives, grounded in transformative justice principles, could provide more holistic interventions by focusing on the root causes of harm, healing, and keeping families safely intact whenever possible.[420] Disempowering and defunding the punitive policing system in favor of these community-based models would mark a revolutionary shift.

By tackling these multifaceted challenges head-on through policies centering economic security, mutual aid, and community empowerment, we can foster a more equitable society that robustly supports disabled parents, their children, and all families. Ultimately, this transformative approach is essential to dismantling the inherently discriminatory and invasive family policing system predicated on excessive surveillance and control. This effort involves defunding punitive state mechanisms in favor of community-based programs that provide supportive services tailored to families’ needs. Comprehensive legal and policy reforms like universal basic income, livable wages, affordable housing, and healthcare must also address the systemic poverty that forces many families, particularly those with disabled members, into the crosshairs of the family policing apparatus. Through these multifaceted efforts to bolster community care, economic justice, and family autonomy, we can cultivate an environment where disabled parents and their children can thrive with dignity. Simultaneously, we can abolish the surveillance-driven dynamics that needlessly undermine family integrity under the guise of child protection. Reforming this system from its roots is the only path to ensuring child and family well-being without discrimination or rights violations.

Conclusion

Parents with disabilities and their children are ensnared in the family policing apparatus and subjected to relentless scrutiny that threatens their constitutional rights and inflicts enduring harm upon their families. This unceasing observation, ostensibly meant to protect, instead perpetuates a climate of suspicion and intrusion, eroding parental autonomy and distorting the nurturing environments they strive to create for their children. Consequently, these families face unjust interventions, separations, and the reinforcement of damaging stereotypes. These consequences reverberate beyond their immediate lives, perpetuating societal inequalities and inhibiting their full participation in their communities. Legal and policy reforms such as amending the definition of neglect, repealing mandatory reporting laws, and ensuring early access to legal representation can help families now. However, a fundamental paradigm shift is imperative: the abolition of the family policing system. This new paradigm must prioritize empowerment, support, and the preservation of family dignity over unwarranted surveillance. It must ensure that families with disabled parents are no longer unjustly targeted and can live free from the stifling effects of perpetual scrutiny.

Copyright © 2024 Robyn M. Powell, PhD, JD, Assistant Professor at Stetson University College of Law. I extend my appreciation to Jacob Black and others at the University of Oklahoma College of Law’s library for their invaluable research assistance.

           [1].     This narrative is drawn from Carol Marbin Miller, Florida Seized a 4-Day-Old From a Mother With a Disability, Miami Herald (Feb. 20, 2022), https://www.miamiherald.com/news/health-care/article258155053.html [https://perma.cc/REV3-5XYA].

           [2].     Id.

           [3].     Id.

           [4].     Id.

           [5].    Id.

           [6].     Id.

           [7].     Id.

           [8].     Id.

           [9].     Id.

         [10].     Id.

         [11].     Id.

         [12].     This Article’s use of the term family policing system is deliberate and reflects the child welfare system’s functions. The term was first coined by Victoria Copeland and Brianna Harvey. See Alan J. Dettlaff, Confronting the Racist Legacy of the American Child Welfare System: The Case for Abolition 13 (2023); Victoria Copeland, Dismantling the Carceral Ecosystem: Investigating the Role of “Child Protection” and Family Policing in Los Angeles (2022) (PhD dissertation, University of California, Los Angeles), at 2, https://escholarship.org/uc/item/3rc7z257 [https://perma.cc/Z3G8-NF9Y].  As Dorothy Roberts explains, the term “child welfare system” suggests “that the system’s purpose is to improve or protect the welfare of children.” ‘Abolition Is the Only Answer’: A Conversation with Dorothy Roberts, Rise Mag. (Oct. 20, 2020), https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [https://perma.cc/6CMM-SU4B]. Instead, however, the system “polices families with the threat of taking children away. Even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. It is a form of punishment, harm and oppression.” Id. (emphasis in original).

         [13].     This narrative is drawn from Sally Ho & Garance Burke, Here’s How an AI Tool May Flag Parents with Disabilities, Associated Press (Mar. 15, 2023), https://apnews.com/article/child-protective-services-algorithms-artificial-intelligence-disability-02469a9ad3ed3e9a31ddae68838bc76e [https://perma.cc/8BE4-XGJZ].

         [14].     Id.

         [15].     Id.

         [16].     Id.

         [17].     Id.

         [18].     Id.

         [19].   Sierra Rehm & Nicole Ford, Couple Files Lawsuit, Alleges CYF Took Their Daughter Because They Are Intellectually Disabled, WPXI (Mar. 7, 2024), https://www.wpxi.com/news/local/lawsuit-alleges-allegheny-county-cyf-discriminated-against-parents-with-mild-disabilities/TXKAPEVCPJCSBLXQP44GDWP6VI/ [https://perma.cc/P7WH-RD57].

         [20].     Ho & Burke, supra note 13.

         [21].     Id.

         [22].     Laurel-Ann Dooley, Does Artificial Intelligence Discriminate in Child Neglect Case Assessments?, ABA Journal (Dec. 1, 2023), https://www.abajournal.com/magazine/article/does-artificial-intelligence-discriminate-in-child-neglect-case-assessments [https://perma.cc/VC65-J3KW].

         [23].     Id.

         [24].     In alignment with the principles of disability rights and disability justice movements, this Article recognizes that language significantly influences our perceptions of disability, and ableism can permeate language usage, as well as reflect and sustain disability-based oppression. Lydia X. Z. Brown, Ableism/Language, Autistic Hoya (Sept. 14, 2022), https://www.autistichoya.com/p/ableist-words-and-terms-to-avoid.html [https://perma.cc/BG9E-Y78L]. Accordingly, I use person-first and identity-first language interchangeably (for example, “parents with disabilities” and “disabled parents”) to acknowledge the disability community’s diverse language preferences. See generally Erin E. Andrews, Robyn M. Powell & Kara Ayers, The Evolution of Disability Language: Choosing Terms to Describe Disability, 15 Disab. & Health J. 101328 (2022) (examining the evolving language preferences among people with disabilities).

         [25].     Ho & Burke, supra note 13.

         [26].     See, e.g., Robyn M. Powell, Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach, 33 Yale J.L. & Feminism 37, 61–65 (2022) (reviewing the literature documenting pervasive child welfare system inequities among disabled parents); Charisa Smith, Unfit through Unfairness: The Termination of Parental Rights Due to a Parent’s Mental Challenges, 5 Charlotte L. Rev. 377, 399–401 (2014) (discussing the high rates of child welfare system involvement among parents with intellectual disabilities); Sarah H. Lorr, Unaccommodated: How the ADA Fails Parents, 110 Calif. L. Rev. 1315, 1326–29 (2022) (explaining the experiences of parents with disabilities involved with the child welfare system).

         [27].     See Powell, supra note 26, at 61–65.

         [28].     See Nancy D. Polikoff & Jane M. Spinak, Foreword: Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being, 11 Colum. J. Race & L. 427, 433 (2021).

         [29].     See Hum. Rts. Watch & Am. C.L. Union, “If I Wasn’t Poor, I Wouldn’t Be Unfit”: The Family Separation Crisis in the US Child Welfare System 47 (2022), https://www.hrw.org/sites/default/files/media_2022/11/us_crd1122web_3.pdf [https://perma.cc/7N9E-QB67].

         [30].     See Angela Olivia Burton & Angeline Montauban, Toward Community Control of Child Welfare Funding: Repeal the Child Abuse Prevention and Treatment Act and Delink Child Protection From Family Well-Being, 11 Colum. J. Race & L. 639, 644 (2021) (comparing the family policing system to the rest of the prison-industrial complex).

         [31].     Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition can Build a Safer World 23 (2022); S. Lisa Washington, Survived & Coerced: Epistemic Injustice in the Family Regulation System, 122 Colum. L. Rev. 1097, 1120 (2022).

         [32].     See Lisa A. Goodman & Jennifer E. Fauci, The Long Shadow of Family Separation: A Structural and Historical Introduction to Mandated Reporting in the Domestic Violence Context, 35 J. Fam. Violence 217, 219 (2020) (internal citations omitted).

         [33].     Ora Prilleltensky, A Ramp to Motherhood: The Experiences of Mothers with Physical Disabilities, 21 Sexuality & Disability 21, 23 (2003).

         [34].     See generally Powell, supra note 26. (proposing an agenda for abolishing the family policing system based on disability justice).

[35] Latin for “parent of [their] country,” parens patriae refers to the power of the state to assume the legal rights of the natural parent and to serve as the parent of any child who is believed to need protection. Mical Raz, History of Child Protection Law, in Child Welfare Law and Practice: Representing Children, Parents, and Agencies in Neglect, Abuse, and Dependency Cases 33, 34 (Josh Gupta-Kagan, LaShanda Taylor Adams, Melissa Dorris Carter, Kristen Pisani-Jacques & Vivek S. Sankaran eds., 4th ed. 2022); Parens Patriae, Black’s Law Dictionary (11th ed. 2019).

         [36].     Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

         [37].     Id. at 390.

         [38].     Id. at 396–99.

         [39].     268 U.S. 510 (1925).

         [40].     Id. at 534–35.

         [41].     Id. at 535.

         [42].     321 U.S. 158 (1944).

         [43].     Id. at 159, 165.

         [44].     See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 207, 234–36 (1972) (finding that the First and Fourteenth Amendments prohibited the state from making Amish children attend school until age sixteen when doing so violated parents’ decisions about their children’s religious upbringing).

         [45].     See, e.g., Troxel v. Granville, 530 U.S. 57, 60–63, 67 (2000) (holding unconstitutional a state statute that permitted a judge to allow grandparent visitation against a parent’s consent solely because the judge believed that such visits were in the child’s best interests).

         [46].     See, e.g., Parham v. J.R., 442 U.S. 584, 620–21 (1979) (finding formal due process procedures were not constitutionally required when parents sought to commit their children to mental health institutions).

         [47].     Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

         [48].     405 U.S. 645 (1972).

         [49].     Id. at 649.

         [50].     455 U.S. 745 (1982).

         [51].     Id. at 747–48.

         [52].     Id.

         [53].     452 U.S. 18 (1981).

         [54].     Id. at 31–32 (leaving the decision of “whether due process calls for the appointment of counsel for indigent parents in termination proceedings to be answered in the first instance by the trial court”).

         [55].     519 U.S. 102 (1996).

         [56].     Id. at 127–28.

         [57].     See, e.g., id. at 127 (quoting Lassiter, 452 U.S. at 27).

         [58].     406 U.S. 205 (1972).

         [59].     Id. at 233–34.

         [60].     Santosky v. Kramer, 455 U.S. 745, 766 (1982).

         [61].     U.S. Const. amend. IV.

         [62].     See Katz v. United States, 389 U.S. 347, 353 (1967) (“[T]he Fourth Amendment protects people—and not simply ‘areas’—against unreasonable searches and seizures . . . .”); id. (finding that the government’s actions “violated the privacy upon which [the defendant] justifiably relied”).

         [63].     U.S. Const. amend. IV.

         [64].     Id.

         [65].     367 U.S. 643 (1961).

         [66].     Id. at 657.

         [67].     See Khiara M. Bridges, The Poverty of Privacy Rights 11, 28–29 (2017).

         [68].     400 U.S. 309 (1971).

         [69].     Id. at 326.

         [70].     See id. at 318.

         [71].     Bridges, supra note 67, at 47.

         [72].     Id. at 85–86.

         [73].     Eight circuit courts have ruled that searches of homes by family policing system caseworkers are presumed unreasonable under the Fourth Amendment unless the caseworkers obtain a court order, receive consent from the occupants, or have exigent circumstances or probable cause to believe a child’s health is in grave danger. See J.C. v. District of Columbia, 199 A.3d 192, 200 (D.C. 2018) (probable cause); Andrews v. Hickman Cnty., 700 F.3d 845, 859 (6th Cir. 2012) (exigent circumstances); Gates v. Tex. Dep’t of Protective & Regul. Servs., 537 F.3d 404, 419–20 (5th Cir. 2008) (citations omitted) (consent and exigent circumstances); Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003) (exigent circumstances); Doe v. Heck, 327 F.3d 492, 509, 513 (7th Cir. 2003), as amended on denial of reh’g (7th Cir. 2003) (court order, probable cause, and exigent circumstances); Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir. 1999) (exigent circumstances); Good v. Dauphin Cnty. Soc. Servs., 891 F.2d 1087, 1092–95 (3d Cir. 1989) (exigent circumstances); see also Siliven v. Ind. Dep’t of Child Servs., 635 F.3d 921, 926–27 (7th Cir. 2011) (probable cause). While some circuit courts have declined to rule on the issue, see, e.g., Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999); Doe v. Moffat, 116 F.3d 464, 464 n.1 (1st Cir. 1997) (unpublished), only one circuit court has determined that searches of homes by family policing system caseworkers are subject to a lower legal standard than the Fourth Amendment’s warrant requirement, Wildauer v. Frederick Cnty., 993 F.2d 369, 372 (4th Cir. 1993), and even that decision has been applied unevenly. See Anna Arons, The Empty Promise of the Fourth Amendment in the Family Regulation System, 100 Wash. U. L. Rev. 1057, 1086–90 (2023).

         [74].     U.S. Const. amend. IV.

         [75].     Iowa Code Ann. § 232.71B (West 2022); Ky. Rev. Stat. Ann. § 620.040 (West 2023); N.H. Rev. Stat. Ann. § 169-C:34 (2022); N.Y. Fam. Ct. Act § 1034; S.C. Code Ann. § 63-7-920 (2023). Two other states’ statutory or regulatory codes reference legal standards higher than probable cause in the context of evidence of the parent’s noncompliance with an investigation, rather than evidence of child maltreatment. See Del. Code Ann. tit. 16, § 910 (2021); N.C. Gen. Stat. Ann. § 7B-303 (West 2022). Furthermore, courts in three other states have read a probable cause requirement into an entry order statute. J.B. ex rel Y.W.-B., 265 A.3d 602, 628 (Pa. 2021); Germaine v. State, 718 N.E.2d 1125, 1130–31 (Ind. Ct. App. 1999); H.R. v. State Dep’t of Hum. Res., 612 So.2d 477, 479 (Ala. Civ. App. 1992).

         [76].     Eleven states instruct courts to issue entry orders for “reasonable suspicion,” “cause shown,” “when necessary,” or if the order would be in the “best interests of the child.” See Ala. Code § 26-14-7 (2023); Colo. Rev. Stat. Ann. § 19-3-308 (West 2023); Fla. Stat. Ann. § 39.301 (West 2024); 325 Ill. Comp. Stat. Ann. 5 / 7.5 (LexisNexis 2024); Ind. Code Ann. § 31-33-8-7 (West 2021); Mont. Code Ann. § 41-3-433 (West 2023); N.J. Stat. Ann. § 30:4C-12 (West 206); 40 R.I. Gen. Laws Ann. § 40-11-7 (West 2022); Tenn. Code Ann. § 37-1-406(e) (West 2022); Tex. Fam. Code Ann. § 261.303 (West 2023); Wyo. Stat. Ann. § 14-3-204 (West 1977).

         [77].     See Ark. Code Ann. § 12-18-609 (West 2015); 55 Pa. Code § 3490.73 (1986) (“The county agency shall petition the court if one of the following applies: . . . A subject of the report of suspected child abuse refuses to cooperate with the county agency in an investigation, and the county agency is unable to determine whether the child is at risk.”); Wis. Stat. Ann. § 48.981(3)(c)(b) (West 2023); see also Alaska Stat. Ann. § 47.10.020 (West 2022) (authorizing courts to issue any orders necessary to assist an agency in conducting a preliminary investigation so that the court can determine whether the best interests of the child necessitate further action be taken).

         [78].     See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 45 n.13 (1981) (Blackmun, J., dissenting) (“[T]he ‘best interests of the child’ standard offers little guidance to judges, and may effectively encourage them to rely on their own personal values.”); Smith v. Org. of Foster Fams. for Equal. & Reform, 431 U.S. 816, 835 n.36 (1977) (“Moreover, judges too may find it difficult, in utilizing vague standards like ‘the best interests of the child,’ to avoid decisions resting on subjective values.”) (citations omitted); N.J. Div. of Youth & Fam. Servs. v. Wunnenburg, 408 A.2d 1345, 1347 (N.J. Super. Ct. App. Div. 1979) (noting approvingly that a “best interests” standard for searches allows judges to engage in a more capacious analysis than a probable cause standard); Erik W. Aamot-Snapp, When Judicial Flexibility Becomes Abuse of Discretion: Eliminating the “Good Cause” Exception in Indian Child Welfare Act Adoptive Placements, 79 Minn. L. Rev. 1167, 1169–70 (1995) (examining states’ inconsistent application of the “good cause” standard in the context of the Indian Child Welfare Act and concluding that the good cause standard serves as a channel for judicial bias); Henry S. Noyes, Good Cause Is Bad Medicine for the New E-Discovery Rules, 21 Harv. J.L. & Tech. 49, 73–74 (2007) (reviewing the multiple meanings of “good cause” contained solely within the Federal Rules of Civil Procedure and observing that “courts have interpreted the phrase to mean different things in different contexts and have applied the standard with varying levels of vigor”).

         [79].     See Roberts, supra note 31, at 164. Notably, in December 2021 the Pennsylvania Supreme Court held that Fourth Amendment safeguards extend to home investigations conducted by the family policing system. In Interest of Y.W.-B., 265 A.3d 602, 635 (Pa. 2021).

         [80].     See Roberts, supra note 31, at 164.

         [81].     See Doriane Lambelet Coleman, Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment, 47 Wm. & Mary L. Rev. 413, 426–58 (2005) (describing the “child welfare exception”). Coleman uses the “child welfare exception” as an umbrella term to encompass categorizing a search as a special-needs or administrative search to circumvent the Fourth Amendment’s presumptive warrant and probable cause requirements. Id. at 416–17.

         [82].     See id. at 426–58.

         [83].     Bridges, supra note 67, at 16.

         [84].     Caniglia v. Strom, 593 U.S. 194, 198 (2021) (quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)).

         [85].     See Coleman, supra note 81, at 430.

[86].     Id.

         [87].     See Arons, supra note 73, at 1096–97.

         [88].     See Henry Kempe, Frederic N. Silverman, Brandt F. Steele, William Droegemueller & Henry K. Silver, The Battered-Child Syndrome, 181 J. Am. Med. Ass’n 17, 17–24 (1962); Barbara J. Nelson, Making an Issue of Child Abuse: Political Agenda Setting for Social Problems 129 (1984) (explaining that, in the wake of the outcry over Kempe’s “[d]iscovery” of battered child syndrome, lawmakers and others made addressing purportedly dangerous parents’ child maltreatment an urgent national priority).

         [89].     Roberts, supra note 31, at 166.

         [90].     Children’s Bureau, U.S. Dep’t of Health & Hum. Servs., The Child Abuse Prevention and Treatment Act: 40 Years of Safeguarding America’s Children 4 (2014), https://www.acf.hhs.gov/sites/default/files/documents/cb/capta_40yrs.pdf [https://perma.cc/5V7L-B354].

         [91].     See Leonard G. Brown III & Kevin Gallagher, Mandatory Reporting of Abuse: A Historical Perspective on the Evolution of States’ Current Mandatory Reporting Laws with a Review of the Laws in the Commonwealth of Pennsylvania, 59 Vill. L. Rev. Tolle Lege 37, 38–42 (2014).

         [92].     Child Abuse Prevention and Treatment Act of 1974, 42 U.S.C. §§ 5101–5106 (1974); see also Child Welfare Info. Gateway, U.S. Dep’t of Health & Hum. Servs., About CAPTA: A Legislative History (Feb. 2019) [hereinafter About CAPTA: A Legislative History], https://www.childwelfare.gov/pubPDFs/about.pdf [https://perma.cc/9JPY-V46S] (describing CAPTA’s history).

         [93].     See Child Welfare Info. Gateway, U.S. Dep’t of Health & Hum. Servs., How the Child Welfare System Works 2–3 (Oct. 2020), https://www.childwelfare.gov/pubPDFs/cpswork.pdf [https://perma.cc/CC72-BMQ2].

         [94].     See About CAPTA: A Legislative History, supra note 92, at 1.

         [95].     Caroline Bailey, Jessica Shaw & Abril Harris, Mandatory Reporting and Adolescent Sexual Assault, 24 Trauma, Violence, & Abuse 454, 457 (2021).

         [96].     Id.

         [97].     Id.

         [98].     Child Abuse Prevention and Treatment Act of 1974, Pub. L. No. 93-247, § 3, Pub. L. No. 93-247, 88 Stat. 4.

         [99].     Child Abuse Prevention and Treatment Act of 1974, Pub. L. No. 93-247, § 3, Pub. L. No. 93-247, 88 Stat. 4 (as amended through Pub. L. 115-424, § 3(2), (2019)).

      [100].     See Child Welfare Info. Gateway, U.S. Dep’t of Health & Hum. Servs., Definitions of Child Abuse and Neglect 2–3 (May 2022), https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/define/ [https://perma.cc/SJZ4-WNAN] (compiling definitions of child abuse and neglect from all fifty states as well as territories).

      [101].     Id. at 2–4; see, e.g., Okla. Stat. Ann. tit. 10A, § 1-1-105 (West 2021) (where Oklahoma defines abuse as “harm or threatened harm to the health, safety, or welfare of a child by a person responsible for the child’s health, safety, or welfare, including but not limited to nonaccidental physical or mental injury, sexual abuse, or sexual exploitation” and neglect as “(1) the failure or omission to provide . . . adequate nurturance and affection, food, clothing, shelter, sanitation, hygiene, or appropriate education, . . . medical, dental, or behavioral health care, . . . supervision or appropriate caretakers to protect the child from harm or threatened harm of which any reasonable and prudent person responsible for the child’s health, safety or welfare would be aware, or . . . special care made necessary for the child’s health and safety by the physical or mental condition of the child”).

      [102].     Mical Raz, Abusive Policies: How the American Child Welfare System Lost Its Way 55–56 (2020).

      [103].    Id.

[104].    Id.

[105].     Id.

      [106].     See Goodman & Fauci, supra note 32, at 218.

      [107].     Child Welfare Info. Gateway, U.S. Dep’t of Health & Hum. Servs., Mandatory Reporting of Child Abuse and Neglect 4 (2023), https://www.childwelfare.gov/pubPDFs/manda.pdf [https://perma.cc/4CJY-FACB].

      [108].     Bailey, Shaw & Harris, supra note 95, at 458–60; Nancy R. Mudrick & Carrie Jefferson Smith, Mandatory Reporting for Child Protection in Health Settings and the Rights of Parents with Disabilities, 10 Disability & Health J. 165, 166 (2017).

      [109].     Child Welfare Info. Gateway, U.S. Dep’t of Health & Hum. Servs., Immunity for Persons Who Report Child Abuse and Neglect 2 (Jan. 2023), https://www.childwelfare.gov/pubPDFs/reporterimmunity.pdf [https://perma.cc/6CQV-VJWF].

      [110].     Child Welfare Info. Gateway, U.S. Dep’t of Health & Hum. Servs., Penalties for Failure to Report and False Reporting of Child Abuse and Neglect 2 (2019), https://www.childwelfare.gov/resources/penalties-failure-report-and-false-reporting-child-abuse-and-neglect/ [https://perma.cc/2ZLT-NKNG].

      [111].     See Fla. Stat. Ann. § 39.205(1) (West 2022).

      [112].     Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 500 (codified as amended in various sections of 42 U.S.C.).

      [113].     Jennifer M. Geiger & Lisa Schelbe, The Handbook on Child Welfare Practice 6 (2021). The staggering increase in children being separated from their families and placed in foster care was due, in part, to responses to Dr. Kempe and colleagues’ article on “battered child syndrome” and the subsequent outcry which led all fifty states to establish child abuse “hotlines” and other systems allowing people to report suspected child maltreatment. See Tina Lee, Catching A Case: Inequality and Fear in New York City’s Child Welfare System 27–28 (2016). Additionally, Dorothy Roberts opines that the medicalization of child maltreatment served another purpose. Specifically, unable to garner bipartisan support for legislation focused on poverty-related harms to children, Congress, instead, promoted “a medical model of child abuse—‘a distinguishable pathological agent attacking the individual or family that could be treated in a prescribed manner and would disappear.’” Dorothy Roberts, Shattered Bonds: The Color of Child Welfare 14 (2002).

      [114].     Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 500 (codified as amended in various sections of 42 U.S.C.).

      [115].     Will L. Crossley, Defining Reasonable Efforts: Demystifying the State’s Burden Under Federal Child Protection Legislation, 12 B.U. Pub. Int. L.J. 259, 260 (2003).

      [116].     Roberts, supra note 113, at 175 (observing that between 1981 and 1990, federal spending on the family policing system went from $0.5 billion to $1.6 billion, with the majority going towards foster care rather than family preservation services); see Staff of the Comm. on Ways & Means, 2012 Green Book, Child Welfare Legislative History (Comm. Print 2012) [https://perma.cc/8AW7-SA83].

      [117].     See Staff of the H. Comm. on Ways & Means, 112th Cong., 2012 Green Book: Background Data and Material Within The Jurisdiction of the Committee on Ways and Means tbl.11-4 (Comm. Print 2012) [https://perma.cc/HA8F-TCZU]; (tracking foster care rates); see also Martin Guggenheim, What’s Wrong with Children’s Rights 188 (2005) (observing changes in foster care rates).

      [118].     Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified as amended in scattered sections of 42 U.S.C.).

      [119].     Susan L. Brooks & Dorothy E. Roberts, Social Justice and Family Court Reform, 40 Fam. Ct. Rev. 453, 454 (2002).

      [120].     Clare Huntington, Rights Myopia in Child Welfare, 53 UCLA L. Rev. 637, 649 (2006) (explaining that ASFA was enacted in response to the “foster care drift,” which refers to children remaining in foster care for extended periods of time).

      [121].     Powell, supra note 26, at 57.

      [122].     42 U.S.C. § 675(5)(E) (2018).

      [123].     42 U.S.C. § 671(a)(15)(D)(i)–(iii) (2023). In addition to egregious acts such as manslaughter or murder, some states include a parent’s disability as justification for bypassing reasonable efforts and “fast-track[ing]” termination of parental rights. See Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children 90–92 (Sept. 27, 2012), https://ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf [https://perma.cc/H4P2-8TKV] (explaining the bypass provision and its effect on parents with disabilities).

      [124].     42 U.S.C. § 671(a)(15)(F).

      [125].     Brooks & Roberts, supra note 119, at 454.

      [126].     Id.

      [127].     Family First Prevention Services Act of 2018. Pub. L. No. 115-123, 132 Stat. 232 (codified at 42 U.S.C. § 50711(b)).

      [128].     Id. Before the Family First Prevention Services Act was enacted, states could only spend Title IV-E funds on foster care and adoption assistance. See Miriam Mack, The White Supremacy Hydra: How the Family First Prevention Services Act Reifies Pathology, Control, and Punishment in the Family Regulation System, 11 Colum. J. Race & L. 767, 783 (2021).

      [129].     Family First Prevention Services of 2018. Pub. L. No. 115-123, 132 Stat. 232 (codified at 42 U.S.C. § 50711(b)).

      [130].     Id.

       [131].     See Mack, supra note 128, at 799.

      [132].     Talia P. Gruber, Beyond Mandated Reporting: Debunking Assumptions to Support Children and Families, 1 Abolitionist Persps. in Soc. Work 1, 10 (2023).

      [133].     Family First Prevention Services Act of 2018. Pub. L. No. 115-123, 132 Stat. 232 (codified at 42 U.S.C. § 50711(b)).

      [134].     Id.

      [135].     See J. Khadijah Abdurahman, Calculating the Souls of Black Folk: Predictive Analytics in the New York City Administration for Children’s Services, 11 Colum. J. Race & L. F. 75, 93 (2021).

      [136].     Id. at 96.

      [137].     Family First Prevention Services Act of 2018. Pub. L. No. 115-123, 132 Stat. 232 (codified at 42 U.S.C. § 50711(b)).

      [138].     Id.

      [139].     Id.

      [140].     Id.

      [141].     Mack, supra note 128, at 770.

      [142].     Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101–12213 and 47 U.S.C. § 225).

      [143].     Pub. L. No. 93-112, 87 Stat 335 (codified at 29 U.S.C. §§ 701–96).

      [144].     42 U.S.C. § 12102(1).

      [145].     Id.  §§ 12102(4)(D); 12102(4)(E)(i).

      [146].     28 C.F.R. pt. 35, App. B (1991) (“Title II of the ADA extends this prohibition of discrimination to include all services, programs, and activities provided or made available by State and local governments or any of their instrumentalities or agencies, regardless of the receipt of Federal financial assistance.”).

      [147].     See, e.g., id. § 35.130(b); see also id. (explaining in the 1991 Section-by-Section guidance to the Title II regulation that, “[t]aken together, the[] provisions [in 28 C.F.R. § 35.130(b)] are intended to prohibit exclusion . . . of individuals with disabilities and the denial of equal opportunities enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears, and stereotypes about individuals with disabilities” and that, “[c]onsistent with these standards, public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals with disabilities can or cannot do.”).

      [148].     Id. § 35.130(b)(1)(ii); 45 C.F.R. § 84.4(b)(1)(ii).

      [149].     See generally Off. for Civ. Rts. Admin. for Child. & Fams., U.S. Dep’t of Health & Hum. Servs. & Civ. Rts. Div., Disability Rts. Section, U.S. Dep’t of Just., Protecting the Rights of Parents And Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts Under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (2015), https://www.hhs.gov/sites/default/files/disability.pdf [https://perma.cc/WKW6-R98M] (explaining the family policing system’s legal mandates vis-à-vis the ADA and Rehabilitation Act in technical guidance).

      [150].     28 C.F.R. § 35.130(b)(1)(ii); 45 C.F.R. § 84.4(b)(1)(ii).

      [151].      28 C.F.R. § 35.130(d); 45 C.F.R. § 84.4(b)(2).

      [152].     28 C.F.R. § 35.130(b)(7); 45 C.F.R. § 84.4(a); U.S. Dep’t of Justice, Title II Technical Assistance Manual § II-3.6100, Illustration 2 (1993) (clarifying that public entities may need to make modifications to programs, such as individualized assistance, to permit people with disabilities to benefit).

      [153].     28 C.F.R. § 35.130(b)(3)(i)–(ii); 45 C.F.R. § 84.4(b)(4)(i)–(ii); 28 C.F.R. § 35.130(f).

      [154].      28 C.F.R. §§ 35.150, 35.151; 45 C.F.R. §§ 84.22, 84.23.

      [155].     See supra note 147 and accompanying text.

      [156].     See Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 153 (2d Cir. 2013) (noting that “the determination of whether a particular modification is ‘reasonable’ involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of the disability in question and the cost to the organization that would implement it.”) (internal citations omitted).

      [157].     28 C.F.R. §§ 35.150, 35.164.

      [158].     Id.

      [159].     28 C.F.R. §§ 36.302, 36.303.

      [160].     Powell, supra note 26, at 67–71.

      [161].     Id. (explaining that family policing system agencies fail to consistently comply with the ADA and Section 504, including by not providing reasonable modifications).

      [162].     Id.

[163].     Id.

[164].     Id.

      [165].     Id.

[166].     Id.

      [167].     Id.

      [168].     Id.

      [169].     Roberts, supra note 31, at 160 (describing that mandated reporters, professionals who regularly interact with children, are legally required to report suspected child abuse and neglect to authorities, forming an extensive information-sharing network that underpins the family policing system across various public institutions).

      [170].     Frank Edwards, Family Surveillance: Police and the Reporting of Child Abuse and Neglect, 5 Russell Sage Found. J. Soc. Scis. 50, 52 (2019) (observing that mandated reporters act as the system’s “eyes and ears”).

      [171].     Mike Hixenbaugh, Suzy Khimm & Agnel Philip, Mandatory Reporting Was Supposed to Stop Severe Child Abuse. It Punishes Poor Families Instead., ProPublica (Oct. 12, 2022), https://www.propublica.org/article/mandatory-reporting-strains-systems-punishes-poor-families [https://perma.cc/U5VG-AVHL].

      [172].     Roberts, supra note 31, at 166–67.

      [173].     Gruber, supra note 132, at 12.

      [174].     Roberts, supra note 31, at 156–64.

      [175].     Id.; see also Kelley Fong, Getting Eyes in the Home: Child Protective Services Investigations and State Surveillance of Family Life, 85 Am. Sociol. Rev. 610, 619–20 (2020) (documenting reasons why professionals report families to the family policing system).

      [176].     See infra Part I.B. (describing the scope of mandated reporter laws).

      [177].     Children’s Bureau, U.S. Dep’t of Health & Hum. Servs., Child Maltreatment 2021 x, 8 (2023), https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2021.pdf [https://perma.cc/Y2F4-CHDD].

      [178].     Id. at 9.

      [179].     Id. at 7.

      [180].     Id. at 102.

      [181].     Id. at ii, x (reporting that 50 states and the District of Columbia reported 588,229 victims of child abuse and neglect).

      [182].     Mical Raz, Why Mandatory Reporting Doesn’t Keep Children Safe, Time Mag. (Jan. 31, 2024), https://time.com/6589854/mandatory-reporting-child-abuse-prevention/ [https://perma.cc/B3NG-3P7E].

      [183].     See 42 U.S.C. § 12210. Nonetheless, the ADA does not protect people currently using substances considered illegal. 28 C.F.R. § 35.131 (2024); see also U.S. Dep’t of Just., C.R. Div., The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery 1–6 (2022), https://archive.ada.gov/opioid_guidance.pdf [https://perma.cc/KVE6-ACYV] (describing how the ADA protects people with opioid use disorder, which is a substance use disorder).

      [184].     Substance Use During Pregnancy, Guttmacher Inst. (Jan. 1, 2023), https://www.guttmacher.org/state-policy/explore/substance-use-during-pregnancy [https://perma.cc/W6JA-2JE9].

      [185].     Id.

      [186].     Id.

[187].   See, e.g., Danielle N. Atkins & Christine Piette Durrance, State Policies that Treat Prenatal Substance Use as Child Abuse or Neglect Fail to Achieve Their Intended Goals, 39 Health Affs. 756, 759–61 (2020), https://www.healthaffairs.org/doi/epdf/10.1377/hlthaff.2019.00785 [https://perma.cc/C2QT-HF2W] (discussing the harms of existing programs for pregnant people who use substances).

      [188].     Legal Interventions, in Violence in Families: Assessing Prevention and Treatment Programs 158, 161 (Rosemary Chalk & Patricia A. King eds., 1998) (observing that mandated reporting requirements were adopted without evidence of their effectiveness); Raz, supra note 102, at 70 (explaining that mandated reporting emerged as “the main legacy of 1970s child abuse policy,” and “[d]espite a dearth of evidence on its effectiveness, [it] continues to be the mainstay of current child abuse policies”).

      [189].     Charlotte Baughman, Tehra Coles, Jennifer Feinberg & Hope Newton, The Surveillance Tentacles of the Child Welfare System, 11 Colum. J. Race & L. 501, 507 (2021) (asserting that “the family regulation system and its ‘surveillance tentacles’ monitor families in low-income communities and increase their susceptibility to becoming entangled in the system” and that “[t]his rampant surveillance is inextricably linked to mandated reporting”); Gary B. Melton, Mandated Reporting: A Policy Without Reason, 29 Child Abuse & Neglect 9, 15 (2005) (concluding that mandated reporting is a “bankrupt policy,” which “has had clearly negative side effects, some of which probably adversely affect children’s safety”).

      [190].     See Mical Raz, Calling Child Protectives Services is a Form of Community Policing that Should be Used Appropriately: Time to Engage Mandatory Reporters as to the Harmful Effects of Unnecessary Reports, 110 Child. & Youth Servs. Rev. 104817, 4 (2020); Melton, supra note 189, at 14.

      [191].     Melton, supra note 189, at 15; Mical Raz, Alan Dettlaff & Frank Edwards, The Perils of “Child Protection” for Children of Color: Lessons from History, 148 Pediatrics e2021050237, 3 (2021).

      [192].     Raz, supra note 190, at 104817; Mical Raz, Unintended Consequences of Expanded Mandatory Reporting Laws, 139 Pediatrics e20163511, 2 (2017).

      [193].     See Anna Arons, An Unintended Abolition: Family Regulation During the COVID-19 Crisis, 12 Colum. J. Race & L. F. 1, 5–20 (2022); see generally Kele Stewart & Robert Latham, COVID-19 Reflections on Resilience and Reform in the Child Welfare System, 48 Fordham Urb. L.J. 95 (2020) (examining how COVID-19 impacted Florida’s child welfare system and finding that children did not experience increased maltreatment).

      [194].     Children’s Bureau, supra note 177, at 102.

      [195].     See Hum. Rts. Watch & Am. C.L. Union, supra note 29, at 3–4.

      [196].     Children’s Bureau, U.S. Dep’t of Health & Hum. Servs., The AFCARS Report 2 (2022), https://www.acf.hhs.gov/sites/default/files/documents/cb/afcars-report-29.pdf [https://perma.cc/PR6Y-23WY].

      [197].     Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone & Stephen Fournier, Child Welfare System Inequities Experienced by Disabled Parents: Towards a Conceptual Framework, Disability & Soc’y 291, 303, 306 (2022) (citing research about the association between poverty and involvement with the family policing system).

      [198].     Nat’l Council on Disability, supra note 123, at 80–81 (observing that parents with disabilities interact more often than nondisabled parents with social services providers, who are mandatory reporters); Claudia Malacrida, Gendered Ironies in Home Care: Surveillance, Gender Struggles and Infantilisation, 13 Int’l J. Inclusive Educ. 741, 747 (2009) (asserting that paid caregivers of parents with disabilities “can and do operate as agents of discipline and surveillance”).

      [199].     Sharyn DeZelar & Elizabeth Lightfoot, Who Refers Parents with Intellectual Disabilities to the Child Welfare System? An Analysis of Referral Sources and Substantiation, 119 Child. & Youth Servs. Rev. 5, 5 (2020).

      [200].     Id.

      [201].     Nat’l Council on Disability, supra note 123, at 82 (describing how disabled parents fear medical personnel reporting them to the family policing system and detailing the parents’ strategies to try to remediate these concerns).

      [202].     Powell et al., supra note 197, at 301 (describing how provider assumptions that disabilities may impact parenting can lead to insufficient support during pregnancy and after childbirth, as well as unnecessary referrals to the family policing system); Rebecca Rebbe, Sharan E. Brown, Rebecca A. Matter & Joseph A. Mienko, Prevalence of Births and Interactions with Child Protective Services of Children Born to Mothers Diagnosed with an Intellectual and/or Developmental Disability, 25 Maternal Child Health J. 626, 629 (2021) (reporting that almost 22 percent of mothers with intellectual or developmental disabilities were reported to the family policing system within the first year of giving birth, while almost 36 percent faced this situation within four years). In stark contrast, only 6 percent of mothers without intellectual disabilities were reported within one year, and merely 10 percent were reported within four years. Id.; Hilary K. Brown, Lynne A. Potvin, Yona Lunsky & Simone N. Vigod, Maternal Intellectual or Developmental Disability and Newborn Discharge to Protective Services, 142 Pediatrics e20181416, 1 (2018) (finding that newborns of mothers with intellectual disabilities were thirty-two times more likely to be placed in foster care than the general population); Louise Howard, Nisha Shah, Margaret Salmon & Louis Appleby, Predictors of Social Services Supervision of Babies of Mothers with Mental Illness After Admission to a Psychiatric Mother and Baby Unit, 38 Soc. Psychiatry & Psychiatric Epidemiol. 450, 451–52 (2003) (noting that mothers with psychiatric disabilities and their babies experience greater family policing system involvement and surveillance than other mothers).

      [203].     See infra Introduction.

      [204].     Powell et al., supra note 197, at 297.

      [205].     See Mudrick & Smith, supra note 108, at 167.

      [206].     See id. at 167–68.

      [207].     Id. at 166.

      [208].     Id.; Nat’l Council on Disability, supra note 123, at 81.

      [209].     See Reem Malouf, Jenny McLeish, Sara Ryan, Ron Gray & Maggie Redshaw, ‘We Both Just Wanted to be Normal Parents’: A Qualitative Study of the Experience of Maternity Care for Women with Learning Disability, 7 BMJ Open e015526, 5–6 (2017).

      [210].     Roberts, supra note 31, at 183–84.

      [211].     Child Welfare Info. Gateway, U.S. Dep’t of Health & Hum. Servs., Cross-Reporting Among Agencies That Respond to Child Abuse and Neglect 2 (Feb. 2021), https://www.childwelfare.gov/resources/cross-reporting-among-agencies-respond-child-abuse-and-neglect/ [https://perma.cc/N6AP-HVCH].

         [212].       Roberts, supra note 31, at 183–84.

      [213].     See Baughman et al., supra note 189, at 521–25.

      [214].     Edwards, supra note 170, at 56.

      [215].     Sandra M. Leotti & Elspeth Slayter, Criminal Legal Systems and the Disability Community: An Overview, 11 Soc. Scis. 255 (2022).

      [216].     Id. (citing studies about police violence and incarceration of disabled people).

      [217].     DeZelar & Lightfoot, supra note 199, at 5.

      [218].     Roberts, supra note 31, at 159–66.

      [219].     Baughman et al., supra note 189, at 508.

      [220].     Miranda v. Arizona, 384 U.S. 436 (1966).

      [221].     Roberts, supra note 31, at 132–34.

      [222].     Arons, supra note 73, at 1072.

      [223].     Id.

      [224].     Id.

       [225].     See, e.g., Steven F. Shatz, Molly Donovan & Jeanne Hong, The Strip Search of Children and the Fourth Amendment, 26 U.S.F. L. Rev. 1, 12 (1991) (describing the invasive nature of searches, including strip searching children); Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 399 (5th Cir. 2002) (noting that the strip searched child “subsequently experienced frequent nightmares involving the incident, and exhibited anxiety responses”); Scott Gartner, Strip Searches of Students: What Johnny Really Learned at School and How Local School Boards Can Help Solve the Problem, 70 S. Cal. L. Rev. 921 928–29 (1997) (citing several children’s comments following a strip search).

      [226].     Roberts, supra note 31, at 132–34; see also Coleman, supra note 81, at 431 (observing that “there is reason to believe that state officials do not lawfully obtain many of these consents”).

      [227].     Roberts, supra note 31, at 132–34.

      [228].     Id.

      [229].     Id.

      [230].     Id.

      [231].     Fong, supra note 175, at 610–11.

       [232].    Nicholson v. Williams, 203 F. Supp. 2d 153, 222 (E.D.N.Y. 2002) (“[W]here the health and safety of children are involved, a parent accused of neglect or abuse is guilty until proven innocent.”).

      [233].     Fong, supra note 175, at 610–11.

      [234].     In particular, extensive research shows that parents with intellectual or psychiatric disabilities are more likely to be referred to the family policing system than parents without disabilities. See Tim Booth & Wendy Booth, Findings from a Court Study of Care Proceedings Involving Parents with Intellectual Disabilities, 1 J. Pol’y & Prac. Intell. Disabilities 179, 180 (2004); Tim Booth, Wendy Booth & David McConnell, Care Proceedings and Parents with Learning Difficulties: Comparative Prevalence and Outcomes in an English and Australian Court Sample, 10 Child & Fam. Soc. Work 353, 353 (2005); Gwynnyth Llewellyn, David McConnell & Luisa Ferronato, Prevalence and Outcomes for Parents with Disabilities and their Children in an Australian Court Sample, 27 Child Abuse & Neglect 235, 239 (2003); David McConnell, Maurice Feldman, Marjorie Aunos & Narasimha Prasad, Parental Cognitive Impairment and Child Maltreatment in Canada, 35 Child Abuse & Neglect 621, 624 (2011); Jill G. Joseph, Shashank V. Joshi, Amy B. Lewin & Madeleine Abrams, Characteristics and Perceived Needs of Mothers with Serious Mental Illness, 50 Psychiatric Servs. 1357, 1358 (1999); Carol T. Mowbray, Daphna Oyserman, Judith K. Zemencuk & Scott R. Ross, Motherhood for Women with Serious Mental Illness: Pregnancy, Childbirth, and the Postpartum Period, 65 Am. J. Orthopsychiatry 21, 33 (1995); Roberta G. Sands, Nancy Koppelman & Phyllis Solomon, Maternal Custody Status and Living Arrangements of Children of Women with Severe Mental Illness, 29 Health & Soc. Work 317, 320 (2004); Jung Min Park, Phyllis Solomon & David S. Mandell, Involvement in the Child Welfare System Among Mothers with Serious Mental Illness, 57 Psychiatric Servs. 493, 494 (2006); Katy Kaplan, Eugene Brusiloskiy, Amber M. O’Shea & Mark S. Salzer, Child Protective Service Disparities and Serious Mental Illnesses: Results from a National Survey, 70 Psychiatric Servs. 202, 204 (2019).

      [235].     Robert L. Hayman, Jr., Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent, 103 Harv. L. Rev. 1201, 1227 (1990) (“A discrete sense of difference pervades the process: discrimination begins with the initial decision to intervene, ends in the decision to terminate the relationship, and is manifest in nearly every significant decision along the way.”); Nat’l Council on Disability, supra note 123, at 106 (“Parents with disabilities face multiple layers of discrimination from the moment they enter the child welfare system.”).

      [236].     See Rebbe et al., supra note 202, at 629.

      [237].     See Traci LaLiberte, Kristine Piescher, Nicole Mickelson & Mi Hwa Lee, Child Protection Services and Parents with Intellectual and Developmental Disabilities, 30 J. Applied Rsch. Intell. Disabilities 521, 527 (2017); Laysha Ostrow, Katy Kaplan, Yaara Zisman-Ilani, Eugene Brusilovskiy, Carina Smith & Mark S. Salzer, Risk Factors Associated with Child Protective Services Involvement Among Parents with a Serious Mental Illness, 72 Psychiatric Servs. 370, 372 (2021); Park, Solomon & Mandell, supra note 234, at 496.

      [238].     Baughman et al., supra note 189, at 508.

      [239].     Id.

       [240].     Powell et al., supra note 197, at 300.

      [241].     Washington, supra note 31, at 1125–27.

      [242].     Id.

      [243].     Id.

      [244].     See Kristina Rosinsky, Sarah Catherine Williams, Megan Fischer &

Maggie Haas,  Child Welfare Financing SFY 2018: A Survey of Federal, State, and Local Expenditures 50–51 (2021), https://www.childtrends.org/publications/child-welfare-financing-survey-sfy2018 [https://perma.cc/Q22K-L7E5] (explaining the different types of “preventive” trainings parents receive); Darcey H. Merritt, How Do Families Experience and Interact with CPS?, 692 Annals Am. Acad. Pol. & Soc. Sci. 203, 209 (2020) (explaining that once the family policing system opens a case on a family, a case plan with a  “menu of services is then put into place with regular system oversight to assess progress”). It continues, “Caseworkers visit families as often as needed according to the case plan (i.e., weekly, monthly). After a designated period of time, families are assessed to determine if there is an ongoing level of risk for harm that warrants continued, or sometimes elevated, involvement in CPS services.” Id.

      [245].     See Washington, supra note 31, at 1125­–27.

      [246].     Id. at 1126.

      [247].     Id. at 1127.

      [248].     See id.

      [249].     See id.

      [250].     See id. at 1126–27 (explaining how parents are still subject to a surveillance and CPS service plan after family separation).

      [251].     See id. at 1127 (“Quickly, the focus becomes whether a parent complies with an extensive service plan, shows ‘insight’ in therapy sessions, and cooperates with the assigned preventive agency while maintaining a ‘cooperative disposition.’”).

      [252].     Id. at 1126–27.

      [253].     Id.

      [254].     Id. at 1124–26.

      [255].     See Sasha M. Albert & Robyn M. Powell, Supporting Disabled Parents and their Families: Perspectives and Recommendations from Parents, Attorneys, and Child Welfare Professionals, 15 J. Pub. Child Welfare 529, 539–41 (2021) (describing how the lack of services for disabled parents can lead to parents being evaluated for the wrong condition, like one parent described in the study who knew they had postpartum depression but was evaluated by the child welfare system for substance abuse).

      [256].     See Marjorie Aunos & Laura Pacheco, Able or Unable: How do Professionals Determine the Parenting Capacity of Mothers with Intellectual Disabilities, 15 J. Pub. Child Welfare 357, 376 (2020) (citing studies); Joshua B. Kay, Representing Parents with Disabilities in Child Protection Proceedings, 13 Mich. Child Welfare L.J. 27, 33 (2009).

      [257].     See Nat’l Council on Disability, supra note 123, at 129–38.

      [258].     Ranjani Chakraborty & Christof Putzel, Parents with Disabilities Fight to Keep Their Kids, Al Jazeera Am. (May 29, 2015), http://america.aljazeera.com/watch/shows/america-tonight/articles/2015/5/29/parents-disabilities-discrimination.html [https://perma.cc/C4NN-BJ6F].

      [259].     Id.

      [260].     Id.

      [261].     Id.

      [262].     Id.

      [263].     Id.

      [264].     Id.

      [265].     See S. Lisa Washington, Pathology Logics, 117 Nw. U. L. Rev. 1523, 1545 (2023).

      [266].     Id.

      [267].     Albert & Powell, supra note 255, at 542.

      [268].     Human Rights Watch & Am. Civil Liberties Union, supra note 29, at 79–80.

      [269].     See Nat’l Council on Disability, supra note 123, at 136–37 (describing the importance of observing disabled parents and their children in the home).

      [270].     Albert & Powell, supra note 255, at 539–41.

      [271].     Id.

      [272].     See Child Welfare Info. Gateway, U.S. Dep’t of Health & Hum. Servs., Establishment and Maintenance of Central Registries for Child Abuse or Neglect Reports 2 (2018), https://www.childwelfare.gov/pubPDFs/centreg.pdf [https://perma.cc/YHC8-VTA5].

      [273].     See Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor 163–64 (2018).

      [274].     Gruber, supra note 132, at 8.

      [275].     Id.

      [276].     Id.

      [277].      Id.; see Amanda S. Sen, Stephanie K. Glaberson & Aubrey Rose, Inadequate Protection: Examining the Due Process Rights of Individuals in Child Abuse and Neglect Registries, 77 Wash. & Lee L. Rev. 857, 898–99 (2020). 

      [278].     See Gruber, supra note 132, at 8.

      [279].     Scott Pham, “It’s Like A Leech On Me”: Child Abuse Registries Punish Unsuspecting Parents Of Color, BuzzFeed (Apr. 27, 2022), https://www.buzzfeednews.com/article/scottpham/child-abuse-and-neglect-registries-punish-parents-of-color [https://perma.cc/F2L7-SEE6].

      [280].     Gruber, supra note 132, at 8; Colleen Henry & Vicki Lens, Marginalizing Mothers: Child Maltreatment Registries, Statutory Schemes, and Reduced Opportunities for Employment, 24 CUNY L. Rev. 1, 2 (2021) (“Originally designed to investigate and process allegations of child maltreatment, registries and the data they contain are now also used by state licensing agencies and public and private employers to identify perpetrators of maltreatment and essentially bar them from employment in occupations that care for children and other vulnerable populations. As a consequence of this use, thousands of parents—mostly mothers—are prevented from engaging in paid care work, undermining their ability to care for themselves and their families.”).

      [281].     Roberts, supra note 31, at 188–90.

      [282].     Id.

      [283].     See Nat’l Council on Disability, supra note 123, at 202.

      [284].     See id. at 202; Susan L. Parish, Sandra Magaña & Shawn A. Cassiman, It’s Just that Much Harder: Multilayered Hardship Experiences of Low-Income Mothers with Disabilities, 23 Affilia: J. Women & Soc. Work 51, 52, 63 (2008).

      [285].     See Nat’l Council on Disability, supra note 123, at 197–99 (describing barriers to accessible and affordable housing for disabled parents).

      [286].     See Pham, supra note 279.

      [287].     See id.

      [288].     Id.

      [289].     Id.

       [290].    18 F.3d 992, 1004 (2d Cir. 1994).

      [291].    See Dan Hurley, Can an Algorithm Tell When Kids Are in Danger?, N.Y. Times (Jan. 2, 2018), https://www.nytimes.com/2018/01/02/magazine/can-an-algorithm-tell-when-kids-are-in-danger.html [https://perma.cc/N7M5-TVNE].

[292].    Roberts, supra note 31, at 176–83; see also Anjana Samant, Aaron Horowitz, Kath Xu & Sophie Beiers, Family Surveillance by Algorithm: The Rapidly Spreading Tools Few Have Heard Of, Am. C.L. Union (2021), https://www.aclu.org/documents/family-surveillance-algorithm [https://perma.cc/4X3G-FNE5] (reporting that local or state family policing system agencies in at least twenty-six states and the District of Columbia have considered using these predictive analytics tools as part of their family policing systems).

      [293].     Roberts, supra note 31, at 176–83.

      [294].     See infra Introduction.

      [295].     See Roberts, supra note 31, at 176–83.

     [296].     Hurley, supra note 292.

      [297].     See Rhema Vaithianathan, Emily Kulick, Emily Putnam-Hornstein & Diana Benavides Prado, Allegheny Family Screening Tool: Methodology, Version 2, at 3 (2019), https://www.alleghenycountyanalytics.us/wp-content/uploads/2019/05/Methodology-V2-from-16-ACDHS-26_PredictiveRisk_Package_050119_FINAL-7.pdf [https://perma.cc/7NMT-GC5M].

      [298].     See Eubanks, supra note 273, at 165.

       [299].     Ho & Burke, supra note 13.

       [300].     Id.

      [301].     Roberts, supra note 31, at 172–73.

      [302].     Id. at 169–70.

      [303].     Id.

      [304].     Id.

      [305].     Id.

      [306].     See Kristin Gourlay, Parents with Disabilities Face Extra Hurdles with Kids’ Remote Schooling, NPR (Jan. 23, 2021), https://www.npr.org/2021/01/23/959613351/parents-with-disabilities-face-extra-hurdles-with-kids-remote-schooling [https://perma.cc/BQP9-DWSH]; Aleksa Owen, Carli Friedman & Randall Owen, Parents with Disabilities’ Household Access to Educational Devices and Internet During the COVID-19 Pandemic, 9 J. Online Learning Rsch. 101, 110–12 (2023); L. Penny Rosenblum, Paola Chanes-Mora, C. Rett McBride, Joshua Flewellen, Niranjani Nagarajan, Rosemary Nave Stawasz & Bonnielin Swenor, Impact of COVID-19 on Adults Who Are Blind or Have Low Vision in the United States, Am. Found. Blind 81 (Sept. 2020), https://afb.org/sites/default/files/2022-03/AFB_Flatten_Inaccessibility_Report_Revised-march-2022.pdf [https://perma.cc/VKQ3-VV45].

      [307].     See Victoria A. Copeland, Comment, “It’s the Only System We’ve Got”: Exploring Emergency Response Decision-Making in Child Welfare, 11 Colum. J. Race & L. F. 43, 47, 57, 73 (2021); Fong, supra note 175, at 631.

      [308].     See Lynne Wrennall, Surveillance and Child Protection: De-mystifying the Trojan Horse, 7 Surveillance & Soc’y 304, 313–18 (2010); Joanna Redden, Lina Dencik & Harry Warne, Datafied Child Welfare Services: Unpacking Politics, Economics and Power, 41 Pol’y Studs. 507, 508–10 (2020).

      [309].     Melissa Gross, Don Latham, Karen Randolph, Christopher Constantino & Elliot Chance Preshia, Information and Communications Technology Use in Rural Child Welfare Work, 28 Child & Fam. Soc. Work 14, 22 (2023).

      [310].     Id.

      [311].     Id.

      [312].     Id.

      [313].     Id.

      [314].     See Nat’l Council on Disability, supra note 123, at 76–81 (describing the widespread disparities parents with disabilities encounter within the family policing system).

       [315].     See id.  at 185–92 (explaining that disability alone is not a predictor of parenting ability).

       [316].    See id. at 76–81.

      [317].     Elizabeth Lightfoot & Sharyn DeZelar, The Experiences and Outcomes of Children in Foster Care Who Were Removed Because of a Parental Disability, 62 Child. & Youth Servs. Rev. 22, 26 (2016).

      [318].     Kaplan et al., supra note 234, at 204.

      [319].     Nat’l Council on Disability, supra note 123, at 16 (“Removal rates where parents have a psychiatric disability have been found to be as high as 70 percent to 80 percent; where the parent has an intellectual disability, 40 percent to 80 percent.”).

      [320].     Robyn M. Powell, Legal Ableism: A Systematic Review of State Termination of Parental Rights Laws, 101 Wash. U. L. Rev. 423, 423 (2023).

      [321].     See Lightfoot & DeZelar, supra note 318, at 27.

      [322].     See Int’l Ass’n for the Sci. Study of Intellectual Disabilities Special Interest Rsch. Grp. on Parents and Parenting with Intellectual Disabilities, Parents Labelled with Intellectual Disability: Position of the IASSID SIRG on Parents and Parenting with Intellectual Disabilities, 21 J. Applied Rsch. Intellectual Disabilities 296, 296–303 (2008) (explaining the experiences of parents with intellectual disabilities); Robyn M. Powell & Joanne Nicholson, Disparities in Child Protective Services: Commentary on Kaplan et al. (2019), 70 Psychiatric Servs. 209, 209–10 (2019) (discussing disparities experienced by parents with psychiatric disabilities when involved with the family policing system); Nat’l Council on Disability, supra note 123, at 71–107 (describing the experiences of parents with disabilities as they relate to the family policing system).

      [323].     See Phillip A. Swain & Nadine Cameron, “Good Enough Parenting”: Parental Disability and Child Protection, 18 Disability & Soc’y 165, 170 (2003).

      [324].     Lightfoot & DeZelar, supra note 318, at 26 (finding disabled parents had a 22 percent higher likelihood of having their parental rights severed as compared to nondisabled parents); see Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone & Stephen Fournier, Terminating the Parental Rights of Mothers with Disabilities: An Empirical Legal Analysis, 85 Mo. L. Rev. 1069, 1094 (2020) (analyzing 2,064 appellate cases involving mothers with disabilities and finding that 93 percent of these cases resulted in the termination of their parental rights).

      [325].     Shanta Trivedi, The Harm of Child Removal, 43 N.Y.U. Rev. L. & Soc. Change 523, 527–52 (2019) (describing the “harm of removal”); Gruber, supra note 132, at 7–12; see Jane Spinak, When Did Lawyers for Children Stop Reading Goldstein, Freud and Solnit? Lessons from the Twentieth Century on Best Interests and the Role of the Child Advocate, 41 Fam. L.Q. 393, 407 (2007); Richard Wexler, Take the Child and Run: How ASFA and the Mentality Behind It Harm Children, 13 U.D.C. L. Rev. 435, 444 (2010).

      [326].     Baughman et al., supra note 189, at 527 (“Investigations and services demanded by the family regulation system can be highly disruptive to families without providing the material support that could ameliorate the poverty-related concern that first brought the family in contact with the system. Investigations and service requirements can cause loss of housing, employment, and public benefits, which are often exacerbated by court intervention and/or the removal of a child from the household.”).

      [327].     Gruber, supra note 132, at 9–11; Courtney G. Joslin & Catherine Sakimura, Fractured Families: LGBTQ People and the Family Regulation System, 13 Calif. L. Rev. Online 78, 80 (2022).

      [328].     Gruber, supra note 132, at 10–11.

      [329].     Arons, supra note 73, at 1073–74; Merritt, supra note 244, at 209.

      [330].     Joseph Goldstein, Albert J. Solnit, Sonja Goldstein & Anna Freud, The Best Interests of the Child: The Least Detrimental Alternative 97 (1996) (noting that “[a]ny invasion of family privacy alters the relationships between family members,” eroding parental authority’s effectiveness and causing children to “react with anxiety even to temporary infringements of parental autonomy”).

      [331].     Merritt, supra note 244, at 209.

      [332].     Id.

      [333].     Id.

      [334].     See Rosalind D. Folman, “I Was Tooken”: How Children Experience Removal from Their Parents Preliminary to Placement in Foster Care, 2 Adoption Q. 7, 11 (1998); Monique B. Mitchell & Leon Kuczynski, Does Anyone Know What Is Going On? Examining Children’s Lived Experience of the Transition into Foster Care, 32 Child. & Youth Servs. Rev. 437, 440 (2009).

      [335].     See Gruber, supra note 132, at 7–12 (reviewing research on the harms of surveillance and mandatory reporting).

      [336].     See Joseph J. Doyle, Jr., Causal Effects of Foster Care: An Instrumental-Variables Approach, 35 Child. & Youth Servs. Rev. 1143, 1144, 1148–50 (2013); Joseph J. Doyle, Jr., Child Protection and Adult Crime: Using Investigator Assignment to Estimate Causal Effects of Foster Care, 116 J. Pol. Econ. 746, 748 (2008); Joseph J. Doyle, Jr., Child Protection and Child Outcomes: Measuring the Effects of Foster Care, 97 Am. Econ. Rev. 1583, 1584, 1608 (2007); see also Casey Family Programs, Improving Family Foster Care: Findings from the Northwest Foster Care Alumni Study 1 (2005), https://caseyfamilypro-wpengine.netdna-ssl.com/media/AlumniStudies_NW_Report_FR.pdf [https://perma.cc/46Y9-9TW9] (describing adverse outcomes among individuals who were previously in foster care); ABA Child.’s Rts. Litig. Comm., Trauma Caused by Separation of Children From Parents: A Tool to Help Lawyers 4 (2019), https://www.americanbar.org/content/dam/aba/publications/litigation_committees/childrights/child-separation-memo/parent-child-separation-trauma-memo.pdf [https://perma.cc/YNV7-S9BK] (describing the harms associated with child removal).

      [337].     Trivedi, supra note 326, at 542–43 (analyzing two studies showing that sexual abuse in the foster care system is two to four times more likely than out of the system).

      [338].     Id. at 543.

      [339].     Id. at 544.

      [340].     See, e.g., Natasha E. Latzman, Deborah A. Gibbs, Rose Feinberg. Marianne N. Kluckman & Sue Aboul-Hosn, Human Trafficking Victimization Among Youth Who Run Away from Foster Care, 98 Child. & Youth Servs. Rev. 113, 118 tbl.1 (2019) (finding that children in Florida’s foster care system experience an average of over six placements); Allison Vreeland, John S. Ebert, Tarah M. Kuhn, Kathy A. Gracey, April M. Shaffer, Kelly H. Watson, Meredith A. Gruhn, Lauren Henry, Lindsay Dickey, Rachel E. Siciliano, Allegra Anderson & Bruce E. Compas,  Predictors of Placement Disruptions in Foster Care, Int’l J. Child Abuse & Neglect, Jan. 2020, at 1, 8–9 (finding children in Tennessee’s foster care system experience an average of three to four placements); Delilah Bruskas & Dale H. Tessin, Adverse Childhood Experiences and Psychosocial Well-Being of Women Who Were in Foster Care as Children, 17 Permanente J. 131, 132 (2013) (describing studies that indicate children experience between one to fifteen placements within the first year of entering the foster care system).

      [341].     David McConnell & Lyndsey Hahn, Growing Up with Parents with Disabilities, in The Encyclopedia of Child and Adolescent Development 7–8 (Stephen Hupp & Jeremy D. Jewell, eds., 2020).

      [342].     Tim Booth & Wendy Booth, Growing Up With Parents Who Have Learning Difficulties 1095–96 (1998).

      [343].     Nat’l Council On Disability, supra note 123, at 82–83 (recounting stories from disabled parents about their fear that they will be unnecessarily reported to the family policing system).

      [344].     Michael Ashley Stein, Mommy Has a Blue Wheelchair: Recognizing the Parental Rights of People with Disabilities, 60 Brook. L. Rev. 1069, 1095–96 (1994).

      [345].     Nat’l Council On Disability, supra note 123, at 327.

      [346].     Id.

      [347].     Id.

       [348].    Robyn M. Powell, Susan L. Parish, Monika Mitra & Joanne Nicholson, Responding to the Legal Needs of Parents with Psychiatric Disabilities: Insights from Parent Interviews, 38 Law & Ineq. 69, 82 (2020).

      [349].     Smith, supra note 26, at 395.

      [350].     Colby Brunt & Leigh Goodmark, Parenting in the Face of Prejudice: The Need for Representation for Parents with Mental Illness, 36 Clearinghouse Rev. 295 (2002).

      [351].     See, e.g., Jenny Hearle, Karen Plant, Linda Jenner, Joanne Barkla & John McGrath, A Survey of Contact with Offspring and Assistance with Child Care Among Parents with Psychotic Disorders, 50 Psychiatric Servs. 1354, 1356 (1999) (describing that “[n]early a third of the parents with psychotic disorders stated that they were reluctant to seek help with child care because they feared that their children would be taken from them”); Joanne Nicholson & Kathleen Biebel, Commentary on “Community Mental Health Care for Women with Severe Mental Illness Who Are Parents”—The Tragedy of Missed Opportunities: What Providers Can Do, 38 Cmty. Mental Health J. 167, 168 (2002) (discussing the stigma experienced by parents with psychiatric disabilities and their fear of having their children removed).

      [352].     Joanne Nicholson, Elaine M. Sweeney & Jeffrey L. Geller, Mothers with Mental Illness: I. The Competing Demands of Parenting and Living with Mental Illness, 49 Psychiatric Servs. 635, 638–40 (1998).

      [353].     Non-reformist reforms refer to changes that shrink, rather than expand, carceral systems and their reach. See André Gorz, Strategy For Labor: A Radical Proposal 6–8 (Martin A Nicolaus & Victoria Ortiz trans., Beacon Press 1967) (1964) (coining the phrase “non-reformist reforms”); see also Amna A. Akbar, Demands for a Democratic Political Economy, 134 Harv. L. Rev. F. 90, 98–106 (2020) (explaining non-reformist reforms); Reformist Reforms vs. Abolitionist Steps in Policing, Critical Resistance, https://criticalresistance.org/wp-content/uploads/2021/08/CR_abolitioniststeps_antiexpansion_2021_eng.pdf [https://perma.cc/8QWC-YMFQ] (explaining the differences between reformist reforms and non-reformist reforms).

      [354].     Children’s Bureau, supra note 196, at 2.

      [355].     See, e.g., Bridges, supra note 67, at 116;  Roberts, supra note 113, at 33–34 (“Neglect is usually better classified as child maltreatment defined by poverty rather than maltreatment caused by poverty. The main reason child protection services deal primarily with poor families is because of the way child maltreatment is defined. The child welfare system is designed to detect and punish neglect on the part of poor parents and to ignore most middle-class and wealthy parents’ failings.”) (emphasis in original).

      [356].     Child Abuse Prevention and Treatment Act of 1974, Pub. L. No. 93-247, § 3, Pub. L. No. 93-247, 88 Stat. 4 (“For purposes of this Act the term ‘child abuse and neglect’ means the physical or mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of eighteen by a person who is responsible for the child’s welfare under circumstances which indicate that the child’s health or welfare is harmed or threatened thereby, as determined in accordance with regulations prescribed by the Secretary.”); see also Child Welfare Info. Gateway, supra note 100(compiling definitions of child abuse and neglect from all fifty states as well as territories).

      [357].     Child Welfare Info. Gateway, supra note 100.

      [358].     See, e.g., Gruber, supra note 132, at 6 (citing research on the role of poverty in neglect allegations).

      [359].     Id.

      [360].     Child Welfare Info. Gateway, U.S. Dep’t of Health & Hum. Servs., What is Child Abuse and Neglect? Recognizing the Signs and Symptoms 3 (2019), https://www.childwelfare.gov/pubpdfs/whatiscan.pdf [https://perma.cc/7467-423X].

      [361].     Id.

      [362].     Gruber, supra note 132, at 6.

      [363].     The states include Alaska, Arkansas, Connecticut, Delaware, Florida, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Pennsylvania, Rhode Island, South Carolina, Texas, Washington, West Virginia, and Wisconsin. See Child Welfare Info. Gateway, supra note 100, at 6 (2022).

      [364].     See Ill. Admin. Code tit. 89 § 300.90(a) (1990).

      [365].     Josh Gupta-Kagan, Confronting Indeterminacy and Bias in Child Protection Law, 33 Stan. L. & Pol’y Rev. 217, 221 (2022).

      [366].     Diane Redleaf, The Challenge of Changing America’s Amorphous, Limitless Neglect Laws, Imprint (May 16, 2022), https://imprintnews.org/opinion/challenge-changing-americas-amorphous-limitless-neglect-laws/65055 [https://perma.cc/7UPV-BXF3].

      [367].     Id.

      [368].     Id.

      [369].     Roxanna Asgarian, Texas Is Quietly Leading the Way on Limiting Child Protective Services Overreach, Tex. Monthly (July 28, 2023), https://www.texasmonthly.com/news-politics/foster-care-reform/ [https://perma.cc/7RBR-SL4P].

      [370].     Id.

      [371].     Id.

      [372].     Id.

      [373].     Id.

      [374].     Just Making a Change (“JMAC”) for Families, Active Campaigns, https://jmacforfamilies.org/active-campaigns [https://perma.cc/JR26-LT48] (last visited Mar. 2, 2024).

      [375].     Id.

      [376].     Id.

      [377].     See infra Part I.A. (describing constitutional protections and their application to the family policing system’s web of surveillance).

      [378].     Asgarian, supra note 370.

      [379].     Id.

      [380].     Eli Hager, Texas, New York Diverge on Requiring Miranda-Style Warnings in Child Welfare Cases, ProPublica (July 5, 2023), https://www.propublica.org/article/texas-new-york-diverge-miranda-warning-bill [https://perma.cc/BA9X-RBJJ].

      [381].     Id.

      [382].     Eli Hager, NYC Child Welfare Agency Says It Supports “Miranda Warning” Bill for Parents. But It’s Quietly Lobbying to Weaken It., ProPublica (June 5, 2023), https://www.propublica.org/article/new-york-families-child-welfare-miranda-warning [https://perma.cc/FHN5-3SXK].

      [383].     Id.

      [384].     Id.

      [385].     Id.

      [386].     See Just Making a Change (“JMAC”) for Families, Parent Legislative Action Network, https://jmacforfamilies.org/plancoalition [https://perma.cc/9DHD-N8AY] (last visited July 19, 2024); Movement for Family Power, Solution and Strategies, https://www.movementforfamilypower.org/solution-and-strategies [https://perma.cc/97M5-6JSL].

      [387].   Susanti Sarkar & Michael Fitzgerald, New York City Class-Action Lawsuit Defends Parents’ Rights in CPS Home Visits — A Rare Constitutional Challenge, Imprint (Feb. 21, 2024), https://imprintnews.org/top-stories/new-york-city-class-action-lawsuit-defends-parents-rights-in-cps-home-visits-a-rare-constitutional-challenge/247637 [https://perma.cc/2WPA-N7XR].

      [388].     See infra Part II.A. (examining how mandated reporting harms parents with disabilities and their children).

      [389].     See infra Parts I.B. and II.A.

      [390].     Children’s Bureau, supra note 177, at 102.

       [391].     See infra Part II.A.

      [392].     Julia Hernandez & Tarek Z. Ismail, Radical Early Defense Against Family Policing, 132 Yale L.J. F. 659, 677 (2022).

      [393].     Id.

      [394].     Id. at 677–78.

      [395].     See infra Part II.B.

      [396].     See infra Part III.B.

      [397].     Nat’l Council On Disability, supra note 123, at 98 (“Once involved with child welfare services and facing [termination of parental rights], parents with disabilities face numerous and significant obstacles to meaningful participation and representation.”).

      [398].     Id.

      [399].     452 U.S. 18 (1981).

      [400].     See id. at 31–32.

      [401].     Vivek Sankaran & John Pollock, A National Survey on a Parent’s Right to Counsel in State-Initiated Dependency and Termination of Parental Rights Cases 1 (Oct. 27, 2016), http://civilrighttocounsel.org/uploaded_files/219/Table_of_parents__RTC_in_dependency_and_TPR_cases_FINAL.pdf [https://perma.cc/D7PC-BPPD].

      [402].     Exec. Order No. 13930 § 5(D)(iv), 85 Fed. Reg. 38,741 (June 24, 2020); see Child.’s Bureau, U.S. Dep’t of Health & Hum. Servs., Log No: ACYF-CB-IM-21-06, Utilizing Title IV-E Funding to Support High Quality Legal Representation for Children and Youth who are in Foster Care, Candidates for Foster Care and their Parents and to Promote Child and Family Well-being 7, 10–11 (Jan. 14, 2021), https://www.acf.hhs.gov/sites/default/files/documents/cb/im2106.pdf [https://perma.cc/YE2M-MYTW].

      [403].     Exec. Order No. 13930 § 5(D)(iv), 85 Fed. Reg. 38,741 (June 24, 2020).

      [404].     Colleen Walsh, Helping Parents Know Their Legal Rights, Harv. L. Today (Mar. 20, 2023), https://hls.harvard.edu/today/helping-parents-know-their-legal-rights/ [https://perma.cc/925N-SS2R].

      [405].     For an in-depth examination of family policing system abolition and its impact on disabled parents, see Powell, supra note 26.

      [406].     See infra Part II (examining the family policing system’s pervasive surveillance of disabled parents and their children).

      [407].     Powell et al., supra note 197, at 298.

      [408].     Nat’l Council on Disability, supra note 123, at 217–27 (describing existing supports and services available to disabled parents and their children).

      [409].     Positive Parenting, United Arc, https://theunitedarc.org/positive-parenting/ [https://perma.cc/V6E3-WNWE] (last visited Mar. 3, 2024).

      [410].     Id.

      [411].     Id.

      [412].     About Independent Living, Nat’l Council On Indep. Living, https://ncil.org/about/aboutil/ [https://perma.cc/U3QM-W95Q] (last visited Mar. 7, 2024). There are more than 400 Centers for Independent Living in the United States. Id.

      [413].     See generally Leah Lakshmi Piepzna-Samarasinha, Care Work: Dreaming Disability Justice (2018) (describing the importance of mutual aid groups for people with disabilities).

      [414].     See Nat’l Council on Disability, supra note 123, at 194–97; Robyn Powell, Using Medicaid to Support Parents with Disabilities, Cmty. Living Pol’y Ctr. (2020), https://heller.brandeis.edu/community-living-policy/docs/powell-ltss-medicaid-parents.pdf [https://perma.cc/UHJ7-TPAW].

      [415].     Anupama Jacob & Reiko Boyd, Addressing Economic Vulnerability Among Low-Income Families in America: Is the Basic Income Approach a Viable Policy Option?, 26 J. Child. & Poverty 85, 86 (2020).

      [416].     Id. at 90–91.

      [417].     Id. at 88, 90–91.

      [418].     Id. at 87, 92.

      [419].     Nat’l Council on Disability, supra note 123, at 202–03 (analyzing how public benefits programs’ stringent asset and eligibility rules adversely affect disabled parents and their children).

      [420].    See, e.g., generationFIVE, Ending Child Sexual Abuse: A Transformative Justice Handbook (2017), https://generativesomatics.org/wp-content/uploads/2019/10/Transformative-Justice-Handbook.pdf [https://perma.cc/PT88-7G73] (offering an example of transformative justice involving parents who harmed their children).