Emory Law Journal


Rachel Kennedy


Since the child welfare system’s inception, abuse and neglect laws have conflated poverty-related neglect with active parental violence and willful neglect. The ensuing state surveillance has disproportionately harmed poor children and children of color. Pursuant to the state’s expansive parens patriae authority, countless families are investigated, and thousands of children are separated from their caretakers each year—only to be returned within days or weeks after a finding that the reasons for removal were unsubstantiated. Other children risk drifting in foster care limbo until they experience the termination of parental rights—an adjudication so severe that some courts call it the “civil death penalty.” Mounting empirical evidence on the racial disparities and trauma caused by the child welfare system has resulted in increasing calls for its abolition.

Despite the prominence of family values in American discourse, the Constitution does not speak to the family, and the Supreme Court has shied away from addressing children’s rights in the family context—leaving children without a meaningful mechanism to assert their rights in dependency proceedings. Notwithstanding the Court’s silence, this Comment argues that Supreme Court jurisprudence implies children have a constitutional right to family relationships free from unwarranted state interference—in other words, a right to family integrity.

Recognizing a child’s right to family integrity has significant implications for the child welfare system. In the 1960s, the Supreme Court confronted how the juvenile justice system’s procedural informality harmed children’s liberty interests. As a result, the Court recognized a child’s right to counsel in delinquency proceedings. However, the Court has yet to afford children such protection in dependency proceedings despite similar harms inflicted by the child welfare system’s procedural informality. This Comment argues that to adequately safeguard a child’s right to family integrity, children must be guaranteed the due process right to counsel in dependency proceedings.