Cheating the evidence to get to best interest and the presumption of unfitness

Abstract This article explores our national reactive child protection model which has focused on removing poor people from poor families and has resulted in conflating poverty with neglect. Significant issues of class and race are implicated given dramatic systemic racial and ethnic disparities and questions must be asked whether current practices have done more harm than good. In reviewing this landscape this article is descriptive and prescriptive and calls for adopting proactive public health‐oriented policies which support children and families in their homes and a culture of due process and fairness in juvenile and family court hearings involving children and their families. Dependency or abuse and neglect cases involve state intervention. These are not disputes between private parties where the sole focus is the best interest of the child regarding which guardian to be placed with. Cheating the Evidence warns against diluting the constitutional requirement of proving the lack of parental unfitness by clear and convincing evidence by making comparative judgments about placement which are based on often subjective assessments on best interests of the child which are resource based. Given that high percentage of cases involving allegations of neglect versus inflicted abuse these concerns are of paramount importance. There is a need for more rigor in fact‐finding and adherence to constitutionally required burdens of proof. Due process and fairness are best‐served by supporting client‐directed advocacy and greater transparency, including presumptively opening up the doors to closed juvenile and family court hearings as recommended by the National Council of Juvenile and Family Court Judges in 2005. Opening the doors is not a binary or either or proposition‐ we can preclude dissemination of records of youth, and protect confidentiality as a growing number of states have done. Transparency includes more than raising the level of practice of lawyers and judges‐ it includes encouraging systemic accountability from child serving agencies and educating the public about the complexities which are related to the birth or cradle to prison pipeline.