Taking the Thumb Off the Scale: Rebalancing Parental and Children’s Rights to Empower Child Protective Services

This Note provides background on the current legal framework of state prevention of child maltreatment in the United States. It discusses parental rights and the Parental Rights Doctrine, child rights in the United States, and how states prevent child maltreatment through child protective service agencies. This Note also explores the legal landscape surrounding the balance of parental rights and children’s rights in child welfare cases. One of the central issues in the current framework is how the Parental Rights Doctrine can significantly limit the state’s ability to intervene in cases where children are at risk. State intervention, governed by vague and overly restrictive statutes, is often constrained by laws that prioritize family preservation and require high standards of proof before removing a child from their home, even in cases of suspected abuse. This Note examines significant case law, statutes, and various examples of state applications thereof to illustrate how children’s rights are often subject to competing state and parental interests. Additionally, it explores the systemic challenges facing CPS, such as resource limitations and legal frameworks which make it difficult for the state to intervene effectively to protect children from harm. This Note proposes that these factors create an imbalance, which prevents CPS from being effective. Finally, this Note looks at international approaches to child welfare and recommends that the U.S. expands child rights by adopting the United Nations Convention on the Rights of the Child (“CRC”).