104 Iowa L. Rev. 1613 (2019)

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Abstract

Over the last two decades, states have increasingly adopted differential response approaches as a supplement or alternative to child maltreatment investigations. This trend reflects growing concerns regarding the short-comings of traditional, adversarial approaches. Some critics believe traditional approaches overemphasize the role of parental fault. In response to these criticisms, a new investigatory tool was born: the safety plan. Safety plans borrow aspects from both differential response and traditional approaches. The plans are meant to be collaborative resolutions that alleviate immediate dangers identified during an investigator’s initial maltreatment safety assessment while simultaneously allowing a traditional adversarial investigation to continue. Ideally, safety plans minimize the need for emergency, ex parte child removals at the outset of a maltreatment investigation. If, however, investigators abuse safety plans, then, the plans can deprive parents of fundamental liberty interests without any procedural due process protections. When investigators give parents an ultimatum—sign this plan, or I will remove your child—it should trigger due process protections. Unfortunately, current case law says otherwise. This Note first deconstructs the Seventh Circuit’s opinion in Dupuy v. Samuels to establish why due process protections are necessarily triggered when child protection investigators offer safety plans. Next, this Note examines states’ varying safety plan frameworks to identify what, if any, protections exist for parents subjected to a safety plan. Finally, this Note encourages a new legislative regime that requires the least restrictive solution available, extends procedural rights to parents subjected to a safety plan, and encourages data collection quantifying annual use of safety plans around the country.