California can take kids from abused moms. Why the separation can harm both

Worried that her abusive partner would kill her or her boys, Jackie had nowhere to go and no one to ask for help. She said her partner had angry outbursts, beat her, degraded her and destroyed things in the house. She knew she had to escape.

She called the Los Angeles County Department of Children and Family Services, hoping for a path to a safe place to stay. Instead, she received a warning that struck a different kind of fear in her.

If she didn’t leave her partner within 30 days, the child welfare agency would take her four boys.

“When I asked for help, they wanted to separate us,” said Jackie, 39, who asked not to use her full name to protect her children’s privacy.

The agency’s warning  is rooted in a nearly 40-year-old California law that allows child welfare agencies to remove children when they believe an abused parent cannot ensure their kids’ safety. Called “failure to protect,” the law is intended to safeguard kids in dangerous situations.

But the longstanding practice is facing continued scrutiny as domestic violence advocates raise concerns about the potential to further traumatize families. Meanwhile, other states with similar laws have narrowed the criteria for when a welfare agency can remove a child. Many states have “failure to protect” laws, but California’s is comparably vague, giving social workers wide latitude in deciding when to remove kids.

“I just don’t understand how ‘failure to protect’ exists, either as a fair thing or a legal principle,” said Eve Sheedy, a lawyer and expert in domestic violence policy, including as former director of LA County Domestic Violence Council.

The law puts child welfare workers in the unenviable position of deciding what is more harmful for children — the trauma of being separated from their family or the risks of witnessing more violence or even becoming a target.

And it can leave domestic violence victims feeling as if they are being punished for their partners’ abuse.

“Right now the victims are seen just like a perpetrator,” said Marie, 36, a domestic violence survivor who said the Los Angeles child welfare agency took her children from her after she was abused by her partner. The kids continue to live with their grandparents. Marie also spoke on the condition that her full name would not be published to protect the privacy of her kids.

Changing the law is difficult in part because lawmakers and social workers share a commitment to protecting children, and they worry about a shift that could endanger kids.

CalMatters spoke with four mothers who lost children because of a failure to protect order, five current and former social workers, eight domestic violence policy experts and advocates and two state lawmakers for this story.

All of them stressed that protecting children was their highest priority. Several cited two notorious murders in Los Angeles County where the welfare agency failed to remove children to underscore the hazards of allowing kids to remain in violent households. One was Gabriel Fernandez, who suffered years of gruesome torture and abuse before he was fatally beaten at age 8 in 2013 by his mother and her boyfriend. The other was  Anthony Avalos, who was also tortured and abused by his mother and her boyfriend before his death at age 10 in 2018.

In my opinion, the system really did fail those kids,” said Assemblyman Tom Lackey, a Palmdale Republican who has been a teacher and a California Highway Patrol officer.

He said he has dealt more with children who should’ve been removed from unsafe situations than with unnecessary separations from abused parents for “failure to protect.” .

No one can say how many California children are separated from family members every year under the law because neither the state nor counties collect that information. The closest estimate comes from a recent report by the UCLA Pritzker Center that showed more than half of Los Angeles County’s 38,618 foster care cases in 2020 involved domestic violence.

Jackie, the mother who was alarmed when she received a “failure to protect” warning six years ago, believes the law discourages women from reporting domestic violence.

“A lot of women don’t say anything because of fear of being separated from their kids,” she said.

Separation after abuse, drug use

Marie is soft-spoken with sparkling eyes and a gentle manner. She said as a teenager she got hooked on prescription opioids and was addicted for years. She stopped using in 2015, and within a little more than a year she graduated from college, got married and had two babies.

“It was all too much, and I started using again,” Marie said.

Marie said her ex-husband was also addicted to drugs and when he was using, he physically abused her.

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