Abstract

Excerpted From: Samantha Nichol, Child Welfare Upholds Black Family Separation While Denying Essential Constitutional Protections, 23 University of California Law Journal of Race and Economic Justice 63 (March, 2026) (194 Footnotes) (Full Document)

At 5:30 a.m., L.B. was awoken by flashlights coming in through the window of her New York City apartment. Acting on an anonymous tip, police and the Administration for Children’s Services (ACS) entered her apartment warrantless and began searching cabinets, drawers, the refrigerator, and lifted the shirt of her 7-year-old son to examine his torso. No evidence of any of the dangers listed in the anonymous tip were found, nor any evidence of harm to her child. L.B. and her son were left stunned, violated, and suffering from anxiety as a result of the intrusion.

This story is not at all unique. A 2022 study revealed that child protective service agencies around the country have searched the homes of about 3.5 million children without a warrant. The Supreme Court has never directly addressed child welfare services’ ability to conduct warrantless searches. However, lower courts have relied on the “ special needs” doctrine, where relaxed Fourth Amendment status is given to administrative agencies due to the searches being “ beyond the normal need for law enforcement.” Similarly, when it comes to young parents receiving termination of parental rights, the Eighth Amendment does not apply because the purpose of child welfare is not to punish parents, but rather to provide “ “ stability” to children. The crux of the reasonings that deny parents constitutional protections hinges on the purpose of child welfare. It is routinely claimed to not be a criminal proceeding, merely administrative, and thus the scope of the Constitution stops short of granting protections to these parents. Yet, white-collar litigants are afforded the right to a jury trial and due process protections. In many ways, these litigants have far more constitutional protections over their purse than parents do in protecting their ability to maintain legal rights over their children.

Despite its parallels to the criminal justice system, child welfare operates with far fewer constitutional protections, disproportionately harming Black families. This Note argues that child welfare proceedings should be afforded similar constitutional protections, particularly under the Fourth, Eighth, and Fourteenth Amendment. First, a brief introduction as to the history of child welfare. Then, an assessment of the constitutional protections that the child welfare system is denied against the backdrop of the criminal system, where the law and procedures largely overlap. Finally, through a critical race theory lens, an analysis of how racism has allowed child welfare to escape constitutional scrutiny.

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With the context of child welfare’s racist history, child welfare operates similarly to the criminal system without the constitutional protections that the criminal system enjoys. Family separation upholds white supremacy in the same or similar way that overincarceration of Black Americans does. Yet, the severe sanction of losing legal rights to children does not rise to the level required for constitutional protections to be made available. The best way to ensure that parents are afforded adequate due process and fairness in the law, would be to expand the constitutional scope to include child welfare proceedings.

J.D. Candidate, University of California College of the Law San Francisco, Class of 2026.