The scene unfolded in Waltham in the middle of the night last summer. Three police officers and two caseworkers from the state Department of Children and Families arrived unannounced at the home of Josh Sabey and Sarah Perkins to remove the couple’s two young sons from their care.
Just two days earlier, the couple had been allowed to leave a local hospital with their infant amid questions over a healing rib injury that they could not immediately explain. But now the caseworkers were at their front door, demanding immediate custody of both children. The parents filmed some of what happened next. They pressed officials to explain why the boys were being taken from their home. They asked if there was paperwork authorizing officials to take the children. The camera captured the cries of the older boy as Perkins readied him to leave with caseworkers, who told the couple they couldn’t seek to have their children returned until court reopened Monday morning.
For some in Massachusetts, the couple’s ordeal was a frightening introduction to a state law that empowers child welfare workers to remove children from their homes without a court order if they believe such action is necessary to protect the children from potential harm.
It also brought new attention to efforts by legal advocates and at least one state representative to change the law, saying there needs to be more court oversight of the child removal process. A juvenile court judge later returned the Waltham children to their parents’ custody. While the matter was pending, Sabey’s mother offered an explanation for the baby’s injury: She had grasped him tightly weeks earlier after his head rolled back while she was lifting him from a car seat.
“It’s ridiculous that the government has that power,” said Sabey. “When they showed up at my door, I was like, ‘I have constitutional rights.’ . . .There is no way this is legal.” A DCF spokeswoman said the agency is barred by law from commenting on cases.
The Committee for Public Counsel Services, the state legal aid agency, said the practice needlessly exposes some children to irreversible trauma, and disproportionately impacts Black and Hispanic families. Sabey and Perkins are both white, and have acknowledged that not all other families have had their stories told. The legal aid agency has even likened the removals to the widely criticized Trump-era policy of separating parents and children at the US-Mexico border.
“That decision is so monumental. It’s so significant that it should have someone else other than DCF making sure that this decision is consistent with the legal rights of the parents and the child, and promotes what’s best for that child,” said Michael Dsida, who leads the committee’s Children and Family Law Division. “It’s an incredibly traumatic experience and for many it’s a traumatic experience from which they never recover.”
As the new legislative session opens, Representative Joan Meschino, a Hull Democrat, said she again plans to put a proposal before lawmakers to amend the law. The change would state that child welfare workers would only be permitted to take temporary custody of children facing potential harm — without a court order — in cases where there’s no time to go before a judge first.
In the Waltham family’s case, child welfare workers had a full business day to obtain a court order before they arrived at the home, in the middle of the night. And still they did not seek one.
Sabey and Perkins have been sharing their story publicly to bring attention to what they called a flawed process. After the case workers took the children into custody, they later agreed that weekend to place the boys in the care of their paternal grandparents. But Sabey called for greater oversight, saying there was no need for case workers and police officers to take their children in the first place.
“I’m very skeptical of the system at this point,” Sabey said. “It’s grown unruly and we need to have many more checks on a state agency that wields such awful power.”
On average, DCF each year places about 5,300 children in foster care, according to agency figures. In almost all of the cases, the children are initially removed from their homes without a court order, said Dsida, whose agency represents parents and children who have been separated and has access to case files that show whether the removal was mandated by a judge. DCF said it doesn’t track how often it removes children from their homes without an order.
After the children are taken into temporary custody, DCF in most cases has 24 hours to file a petition asking a juvenile court judge to place the children in the care of the department for up to 72 hours. If the petition is granted, the court would then schedule a hearing to determine whether the children should remain in the agency’s care.
The proceeding is colloquially known as a 72-hour hearing. At that stage, the juvenile court rules whether to return children to their homes, which it does in 15 to 20 percent of cases, according to an estimate from the state legal aid committee.
The most recent version of Meschino’s bill, which she filed during the last legislative session, included a provision to make it easier for DCF to seek court approval to take children into temporary custody.
That would include making judges available by phone outside business hours to hear petitions. The state’s judicial system already has an on-call system to handle other emergencies, such as restraining order requests, when courts are closed.
Meschino also proposed requiring that child welfare workers meet a higher burden of proof to justify immediately removing children from their homes.
“This is about trying to elevate the wellness of the child and the family in this decision making,” Meschino said. “When government intervenes in the family, there should be a heightened standard.”
A DCF spokesperson said the agency doesn’t comment on pending legislation. But the state Juvenile Court and the Office of the Child Advocate said they had concerns.
In a statement, the Juvenile Court said mandating a court order be in place to remove children from situations where they face abuse or neglect “may result in harm to children.” The court raised the same concern about setting a higher burden of proof. The current standard, the court said, has been deemed appropriate by the state Supreme Judicial Court.
The Office of Child Advocate, an independent watchdog agency, said in a statement that it is concerned about the trauma caused when children are removed from their homes, but wants to see more discussion before taking a position on Meschino’s proposal.
“These cases typically involve situations where DCF is concerned a child is at immediate risk of harm, often based on a report from a medical or law enforcement professional,” the office said in a statement. ”Realistically, how likely is it that a judge who receives a call in the middle of the night will decide to err on leaving a child in a potentially unsafe situation?”
Nationwide, laws regulating the removal of children from their homes vary by jurisdiction and the federal government hasn’t imposed a uniform standard, according to Josh Gupta-Kagan, a clinical professor of law at Columbia Law School and director of its Family Defense Clinic.
Some states have incorporated more checks and balances into their legal procedures, he said.
In 1999, a federal appeals court covering New York, Connecticut, and Vermont concluded that child protection agencies may only remove children from their homes without a court order when there isn’t enough time to seek approval from a judge and the children face imminent danger to their health or lives.
New York allows child welfare workers to ask the court for a temporary order to remove children from their homes in cases where authorities believe the children face immediate danger, but there isn’t enough time to hold a full hearing before a judge.
Gupta-Kagan called the New York system “a modest check and balance.”
“I think we want checks and balances for an agency that has the truly awesome power, and I mean this literally, to destroy families,” he said. “Why should any government agency have those powers without checks and balances?”