September 1, 2009

Differential Response in Child Protective Services: A Legal Analysis

Differential response is a child protective services reform that has been implemented in a number of states throughout the country. Despite the growing number of jurisdictions that are piloting or considering differential response, there has been little legal literature analyzing it or cases that have challenged the approach. For purposes of this analysis, differential response is a child protective services approach that offers at least two pathways through which child welfare agencies may respond to child abuse and neglect hotline calls, performs assessments in lieu of investigations for select families that meet the statutory criteria for abuse or neglect, does not place the names of non-investigation pathway family members on a central registry of abuse or neglect perpetrators, and offers voluntary services to non- investigation pathway families who may refuse services at any time. In many jurisdictions, differential response also includes the assignment of the least severe cases of neglect to the non-investigation pathway and the more serious abuse and neglect cases to the investigation pathway. This analysis is an overview of key legal and constitutional issues associated with differential response which should be contemplated by jurisdictions implementing the approach. This document analyzes in brief whether differential response affects children's and parents' rights.