When CPS is alerted to concerns about a child’s safety, it’s supposed to go like this:
First, a social worker investigates the allegations. If abuse or neglect is apparent, the worker files a petition with the juvenile or family court to remove the child from the unsafe home. A hearing date is quickly set, and attorneys for the social workers and the parents present their positions on the accusations of child maltreatment. A judge then determines whether the child must be taken into foster care.
This is the process laid out by a Supreme Court decision more than 50 years ago.
But that’s rarely how it happens.
Instead, children are routinely taken from their parents on the spot, without a court hearing, through exceptions to the law referred to as “emergency removals.” Parents respond to the allegations days or weeks later, only once a court date has been set. Meanwhile, the child waits in a temporary foster home.
In some parts of the country, emergency removals account for 70% to 95% of all entries into foster care, data collected by The Imprint shows. In Texas, all removals are done on this “emergency” basis, according to the Department of Family and Protective Services.
If she had her day in court before her child was the subject of an emergency removal, DeCharae Key’s daughter would not have become a ward of the state of Georgia, she said in an interview.
“It would have been very different, because I would have had a chance to explain myself,” she said. Key has appealed her case all the way to the Georgia Supreme Court.
Legal advocates describe this common occurrence as a violation of children and parents’ due process rights, raising the possibility of unnecessary removals. They point to research showing that family separations, even if brief, are inherently traumatic for children, as well as data showing that the vast majority of foster care cases involve allegations of neglect rather than abuse.
“There certainly can be emergency circumstances that justify separating a child from their parents without court approval — but that’s the exception,” said Chris Gottlieb, director of the Family Defense Clinic at New York University. When a child is going to be physically hurt, for example, “it’s legal to do it,” she added. “That’s just an incredibly small number of cases.”
“State agents are not acting like it’s an exception. They’re just blatantly violating the legal requirements.”
What counts as an emergency?
Child welfare workers do walk in on situations that are clear emergencies requiring swift removal. They include infants and toddlers left alone, homes with weapons or drugs in dangerous reach, and finding a child with grave physical injuries.
Executing an emergency removal differs by state. Some states require CPS investigators to obtain approval from an on-call judge through phone or email, a process that can take a few minutes or up to a couple of hours. Such communication with a judge is conducted “ex parte,” meaning only one side of a case is presented: a child welfare agency worker arguing a child needs to be removed from home.
“There certainly can be emergency circumstances that justify separating a child from their parents without court approval — but that’s the exception.”
— Chris Gottlieb, Family Defense Clinic at NYU
In other states, CPS workers and law enforcement officers are authorized to remove a child with no judicial sign-off. Typically, they must then follow up by filing a court petition within a few days.
Vivek Sankaran, who represents parents and children in dependency cases and directs the University of Michigan’s Child Advocacy Law Clinic, is among the advocates pushing back against such practices. Sankaran said requiring some judicial review — even a one-sided presentation of a case — is better than none at all. But neither version of emergency removals affords family members their full due process rights, he added.
“It’s better if you have a third party reviewing the request,” he said. “But without the other side presenting a full story, those judges are only as good as the information the agency presents.”
And what constitutes an “emergency” — or “exigent circumstances” in legal terms — isn’t clearly or consistently defined. States vary widely on what level of evidence of danger, if any, social workers are required to present, according to a research paper by Sankaran and his co-authors, attorney Christopher Church, who co-directs the Appeal for Youth Clinic at Emory University, and Monique Mitchell, an expert in foster youth and grief. Their 2019 paper was published in the Marquette Law Review.
For example, in Florida and North Carolina, police or child welfare workers can conduct emergency removals whenever they have “reason to believe that a child is a victim of abuse or neglect,” the researchers found. Other states, including Alabama, Connecticut and Kentucky, require authorities to show evidence that a child was in imminent danger of serious harm. Colorado, Michigan and others go further, requiring social workers to demonstrate that no lower-level intervention could prevent the need for removal.
Judge Gayl Carr, who left the juvenile court bench in Fairfax County, Virginia last year, said more than 90% of her foster care cases began as emergency removals.
But she called that a sign the child welfare system is working as it should — addressing lower-level concerns with services and in-home supervision by social workers, and only removing children when there are true emergencies.
“The only cases that ought to be coming to court are those very serious, clear abuse and neglect issues,” Carr said. She added that in many cases, children are removed from parents who have been offered numerous services but failed to remedy concerns.
Lawyers who say families’ rights are being trampled during unwarranted emergency removals point to a 1972 Supreme Court case, Stanley v. Illinois. The court’s ruling held that “as a matter of due process law,” parents are entitled to a hearing on their fitness before children are taken from them. They also cite the 14th Amendment, which protects the rights of both children and parents to live together.
Subsequent federal cases have created an exception to this rule when there is immediate danger to a child if left at home.
“If you look at state laws across the board, they align with the Constitution, which says that you really only should use these ex parte removal orders if having an actual hearing would cause irreparable harm to the child,” said Sankaran.
Yet Sankaran and legal experts across the country said families are routinely being broken up prior to a hearing, when no clear crisis exists.
Pushback in the courts
Two lawsuits in Georgia headed to the state Supreme Court challenge this widespread practice.
The plaintiffs’ attorneys argue children were removed from home on an emergency basis absent the “exceptional circumstances” required under state law. They’re asking the state’s highest court to bar social workers from relying on emergency removals, arguing if a true emergency exists, they can call police.
“It seems to me that the requirement of exceptional circumstances was simply ignored. That seems to be the routine practice. And that is very bad.”
— Judge Christopher McFadden, Georgia Court of Appeals
In both cases, a sibling in the home had died through no fault of the parent — one by suicide, and the other from sudden infant death syndrom, or SIDS. And before the removal, parents had spent weeks complying with social worker investigations and case plans, and the children were not deemed to be unsafe, court records show.
Three-judge appellate panels denied both appeals in split decisions. Multiple judges have agreed that the due process rights of the children and parents in the two Georgia cases were violated during emergency removals.
“It seems to me that the requirement of exceptional circumstances was simply ignored,” Georgia Court of Appeals Judge Christopher McFadden said during oral arguments in February discussing the fate of two children identified as D.B. and R.W.
“That seems to be the routine practice,” he continued. “And that is very bad.”
Georgia’s Department of Family and Child Services did not respond to requests for comment for this article.
But in court filings, the department’s lawyers said caseworkers did not violate parents’ rights: “The Department adhered to the proper procedures, and the juvenile court applied the appropriate safeguards when the Department sought and obtained an ex parte order.”
The appellate panels in both cases, which each ruled 2-to-1 in favor of the department, concluded that the state code did not require imminent danger for an emergency removal to be conducted, and that families’ due process rights were not violated.
McFadden wrote a dissenting opinion: “I disagree. So does the Supreme Court of the United States.”
Have a tip about emergency removals? Contact Sara Tiano: stiano@imprintnews.org
The case of Dayshundra Wilson, an Atlanta mother of five, began last year when CPS investigated her home. Her 13-year-old son had just died from a self-inflicted gunshot wound — which devastated his mother, who did not keep a gun in the home and urged her children to steer clear of them. The grieving mother cooperated with investigators for weeks, participating in all requested classes, assessments and counseling, according to court records.
After 30 days, the department abruptly took two of Wilson’s other children into foster care through an emergency removal.
Caseworkers with the Division of Family and Children Services said the children were not in danger, records show. But they described the removal as necessary because Wilson had allowed an unsecured weapon in her home. She had also previously been investigated for educational neglect of the children and for providing inadequate food, shelter and supervision.
The story changed once it reached the Fulton County family court a month after the children were removed: None of the prior allegations against the mother had been substantiated. And CPS special investigator Nicole Trice acknowledged not only that the gun was not Wilson’s, but that there was no evidence she knew her son had access to the firearm. Trice testified that the mother had in fact forbidden her son from hanging out with the boy authorities believe gave him the weapon.
When asked why the department waited 30 days before deciding the children urgently needed to be taken, Trice stated: “I cannot explain that time gap.”
After hearing from Wilson and her attorney, Judge T. Natasha Crawford ruled that the department never should have removed the children and ordered that they immediately return home.
“I am baffled as to why The Department wanted to fight this,” the judge stated, according to transcripts.
She did not, however, rule that the mother’s due process rights had been violated, instead stating that the department followed the legally required process.
A second case began in late 2023, after DeCharae Key’s 2-month-old died of sudden infant death syndrome in her bed. Key was arrested and charged with second-degree murder and jailed until the coroner determined she hadn’t caused the baby’s death.
While she was incarcerated, Key’s older daughter lived with her grandmother. The placement was approved by the Division of Family and Children Services, but it was considered informal, meaning the state did not take custody of the child.
Seven months later, the child welfare agency abruptly changed course and took custody of the 9-year-old through an emergency, ex parte removal. Though she wasn’t taken from her grandmother’s home, she legally became a foster child, court records show.
The decision had nothing to do with safety concerns, as an agency supervisor would later testify in court. Rather, a series of paperwork errors in the process of granting legal guardianship to the grandmother pushed the case past time limits placed on the informal arrangement that had previously been agreed upon.
But caseworkers did not tell the judge about the errors when asking for an emergency removal, said Church, who runs the Emory University law clinic that has produced research for attorneys representing the plaintiffs in both cases.
“They just said that mom’s arrested, child’s without a caregiver,” Church said. “They made so many mistakes, which is fine, this stuff’s complicated — but then they held that against the mom.”
Like many other states, Georgia does not independently track the frequency of emergency removals, according to the Division of Family and Children Services. But Church’s law clinic has been analyzing Fulton County cases to identify the rate there. Between Sept. 17, 2024 and March 9, lawyers found, all child removals were filed as ex parte emergency removals. In 72% of the cases, CPS indicated in the emergency removal request that the children were not in immediate danger.
Key said if she or her lawyer could have spoken to a judge before the state took emergency custody, “I would have had a chance to say that I’ve been compliant with everything.”
Key has since been released from jail, but once again, CPS has removed a new baby from her with no court hearing.
Scant data on emergency removals, but figures gathered by The Imprint show high rates
There is little publicly available data on how often these types of removals take place. The federal government does not require states to report when they happen, so they’re not consistently or uniformly tracked.
But the practice appears widespread, and rarely questioned. In interviews, judges, attorneys and child welfare agency representatives in Texas, Virginia, New York, California, Illinois, Washington and Michigan said the vast majority of child removals in their regions are conducted as if they were emergencies.
Several state child welfare agency spokespeople were confused when asked about the frequency of emergency removals. They appeared to be unfamiliar with the standard of a court hearing prior to removal.
Church said he’s seen a similar misunderstanding over the years in the courtroom.
“Judges were so perplexed by the thought that you could have a hearing before removing a child, despite the United States Supreme Court saying exactly that,” he said. “Every federal circuit has addressed this question and found the same thing.”
New York City is a rare system that not only tracks, but makes public, some data on emergency removals. In the first quarter of 2025, 457 children entered foster care, and 315 — or two-thirds — involved an emergency removal with no court order.
In Illinois, 86% of foster care entries since 2023 were emergency removals, according to data The Imprint requested.
And in Hawaii, the figure was above 80%, with most conducted by law enforcement officers with no prior court approval, according to reporting by Honolulu Civil Beat.
The news outlet detailed the case of Jennifer Chapman. In 2020, police removed her 2-month-old infant and older siblings after her ex-husband called the child welfare hotline and accused her of abusing methamphetamine. Though he later admitted in court that he’d falsified the allegations, Chapman spent months separated from her baby.
Washington data provided to The Imprint shows that roughly 96% of removals in that state occurred before parents could speak to a judge. Last year, contested hearings occurred before removal in just 129 of 3,038 removals, according to state statistics.
Law enforcement officers removed children more than half of the time. In 15% of the emergency removals, parents signed “voluntary placement agreements” for children to be moved into a relative’s home while they awaited an initial court date.
In Texas, 100% of removals are emergency and ex parte — with judicial sign-off but no hearing — said Judge Robert Hofmann, who presides over family court cases in the rural Hill Country counties in Texas. In 2021, the Legislature passed a broad child welfare reform package that eliminated the option for caseworkers to request a hearing for a judge to decide if a child should be removed.
“I think their argument was, look, if it’s not an emergency circumstance, there’s no need for the removal,” Judge Hofmann said.
Most of the emergency removal requests he receives are warranted, Hofmann said, so he rarely denies them. But that doesn’t mean he rubber stamps caseworkers’ decisions, he added.
In one recent example, CPS asked him to approve the emergency removal of a child whose mother was admitted to inpatient treatment after attempting suicide. The child was at home with the father, Hofmann recounted, but social workers believed he was using marijuana. Those circumstances did not meet the standard for an emergency removal.
Judges Hoffman and Carr said when emergency removals are necessary to keep children safe, a hearing with parents is held quickly thereafter.
“Because we had to address what we determined was an emergency, we had to do it ex parte, but now we want to practice due process,” Carr said of the subsequent hearing. “Now we want to have mom and dad present so we can get the whole story.”
If a judge decides at that point that the child can safely live at home, custody is returned to the parents.
This happens with some frequency. In 2018, the commissioner of New York City’s child welfare system said children were returned to their parents at the first hearing in roughly one-quarter of cases that involved an emergency removal.
Sankaran, Church and Mitchell say that these cases are evidence of unnecessary family separations, in their 2019 article.
“These removals beg the question of whether a child needed to be removed in the first place,” they wrote. “What imminent safety threat was addressed during the child’s brief stay in foster care that could not have been addressed through appropriate preventative services?”
Launching a case with an emergency removal also sets parents at an early disadvantage to argue their position in court, said Gottlieb, an expert in parental rights and family defense.
“It’s more likely that a judge is going to keep a child in foster care if they’ve already gone through the trauma of separation,” she said. “Whereas before the removal, what they might have said was, ‘Let’s get services in place instead of doing this traumatic separation.’”
Correction: This article originally stated that an Emory University law clinic is representing plaintiffs in two Georgia cases that are mentioned. Those plaintiffs are represented by the Fulton County Office of the Public Defender. DeCharae Key’s first name has also been updated. A previous version reflected the spelling of her name in court documents.
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