Editor’s Note: a guest post by Maureen Steele, co-founder of the American Made Foundation – an organization that connects influential leaders and grassroots movements to drive real change.

An emergency is supposed to mean there is no time.

In child welfare, it can mean the government has decided there is no time for your rights.

A knock at the door. An allegation you have not seen. A caseworker who insists you must cooperate. And suddenly, the people demanding entry are also deciding whether your refusal proves you have something to hide.

The accusation becomes the authority. The resistance becomes the evidence. That is an extraordinary amount of power to place on a doorstep.

In O’Bryant v. New Jersey Division of Child Protection and Permanency, the Third Circuit addressed allegations of coerced home entry and children removed without prior judicial authorization. Its September 2026 opinion affirmed constitutional limits on those actions: an investigation does not automatically authorize entry, and removing children without a prior hearing requires imminent danger that makes swift action necessary.

The agency’s paperwork cannot outrank the Constitution.

But the decision also exposed the distance between recognizing a right and providing a remedy. Although the court found the complaint plausibly alleged due-process violations, qualified immunity still defeated those claims because the applicable rights were not clearly established in the circumstances. The home-entry claim against one caseworker survived dismissal.

These were allegations being evaluated at the pleading stage, not findings after trial. Even so, the legal result deserves attention: a family can plausibly allege that government crossed a constitutional line and still be denied a damages claim against the officials who crossed it. (law.justia.com)

A right without a remedy makes a handsome inscription on a courthouse wall. It offers considerably less comfort in an empty nursery.

And judicial authorization, necessary as it is, cannot be the end of this conversation. Replacing a caseworker’s unchecked judgment with a judge’s hurried signature does not answer every question about evidence, fairness or accountability.

Who tests the allegations? Who challenges the omissions? Who decides whether the government has proved its case, or merely repeated it?

That brings us to juries.

Children are not property. The Supreme Court has recognized the parental interest in their care and custody as more precious than property rights. In Santosky v. Kramer, it required at least clear and convincing evidence before a state permanently terminates parental rights. That heightened standard concerns permanent termination; it is not the standard for every temporary removal. But the principle is unmistakable: the gravity of the loss demands meaningful protection against error. (supreme.justia.com)

The law does not currently provide a universal federal right to a jury in state child-welfare proceedings. The Seventh Amendment’s civil-jury guarantee has not been extended to the states. That describes the law as it stands. It does not settle what the law should become. (law.cornell.edu)

I believe parents should have the right to demand a jury when the state seeks to adjudicate abuse or neglect allegations supporting continued separation, and when it seeks permanent termination.

A genuine emergency cannot wait for jury selection. A prolonged separation should not escape meaningful scrutiny because it began with the word “emergency.”

Jurors are not infallible. Neither are judges. That is precisely why concentrated power deserves examination.

Let the government explain its evidence to citizens who do not work for the agency, approve its petitions or appear in the same courtroom every Tuesday.

Let someone ask the ordinary questions that extraordinary power can make inconvenient: What happened? Who witnessed it? What contradicts it? What help was offered? Why was taking the child necessary?

A broken stove is a repair problem before it is a removal argument. Depression requires an assessment of actual danger, not a presumption of parental unfitness. Poverty must not become evidence of neglect simply because assistance costs money and accusations cost nothing.

If an agency claims there was no time to seek an order, require a contemporaneous record: the precise threat, when it became known, why delay would endanger the child, and why safer alternatives would not work.

Then require a prompt, independent hearing with counsel able to examine witnesses and challenge the evidence.

And when officials knowingly fabricate evidence, conceal material facts or misrepresent the existence of an emergency, consequences should follow through enforceable civil remedies, professional discipline and, where criminal laws are violated, prosecution.

Returning a child does not erase an unlawful removal. It ends the separation. Accountability addresses how it happened.

Children facing immediate danger need swift protection. Children facing government error need protection, too.

The next time an agency says “emergency,” the courtroom should demand evidence before it offers deference.

And if the state cannot prove why taking the child was necessary, perhaps the next person answering questions under oath should be the person who ordered it.