Failure to Protect Laws and Child Removals Due to Substance Use

Background and Purpose: Across the United States (U.S.), approximately one-third of children who enter foster care have a parent with a history of substance use. While parental substance use has been linked to several child welfare outcomes including child removals, reunification, and length of stay in foster care, few studies have examined how “failure to protect” as a state child welfare policy increases the likelihood of a child entering care due to parental substance use. Further, there is wide variation in how the opioid epidemic and other drug epidemics have impacted different states and as well as in state laws related to parental substance use and neglect.

Method: This study utilized data from the Adoption and Foster Care Analysis and Reporting System, child file for the FY 2024 and merged state-level variables from the State Child Abuse and Neglect Policy Database and the Census. Using the merged data, we conducted a series of multi-level models to examine the relationship between “failure to protect” as a state child welfare policy and child removals due to parental substance use, while controlling for various child-level factors (e.g., race/ethnicity, age at removal). The sample included 156,446 children (ages 0 to 17 years) from all 50 U.S. states plus Washington DC who entered care in FY 2024.

Results: Approximately one-third of children entered care due to parental substance use. The unconditional model had an intraclass coefficient of 0.17, indicating that approximately 17% of the variance in removal due to parental substance use occurred at the state level. After adjusting for child-level factors, children in states that included “failure to protect” as child maltreatment had 2.94 higher odds of removal due to parental substance use. There were racial/ethnic disparities observed, in that children who were Black, Asian, Pacific Islander, Multiracial, or Hispanic having lower odds of removal due to parental substance use than their White peers. Race/ethnicity moderated the relationship between failure to protect laws and removals due to parental substance use; the relationship was attenuated for Black, American Indian, Multiracial, and Hispanic children.

Conclusions and Implications: Almost one-fifth of the variation in removals due to parental substance use occurs at the state-level. Children in states with failure-to-protect laws under the umbrella of maltreatment have an increased likelihood of removal due to parental substance use, and this relationship is attenuated for BIPOC children. State-level policy contexts shape child welfare responses to parental substance use. Failure-to-protect statutes may shape how parental substance use is interpreted within child welfare decisions, though these effects vary across racial and ethnic groups. These findings highlight the need to critically examine how child maltreatment statutes intersect with substance use policies and racial inequities in child welfare decision-making. Future research could evaluate failure to protect laws in the context of parental substance use and explore potential reasons for racial disparities in this relationship.