Wright also notes that vaguely worded child welfare statutes give bureaucrats wide discretion that they sometimes exert in ways that punish perfectly reasonable and safe parenting practices, a problem I wrote about in this 2012 post.
Wright’s note of caution is well-taken. When I wrote that the Maryland situation “should be a relatively case,” I meant that applicable precedent clearly supports the parents, and that they should ultimately prevail if the constitutional issue is raised and courts take Supreme Court precedent seriously. However, achieving such a victory against determined bureaucrats could require prolonged and costly litigation. Sometimes, seemingly novel constitutional issues won’t be taken seriously until a case reaches the appellate level, where judges are more used to addressing constitutional questions. Many parents understandably lack the time, resources, and emotional stamina for a lengthy legal battle. And even a small risk of defeat might be unacceptable if it could mean losing custody of your children or suffering continued official harassment. I don’t blame parents who decide that such a fight isn’t worth it. The purpose of my earlier post was to analyze the relevant constitutional issue, not give advice to parents facing a potentially difficult legal battle with child welfare bureaucrats