A few days after an argument with her boyfriend led to a 911 call, Ms. L, a mother of two young boys, received an unexpected visit from Child Protective Services (CPS). The caseworker asked her if she used drugs, and Ms. L truthfully responded that she smoked marijuana from time to time. According to Ms. L’s attorney, the admission led to a child neglect proceeding against her in which the state claimed that Ms. L did not properly care for her children. The only evidence presented on the petition was Ms. L’s admission that she smoked marijuana. The court adjudicated her as “neglectful” and implemented a “family service plan,” a combination of ongoing state surveillance and mandatory “services.”
Her family service plan included the following: parenting classes; anger management classes; parenting classes for children with special needs; participation in a drug treatment program; submission to drug testing; submission to unannounced visits from CPS, including full access to the apartment for inspection; and participation in all family court conferences and hearings, regardless of her work schedule.
When Ms. L was unable to comply with all these demands on her time while maintaining her job, her children were taken from her and placed in foster care. The state then added individual and family counseling services to her service plan, along with supervised visits with her children. Ms. L eventually quit her job in order to comply with the plan. Yet, despite her Herculean efforts at compliance, Ms. L still faced termination of her parental rights. Her children have rotated through different foster care placements, and the emotional stress of separation from their mother has taken its toll. The children’s CPS caseworker reported in her notes that the children are “prone to angry outbursts at school,” “lack interest learning,” and “show no concern for their own well-being.”
Ms. L’s story is by no means atypical — millions of families have been forcibly torn apart by the state on similarly flimsy grounds.
The child welfare system claims to be a non-adversarial legal system dedicated to ensuring the well-being and safety of children. This claim obscures the oppressive political role it plays in monitoring, regulating, and punishing poor families and Black, brown, and indigenous families. The mass removal of Black children from their families in some ways parallels the U.S. criminal legal system’s mass removal of Black men and women from their communities. Like prison abolitionists, foster care abolitionists recognize this institutionalized disruption of Black families as a key aspect of the expanding carceral state. They therefore seek to dismantle the current foster care system and replace it with a radically different approach centered on the needs, dignity, and equal humanity of families.
Every day in family court buildings across the country, thousands of people, but disproportionately Black mothers, stand before child welfare officials and family court judges who subject their parenthood to extraordinary scrutiny and vilification.
These judges and officials use consequences of poverty, such as several siblings sharing a single room or lack of adequate heat, as evidence of child neglect. Family members who have prior criminal or family court involvement are deemed risks to their children, without any consideration for the well-documented overcriminalization of poor Black communities.
Many of the grounds for removal are paternalistic and arbitrary, as well as racially biased, in nature. Parenting choices, such as whether to co-sleep with an infant or whether to leave an older child unattended at home, are routinely questioned and held against Black mothers in family court. Low-income parents battling substance use problems or mental illness are labeled incapable of caring for their children, while wealthier parents’ access to child care or quality healthcare often insulates them from such judgment. Poverty and marginalization are also often a factor in the minority of family court cases that involve allegations of physical abuse. Parents who succumb to the incredible pressures exerted on them by structural inequality and inflict physical harm on their children are not offered the type of meaningful resources that can strengthen family relationships and prevent future incidences of violence.
Racial disparities exist at every stage of child welfare decision-making. Black families are more likely to be reported to the child abuse hotline and investigated for child abuse and neglect. They are more likely to have cases against them substantiated and to have their children removed from their care. In 2000, Black children represented 36 percent of children in foster care, despite accounting for only 15 percent of the child population. Despite a trend toward decreasing foster care rolls since the early 2000s, Black children still comprise nearly a quarter of the children in foster care, according to a 2016 report. In places like New York City and Chicago, Black and brown families compose virtually all families under supervision and virtually all the children in foster care. Once in foster care, Black children generally receive inferior services and are kept out of their homes for longer periods of time than their white counterparts. Black parents are also subjected to termination of parental rights at higher rates than white parents.
Research shows these racial disparities, resulting in the overrepresentation of Black children in the child welfare system, are not due to a higher incidence of abuse and neglect in Black families as compared to white families. For example, a study in the New England Journal of Medicine found that despite similar rates of substance use between Black and white pregnant women, Black women were 10 times more likely to be reported to child welfare authorities for substance use during pregnancy. Other studies have found that doctors are more likely to report injuries on Black children as suspected child abuse than identical injuries on white children. Still other studies have found that caseworkers are quicker to perceive Black children as being at risk and in need of removal from their homes.
Black people in America are targeted by the punitive arm of every legal system at disproportionate rates, whether it is Black immigrants for deportation, Black children for suspension in school, or Black adults and youth for arrest and incarceration.
Thus, it should come as no surprise that Black families are more commonly targeted for child welfare supervision, child removal, and termination of parental rights. Indeed, we should consider foster care an extension of the same racist carceral regime that includes these other punitive systems.
The history of how racism expanded the punitive practices of the child welfare system is well documented. Since its inception in the late 1800s, the child welfare system has always operated with animus toward people of color. However, after the civil rights movement succeeded in increasing Black people’s access to public assistance, attitudes toward welfare shifted significantly. There was a sharp contraction of the welfare state and a corresponding expansion of punitive measures against welfare recipients, such as denial of benefits after a family reached a certain size (to discourage child bearing), or drug testing of welfare recipients on the assumption that recipients were diverting welfare funds for drugs. Fueled by the disparaging myth of the Black “welfare queen,” Congress replaced the entitlement to welfare with block grants to states in 1996, resulting in fewer familiesreceiving assistance and subjecting recipients to even more oppressive regulation.
The child welfare system paralleled these developments, with funds available for foster care and adoption sharply increasing while the funds available for in-home services such as child care decreased. Then-Congressman Newt Gingrich, one of the most infamous opponents of guaranteed cash assistance, stated that government funds that were supporting poor mothers should instead be used for orphanages and adoption of their children. This sentiment became law in the passage of the 1997 Adoption and Safe Families Act, which created compelling financial incentives for states to reduce their foster care populations by increasing adoption rather than offering cash, food, housing or childcare assistance to families. At the time this law was passed, well over 40 percent of America’s foster care population was Black.
This system inflicts incredible harm on Black families and their communities. Removing a child from his or her home is one of the most violent acts a government can undertake against its people. Yet the child welfare system has operated in this discriminatory and dehumanizing way with too little attention from society. In part, this inattention reflects the success of the system in hiding behind the smokescreen of those rare but highly publicized cases of tragic deaths of children who have come into contact with the system. It also reflects the secretive nature of courts deciding child welfare cases — unlike criminal courts, the vast majority of family courts are closed to the public. And it reflects the success of imagery such as the Black welfare queen in denigrating Black motherhood and normalizing the control and punishment of Black parents and their families.
Like the prison and immigration systems, the child welfare system frays family and community bonds and strains the ability of affected communities to politically organize and resist attacks on their children and families. All are oppressive systems that work together to regulate, punish, and control the most marginalized people, fueled by a racist ideology. We need to link the abuses within the child welfare system with the broader assault on Black humanity and dignity, and amplify the voices of thousands of parents who fight for their families in the halls of family court and in their communities every day.
Dorothy Roberts is the George A. Weiss University Professor of Law, Sociology, and Africana Studies at The University of Pennsylvania and the author of Killing the Black Body: Race, Reproduction, and the Meaning of Liberty and Shattered Bonds: The Color of Child Welfare. Lisa Sangoi is an attorney and Soros Justice Fellow at the NYU Law Family Defense Clinic. The views expressed in this column are their own.
By Dorothy Roberts, The Appeal.
The Appeal is a non-profit media organization that produces original journalism about criminal justice that is focused on the most significant drivers of mass incarceration, which occur at the state and local level.