An Abolitionist Horizon for Child Welfare

PUBLISHED

Cynthia Godsoe is Professor of Law at Brooklyn Law School and currently working on a long piece on the abolitionist horizon of child welfare.

PUBLISHED

Cynthia Godsoe is Professor of Law at Brooklyn Law School and currently working on a long piece on the abolitionist horizon of child welfare.

The COVID-19 pandemic and police killings of George Floyd and other Black men and women have starkly revealed society’s race and class-based inequality and brought unprecedented attention to the excesses of the carceral state. One arm of punitive state regulation, however, has gone largely undiscussed: the “child welfare” system, which I call here, adapting Professor Dorothy Roberts’ words (and her appeal for abolition), the family regulation and policing system.

This family regulation and policing system is a coercive state apparatus that controls and punishes poor and Black and Brown families. Last year, state child welfare agencies investigated over three million families—disproportionately families of color. Family Courts around the country deemed almost 700,000 children to be neglected or abused; separated 430,000 children from their parents, placing them in foster care, often with strangers; and permanently terminated tens of thousands of parents’ rights, making many of their children—71,000 in 2018 alone—“legal orphans.” The vast majority of these cases did not concern physical or sexual abuse, but common parental behaviors, such as using marijuana or other substances; leaving children unsupervised; or missing therapy appointments due to train delays. I saw these types of cases all the time when I represented children in the system, and as a parent myself now, I am confident no parent can survive this scrutiny. For most parents, however, this ordinary behavior goes unnoticed, while for those marginalized by race and class, it is deemed “neglect,” leading to family separation and other consequences that in no way protect children. Low-income mothers of color are most impacted, forming a female analog to the police and incarceration of men of color.

The Supreme Court has repeatedly affirmed parents’ constitutional right to raise their children. And yet, as the family regulation system is deemed “rehabilitative” instead of punitive, it guarantees fewer due process protections than the criminal system. Millions of mistreatment reports come in from mandated reporters, such as teachers and doctors, who, research shows, have racial and class biases. Anonymous reports trigger an investigation; in some communities, a “call to child protective services” is weaponized against neighbors and rivals. Reported families are then investigated—a very intrusive process often involving home searches and “body checks” of children—on allegations of harm to their children on a standard lower than probable cause. Case managers investigate for months and, during the investigation, coerce parents into intrusive programs, such as drug-testing and therapy, even if they never file a formal neglect or abuse petition. If a petition for abuse or neglect is filed, families spend years in the Family Court process being monitored and forced into an often impossibly time-consuming array of services from which they receive little real benefit. The rules of evidence in Family Court are not as rigorous as in criminal court: hearsay is permitted and only a preponderance of the evidence is required for a finding of neglect or abuse. Sweeping laws and the lack of process make findings of neglect or abuse almost a foregone conclusion from an investigation.

Despite the public focus on “abuse,” the vast majority of children are removed from their parents for neglect. Neglect is a vague legal category that centers on a parent’s failure to provide food, housing, and child care, or on her failure to get proper (i.e. private-pay) treatment for mental health or substance abuse. The conflation of neglect and poverty pervades statutory language. Typical is Oklahoma’s statute, which defines neglect as “the failure . . . to provide . . . adequate nurturance and affection, food, clothing, shelter, sanitation, hygiene, or appropriate education.” Appropriateness is defined in a class and culturally-biased manner. Parents are deemed neglectful even when there is no proven risk of harm to their children from their behavior or when they seek help from the state to address domestic violence, housing, or care for children with disabilities. One school district recently threatened to report parents with unpaid school lunch fees while another actually reported parents as neglectful during the pandemic for not having sufficient computers for remote learning.

System involvement brings catastrophic consequences. Parents are demonized as societal outcasts because too many believe the rhetoric that the system operates for children’s “welfare.” The  stigma is often explicitly racialized—recently, one prosecutor described parents as “destructive gorillas.” A neglect finding, or even a report, can permanently block parents from numerous occupations, including those often available to low-income women such as child care and home health aides. Sweeping bans on kinship foster placements due to minor criminal convictions or inadequate housing force children to live with strangers and further eradicate the community supports their parents need. Racial disproportionality is exacerbated in family separations: children of color remain in foster care for longer and are adopted at lower rates than white childrenChildren in foster care also experience high rates of sexual and physical abuseoften age out into adulthood with no permanent connection to any adult; and are more likely to end up homeless, incarcerated, and with enduring trauma.

Like the criminal legal system, the family regulation system has a long history as a state apparatus of racialized social control, including family separation during slavery; Native American children removed from their families to attend “reform” schools until the 1960s; and immigrant children placed on “orphan trains” to become indentured farming servants in the Western Expansion in the early twentieth century.  Tellingly, the Progressive reformers founded family courts not only to help lower-income families, but also to discipline and “Americanize” those who were not white, Protestant, and middle-class. The same punishment of parents for being poor underlies welfare “reform” a century later, when decreased financial support for families led to a ballooning foster care system. The family regulation system’s long trajectory of coercive state intervention shows that, as Paul Butler correctly characterized the criminal system, “it is working like it’s supposed to.”

In 1912, the federal government originally defined “child welfare” to encompass child labor in factories, infant mortality, youth homelessness, and poverty—but by 1961, the term had come to mean protection from “bad” parents. Funding also shifted from addressing the prior aspects of children’s wellbeing to foster care. The system continues to vastly prioritize out-of-home placement over support to existing families—8 out of 9 billion dollars of Congressional funding for child welfare goes to foster care. In apportioning funding this way, the federal government funds foster parents instead of offering the material support most families need, such as housing, child care, and food. Higher-income families are supported in numerous ways, such as with mortgage and college tuition tax credits, despite claiming not to take “handouts” from the state. The U.S. is an outlier in its utter failure to support the majority of families, leaving most with no paid family leave, subsidized child or health care, affordable housing, or quality education. The family regulation system’s deep punitive history and ongoing policy of blaming individuals for structural failures demonstrate that the system is beyond reform. This trauma has been exacerbated during the pandemic with virtually all states canceling parent-child visits for months. Now, even states that have opened many non-essential services still have not resumed visits; in Illinois, for instance, people can golf and get their hair cut while parents and children still cannot see each other regularly.

These challenging times also present an opportunity. As abolitionist visionary Angela Davis said, “[t]his is an extraordinary moment…that allows us to move in the direction of radical change.” Calls to defund the police have inspired families and advocates to rally for dismantling the family regulation system. Every family needs help, and family regulation does not help. To quote the Movement for Family Power, parents “deserve non-judgmental, radically open support. There are systems and structures in place that cause harm to families and communities. These systems deter people who are harmed from seeking help. CPS [Child Protective Services] is one of them”. Like the criminal system, the family policing and regulation system needs an abolitionist horizon and any reforms that increase its funding or net-widening should be opposed. Instead, power should be given to communities who are best positioned to keep their children safe, and the state should give families the support they need, such as cash grants, affordable housing, child care, and food, without the specter of child removal as the backdrop. Let’s seize this moment to redefine child welfare to mean what it should—adequate state support for all children and families.

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