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Caring for Children by Punishing Parents


Shanta Trivedi (@ShantaTrivedi) is Assistant Professor of Law at the University of Baltimore School of Law.

This post continues a symposium on Dorothy Roberts’s Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World and Wendy Bach’s Prosecuting Poverty, Criminalizing Care.

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Our government’s control and policing of poor, marginalized communities has long been enacted through systems of what Dorothy Roberts calls “benevolent terror” – punishment under the guise of care. Two new books — Roberts’s Torn Apart and Prosecuting Poverty, Criminalizing Care by Wendy Bach — document this reality and reveal that the state’s claim to care for children is often little more than an excuse to punish their parents.

The official organs of the family policing system tell us that their goal is to ensure that children are safe and receive proper care. Similarly, according to state legislators, fetal assault laws are necessary to protect babies from their drug-addicted parents. In each case, the narrative we have been fed is that we, collectively, must protect innocent children from their dangerous parents. Both systems profess to be about protecting children from their parents, while simultaneously rehabilitating the parents for the good of the children. The goal, as Bach puts it, is that “bad mothers will become good mothers” for the betterment of their children. But a closer look at these systems demonstrates that they are not about caring for children – they are about punishing parents. The families who are most targeted by these systems rarely thrive or meet their full potential. Instead, they find themselves trapped in a constant cycle of detrimental state intervention; as a result, they and their children suffer.

The system’s privileging of punishment over care is evident in how the state treats both children and parents. The state’s primary response to any allegation of neglect or abuse is to take children from their parents, even though we know that family separation is one of the most harmful experiences that a child can have. When a child is separated from a parent, the stress literally changes the structure of their brain forever. The state compounds that harm by putting the child in a foster system that is often more dangerous than the conditions from which they were removed. We know that children who are on the margins of removal have far worse outcomes than their peers that remain at home on virtually every metric that matters: they perform worse in school, they are more likely to be involved with the juvenile carceral system, their mental and physical health suffers, and they are more likely to live in poverty as adults.

If our goal is to protect children, why we would design our legal systems in a way that produced so much punishment? The answer, identified by both Professors Roberts and Bach, is that punishment is the goal, not a byproduct. One reason to structure our systems this way is because we do not care about the people we are punishing. They are people who are historically and continuously marginalized and oppressed. They are society’s “others.” They are people for whom we have no empathy. They are poor. They are Black. They are crazy. They are disabled. They are drug addicts. They are angry. They are undeserving. And because of who these “bad parents” are, it is easier to use castigation and threats as the mechanism to “heal” them, as they are not the types of people we should treat with care and compassion.

Roberts highlights how separating children from their parents has always been used as tool of power and control. Enslaved people lived under constant fear of losing their children or being sold themselves. Native American children were put into “boarding schools” to strip them of their community, culture, and language. The Trump administration separated children from their parents escaping treacherous conditions in their home countries. And in courts across the country today, we continue to threaten parents with the loss of their children if they do not conform to white, upper-middle class parenting ideals.

The cruelty of these systems is exacerbated by the fact that we live in a country that makes parenting nearly impossible. We ask parents to do the critical work of raising children, yet we fail at every turn to provide them with the support they need. Comparable nations provide affordable childcare and extended paid family leave for both parents. In the United States, by contrast, no such system exists. Instead of funding family support systems, we prioritize funding the foster care industrial complex. Parents are accused of neglecting their children and even criminally prosecuted when they cannot afford childcare and are forced to make difficult choices to obtain or protect their employment. Judges, prosecutors, and sheriffs all profit off of removing children from their parents. We have built a “multi-billion-dollar industry that relies on the surveillance and forcible separation of predominantly Black, Indigenous, and Latinx families.”

After creating impossible parenting conditions, we blame parents for their alleged shortcomings. Through policies that make it difficult for low-income parents to receive even the paltry benefits to which they are entitled, we entrench families in poverty. Once children are removed, parents are forced to jump through a series of hoops to prove that they are worthy of regaining custody. They must take parenting classes to address their deficiencies, attend counseling, and seek treatment for substance use disorder while simultaneously finding and maintaining appropriate housing and stable employment. We have, as Bach explains, allowed a “corruption of care” through its proximity to punishment; decisions that are supposed to be made between a doctor and patient are made by government actors. Parents are forced to see therapists or drug counselors, but those health professionals are required to reveal confidential information with caseworkers, judges, and prosecuting attorneys. Thus, parents cannot receive care unless it is coupled with surveillance.

As Marty Guggenheim has written, a state that cared about children would guarantee “children health care, food, clothing, shelter, free child care, and other benefits designed to minimize the disadvantages many children currently endure because of their bad luck of having been born poor.” It would reconsider the use of mandated reporting, which prevents people in crisis from seeking care, undermining the goal of protecting children and families. It would provide cash transfers to families to improve both childhood and parental health. Substance use treatment would be community-based, and would never be tied to incarceration. It would ensure that there are programs that allowed mothers who use substances to stay with their children as they receive treatment, which research has shown helps the children to thrive and the mothers to heal. Rather than reacting to perceived harm, it would invest in community-based preventative programs that support parents, rather than isolating them. If the state really wanted to protect children, it would take care of their parents.