Photo credit: The Imprint
This past summer, the broadest protests in U.S. history erupted in response to the murders of Black people, like Tony McDade, George Floyd, and Breonna Taylor, at the hands of law enforcement. Calls to defund the police and reinvest those funds in services like education, housing, and health care have been heard in cities and towns across the nation. Common among these pleas has been the suggestion to pump more resources into child welfare agencies. Additionally, articles and infographics that have circulated around social media frequently include child abuse hotlines as an appropriate alternative to calling the police.
The absence of the child welfare system from mainstream discussions on systemic racism, as well as the positioning of the system as a just alternative to policing, has caused concern for many family defense practitioners, scholars, and families impacted by the child welfare system. These activists, who prefer the terms family regulation or family policing system, are pushing back against popular narratives about the purpose and effects of the system by highlighting the racism and classism plaguing it, and by demanding that calls to reimagine public safety include the family policing system.
Like the criminal legal system, the family regulation system serves as another way for the state to police, surveil and traumatize Black, Indigenous, Latinx, and poor families. In an attempt to highlight the parallels between these two institutions, some refer to the surveillance of poor mothers of color’s parenting choices as the new “Jane Crow.” As expressed by Professor Dorothy Roberts, a leading scholar in the family regulation abolition movement, “Just as police don’t make communities safe, CPS [child protective services] affirmatively harms children and their families while failing to address the structural causes for their hardships.” In fact, the majority of allegations that result in the removal of Black children from their homes do not involve abuse, but concern neglect arising from conditions of poverty or discriminatory welfare practices. Empty fridges and pantries, children left unsupervised during work hours due to a lack of childcare, and the finding of multiple family members sharing one room are all reasons frequently cited for involving the family policing system.
Racial disparities exist at every point in the family regulation system. To start, Black families are more likely to be reported to the child abuse hotline and investigated for abuse or neglect than their white counterparts. Black parents are more likely to have cases against them substantiated and to have their children removed from their households. Once in foster care, Black children typically receive inferior services and are kept from their homes for longer periods of time than white children. The parental rights of Black parents are terminated at a higher rate than those of white parents. Put in other words, Black parents experience the civil death penalty at greater rates. Finally, after a child has been “freed” for adoption because of the termination of their parent’s rights, Black children are significantly less likely than white children to be adopted.
The removal of a child from their caretaker’s home or the termination of parental rights are the most dramatic examples of how the family regulation system disrupts and destroys families. However, the system does so in more subtle ways as well. As explained by former-family defense attorneys and activists Erin Cloud, Rebecca Oyama, and Lauren Teichner, “Often, the system uses court-ordered supervision that requires Black Families to comply with social services determined by caseworkers and then ordered by mostly white judges, all of whom barely know the family.” A service plan for a parent might include parenting classes; anger management classes; participation in a drug treatment program; submission to drug testing; unannounced visits from child protective services; forbidding a child from seeing one of their parents, typically the father; and attendance at all family court conferences regardless of an individual’s work schedule or other commitments. While many see such involuntary social services as necessary to correcting the behaviors that led to system involvement, this belief fails to understand how these programs impose extreme burdens that fall disproportionately on families of color while simultaneously subjecting them to state surveillance, the indignity of losing control of one’s family, and the trauma of being separated from loved ones.
Although the United States has a long history of breaking up families of color, the most significant piece of federal legislation addressing the family regulation system in recent years is the 1997 Adoption and Safe Families Act (ASFA). The bill was signed into law by President Clinton at a time when the government was still very much engaged in the War on Drugs and just over a year after the landmark welfare reform Personal Responsibility and Work Opportunity Reconciliation Act, which resulted in the drastic deduction in the number of people receiving federal welfare benefits. AFSA prioritized the adoption of children in foster care over family reunification by providing financial bonuses to states that increased the number of children who were adopted rather than returned to their families. By incentivizing states, the Act has proven to be extremely successful in its stated goal. In the years immediately following its enactment, “The adoptions of children in foster care increased from 28,000 in 1996 to 50,000 in 2000.” In 2019, the most recent year for which data is available, 66,035 children with public child welfare agency involvement were adopted.
Despite these jarring statistics and problematic history, the family regulation system and its devastating impacts on communities of color continues to exist relatively unscathed and unchallenged. Professor Roberts argues that this is partially the result of a tendency to focus “myopically on extreme cases of child abuse, . . . [and thereby] deliberately ignor[ing] the damage caused by carelessly removing children from their homes.”
That being said, there is a small but growing movement led by Black and Indigenous mothers who have been impacted by the family policing system working to challenge the public’s perception of and society’s reliance on the system, and to envision and develop new alternatives of care and support for American children and their parents. This Movement includes organizations like upEND, Families Organizing for Child Welfare Justice, Movement for Family Power, and Rise. Additionally, large and well-known racial justice groups are beginning to focus some of their attention on the harms caused by the family regulation system. For instance, The Movement for Black Lives has demanded the elimination of “the foster system’s power to permanently and irreversibly destroy Black families through termination of parental rights.” Among the numerous policies these groups advocate for include the prohibition of non-consensual drug and alcohol testing of pregnant people and newborns; the establishment of a care income or a Marshall Plan for Mothers to compensate the work of childcare; and “the provision of the same level of stipend and support (health insurance, respite care, restorative case management focused on child needs) to parents before they lose their children as is provided to foster families after the fact.”
Although scholars like Dorothy Roberts have produced literature focused on the family policing system for decades, the legal academy overall has not given these issues adequate attention. Fortunately, this March, The Columbia Journal of Race and Law and Columbia Law School are hosting a conference and dedicating two of the journal’s issues to marking the 20th anniversary of Professor Robert’s seminal book, “Shattered Bonds: The Color of Child Welfare.” The Volume 11 symposium is titled, “Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being.” The symposium and journal issues mark exciting developments in this area of scholarship. However, those who are committed to ending all forms of racist and classist state surveillance, policing, and oppression, specifically law students and practitioners, must follow the lead of those directly impacted and do more to interrogate the family regulation system in the United States.
 While the child regulation system disproportionately harms other communities of color, especially Indigenous families, this post uses the most recent data available and cites statistics involving Black families as a result.