With Child Welfare, Racism Is Hiding in The Discretion

My first client as a family defense lawyer was a Black mother who left her 13-year-old in charge of 8- and 6-year-old siblings while she went to the dry cleaners.

In suburban America, we call this babysitting. In a predominately Black, public housing complex in Washington, D.C., this constituted neglect.

I still remember the terror in my client’s voice. “They are coming to take my babies.”

“They” weren’t the police. They were child protective services — an agency every bit as powerful and as susceptible to racism as the police. But we have yet to face up to the racism that destroys thousands of families of color every year.

Partly that’s because unlike police, many of whom are visibly patrolling neighborhoods, the child welfare systems operate in near total secrecy. But it’s also because, if anything, the stereotypes about minority parents run even deeper than the stereotypes about those caught in the criminal justice system. Even people skeptical of the cops assume that if CPS has intervened, a parent must have beaten or tortured her child. This is in part because those few newspaper stories written about foster care often detail horrific instances of child abuse.

But more than 60% of the cases CPS caseworkers investigate involve only “neglect.” State laws usually define neglect as lack of adequate food, clothing and shelter. While a few of those cases might involve parents who intentionally withhold those material items from children, the vast majority will be parents who were simply too poor to provide them.

Combine such a broad definition as neglect with racial bias, and you get a system full of children of color traumatized by family separation inflicted in the name of “saving” them. In 2018, Black children were 14% of the general population. But they were 23% of the foster care population.

Over the course of their childhood, a staggering 53% of Black children will be investigated by CPS. Once in foster care, some research indicates Black children are less likely than white children to be placed with their kin or ever returned to their families. Unsurprisingly, a large portion of websites showing foster care kids who are up for adoption is comprised of pictures of Black and Brown faces.

Racial bias has helped to fuel a series of perverse financial incentives. Research reveals that children are more susceptible to abuse when they live in crumbling neighborhoods, decimated by a lack of quality jobs, schools or child care. Yet we know that racism has played a role in creating these conditions. For example in Washtenaw County, Michigan, where I live, 50% of all child maltreatment reports come from two zip codes. These same zip codes were also where many Black families were forced to live in the 1940s and 1950s when they came to Michigan looking for work. Restrictive racial covenants precluded these families from buying homes elsewhere.

Rather than address these governmental failures, the federal government has poured billions each year into a system that rewards strangers to raise other people’s kids. It spends 10 times more on foster care and adoption subsidies than on programs to keep kids with their families. All that money creates pressure to move kids to foster care, the trauma of each family separation be damned.

Once they’re in the system, caseworkers and judges have to answer a bunch of discretionary questions. Has a child been neglected? Does she face a risk of harm? Should she go home? These questions are hard: one study revealed that even child welfare experts disagreed nearly 50% of the time when given a hypothetical about whether a child should be taken from his parents. West Virginia, the state that takes away, proportionately, the most children, takes them at a rate 10 times that of the state that takes proportionately the fewest.

Discretion is the rule. And when such wide discretion exists, we know that both implicit and explicit bias can significantly affect the decisions that are made. In similar circumstances, Black children are thought to be at greater risk of abuse than white children. And behavior that’s accepted as normal in affluent, white neighborhoods – smoking a joint, co-sleeping with your child, or leaving a 10-year-old home alone – can be grounds for taking a child in a Black neighborhood.

Justice for children in the child welfare system hinges on their race, their income, what county they live in, and what caseworker or judge they draw.

We must dismantle our flawed approach to child welfare and replace it with one that supports families and resists state intervention except as a last resort. To start, the huge pot of federal money for foster care should be redirected to addressing underlying causes of “neglect,” such as inadequate housing, jobs or health care. Birth families need that money, not the foster care system.

Next, we must fully fund lawyers who can hold child welfare agencies to account — and assure that only children who really are at imminent risk of serious harm enter foster care. In a pilot project I ran in Detroit providing legal services to families involved with child protective services, not one of the children we worked with entered foster care. Lawyers can play a pivotal role in preventing government overreaching.

Finally, we must eliminate the bias that seeps into decision-making. Early research out of Nassau County, New York, for example, suggests “blind removal decisions” — where the family’s race is kept from the decision-maker — can significantly reduce the removal of Black children from their families. We must also closely scrutinize long-celebrated roles in our system – CASAs and guardians ad litem – which invite professionals to double-down on their biases and opine on what they think is best for children without any objective criteria.

This is just a start. For too long, child welfare professionals have allowed the benevolence of their motives to blind us to the system’s failing. The needless destruction of Black families is entirely preventable. We just need to acknowledge our mistakes and find a better way.

Vivek Sankaranchild welfare is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School. Follow him on Twitter at @vivekssankaran.

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