By Raul Noguera-McElroy
Associate Editor, Vol. 25
Part I: Overview
This fall, I enrolled in Race and the Law, a class that examines how the United States’ legal system oppresses various ethnic and/or racial minority groups. The course gave a passing mention of how the child welfare system fits in this framework without deeper analysis on how the child welfare system is a tool of white supremacy that tears black families apart with vigor. This blog post covers the basic structure of the system, how decisions made in the child welfare system separate black families, and names the system as a white supremacist system.
Part II: How Does the System Work?
The term “child welfare system” is a misnomer because it “is not a single entity.”[i] Rather the child welfare system is created and maintained through a patchwork of federal and state laws. The federal government provides a basic framework to states on what to include in the child welfare system, often accompanied by a complicated funding scheme.[ii] After receiving the framework that changes frequently, each state or territory independently constructs their system in order to comply with the parameters.[iii] States employ their Departments of Health and Human Services or an equivalent to work on four broad areas: “child protection investigation, family services, foster care, and adoption.”[iv] These agencies design and institute a state’s response to suspected child abuse or neglect. This process is roughly represented by the chart below:[v]
Generally, a person reports suspected neglect to Child Protective Services, which then investigates the allegations. The agency investigator decides whether further action is needed after the investigation. Abuse and neglect court proceedings begin if the decision is made that further action is needed. The court can close the case without further proceedings, terminate parental rights and place children in foster homes, or anything in between if neglect is found.
A hypothetical example may clarify how the system works. A low-income mother gives birth at a hospital with many similar low-income patients, say Los Angeles County Hospital. After her birth, the hospital conducts an unannounced drug screen due to recent concerns about “crack babies.”[vi] When the test comes back positive, the information is sent to California’s Child Protective Services, who removes the child from the mother shortly after the child’s birth. The child is placed in foster care, the mother’s rights are terminated by a court, and the child is subsequently adopted by a family, never seeing his birth family again. That child was me and that is how the child welfare system functions.
Part III: How the System Targets Black Families
Although the child welfare system targets Latino families like mine, it predominantly targets black families. This racist targeting begins with reporting allegations of abuse and neglect. A report found that hospitals, educational, and medical professionals overreport alleged abuse and neglect among black parents and underreport similar allegations among white parents to Child Protective Services (“CPS”).[vii] This disproportionate rate exists even there is no “statistically significant differences in overall maltreatment rates between black and white families” towards their children.[viii] In one study, researchers found significantly lower rates of child abuse and neglect among black families than white families.[ix] Thus, even though white parents often have similar or higher rates of mistreating their children than black parents, it is black parents who are the subject Child Protective Services calls.
This targeted racism continues with the screening and investigation that occurs after an allegation is received. Research found that children who were black are more likely to be screened for further investigation of maltreatment than children who are white.[x] After the screening, black families are twice as likely to be investigated than white families.[xi] The study’s authors found that CPS subjected 53% of all black children, 31% of all Latino children, and 28% of all white children to investigations by age 18.[xii]
After screening and investigation, CPS decides whether the collected information supports the reported abuse, which is a process called substantiation. If an initial claim is not substantiated, i.e. the investigation finds nothing to support the initial reported abuse, the CPS process typically ends. If the claim is substantiated, i.e. the investigation finds evidence to support the initial reported abuse, the moves forward. Substantiation is more likely to occur when the family is black or Hispanic than when the family is white.[xiii] By the end of this stage, decisions made by Child Protective Services caused significant disparities between black families and white families engaged in this process even though white parents have similar or higher rates of mistreating their children than black parents.
After substantiation, the next decision is whether to place the child in foster care with another family, place them with a relative (known as kinship care), or keep the child in their parents’ home and support them with services. Although these options are very different, they are all considered to be part of the system. In 2017, the demographics of the children who were removed from their parents’ home and placed with foster care families were 51% white, 23.2% black, 22.2% Latino, 2.5% Native, and 0.9% Asian.[xiv] The demographic breakdown of the population of newborns to 17 year-olds in the U.S was 52.8% white, 15.2 black, 25.2% Latino, 1% Native, and 5.8% Asian. [xv] By this point, the foster system has targeted black communities so effectively that black children are overrepresented by a factor of 1.5. The question from here remains: “Now what?”
Part IV: Calling a Spade a Spade
The first step is to call a spade a spade. We cannot fight an enemy we don’t know. The child welfare system, which is a series of one-time decisions, has successfully created a system that disproportionately targets black families, removes them from homes, and places them with unknown families. Many advocates call this process “racial disproportionality,” which assesses racial inequity based on how much a certain subgroup is over or underrepresented in foster care compared to their numbers in the broader population. This word misses key components that would lead to a more robust analysis.
First, disproportionality misses the intentionality driving the foster care system. The foster care system targets low-income black women and removes their children intentionally.[xvi] A New York Times report examines the story of Ms. Maisha Joefield, a black mother in New York foster care proceedings.[xvii] One evening, Ms. Joefield’s daughter Deja left to visit her grandmother while her mom rested. Police were involved shortly afterwards. As the report noted, “For most parents, this scenario might be a panic-inducing, but hardly insurmountable, hiccup in the long trial of raising a child. Yet for Ms. Joefield – the consequences can be severe. Police officers removed Deja from her apartment and placed [Deja] in foster care.” This story demonstrates how a black mother is unable to avoid a legal system that is intent on punishing her, but would be more forgiving of a white mother who acted the same way.
Second, disproportionality minimizes the human cost of the foster care system. The Appeal wrote a story about Ms. L, a mother in foster care, which highlights the heavy burdens placed on families.[xviii] The court required Ms. L to comply with a court ordered services including “parenting classes, anger management classes, a drug treatment program, drug testing, unannounced visits from CPS, and participation in all family court matters.”[xix] CPS took Ms. L’s children and placed them in foster care after Ms. L could not comply with the terms.[xx] These economic, social, and emotional burdens are not captured by data alone, which is another reason disproportionality falls short.
It is most useful to think of the child welfare system as a tool of white supremacy. This is the only conceptualization of the system on which we can land on. In the next post, the present author will evaluate the proposed efficacy of solutions addressing white supremacy in the child welfare system.
[i] Child Welfare Information Gateway, How the Child Welfare System Works, U.S. Dep’t of Health and Human Services Children’s Bureau, 9 (2013).
[ii] Child Abuse Prevention and Treatment Act of 1974 (which “provides funding to States in support of prevention, assessment, investigation, prosecution” of child abuse and neglect”); Children’s Bureau, supra note 1, at 2.
[iii] Children’s’ Bureau, supra note 1, at 3.
[v] Children’s’ Bureau, supra note 1, at 9.
[vi] This testing was ruled unconstitutional in Ferguson v. City of Charleston. 532 U.S. 67 (2001).
[vii] Casey-CSSP Alliance for Racial Equity in the Child Welfare System, Synthesis of Research on Disproportionality, 15.
[viii] Id. at 13
[ix] Id. at 14.
[x] Id. at 18.
[xi] Id. at 19.
[xii] [xii] Hyunil Kim, Lifetime Prevalence of Investigating Child Maltreatment, American Journal of Public Health (January 16, 2017).
[xiii] Synthesis, supra note 7, at 20.
[xiv] Child Welfare Information Gateway, Foster Care Statistics 2017, U.S. Dep’t of Health and Human Services Children’s Bureau, 8-9 (2019).
[xv] National Center for Juvenile Justice, Disproportionality Rates for Children of Color in Foster Care Dashboard (2019).
[xvi] Sarah Clifford. And Jessica Silver-Greenberg, Foster Care as Punishment: The New Reality of Jane Crow, The New York Times (July 21, 2017).
[xviii] Black Families Matter: How the Child Welfare System Punishes Poor Families of Color, The Appeal (2018).