We believe the child welfare system should ensure the welfare of all families within its care, both in intent and practice. But is this possible with a system that is inherently and impactfully harmful?
With recent calls to “Defund the Police” in response to the egregious and violent targeting of Black and Brown people by law enforcement, many child welfare advocates and scholars are asking to extend this conversion to the foster care, or “child welfare,” system which similarly targets, polices, and destroys Black and Brown families under the guise of safety.1 But the child welfare system believes itself to be even more benevolent and safety-centric, allowing it to ignore the true and present harm it can cause. As we examine this system at its various stages, we see that the child welfare system is far more often harming the families it is meant to protect.
The “Front Door” of the Child Welfare System
Reporting of Child Maltreatment
Many think of the child welfare system as one rescuing children from physically abusive homes and parents who chose to harm them. Movies, TV, and news can often highlight stories like this, making people believe these objectively horrific cases are the standard.2 The reality is a much different picture, with the overwhelming majority of youth being funneled into the child welfare system due to physical neglect, or the inability to meet their basic needs like food, shelter, or clothing, likely due to povery rather than abuse.3 For example, in 2018 in Nebraska, there were over 36,000 reports of alleged abuse or neglect made to Nebraska’s Child Abuse and Neglect Hotline.4 Of those, only 5.6% were substantiated, and of the 5.6%, 80% were due to physical neglect, not abuse.5 Thus, the overwhelming majority of children reported to Nebraska’s Hotline are not in need of physical protection or removal from their homes. These families are in need of economic support, or no intervention at all.
This overly wide net of families reported into the child welfare system can be attributed to several things. First, child abuse and neglect reporting laws mandate that individuals, usually professionals interacting with children, report even potential abuse or neglect to a state child protection agency. Even further, Nebraska has “universal” mandatory reporting laws, meaning everyone is required to report potential child abuse or neglect, or face criminal penalities.6 Second, state statutes defining abuse and neglect are often overbroad, subjecting them to overuse and subjectivity.7 For example, Nebraska’s current law prohibits children from being without “proper parental care” or “support,” leaving individuals to use their own judgment about what is “proper.”8 In practice, this results in families being reported, then charged, for poverty. Together, these overly broad reporting and abuse and neglect laws force individuals to err on the side of reporting, without any public education about the consequences of such a report, or cultural and economic competency in assessing potential maltreatment.
Who is more likely to be reported?
Where there is bias, there is racism, classism, and abuses of discretion. Individuals may interpret a child’s circumstances to be lacking “proper” care when in reality, they are being racist and/or classist. Nationally and in Nebraska, there is a much higher rate of reporting alleged child abuse and neglect for Black families. More than half of U.S. Black children will experience a child welfare investigation by the time they turn 18, making them almost twice as likely as white children to be investigated, despite evidence demonstrating families of color are not more likely to engage in child maltreatment than white families.9
This points to society’s proven and present fear of Black parenting.10 For example, studies show that clinicians are more likely to evaluate and report Black children for maltreatment when presenting similar injuries as white children, and that the best indicators of whether a medical provider will drug test a mother are race and class, not medicine.11 Black parents are more often punished for the same behaviors white parents experience, including recreational drug use, mental health issues, and unknowingly allowing their children to be placed in less than safe circumstances.12
Families of color are more likely to be in poverty due to generational and systemic economic, carceral, and public benefit access barriers. In 2020 in Nebraska alone, Black parents “were 3.8 times more likely to report housing insecurity, 4.7 times more likely to report lacking health insurance, and 5.6 times more likely to report food insufficiency” as compared to white families.13 And 50% of Nebraska adults with children who were housing insecure were Black, 42% were Hispanic, and 36% identified as “other” or “multi-racial.”14 A higher incidence of poverty means a higher risk of being reported and charged for alleged child maltreatment.15
The Child Welfare Investigation
Once there is a report of alleged abuse and neglect, the system’s authority to investigate the family is triggered, setting off an invasive and potentially very consequential process. The child protection agency will likely examine almost every aspect of the child’s life, including the child themselves, their home, parents, school, mental health, medical records, and adults around them. This intrusion is all based on a tip from an individual who may or may not know much about the family at all, and the caseworker’s subjective judgment about the potential veracity of that tip. This is a very low burden of proof compared to the level of intrusiveness and trauma of these investigations, the low percentage of substantiated reports, and the fact that a court or lawyer is not yet involved to provide oversight.16
This grants caseworkers more power than law enforcement officers but with less legal oversight and constitutional responsibilities. There is no mandate that a parent be given a type of “Miranda” warning or legal representation during such investigations, and warrantless searches frequently occur, despite the results of the investigations being used against parents in court. In fact, as case workers and law enforcement officers have the authority to literally remove children from their homes, families are often threatened, coerced, or scared into compliance with the investigation and home searches, fearing greater consequences if they don’t. In any other context, these invasive searches and removals would be considered clear and violent violations of a person’s constitutional right against non consensual search and seizures and privacy rights.17 But most courts have surprisingly held the majority of these constitutional protections do not extend to, or have exceptions in, the child welfare system, reasoning that the safety of the child comes first and that the child welfare system is rehabilitative rather than punitive.
But what is not punitive about a system that demonizes, punishes, polices, and separates families? And is there any other action that deserves more protections, oversight, and legal representation than the forcible separation of children from their parents, denying them of their fundamental constitutional right to a parent-child relationship?
The Child Welfare Case
An Impossible Dilemma for Families
Once this investigation concludes, the investigators determine if a child welfare case should be opened against the family. If they do, the family is tasked with rehabilitating on the court and/or child protection agency’s terms and engaging in ordered services and progress – or risk permanent separation. Families are faced with an impossible dilemma: accept what is happening and comply with the court ordered surveillance, or contest the allegations and be seen as un-rehabilitative and risk termination. As one scholar put it, parents are “forced to barter [their] own freedom…in exchange for [their] child’s freedom from foster care.”18 While at this point, many are granted legal representation to help them through the case, the caseworker is the individual most frequently interacting with the family. This person has the ability to arrange how and when you receive rehabilitative services, visitation, and then is to report their impressions and judgments of your family’s progress to the court, all the while working for the same institution that intruded and judged your family’s home, resulting in the case.19
This intense process involves predominantly white judges, lawyers, service providers, and caseworkers, judging families of color’s ability to conform to their white, middle to upper class, euro-centric picture of a healthy and stable family. And as a result, Black and Brown families are more likely to have their children placed out of their homes, have the smallest chance of being reunited, spend the longest time in care, receive the least effective services, and have the highest rate of permanent separation.20 Even worse, if a family is permanently separated, Black children are three times less likely to be adopted than white children, resulting in more Black youth languishing in the child welfare system until they reach the age of majority.21
Children Placed in Care
Additionally, many youth are affirmatively subjected to more harm from being in care. This includes the mental health effects of being traumatically removed from their home and placed in potentially several other homes, without consistent trusted adults around them and no idea of when it will be over. This trauma and harm can increase when the family is, in fact, permanently separated. Further, data demonstrates that former foster youth experience harmful long-term outcomes as compared to their non-foster youth peers including higher rates of homelessness, poverty, and food insecurity, continuing the cycle of poverty and systems involvement.
Even more extreme, children can be abused in care. For example, the Office of Inspector General of Nebraska Child Welfare identified 50 children who were victims of sexual abuse while in state care or in an adoptive or guardian home the state placed them in, over a period of three years.22 The OIG attributed this to many flaws in the state child welfare system, including caregivers and professionals blaming the child or believing them to be lying or “acting out” because they were “troubled.”23 Similarly, youth in care with behavioral or mental health needs greater than a traditional foster home is equipped to handle are often placed into congregate care settings, like the Youth Rehabilitation and Treatment Centers (“YRTCs”) in Nebraska, which are objectively carceral, and reportedly unfit living conditions. Is this really child welfare?
Racism & Child Welfare
In her book Shattered Bonds, child welfare scholar, professor, and advocate Dorothy Roberts wrote that “[t]he color of America’s child welfare system is the reason Americans have tolerated its destructiveness.”24 It is a predominantly white owned system that controls a disproportionate number of families of color. While mentioned throughout, it is worth repeating: the child welfare system is racist. Black and Native mothers, children, activists, and scholars have long named this. The systems’ origins and impact have disproportionately targeted and destroyed families of color, judging and punishing them for their non-conformance to a white, middle to upper class picture of safety, rather than assisting them. And of course, all of this harm is experienced in combination with the inequalities, oppression, and barriers present in their interactions with other systems and day to day lives.
With these truths and realities, we should be doing absolutely everything we can to prevent children and families from ever interacting with this system, unless absolutely necessary to protect a child from true and present harm.
In the last two weeks of Foster Care Awareness Month, we will be discussing potential solutions, policies, alternative language to use in describing the system, and highlighting other incredible advocates leading this work. As always, if you feel compelled to share your personal experiences and thoughts on the child welfare system, please reach out to Schalisha Walker at firstname.lastname@example.org or reply to this blog. We would love to hear and learn from you.
- Erin Cloud et al., Family Defense in the Age of Black Lives Matter, 20 CUNY L. Rev. (2016). Note that much of this scholarly work, including truths, conclusions, and ideas within this article, come from the scholarly work and leadership of Dorothy Roberts, including within her June 16, 2020 article “Abolishing Policing Also Means Abolishing Family Regulation” published via The Imprint, and books “Shattered Bonds: The Color of Child Welfare (2001)” & “Torn Apart: How the Child Welfare System Destroys Black Families – And How Abolition Can Build a Safer World (2022).”
- Michelle Burrell, What Can the Child Welfare System Learn in the Wake of the Floyd Decision?: A Comparison of Stop-And-Frisk Policing and Child Welfare Investigations, 22 CUNY L. Rev. 124,127 & 137 (2019).
- Child Maltreatment 2019: Summary of Key Findings, Children’s Bureau, 4 (April 2021); 2019 Kids Count in Nebraska Report, Voices for Children in Nebraska, 63-64 (2020); 2020 Kids Count in Nebraska Report, Voices for Children in Nebraska, 67-68 (2021); 2021 Annual Report, Nebraska Foster Care Review Office, 4 (September 2021).
- 2019 Kids Count in Nebraska, supra note 3, at 63.
- Id. at 63-64 (2020).
- Neb. Rev. Stat. §§ 28-106, 28-711, 28-717.
- Dorothy Roberts, Five myths about the child welfare system, The Washington Post (April 15, 2022).
- Neb. Rev. Stat. § 43-247(3)(a).
- Kim et al., Lifetime Prevalence of Investigating Child Maltreatment Among US Children, American Journal of Public Health 107, no. 2, 274, 278 (February 2017); Roberts, supra note 7; Equality Before the Law: Race & Ethnicity in the Front End of Nebraska’s Child Welfare System, Voices for Children in Nebraska, 2 (July 2019).
- Kim et al., supra note 9; Zanita E. Fenton, Colorblind Must Not Mean Blind to the Realities Facing Black Children, 26 B.C. Third World L.J. 81 (2006); Burrell, supra note 2.
- Roberts, supra note 7; Cloud, supra note 1, at 80.
- Burrell, supra note 2, at 126.
- 2020 Kids Count in Nebraska, supra note 3, at 16.
- Kim et al., supra note 9; Equality Before the Law, supra note 9, at 2.
- Burrell, supra note 2, at 130-131.
- Cloud, supra note 1, at 75.
- Cloud, supra note 1, at 83.
- Burrell, supra note 2, at 138-140.
- Fenton, supra note 10, at 85-86; Equality Before the Law, supra note 9, at 1.
- Fenton, supra note 10, at fn 27.
- Julie L. Rogers, Summary Report of Investigation: Sexual Abuse of State Wards, Youth in Adoptive or Guardian Homes, & Youth in Residential Placement, Office of Inspector General of Nebraska Child Welfare, 2 (October 2017).
- Id. at 3.
- Dorothy Roberts, Shattered Bonds: The Color of Child Welfare, x (2001).