How the “Child Welfare” System Destroys Black Families with Prof. Dorothy Roberts

Transcript

[00:00:00] Simon: It’s a scenario that many parents across New York State, particularly in low-income areas, have come to fear.

A knock on the door from a child protective services caseworker. On this episode of Rights This Way, we’ll delve into why the quote unquote child welfare system is actually better understood as a family regulation or a family policing system. We’ll explore how a system ostensibly set up to quote unquote protect children is actually one in which poor families of color are routinely harassed, surveilled, and punished. And we’ll look at ways we can build a system that truly supports families. We get into all of this with one of the country’s top experts on the family regulation system. University of Pennsylvania professor Dorothy Roberts. She has written several books on the topic including her most recent Torn Apart: how the Child Welfare System Destroys Black Families and How Abolition Can Build A safer world.

We’ll also talk about several pieces of legislation at the state and local level that could help address many of the worst problems surrounding the family regulation system. But first, I’d like to ask you to please download, rate, review, and subscribe to Rights This Way. It will help more people find this podcast.

Welcome to Rights This Way, a podcast from the New York Civil Liberties Union, the ACLU of New York State. I’m Simon McCormack, Senior Staff Writer at the NYCLU and your host for this podcast, which is focused on the civil rights and liberties issues that impact New Yorkers most.

And now I’m joined by two guests. Dorothy Roberts is the George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mosel Alexander Professor of Civil Rights at the University of Pennsylvania’s Penn Carey Law School. She’s also the author of several books, including her most recent, Torn Apart: how the Child Welfare System Destroys Black Families and How Abolition Can Build A safer world. And Jenna Lauter is a NYCLU Policy Counsel. Dorothy, Jenna, welcome to Rights This Way.

[00:02:18] Dorothy: Thanks. It’s great to be here. Thanks for inviting us.

[00:02:21] Jenna: Thanks for having us, Simon.

[00:02:23] Simon: Of course. Well, very excited to have you both. Dorothy, I wanna start with you. Can you explain what the family regulation system or, as you call it, the family policing system is. And for our listeners, what we’re talking about here is it’s commonly called the Child Welfare System, but we will get into why that’s not an accurate description.

[00:02:47] Dorothy: Sure. The family policing system or what’s commonly called the child welfare system, is a massive state apparatus that claims to protect children from abuse and neglect, especially by their parents. And so, it is supposed to be a form of child protection. It is a set of agencies that investigate families and remove children from their homes and place them in foster care, other kinds of substitute care, and also terminate the rights of parents. So, I call it a Family Policing System because as you can tell from everything I just said, it operates by policing families, primarily by threatening to take their children away or take them away. And it is a form of really massive state surveillance and investigation, disruption of families, even destruction of families.

And that’s the way it operates. I think the public has been told that it is a service provider, that it keeps children safe. But just as a starting point, thinking about the way in which it operates, what it actually does. I think policing families is a better description of that.

[00:04:19] Simon: I want to get into some of those, those misconceptions, those myths. You write in the prologue for your most recent book, quote if this system were truly devoted to protecting children and promoting their welfare, why weren’t the vast majority of its clients white?

The United States has consistently reserved its best resources for white people. Black people have had to fight tooth and nail to gain access to services meant for whites only unquote. And so, yeah, with that in mind and with the foreshadowing you just did, can you talk about what some of the, the biggest myths or misconceptions about the Family Regulation System are?

[00:04:58] Dorothy: Well, I can start by explaining that quote that you read from Torn Apart. I wanted to, in that particular statement, point out how obvious it is that this is an oppressive system because black children are way overrepresented. They’re the most likely children to be taken from their families and to be investigated.

Over half of black children in America will be subject to a child welfare investigation, by the time they reach age 18. And indigenous or native children are also at very high risk of being investigated and separated from their families. And so, one important aspect of the system, one very telling aspect of the system is this gross racial disparity in the system, which reflects inequality.

And what I was saying there is if the system is so wonderful for families, why would it be that black children are the ones that are forced into it? That alone should tell us that there’s something oppressive about this system. It’s not a system that people want to be in. No families don’t go asking to join the system.

They are forced into it by this policing function of, you know, so-called child welfare and protection. So, what really opened my eyes to the oppressive nature of the system was this stark racial reality of the system. And so, one of the biggest myths is that it’s benevolent. That it’s supportive. The truth is that, as I said, it coercively intervenes in families. It does not support the families. It doesn’t provide what families need to care for children, the concrete material resources they need. Instead, it forces upon them what are called services, but are actually mandates of tasks that families have to fulfill in order to keep their children or get them back.

And so, one major myth is this myth of benevolence and service. That is just completely false. Another myth is that children are protected by the system when, in fact, when children are removed from their homes, they’re put in a foster system that is well documented to cause all sorts of harms to children.

Children in foster care are at high risk of committing suicide, of running away from the placements that they’re put in. It disrupts their education, it disrupts their healthcare, it disrupts their emotional stability and mental health. And this is all very well documented that children in foster care are at higher risk of abuse and death than children who aren’t in foster care.

So, there are just so many myths about it. I could, I could go into, but another one is that it helps families to have mandated reporters that report their suspicions of child abuse and neglect.

This system operates on a wide network of professionals who are mandated by state law to report suspicions. And one problem with this is that it’s highly biased. And this is also well documented that reporters are much more likely to report black families than white families for the same kinds of risks or injuries to children.

And it also deters families from seeking help. So, you have the very people that are professionals trained supposedly to provide services to children and their families, like teachers and doctors and social workers, and this system turns them into agents for the state that report their suspicions.

Not even concrete evidence of harm, but there’s suspicions to the state, and families know this, and it deters them. Instead of figuring out how to actually support a family in need, they’re told instead to report the family to an agency that is well known to harm families.

I wanna mention one other myth that, that kind of underlies everything we’ve been talking about. And that is the myth that families only get on the radar of this system and are intervened on by the system if they are severely abusing their children. And the reality is that the vast majority of families in, in fact virtually all the families, there’s some exceptions, but virtually all the families that are entangled in this punitive system are impoverished or low income. It’s very rare for a wealthy white family, no matter what’s going on in their home, no matter what their doctors know, or teachers know about harms to the children, will be reported.

And so, this is really a system that’s always been designed to target impoverished and low-income families. They’re mostly targeted for what’s called neglect, which is defined as poverty. It’s literally defined as failing to meet the material needs of children and most parents fail because of structural impediments to their being able to have the material resources they need for their children. They’re being punished then for being poor. And that is something I think most people don’t understand. That’s a, this veneer of saving children from monstrous families is simply false.

These children are being taken violently from their homes because their family caregivers don’t have the material resources that are needed. Of, of course, many children are removed even when they’re doing just fine at home. But neglect is defined as failing to meet the material needs of families, and that’s tied into the design of the system to blame families for the unmet needs of their children.

You know, I can kind of sum up a lot of what I’ve been saying with the implications of those myths, which is that this is a system that sends the message that the reason why there are so many children in America whose needs aren’t met, needs of clothing and housing and good nutrition and good education, you know, all those unmet needs that the US stands in stark contrast to every other industrialized nation as failing to have a welfare state that provides that, and also a, a country that’s deep inequities that cause these deprivations to children and what the system says is it’s all the fault of their pathological parents.

And the way to address that is to monitor these parents, supervise them, regulate them, punish them, take their children away instead of what we need is radical social change that would eliminate poverty, that would eliminate these structural barriers to equality. You know, the, the structural inequities of racism and sexism and heterosexism and patriarchy and classism and deportation and, you know, all of the structural harms to children are obscured by this system. And that’s what is really the deep problem with it.

[00:13:23] Simon: And so that, that covered a lot of ground. Thank you very much, Dorothy. That, that is a, tremendous synopsis of the problems with this system. And Jenna, we’re gonna be talking later about several of the aspects that Dorothy just mentioned and how they relate to New York, but I wondered if one of the things that Dorothy said actually prompted me to think of one specific thing, New York related, which is I know that the administration for child services.

Is that what, that’s the New York City..

[00:13:52] Jenna: The, the Administration for Children’s Services is the New York City Agency that carries out the family policing and family regulation in New York.

[00:14:01] Simon: Right. Okay. Thank you. And I know that they tout a lot of programs or resources or things like that, that they do. And so one of the things that Dorothy just mentioned, one of the myths was like, yeah, we’re just here to like provide a a helping hand, a hand up.

Can you talk about specifically New York’s effort to kind of camouflage that?

[00:14:22] Jenna: Yeah, I mean, I think New York as a relatively progressive state is well aware of these challenges, of these problems with the system and has gotten pretty good about, about talking about them and naming all kinds of things that they’re doing to reduce racial disparities in the system and to reduce the sort of punishment of poverty that the system embodies.

They tout programs like the CARES Program, which they say is sort of an alternative path to undergoing a family regulation investigation and case in the family court system. But a lot of this, frankly, it doesn’t translate to family’s actual experiences. And so, when a family regulation agency, like the Administration for Children’s Services or ACS, when it says that it’s offering services to families, a lot of times what it means is it is pressuring that family or sometimes requiring them to attend a parenting class or an anger management class or undergo some sort of substance use treatment program. And a lot of these programs have absolutely nothing to do with the struggles that a family is actually facing. Not only do they fail to meet the family’s material needs, but they can actually make it harder for parents to meet those needs.

A lot of these programs take place during nine to five work hours and can require parents to travel long distances on public transit to even get there. And that can really disrupt their work schedules and their ability to maintain stable employment. You know, slightly tangentially, but also, you know, to the extent that ACS is removing a child from a parent’s home that can even jeopardize their access to various forms of housing by reducing their family size.

So, a lot of the interventions that these agencies take in the name of, allegedly, supporting families can actually further destabilize them.

[00:16:22] Simon: Yeah. Okay. That is very helpful and, and exactly what I was kind of prodding for. That’s, yeah, that’s a critical local context. And Dorothy, I want to now zoom in a little bit on another aspect that you touched on. In your book, in the section titled Destroying Black Families, that quote, most black children in America will experience at some point in their young lives, the intrusion of CPS agents in their homes.

Can, can you talk about the, the racial disparities um, in the system?

[00:16:52] Dorothy: Sure. So just in terms of statistics, it has long been very obvious that black families are targeted by the family policing system all across the nation. Whether we’re talking about southern states, or we’re talking about northern states, the Midwest, the West Coast. If you look at any big city in America, whether it’s New York City, as Jenna was just talking about, or Chicago, where I first became aware of this system, where almost all the children in foster care are black. In New York also, its just black children are hugely overrepresented in foster care and in investigations.

San Francisco, for example, almost all the children in San Francisco, in foster care are from the small black community that’s left in San Francisco. It’s very unlikely that a white child in San Francisco is going to be taken from their home and put in foster care. And so, this is replicated all over the nation. A study I mentioned earlier, recent study found that 53% of black children will be subjected to a child welfare investigation before they reach age 18. And it’s even higher in some counties in the United States. So, the statistics are just glaring. They’re undeniable that black children are at higher risk of being investigated and removed, their parents’ rights terminated, and this goes for native or indigenous children as well. But another aspect of this that I think is important is what I’ve called the racial geography of the child welfare system or family policing. Because what also happens in big cities, but also other areas as well is if you look at where most of the interventions take place, they’re in impoverished, segregated, black neighborhoods.

And so, it’s not just those half of black children who are at risk of being subjected to a child welfare investigation, it’s also the other half who live in the neighborhood, you know, who have relatives, friends, classmates who’ve been taken from their homes or subjected to an investigation. And everyone in the neighborhood is aware of this invading force.

And this is how they think about these child welfare agents invading their homes, their neighborhood, their communities, their families. And it is a pervasive threat in those neighborhoods. I really think we have to look at it as part of the carceral policing state that in terms of police interventions and prison also concentrated in these very same neighborhoods.

And so that’s another aspect of the racism and white supremacy of the family policing system. It’s also important to note that the roots of this are very deep and we can trace the targeting of black communities back to the enslavement of black people for 400 years in America where family separation was an essential aspect of enslavement and white enslavers were considered the head of the plantation family who had authority over all the children, including black people’s children. From the moment of conception, children were considered the chattel property of enslavers. And so, the idea that America stands for family integrity and protection of families is ludicrous.

You know, it was built on a system that routinely separated families and denied any kind of legal recognition of the bonds between black family members. And so, you know, I don’t think it’s surprising that today we still see this dismissal of loving ties between black family members. a big part of how the system operates is on degrading stereotypes about black families, that black mothers don’t really care for their children, that black fathers are absent and don’t participate in their children’s lives, and that black children are better off away from their families.

That this is why you know, born out in studies, that it is easier for caseworkers to take black children away from their families than white children for the exact same kinds of risks. We know that physicians are far more likely to suspect black parents of abusing their children. When children come to the emergency room with fractures or head injuries, they’re more likely to suspect child abuse and to test for it and to report in the case of black families, so, this history reproduces itself over and over in a system that today instead of ignoring black children, which is what happened after emancipation and the apprenticeship system where black children were by tens of thousands put back into the homes for their former white enslavers.

You know, this was part of the white supremacist takeover of the South after the Civil War. You know, retaking of the south, I should say, after the Civil War, it was the convict leasing system and the buildup of incarcerating black people, but also courts ordering the forced apprenticeship of black children.

But then there was this period where black children were not given the even asserted alleged benefits of the developing formal Child Welfare System. You know, at the turn of the 20th century, the late 18 hundreds, the early 19 hundreds. And it was only with the Civil Rights Movement and black protest and demand for inclusion in the US Welfare State for welfare rights that we now see backlash beginning in southern states of denying black people welfare benefits that they just recently became entitled to, what white people had been entitled to for decades, we see now the backlash of kicking black mothers off of welfare roles and a policy instituted of mass removal of black children.

This is why we see the skyrocketing of the foster care population in the United States from the 1960s to 2000. This steady increase doubling of the foster population. Until in, you know, in 2000 you have over half a million children in foster care and black children being the largest group, four times as likely as white children to be placed in foster care.

This is the history. You cannot understand the history of the Child Welfare System in America without taking into account its white supremacist roots. And the motivation the design of the system has always been grounded in white supremacy and racial capitalism, punishing poor people, controlling and punishing black communities, denying black people the rights that white people are entitled to.

You know, all of this is absolutely essential to the development of child welfare policy in the United States. You know, the carceral buildup in the 1990s, you have to look at the entanglement of criminal law enforcement, welfare restructuring, and the Adoption Safe Families Act.

You know, all of these measures in the 1990s passed within a few years of each other. And this is also a big part of where we are today with the simultaneous mushrooming of the police force and emphasis on criminal law enforcement and the War on Drugs all going on in the 1990s, and then the end of the federal entitlement to welfare in 1996, followed by the 1997 Adoption Safe Families Act that addressed the disinvestment in families and the harsh punishment of families in black communities not by putting more resources into black communities. The opposite, taking resources out, denying state assistance to black families, and then the solution being to speed up termination of black mother’s rights to their children so they could be adopted. Again, all of this is a false view because of course, adoption is not the solution to the needs of children and impoverished families, but this is what was presented and that was the goal of the Adoption Safe Families Act, to incentivize termination of parental rights and adoption with no similar incentive to keep families together.

And, and so every step I could go into even greater detail, but every single step of policy change in the United States regarding child welfare has been profoundly shaped by white supremacy and racism and settler colonialism. I mean, I’ve, my work emphasizes the racism of the system, the anti-black racism,

but we could also look at how removal of native children from their families has always been a weapon of war by the US government against native tribes and a form of attempting to destroy tribes and disregard their sovereignty.

[00:27:44] Simon: Yeah, I think that history is incredibly important for, this discussion and, and for understanding this system. And I just wanna alert folks to a blog that Jenna wrote not too long ago that delves into some of this history. We’ll link to that in the show notes, and also you should buy Dorothy’s book as well.

I want to get into something in one second, Dorothy. Kind of teasing out some of those connections you started to make with the criminal legal system and the family policing system. But Jenna, could you talk a bit about some of the racial disparities within New York State in this system?

[00:28:18] Jenna: Absolutely. You know, New York is really illustrating all of the, the problems that Dorothy was just outlining. So, the data in New York state is really stark. Statewide, black families are seven times as likely as white families to be reported to the family regulation system, and then 13 times more likely to be separated by the system.

In New York City, about 80% of the families that are investigated for child maltreatment are either black or Latin a and these groups only make up a little over half of the New York City population, so you know, they’re really disproportionately represented. You can also see when you look at the data that Black families’ overrepresentation in the family regulation system continues to grow as the process progresses.

So, although, you know, the New York City population is roughly 23% black. Black families are the subject of 41% of the abuse and neglect cases that are actually filed in family court. And then roughly half of all of the cases where a judge orders a child to be placed in foster care. So, you know, this just really illustrates what you were saying, Dorothy, about how the biases that have been building off and reinforced over, you know, the centuries in this country continue to play out at every decision-making stage in this process.

And last year actually the New York Times published an internal audit that ACS conducted. ACS, the New York City Agency, that that does family regulation. And in that audit, it revealed that even the agency’s own staff acknowledge that they hold black and white parents to different standards.

So, they assume when they interact with white parents, which happens, you know, disproportionately you know, less of the time, they assume that those white parents are innocent and doing their best. And conversely, they assume that black parents are incompetent and pose risks to their children. I think the study also named that ACS links safety with class and it penalizes poor parents for their economic challenges.

And I’ll just note to put an even finer point on some of the hypocrisy that you were highlighting, Dorothy. this family regulation system will take children out of their homes because their parents don’t have enough resources and put them into foster care, and then the state will actually provide funding to that foster family to raise the child when that funding could have gone to the children’s actual parents and made a huge difference in their lives.

So, all of this is just to say that this racial discrimination and racial disparities are rife here in New York, and that the agency is carrying out this family regulation, are well aware of this. And yet they continue to operate in the same way that they, they have for decades.

[00:31:15] Simon: Yeah. Thank you for that, Jenna. And, and, and again, the differences are hard to imagine them being more stark. And Dorothy, you know, I think the connections between the criminal legal system that you lay out in your work are quite clear.

And, you know, another system that has extreme racial biases and racist underpinnings is the criminal legal system. So, could you lay out a bit of those connections please?

[00:31:39] Dorothy: There are connections between the family policing system and the criminal legal system at every level. So, in terms of concrete operation, caseworkers work hand in hand with police officers to surveil, investigate, and separate families. They’re in many places, they train together, so they’re joint training and task forces to intervene in families.

Caseworkers will often bring police officers along or call them for backup when they investigate families. You can imagine what it’s like to rip a child away from their parents with just the terror that that involves. You know, as a parent myself, I can’t even grasp how horrifying it would be for some state agent to come into my home and take my child away from me.

Not knowing what’s going to happen to my child, or maybe even worse, knowing they’re going to put my child in a dangerous place. And of course, that is a violent act. And often caseworkers will bring an armed police officer into the home to enforce this violent act. Sometimes it can lead to a police killing of a parent.

I, report on this in Torn Apart, you know, I begin Torn Apart with the story of a mother named Vanessa Peoples in Aurora, Colorado, who was at a family picnic and her toddler strayed away from the picnic for a minute. She could see him following behind her cousin and a stranger called the police and refused to

give her son back over to Vanessa and the police officer, when the police officer arrived, the police officer gives her a ticket for child abuse because her child strayed away for a minute in front of her. And then when the caseworker came to her house to investigate, Vanessa didn’t hear right away that they were knocking at the door and the caseworker called police for backup.

And eventually seven police officers came into the home. When Vanessa protested their presence in the home, they hog tied her and carried her out, put her in jail. And you know, as Jenna was saying, the repercussions for families. Her family is worse off now. She can’t get a job as a nurse that she was training for because she’s in the child abuse registry.

She’s having a hard time finding an apartment. So, police help to enforce the violence of family separation. And they also are reporters. They report child abuse and neglect. In some places they can remove children and hold onto ’em without even going to court or reporting it to the Child Protective Services for a certain period of time.

So, they have a lot of power. So, in both reporting and enforcing investigations and child removals, they work hand in hand with caseworkers. Now, caseworkers get the benefit of an armed force backing up their terror. You know, it’s important to understand that usually these investigations don’t come with a warrant.

They just show up. And the reason why they have so much power over families to come into their homes is not because a judge has ordered it. Usually, they haven’t even gone to a judge. It’s because they can threaten to take their children away. And parents are terrified that if they don’t let the caseworkers in their children are gonna be put immediately into foster care.

It’s seen as an admission of guilt if you don’t let caseworkers in. So, their constitutional rights are run over roughshod all the time. Police officers then provide extra terror. But conversely, police now have a way of getting into homes without a warrant. Because they’re now accompanying a child protection investigation.

And so, both the police and the caseworkers have enhanced power. It’s a symbiotic relationship when they work together. So, there’s this practical way in which the criminal legal system and the family policing system and also immigration enforcement, you know, those officers work hand in hand as well.

So, all of these carceral systems are working together. But there’s also a logic to it that I think it’s important to understand. The logic of family policing is the same as the logic of the criminal legal system, and prison system. Which is that the reason for unmet human needs in our society is because of pathological people.

The people who are impoverished, who suffer from all of the fallout of structural inequalities of class and race and gender, it’s their own fault that they haven’t succeeded in America. You know, this is a basic lie of American ideology and the American dream. Is if you haven’t succeeded at the American dream, it’s your fault.

And, even worse, there’s something pathological about you. You’re a criminal, you’re a child abuser. You know, you need state intervention to protect the rest of society from your pathology, and that is the ideology behind mass incarceration. Most people in prison are impoverished. In fact, many of them have been in foster care.

That’s another connection. But the carceral logic of addressing unmet human needs by punishing the people who have those needs, by blaming their unmet needs on them, instead of structural inequality. That ties together, the family policing system, the prison system, criminal law enforcement. They all operate under that carceral logic, whether it’s caging people or taking their children away, locking them up in residential treatment facilities as a foster child, or locking them up in juvenile detention or prison.

And these are the same children. So, here’s a, so another connection I wanna point out is the pathway. You know, I think this is all one Carceral web. They’re all entangled, but their pathways. I, I know, I know there’s been some criticism of the term pathway, but I, I wanna use it here because I think it’s important to understand the direction of the pathway.

The pathway is from the foster system to juvenile detention in prison. And, and I emphasize that because many people understand the blatant statistics that being in foster care is a risk factor for be getting locked up in juvenile detention or prison. But people will say, oh, but it’s because these are troubled children, you know, it’s because they come from troubled homes and so they break the law.

No, it’s the opposite. It’s that the foster system is structured to push children into juvenile detention and prison because of multiple reasons. Part is it puts children into conflicts with other children, with staff, where, unlike most families that will resolve their conflicts without bringing in the police, children in the foster system, conflicts that they are pushed into are far more likely to be handled by calling the police on them.

One of the tragic examples of that is Ma’Khia Bryant in Ohio, who was shot to death by a police officer when she got into a conflict with former foster children, now adults, who’d come to the foster home. And when the police arrived, they shot her in the back. As a result of this conflict, she was put into when she was taken from her mother and her grandmother because of a housing issue.

And so, you know, these children are taken for reasons of poverty and put into situations where there are conflicts that are likely to push them toward encounters with the police and arrest, detention, incarceration. In addition to the way in which the foster system makes it less likely that children will graduate from high school or go to college, that they’re more likely to have PTSD, they’re more likely to be impoverished, and so that also makes them at risk of arrest and incarceration. And so, for all these reasons, I’ll just mention one other is the high rate of children running away from foster placements.

And instead of these systems asking, why are all these children running away? What’s wrong with the placement where they’ve been put that they feel they have to run away? They’d rather live in the street than go back to a foster placement. That’s not how they address it. The systems address it by sending the police after them and locking them up. And if they have been trafficked, you know, sex trafficked, which often happens as well, vulnerable children living in the street then they now are blamed for breaking the law and stigmatized and put into even harsher settings, either residential treatment facilities or juvenile detention. All of this making it more likely they’ll be incarcerated when they leave the foster system, which may be by aging out. So, tens of thousands of children age out of foster care, not having been returned home, and not having been adopted or finding some stable setting for them.

And they age out once they’re no longer in the custody of the state at age 18 or 21. They are usually not given the resources that they need. There’s some federal and state efforts. It’s really too late. You know, I mean, it’s good that there are more resources for these children when they age out than before, but it’s a band aid on all the harm that the system has caused for them.

And I just think there’s something wrong with saying the way to address this is to keep them in a system that’s been harmful for longer. And so, in many cases, they are just booted out of whatever setting they were in, likely a harsh setting, congregate setting, or residential treatment facility that’s prison-like.

Because most black teenagers are not placed in caring foster homes. They’re at very high risk of being in prison-like facilities and they may be given bus fare or dropped off at a Y or homeless shelter without any hope of a college education. They may not have graduated from high school and those children obviously are also at high risk and, in fact, very high likelihood that within a couple years they’ll be jailed or imprisoned.

[00:43:44] Simon: And, Dorothy, if I could just get like 30 seconds from you just about what you think an alternative system could look like?

[00:43:52] Dorothy: Absolutely. Yes. I don’t wanna leave this podcast without saying that, you know, I, hope that your listeners see that the only only response to what I and Jenna have said is to end the system. It cannot be reformed. It is designed to oppress people; it’s designed to harm families. Even the kinds of false services that Jenna and I were talking about that aren’t really services, they’re mandated tasks that actually interfere with struggling family’s ability to care for children.

Even those always have hanging on top of them the threat of child removal. So, this system only operates, it’s not voluntary in any way, shape, or form. I don’t care what they call it because they’re not services. They’re mandated. If you don’t comply, your children can be taken from you. So, that bottom, you know, foundation, that ideological foundation, the way it operates, cannot be reformed. Reforms, as Jenna was pointing out, only enhance the threat, the terror of this system and expand it. Because now people think, oh, it’s good. It’s even, it’s better than we thought. Let’s just bring more families into it. And so, it has to be abolished and that’s the only way to support families. This is an impediment to support. So, it has to be abolished in order to truly support families, in order to truly keep children safe.

And abolition means simultaneously dismantling this system, piece by piece. It’s going to take time because it’s a multi-billion-dollar system that so many people have an investment in financial, ideological, psychological, you know, so it’s, it’s gonna take a lot of work, but we can work on chipping away at it.

But simultaneously we have to provide the concrete resources that families need. Abolition isn’t about abandoning these families that do have unmet needs that are struggling. But the question is, what are the policies and practices, the real community-based efforts that we can build to provide families, what they need, what they say they need voluntarily to support them? And that’s what we need to be doing. And children would be far more safer. Families would thrive far more. this ultimately requires radical social change. It requires movements to abolish prisons, to defund police, to abolish family policing, housing justice, reproductive justice.

All of these movements to come together for the common vision of a society that is truly caring and supportive and meets human needs without caging people and tearing their families apart.

[00:47:06] Simon: So, Jenna, I think we all share the desire to create a society that truly supports children and families. I want to talk to you specifically about some of those pieces of legislation in New York that would do that. I know there are bills we support at both the New York City and the New York State level. That would help make sure parents are aware of their rights when a caseworker comes knocking at their door. Can you talk about that?

[00:47:32] Jenna: Absolutely. So, you know, parents do have rights when it comes to interacting with the family regulation system. You know, the family regulation system represents an arm of the government coming into their personal private lives. And so accordingly, you know, very fundamental rights that we have under the constitution.

Fourth Amendment rights, for instance, apply in these interactions. So, when a caseworker comes to a parent’s home, the parent generally has the right to decline to allow them in, to seek the support of legal counsel before they speak with them and answer questions, and to know, you know, what the allegations are that they’re being accused of.

But you know, in the criminal context, everyone is familiar with your Miranda Rights. Police are required to read people their rights on the spot. In the family regulation context, on the other hand, caseworkers aren’t required to tell parents that they have these rights. And so instead, and along the lines of what Dorothy was talking about earlier, caseworkers will often mislead parents into thinking that they have no choice but to let them in.

And so often you have parents who not sure what their rights are. And faced with this very frightening prospect of having a caseworker accusing them of abusing or neglecting their child, parents will give this caseworker free reign to search all over their house, open their medicine cabinets, open their refrigerators.

Take note, if you know the bedroom is messy or there’s stuff on the floor. They’ll interrogate even their children and ask questions about parents’ personal lives. Caseworkers will even occasionally strip search children to look for evidence of abuse on their bodies. And so, parents will undergo these very invasive and traumatic investigations without knowing that they have this opportunity to say, you know what, no, let’s take a step back.

I’m gonna get access to a lawyer. And you need to go get access to a court order. And just to, you know, really hone in on the scope of this problem. There was reporting earlier this year from ProPublica that found that in New York City caseworkers only go to court to get the court order. So, the equivalent basically of a warrant in the criminal context, they only actually go to court and get that court approval in 0.2% of cases.

So, 99.8% of the time, parents are not asserting their rights and are just letting caseworkers come in, whether that’s voluntarily or under the threat of having police involvement. So, all of that paints a picture of why it’s really critical that caseworkers are required to tell a parent that they have these rights so that they can exercise them.

And as you said, there are bills at both the New York State legislature and the New York City Council that would require caseworkers to inform parents of their rights, both orally and in writing at the first point of contact. On the state level, this bill, you know, had a, a lot of momentum in this past legislative cycle but is still continuing to get pushback from family regulation agencies including ACS. And on the city level, we are hopeful that these bills still have a chance of passing this legislative cycle. So, they’re really urgent and critical. The scope of constitutional violations that are occurring as a result of parents not knowing their rights and government agents taking advantage of that it’s astronomical and, it’s really startling.

[00:51:07] Simon: And another piece that we didn’t get a super good chance to get into it in any detail, one of the issues the, the family regulation system that is quite pernicious is that there’s a huge percentage of these reports of abuse uh, or neglect that are later found to be unfounded.

Can you talk about that problem and then we can touch on the legislation designed to address that.

[00:51:32] Jenna: Absolutely. So, you know, Dorothy mentioned at the very outset of this podcast that the family regulation system is really a massive state infrastructure. And I think people don’t fully understand how many unnecessary reports are getting made every day to the state. So, in New York City, for example, only about 31% of the reports that are accepted actually wind up being quote unquote indicated.

So, meaning that there’s, you know, some evidence that abuse or neglect may have occurred. And in upstate areas that figure is even lower. It’s only 22%. So that means that there are roughly 70 or 80% of these cases where a family is subjected to the terror or the trauma of being reported and investigated by the family regulation system where the allegations are determined to be unfounded, and the family has done nothing wrong.

And so, you know, just another way that the system, it overreaches, and it ensnares so many more people, not that it’s necessary to ensnare any families. I think Dorothy really did a great job of outlining how the system isn’t helpful. But you know, especially in families where the ultimate allegations are determined to be baseless, you’re still subjecting them to real trauma that an investigation entails.

[00:52:59] Simon: And then let’s talk about legislation that would curtail that.

[00:53:04] Jenna: So, New York State does have a proposed legislation that would prohibit one source of disproportionately unfounded reports. So, New York State currently allows people to make reports, anonymously. These are often knowingly false, malicious, and can be used to harass and intimidate parents.

Many of the reports are made by domestic abusers who are trying to, you know, maintain control and continue to harass former partners. So, there is a bill in the New York State legislature that would curtail this practice by prohibiting the state from accepting anonymous reports. It would require callers to leave some identifying information that would be kept confidential, so their identities would still be protected, but there would be some accountability if it is determined that the same person is making, you know, repeated knowingly false and baseless reports.

[00:54:07] Simon: And Dorothy talked at, at length about the connections between the, the criminal system and the family regulation or family policing system. One of the ways actually that we didn’t actually touch on is that when parents are given drug tests after they give birth that can actually have quite severe legal and other repercussions.

And, and these drug tests results are, are often false as well. Can you, Jenna, talk about this problem and then also legislation that we’re supporting that would try to address it?

[00:54:41] Jenna: Absolutely. So, this is a serious problem in New York and in other states, from what I understand, where healthcare providers will often conduct quote unquote secret drug tests on pregnant patients and their newborns. So, they will, without obtaining specific informed consent, oftentimes without the pregnant person’s knowledge, collect a urine sample and test it for a range of drug and alcohol use.

They might also do this on the newborn after the newborn is born. A positive result often is going to be used to report that family to the family regulation system. New York State is clear that positive drug test standing alone is not a sufficient basis to report a family for suspected abuse or neglect, and yet we understand that these reports are made almost routinely.

This is a huge problem, not only because it alerts family regulation authorities to families and these, you know, intimate and critical moments immediately after birth. And as a result, you wind up having caseworkers coming to a person’s hospital bedside and asking them, you know, invasive questions, essentially beginning an investigation into them in the hours after they have just delivered a child.

Often, you’ll hear that hospital workers won’t allow the newborn to actually go home with their parent when the parent is discharged from the hospital, until child protective workers are able to come visit the home or conduct whatever other steps they deem necessary. And this is, you know, really against the sort of medical advice. Bonding between a parent and their newborn is really critical in those first hours.

And so, in addition to the psychological and emotional impact this has on the parents, it’s also not recommended from a developmental standpoint. So, all of this is a super problematic way that families become ensnared with the family regulation system. It’s also problematic from an anti-discrimination perspective.

We understand that hospitals will routinely drug test pregnant patients, and I should say disproportionately black and brown pregnant patients are targeted for this drug testing and reporting despite similar rates of drug use with white communities. And this amounts to sex and pregnancy discrimination.

If a person presented at the hospital but they were not pregnant there would be no sort of family regulation hook or justification for criminalizing them, and I use that term loosely for punishing them for this drug use. So, it all comes down to, you know, seeking to control pregnant people’s bodies and police their behaviors during pregnancy.

And you know, especially in this period after the Dobbs decision, you know, overturned Roe v. Wade, when the criminalization of pregnancy is on the rise all over the country this practice is extremely disturbing, here in a state that is very supportive of abortion access and touts its work protecting and expanding access to abortion, at the same time, the state is sort of allowing this practice to continue of infringing on pregnant people’s bodily autonomy and penalizing them for conduct during pregnancy. So that’s all a very long windup to say that there is legislation pending in the state legislature that would take steps towards addressing this problem.

The bill is called the Informed Consent Act, and it would require that healthcare providers obtain specific informed consent from a pregnant person before conducting either a drug test or screen on them or their newborn. So that, when I say informed, consent includes informing the person of possible consequences of disclosing or testing positive for drug use including family regulation consequences.

So, it’s really critical that people are placed in a position where they can make an informed choice that’s in their best interest and the best interest of their families.

[00:59:08] Simon: And I think that piece is so critical given how much legislators and progressive minded people think of this state as very reproductive freedom forward and protective. But there are these certain instances where that is not the case.

[00:59:22] Jenna: And Simon, if I could just add one thing. Dorothy noted earlier about how mandated reporting requirements, it distorts the relationship between various types of professionals, often those whose role it is to provide support and services to families. And it distorts that relationship from one of trust into one of suspicion because these professionals are required by law to report potential suspected abuse or neglect.

And the same holds true in the reproductive healthcare space. And so, when you have this practice of people being drug tested and reported by their healthcare providers, it really undermines trust between pregnant people and their providers and can deter people from seeking essential prenatal healthcare.

So, you know, not only is this harmful from a family regulation perspective, but it’s also harmful from a public health perspective as it can deter people from seeking the healthcare and if necessary, substance use support that they actually need and that would benefit them.

[01:00:25] Simon: Right. And so, like so much of the family regulation system, it is counterproductive to the aims that it purports to be trying to achieve. Okay. We’ve talked a lot about what I maybe would describe as sort of front-end bills or things that are trying to prevent people from getting ensnared in the family regulation system.

But there’s one bill that I know we support that maybe tries to at, at least mitigate or deal with some the backend consequences of getting ensnared in the system. This is a bill that would help parents maintain bonds with their children even after their child is placed in foster care.

Can you talk about that please?

[01:01:03] Jenna: Yes. So, the Preserving Family Bonds Act is an important measure that would allow children to remain in contact with family after their parents’ rights are terminated. So, one of the most brutal aspects of the family regulation system is this termination of parental rights, which is often equated with a civil death penalty.

It, you know, severs all legal and really practical rights for parents to have contact with their children. In New York, when a parent’s rights are terminated, judges don’t have any discretion to order this post-termination, visitation or contact between the child and their parent. And so, what this bill would do is it would allow judges to order that post-termination, visitation, or contact in cases when it’s in the child’s best interest and subject to numerous sort of procedural safeguards.

This is really critical because I think, as has been made clear on this podcast, most children who experience a termination of parental rights have a close and loving relationship with their parent. And so that termination represents a real trauma for the child. And they go through a grieving process often as though, you know, their parent had died.

Although it can be an ambiguous type of loss. Termination can also, really disconnect children from their cultural histories, their family histories, their community, and even on a more practical level, can cut them off from access to things like family medical history, which can be useful to them later in life.

So, this bill is really, you know, common sense, sort of small step to, to just soften the brutality of this system and allow children and parents some opportunity to remain connected even after parental rights have been terminated.

This system, despite Its name and perhaps despite its public reputation, it is not a benevolent system. It really is a system that polices people and families for socioeconomic factors that are largely outside their control and that punishes them instead of responding by providing meaningful and useful support.

And so, when we think about, you know, ways to combat structural racism, ways to combat policing, and even when we think about issues of reproductive freedom and reproductive justice, I hope that folks will think about family regulation as an essential component of, of challenging a lot of this societal oppression.

[01:03:48] Simon: And I just want to say, we didn’t get a chance to touch on so many things that are in Dorothy’s latest book. There are a lot of really powerful anecdotes, in particular. And she touched on a couple, but there are many more throughout the book.

So, the book is called Torn Apart: how the Child Welfare System Destroys Black Families and How Abolition Can Build A safer world. And with that, Jenna, Dorothy, thank you so much for coming on Rights This Way

[01:04:16] Dorothy: Thanks to both of you. I really appreciate this opportunity to get the word out.

[01:04:21] Jenna: Thank you for having me, Simon. I really enjoyed the conversation.