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#BlackFamiliesMatter | The Regulatory Review


Federal and state governments should prioritize funding preventative services rather than adopting reactive child removal policies.

The recent reckoning over racial injustice, kindled by the hyper-criminalization of and excessive use of force against Black people, requires a closer examination of the “child welfare” system’s excessive regulation of families.

The war on drugs, undue policing, and reliance on a criminal punishment system to solve social problems have fractured communities of color. Efforts to control Black lives proceed on multiple fronts that intersect and compound the assault on Black communities. Like mass incarceration, the state’s role in the child welfare system—what scholars have referred to as the “family regulation system”—has expanded over the last several decades. Similar to the carceral state, the child welfare system disproportionately impacts and splinters Black families.

U.S. Department of Health and Human Services statistics reveal that more than 400,000 children live in foster care each year, more than half of whom have been in foster care for at least a year. Fewer than half of the children who exit foster care are reunited with a parent. The termination of parental rights continues to increase in frequency, resulting in 71,335 children living in foster care in 2019 whose parents have had their parental rights terminated. From 2008 to 2018, the number of children adopted or placed in guardianships increased, while the number of children reunited with their parents decreased.

Continued reliance on foster care is striking, given its significant negative impacts on children—including poorer health as well as higher rates of experiencing teen birth, homelessness, mental health concerns, and substance abuse.

Black children are disproportionately represented in these figures. They spend more time in foster care, are less likely to be reunited with families, and have worse outcomes. Involvement with the child welfare system carries significant collateral consequences for Black families, including the pain of separation and the transgenerational trauma of being racially profiled.

The majority of children enter the child welfare system due to reports of “neglect,” which can reflect concerns related to conditions of poverty, substance abuse, parental incarceration, and “caretaker inability to cope.” Data show that parents experiencing low wages, unemployment, housing instability, food insecurity, mental health issues, and addiction are most at risk of social services’ attention.

The subjectivity of assessing “neglect” permits state actors to make decisions based in part on racial bias. The child welfare system is not immune from institutional and structural racism, and implicit biases continue to influence the decisions of individuals who provide social services to children and families. Current practices cannot be divorced from the historical disrespect for families of color, and the resulting disparities in how private and state actors treat these families cannot be divorced from the individual and generational impact on communities of color. The racial bias that led to the United States’ carceral state propels stereotypes of Black dangerousness, anger, and incompetence in child welfare decision-making.

Regulations relating to child “protection” are complicated and difficult to navigate. Yet, parents have no federal constitutional right to legal counsel in parental right termination proceedings.

In abuse, neglect, and dependency proceedings, 38 states provide parents with a categorical right to counsel, but in the remaining states, access to a lawyer is discretionary or based on a set of qualifying conditions. Even if parents are provided legal counsel during formal adjudications, they must often manage the system’s early stages alone. Parents often do not understand their rights and may mistakenly conflate the state’s focus on “child welfare” with preserving family integrity.

Furthermore, the child welfare system can treat parents as adversaries. States permit interpreting parental resistance or inability to comply with “services” as indicators of a lack of parental “fitness.”

These factors, combined with the low burden of proof required to separate parents and children in family court, have helped turn the child welfare system into a “foster care industrial complex” that acts as a reinforcing feedback loop and a continued means of surveilling families.

This racialized regulation of families is a result of federal and state regulatory and funding policies. Through provisions of the Social Security Act—specifically, Title IV-B and Title IV-E—the federal government funnels money to states to promote “child welfare,” but, until recently, the government restricted the use of such funds to support out-of-home care. The Adoption and Safe Families Act of 1997 (ASFA), as well as regulations enacted pursuant to the Act, have exacerbated family disruption by imposing a 15-month “clock” on foster care children and creating financial incentives for adoptions.

Although the ASFA requires state agencies to use reasonable efforts to reunite families, it permits conditioning reunification on parental compliance with various other mandates. The imposed expectations, such as obtaining steady housing and becoming substance free, can be onerous for parents to meet within the allotted time frame and can result in the termination of parental rights.

Recent changes to the federal funding scheme for child welfare represent a shift in thinking about family integrity. The Family First Prevention Services Act of 2018 (FFPSA) redirects child welfare funding from primarily relying on foster care to removal prevention. The FFPSA allows federal funds—which previously were used only for foster care—to fund parent skill-based programs, mental health services, and substance abuse prevention and treatment programs, although parents can only claim these funds for up to a year. The FFPSA also allows states to claim federal funds to pay for half of parents’ attorneys’ costs in child welfare legal proceedings.

The shift in federal funding to help stabilize at-risk families could be a step in the right direction. By time-limiting the use of funds, however, the FFPSA will not provide for the necessary degree of transformation. A 2020 executive order on “Strengthening the Child Welfare System for America’s Children” and a corresponding directive from the Administration for Children and Families may only compound these limitations. According to the Administration for Children and Families, the executive order seeks to expand federal oversight of the child welfare system by strengthening “assessments of critical requirements, including reasonable efforts to prevent removal” and “filing petitions for termination of parental rights … within statutory timelines.”

Although providing funding for parents’ legal counsel may lead to some improvements, this policy does not do enough to support families and parents in need.

Federal funding, after all, is only available for parents of Title IV-E eligible children and may cover only half the costs of hiring an attorney. Furthermore, the FFPSA does not mandate or require funding parents’ lawyers, and instead merely allows for state agencies to claim such funding. Although research suggests that legal representation for parents can increase reunification rates, adding legal counsel reinforces the adversarial nature of the welfare adjudication process. Most importantly, providing funding for parents’ lawyers does not fundamentally alter a system of coercive intervention in families or affect the rate of children’s entry into the foster care system.

The FFPSA addresses families in need—but only after those families have become entangled with the state. This crisis-intervention approach continues to set unrealistic goals and timetables for family recovery. Instead, at-risk families need earlier access to preventative programs such as mental health services, in-home parenting skills services, and substance abuse prevention services.

Furthermore, the FFPSA does little to counter the systemic problems plaguing families, including decades of racial zoning, redlining, and restrictive covenants, as well as the underfunding of and underinvesting in schools and childcare, and the collateral consequences of convictions that negatively impact parental rights, housing, and employment opportunities.

The FFPSA provides a band-aid fix that does not do enough to address what sociologists Kristin Perkins and Robert Sampson call “compounded deprivation,” or mutually enforcing deprivations of poverty, joblessness, housing insecurity, poor health, underperforming schools, family instability, institutional disinvestment, and criminal legal sanctions associated with growing up Black in America.

Surveilling and separating Black families does not help children. Supporting Black children instead requires proactively building thriving neighborhoods and adopting collaborative, trauma-informed child welfare practices to prevent breaking up families in the first place.

Deseriee A. Kennedy is the Associate Dean of Diversity and Inclusion and professor of law, Touro College Jacob D. Fuchsberg Law Center.

This essay is part of a series entitled Racism, Regulation, and the Administrative State.



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