Thursday, August 10, 2017

Child welfare in America: In a lawless system, the laws are determined by race, class – and fate

Decades ago, when I was writing my book about the child welfare system, Wounded Innocents, a lawyer discussing the nearly unlimited power and discretion of child protective services agencies said: “This is a lawless system.”

I was reminded of that remark as I listened to segments of two programs that aired this week on WNYC, the public radio station in New York City.  Those segments were devoted to some outstanding recent reporting on how the child welfare system really works.

The two programs had much in common of course. Both dealt with the enormous harm traumatic child welfare investigations and needless removal to foster care do to children – overwhelmingly poor children and disproportionately children of color.

But most striking was how both programs featured examples of how nearly identical cases are treated depending on the race and class of the families involved.

An iron within reach of a child

On Tuesday, WNYC’s Brian Lehrer Show spoke to Larissa MacFarquhar, the author of  an outstanding story in the New Yorker. Also on the program: Prof. Martin Guggenheim, co-director of the Family Defense Clinic at New York University School of Law (and president of NCCPR).

Much of the New Yorker story was built around the case of an impoverished African-American woman who left a curling iron in reach of one of her children. The child touched it and was burned. But the mother was afraid to take her to an emergency room because she feared being reported to child protective services and having her children taken away. She wound up reported anyway – and what happened was exactly as she had feared.

That prompted a phone call from someone identified as Katherine from Manhattan.  Here’s what she said:

I’m an upper middle class white woman. I had two children, I now have four. On the first day of preschool I had forgotten to iron a name tag into a raincoat.  I ironed in the name tag; I set the iron up. My son was in the other room. He was two-and-a-half. I walked into the kitchen, ten feet away, and I turned around. He [was holding] the iron. ... He had a severe burn on his thigh.
It never occurred to me that I couldn’t call the doctor, that I couldn’t take him to the hospital. … It really upsets me that the color of my skin and my socioeconomic status makes me not hesitate to get the best care for my child.
Nobody thought I’d be abusing him.

A child wanders out of the house

The day before, on the Leonard Lopate Show, guest host Jonathan Capehart spoke to Stephanie Clifford and Jessica Silver-Greenberg, co-authors of the other recent milestone in journalism about child welfare - the New York Times story about foster care as the new “Jane Crow.”  One of the cases featured in that story dealt with a mother whose children were taken away because a young child had wandered out of her apartment unsupervised. Not only was the child placed in foster care for several days, the mother was jailed.

After the story ran, Silver-Greenberg said, she got an email from an editor at the Times who said something similar had happened to him. One night “one of his daughters woke up and couldn’t find him, or couldn’t see him immediately, and she wandered out in her underwear to a neighbor’s house.” Yes, it was “panic-inducing” at the time, but now it’s just a funny story. The editor told Siver-Greenberg that “This has become family lore.”

But, said Silver-Greenberg, “The population of women we were talking to, they don’t have that luxury. They’re scrutinized to a much greater degree - and penalized.”

The rule of fate

Then Capehart asked a question the reporters couldn’t answer: What does the law say about the age at which you can leave a child unsupervised? They couldn’t answer because no one can. In almost every state the law is silent. Yes, lack of supervision is defined in state laws as “neglect.” But what is “lack of supervision”?

It’s whatever the caseworker who comes to the door says it is. Which means it’s determined largely by race, class and fate.

The arbitrariness, capriciousness and cruelty of all this was explored in this 2003 New York Times story by Nina Bernstein. It illustrated wide discrepancies in how such cases are handled, both by child welfare and the criminal justice system.  As Prof. Guggenheim said: ''It puts all parents at peril in making parental choices, without warning them that certain choices are forbidden.”

I also was quoted in that story. I told the Times that

Although news stories repeatedly say there is 'no firm rule' concerning when a child can be left alone, actually there is one. It's the rule of fate. If something goes wrong, then you are a bad parent and you will be charged. If nothing goes wrong, you won't.

But that isn’t quite right. As the more recent reporting makes clear, what I should have said was: if nothing goes wrong you won’t – if you’re white and middle-class.