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.

Brilliant reporting on child welfare in The New Yorker – made possible by open courts

It’s another example of why “sunshine is good for children.”

The late Judge Judith Kaye opened New York's
family courts to the press and the public

On the heels of the outstanding story in The New York Times about foster care as the new “Jane Crow” comes another brilliant deep dive into child welfare in New York City – this time from The New Yorker. (Once again, as you read it, please keep in mind that in most places, the child welfare system is worse, often far worse, than in New York City.)

Almost as striking as the story itself is why reporter Larissa MacFahrquhar wrote it. Here’s how she explained it in the New Yorker’s daily email newsletter:

How do you decide whether to take children from their parents? For the most part, we read about child-protective services only when they fail spectacularly—when a child is killed at home. The press then excoriates the usual suspects—the caseworker (How could she miss signs that now seem so obvious?), child protection (How could they train their workers so poorly?), and the city (Does it care so little about children that it won’t pay for enough caseworkers to protect them?). 

Because of this, most of the pressure on child protection is in one direction—in favor of removal. But it’s no small thing to take a child from his family. It seems strange to me that removal has come to seem the safe and cautious thing to do, and, since the press has played a large part in promoting this idea, I thought it might be useful to have a journalistic account of both sides of the story.

I sat in on the Bronx Family Court for several months and watched judges grapple with this awful decision. One mother had been coming to family court for eight years, since her young daughter had burned herself on a curling iron. For much of that time, her children had been in foster care. The foster-care agency believed that the foster parents should adopt the children. Child protection was nervous about their safety if they returned home but also knew that children often fared badly in foster care. The mother’s lawyer said that the mother loved the children and that her mistakes didn’t justify keeping them apart.

Everyone was arguing for the best interests of the children. The mother sat, mostly silent, as the lawyers made their cases

Several things stand out about this story, but it may be most notable for how well it answers one question.  Research has told us over and over again that in typical cases children placed in foster care fare worse even than comparably-maltreated children left in their own homes.

As the reader is placed in the position of the mother in this case, forced to watch helplessly as the children deteriorate in foster care, we understand why this happens.

Something else that stands out about this story: In most states, it would have been impossible to do it. That’s because it relies so heavily on the reporter’s ability to see the process for herself, by spending months in what, in New York, is known as Family Court.

In most states these hearings are closed. That’s not to protect children, it’s to protect almost everyone except the children – CPS agencies that do terrible things to families and lawyers and judges who either can’t or won’t do their jobs.

In 2001, another superb journalist, former Pittsburgh Post-Gazette reporter Barbara White Stack examined this issue in what is still the definitive series on the topic, Open Justice. She found that none of the excuses for closing hearings held up to scrutiny and all over the country onetime opponents became supporters. (We summarize some of the key findings of that series, and update some of the data in NCCPR’s Due Process Agenda.)

So along with MacFahrquhar, the courageous mother at the center of the story and some great lawyers from the Bronx Defenders, someone else deserves credit for this particular piece of outstanding journalism: the late Judge Judith Kaye.

She’s the one who ordered these courts opened in New York, when she was chief judge of the state’s highest court, the Court of Appeals.  As she said at the time: “Sunshine is good for children.”