I have been thinking a lot lately about James Baldwin’s wise assertion that “People are trapped in history and history is trapped in them.”
History is deeply embedded in the child welfare system. Courts and stakeholders often rely on a family’s history to determine the current level of threat to children. They look at “historical documents:” court orders, prior child protection system (CPS) reports and prior evaluations.
A family’s history, for example, is often the basis for moving straight to termination of parental rights. If a parent has had an involuntary termination of a child and the ‟circumstances” leading to that event have not been resolved, the court may direct a child welfare agency not to provide any efforts to reunify the child. And CPS “histories” often trail families from state to state in databases that are incomplete, vague and, often, wrong even as they play an important role in child removal.
Familial history also figures into policies regarding placement of children with extended family or fictive kin. Department policy typically requires family members to provide their criminal histories if they wish to be considered for placement of children. CPS or criminal history can constitute an automatic disqualification from such a placement.
But the child welfare system has masked, since its inception, the other historical narratives of America — narratives about race, poverty and discrimination. As is reported time and time again, families of color are overrepresented in the child welfare system — these families are disproportionately living in poverty, more likely to be investigated by the state and are subject to higher rates of removal. As Dorothy Roberts asserts in her recent op-ed for The Imprint, America has failed to see how child protective service agencies are an ‟integral part of the U.S. carceral regime” whose ‟origins [lie] in slave patrols…”
Despite the important recognition of this historical dynamic outside of courtrooms and agency buildings, the reverberations are rarely identified or adequately addressed in court orders, agency policy or law.
Similarly, as the COVID-19 pandemic drags on into 2021, I am surprised at the sparse mention of this life-altering reality in my day-to-day work. I have yet to receive a case plan that adequately addresses steps for handling reunification in the midst of a pandemic. We know that case plans should be specifically tailored to the family, but they should also be specifically tailored to the time. In other words, it is not “reasonable” to give a parent a bus pass to facilitate visitation if the bus is no longer running.
In the years to come, as the country grapples with the after effects of the pandemic, which will be disproportionately shouldered by our clients in the child welfare system, documents generated now must clearly lay out the unique struggles of the time. Otherwise we risk this reality being lost to the ages, an erasure for which our clients will undoubtedly pay. Without recognition of the ways in which history shapes our clients’ lives today, be it a pandemic or the fight for racial justice, there is little hope for meaningful and lasting change.
Our understanding of history evolves as we evolve. Our behavior changes over time as a result of cultural shifts and advances in science, technology and medicine. This evolution is critical to child welfare, especially in the context of neglect. What constitutes neglect of a child is necessarily rooted in cultural norms, beliefs and historical preferences. One such example is child welfare’s approach to substance abuse, which has evolved along with an increased tolerance of marijuana use and a societal reframing of drug use as an illness that requires medically sound treatment and therapeutic judicial approaches.
When I first started this work in 2012, I witnessed a termination of parental rights because the mother continued to test positive for marijuana. Since that time, many states have legalized or decriminalized marijuana (including the jurisdiction in which I practice). This is not to say that child welfare always gets it right when it comes to drug use — because it doesn’t — but there are at least attempts to modernize previous approaches to treatment of parents with substance dependency issues.
So how can we achieve a more equitable child welfare system that addresses the historical challenges of our clients? One possible response is to dismantle the entire system and create something new with this historical framework in mind. Another is to promulgate laws that acknowledge and attempt to address historical inequities.
While this is no easy task, there is precedence for how to address a history of marginalization in child welfare — the Indian Child Welfare Act (ICWA), which was passed in 1978 expressly to address the large-scale removal of Indian children from their parents that had been happening for decades. Although ICWA is not infallible, it provides a valuable context for recognizing in law that families also exist in a historical context and that policies and laws are not applied equally to all people.
As we work toward these loftier goals, there also are a few concrete steps we could take right now to ensure that existing laws and policies better account for history. First, all state agencies and child welfare organizations should be at the forefront of advocating for appropriate and significant social welfare supports for families including: housing, child-care, medical care and education, with the ultimate transformative goal of, as Dorothy Roberts put it, “diverting the billions of dollars spent on separating children from their families to … material supports provided directly and non-coercively to parents and other family caregivers and care networks.”
Second, given what we know about the incarceration rate of people of color, and especially Black men, state agencies need to reform their policies regarding criminal background history for relative placement — criminal history should never bar or delay placement of a child with a relative absent egregious circumstances. The same should be true of prior CPS history.
Third, as Vivek Sankaran points out in a recent blog post, we must move away from discretionary legal standards that insulate racial biases in child safety determinations.
Finally, existing data demonstrates that systemic racism exists in many of the institutions that are mandated to report child abuse including police forces, health care organization and educational institutions. Given the historic power and privilege of these entities, child welfare agencies should analyze reports of abuse and neglect with this data in mind and advocate for strong legal representation for parents at all stages of the proceeding including pre-removal.
It is past time for child welfare to deal with history on a grand scale. We need to grapple with where we are and where we are going. After all, it is often said that those who don’t learn from history are bound to repeat it. No one can afford that in 2020.