In a dramatic departure from its decades-long focus, one of the nation’s most prominent legal advocacy groups for children embraced a new agenda this week, pledging to disrupt “institutional racism and its effects on the child welfare system.”
The New York City-based Children’s Rights describes its expanded strategy in a report released this week, stating that children’s advocates should join them in pursuing litigation and policies to expand due process rights for parents at risk of losing their children to foster care, and work to end “the unnecessary surveillance, investigation, and separation of Black families.”
“We recognize that in the past our overarching belief that no child should grow up in the foster care system blinded us to the ways in which our legal cases, and the reforms they delivered, did not always support the preservation of Black families,” Executive Director Sandy Santana wrote on the first page of the 46-page plan.
Under the leadership of its founder and former executive director Marcia Lowry, Children’s Rights had long been known for filing headline-grabbing, multimillion dollar class action lawsuits against cities and states over their inadequate care of foster youth.
The legal actions are considered pioneering by some child welfare leaders, advocates and philanthropists, for their success prompting states and counties to spend more to remedy the mistreatment of children in foster care.
But the settlements in those cases come with costly, yearslong court monitoring and legal mandates which critics say block other reform efforts — particularly those promoting family preservation and reunification of parents and children in foster care.
The 26-year-old organization’s new focus announced this week marks a major shift. While it “will not stop fighting to protect the rights of children and families already in the system,” — evidenced by a suit filed last week in Alabama on behalf of youth with mental disabilities in institutions — Children’s Rights will expand its work to also include combating unnecessary investigations and family separations that disproportionately affect families of color and the poor.
“The unjust separation of Black children from their families causes lasting harm to their development and well-being and is part of a broader legacy of institutional racism that shapes our society,” Shereen White, senior staff attorney at Children’s Rights, stated in a press release. White went on to state that too often poverty and economic injustice is conflated with child abuse and neglect, “leading to extreme scrutiny of Black parents and the disproportionate removal of Black children from their homes.”
Families in crisis need support not punishment, she said, adding that “ending racism in child welfare is among the most urgent civil rights battles of our time.”
Children’s Rights’ densely researched plan with 295 footnotes — co-authored by White, Chief Program Officer Ira Lustbader and six other attorneys and analysts — calls on child advocates to pursue fundamental reforms across the country including:
- universal right to an attorney for parents and children under the scrutiny of the child welfare system;
- aggressive constitutional litigation against wrongful or discriminatory family separations under the First and Fourteenth amendments;
- a narrowed definition of child maltreatment;
- barring of anonymous reporting of child maltreatment;
- strengthening requirements for child welfare agencies to help stabilize and preserve families before making a foster care placement
All told, the new platform put forth by the Children’s Rights group is significant, said Ira Burnim, legal director of the Bazelon Center for Mental Health Law. Earlier in his career, Burnim’s team pursued a landmark class-action suit against the Alabama foster care system, part of which challenged the high rate of foster care placements for children with disabilities.
“They are the primary litigators in this area,” Burnim said of Children’s Rights, “and their voices will be heard.”
The plan authored by Children’s Rights comes a year into the nationwide reckoning over racism prompted by the murder of George Floyd by a white police officer in Minnesota. The massive, months-long street protests that followed Floyd’s killing prompted public and private child welfare agencies across the country to proclaim solidarity with Black families whose children, along with Native American children, are more likely to be taken into foster care than those in any other racial groups.
Leaders at Children’s Rights say they were inspired to push for systemic change in the child welfare system following years of internal conversation and a small but growing movement of advocates nationally.
Activists and pro bono attorneys who have argued that children are too often removed from their parents simply because they are poor or cannot afford treatment for mental health care or substance abuse, welcomed the shift, calling it long overdue.
“We need unlikely champions to step into this space, I appreciate their entry into this system,” said Vivek Sankaran, director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School. “In this world, conversations about race and equity have been normalized in a good way, everyone feels compelled to speak out and that’s a good first step.”
In the past, the influential firm and its 24 legal and policy staff have been mainly focused on improving the quality of foster care — rather than on preventing foster care placements in the first place, or fighting racial discrimination in the system.
White, who joined Children’s Rights two years ago after a career representing court-involved youth in Philadelphia, said in an interview it was long past time for the organization to look more closely at the system’s “front end.” She said her organization has heard the voices of parent advocates nationwide who have long decried unnecessary family separations, and their deep and lasting harm on children.
Now, White said, her group will focus on “highlighting the trauma of separation and removal — what it means to break up the attachments a child has with the only community they know.”
White said she was drawn to this work after a stint living in Canada, as she reflected on her time representing children in Philadelphia’s family courts, where she mostly represented Black children, including those being permanently severed legally from their parents in the most serious cases of alleged maltreatment.
She said she could never do that work again.
“I once thought ‘Wow I could never terminate somebody's parental rights,’ and then I moved through that system,” White said. What she learned from experience, she added, was that “kids can end up in a far more dangerous situation — and everybody should be thinking about that.”
Sankaran and other advocates for family preservation who reviewed the Children’s Rights’ plan said they remained cautious about the group’s abrupt expansion beyond 20 years of lawsuits on behalf of foster youth, with little attention to their parents and families’ rights.
"Is this a sincere effort to change,” asked longtime child welfare system critic Richard Wexler, executive director of the National Coalition for Child Protection Reform, “or just a callous ploy to raise money?”
White’s response to that: “The answer will live in our work, whether it’s the recommendations we lay out in our report, or the actions we take in the future."
*Update Saturday, May 29, 2021: This story has been updated to clarify that Children's Rights will continue pursuing litigation on behalf of youth in out-of-home care, in addition to its focus expanding to include litigation and policy advocacy related to the earlier stages of child welfare system involvement.