Can Racial Bias Be Corrected in the Child Welfare System?

EDITOR’S NOTE: This is Part Two of a two-part series in the “Our Kids” reporting project. Our Kids is a project of the Broke in Philly reporting collaborative that examines the challenges and opportunities facing Philadelphia’s foster care system. Part One of the series, “In the Child Welfare System, Black Families Should Matter,” looks into Philadelphia mom Kyeesha Lamb’s encounters with the child welfare system, examines the disheartening statistics, both in Philadelphia and nationally, that show how Black families are disproportionately subjected to child welfare investigations and removals, and reports on scholars and activists calling for a reimagining of the entire system.

Earlier this year, Kyeesha Lamb called the police on Philadelphia’s Department of Human Services, thinking that their effort to take and keep her children might meet the legal definition of kidnapping.

The previous month, DHS had taken both of Lamb’s children, suspecting that one of them had been the victim of child abuse. (To read more of Lamb’s story, See Part One, “In the Child Welfare System, Black Families Should Matter.”) A second set of x-rays later revealed that a suspected broken leg was in fact not broken at all. But DHS, which had Lamb’s children already in their custody for three weeks, was determined not to return them to Lamb until a hearing could be held. The agency now alleged that she had been a victim of domestic abuse.

How can they do this? Lamb wondered. How can they take my children over one specific allegation and then, once I’m cleared, keep them over a suspicion of something else? Something they hadn’t even proven?

Lamb had called the police with trepidation, unsure of how the call would be received. The officer she reached was polite, if unhelpful.

“You’ll just have to go through the child welfare agency’s process,” the officer said.

Lamb hung up, despondent. What felt to her like child abduction, is often how the child welfare system operates.

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She wondered how this could happen to her; she thought that her race might be playing a part. In the wake of last summer’s marches demanding racial justice, she wasn’t alone in seeing the role that bias plays in various facets of American life. Scholars and activists are noting the insidious forms that systemic racism takes, as well as the short- and long-term trauma that investigations and removals cause children and families across the child welfare system. Two county agencies, in New York and Michigan, have tried new approaches to correct for the disproportionate presence of Black and Brown families in the system. The results show promise, even as they raise questions about what more can be done.

For Low-Income Americans, a Long History of Child Removal

Not far from Lamb’s house, Marcía Hopkins had watched the protests of police violence unfold with a sense of recognition. Hopkins, a social worker and senior manager with the nonprofit Juvenile Law Center, is one of many child welfare reformers and abolitionists who view police murders of people such as George Floyd and Breonna Taylor, and the workings of the modern child welfare system, as arising from the same historical and modern-day forces.

“We know that there is a huge racial component of the child welfare system and policing,” says Hopkins. “And I think people intentionally forget the history.”

Historically, the modern-day police force originated in the American South, from racist roots. Patrols that organized to find and recapture escaped slaves evolved to take on additional responsibilities. The child welfare system was born from similar original sins. “Orphan trains” operated for 50 years until about 1929, transporting children from economically struggling families — many of whom still had living parents — to wealthier homes, where they often worked as servants, or out West, where they worked on settler farms. In the post-slavery period, Black youth were often sent North, away from their families, to accepting white families to live as indentured servants; they were referred to as “freedom’s children.”

Historian Mary Niall Mitchell writes, “The irony of sending former slave children hundreds of miles away to fill the needs of northern employers for dishwashers and household servants … seems to have escaped some of their sponsors almost entirely.”

Even today, Hopkins points out, local agencies can tap greater federal resources to compensate for the costs of caring for children if those kids come from economically struggling families. The federal government also offers greater financial aid for states to separate families and put kids in foster care than it does to fund programs that keep families together, creating a pair of perverse incentives for cash-strapped states to focus on families experiencing economic distress and to opt for separations.

While law enforcement and foster care do appear to have unfolded in this country on parallel tracks, critics suggest that the child welfare system might actually hold more power, investigating and punishing not just crime but family behavior. Clearly, this is what Lamb faced as issues such as co-sleeping became a point of judgment. In this respect, University of Pennsylvania family law scholar Dorothy Roberts has noted, child social workers act as an intrusive arm of law enforcement.

Child Protective Services needs only a tip from the public, even an anonymous one, to knock on a family’s door. “We have received a report that your child(ren) is a victim of abuse and neglect,” they might say. “Will you open the door so I can come in and investigate?”

If the response is “no,” they will warn that their next step is to come back with a police escort — a rapid escalation that carries an implicit warning: This allegation against you appears more credible if you deny us entry.

If caseworkers arrive at night, as they often do, and the allegations reference physical abuse, they can tell parents to wake up their children. Sleepy-eyed, confused, the kids might then be asked to remove their clothes for a stranger — a strip search without a warrant — so they can be inspected for signs of bruises or other injuries. Some reasonable people might want social workers to hold this kind of power, to prevent kids from being hurt. But at this stage, even if no sign of abuse is found, or if the complaint was about child neglect, the worker can indicate they need to inspect the home.

The caseworker takes inventory of the amount of food, and how healthy it is. (Why no milk?) Notes the leaks, broken windows, rickety banisters and general quality of housekeeping. Are the kitchen counters clean? The ceilings and floors? Like housing inspectors, they turn on faucets and ovens to see if they work. In winter and summer, they note the temperature, to make sure the house is safe and comfortable. If a parent admits they just smoked a blunt (Do you have a drug problem?) or reacts to the surprise intrusion and interrogation with anger (Do you have an anger problem?), the caseworker might count this against them. And as the visit ends, the worker can, at their discretion, seek an emergency court order to take the children on the spot.

Child removal

The “Family Regulation” System

Some child welfare scholars, including Roberts and writer Emma Peyton Williams, look at the power caseworkers wield and argue that the “child welfare system” should be renamed. The suggested alternative, the “Family Regulation System,” they argue, is more accurate and reflects statistics that show time spent in foster care often yields not “child welfare” but long-term suffering — including high rates of trauma, adult homelessness and poverty, and mental and physical health issues related to stress. Family regulation also represents the full range of what caseworkers do — not simply (and not overwhelmingly) abuse investigations, but whether families under scrutiny meet societal standards for housing, nutrition and supervision.

“It’s a system in which families are being held up against a white middle-class standard of how families are supposed to operate,” says Peyton Williams, “and it’s Black families that are disproportionately reported to this system and held up to this standard,” even when white families engage in the same behaviors.

In Philadelphia, practicing family law attorneys — who asked to speak anonymously for fear of backlash from DHS or the court system — acknowledge seeing questionable child removals on a regular basis. Factors directly related to economic hardship, such as transience — moving from house to house — or the nebulously defined “poor judgment” are sometimes given as reasons for removal. (One family attorney says that a family was separated because a caseworker felt no child could be safe living in a rooming house.) And parents who leave children, ages 7 to 9 or older, home alone for a few hours for work or in an emergency can be charged with “abandonment.”

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