“I felt that your judgment was wrong. I felt like you have no idea what I’ve been through and it’s also my job to tell you. I just feel it’s different, but you have a black cape and I am a Black mother.”

– A Black mother, to the white male judge who took away her children.

Introduction ¹

In many liberal circles, it is no longer considered radical to acknowledge the connections between mass incarceration and chattel slavery – or to call for abolition. ² Thanks to the hard work of Black women and popular books, documentaries, and articles on the topic, more and more people in the United States are coming to understand the government’s continuing role in institutionalizing Black bodies for profit and are rejecting reforms that cede more power into the carceral system. ³

Less frequently discussed, and less well understood, are the connections between the foster care system and the systems of oppression that have historically impacted Black people in the United States. ⁴ There are no popular documentaries about how violent family separation, toxic stereotypes about Black maternal unfitness, and financial incentives for dismantling Black families are shared features of chattel slavery and the modern foster care system. Nor is there the same degree of media scrutiny of the disproportionate percentage of Black families controlled through the foster care system as there is of the disproportionate control of Black bodies through the criminal legal system. Nor is there political discourse on what it would mean to abolish the foster care system.

Like the criminal legal system, the foster system overwhelmingly targets Black people. In 2005, Black children made up nearly a third of children in the foster care system, but less than 16 per cent of the total population. ⁵ In 2008, Black children were close to 57 per cent of youth in the New York foster care system, but only 27 per cent of the total population. In 2016, Black families were 6.3 times more likely than white families to be investigated by child welfare authorities, and nationally Black children are 2.4 times more likely to experience termination of parental rights than white children. ⁶ Instead of critically examining these stark racial disparities, many normalize and justify the foster care system and its current practices as necessary to save children from “bad mothers” who violently mistreat their children. ⁷ Yet narratives about bad mothers in the foster care system are as false – and as anti-Black – as narratives about “violent criminals” in prisons. Black women are not mistreating their children at higher rates than white mothers, ⁸ just like Black people are not participating in violent or criminalized activities at higher rates than white people. Instead, as is the case with policing and criminalization, Black families are more likely to be surveilled, more likely to come into contact with individuals and institutions that will report them to child protective services, more likely to be investigated, more likely to be adjudicated as abusive and neglectful, less likely to receive supportive services, and more likely to experience temporary and permanent family separation. ⁹

Additionally, the criminal legal and foster systems thrive on harshly policing minor offenses that are often more related to poverty than to moral failings. For example, most parents of children in the foster system ¹⁰ are not charged with abuse, just like most people caught up in the criminal legal system are not charged with violent felonies. ¹¹ Both systems justify racist practices as “preventative” public safety measures, whether “stop and frisk” in the criminal system or “court-ordered supervision” and preventative services in the foster system. ¹² Both systems have captivated the public’s trust under the guise of protection and safety while amassing Black bodies at disproportionate rates and perpetuating public perceptions of Black inferiority. ¹³

However, unlike the criminal legal system, the foster system is often excused from rigorous critique, in part because it is framed as helpful, supportive, and well-intentioned rather than punitive and retributive. Yet it is incumbent on society to interrogate all systems that disproportionately impact Black people, even those that supposedly protect us. As long-time activist Joyce McMillan says, “Do people really think that somehow the child welfare system targets Black people but targets them in a good way?” ¹⁴ If we can agree that implicit bias and racism are at least part of why our society is more likely to shoot a Black person, call the police on Black people, or profile a Black body, why do we believe that there are more noble reasons for the disproportionate reporting of Black mothers and removal of Black children? The reality is that both the criminal legal and the foster systems are rooted in deeply violent historical narratives about Black bodies that do more to promote punishment than safety.

It is especially important to critique the foster system when the individuals it claims to help explicitly characterize it as harm. In my nine years of representing parents, I have almost never heard my clients use words like “support,” “assistance,” or “rehabilitation” to describe their experiences with the foster system. Mothers and activists like Dinah Ortiz-Adames consistently denounce it. ¹⁵ Within my own family, I have experienced it break down rather than build up bonds. Even the children who are supposed to be served by this system decry its effectiveness. ¹⁶

So why has there been a delay to interrogate the carceral roots of the foster system? I believe it is, in part, due to our comfort in blaming Black women for structural inequities and a historical willingness to separate Black children from their mothers. Groundbreaking scholars such as Dorothy Roberts, Khiara Bridges, Tina Lee, and Peggy Cooper Davis detail the harm that Black mothers experience in the child welfare system and provide clear analyses of how the child welfare system regulates and punishes them. ¹⁷ In this article, I build on their analysis that the foster system (1) inflicts harm on Black mothers, children, and families in ways that mimic historical legacies of oppression; and (2) entraps and ensnares Black mothers in a cycle of poverty while financially incentivizing the dissolution of their families. I conclude with one recommendation: to end the systematic policing and punishment of families, we must engage in the praxis of transformative justice and dismantle the foster system. To those who view this charge as an acquiescence or acceptance of real harm – sexual and physical violence, etc. – it is not. Patrisse Cullors reminds us that “abolition calls on us not only to destabilize, deconstruct, and demolish oppressive systems, institutions, and practices, but also to repair histories of harm across the board.” ¹⁸ We must envision a world where families are safe not because we have threatened, punished, or policed them, but because we have built up community, prioritized equitable distribution of material resources, and regarded families and neighbors as the first response to trauma. We cannot do this within a system that absorbs billions of dollars to promote sexist, anti-Black, capitalist, and other forms of marginalization. We will only be able to do it when we unearth the carceral roots of the system and create space for actual change to thrive.

The Foster System Is Rooted in Oppression, Not Child Protection

In “On What Well Meaning White People Need to Know about Race,” Bryan Stevenson says that “the worst part of slavery was this narrative that we created about Black people – this idea that Black people aren’t fully human, that they are three-fifths human, that they are not capable, that they are not evolved. That ideology, which set up white supremacy in America, was the most poisonous and destructive consequence of two centuries of slavery.” ¹⁹ Stevenson makes a compelling argument about the importance of interrogating the constructs of slavery and how slavery led to mass incarceration. But what about Black women? How did these ideologies pave the way for our current disciplinary welfare policies and family separation tactics?

Since we were stolen from Africa, there has been a persistent narrative about Black maternal unfitness, created by white colonizers and perpetuated by individuals and institutions, that dehumanizes our motherhood and simultaneously extracts our children and enormous economic profit from us. ²⁰ Black women were brought to America with no claim to our children, reproduction, or bodies. ²¹ White men, instead, took an in future interest in our children before they were even conceived. ²² Anti-miscegenation laws reinforced our inferiority. High rates of infant mortality arising from conditions under which we labored, lived, and gave birth to and cared for our children were blamed on an inherent inability and lack of desire to care for our children, which in turn was used to justify selling them away from us for profit. The system of chattel slavery legitimized systemic rape of Black women for profit while simultaneously framing us as inherently sexually predatory and depraved. ²³ This two-century history of subordination, violence, and blame, specifically targeting Black women’s reproduction and families, cannot be divorced from the normalization of accusing Black mothers for any and all harms to their children, including those created by the conditions under which Black women and families live. It cannot be divorced from the separation of Black mothers from their children that weaves itself seamlessly in our current child welfare system – one of the largest systems of maternal control, and one that continues to disproportionately judge Black mothers and take their children from them.

From its inception, the foster system has been more about adherence to white social norms than child protection. It was created “to socialize people at the bottom of race, class, and gender hierarchies to hold the correct values and have the correct kinds of families” and was designed to regulate Black and non-white immigrant populations seen as “troublesome.” ²⁴ Today, it continues to “reinforce and recreate racial stereotypes” and promote the surveillance, supervision, and social control of Black mothers and their families over support. ²⁵ I submit that this policing takes similar forms and promotes similar interests as those that regulated Black motherhood during chattel slavery and its aftermath.

A century and a half after the formal end of chattel slavery in the United States, the state continues to assert an interest in Black women’s future children through provisions that permit the state to seize a child at birth if the family court has previously forcibly permanently terminated a mother’s rights to a child. ²⁶ Put another way, if the court deems a mother “unfit” ²⁷ then, for the next five years, the foster system can automatically remove any child she might have at birth, with no obligation to plan with her. The idea is that she is presumed unfit not only to parent one child, but her future children as well, and therefore there is no obligation to provide treatment or address the erasure of the welfare state that places so many Black mothers in permanent states of poverty. While there are instances in which the legal determination of “unfit” could reflect an actual harm inflicted on a child, I would not submit that the thrust of the law is focused on child protection. That is because this provision is only implemented when the mother seeks to fight her trial, i.e., fight for her motherhood, if she enters into a “plea” arrangement and “voluntarily” gives her child to the state, she and her future children are not subject to this same ban. I would argue that this suggests that this law is more interested in controlling the mother’s decision, severing the child’s bond to the mother, and overseeing reproduction than it is in child safety.

This law, and others like it, were strengthened with the 1997 passage of the Adoption and Safe Families Act, when lawmakers were consumed by war-on-drugs propaganda that promoted racialized tropes of “crack mothers” and nearly half the population of children and families in the foster system were Black. ²⁸ It is my belief that passage and enforcement of such a law, claiming a right, in a population of predominantly Black people, to a mother’s child before birth and before she has even attempted to parent, would not be possible were it not for this country’s long history of asserting such a right to Black mothers’ children. It is also just one example of the many laws and policies that preference a governmental interest in Black women’s reproduction over Black family and that form the womb-to-foster-care pipeline, the “practice of the current child protection system that push[es] impoverished newborns, especially babies born to system-involved families, who are predominantly low income and of color, out of the womb and into the foster care system.” ²⁹

After childbirth, low-income Black mothers battle for their families and remain susceptible to family dissolution. Stereotypes of Black women as aggressive, animalistic “jezebels” promoted in service of chattel slavery and white supremacy continue to reduce our natural emotions to “anger” and criminalize our bodies based on stereotypes of hypersexuality. ³⁰ These perceptions make us more susceptible to bias, more likely to be deemed maternally unfit, and therefore more likely to be policed by child protective services. For low-income Black women, threats to our families are no longer visible on an auction block. Instead, they appear in the words and judgments of the attorneys, judges, and caseworkers who constantly remind us, now as during slavery, that the consequence of disobedience, anger, and Blackness is the permanent loss of our families. ³¹

As an attorney, I often reflect on my relationship to this history as I advise other Black mothers to comply with court orders that are deeply paternalistic, racist, and classist. I wonder if judges recognize their relationship to slavery when they speak to the droves of Black mothers who are forced into their courthouse. I question if they hold any insight into the power they wield, which is steeped in the history of this country. How are they so comfortable yelling at Black mothers, negotiating babies for a parenting class, rendering families homeless because of missed therapy appointments, or using children as a “carrot” to lure Black mothers into drug treatment or out of domestic violence relationships? How can they understand, let alone judge, the extreme stress and emotional toll of fighting for your babies in a country that rejects you? How can they ever understand one of the Blackest emotions: fearing for the survival of your children and family? How can they force Black mothers to engage in a host of programs aimed at modifying parental behavior, when the root causes of many of the challenges Black mothers and family face are structural inequity, racism, and poverty?

They can do this because the system is not actually designed to support families, but rather to control and regulate low income families. It thrives on theories of inferiority that reinforce cycles of punishment and control, and historically and by design feeds off of the oppression of Black motherhood.

Financial Incentives for Black Family Separation

In addition to serving as a site of the continued regulation, punishment, and pathologization of Black motherhood, the foster system, much like the prison system, financially incentivizes the separation of Black families. Moreover, it conditions distribution of material resources for Black children on the elimination of poor Black mothers, while ensuring that mere contact with child protective services traps Black women in a cycle of poverty.

In just one illustrative example, a colleague of mine requested the history of payments to a foster parent residing in New York State, who, over the course of two years, was paid $152,618.30, tax-exempt, by the foster-care agency. This total did not include reimbursement for a babysitter to watch the children, wrap-around in-home services, summer programming, after-school support and tutoring, and carfare to take the children to and from appointments, all of which were also paid for by the foster care agency. If our client had been allowed to keep her child, she would have received $926 ³² in total benefits per month, with $252 of that representing actual cash assistance for raising her child, totaling $22,224.00 over the same time span. ³³ Unlike the foster parent, any cash assistance the mother received would not be in addition to her salary, but in lieu of employment.

In other words, the state would have offered a mother 15 per cent of the monetary support it gave someone else to raise her children. The actual financial valuation is even more startling when considering that, unlike the foster parent, the children’s mother would not receive additional financial support because the children had special needs.

This scenario reveals a hidden truth; that one of the greatest federal spending entitlement programs for children is still the foster system rather than social assistance and services that would go directly to their parents. This is even more outrageous when we consider that many states divert federal payments toward Temporary Assistance for Needy Families (“welfare”) benefits that could support mothers in raising their children away from needy families to the foster care industry. In fact, in 2002, nearly $1.2 billion of temporary assistance funds were used for foster care instead of to help Black families care for their own children. ³⁴ Some states even diverted those funds from daycare subsidies for low-income families to subsidies to foster care strangers and funding for foster care services. ³⁵ In other words, the very material resources that many Black women may need to help raise their children – social assistance, daycare – are being thrust into the hands of strangers. These funding structures show that money exists to financially support Black children, but only when we separate them from their Black mothers.

Even more disheartening are the financial incentives for adoptions and out-of-home placements for children. For example, as part of sweeping federal legislation passed in the 1990s, including immigration laws and crime bills that institutionalized and punished people of color at alarming rates and expanded an already-vast neoliberal economic agenda at Black people’s expense, foster system reforms prioritized family dissolution over reunification. The Adoption and Safe Families Act established short deadlines to terminate parental rights and offered financial bonuses to states for adoptions, with no equivalent financial incentive for states who were able to safely keep children home or reunite them with their families. ³⁶ At the same time, sweeping welfare reforms sharply decreased funding for Black women who received government assistance, pushing their families further into poverty and treating their economic insecurity as child neglect. ³⁷ The financial structures set up by the convergence of these laws make it nearly impossible for Black women targeted by the foster system to keep their children in their homes.

Once trapped by the foster system, families are essentially sentenced to poverty due to requirements and registries that limit prospective employment opportunities. In all states, anyone can call a hotline if they believe there is child neglect. Expanded mandated reporting laws burden nearly every state actor with the duty to report anything that could suggest maltreatment of a child, or risk liability or loss of employment. This requirement applies to shelter workers, public hospitals, public schools, and even public benefits workers. ³⁸ Low-income people are significantly more likely to be subject to these investigations. For low-income mothers, this means home, money, food, health, and education for them and their children are all connected to policing agencies. Investigations, which could be based on allegations that might arise from a personality clash with a child protective worker, a dirty home, domestic violence, marijuana use, school tardiness, or sex abuse, offer parents no legal protections and involve workers entering homes without warrants, strip-searching children, and encouraging incriminating conversations without advising parents, children, or family members of the right to remain silent. After the investigation is completed, the worker determines whether there was “some credible evidence” of abuse or neglect – a standard similar to probable cause – to substantiate the claim. Not only are Black mothers more likely to be investigated, but their investigations are more likely to be deemed substantiated. ³⁹ Once the allegations are substantiated, the foster system tracks families on a State Central Registry. To be clear, being named on the registry is not proof of neglect. Many cases never go to court or do and get dismissed. But regardless of the outcome, regardless of your innocence, your name stays on this registry for up to three decades. ⁴⁰ Being named on the registry is not just stigmatizing, but also ensures that Black mothers will remain in cycles of poverty and control. The registry is available to certain employers, foster care agencies, and family court judges. It bars individuals from employment in a variety of fields including, but not limited to, becoming a teacher, a school aide, a school bus driver, daycare provider, pediatric medical professional, or home healthcare attendant. Being on the list also means you will be ineligible to be a foster parent, adopt children, or perhaps gain custody of future children, including members of your own family.

This cycle is undeniable and vicious. Throughout history and to the present day, Black mothers have been policed with historical tropes that justify invasion of our bodies, privacy, and reproductive autonomy. We receive less governmental funding to raise our children and more judgment about our parenting. When we access public services we are more likely to be policed by mandated reporters, and when we are confronted by child protective workers we are more likely to be placed on a list that will limit future employment and our ability to be a supportive resource if our children – who are statistically more likely to be parents in this system – need our help.

A Call for Abolition

Ultimately, the foster system does not achieve the laudable goal of family and child protection. The families involved have worse outcomes than those in the general population, including higher incarceration rates, poorer health, more instability, and greater incidence of behavioral issues. ⁴¹ Comparably, children of parents who use drugs, who are presumed to be “maltreated” based on this fact alone, do better when left at home with their families than when placed in foster care. ⁴² Despite this reality we continue to rely on this harmful system as an intervention for underserved families who we categorize as neglectful and abusive. ⁴³ A call for abolition recognizes that this system is at best unhelpful, and more often incredibly violent.

The foster system responds far too often with the violence of family separation when it is demonstrably unnecessary. Even the heads of the system itself acknowledge this. ⁴⁴ Poor families and disproportionately Black mothers are dragged into the foster system through a label of neglectfulness that is more related to poverty than to actual maltreatment. Nearly 30 per cent of children could be reunited with their families if their parents had access to housing. ⁴⁵ Substance use is used to tear families apart even when it is recreational drug use that has had no impact on the child. Even cases labeled as “abuse” are often not abuse. ⁴⁶ In the Bronx, my colleague studied serious “physical abuse” cases and found that prosecutors were overwhelmingly charging Black and Brown families with violent allegations for known childhood accidents, birth trauma, hospital malpractice, illnesses etc., and that the best intervention was robust litigation, not child removal or surveillance. ⁴⁷

Even when there is neglect, the foster system is not the solution. Family dysfunction is an experience felt by all races and classes, however for Black families the inevitable response is the foster system rather than healing and support. Let’s look at the example the case of Ms. T, a black mother in the Bronx charged with abusing her daughter, M:

Ms. T relied on her family to provide childcare when she worked, including her brother whom she had a close relationship and trusted. One day, Ms. T received a call from her daughter M’s school. They informed her that M reported that she had been sexually molested by her uncle, Ms. T’s brother. Ms. T, distraught, rushed home and spoke to her daughter. Her daughter, sobbing, said that she told her teacher but did not think anyone would find out. Her teacher, a mandated reporter, did not inform M that she was calling child protective services, and M was horrified. Ms. T confronted her brother, who denied all of the allegations. Ms. T believed her daughter, and made a safety plan ensuring that M was never left alone with Ms. T’s brother and that her brother was no longer a caretaker for her child. This put enormous strain on the family, since Ms. T was a domestic worker at a large NYC hotel, with little say over her schedule, but M’s safety was paramount to T, even if it meant losing her job. CPS [Child Protective Services] investigated and collaborated with the NYPD to force M to talk to a detective. M did not want to talk to anyone but her mother. Ms. T advocated for her daughter and said that the family would handle this through therapy, not the police. When Ms. T rejected the police interview on behalf of her daughter, CPS filed an abuse case against her. As a condition to keep her child in her care, CPS asked that M be forced to cooperate with the NYPD investigations. When M refused to be interviewed, ACS threatened to subpoena her to testify in court about the allegations. When M and Ms. T refused again, ACS subpoenaed M’s therapist and her teacher to recount M’s personal story of molestation. Ms. T’s brother was never criminally convicted because he was deported, and ultimately Ms. T’s case was completely dismissed, but only after over a year of supervision and the irreparable damage to T’s job, M’s sense of privacy both at school and at home, and the deportation of a family member.

It is outrageous that Ms. T was charged with abuse, but this does not negate the real harm that M experienced. Both Ms. T and M are now working through the trauma of the sexual assault and the interactions with child protective services. The system did nothing to protect M from that harm, nor help their family move forward and heal. Situations like this are not isolated. In fact, research shows that the foster system does little to either prevent or mitigate future harm. ⁴⁸ Further Black families, even those who have trauma in their homes, often perceive their interactions with the system as exacerbating trauma, deeply traumatic, demoralizing, and destructive despite the system’s claim to the contrary. ⁴⁹

I know that there are people who differ from M and T, who have felt supported by individual caseworkers and appreciate the financial support provided by foster care subsidies. ⁵⁰ I do not, however, believe that the kindness of a caseworker or the convoluted financial incentives justify the existence of this incredibly harmful system.

Indeed, the foster system is often a site not of protection but rather of government-funded abuse and violence. For instance, in 2018, a longstanding group home for girls, Hawthorne Cedar Knolls, was shut down. ⁵¹ Throughout my many years of representing families, I knew many mothers whose children were removed and placed in the residential center, as well as parents who themselves grew up there. We all protested continued placement at the facility knowing that it was a horrible place, but judges, prosecutors, and even children’s attorneys advocated for Hawthorne Cedar Knolls placement. Ultimately, federal charges confirmed what we all knew: that Hawthorne Cedar Knolls was a site of child sex trafficking. Yet there was no remorse on the part of any of the judges or other state actors who sent children there despite their mother’s protests. This is not an aberration. In Baltimore, the rate of sexual abuse in foster care is four times higher than in the general population, and in Indiana children placed in group homes are twice as likely to be physically abused and twenty-eight times as likely to experience sexual assault. ⁵² I have worked with over 1,000 families in the Bronx, and parents and children there consistently report children being raped, assaulted, and neglected while in the system. These incidents are often undocumented in official records, leaving families with little to no recourse.

However, to focus on the out-of-home violence in this system misses a larger point. One of the lesser-studied harms of the foster system is the normalization of government interference that occurs when a child is supervised by government workers, even if they remain in their home. The doctrine of parens patriae – literally placing the government in the role of a parent – is frequently used to justify state intrusion into an overwhelming number of Black families. This doctrine, closely tied to the doctrine of paternalism that justified the control of Black families during slavery, normalizes government interference and surveillance in the Black family and creates irreparable harm to the individual member’s consciousness of community. ⁵³ Joseph Goldstein, Anna Freud, and Albert J. Solnit argue that this intrusion thwarts children’s essential belief that parents are “omniscient and all powerful,” and that the “effect on the child’s developmental progress is invariably detrimental.” ⁵⁴

Harms also occur at the community level. In 2008, Dorothy Roberts published a study in which she focused on the impact of concentrated child welfare agency involvement in Black neighborhoods to further understand the injury to social networks beyond the direct impacts on individual people and families. After interviewing Black women, she “identified profound effects on social relationships including interference with parental authority, damage to children’s ability to form social relationships, and distrust among neighbors” resulting from the government’s intense surveillance. Her research elucidates a reality that the foster system’s racialized concentration of intervention in poor Black communities means that families either live with the direct impact of family separation tactics or in fear and consciousness of the frailty of their families in the face of government surveillance and intrusion. Families should be a space where individuals can develop trust, learn history, explore cultural identity, and gain a sense of self, not only with their relatives but also in the greater community. ⁵⁵ However, the racial geography of foster system intervention targets vulnerable communities and weakens the protective social networks that could lead to collective action and protection.

It is precisely for this reason that a call for abolition is necessary. We must build the power in communities, and not allow punishing systems to erode the very networks critical to our survival. Working to improve the system, will not turn the tide of the multi-billion-dollar industry that prefers the destruction of our families over their preservation.

Conclusion

The fight to abolish the foster system is a reproductive justice fight. Reproductive justice is a framework coined by a collective of Black women who sought to advance “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” ⁵⁶ Reproductive justice requires an examination of the power structures that exploit Black women – and of their historical origins. In this framework, it becomes clear that the oppression of Black women through the foster system is not novel, but rather an evolution of the stories, structures, and systems that originally enslaved our bodies.

Black mothers face an uphill battle to keep our children in the shadow of the foster system. We carry the trauma of oppression, racism, sexism, and classism in every moment of our lives. We mother babies while we survive police violence, beatings, rapes, and molestation. We nurture our children while we grieve for family members who are killed, beaten, or harassed by the police. We try to protect our daughters’ innocence while society tries to interrupt their girlhood. Our mamas raise their children in substandard government housing because history did not allow them to inherit suburban homes like white mothers. Our mamas make their children’s beds in shelters where they must submit to a curfew to enter and exit their home, and every interaction is monitored by government officials who are mandated to report their every move. Our mamas – and their children – are educated in segregated and failing schools. From these schools they are expected to gain employment but are consistently underemployed and underpaid. When they cannot find employment, they require the assistance of the government, which in turn tracks them, calls them “welfare queens,” and tightens its purse strings every year. Our mamas are called “crack whores” and their children “crack babies,” and embody the oppression and societal neglect that America ignores. We live through all this, survive, raise beautiful children, and are still called “bad mothers” by the very system ostensibly designed to support us.

It is time we stop blaming Black mothers for the centuries of oppression that have been thrust on our bodies. One step toward liberation is to pay attention to the systematic rights violations and criminalization of Black mothers and families through the foster system just as we have paid attention to the degradation of Black people in the criminal legal system. Foster systems are as punitive as the prison industrial complex. It is time to shut them down.

1. Special thanks to Adam, Nora, and Charlie Cloud for giving me time and space to write this article. Additional thanks to Lisa Sangoi, Emma Ketteringham, Amy Mulzer, Maryanne Mendenhall, Holly Beck, Amani Marshall, and Anna Gee for your guidance, editing, and thought leadership.[↑]
2. See, e.g., Angela Davis, Are Prisons Obsolete (New York: Seven Stories Press, 2003); Christina Gregg, “Bryan Stevenson: America’s Failure to Deal with History of Slavery and Jim Crow has Manifested,” Aol.com, 19 April 2017, https://www.aol.com/article/news/2017/04/19/bryan-stevenson-america-failure-deal-history-slavery-jim-crow-manifested/22044680/; Ava Duvernay, director, 13th (Kandoo Films, 2016), https://www.netflix.com/watch/80091741; Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Color Blindness (New York: The New Press, 2010).[↑]
3. Patrisse Cullors, “Abolition asnd Reparations: Histories of Resistance, Transformative Justice, and Accountability,” Harvard Law Review 132 1684 (2019), https://harvardlawreview.org/2019/04/abolition-and-reparations-histories-of-resistance-transformative-justice-and-accountability/.[↑]
4. Often people distinguish between the foster care system and the foster care/child protective system. I choose not to make such a distinction in this article. First, there is nothing protective about this system and it does not promote children’s welfare. Relying on this language elides the ultimate aim of this system, which is removal. Even when mothers are “supervised” and their children are home, they are coerced into compliance with the looming threat of removal. Further, we would never distinguish the movement against mass incarceration for cases that only resulted in prison, versus those that result in parole, probation, or summons cases. This is because the intention of that system is prison, in the same way the intention of this system is foster care. See, e.g., Tina Lee, “The Processes of Racialization in the New York City Child Welfare System,” City and Society 28 (2016) 278; Chris Gottlieb, “The Lessons of Mass Incarceration for Child Welfare,” Amsterdam News, 1 February 2018, http://amsterdamnews.com/news/2018/feb/01/lessons-mass-incarceration-child-welfare.[↑]
5. Lee, “Processes of Racialization,” 279.[↑]
6. Ibid.; Office of Children and Family Services, “Black Disparity Rate: Unique Children in SCR Reports CY,” 2016; Wildeman, Edwards and Sara Wakefield. 2019. “The Cumulative Prevalence of Termination of Parental Rights for U.S. Children, 2000–2016,” https://doi.org/10.1177/1077559519848499journals.sagepub.com/home/cmx.[↑]
7. Elizabeth Bartholet, “Race and Foster Care,” “Chapin Hall Issue Brief,” June 2011.[↑]
8. See Robert B. Hill, “Institutional Racism in Child Welfare,” in Joyce E. Everett et al., eds., Child Welfare Revisited: An Afrocentric Perspective (New Jersey: Rutgers University Press, 2004).[↑]
9. Dorothy Roberts and Lisa Sangoi, “Black Families Matter: How the Child Welfare System Punishes Poor Families of Color,” Appeal, 26 March 2018, https://theappeal.org/black-families-matter-how-the-child-welfare-system-punishes-poor-families-of-color-33ad20e2882e/; Alan J. Dettlaff, Stephanie L. Rivaux, Donald J. Baumann, John D. Fluke, Joan R. Rycraft, and Joyce James, “Disentangling Substantiation: The Influence of Race, Income, and Risk on the Substantiation Decision in Child Welfare,” Children and Youth Services Review 33 (2011): 1630–7, https://pdfs.semanticscholar.org/55f9/f76d476e94c18a1d71ecf930e949df496de8.pdf.[↑]
10. Many activists have decided to eliminate “justice” from the criminal justice system, and instead call it the criminal legal system or criminal punishment system. At the time of writing, there is not a consensus in our community on what the current child protective/foster care system should be named. Suggestions such as the child apprehension and child removal systems are among the more accurate reflections of what this system is designed to do. One consensus is that this system is neither caring nor protective. As such, I will endeavor to eliminate the use of those words to more accurately reflect the lived experiences of this system.[↑]
11. Dorothy Roberts, Shattered Bonds: The Color of Child Welfare (Basic Civitas Books, 2002); Department of Health and Human Services, National Study of Protective, Preventative, and Reunification Services Delivered to Children and their Families: Final Report, 1994.[↑]
12. Michelle Burrell, “What Can the Child Welfare System Learn in the Wake of the Floyd Decision?: A Comparison of Stop-and-Frisk Policing and Child Welfare Investigations,” CUNY Law Review 22, 124 (2019): https://academicworks.cuny.edu/clr/vol22/iss1/14.[↑]
13. Roberts, “Shattered Bonds,” 1476.[↑]
14. Joyce McMillan, “The Impact of the SCR: Exploring the Consequences of Being on the SCR and the Need for Reform,” New School Panel, 20 November 2018.[↑]
15. Kendra Hurley, “‘It’s a Pivotal Time in Child Welfare’: A Q&A with Parent Advocate Joyce McMillan,” Center for New York City Affairs, 26 July 2017, Dinah Ortiz, “Fighting an Unjust Battle: How the War on Drugs Stole My Daughter,” Medium, 17 May 2018, https://medium.com/@bronxdefenders/battle-bonded-in-family-defense-9875c1c12f97.[↑]
16. Shanta Trivedi, “The Harm of Child Removal,” NYU Review of Law & Social Change 43 (2019): 528–9, citing Jason B. Whiting and Robert E. Lee III, “Voices from the System; A Qualitative Study of Foster Children’s Stories,” Fam. Rel. 52 (2003): 288, 292.[↑]
17. Roberts, “Prison, Foster Care”; Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Penguin Radom House, 2002); Roberts, “Shattered Bonds”; Dorothy Roberts, “The Social and Moral Costs of Mass Incarceration in African American Communities,” Stanford Law Review 56, 5 (2004): 1271; Dorothy Roberts, “The Racial Geography of State Child Protection,” in Jane L. Collins et al., eds., New Landscapes of Inequality: Neoliberalism and the Erosion of Democracy in America (2008), http://cap.law.harvard.edu/wp-content/uploads/2015/07/robertsrd.pdf; Khiara Bridges, The Poverty of Privacy Rights (Stanford: Stanford University Press, 2017); Khiara Bridges, Reproducing Race: An Ethnography of Pregnancy as a Site of Racialization (University of California Press, 2011); Tina Lee, Catching a Case: Inequality and Fear in New York City’s Foster Care System (New Brunswick, NJ: Rutgers University Press, 2016); Peggy Cooper Davis, “The Legal Erasure of Black Families,” Al Jazeera, 26 July 2015, http://america.aljazeera.com/opinions/2015/7/the-legal-erasure-of-black-families.html.[↑]
18. Cullors, “Abolition and Reparations.”[↑]
19. James McWiliams, “Bryan Stevenson on What Well Meaning White People Need to Know about Race,” Pacific Standard, 18 February 2019, https://psmag.com/magazine/bryan-stevenson-ps-interview.[↑]
20. “Englishmen categorized African women as brute laborers and breeders and denied them the privileges of womanhood. In order to exploit African women’s productive and reproductive capacities, Europeans had to reconcile their roles as both workers and parents. European travelers’ erroneous assumptions about African women’s ‘painless’ childbirth and their ‘animalistic’ ability to suckle their infants over their shoulder while working in the fields supported the view of Black women as naturally suited for productive and reproductive labor in the Americas. Motherhood thus became central to the discourse of race and savagery … [B]lack women were denied the privileges of womanhood – patriarchal protection and social status.” Amani N. Marshall, “Enslaved Women Runaways in South Carolina 1820–1865,” PhD dissertation, Indiana University, 2013.[↑]
21. Roberts, “Shattered Bonds.”[↑]
22. Ibid.[↑]
23. Ibid.[↑]
24. Lee, “Processes of Racialization,” 279.[↑]
25. Ibid.[↑]
26. Under the Adoption and Safe Families Act, states are no longer required to make “reasonable efforts” to reunify children with their mothers in certain circumstances, such as when a mother’s rights to a previous child were involuntarily terminated. An involuntary termination simply means that the mother did not allow the state to take her child and chose to go to trial to fight the charges. If the mother loses the trial, the government may seize not only the child who is the subject of the proceeding but also any future children she may have. Christina White, “Federally Mandated Destruction of the Black Family: The Adoption and Safe Families,” Northwestern Journal of Law and Social Policy (2006): 303, http://scholarlycommons.law.northwestern.edu/njlsp/vol1/iss1/12. As an attorney who has represented mothers in New York, I will say that New York rarely exercises its authority to remove children on this ground, but it does not mean that I can stop telling my clients it could. Having to counsel my client about this law instills a fear that your future children could be seized and often convinces mothers to plead guilty even when their case is defensible. In states like Oklahoma, however, this is a common mechanism for parental termination. Claire Rogers, phone interview with the author, 20 May 2019.[↑]
27. Being “unfit” includes being victimized by domestic abuse, struggling with depression, substance use, etc. The varied interpretation and scope of the legal landscape calls to question whether this determination is more grounded in opinion or fact.[↑]
28. William Vesneski, “State Law and the Termination of Parental Rights,” Family Court Review, 49 (2011).[↑]
29. Emma S. Ketteringham, Sarah Cremer, and Caitlin Becker, “Healthy Mothers, Healthy Babies: A Reproductive Justice Response to the ‘Womb-to-Foster-Care Pipeline,’” CUNY Law Review 20, https://academicworks.cuny.edu/clr/vol20/iss1/4.[↑]
30. Roberts, “Killing the Black Body.”[↑]
31. Marshall, “Women Runaways”: “Enslaved people lived with the perpetual possibility of separation through the sale of one or more family members … These decisions were, of course, beyond the control of the people whose lives they affected most … The fear of separation haunted adults who knew how likely it was to happen. Young children, innocently unaware of the possibilities, learned quickly of the pain that such separations could cost.”[↑]
32. This figure is calculated by adding the total cash assistance grant for a two-person household to the Supplemental Nutrition Assistance Program Benefits for the same household. The cash assistance grant includes an energy grant and shelter allowance to cover housing and heat. The only cash support the mother receives is $252 a month. See New York City Human Resources Association, “Cash Assistance,” https://www1.nyc.gov/site/hra/help/cash-assistance.page; New York State, “Supplemental Nutrition Assistance Program,” https://otda.ny.gov/programs/snap/. [↑]
33. Ibid.[↑]
34. Cynthia Andrews Scarcella et al., “The Cost of Protecting Vulnerable Children IV,” Urban Institute, 20 December 2004, https://www.urban.org/research/publication/cost-protecting-vulnerable-children-iv/view/full_report.[↑]
35. Colin Poitras, “Child Care Funds Lacking,” Hartford Courant, 25 March 2006, http://hartfordinfo.org/issues/documents/familiesandchildren/htfd_courant_032506_a.asp.[↑]
36. Pub. L. No. 105–89, 111 Stat. 2115 (1997) (codified in scattered sections of 42 USC).[↑]
37. White, “Federally Mandated Destruction.”[↑]
38. Nikita Stewart, “Jazmine Headley, Whose Child Was Torn from Her Arms at City Office, Gets a Public Apology,” New York Times, 4 February 2019, https://www.nytimes.com/2019/02/04/nyregion/jazmine-headley-nypd-arrest.html.[↑]
39. Office of Children and Family Services, “Black Disparity Rate: Unique Children in SCR Reports CY,” 2016.[↑]
40. There is an administrative process to remove your name. The process is confusing, convoluted, and comes with no legal assistance. Often people do not know they are on the list or do not understand how to request the expungement. Although the department is supposed to notify individuals, it often does not, or issues like housing instability disrupt the notification process.[↑]
41. Catherine Lawrence, Elizabeth Carlson, and Byron Egeland, “The Impact of Foster Care on Development,” Development and Psychopathology 18, 1 (2006): 57–76.[↑]
42. Kathleen Wobie, Marylou Behnke, et al., “To Have and to Hold: A Descriptive Study of Custody Status Following Prenatal Exposure to Cocaine,” paper presented at joint annual meeting of the American Pediatric Society and the Society for Pediatric Research, 3 May 1998, https://www.aeaweb.org/articles?id=10.1257/aer.97.5.1583.[↑]
43. Vivek S. Sankaran and Christopher Church, “Easy Come, Easy Go: The Plight of Children Who Spend Less Than Thirty Days in Foster Care,” University of Pennsylvania Journal of Law and Social Change 19 (2016): 211 (demonstrating the long-term harm of removal, even when children are removed from their family’s care for less than a month); Wendy Jennings, “Separating Families Without Due Process: Hidden Child Removals Closer to Home,” CUNY Law Review 22 (2019): 8 (discussing the ways in which family separation traumatizes children); Richard Wexler, “Studies Show Foster Care a Toxic Environment,” Times Union, 24 February 2018, https://www.timesunion.com/opinion/article/Studies-show-foster-care-a-toxic-environment-12706517.php; Lawrence, “Impact of Foster Care on Development.”[↑]
44. Daniel Heimpfel, “In Era of Family Separation, a Top Administration Official Vows to Fight the Practice in Child Welfare,” Chronicle of Social Change, 17 April 2019, https://chronicleofsocialchange.org/featured/in-era-of-family-separation-a-top-administration-official-vows-to-fight-the-practice-in-child-welfare/34573.[↑]
45. Center for Advanced Studies in Child Welfare, “The Impact of Housing and Homelessness in Child Wellbeing,” Spring 2017, https://cascw.umn.edu/wp-content/uploads/2017/04/CW360_Spring2017_WEB508.pdf.[↑]
46. Anna Arons, “Jenny Mollen, Jason Biggs, and How Race and Class Shape the Aftermath of Childhood Accidents,” Paste, 3 May 2019, https://www.pastemagazine.com/articles/2019/05/jenny-mollen-shows-how-race-and-class-shape-the-af.html.[↑]
47. Jessica Horan Block and Elizabeth Tuttle Newman, “Accidents Happen: Exposing Fallacies in Child Protection Abuse Cases and Reuniting Families through Aggressive Litigation,” CUNY Law Review forthcoming.[↑]
48. Ibid.[↑]
49. Effrosyni D. Kokaliari and Ann W. Roy, “African American Perspectives on Racial Disparities in Child Removals,” Child Abuse and Neglect 90 (April 2019): 139.[↑]
50. Roberts, “Racial Geography.”[↑]
51. Nikita Stewart, “Troubled Girls Were Sent to This Town to Heal. Many Were Lured into the Sex Trade Instead,” New York Times, 13 December 2018, https://www.nytimes.com/2018/12/13/nyregion/sex-trafficking-hawthorne-cedar-knolls.html.[↑]
52. Richard Wexler, “Foster Care vs. Family Preservation: The Track Record on Safety and Well-Being,” https://drive.google.com/file/d/0B291mw_hLAJsV1NUVGRVUmdyb28/view. Mary Benedict and Susan Zuravin, Factors Associated with Child Maltreatment by Family Foster Care Providers, (Baltimore: John Hopkins University School of Hygiene and Public Health, 1992), 28–30; J. William Spencer and Dean D. Knudsen, “Out of Home Maltreatment: An Analysis of Risk in Various Settings for Children,” Child and Youth Services (1992): 485; Peter Pecora et al., “Improving Family Foster Care: Findings from the Northwest Foster Care Alumni Study,” 2005, https://www.casey.org/media/AlumniStudies_NW_Report_FR.pdf.[↑]
53. Mundorff, “Children as Chattel,” 38.[↑]
54. Ibid.[↑]
55. Timothy G. Habbershon and Joseph H. Astrachan, “Research Note: Perceptions are Reality: How Family Meetings Lead to Collective Action,” Family Business Review 10, 1 (1997): 37–52. [↑]
56. “The Herstory of Reproductive Justice,” SisterSong, http://sistersong.net/reproductive-justice.[↑]