The New York Times rediscovers wrongful removal, class bias and racial bias in child welfare – and gets a lot right. But the story is marred by some glaring errors.

This is the third of three parts about a scathing report, commissioned by the New York City family policing agency itself, that found pervasive racial and class bias in the agency, and rampant confusion of poverty with “neglect.” 

● Monday: Context for the new study: The Administration for Children’s Services’ own data show that when the agency pulled back, did fewer investigations and took fewer children – child safety improved. 

● Yesterday: ACS commissioned a study of racism in the agency.  Then they suppressed it.  Family defenders had to use the state Freedom of Information Act to get hold of it.  Once you read it,  you’ll see why ACS wanted to hide it. 

● Today: The New York Times published a front-page story about the study that was, mostly, very good.  But it still fell into some of the traps that characterize much of the journalism of child welfare – including a crucial misunderstanding of poverty and neglect and one inflammatory claim that, as originally published, was flat wrong. 

● And always: New York City has one of the least awful family policing systems in America. As you read about what the caseworkers themselves are saying there, remember: Wherever you are, it’s probably worse.

 When it comes to covering family policing, a more accurate term than “child welfare,” the recent record of The New York Times has been, at best, undistinguished.  

In the late 1990s and the first years of the new millennium, the Times Metro desk produced outstanding journalism about family policing.  But for most of the past two decades, with one exception, the Times has ignored wrongful removal and, sometimes, scapegoated family preservation in ways that were worse than stories in the city’s tabloids.  (The exception was the Times’ superb 2017 story about foster care as the new “Jane Crow.”) 

One indicator of how bad recent Times coverage has been: When, in his story about a new ACS-commissioned study, the reporter sought to remind everyone of the supposed horrors that could ensue if ACS didn’t hyper-surveil impoverished communities of color, he linked to one of his own stories.  When he sought to illustrate the harm of such hyper-surveillance, he had to link to a story from another news organization. 

But perhaps things are changing. 

The first thing to note about how The New York Times handled the scathing report, in which some of ACS’ own employees exposed widespread racial and class bias in the agency, is that the Times did, in fact, cover it.  And the coverage was prominent: on the home page online and the front page of the print edition. 

The second thing to note is that the story got a lot of things right. 

There was the headline: “Is N.Y.’s Child Welfare System Racist? Some of Its Own Workers Say Yes.” 

There was the powerful lead: 

For decades, Black families have complained that the city’s child welfare agency, the Administration for Children’s Services, is biased against them. 

It turns out that many of the agency’s own employees agree, according to a racial equity audit the agency commissioned but never publicly released. 

There were some important excerpts from the report.  The story notes how the report 

described a “predatory system that specifically targets Black and brown parents” and subjects them to “a different level of scrutiny.” … 

Caseworkers said they felt pressured to push their way into people’s homes and not tell parents their rights. They “feel complicit in the harm that A.C.S. can cause Black and brown families” and powerless to change the system, the report stated. … One A.C.S. worker in the survey compared the experience to being stopped and frisked for 60 days. 

The report quotes Joyce McMillan founder of JMAC For Families, who says 

“The report also tells us that their own workers are not comfortable doing this stuff and that they feel choked into submission.” 

The report is fleshed out with two case examples, including one family victimized by a vile policy instituted by former Commissioner John Mattingly that’s been modified, but clearly not abolished since: sibling confiscation at birth. 

The story also notes how workers themselves favor something their top leadership opposes: 

a “Miranda warning” law requiring that parents be immediately informed of their rights not to speak to caseworkers and not to let them in without a court order, and to consult a lawyer. 

Key flaws in the story 

But the story also has some notable flaws – including one inflammatory claim that, as originally published, was simply wrong.  

For starters, the story was quick to accept the Big Lie of American child welfare, that child safety and family preservation are opposites that need to be balanced.  In fact, the evidence is overwhelming that family preservation is almost always the safer option and the hyper-surveillance / take-the-child-and-run approach makes all children less safe. 

The subhead declares, in part: “New York City’s Administration for Children’s Services must protect children without overpolicing families.”  In other words, the more you overpolice families the safer children will become!  High up in the story is the statement that ACS “must balance protecting the safety of children and respecting the autonomy of families.”  

On the contrary, as is documented in Monday’s post, when ACS curbed its overpolicing during COVID and did more to respect the autonomy of families, child safety improved.  And, much farther down. The story itself explains a major reason for this in a summary of a key part of the ACS-commissioned study:

Mandated reporters, the workers complained, often “file reports that describe conditions indicating poverty but not neglect.” Teachers make reports “based on the cleanliness of a child’s clothing or whether they bring food to school.” 

Caseworkers said they spent so much time chasing unfounded neglect claims that it became harder for them to protect children from abuse. [Emphasis added.] 

The other egregious problem concerns an inflammatory claim that’s flat wrong, a claim the Times corrected – without ever acknowledging they had been wrong in the first place.  It was in a sentence, seemingly thrown into the story at random, claiming that "a Times analysis" found that Black family members were more likely to murder their children than white family members.  At least nine comment trolls seized on this claim – ten if you count Naomi Schaefer Reilly on Twitter.  (Riley’s the one who proudly compares her book condemning family preservation to the work of Charles Murray.  Murray’s the one who has written that Black people are genetically inferior.)  The implication, of course, is that we have to keep those people under constant hyper-surveillance because, well, you know how they are. 

There are two key problems with this statistic: 

First of all, fortunately, child murder is so rare that it is impossible to draw any conclusions, let alone extrapolate to the general parenting behavior of an entire racial group.  In New York City, there may have been an average of 14 such homicides per year in recent years.  There are more than 1.6 million children in New York City.  In other words, in any given year, 99.999% of New York City children will not be murdered by a family member. 

The reason I say “may have been” is because of the bigger problem with the claim: It’s just plain wrong.  What the data actually show is that Black family members are more likely to be charged with murder by police.  Fortunately, police decisions on who to charge and what to charge them with are never, ever racially biased, right?   If you think there’s no way to bias such decisions, consider how many of the studies showing racial bias in child welfare involve doctors’ determinations of the cause of injuries.  And don’t forget the scandals over false allegations by “child abuse pediatricians” and false diagnoses of “shaken baby syndrome.” 

The Times changed the wording to acknowledge that the data refer to “cases where family members were charged” [emphasis added].  But there is no acknowledgment of the change. No statement at the top, or even the bottom of the story, stating there’s been a correction. The old version was just sent down the memory hole.  And in print, the false claim will live on forever. 

Misunderstanding poverty and “neglect” 

Then come a series of problems, all related to a fundamental misunderstanding of poverty and neglect mentioned earlier.  

There are two ways that poverty has an effect on neglect. 

The first, and biggest, is that poverty itself is confused with neglect.  State laws typically define neglect as lack of adequate food, clothing, shelter or supervision.  Some laws, including New York’s, have some caveats – but as the ACS-commissioned report itself notes, those caveats are regularly ignored.  There is no impoverished child in America who couldn’t be deemed neglected if a caseworker so chose.  (And remember, it is simply the caseworker’s choice.  Statistics on “neglect” are simply statistics on how often caseworkers check a box on a form.) 

This is the problem that the ACS-commissioned report identifies over and over – and quotes to that effect are in the Times story.  I’ve already quoted one example.  The story also notes that: 

For poor families pulled into ACS.’s orbit, who are overwhelmingly Black and Latino, symptoms of poverty are frequently punished as signs of neglect, the survey found. 

Nevertheless, the Times prefers to obsess over the other way poverty may affect neglect, something not discussed in the report at all: Poverty puts a lot of stress on parents and some of those parents may lash out – something that, when it happens at all, is far more likely to be associated with abuse, not neglect. 

But, to the extent that family police agencies and their acolytes are finally owning up to the role of poverty in neglect, this is the version they own up to – because it lets them off the hook.  The argument boils down to: Well, after all, the kids are neglected, so it’s a good thing we investigated, right?  And if, in the process, we traumatized them with our questions and our demands that they take off their clothes – and if we compounded the trauma for those we took away on the spot, well, that’s just the price they have to pay for having “stressed” parents who “neglected” them, isn’t it? 

Enter the “health terrorists” 

This is, by far, the predominant version of the nexus between poverty and neglect found in the Times story – but again, not in the study the story is reporting on.  To back up the claim, the Times relies on one of the least reliable sources in the field – those masters of what they themselves call “health terrorism” at Prevent Child Abuse America. So the story tells us that 

Stress is at the root of the relationship between poverty and child neglect and abuse, said Melissa Merrick, president of Prevent Child Abuse America, an advocacy group. 

But PCAA has one of the ugliest track records in the field. For decades they denied poverty had
anything to do with neglect.  They were masters of fearmongering – and recently used that term, “health terrorism” to describe their own past behavior.  But it’s not just past behavior.  They’re still at it.  So of course now they want us to believe the only relationship between poverty and neglect is that poverty turns parents into abusive or neglectful parents.  That way, the problem is more amenable to the kind of massive state intrusion they’ve favored for years.  And it encourages the use of “counseling” and “parent education” to deal with the “stress.” 

You know what’s really at the root of the relationship between poverty and child neglect? 

Poverty. 

You know what the “service” is that parents accused of neglect almost always need most? 

Money. 

The error is compounded elsewhere in the Times story. 

The story says: “Maltreatment rates are five times higher for lower-income children, according to federal statistics.” But those statistics measure only what workers “substantiate” as “maltreatment.”  Since poverty itself is often confused with neglect, what the workers are “substantiating” as “maltreatment” often is poverty – so of course “maltreatment rates” will be higher among poor families. 

The error is further compounded when the story buys into another canard from system apologists: 

Because poverty is correlated with higher rates of neglect and abuse, it is difficult to say how much the disparities in the system can be directly linked to income or to race. 

Difficult, perhaps, but not impossible.  There have been multiple studies documenting racial bias over and above class bias – including the ones mentioned above involving doctors. 

Helping ACS pass the buck 

At another point, the Times takes it upon itself to say what ACS usually has to say for itself.  In New York, the state runs the child abuse hotline, and any report they screen in – which is pretty much everything -- is passed on to ACS and its counterparts across the state.  They are required either to investigate or send out a worker to do an “assessment,” which is, theoretically, less intrusive.  So ACS loves to say: Hey, it’s not our fault we needlessly intrude on all those families, we have to investigate anything the state sends us!  

This time the Times itself did it for ACS, declaring: 

Much of the racial disparity in who gets pulled into the child-welfare system is outside A.C.S.’s control. It must investigate every allegation that meets definitions of abuse or neglect, and such reports can be made by anyone; two-thirds are eventually deemed unfounded. 

But that only tells part of the story.  Has ACS ever gone to the legislature and asked lawmakers to change the law to empower it to screen out reports that don’t deserve any “intervention” at all?  In Pennsylvania, for example, which also has a state hotline but county-run systems, those systems can’t screen out abuse reports, but they can screen out most neglect reports if they so choose. 

If ACS has asked for this power, they’ve been mighty quiet about it.  And it does not appear that the Times asked.  In fact, leaving things as they are is in ACS’ interest – precisely because it allows this kind of buck-passing. 

So what happens next?  Will we get at least two more good stories in rapid succession – a spate of good journalism?  Or will we get another five years of “a series, but not statistically” and “watch out for that swinging pendulum!”-type stories? 

Read all three parts of this series here.

“[Like being] stopped and frisked for 60 days”: NYC family policing traumatizes kids, confuses poverty with neglect and is racially biased. Who says so? Some of their own caseworkers.

It’s all in a report commissioned by the Administration for Children’s Services itself. Among the recommendations: “Transparently share information and data around decision-making.”  ACS’ response: Don’t release the report!

In a survey, ACS' own workers say there should be a law requiring them
to tell families their rights, but their leadership opposes it.
 So JMACForFamilies is taking on the task!

 

This is the second of three parts about a scathing report, commissioned by the New York City family policing agency itself, that found pervasive racial and class bias in the agency, and rampant confusion of poverty with “neglect.” 

● Yesterday: Context for the new study: The Administration for Children’s Services’ own data show that when the agency pulled back, did fewer investigations and took fewer children – child safety improved. 

● Today: ACS commissioned a study of racism in the agency.  Then they suppressed it.  Family defenders had to use the state Freedom of Information Act to get hold of it.  Once you read it,  you’ll see why ACS wanted to hide it. 

● Tomorrow: The New York Times published a front-page story about the study that was, mostly, very good.  But it still fell into some of the traps that characterize much of the journalism of child welfare – including a crucial misunderstanding of poverty and neglect and one inflammatory claim that, as originally published, was flat wrong. 

● And always: New York City has one of the least awful family policing systems in America. As you read about what the caseworkers themselves are saying there, remember: Wherever you are, it’s probably worse.

 The front page story in The New York Times begins this way: 

For decades, Black families have complained that the city’s child welfare agency, the Administration for Children’s Services, is biased against them. 

It turns out that many of the agency’s own employees agree, according to a racial equity audit the agency commissioned but never publicly released. 

It’s a very good story, a huge improvement over much recent Times coverage. It also has some notable flaws, – including one inflammatory claim that, as originally published, was flat wrong.  I’ll discuss all of this in a post tomorrow.  For now, let’s take a close look at the report itself, especially since it’s a report ACS didn’t want you to see. 

The report, from the National Innovation Service, was commissioned in 2020, during the tenure of former ACS Commissioner David Hansell.  But Hansell’s biggest concern always was protecting his own image – and that of then-Mayor Bill de Blasio.  So, notwithstanding that the report’s recommendations include “Transparently share information and data around decision-making” Hansell never released it.  

But he did mention it at a City Council meeting.  One of the city’s providers of high-quality family defense, The Bronx Defenders sought it under New York’s Freedom of Information Act  -- and they got it during the administration of a new ACS Commissioner, Jess Dannhauser. 

What’s in the report 

It’s easy to see why Hansell was so embarrassed. 

The report includes interviews with parents, family defenders, and more than 50 ACS employees from frontline caseworkers to top staff.  Among the findings: 

Participants described a system where race operates as an indicator of risk. … [W]hite parents are presumed to be innocent and are repeatedly given opportunities to fail and try again, while Black and Brown parents are treated at every juncture as if they are not competent parents capable of providing acceptable care to their children. … Black and Brown parents are generally presumed to be a risk to their children and are often stripped of their abilities to make decisions about their families.

 The report also includes a crucial finding about poverty and neglect – one that, as I will discuss tomorrow, the Times misunderstood: 

The way that ACS views safety is clearly linked to class. Participants described how poverty is criminalized, as signs of poverty are often seen as indicators of neglect. Parents felt penalized for being poor, as investigatory processes sought to catalog the ways in which parents struggled to provide food, housing, and resources for their children, and frame it as neglect. … 

Parents and advocates especially emphasized homelessness and unstable housing, limited money to purchase food, and lack of access to stable medical care as crucial areas where parents needed to be supported rather than have their children taken away for neglect. 

Something else the report understood, but the Times story underplayed, is the harm all this does to children. 

ACS’s power to remove a child is a power akin and second only to the (state sanctioned) power to take someone's life. The experience of an investigation, even when an allegation is ultimately determined to be unfounded, too often traumatizes parents and children. One staff member described it as the experience of being stopped and frisked for sixty days, and participants shared countless stories of reports filed on Black and Brown parents that were grounded in unfounded claims of neglect or risk of neglect. [Emphasis in original]. 

Staff also show they understand the Big Lie of American child welfare: the false claim that the more homes to which you demand entry in the middle of the night, the more children you roust from their beds for traumatic interrogations and stripsearches, and the more children you carry off into the night, the more you supposedly ensure “child safety.” 

Staff know this underestimates the trauma of investigation and underestimates the even worse trauma of foster care. Though not mentioned in the report, it also underestimates the enormous risk of abuse in foster care itself. 

But staff also know something else: They know exactly how this mentality makes all children less safe.  According to the report: 

 ACS staff frequently encounter cases where mandated reporters file reports that describe conditions indicating poverty but not neglect. The lionshare of examples that staff discussed were from the Department of Education, where DOE staff frequently file reports based on the cleanliness of a child's clothing or whether they bring food to school … ACS's engagement with so many families where the indicators of neglect were simply indicators of poverty took away from its ability to identify and address situations of intentional parental neglect and abuse of children. [Emphasis added.] 

This is confirmed by the new data discussed in yesterday’s post, showing that when, because of COVID, teachers and other school personnel weren’t deluging ACS investigators with false reports trivial cases and poverty cases, child safety improved.  

In the report, staff also acknowledged the role of what’s been called “defensive social work.” They know the complaint that workers are “damned if we do and damned if we don’t” isn’t true. They know that when it comes to taking away children, they’re only damned if they don’t.  From the report: 

Fundamentally, internal and external pressures drive staff to seek removal as a first course of action, to cover the reputation of staff, internally, and ACS, externally. … 

Staff described an internal culture that operates on fear and intimidation, where staff can easily find themselves in front of a firing squad being interrogated about their work on a case or reprimanded for not meeting their target metrics. … This frequently means that staff err on the side of safety for themselves, by seeking removal and thereby ensuring that they won't be liable in the case of abuse. … Staff frequently stated that this culture of fear incentivized the removal of children, positioning CPS staff as detectives looking for reasons to remove children, rather than as social workers aiming to support families. 

The report also addresses a common misconception about institutional racism: that if there are a lot of nonwhite employees, the institution can’t be racist.  A majority of ACS frontline caseworkers are nonwhite.  However, the report explains: 

Frontline staff and lower-level managers in [the ACS Division of Child Protection] identified a clear racial hierarchy within ACS, which means that Black and Brown staff don't have the power to inform policies and practices and voice their experiences of racism. … The central office was described as predominantly white, where staff rarely had direct service experience and often were hired from graduate school or adjacent social service systems. In contrast, borough offices were depicted as having majority Black and Brown staff who often reside in the communities they serve and were led by leaders with direct service experience at ACS. DCP staff described a dynamic where predominantly white leaders in the central office make policy for Black staff to carry out in the borough offices. 

Staff ... pointed to many policies and practices that they know to be harmful to parents, but are still responsible to enforce and uphold. For this reason, staff feel complicit in the harm that ACS can cause Black and Brown families and no power within the agency to make changes that might benefit them. … 

Also revealing: Widespread support among workers themselves for legislation that would require them to give the equivalent of a Miranda warning, fully informing families of their rights.  They also support extending New York’s system of high-quality legal representation to a point “at or before their first interaction with ACS.” 

ACS has opposed both these ideas.  On the rare occasions ACS reaches into a white, middle-class home, parents can afford to get a lawyer immediately and that lawyer can tell them their rights. Poor Black families don’t have that option. According to the report: 

Parents and advocates see ACS's active resistance to both Miranda rights bills and … early legal representation … as a clear sign of its racism. 

Read all three parts of this series here.

New child welfare data from NYC confirm: The “unintended abolition” worked!

Key child safety measures show significant improvement

A Black Families Matter rally in New York City in 2020.  (Photo by Rise)

 

This is the first of three parts about a scathing report, commissioned by the New York City family policing agency itself, which found pervasive racial and class bias in the agency, and rampant confusion of poverty with “neglect.” 

● Today: Context for the new study: The Administration for Children’s Services’ own data show that when the agency pulled back, did fewer investigations and took fewer children – child safety improved. 

● Tomorrow: ACS commissioned a study of racism in the agency.  Then they suppressed it.  Family defenders had to use the state Freedom of Information Act to get hold of it.  Once you read it,  you’ll see why ACS wanted to hide it. 

● Wednesday: The New York Times published a front-page story about the study that was, mostly, very good.  But it still fell into some of the traps that characterize much of the journalism of child welfare – including a crucial misunderstanding of poverty and neglect and one inflammatory claim that, as originally published, was flat wrong. 

● And always: New York City has one of the least awful family policing systems in America. As you read about what the caseworkers themselves are saying there, remember: Wherever you are, it’s probably worse.

 

There are two principal ways to measure child safety and the performance of family policing agencies. One makes sense, the other makes everything worse. 

Using the method that makes sense, new data show that during and after the worst of the COVID-19 pandemic, when the city’s family police agency, the Administration for Children’s Services, stepped back, mutual aid groups stepped up and the federal government gave poor people what they need most – money – child safety improved.  The data confirm the findings of Prof. Anna Arons of New York University School of law who called it, “An Unintended Abolition.”  They are still more evidence that the fearmongering claims about COVID leading to a “pandemic of child abuse” were false. 

Before getting to the data, let’s explore those two methods for measuring safety: 

Method #1 The worst method is the one most beloved by journalists: A child “known to the system” has died and the case file has more “red flags” than a Soviet May Day parade.  Child welfare establishment groups rush to claim the system is doing too much to try to keep families together.  Reporters buy it, and their stories almost always include a reference to their beloved “swinging pendulums.”   

Even if total child abuse deaths have remained the same or declined, if there are three such cases in rapid succession, it is officially declared by journalists to be a “series” of deaths (unless they’re writing for a tabloid, in which case it’s a “spate”).  The agency is then deemed to be “beleaguered” and/or “embattled.”  When it was pointed out to one of the worst reporters ever to cover child welfare that, while she was doing exactly this, the actual number of child abuse deaths per year had not increased, she famously replied “it was a series, but not statistically.”  So the lesson to agency chiefs is: If the horrible, and extremely rare, tragedies of child abuse deaths are evenly spaced, it’s one thing; if they happen to occur in rapid succession, that’s a series/spate and you are officially embattled/beleaguered. 

What all of this usually does is set off a foster-care panic, a sharp sudden surge in removals of children.  This further overloads workers so they have less time to find the relatively few children in real danger.  Child abuse deaths don’t stop, they don’t even decline, often they increase. 

And it constrains what public officials say and what they can support.  If, for example, Dannhauser, were to come out for key legislation to give families “Miranda rights” or to give ACS the authority to screen out false reports forwarded by the state (something discussed in future posts in this series) and if, in the ensuing months, total child abuse deaths declined but three happened to occur in rapid succession, a “news analysis” in The New York Times probably would say something like this:  “After a series of deaths, Dannhauser, the embattled commissioner of the beleaguered Administration for Children’s Services, is seen by some observers as letting the pendulum swing too far toward family preservation.” 

Method #2: Because fatalities are, fortunately, as rare as they are horrifying, they tell us almost nothing about overall system performance.  There are two measures that do indicate if children are getting safer: One is re-abuse – that is, of all children caseworkers alleged were abused or neglected how many were allegedly abused or neglected again within a year? The other is foster-care recidivism – of all children reunited with their families, what percentage had to be placed again within a year? 

This measure also has flaws.  To be significant, changes should be substantial and sustained.  A tiny increase or decrease means nothing, and even a big change may mean nothing if it’s only a single year’s results. 

But we now have a fair amount of data on this in New York City.  The data are measured by fiscal year. So the baseline is the year ending June 30, 2019.  In FY 2020, which included the start of the pandemic, reports alleging child abuse or neglect dropped sharply, entries into foster care also declined.  But contrary to the fearmongering that made it into countless news stories, the absence of all those overwhelmingly middle-class disproportionately white mandated reporters having their “eyes” constantly on children who were neither did not set off a “pandemic of child abuse.”  On the contrary, both key measures improved.  

But that didn’t stop the fearmongers.  They poured their old whine into new bottles and said that as soon as schools reopened, we’d see a surge in child reports as all that hidden child abuse came to light. 

That didn’t happen either.  

After schools reopened, the number of reports declined again, entries into foster care declined again and the key child safety measures improved again.   In FY 2022, reports started to increase again, so did foster care entries, but both still were way below pre-pandemic levels.  By then, compared with before the pandemic, re-abuse had declined by 15% and recidivism had declined by 40%   It should be noted that the biggest decline in recidivism occurred in a single year, and, as I said above, single-year changes should be treated with caution.  But the multi-year trend still is clear: As ACS stepped back, and the community stepped up, child safety improved. 

One reason this is so important: Family defenders just got hold of that scathing report, mentioned at the start of this post; the one commissioned by ACS itself, finding pervasive racial and class bias in ACS.  Who said so?  Among others, frontlines caseworkers for ACS. 

The report was the subject of a front-page story in The New York Times.  Over the next two days, we’ll look first at the report itself, and then at how the Times covered it. Read all three parts of this series here.

UPDATED: NCCPR news and commentary round-up – special Harm of ASFA edition

Saturday marked a tragic milestone – the 25^th anniversary of a law that has harmed millions of children, the so-called Adoption and Safe Families Act.  So this week, the round-up is devoted entirely to news, commentary and resources concerning the harm of ASFA. 

News: 

● A parent may be sentenced to a relatively short time in prison – but, because of ASFA, for their children it can lead to a life sentence of separation from parents they love.  The PBS NewsHour has an in-depth report. 

Recent commentary: 

● From Prof. Dorothy Roberts of the University of Pennsylvania Law School and author of Shattered Bonds and Torn Apart, the definitive books on family policing and race, in Slate: "The Clinton-Era Adoption Law That Still Devastates Black Families Today."

● UPDATE, DEC. 13, 2021: From Kathleen Creamer, managing attorney of the Family Advocacy Unit at Community Legal Services of Philadelphia in The Imprint: "The Children of ASFA Are Now the Parents of ASFA." 

 As a family defense attorney representing parents in child welfare cases, I have spent my career as an eyewitness to the devastating aftermath of our approach. My clients are the children of ASFA. It has decimated their lives. So very many of my clients are the products of a system that devalued their connections and took them away, forever, not only from their parents, but from their brothers and sisters. From their grandparents. From their aunts and uncles. From their neighborhood, their community, their culture. I have seen the trauma of this approach ripple across generations as the system that ripped children from their natural family supports seeks to take away their own children as they move into adulthood.

● From Prof. Sarah Katz, director of the Family Law Litigation Clinic at Temple University, in the Philadelphia Inquirer: “A federal law has been destroying families for 25 years.  Let’s get rid of it.” 

● From Prof. Mical Raz in The Washington Post: “Our adoption policies have harmed families and children.  The Clinton-era Adoption and Safe Families Act passed 25 years ago. It’s time to reexamine its origins.” 

● UPDATE, FEB. 7, 2023: Also from Dr. Raz writing for the Children’s Hospital of Philadelphia Policy Lab: "What We’ve Learned About the Impact of the Adoption and Safe Families Act 25 Years Later."

● From Josie Pickens and Dean Alan Dettlaff of the upEND movement, in the Houston Chronicle: “Instead of making children safer … ASFA became yet another means for national and state governments to forcibly and permanently remove Black children from their families through a speedy process of terminating parental rights.” 

● From longtime family defender Diane Redleaf in Reason: “The Adoption and Safe Families Act Takes Kids Away From Loving Parents.” 

● UPDATE, DEC. 1, 2022  From Sara Block of Ascend Justice, and Melissa Staas of Legal Aid Chicago in the Chicago Tribune: “A federal time bomb perpetuates cyclical trauma in the foster care system”

● UPDATE, DEC. 8, 2022 From Prof. Shanta Trivedi, director of the  Sayra and Neil Meyerhoff Center for Families, Children and the Courts at the University of Baltimore in Family Court Review: An in-depth examination of why: "The Adoption and SafeFamilies is Not Worth Saving: The Case for Repeal."

● UPDATE, DEC. 12, 2022 From New York City's family defenders in the New York Daily News: "Our collective experience of representing nearly 40,000 New York City parents over the past 15 years makes clear that ASFA must be repealed."

● And from NCCPR in the Albany, N.Y., Times Union “This law was supposed to protect kids from abuse. It hasn't.” 

Previous commentary: 

● Also from Prof. Trivedi, in The Imprint: “Adoption and Safe Families Act is The ‘Crime Bill’ of Child Welfare.” 

● From Kathleen Creamer, managing attorney of the Family Defense Unit at Community Legal Services of Philadelphia and Prof. Chris Gottlieb, director of the New York University School of Law Family Defense Clinic: “If Adoption and Safe Families Act Can’t Be Repealed, Here’s How to At Least Make it Better.” 

Additional resources 

● NCCPR’s ASFA resource page, with an overview of the harm the law has done and responses to some of the excuses put forth by ASFA proponents.

Our annual reminder: End "child welfare"’s public celebration of family executions

 On this Saturday - “National Adoption Day” - who will stop to remember that for some children and some young adults every mass adoption ceremony, every treacly feature story on the local news is an act of cruelty – ripping the scab off a wound that never fully heals?

 

Termination of parental rights is child welfare's "death penalty."  So why do
some of the very judges who order a family "executed" preside over
public celebrations of the aftermath?   


This post originally was published on November 15, 2020

             There was a time when, as a people, we were so uncivilized that executions were a form of entertainment – a public spectacle to be celebrated. 

In Canada, for example, 

Before they were banned in 1870, executions in public places could draw thousands of spectators, including families and young children. Boisterous behavior and a less-than-solemn attitude marked these macabre gatherings.  “When the day of a public execution arrived, the businessmen closed their factories and their stores and the people put on their holiday dresses,” noted an 1894 article in the Evening Star about hangings in early Toronto.   

The last official state-sanctioned public hanging in the United States drew a crowd of 20,000.  Even then, reporters condemned it as a “carnival.” (I probably don’t even need to mention that the man they hanged was Black.) 

Fortunately, nearly a century later, we have, of course, outgrown such practices. 

Except in "child welfare." 

Termination of parental rights (or, as it should be called, termination of children’s rights to their parents) often is described as child welfare’s death penalty.  It is the prerequisite to any adoption of a child from foster care. 

And every year, all over America, we celebrate these family executions with a joyous public spectacle.  It’s called National Adoption Day.  This year it’s happening on Nov. 19. 

You know the drill. Open the court on a Saturday, bring in ice cream, cake and balloons, finalize foster-child adoptions en masse – and reinforce every stereotype about how the system supposedly “rescues” children from horrible birth parents and places them with vastly superior adoptive parents.  The same judges who are supposed to decide impartially on termination cases often lead these celebrations.

            Last year, when celebrations still often were virtual due to COVID, organizers of the Los Angeles County event added a particularly macabre 21st Century touch:  “A pool camera will be permitted at a pre-selected adoptive family’s home for coverage as the family’s virtual adoption ceremony takes place.”

  The whole spectacle also gets the courts and the local family policing agency (a more accurate term than “child welfare agency”) a guaranteed puff piece in the local newspaper celebrating what is, in reality, the aftermath of an execution.  And, of course, as with those other public executions, a disproportionate share of the families “executed” are Black. 

I’ve previously written that this day should be called National Child Welfare Hypocrisy Day – since while "child welfare" systems always piously proclaim that their first goal is to reunify a family they’ve torn apart, the outcome that brings them true joy, the one they celebrate, is when that child, overwhelmingly poor and disproportionately nonwhite, is adopted by someone who often is neither. 

Unlike some of my friends in the family preservation movement, I am not opposed to all involuntary adoptions of children taken from their parents.  I am not opposed to all terminations of parental rights.  On those very rare occasions where this is appropriate, I am not opposed to an adoptive family having a private, quiet celebration.  But each of these things should take place far less often than they do now.

 So in that sense, my previous column was too kind.  It said adoption was sometimes an appropriate second choice after reunification and sometimes the appropriate first choice.  In fact, adoption should be farther down on the list, after not only reunification but also guardianship and perhaps other options as well, such as tribal customary adoption, a practice used by some Native American tribes that might well be adaptable elsewhere.  And while a private celebration is one thing, it should never be a mass public spectacle – it rubs salt into too many open wounds, and not just for parents. 

Prof. Christopher Church, senior director of strategic consulting at Casey Family Programs, has argued that using the term “civil death penalty” to describe the terminations that come before the cake, ice cream and balloons actually understates the trauma to the child.  Horrible as it is to lose a parent to physical death, losing a parent to termination of parental rights can be worse. 

“When a child knows somebody is out there but they have no way of connecting to them, that is ‘ambiguous loss,’” Church said at a recent conference.  “That is a more complex trauma for children than death loss.  … Death is finality and [children] can comprehend that better.” 

Church also reminds us that before the joyous public spectacle there’s sometimes another ceremony, if you can call it that.  It’s called the “goodbye visit.”  Children are told they will never, ever see their parents again, and now they all must say goodbye.  No cake and balloons here; just tears and anguish. 

The children are not always saying goodbye just to their parents.  If one child is adopted and the others are not, the sibling bond is severed forever.  If a parent later has another child whom s/he is allowed to keep, the child who was adopted amid the ice cream and cake may never know that sibling – unless, when they are adults, they find some way to find each other. 

But hey, don’t let that spoil the party. 

I can imagine some readers thinking: But wait. We have to do this, don’t we?  After all, if a case goes to termination of parental rights, the parents must have been the worst of the worst, right? 

Wrong. The termination phase is as arbitrary, capricious and cruel as every other decision-point in child welfare.  As Prof. Vivek Sankaran, director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan, has written: 

[C]ourts seem to terminate parental rights out of a sense of convenience. A child has been in foster care for 15 months, so let’s terminate. A foster parent prefers to adopt a child, so let’s terminate. A parent hasn’t fully complied with services, so let’s terminate. 

            Still another indication of what’s really behind termination cases can be seen in how different the outcomes are by age.  Among children torn from their parents during their first year of life, only 36% are reunified; 46% are adopted.  Then, year after year, reunification rates inch up almost every year until age 14. Nearly 54% of children taken at age 14 were reunified. 

            So are parents of infants vastly worse than parents of 14-year-olds?  Or do caseworkers have their own rescue fantasies triggered by a child about whom they can gush, “Awwww, he’s so cute!” 

            No, we don’t need adoption and the attendant spectacle of mass public family execution to give children “permanence.”  In fact, we don’t know how often adoption does that.  Child welfare systems don’t like to ask questions to which they don’t want to know the answers, so we don’t know how often, when, say, that cute baby becomes a teenager, the adoptive parents change their minds.  

            But even when the adoption doesn’t fall apart, and even when a child really can’t live safely with her or his own parents, the obsession with adoption still hurts children.  As Prof. Sankaran explains: 

Families, and the relationships within them, are far more enduring and resilient than we want to acknowledge. In our quest for legal permanence, we forget about a child’s need for relational permanence, often defined as a child’s lifelong connection with caring adults. For example, too often, we ratify adoptions with the hope of providing a child with a legally permanent home. But in doing so, we cut off the child’s ability to have permanent relationships with those who have – and will always – matter to him. A mother. A sibling. A grandparent. Hence the countless number of stories of adopted children searching for their kin.

           Other options, such a guardianship, don’t require a child to sacrifice any relationships. 

So this time, when National Adoption Day rolls around, remember that for some children and some young adults every mass adoption ceremony, every treacly feature story on the local news is an act of cruelty – ripping the scab off a wound that never fully heals. 

Again, that doesn’t mean adoption by strangers and termination of parental rights are always wrong.  But it needs to be moved much farther down on the list of options for children.  And while, on rare occasions, we still need to impose child welfare’s death penalty, can’t we at least have the decency to stop celebrating it?