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Racial Discrimination in Child Welfare Is a Human Rights Violation—Let’s Talk About It That Way

By Shereen A. White and Stephanie Persson

Pexels | Muhammad-taha Ibrahim
The data are clear and glaring—Black families face discrimination and unequal outcomes at every stage of the child welfare system. Pexels | Muhammad-taha Ibrahim

Public acknowledgement of the discriminatory harms perpetrated by the child welfare system is long overdue.

Every day in the United States, Black children are investigated by the child welfare system and forcibly separated from their parents, at rates far greater than their white peers. Decades of data, research, and lived experiences reveal the deep disparities and discrimination within this system.

Over 50 percent of Black children in the U.S. will experience a child welfare investigation before their eighteenth birthday (nearly double the rate of white children). Nearly 10 percent of Black children will be removed from their parents and placed into foster care (double the rate of white children). One in 41 Black children will have their relationship with their birth parent or parents legally terminated (more than double the rate of the general population). Let those numbers sink in for a moment.

Each of these numbers represents a child and a family for whom contact with the child welfare system has caused harm—from intrusion and disruption to shattered lives. These horrifying statistics don’t even account for the additional trauma Black children often face within the child welfare system (a point we will return to). Involvement with this system, which authorizes the surveillance, regulation, control, and separation of families, causes immeasurable harm to Black children, families, and communities.

That the state can intrude into the private lives of families and separate children from their mothers and fathers hits at some of the most fundamental aspects of our humanity. It touches on the right to family integrity and on a child’s right to his or her identity, and, when compounded by the racial discrimination our child welfare system is structured to impose, it becomes a question of basic equality and human dignity.

Racial discrimination in U.S. child welfare is, in other words, a human rights issue. And a key body of the United Nations (UN) agrees. On August 30, 2022, the UN Committee on the Elimination of Racial Discrimination (CERD), a group of international experts charged with monitoring state compliance with human rights obligations on racial discrimination, expressed concern at the “disproportionate number of children of racial and ethnic minorities removed from their families and placed in foster care” in the U.S. The UN committee called on the Biden administration to “take all appropriate measures to eliminate racial discrimination in the child welfare system, including by amending or repealing laws, policies and practices that have a disparate impact on families of racial and ethnic minorities.” We could not agree more.

What Does Racial Discrimination in the U.S. Child Welfare System Look Like?

The data are clear and glaring—Black families face discrimination and unequal outcomes at every stage of the child welfare system. And once placed into foster care, Black children are moved more often, receive fewer appropriate services, and then are four times less likely to be reunified with their families than white children.

Black youth also experience worse outcomes once they leave foster care—for example, 23 percent of Black youth who age out of foster care experience homelessness and 29 percent experience incarceration, far higher rates than for non-Black youth.

The U.S. Administration for Children and Families, the federal agency responsible for overseeing national child welfare policy, has acknowledged that racial discrimination exists in our child welfare system. In 2021, the agency publicly agreed that Black children and other racial minorities are disproportionally represented in the child welfare system. The cause, it found, was bad policies and “structural racism.”

What Role Does the Federal Government Play?

Federal laws are, unfortunately, a key component in why Black children face discrimination and unequal outcomes in the U.S. child welfare system.

For example, under current federal law, the majority of children in the U.S. aren’t separated from their parents because of abuse; they are separated for neglect—a code word that typically represents conditions of poverty, resulting in disproportionate separation and harm to Black families, which is especially shameful when you consider the cause. These conditions include inadequate food, housing, or clothing. In 2020 over 70 percent of all children, and 63 percent of Black children, removed into the U.S. foster system were taken from their families for reasons related to “neglect.” Due to historic injustices, Black children are significantly more likely to grow up in homes experiencing poverty.

President Biden himself acknowledged, in April 2021, that “too many children are removed from loving homes because poverty is often conflated with neglect” and that “the enduring effects of systemic racism and economic barriers mean that families of color are disproportionately affected.”

The federal law responsible for this policy, the Child Abuse Prevention and Treatment Act (CAPTA), conditions federal funding on individual states’ inclusion of the vague and harmful category of “neglect” in their state laws and policies. Repealing this requirement, which punishes poverty, and instead expanding access to the resources and community supports that families need is a key step toward keeping families together.

CAPTA also requires states to adopt a system called “mandated reporting.” Mandated reporting requires that teachers, doctors, and other service providers must report families suspected of child maltreatment to a hotline, which then initiates an intrusive investigation. The result of this federal requirement has been the surveillance and policing of Black families, biased reporting, professionals forced to report instead of support families, and a tremendous increase in children entering the system. Since CAPTA was enacted, the number of suspected child welfare cases reported annually skyrocketed from 60,000 reports in 1974 to two million by 1990.

Mandated reporting is also biased. Research has shown that reporters are far more likely to screen and report Black families than white families. For example, pregnant Black women are four times more likely to be screened for drug use than white women, even without any prior report of substance abuse. Similarly, a Black mother’s refusal of medical care is twice as likely to be reported to child welfare services as abuse.

Federal law has also played a role in the disparate termination of Black parents’ legal rights. For example, the Adoption and Safe Families Act created statutory timelines for how long a child can be in the foster care system before the child’s birth parents’ legal rights can be terminated. These timelines are both arbitrary and often impossible for parents to meet. Since the law came into effect, the number of children who experience a termination of parental rights has increased dramatically. Today, a shocking 1 out of every 41 Black children in the U.S. will have their legal relationship with their parent or parents terminated (compared with 1 out of every 100 children in the U.S.). Disturbingly, every year more children have their parental legal rights terminated than are adopted out of the child welfare system—creating a new category of children termed “legal orphans.” Here again, the majority of legal orphans are Black.

The Trauma of Removal and Child Welfare Involvement

The disproportionate investigation and removal of Black children cause tremendous trauma and harm to both children and parents. For most children, entry into the child welfare system is unexpected, shocking, and traumatic. Children are taken from their homes by strangers to a new and unfamiliar place, often a group home or sometimes even an office. In the process, they may be separated from their siblings and their belongings, and they may even be strip-searched. Separating children from their families breaks a critical source of attachment. The American Academy of Pediatrics has found that family separation “can cause irreparable harm, disrupting a child’s brain architecture and affecting his or her short- and long-term health.” Parents too experience harm and trauma from such separation.

Many children also experience harm within the child welfare system. There is substantial evidence that children are actually more likely to be abused while in foster care than in the general population. Children in foster care are also at increased risk for mental health disorders, are more likely to be overprescribed psychotropic medication, and are at increased risk for exposure to sex trafficking. The long-term outcome for children aging out of foster care is similarly poor. Children who have been in foster care are at increased risk for criminal justice involvement, less educational achievement, higher rates of drug and alcohol abuse, and higher risk of future homelessness.

Despite these severe and well-documented harms, the U.S. child welfare system and legal system rarely consider the harm of removal. Only a handful of jurisdictions in the U.S. even require courts and judges to incorporate this inquiry into their decisions on removal into state custody.

What Is the United Nation’s Committee on the Elimination of Racial Discrimination?

The Committee on the Elimination of Racial Discrimination is a body of independent human rights experts responsible for monitoring and ensuring the implementation of a human rights treaty—the International Convention on the Elimination of Racial Discrimination (ICERD). The United States signed ICERD in 1966 and the Senate ratified the treaty in 1994.

By signing and ratifying ICERD, state parties agree to pursue “eliminating racial discrimination in all its forms.” The treaty requires that a participating government must not practice racial discrimination in public institutions, and must review existing policies and “amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination.”

It is important to note that, under ICERD, the standard for measuring racial discrimination is “disparate impact.” In other words, it does not matter whether the intention of a particular law, policy, or practice is racial animus. If a racial or ethnic minority is disproportionately affected, the state party must take steps to review and address the harm.

Under the agreed-upon terms of the treaty, each participating state comes up for review every four years. The U.S. came up for review in 2022. As part of that review process, the U.S. State Department submits a detailed report describing what steps it is taking to combat racial discrimination in a variety of forms and how it believes the U.S. is complying with its obligations under the convention. This starts an interactive review process, which includes an oral hearing before the CERD’s members and culminates in a written set of recommendations provided to the U.S. government.

The review process is also an opportunity for nonprofits and other civil society advocates to provide additional information to the UN committee, bolstering or countering information provided by the state.

The committee had previously addressed concerns regarding the removal of Indigenous children into the child welfare system and had also expressed concern about the separation of migrant children from their parents at the southern border. These concerns are serious and ongoing, but the committee had unfortunately never reviewed or addressed the reality that similar separations and harm are also faced by Black families forced into the child welfare system.

We felt that it was important that the committee understand the deep racial discrimination that has permeated the child welfare system, both historically and into the present. In May 2022, Children’s Rights, in partnership with the Human Rights Institute at Columbia Law School, wrote a letter asking the committee to add racial discrimination against Black children in child welfare to the topics it would review—which it did. In July, we together drafted a report, endorsed by over 30 advocates and civil rights organizations, detailing the history of discrimination in child welfare and asking the UN committee to hold the U.S. accountable for its failure to adequately address or remedy these harms. We were honored to join our fellow advocates on that powerful report.

We felt that acknowledgment of this issue was so important that we took our cause to the committee itself—traveling to the review session held at the Palace of Nations in Geneva, Switzerland. Together with fellow advocates, attorney Angela Burton, Joyce McMillan from JMacforFamilies, and Hina Naveed from Human Rights Watch, we walked below the famous row of flags representing all 193 UN member states, and testified to the CERD about the discrimination and harms experienced by Black children and families in the U.S. child welfare system.

What Did the United Nations Committee Have to Say?

Speaking to U.S. officials gathered in the UN building, the committee for the first time addressed racism against Black children and families as part of its review of the United States’ treaty obligations under ICERD. 

At a public hearing, Biden administration officials were asked to explain what steps they are taking to combat discrimination in child welfare and were asked to address specific laws, including CAPTA, the Adoption Assistance and Child Welfare Act, and the Adoption and Safe Families Act, which perpetuate harm against Black families. While the U.S. representative, speaking on behalf of the Department of Health and Human Services, acknowledged ongoing racism in child welfare, she did not address specific racist laws and policies, nor answer what the U.S. government is doing to course-correct.

Following the review session, the CERD released a detailed set of findings and recommendations—setting out areas of concern it believes violate the human rights obligations set forth in the ICERD treaty. The committee specifically expressed its concern “at the disproportionate number of children of racial and ethnic minorities removed from their families and placed in foster care” and noted that “families of racial and ethnic minorities are subjected to disproportionately high levels of surveillance and investigation and are less likely to be reunified with their children.”

To address these violations, the committee recommended that the government

take all appropriate measures to eliminate racial discrimination in the child welfare system, including by amending or repealing laws, policies and practices that have a disparate impact on families of racial and ethnic minorities, such as the Child Abuse Prevention and Treatment Act, the Adoption and Safe Families Act and the Adoption Assistance and Child Welfare Act.

The committee encouraged the administration to “hold hearings, including Congressional hearings, to hear from families who are affected by the child welfare system.

What Comes Next?

Public acknowledgement of the discriminatory harms perpetrated by the child welfare system is long overdue. Twenty years after the publication of Shattered Bonds: The Color of Child Welfare, in which legal scholar Dorothy Roberts detailed and exposed this issue, awareness of racial discrimination in child welfare is finally gaining increased momentum. For example, both the American Bar Association and the New York State Bar Association have recently released reports acknowledging systemic racism in child welfare and calling for change.

However, it is significant that a United Nation’s human rights body, one charged with reviewing and addressing racial discrimination, has chosen to weigh in on this issue. It allows us to call this problem what it is—a human rights violation.

The weight of that term is appropriate here. The language of human rights speaks to the “inherent dignity, and of the equal and inalienable rights of all members of the human family.” In the current U.S. child welfare system, government power is wielded disproportionately and discriminatorily against Black and minority families, intrudes into the private lives of families, penalizes poverty, and causes irreparable trauma and harm to children, families, and communities. Such a system violates these basic human rights.

The language of human rights also allows us to discuss child welfare discrimination using standards and vocabulary more directly able to address these concerns. For example, the disparate impact standard and the right to family integrity are concepts more fully fleshed out under international standards but still struggling to find their footing in domestic jurisprudence.

The CERD review process is meant to be a dialogue and a temperature check. How is the United States doing on key issues of racial discrimination and where does it need to do better? The committee’s answer as to discrimination in child welfare is now clear—the U.S. needs to do a whole lot better.

An immediate first step is for the Biden administration to listen to the committee’s concerns and deliver a concrete plan to hear public testimony from families and others directly impacted and to aggressively restructure and repeal harmful laws and policies. If the administration really wants to commit to fighting for racial justice, as it claims, that must include dismantling the racist structures that underlie the current child welfare system. 

The CERD review process happens on a four-year cycle, so in four years the U.S. government will again have to report to the UN committee on its progress and what steps it has taken to address racial discrimination in child welfare. Advocates must seize this opportunity to hold our government accountable. For families in the system, four years is far too long. For the U.S., the clock is ticking. 

 

Shereen A. White is the director of advocacy and policy and Stephanie Persson is a senior staff attorney at Children’s Rights in New York City, New York.

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