In No One’s “Best Interest”: The Hidden Racialized Impact of the Family Regulations System

Every year, state officials conduct about two million child welfare investigations, subjecting children and their families to home searches, physical examinations, and interviews. [1] While such investigations sometimes reveal instances of abuse or neglect, many families are forced through the intrusive process for seemingly no reason at all; in 2002, only twenty-eight percent of the two million investigations were later substantiated. [2] Most surprisingly, the Fourth Amendment requirements of a particularized warrant and probable cause do not apply to suspected cases of child abuse, despite child welfare investigations bearing strong resemblance to criminal ones. [3] As a result, investigations can occur following a single, anonymous phone call or for reasons as trivial as not having the technology needed for the child to participate in virtual learning during COVID-19. [4] 

Many activists and scholars have drawn parallels between the criminal justice system and the child welfare system, as both have a history of disproportionately surveilling and traumatizing low-income communities of color. [5] Prior to the Civil Rights Movement, Black children were excluded from child welfare services altogether. [6] When the system began to serve more minority children in the 1970s, child welfare philosophy became increasingly punitive: governments invested less on in-home services and more on out-of-home care, increasing the number of children in foster homes instead of investing in welfare services. [7] Studies have also found that it takes a higher risk of maltreatment for a white child to be put in foster care, compared to the risk for a Black child. [8] As a result, around half of Black and Indigenous children are subjected to a child welfare investigation before turning eighteen—nearly double the rate of white children. [9] To that end, this article refers to the system that handles child protective services as “family regulations” instead of “child welfare,” as the former more accurately describes the regulatory and punitive nature of this system. [10] The family regulations system can be especially hostile to a Child in Need of Care (CINC), a legal term for a minor that faces imminent harm under the care of their parent or guardian. [11] In order to mitigate the systemic abuses of this system, if a child is deemed to be a CINC, courts must prioritize placing them with their relatives instead of foster care. Furthermore, by recognizing the historical injustices of the family regulations system, dependency courts must shift from using the “best interests of the child” standard to prioritizing the well-being of the entire family when determining custody arrangements.

Once a child is deemed a CINC, they are taken into state custody, at which point they may either be placed in a foster home or with a relative (henceforth referred to as “relative placement”). [12] Technically, child welfare law requires states to “consider giving preference to an adult relative over a nonrelated caregiver”; however, following the 1997 passage of the Adoption and Safe Families Act (ASFA), the family regulations system has increasingly favored foster care. [13] Under ASFA, agencies are encouraged to begin adoption planning as soon as a child enters foster care, while the federal government gives financial bonuses to states that increase adoption—disincentivizing relative placement. [14] As a result, children in foster care have been put on a “fast track” to adoption, with adoptions nearly doubling between 1996 and 2000 and states earning over twenty million dollars in adoption bonuses. [15] Yet around half of the children who are put into foster care by ASFA are never adopted, while between nine and twenty-four percent of adoptions from foster care are eventually broken up. [16] Furthermore, Black children are more likely to be placed in foster care but less likely to be adopted, once more indicating the disproportionate harm to communities of color. [17]

Additionally, most state laws require agencies to make a “reasonable effort” to place a child with their relatives if doing so is in the “best interest” of the child. [18] The “best interest” standard became a major fixture in state statutes and courts in the 1970s and 1980s; it relies on several factors relating to the child’s and family’s circumstances and prioritizes the health, safety, and welfare of the child above all else. [19] Though “best interest” may seem like the most intuitive basis to determine whether a child should be put in foster care, it has been criticized for violating parents’ rights over the care, custody, and control of their children and for allowing courts to make arbitrary decisions about what constitutes a child’s “best interest.” Judges have unrestrained discretion when making decisions about what custody arrangements would be in a child’s “best interest,” and can take away parental custody without evidence of a compelling justification to do so. [20] 

Such discretion often invites biases and stereotypes regarding what attributes constitute a fit parent. In Palmore v. Sidoti (1984), the U.S. Supreme Court overturned a Florida trial court ruling that transferred custody of the divorced couple’s daughter from Linda Palmore to Anthony Sidoti. [21]  Rather than making the decision based on Palmore’s ability to be a parent, the trial court focused on her cohabitation with a Black man and reasoned that it would be against the child’s “best interest” to be in a racially mixed household. Though the Supreme Court eventually overturned the ruling on the basis of the Equal Protection Clause (that it is impermissible to consider race when determining child custody), the trial court’s decision was initially affirmed by the Florida District Court of Appeals. [22] Similarly, in Thigpen v. Carpenter (1987), an Arkansas Court of Appeals case, the court found that a parent being in a same-sex relationship was grounds for transferring custody to the child’s father, as the mother’s sexual orientation went against the child’s best interests. [23] Both Thigpen and Palmore illustrate how the “best interest” standard is easily subject to implicit biases against minorities. Though Palmore could be seen as a success, the decision was premised on the use of an unconstitutional racial classification rather than the arbitrariness inherent to the “best interest” standard.

Furthermore, many courts appoint Court Appointed Special Advocates (CASAs), or volunteer guardians, to represent the “best interests” of the child. CASAs, who are disproportionately middle-class white women, are often given too much discretion over what determines a child’s “best interest,” allowing implicit biases about what constitutes a good childhood to determine a child’s custody arrangements. For instance, one CASA testified that two sisters’ quality of life would be better in their two-parent white foster home than with their single Black father, even though their father had completed every requirement assigned by the court; another expressed “concerns” about a Black mother-daughter bond when the mother allowed her daughter to unbuckle her own seatbelt. [24] By deferring to the CASA’s view of the child’s family situation, judges effectively abdicate their role to a lay volunteer who has neither been appointed nor elected to their position. Furthermore, the use of a so-called “neutral” perspective, which is based on the CASA’s own ideals and experiences, perpetuates the belief that the heterosexual, white middle-class family is the norm or the ideal, marginalizing low-income families, families of color, and immigrant families in the process.

Given the incentives created by AFSA and the biases inherent to the family regulation system, more explicit protections must be created for children to be reunited with their families. Indeed, relative placement has proven to be a better option for children and their families. Evidence indicates that children who are placed in foster care face a higher risk of mental health problems, unemployment, homelessness, low educational attainment, and Post-Traumatic Stress Disorder (PTSD) than those in long-term relative placements. [25] Moreover, relative placement has led to children doing better in school, being happier, and changing homes less often—which could better achieve the AFSA’s stated goals of stability and permanence as well. [26] Research has also shown that placement with relative caregivers can preserve children’s cultural identity and community connections, improve behavioral and mental health outcomes, and minimize the trauma of removal, which can occur when children are suddenly removed from their parents, home, siblings, friends, school, and other important aspects of their life. [27]

The importance of maintaining the family unit has also been affirmed by the Supreme Court. In Stanley v. Illinois (1972), the Court overturned the Illinois Supreme Court’s decision to deny an unwed father custody of his children after their mother’s death, arguing that “the custody, care and nurture of the child reside[s] first in the parents” rather than the state. [28] Even though the familial unit in Stanley was not legitimized by marriage, the majority opinion stated that “such cases were often as warm, enduring, as important as those arising within a more formally organized family unit.” [29] The Court’s opinion in Stanley thus implies that there is  something unique to the family unit that gives it special significance independent of the state institutions that define it—an implication that may work against the “best interest” standard.

More promisingly, In re. Dependency of K.W. (2022) demonstrates a potential avenue through which courts can rule in favor of relative placement while considering the discriminatory history of the “best interest” standard. In In re. K.W., the Supreme Court of Washington reversed the Washington Juvenile Court’s decision to not place K.W., a seven-year-old Black boy, with his relatives who had effectively raised him since infancy. Despite K.W. expressing a “strong desire” for relative placement, the Department found both his aunt and grandmother to be unsuitable for placement and against K.W.’s “best interest,” due to reasons including the appointed CASA’s evaluation of his relatives, their prior involvement with law enforcement, and his grandmother being a past victim of domestic violence. The Supreme Court of Washington affirmed that such reasons, along with other factors used to determine if a child is eligible for relative placement (including immigration status and ability to speak English), “operate as proxies for race or class” and must not affect custody arrangements. [30] By prioritizing K.W.’s “attachments and sense of stability,” as well as the cultural and emotional support that his relatives offered him, the Supreme Court of Washington was able to give “meaningful preference” to relative placement and return K.W. to his family. [31] 

The majority opinion further argued that the “best interests” standard is based on the view that the “best family” is a heterosexual, white middle-class one; as a result, courts have broken up stable Black and Indigenous families that are seen as “deficient” when measured against this norm. [32] This arguments suggests that courts can adjudicate custody arrangements while being actively conscious of the deeply racialized history of the family regulation system—as well as the U.S. legal system. Additionally, In re. K.W. can lend support to future policies that replace the “best interest” standard with one that more adequately protects the integrity of families. Though the precedent set by In re. K.W. is limited to Washington State, its argument that actors in family regulations proceedings “must be vigilant in preventing bias” could be a viable starting point for courts and advocates in other states. [33] 

For example, B.B. v. Hochul, an ongoing class action lawsuit filed by the Legal Aid Society, similarly alleges that New York City has routinely and unfairly denied relative placement due to past involvement with the criminal justice system. Given that Black Americans are disproportionately likely to come into contact with police, the plaintiffs argue, using factors like past convictions—and even dropped charges—has a “disproportionate impact on families of color and serve[s] to reinforce other discriminatory government practices,” echoing the argument in In re. K.W. about justice system involvement being a proxy for race and class. [34] Though the family regulations system is deeply flawed, both In re. K.W. and B.B. indicate that the law can serve as a promising starting point for dismantling its racially discriminatory practices.

Ultimately, relative placement is a meaningful but small starting point for ending the systemic harms of the family regulations system. Cases like In re. K.W. have begun to shed light on the legal significance of the system’s abuses and identified a potential avenue through which courts can play a mitigatory role. Yet it is equally—if not more—important to reduce involvement in the family regulations system altogether, given its entrenched history of surveilling, separating, and punishing families of color. [35]

Edited by Mrinalini Sisodia Wadhwa

Sources:

[1] Doriane Lambelet Coleman, “Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment,” William and Mary Law Review 47 (2005): 415.

[2] Coleman, “Storming the Castle,” 417.

[3] Coleman, “Storming the Castle,” 415.

[4] Washcarina Martinez Alonzo, “How overreporting child neglect hurts families,” New York Daily News, October 17, 2021.

[5] Dorothy Roberts, “Abolishing Policing Also Means Abolishing Family Regulation,” The Imprint, June 16, 2020, https://imprintnews.org/child-welfare-2/abolishing-policing-also-means-abolishing-family-regulation/44480.

[6] Dorothy Roberts, “Prison, Foster Care, and the Systemic Punishment of Black Mothers,” UCLA Law Review 59, no. 12-45 (December 4, 2012): 1483-1491.

[7] Roberts, “Prison, Foster Care,” 1483-1491.

[8] Roberts, “Prison, Foster Care,” 1483-1491.

[9] Emily Putnam-Hornstein et al., “Cumulative Rates of Child Protection Involvement and Terminations of Parental Rights in a California Birth Cohort, 1999–2017,” American Journal of Public Health 111 (2021): 1157-1163.

[10] Emma Williams, “‘Family Regulation,’ Not ‘Child Welfare’: Abolition Starts with Changing our Language,” The Imprint, July 28, 2020, https://imprintnews.org/opinion/family-regulation-not-child-welfare-abolition-starts-changing-language/45586.

[11] Avery Alexon Guidry, “Why Relative Placement Is Best for a Child in Need of Care,” American Bar Association, October 3, 2019, https://www.americanbar.org/groups/litigation/committees/childrens-rights/articles/2019/fall2019-why-relative-placement-is-best-for-a-child-in-need-of-care/.

[12] Guidry, “Why Relative Placement.”

[13] State plan for foster care and adoption assistance, U.S. Code 42, § 671.

[14] Olivia Golden and Jennifer Macomber, “The Adoption and Safe Families Act” in Intentions and Results: A Look Back at the Adoption and Safe Families Act (Washington DC: Center for the Study of Social Policy, 2009), 8-34.

[15] Erin Cloud, Rebecca Oyama, and Lauren Teichner, “Family Defense in the Age of Black Lives Matter,” CUNY L. Rev. 20 (2016): 85-86.

[16] Cloud, Oyama, and Teichner, “Family Defense,” 86-87.

[17] Cloud, Oyama, and Teichner, “Family Defense,” 86.

[18] Child Welfare Information Gateway, “Placement of Children With Relatives,” Children’s Bureau, January 2018, https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/placement/.

[19] Child Welfare Information Gateway, “Determining the Best Interests of the Child,” Children’s Bureau, June 2020, https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/.

[20] Nicole Lapsatis, “In the Best Interests of No One: How New York's "Best Interest of the Child" Law Violates Parents' Fundamental Right to the Care, Custody, and Control of Their Children,” St. John’s Law Review 86, no. 2-3 (Spring-Summer 2012): 676-678.

[21] Palmore v. Sidoti, 466 U.S. 429 (1984).

[22] Palmore v. Sidoti, 466 U.S. 429 (1984).

[23] Thigpen v. Carpenter, 730 S.W.2d 510, 513 (Ark. Ct. App. 1987).

[24] Amy Mulzer and Tara Urs, “However Kindly Intentioned: Structural Racism and Volunteer CASA Programs,” CUNY L. Rev. 20, no. 1 (2016): 23-67.

[25] Moira A. Szilagyi et al., “Health Care Issues for Children and Adolescents in Foster Care and Kinship Care,” Pediatrics 136, no. 4 (2015): e1142-e1166.

[26] Andy Newman, “They Wanted to Foster Their Great-Grandson. Why Did New York Say No?,” The New York Times, November 10, 2021, https://www.nytimes.com/2021/11/10/nyregion/foster-care-lawsuit-nyc.html.

[27] Heidi Redlich Epistein, “Kinship Care is Better for Children and Families,” Child Law Practice Today, July 1, 2017, https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-36/july-aug-2017/kinship-care-is-better-for-children-and-families/.

[28] Stanley v. Illinois, 405 U.S. 645, 651 (1972).

[29] Stanley v. Illinois, 405 U.S. 645, 652 (1972).

[30] In re K.W., 504 P.3d 207, 220-221 (Wash. 2022).

[31] In re K.W., 504 P.3d 207, 218-223 (Wash. 2022).

[32] In re K.W., 504 P.3d 207, 219-220 (Wash. 2022).

[33] In re K.W., 504 P.3d 207, 220-221 (Wash. 2022).

[34] Complaint, B.B. et al v. Hochul, 47, No. 1:21-cv-06229 (E.D.N.Y.).

[35] Dorothy Roberts, “The Regulation of Black Families,” The Regulatory Review, April 20, 2022, https://www.theregreview.org/2022/04/20/roberts-regulation-of-black-families/.