Catalyzing the Separation of Black Families: A Critique of Foster Care Placements without Prior Judicial Review

By Simon, Kathleen B. | Columbia Journal of Law and Social Problems, Spring 2018 | Go to article overview

Catalyzing the Separation of Black Families: A Critique of Foster Care Placements without Prior Judicial Review


Simon, Kathleen B., Columbia Journal of Law and Social Problems


I.INTRODUCTION

Across the country, child protective agencies removed nearly sixty thousand African American1 children from their homes and placed them in foster care in 2016.2 While many of these removals were warranted due to dangerous home environments, not all were. Some of the sixty thousand children relegated to state custody were victims not necessarily of maltreatment, but of stereotypes about black parental unfitness.3

Child protective removals are emblematic of the racial discrimination that has been pervasive in the child welfare system for almost a century.4 At every stage of the child protective continuum, black children are over-represented and under-served as compared to white children: they are more likely to be reported to agencies as suspected victims of maltreatment, more likely to be investigated, and more often forcibly removed from their homes.5 once in foster care, black children receive worse placements, remain for longer, and are less likely to be reunified with their parents.6

Child welfare interference, as a result, may at times hurt children more than it helps. The state's intrusion in the upbringing of a child can emotionally and financially harm her family.7 The consequences are more pronounced when the state separates the child from her family and places her in an unfamiliar out-of-home placement.8 Even if the removal is temporary, the experience inflicts lasting trauma on the family.9 The damage is compounded when reunification is delayed or does not occur.10

At the same time, the state's removal of a child - a devastating governmental intrusion that requires due process11 - is often effectuated without a pre-deprivation hearing.12 Data from a number of states reveal that around half of all removals are conducted without prior judicial review.13 Although states theoretically reserve these emergency removals for exceptional circumstances in which an agency suspects that a child faces at least an imminent risk of harm, studies have uncovered that a considerable number of children were immediately removed when no such risk was identified and less restrictive alternatives existed.14

This Note argues that the pervasiveness of emergency removals catalyzes black children's disproportionate15 and disparate16 engagement with the foster care system. Because there is no judicial check on decision-making susceptible to racial bias, caseworkers are more likely to remove children because of racial prejudice rather than the risk to which they were exposed.17

In search of a solution to preclude racial bias from readily influencing these governmental interferences, this Note examines state laws that authorize emergency removals without prior judicial authorization. This Note specifically performs an original analysis comparing the disparity rates in foster care entries among states to identify whether a particular kind of enabling law better safeguards against discriminatory removals. The analysis shows that in states with less stringent emergency removal laws - when the agency does not have to consider whether there is enough time to file a court order before removing a child - greater racial disparities exist among foster care entries by all measures. Based on the study's findings, this Note suggests that state legislatures enact more stringent emergency removal laws in order to safely reduce the number of black children entering foster care.

This Note will proceed as follows. Part II will provide background on racial disproportionalities and disparities in the child welfare system. Additionally, Part II will explore the role of emergency removals in driving racial imbalances and the need to scrutinize the laws authorizing these removals. Part III will offer an overview of the state laws governing summary removals and the circuit split over the constitutionality of these laws. Part IV will introduce a study comparing racial disparities in foster care entries among jurisdictions and propose a legislative solution to decrease racial disparities in foster care. …

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