The Foster System Is a Battleground for the Racist War on Drugs

New York City’s child welfare office took Ms. EO’s older daughter from her in 2012, after she hit her child on the hand and caused a minor injury. Ms. EO, who identifies as someone with a substance use disorder, was struggling with drinking at the time, but says pointblank that “just because you have an addiction doesn’t mean you can’t be a good parent.” She is currently fighting to be reunited with her youngest daughter, and they both want to be together. Her daughter was traumatized when separated from her mother, harming herself and ending up in psychiatric care. The pain and trauma of separation has taken a terrible toll on both of them, and EO’s drinking initially spiraled out of control under the pain and pressure.

“I pray about it every day and I hope I do get my daughter back because it would completely devastate me,” EO said. “It’s the worst thing on earth. I don’t wish that on my worst enemy. To go see my kids at the agency and have to leave without them, it’s the worst feeling.”

From 2000 to 2011, researchers estimate one third of children in the U.S. were subject to a child neglect or abuse investigation — including a more than 50 percent of Black children, according to a groundbreaking report released this week by family attorneys and drug policy advocates. The numbers are stunning considering that separating a family and forcibly taking a child from their parents is perhaps one of the most egregious and literally terrifying powers of the state. Yet the foster and child welfare system face far less public scrutiny than police and prisons, even though the system largely exists to surveil and control Black and Brown families. The new report, penned by attorney and researcher Lisa Sangoi of the Movement for Family Power, exposes the foster system as rife with drug war attitudes and state violence.

“It’s a system that thrives in silence, it’s a system that thrives in darkness,” said Elizabeth Brico, a journalist who has reported extensively on the foster system as she fights to regain custody of two daughters taken from her two years ago, during a webinar this week.

As the war on drugs reached new heights in the 1990s, the United States poured money into police and prisons while slashing spending on social services, setting the stage for the unprecedented levels of mass incarceration and the systems of surveillance and control we see today. A similar scenario was unfolding in the foster and child welfare system, and by the next decade, up to one in seven Native American and one in nine Black children would be removed from their parents care by the state at some point during the course of their childhood. One in 17 white children were taken from their parents during the same time frame. These high rates of forced family separation were fueled by racist myths about mothers using drugs that persist today despite being roundly dismissed by scientists.

Meanwhile, the U.S. has endured a steady stream of racist police killings that culminated in uprisings after the murder of George Floyd in Minneapolis, setting the stage for a national reckoning with the criminal legal system. Parents and their advocates say the inherent violence of the foster system must be addressed in kind.

“It’s the Worst Thing on Earth”

The number of children taken from their parents and placed in foster care has risen in recent years, most often for “neglect” and “drug use,” although critics say child protective services (CPS) agencies often conflate drug use and neglect. Based on system-wide data and interviews with impacted parents, medical professionals and family attorneys, the report found that the foster system most often targets Black, Brown and low-income white women — and in particular mothers perceived to use drugs. Besides the Trump administration’s “family separation” debacle in 2018, when the Latinx children of migrants were disappeared into the federal foster system for months at a time, this system rarely received media attention beyond sensational and extreme reports of child endangerment.

When encountering CPS, parents find themselves at the mercy of a punitive system where one wrong move could result in their children being ripped from their arms. Family courts are closed to the public and the press; they mimic the criminal legal system but lack most basic rights and protections, according to the report. Courts and CPS focus only on individual responsibility for alleged parenting failures while ignoring the structural failures that create conditions of poverty. Judges and case workers routinely use the threat of child separation as motivator for parents to enroll in parent classes and drug treatment programs, whether or not parents want or need these services. The system also conflates treatment noncompliance with bad parenting, even as parents are attempt to juggle time-consuming treatment programs with making money and taking care of their kids.

“The judge stated I had been utilizing poor coping mechanisms because I discussed the potential of buying marijuana … and that justified removing my children from my care removing me from home and making me homeless,” Brico said.

The foster system gives CPS immense power over families that, while rare, can result in instances of extreme abuse and violence. Just this week in Louisiana, a middle-aged CPS case manager from Arizona stabbed and killed his former client, an 18-year-old mother, because she reportedly refused to date him. Throughout the report, mothers describe being manipulated by CPS and forced to give up their legal rights out of fear that refusing to do so will result in their children being taken from them, including when CPS asks them to sign legal documents or take a drug test. White and Black people use drugs at similar rates, but white parents in the middle and upper classes rarely face the same amount scrutiny as Black parents in lower-income neighborhoods. Similarly, Black people are nearly three times as likely to be arrested for drugs than whites.

“In fear of losing their children the minute they get the knock on that door, they don’t realize they have rights,” said Dinah Ortiz, a parent advocate with the Bronx public defenders and a formerly incarcerated parent. “Any parent that is uninformed is going to give them everything that they ask for.”

In 2017, 83 percent investigations into alleged child maltreatment were closed after no evidence of mistreatment was found. In 2001 alone, more than 100,000 children were taken by CPS and interrogated, often without warning from their homes and schools, only for CPS to determine there was not mistreatment at all. It goes without saying that being taken away from home or school by strangers is traumatizing for children, not to mention their parents. While Sangoi and others behind the report acknowledge that some children do experience harm and mistreatment at home, there are also cases where families are pulled into the system because a parent occasionally uses cannabis or treatments for opioid addiction as prescribed by their doctor. Actual cases of mistreatment typically arise when parents are struggling to survive in poverty; in many cases, the last thing they need is to be fighting to keep their family together in court.

“I have been in and out of programs, I have done everything they have asked me to do. And they always want me to do something new,” said Ms. EO, a Black mother whose story is included in the report. “Now I’m in another parenting class. It’s the third one I have been to. It’s just excuse after excuse of why they do not return my child.”

EO fought hard to get her kids back, enrolling and completing a drug treatment program and multiple parenting classes. But it was not enough. At one point, EO was close to getting her younger daughter back but did not have stable housing. The child welfare agency acknowledged that this circumstance would prevent reunification but had no ability to provide meaningful housing support. Meanwhile, EO learned that her daughter had been molested for over a year while in the foster system and was continuing to harm herself, a fact the agency attempted to hide from her and the judge. Homeless and heartbroken, EO began drinking again, a source of pain relief for trauma she endured early in life and again when her children were taken. While EO acknowledges the harms of drugs and drinking, she says family separation has been much more harmful to her and her daughters. She is currently fighting to prevent her parental rights from being terminated completely — not just the right to bring home her daughter, who loves her, but to maintain any kind of relationship at all.

EO knows her drug use could, at times, prevent her from safely parenting alone, but the risk of harm could have been greatly reduced by measures far less violent and extreme than family separation. For example, wealthier parents often rely on child care when they use drugs to reduce the risk of harm. Permanently separating family members is perhaps one of the most violent acts the government can take, and it immediately diminishes a child’s stability and identity as a member of a family. Once placed in the foster system, parents can often only regain custody of their kids after prolonged periods of abstinence, which says little about whether they can mitigate the harms of drug use and effectively parent. Those who do not maintain abstinence, which is common among people suffering from substance use disorders, are heavily punished. Their children are punished, too.

In 2018, the federal Administration for Children and Families sent out a nationwide memo to child welfare agencies noting that the number of children in foster care is increasing, and CPS agencies should work to prevent “unnecessary family disruption” and the “intergenerational trauma” that is endemic in the foster system. Foster children face high rates of criminalization and are more likely to encounter the foster system as parents. In one case detailed in Sangoi’s report, caseworkers used one young mother’s history of being psychologically traumatized while in foster care as a child against her in family court as she fought for custody of her newborn child. Some survivors of the foster system, often traumatized from being taken from their parents in the first place and living in several homes, have described their experience as a nightmare. ACS urged state and tribal agencies to “reverse troubling trends” and pursue alternatives to forcibly removing children, citing reports of child abuse and other “unsatisfactory outcomes” after children are placed in foster care:

….many families, jurisdictions, and programs report that families would benefit from a temporary boost, someone to listen and provide good counsel, or very basic concrete supports such as help paying rent or a security deposit for housing, child care, transportation, legal services, or brief periods of respite care to allow parents time to seek help and work through a challenging situation.

Between 2004 and 2014, the government spent about $32 billion each year on the child welfare system, including billions in reimbursements that pay foster parents to care for other people’s children, according to the report. Meanwhile, struggling parents at risk of losing their children have little support, let alone the cash assistance necessary to dodge an eviction or other crises of poverty that can be used against them in family court. Nationally, only about $6 billion was spent annually on special nutritional assistance for women and children, and only $17.5 billion went to the Children’s Health Insurance program over the same time frame. The federal government knows the foster system is harming children, but child welfare programs are administered at the state-level, where significant chunks of federal funding are still spent on separating families and fostering kids. In 2014, the foster system allocated nearly three time as much money on removing and maintaining children outside of their original homes than on services aimed at keeping families together.

“It means that these families are being torn apart and told that social conditions such has not having a home, social conditions that are the result of centuries of racism, redlining and inequality, that these social conditions are in fact the fault of mamas, and in particular, drug-using mamas,” Sangoi said during the webinar.

A Legacy of Racism and Drug War Propaganda

Black families were largely ignored by the foster system until the 1960s, when civil rights reforms allowed Black people to access public assistance. States funneled federal public assistance funding into the foster system, and Black mothers quickly came under its scrutiny as austerity-minded politicians deemed them the “undeserving poor.” Soon, the foster rolls were filled with their children. Parents and advocates trace a direct line from today’s foster system to the longstanding practice of punishing the poor for their poverty, and placing their children with “deserving” — often white — families. There is an ugly and well-documented history forcibly removing children from Indigenous mothers in the both the U.S. and Canada, and by the 1970s, up to two-thirds of Native American children no longer lived with their families or even in their own communities, according to the report.

Today, a significant portion of the cases in family courts allege parental neglect based on drug use. Data varies across the country, but by some estimates, about 80 percent all foster system cases involve drug use at some point in the life of the case, according to the report. While these cases range from occasional cannabis use to debilitating substance use disorders, parents and their advocates agree that virtually every case is characterized by “gross misinformation” of the science of drug use.

In Brico’s case, an investigator cited her record of taking methadone as prescribed by a doctor to treat opioid use disorder in a court petition for the removal of her children — even though there was no evidence that Brico was using illicit opioids. Indeed, the government has affirmed that the Medication-Assisted Treatments (MAT) methadone and buprenorphine are safe and effective treatments for opioid addiction during pregnancy, especially when compared to the alternative of going untreated.

However, a recent federal survey of areas of the country hit hard by opioids found that family court judges expected parents to rapidly step-down their MAT regimens, according to the report. Child welfare staff and judges expressed reservations about reuniting children with parents using MAT to treat opioid addiction. Medical experts agree that MAT is the most effective, evidence-based treatment for opioid addiction and is critical for preventing overdose deaths, but judges are discouraging parents from using lifesaving treatments in the midst of a deadly overdose epidemic by threatening custody of their kids.

Brico said CPS came for her daughters after she had an argument with her mother-in-law, whom she and her husband were living with in Florida at the time. She left for three days to cool off after the argument, with her children still in the care of her family, but her mother-in-law called CPS and accused her of child abandonment. CPS asked her to submit her hair for a drug test, but she initially refused out of concern that hair tests may not be accurate. While she had the right to refuse the drug test, CPS used her refusal against her in family court.

“They implied that because I refused [the test] it would have been positive and ultimately it was ordered and it was negative, but my children had already been taken from me and it really didn’t matter anymore,” Brico said.

Forcibly taking a child away from their mother is an act of violence, and in many cases, that violence is rooted in stigma against mothers who use drugs during pregnancy. From 1986 to 1996, the number of children taken from their parents and placed in the foster system increased by 100 percent. This corresponds with a 400 percent increase in incarceration rates as the war on drugs kicked into hyperdrive during an era of increased crack cocaine use. The racist myth that Black and Brown mothers were giving birth to drug-addicted “crack babies” has been thoroughly debunked, but at the time, the term was thrown around recklessly by pundits and lawmakers eager to blame poor people for the conditions of their poverty. Researchers now know that prenatal exposure to cocaine, has little to no effect on a child’s long-term physical and cognitive development. The same goes for cannabis, which some pregnant people use to treat morning sickness. Research shows that the stresses and harms of poverty, however, can have a tremendous impact on child development.

Instead of investing in social programs aimed at alleviating the harms of poverty, for years politicians clung to racist myths and poured money into the foster system by reimbursing states for taking children from low-income parents and adopting them out after 15 months, according to the report. Foster system funds for housing, child care, drug treatment, mental health care on other necessities remained constant and a fraction of the funding spent on removing children from their parents. While recent federal reforms direct more funding toward mental health care and drug treatment services, child welfare systems are administrated by the states, each with its own laws and enforcement culture. Sangoi and others also question whether child welfare agencies should be providing supportive services in the first place, because they are also tasked with family separation and often viewed with the same level of mistrust as law enforcement in targeted communities. Meanwhile, deindustrialization has driven poverty rates in communities across the country that became targets for the war on drugs.

The number of children placed in foster care increased from 2012 to 2017 after years of decline, this time due to the opioid use and the overdose epidemic. It’s well known that hospitals serving lower-income women on Medicaid routinely test pregnant people, new mothers and their newborn children for drugs, often without their informed consent, according to the report. In one study of hundreds of hospitals, two-thirds did not have protocols for drug testing, and among those that did, most ignored the “crucial issue” of informed consent. Hospitals serving wealthier, whiter communities were more likely to have such protocols in place. In 19 states, evidence of prenatal exposure to drugs alone is sufficient to make a child mistreatment finding; in Texas, Illinois, Florida and four other states, evidence of prenatal exposure is grounds for permanently terminating parental rights when there was a prior child with prenatal exposure or a noncompliance with a treatment program. In one study cited in the report conservatively estimated that one in three newborns who tested positive for drugs were placed in foster care during their infancy, taken from their parents at a crucial stage of bonding and development.

“The majority of people who lose their children are Black and Brown, Indigenous and using drugs,” Ortiz said. “They can be functioning using drugs or chaotically using drugs. There are no services for that. The service that they offer is prison. The service that they offer ‘is we are going to remove your child, were going to take you to court.’ It’s punitive, it’s always threats.”

The U.S. now has more “legal orphans” due to permanent termination of parental rights than any other country in the world. Hundreds of thousands of parents lose their right to parent every year, the majority being Black, Native, Latinx, low-income and female-presenting. Millions more are subject to surveillance and mandatory programs and may lose custody of their children for periods of time during the process. Parents and advocates say CPS routinely uses drug tests when investigating alleged child mistreatment, even though drug tests are not always accurate and only detect the presence of drug metabolites. They cannot detect whether a parent casually uses drugs or has a debilitating substance use disorder, although CPS is known for making its own assumptions based on test results and home inspections. A drug test also says nothing about the practices a parent may use to reduce the harms of drug use, and harm reduction strategies could even be used as evidence against them in family court. Yet parents are forced to open their homes to investigators, enroll in a slew of programs, brought into family court, found guilty of abusing their children, and having their children removed for their care all based on drug tests alone, according to the report.

“The difference between parents who successfully avoid losing their children and keep their families intact and those who fail is rarely the type or severity of neglect or abuse involved, but is the degree to which the parent is willing to surrender their humanity, individuality and pride to the system and the court,” said Emma Ketteringham, the managing director of the Family Defense Practice at The Bronx Defenders.

A Racist and Harmful Myth Lives On

Contrary to popular opinion, science has never drawn a causal link between prenatal exposure to drugs and long-term developmental outcomes for infants. The “crack baby” turned out to be a harmful myth that allowed society to blame mothers for structural causes of poor health outcomes such as racism and poverty. While there is less research on other drugs, no study to date has found a direct link between prenatal drug exposure and long-term developmental outcomes, according to the report. Research instead points to a number of confounding variables surrounding the conditions of poverty. And while opioid use during pregnancy can result in transient and very treatable infant withdrawal symptoms, it’s well known that the most effective treatment involves keeping mothers and infants together and encouraging bonding through breastfeeding, skin-to-skin contact and other soothing techniques. However, hospitals are often required to report newborns who test positive for drugs to CPS, increasing the likelihood that a child will be taken from their parents.

Similarly, no direct link has been found between drug use and poor parenting. Research and commentary suggesting otherwise presents evidence that is underwhelming, according to the report. While literature is historically full of claims associating drug use with poor parenting, researchers have been unable to control for confounding variables associated with poverty. A meta-analysis of literature found that the most consistent variable linking poor parenting to drug use was the personal opinion of a CPS investigator, according to the report. Across the country, policies at CPS agencies vary widely, as well the perceptions held by the people who staff them. Some case managers come from the communities they serve and may have the best intentions; others may be impatient and manipulative. Most are working with limited time and resources:

This is only exacerbated by the impossible demands of being a frontline child protective staff. Determining whether a parent has fallen below the minimum degree of care owed to children is frequently challenging and fraught with uncertainty. It requires situation specific, fact-intensive investigations that are made all the more difficult by the fact that the vast majority of parents under investigation are living with the effects of generational poverty and/or racism. In this context, evidence of drug use offers a false sense of certainty in the inherently uncertain endeavor of predicting whether a child is at risk of harm due to their parent’s actions or inactions.

“They pretty much operate on whatever side of the bed they got up on,” Ortiz said of CPS case managers.

Defund and Abolish the Foster System

The report is full of recommendations for the foster system as well as the media, which has long spread harmful myths about drug use and parenting and often only reports on the most severe (and rare) cases of child endangerment. For example, family courts must realize that subjecting parents to drug testing and supervision is not the same as helping their families. Agencies tasked with separating families cannot be trusted by the communities they have harmed to provide services, even if the federal government expands funding for support. However, impacted parents and their advocates have been organizing and asserting their rights for years, and they have concluded that the foster system has become a violent battleground for the war on drugs cannot be reformed. It must be defunded and ultimately abolished, with the resources that have been poured into a system that separates families redirected to community-based supports for helping families stay healthy and united. Now they are asking us to pay attention, to listen to their stories, and to act.

“We don’t deny that there is harm and there is chaotic drug use,” Sangoi said. “But when this harm occurs, we support … the healers and visionaries; it’s not something that can happen overnight in the same way the foster system was not built overnight…. In the overwhelming majority of case, what most families need is just the stuff that the rest of us need: cash assistance, housing, health care.”

These parents and advocates echo the Black and Brown feminists who forged the movement to abolish police and prisons that’s been lifted into the mainstream conversation since the murders of George Floyd, Breonna Taylor, Tony McDade and Rayshard Brooks, among others. They envision a society that divests from punishment, incarceration, surveillance and control, and invests in families instead of tearing them apart. A society that centers harm reduction strategies for reducing the risks of drug use instead of punishing drug users, strategies that have only gained traction during the overdose epidemic after being dismissed by politicians and police for decades. A society where models of community care, accountability and healing replace the foster system. If we can imagine a society where children are never forcibly removed from their parents, the visionaries argue, then we can build it, too.