FIJ Quarterly - Summer 2022 Edition

dignity, citizenship, and natural law.” 7 The slave era maxims of family destruction continue to animate the structure, financing, and practices of the current family policing system. Child-taking and the threat of child-taking is the operative throughline from American chattel slavery to the present-day family policing system. 8 Even when government agents don’t take children, Black parents are routinely subjected to oppressive, intrusive, and disrespectful oversight of their parenting and inspection of the intimate details of their lives by government employees and private agents. 9 By policy and in practice, laws such as the Child Abuse Prevention and Treatment Act of 1974 (CAPTA) and the Adoption and Safe Families Act of 1997 (ASFA) incentivize disruption and destruction of Black families while empowering the deprivation of agency, dignity, and self-determination of Black parents by government agents. 10 CAPTA is the foundational “child welfare” law that federalized the nationwide “child protective services” (CPS) system of surveillance, reporting, investigation, prosecution, and “prevention and treatment,” allowing government agents to wield police power in ways that rival even the criminal policing system. 11 Dorothy Roberts observes that “[r]esidents of black neighborhoods live in fear of state agents entering their homes, interrogating them, and taking their children as much as they fear police harassing them in the streets.” 12 “Caseworkers routinely demand entry into homes in the middle of the night without warrants. The interrogations are frightening; the strip searches degrading. Far too often, they end with the trauma of children pulled from their parents’ arms.” 13 CAPTA’s design gives these street-level bureaucrats wide discretion and virtually unchecked power to deprive Black families of dignity, privacy, autonomy, integrity, and self-determination. Described by Shanta Trivedi as the “Crime Bill” of child welfare 14 and mass-marketed as an effort to improve the safety of children by “freeing” them for adoption, ASFA gives states financial incentives to terminate all legal relationships between children and their parents after the child has been in foster care for fifteen months without any requirement of

showing that the parents have harmed their children or that maintaining a relationship would be harmful to them. 15 Excavating the racialized history that led to its enactment, Professor Martin Guggenheim describes ASFA as, “the most family destructive law ever enacted since slavery was abolished.” 16 Disruption, control, and destruction of Black families under color of these laws (and many others) 17 constitute “badges and incidents of slavery,” with Black children and their families 8 PEGGY COOPER DAVIS, NEGLECTED STORIES: THE CONSTITUTION AND FAMILY VALUES (1997); Peggy Cooper Davis, “So Tall Within”—The Legacy of Sojourner Truth, 18 CARDOZO L.REV.451 (1996); Peggy C.Davis, Use and Abuse of the Power to Sever Family Bonds, 12 N.Y.U. REV.L. & SOC. CHANGE 557 (1983). 9 See, e.g., Darcey H. Merritt, Lived Experiences of Racism Among Child Welfare-Involved Parents , 13 RACE &SOC.PROBS.63, 69 (2021) [hereinafterMerritt, Lived Experiences ]; Kelly Fong, Getting Eyes in the Home: Child Protective Services Investigations and State Surveillance of Family Life , 85 AM.SOCIO.REV. 610 (2020); Darcey H. Merritt, How Do Families Experience and Interact with CPS? 692 ANNALS AM.ACAD.POL.&SOC. SCI.203 (2020). 10 See, e.g., Burton & Montauban (CAPTA); Marty G (ASFA); Miriam Mack (Families First); Cynthia Leon and Jessica Dixon Weaver. 11 See generally, Dorothy Roberts, Torn Apart; see also 12 Dorothy Roberts, Abolishing Policing Also Means Abolishing Family Regulation , The Imprint, June 16, 2020, abolishing-policing-also-means-abolishing-family- regulation/44480. ______________ 7 Id. (Davis at 4). 13 Chris Gottlieb, Black Families Are Outraged About Family Separation Within the U.S. It’s Time to Listen to Them , TIME (March 17, 2021, 9:00 AM), https://time. com/5946929/child-welfare-black-families/[https://] (noting that “fearmongering about child abuse has empowered child protective authorities to unfairly target [Black and Brown] communities and invade their homes with virtual impunity....”). 14 Shanta Trivedi, Adoption and Safe Families Act is the “Crime Bill” of Child Welfare, The Imprint, January 28, 2021, safe-families-act-crime-bill-child-welfare/51283. 15 Martin Guggenheim, How Racial Politics Led Directly to the Enactment of the Adoption and Safe Families Act of 1997 - The Worst Law Affecting Families Ever Enacted By Congress , 11 Columbia Journal of Race and Law 711, 715 (2021). 16 Guggenheim. 17 See CHILD.’S BUREAU, ADMIN. FOR CHILD & FAMS., U.S. DEPT. HEALTH & HUM. SERVS., MAJOR FEDERAL LEGISLATION CONCERNED WITH CHILD PROTECTION, CHILD WELFARE, AND ADOPTION: FACT SHEET (2019), pdf[].

38 | FIJ Quarterly | Summer 2022

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