September 19, 2018

Child Welfare Policy Makes Reproductive Freedom an Illusion

By Erin Cloud and Fallon Speaker

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Among the most fundamental liberties supposedly guaranteed to all women is reproductive freedom — the right to conceive, plan a family, and parent children without government intrusion.  However, women entangled in the child protective system do not fully enjoy this right. Instead, every aspect of their mothering is placed under a microscope, scrutinized, and infantilized by people purporting to serve their interests.

The historical erosion of Black reproductive liberties trace back to chattel slavery, and persists today. It is grounded in a pathology of poverty and racism that blames individual mothers for social failings.  Poor families are more likely to be subject to child welfare investigations because they live in public housing, rely on public assistance, or live in highly policed neighborhoods. Black and Brown women are dehumanized by tropes of lasciviousness, volatility, and inferiority, which reframe our parenting as neglect.  

The New York City Administration for Children’s Services (ACS) tracks and criminalizes mothers with “child protective histories” even when such histories don’t suggest they cannot parent their children. These include mothers who: give birth while in foster care or have children in foster care; voluntarily go to ACS for help if they are overwhelmed; have had child protective charges even if the cases are ultimately dismissed; are subject to lengthy mandatory minimum prison sentences; have had mental health diagnoses or disabilities; and who refuse to give their children up for adoption placements. All these women are subject to being “flagged” for potential child neglect at the birth of their children, and many will lose their children to foster care shortly after delivery.

Take for example the story of “M.,” one of the thousands of mothers we represent every year in Bronx Family Court. Two years ago, ACS became involved in her life after the birth of her first child due to allegations of intimate partner violence.  ACS asked her to sign over custody of her son to his grandmother because she was a victim of homelessness. She ultimately agreed, believing she would be able to take him back once she found suitable housing.

In July 2018 she had a new child, Baby L, whom she immediately started to bond with and nurse. She had an apartment and support system and was ready to take on the full responsibilities of motherhood. Soon after she gave birth, a hospital social worker came to take her social and child protective history.  M. cooperated, believing her responses were confidential and being used to help support her and her newborn. She told the social worker that she had been diagnosed with postpartum depression in 2016 and depression in 2017, twice signing herself into a hospital for observation and assistance. Based on M.’s reported history, not any present safety concerns, the social worker reported her for neglect of Baby L. Rather than provide the postpartum support M. and Baby L needed to be healthy and well, ACS removed Baby L and placed him in the home of strangers, severing M.’s ability to nurture and breastfeed him.  

M. came to court immediately seeking to be reunited with her son. After hearing the evidence, a judge ordered Baby L returned to her. But M. will never get those first weeks of her son’s life back. Unlike White or middle-class mothers who have the option of choosing supportive birth services, M was forced by the court to allow a “homemaker” — a provider under contract with ACS who monitors her interactions with her son — in her home for up to 12 hours per day, seven days per week. She must submit to announced and unannounced home visits by caseworkers, subject to a court proceeding that will last for at least another year. And simply by being a mother to Baby L, her “child protective history” has expanded, and will attach to any future children. She does not, and will not, be free to parent or to raise her family or any future children without the authorization, surveillance, or approval of the government.

Women with child welfare involvement know all too well these realities, so their birth plan is simple: to leave the hospital with their baby. They do not challenge their doctors for fear of having ACS called in response. They stay silent even as their C-section scars rip on court benches while fighting for the return of their children. They suffer rather than ask for help when they need it, putting their own physical and mental health at risk, and then are called “bad mothers” by the very systems that are supposed to support them.  

Women like M. must be supported, both during pregnancy and after giving birth. That includes fighting the discriminatory tracking of Black and Brown mothers by child protective services. In Killing the Black Body, legal scholar Dorothy Roberts urged us to explore ways that the denial of Black reproductive autonomy serves the interest of White supremacy. We must work in coalition with reproductive justice movements to abolish systems that reinforce or replicate such oppression. Instead of relying on systems of surveillance that do more harm to marginalized families than good, and that they and we see as predatory, we must create spaces of support that respect and protect their families. If these changes do not occur, then we must be honest with ourselves and admit: For poor Black and Brown women, reproductive freedom is an illusion.

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Erin Cloud is a supervising attorney and Fallon Speaker is a staff attorney with The Bronx Defenders.