April 3, 2019 (NEVER PUBLISHED)

When Child Welfare Intrusion Makes Reproductive Freedom an Illusion

By Fallon Speaker and Erin Cloud

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Among the most fundamental liberties owed to all women is reproductive freedom—the right to plan a family and parent children without government intrusion. Mothers entangled in the child protective system do not fully enjoy this right. Every aspect of their mothering is infantilized by people claiming to serve their interests.

New York City's Administration for Children’s Services (ACS) criminalizes mothers with child protective histories even when such histories are not indicative of neglect. Mothers who are flagged as “risks” include those who: give birth in foster care; have children in foster care; ask ACS for help; are formerly incarcerated; have mental health diagnoses or disabilities; and live with addiction. Vulnerable to an unforgiving system, many of these parents will lose their children to ACS shortly after delivery.

This happened to Mary*, one of the thousands of mothers we represent each year in Bronx Family Court. In 2016, ACS became involved in her life due to allegations of intimate partner violence. ACS asked Mary to sign over custody of her son to his grandmother because she did not have housing. She ultimately agreed, believing she would be able to take him back once she found suitable housing. He has yet to return home. In July 2018 she gave birth to a new baby, Liam.* She had an apartment and was ready to be a mother. After she gave birth, a hospital social worker came to speak with her. Mary cooperated, believing her responses were confidential and being used to help her. She told the worker that she had been diagnosed with postpartum depression in 2016 and depression in 2017. Based on this history alone, the social worker reported her for suspected neglect. ACS removed Liam and placed him with strangers. Mary went to court to fight for her son. Two weeks later he came home, but her case is still pending.

Mary’s motherhood is now under judicial review. As with bail, the decision to return your child is supposedly based on a safety determination, and what follows is a separate inquiry as to whether you actually committed the charges. And as in the criminal legal system, mothers in Family Court also wait months for their trials to adjudicate guilt. While waiting, they share custody of their children with the government. In the case of Mary, Liam is temporarily released to her under strict conditions that she comply with invasive surveillance programs, such as monitoring by individuals in her home for 12 hours a day and home visits by caseworkers, who report to the Court. If she is perceived to make any mistakes, these missteps could constitute grounds for another removal and even new charges.  

Hopefully Mary’s case will be dismissed, but there is no guarantee.  In Family Court, the standard of proof is low and the stigma and lack of understanding of mental illness is high. Even if Mary is exonerated, her fight is not over. Every time ACS comes into a mother’s life a child protective history is written, the parent is stamped with a virtual “Scarlet Letter,” and the open-ended threat of surveillance is made until she stops bearing or raising children.

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 are silent during their labor. They stay silent when their C-section scars rip after they have waited all day on a court bench for just 10 minutes in front of a judge to beg for their baby. They do not challenge their doctors for fear of having ACS called in response. They suffer rather than asking for help, often 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. They stay silent because they know that their poverty will be seen as neglect. For poor Black women, it is worse: not only are they fighting class bias, but also the historical erosion of their reproductive liberties that traces back to chattel slavery.  

Change must happen now. We can start by rejecting the notion that maternal “risk” can be predicted by poverty or Child Protective Services data. In both the child protective and criminal legal systems, there is a push to define risk through assessment tools to predict safety; in child welfare, the tool is named predictive analytics. Stories like Mary’s remind us that child protective “histories” cannot be reduced to algorithms, and that flagging people like Mary can have disastrous effects.

Let’s interrogate how we allow ACS to infiltrate our systems. End mandated reporting that turns schools and hospitals into sites of surveillance for some communities and not others. Dismantle the relationships between ACS and birthing providers. Stop drug testing women during delivery without a medical reason and informed consent. Eliminate the practice by the State Central Registry of keeping these women on neglect and abuse lists for up to 28 years.

Rethink prevention. While preventive services can be a tool to mitigate the harms of the current foster system, truly valuing poor, Black, and Brown mothers means financial investment.  America spends billions of dollars on foster care; it’s time we give it back to the communities. The State should increase housing, cash and food subsidies, subsidize nanny services, pay radical doulas, and provide free healthcare and legal assistance to all families with child welfare involvement.  

Attack racism. Interrogate the structural and interpersonal ways that discriminatory practices sustain the system and the stakeholders. If we cannot commit to these changes, then we must be honest and admit that for poor, Black, and Brown women, reproductive freedom is an illusion.


* Names and identifying details have been changed to protect client confidentiality.


Photo By: The Bronx Defenders

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