The year 2020 has been marked by unimaginable tragedy brought to even greater depths by persistent racism. COVID-19 laid bare the health impact of living in a racist society. Recent videos depicting police killings of Black Americans have increased attention to the long history of such violence—in addition to police brutality and mass incarceration more broadly—as longstanding forms of structural racism and the criminalization of Blackness and poverty. In response, protests have buoyed efforts to dismantle carceral institutions in favor of supportive systems. For example, there are growing calls to divest from police to reduce or eliminate unnecessary interactions between police and community members.
But we believe that reinvestment in public health institutions must be made with caution. Too often, institutions that are defined on the surface as “systems of care,” actually conceal carceral and racist policies. The child welfare system is a prime example that warrants critical scrutiny. In this moment of societal introspection on the harms of carceral systems, it is important that we broaden our lens and critically appraise not just police but also other systems that may similarly criminalize Blackness and poverty. In this post, we argue that the child welfare system is one such system that requires honest reflection and reform.
The child welfare system, in theory, is designed to offer a range of services to promote the well-being and safety of children and families. The system is broad, varies by state, and may include contracts and collaborations with private agencies and community-based organizations to provide direct services. Child welfare systems receive and investigate reports of possible child abuse and neglect, provide resources to families in need of assistance, arrange for children to live with other family members or foster families, and provide in-home family services, including mental health care, substance use treatment, parenting classes, intimate partner violence services, employment assistance, and financial or housing assistance.
In practice and in policy, however, carcerality and racism permeate the child welfare system. Black children are overrepresented in foster care at two to three times the rate of White children. Those most structurally disadvantaged due to racism—especially Black women, women who use drugs, or those living in poverty—are more likely to be traumatized by their intersection with the child welfare system, its social surveillance, and particularly, custody loss. As a participant described in a qualitative study of mothers’ experience with custody loss, “I felt for a long time like everything beautiful in me had been taken out.”
This carceral approach is particularly apparent with regards to substance use. The decades-long and largely failed “War on Drugs” at its foundation has criminalized addiction and perpetuated the myth that any and all maternal drug use is a moral failing and is synonymous with child abuse or neglect. While the range of specific injustices can vary by state, four pressing and common issues show how the child welfare system can be particularly harmful to the health and well-being of women with substance use disorder.
Disincentives To Seek Proven Treatment
First, current rules typically discourage pregnant and parenting women from seeking medication treatment with methadone or buprenorphine—even though it is the most effective modality for opioid use disorder, resulting in higher rates of remission and survival.
This perverse disincentive comes out of federal and state child welfare laws that require child protective services to be notified when an infant is born “substance affected” or with withdrawal symptoms. These laws have generally been interpreted as applying to women in treatment with methadone or buprenorphine. When such women give birth, the health care providers (usually the doctors or social workers caring for the woman at the time of delivery) are mandated to inform the child welfare system, irrespective of how they are doing clinically. Yet, the same interpretation does not apply to other prescribed medications such as anti-depressants and anti-epileptics that may also result in neonatal withdrawal syndromes. This approach thereby singles out newborns of women with opioid use disorder and perpetuates stigma toward the use of effective, life-saving medications such as methadone or buprenorphine to treat opioid use disorder.
States can and should change their interpretation of the term “substance affected.” The federal Child Abuse Prevention and Treatment Act (CAPTA)—which requires state policies mandating child welfare system notification—does not explicitly define “substance-affected;” it’s up to the states. And, in fact, if states were to follow the Centers for Disease Control (CDC) guidance—which recommends that pregnant women be “encouraged” to start treatment with methadone or buprenorphine and that neonatal opioid withdrawal is an “expected condition” that “should not deter healthcare providers” from providing these treatments—they could reasonably exclude exposure to these medications from the term “substance-affected.”
Overly Broad Reporting Rules
Second, mandatory reporting according to the overly broad interpretation of the term “substance affected,” may result in false positive investigations, which, in turn, perpetuates trauma, has a chilling effect on help-seeking pregnant women and parents, and negatively impacts parents’ ability to trust their health care providers. The element of mistrust is even more pronounced among Black women, given historical and present medical atrocities, contributing to high rates of maternal and infant mortality rates. The vague and imprecise notion of a “substance affected” infant is also problematic in that it equates any substance use with child abuse or neglect, without considering the broader context of a woman’s life, health, social supports, or protective factors. It also perpetuates oppressive and racist policies, in which the interpretation of what constitutes a “substance affected” infant is highly variable and open to interpretation by many: individual states, providers, or child welfare system workers. For example, Black newborns are four times more likely than White newborns to be reported to child protective services for substance exposure at delivery.
Instead of automatically equating any parental substance use or neonatal physical dependence with child abuse or neglect, states can and should change mandated reporter requirements to be mandatory only when there is suspicion of a child’s emotional or physical injury resulting from parental drug use. Massachusetts’ law Section 51A, for example, makes exactly that distinction in the wording of the law, however, interpretation and thus reporting requirements have continued to equate neonatal substance exposure with concern for abuse or neglect.
Racist Screening Policies
Third, screening, testing, and reporting of substance use among pregnant and parenting women is currently deployed in inherently racist ways. Black communities are already subject to intense and disproportionate social surveillance. Black women are more likely to be reported to child welfare by obstetricians, pediatricians, school systems, and neighbors. And Black American communities have a higher concentration of child welfare system involvement, a clear example of personally mediated racism, where a negative intent is assumed based on racial identity.
In response, health care providers should follow the guidelines of the American College of Obstetrics and Gynecology and employ universal substance use screening (asking questions to screen for risk of unhealthy substance use) but not use routine drug testing. Rates of drug testing of pregnant and parenting women by race—as well as the rates that they’re reported to child welfare agencies by race—should be publicly reported and scrutinized for evidence of ongoing racism.
A Default Toward Family Separation
Fourth, the child welfare system maintains a cavalier default toward separating families, rather than focusing on interventions to support vulnerable mother-infant dyads. Just as “public safety” is often proffered as an excuse for police brutality, child safety is often used as a reason for swift and dramatic action by the child welfare system. This is particularly true of parental substance use where the risks of harm from parental substance use are emphasized while the harms to both parents and children caused by child welfare system involvement and custody loss are minimized. At the same time, child welfare’s involvement is sometimes even framed as an effective contingency to motivate parents to reduce substance use. Empiric evidence supporting this approach is lacking, while evidence of the harms caused by custody loss is strong—including increased maternal drug use, re-traumatization, hopelessness, and worse health outcomes for children.
Instead, we believe states should create a separate system of family-based support that is completely independent from the child welfare system. This system could offer strengths-based care, case management, peer support, parenting resources, linkage to effective substance use treatment when needed, and concrete social service navigation. Such a family-based recovery model has been tested at the local level, and evaluations have found it to be a promising approach to support parenting in the context of parental substance use.
A Historic Moment
Much like racism, evidence of harms of the child welfare system are not new. Yet, we are in a historic moment where our nation may finally be awakening to these harms. Now is the time to begin a conversation about dismantling systems of oppression beyond the police and including child welfare on the list of systems that must be fundamentally reimagined.