LGBT FAMILY LAW INSTITUTE 2020
Fulton v. City of Philadelphia: The Challenge of Fighting BOTH Discrimination Against LGBT Foster/Adoptive Parents AND Excess State Removal of Children from Their Parents
Presented by Nancy Polikoff, American University Washington College of Law
What is the child welfare system?
The child welfare system is a regime of public, private, and faith-based entities and individuals authorized by force of law to remove children from their parents and terminate the parent-child relationship. It includes a massive foster system in which the state pays vastly more money to strangers to raise other people’s children than it is willing to provide parents to raise their own children. Almost 20 years ago, in Shattered Bonds: The Color of Child Welfare, law professor Dorothy Roberts wrote, “If you came with no preconceptions about the purpose of the child welfare system you would have to conclude that it is an institution designed to monitor, regulate, and punish poor Black families.” Those words remain as true today as they were in 2001. A nascent movement, building on prison abolition work, seeks to abolish the child welfare system, better referred to as the family regulation system. The demands of the Movement for Black Lives include "Eliminate the foster system's power to permanently and irreversibly destroy Black families through termination of parental rights." For more information, visit the Movement for Family Power and the Center for the Study of Social Policy UpEND Movement, and please plan to attend the Columbia Journal of Race and Law 2021 Symposium, Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being.
How do LGBT parents interact with the child welfare system?
LGBT parents interact with the child welfare system in two ways: 1) they experience removal of their children and termination of their parental rights; and 2) they seek to be foster and adoptive parents. You have likely heard way more about the latter group than the former, because LGBT advocates vigorously oppose laws that permit agencies to refuse to license foster and adoptive parents. Also, couples wanting to foster and adopt were highly visible in same-sex marriage litigation and activism.
Do we really need to be concerned about LGBT parents whose children are removed by the state?
YES! A research study of African-American mothers that asked questions about sexual orientation in conjunction with questions about loss of children to the state found to a statistical significance that the mothers who identified as lesbian/bisexual were over four times more likely to have lost their children than those who identified as heterosexual. There is no data on the number of LGBT parents who have lost their children to the state. There is, however, data showing that lesbian mothers and same-sex couples are disproportionately African-American and economically disadvantaged, and that they live in the same neighborhoods as low-income African American heterosexual mothers -- the very group, in the very neighborhoods, most targeted for child removal. In addition, there is research showing that LGBT individuals, many of them parents, disproportionately experience many risk factors that correlate with facing child welfare investigations, such as homelessness and housing instability, food insecurity, substance abuse, incarceration, a history of physical or sexual abuse, and having been a foster child oneself.
LGBT parents experiencing child removal face some unique issues: discrimination in both the removal decision and the decision whether to reunite the family; failure to treat a nonbiological parent as a legal parent; and failure to treat chosen family as relatives and kin, which carries special meaning in child welfare placement decisions. Just consider this: some of the same agencies that refuse to license LGBT foster and adoptive parents provide case management services to parents whose children have been removed and placed in foster homes. They have the power to determine that a child will never go home to a lesbian mother.
But beyond LGBT specific issues, we need to be concerned about all child removal decisions.
Injustice pervades all child removal decisions
Child removal is a vital matter of racial and economic justice. Over the past twenty years, lawyers, academics, policy makers, activists, and parents have written and spoken about the defects in, and harms inflicted by, the child welfare system. Critics have identified, among other concerns: misidentifying poverty as neglect; widespread due process violations; denying services that are legally mandated to prevent child removal or reunite families who have been separated; inadequate mental health and substance abuse treatment and the ever-more-frayed safety net; untimely and ineffective legal representation; inappropriate reunification requirements; vague standards; misdiagnoses of child abuse; drawbacks of mandatory reporting; consequences of child abuse registries; financial incentives for foster placements and adoptions but not for returning children to their parents; the foster-care industrial complex; mistreatment and bad outcomes of children in foster care; differential application of laws; the impact of increasing income inequality; and, unrelenting, ongoing, structural racism, which commonly goes by the gentler term “racial disproportionality.” During this period there have been some new studies, laws, regulations, and practices, yet the evils persist.
This is our challenge
Discrimination against LGBT individuals and same-sex couples who want to foster and adopt is wrong. But so far the primary argument LGBT advocates make in opposing such discrimination is that there are so many children in need of foster and adoptive homes. Here is one example: “There are approximately 400,000 children in the U.S. foster care system, 100,000 of whom are waiting to be adopted. Unfortunately, because of a lack of available adoptive parents, 23,000 of these youth will leave foster care without ever finding a permanent, loving home.” (emphasis added). Such an argument presumes that the children in the foster system are rightly there; that the evils described in the previous section do not exist; and that what is needed is more adoption, including by LGBT parents. These presumptions clash with the demands of racial and economic justice activists to remove fewer children and reunite those who are removed. And remember that there are likely a disproportionate number of children of LGBT parents in the foster system.
And so...in the face of the racism and other injustices that result in child removal, including disproportionate removal from poor, Black lesbian/bisexual mothers, (how) is it possible to argue that discrimination against LGBT people who want to foster and adopt is wrong?