Abstract

The United States’ child welfare system has long been an emperor with no clothes. The stated mission of the federal Children’s Bureau is to strengthen families, prevent child abuse and neglect, and ensure permanency for children. This mission is impossible to critique in the abstract. But the reality is that this behemoth of a system—operating with an annual budget of nearly $10 billion and claiming custody over more than 650,000 foster children each year—often undermines child welfare, rather than promotes it. Under the guise of benevolence, this system routinely uses civil law to tear apart families, particularly Black, brown, and poor families. Activists and scholars increasingly question this punitive system and its failures, revealing that this emperor is not as clothed as it seems. This critical movement is rooted in, among others, Dorothy Roberts’ 2002 seminal book, Shattered Bonds: The Color of Child Welfare, and Marty Guggenheim’s pioneering work in the family defense field. This Article centers itself in that past and present critical tradition.

This Article critiques one particular phenomenon of the child welfare system: the systematic civil removal of newborn infants from people who have used substances during their pregnancy. With the help of state-enlisted agents (that is, healthcare workers who are mandated reporters of child abuse and neglect), the child welfare system routinely takes emergency custody of newborn infants when their parent has used substances at some point during their pregnancy. Even though prenatal drug use does not invariably harm a fetus, and the harms that do result can often be mitigated, the welfare system still responds by removing infants from their parents. These civil separations have devastating effects on individual parents and children and disproportionately affect Black, brown, and poor communities across generations. Federal law, state practice, and government funding backstop this enterprise of severance. This Article details the legal mechanics leading to separations and then goes on to propose something that is currently absent from legal scholarship—practical steps that can be taken by lawyers and legislators to challenge and prevent civil removals of infants. Ultimately, this Article pushes practitioners and policymakers to reimagine the nation’s approach to parents who use substances during pregnancy by first understanding the connection between child wellbeing and family preservation.