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August/September 2020Vol. 21, No. 6Our Moment of Obligation: Replacing Foster Care With a Family Compassion System

Written by Vivek S. Sankaran, clinical professor of law, University of Michigan Law School

One of my first cases representing children in foster care involved an 11-year-old boy whose aunt had called child protective services (CPS) asking for help to address his challenging behaviors in her home. But rather than supporting the family, CPS deemed my client a risk to the aunt's other children and immediately placed him in foster care, where he remained for years. I remember driving him around in my car, from one placement to another. I learned quickly he was always more willing to open up on a full stomach, so the smell of greasy fries from McDonald's would fill my car. After a few fries, he'd give me the biggest smile and even crack a few jokes.

But as the years went by, he began to decompensate. He bounced from one group home to another. He grew angry and resentful and became disconnected from his family, who stopped visiting. He eventually aged out of foster care and became homeless.

But he did not remain homeless for long. A short time after he exited foster care, he was arrested for murder. Now, he sits in prison serving a 40-year sentence. Not a day goes by without me thinking about his case and that initial response by CPS to his aunt's phone call. What if the system had responded by offering her meaningful support? What if a social worker had worked with the family to develop a safety plan? What if a therapist had worked with my client to address the years of abuse and other trauma he had suffered? What if a lawyer had ensured my client was receiving the right services in school? If these things had occurred, would the little boy with an infectious smile who enjoyed fries in the back of my car be spending the rest of his life in a prison cell?

Both the pandemic and cries for racial justice have given many of us a chance to reflect about the work we have been engaged in for years. Both have forced us to confront injustices that we have long tolerated despite knowing their harm to families. We have tolerated a system that spends 10 times more to support strangers caring for children than to support the child's own family. We have tolerated a system in which more than half of all Black children will experience a traumatic investigation by CPS by the age of 18. We have tolerated a system that takes away Black and Brown children at a disproportionately high rate compared with White children and is then reluctant to send them home.

Rather than mourn these outcomes as tragedies, we have remained agnostic to them, claiming they are beyond our reach. When a case enters the juvenile court, we proceed without recognizing the oppressive policies that contributed to the family's instability. We impose strict time limits on reunification even when we know that decades of systemic racism played a role in the family's predicament. We celebrate the destruction of families despite acknowledging that families in our system never got the support they deserve, both before and after they became involved with child welfare. 

We have all been complicit in allowing these injustices to persist. I have been part of the problem.

But now we have a choice. Do we continue to close our eyes and blindly proceed in a broken system? Or is this our moment of obligation, a time in which we feel compelled to start fighting for a new system that supports and not supplants families; heals rather than fractures; listens rather than fixes; allows families, and not professionals or volunteers, to define what they need to raise their children; and substitutes compassion for judgment?

Is this our time to replace foster care with a family compassion system?

The family compassion system recognizes several truths. First, a system that serves families must be designed by the families it intends to serve. Parents, youth, kin, and community members must lead the effort to redesign foster care.

Second, the system must recognize that healing takes time and should resist imposing arbitrary time limits in the name of securing legal permanency for a child. Children yearn to keep the meaningful relationships in their lives rather than have them severed just so we can claim to have achieved legal permanency. 

Third, the system must nurture those relationships. Meaningful relationships—based on mutual respect, kinship, and dignity—are what enables any of us to overcome the barriers in our lives. Radical compassion that honors these relationships is the defining feature of this system.  

Fourth, the system understands that it has not earned the right to substitute its own judgment for what is best for someone else's child. Its legal framework reflects only objective questions of child safety and, in turn, rids itself of any invitation to invite discretion and substitute judgment into the calculus of whether a child can remain with their family.

Finally, the family compassion system is funded in a way consistent with these truths. Funding cannot be linked to separating children from their parents and placing them into foster care. Rather, the family compassion system allows for flexible funding to address the concrete needs of families, such as child care, housing, and health care, so that kids can remain safely with their families. 

I can't do anything to help my former client sitting in a Maryland prison cell. That is a mistake that will always haunt me. I hope it haunts every other professional that, like me, was charged with advocating on his behalf. We did not protect him, and we likely damaged him even more with our complicity.

But I have made my choice. I choose to be a part of the movement to replace our flawed approach to foster care with a reimagined family compassion system.