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December 2020Vol. 21, No. 9Child Welfare Needs a Radical Course Correction

Written by Martin Guggenheim, Fiorello LaGuardia professor of clinical law and co-director, Family Defense Clinic, New York University School of Law

No wealthy country in the world treats children born into poverty as the United States does, nor does any other country in the world run a child welfare system the way the United States does. Neither of these statements should be taken as a compliment. Far from it. On both counts, the United States does these things worse than any country with which it likes to be compared.

Over the past generation, the United States has become the world's leader of wealthy nations in two respects. First, it has the weakest infrastructure for ensuring child well-being for children born into poverty. Unlike the western European countries with which it is most commonly compared, the United States refuses to have a negative income tax, universal child care, free visiting nurse services, and other essential services routinely made available in the most progressive countries. That, by itself, should be troubling to anyone committed to improving the lives of children born into poverty. As a result, as compared with these countries, America's poor children rank last in virtually every category used to count child well-being.

But this doesn't come close to revealing just how bad things really are. The United States is rhetorically committed to caring about children, but it manifests that concern uniquely by running a "child welfare" system that, in key characteristics, is the opposite of the rest of the world's systems. Whereas other countries take pride in the degree to which they are able to reduce child poverty and its worst effects on child well-being by ensuring that children are able to be raised by their families, the United States takes great pride in disrupting poor families by placing children in foster care and then forever banishing them from their parents after terminating their parents' rights when the children have spent 15 months in foster care. No other country has laws even remotely similar. Professionals in other countries would count as a tragedy what professionals working in the American child welfare system celebrate. Indeed, were they to learn they were the world's leader in permanently destroying families, the professionals outside the United States would insist they cease doing so immediately and reevaluate where they went wrong so they could radically change course.

This is precisely what those working in the child welfare system in the United States should do in 2021. I recognize that the language employed here will fall harshly on the ears of most professionals who work in the field. The well-meaning professionals who have made child welfare the focus of their professional lives, including social workers, caseworkers, judges, court-appointed special advocates, children's lawyers, agency lawyers, agency heads, and the leaders of foundations that helped erect this destructive system, sleep well at night believing they are advancing child well-being as best they can. This is a plea to reconsider that belief and see the truth staring out at all of us.

Surely something is wrong with any system that is as hated and feared by those ensnared by it as is the child welfare system. The subjects—parents, grandparents, aunts, uncles, children, and the communities who love those children—see it as highly destructive. They fear it and fervently wish it would cease existing. And their views are widely shared by the lawyers and social workers who fight for these families to be able to live together.

Children born into poverty are unlucky. But children born into poverty in the United States are uniquely unlucky. In too many countries in the world, those born into poverty understand that no one will pay serious attention to them or their families. Their plight is frequently a life-long struggle for subsistence. Children born into poverty in most wealthy western countries are fortunate to live in societies that guarantee minimum income to all families and other vital services designed to mitigate structural inequality. Children born into poverty in the United States do not get the resources many wealthy countries provide. But neither are they totally ignored. Instead, the predominant form of intervention too many poor children receive is their removal from their families and their placement in foster care, which, far too mechanically, leads to their never being allowed to be part of their family again. As my colleague Chris Gottlieb has written, "We are the only country in the world that routinely pays people to adopt children whose birth parents want desperately to raise them. And we turn thousands of children who will never be adopted into legal orphans, dooming them to remain in foster care until they come of age."

Now is the time to change what we are doing. The coming year is when the children's rights organizations and major foundations that built the current child welfare field need to reevaluate what they have done, repudiate those efforts, and commit themselves to the world's understanding of children's rights: to create a society in which children born into poverty are allowed to thrive in their families of origin. Children in the United States deserve to live in a society that wants them to grow up in their own families. They deserve to live in a society committed to ensuring that happens. Until we dismantle the current system called child welfare and replace it with this very different definition of child welfare, the United States will remain, to its shame, an outlier in the world of nations.

Since 1997 when Congress enacted the Adoption and Safe Families Act, the first law in American history that pays states a bonus for each family they extinguished over the number destroyed the year before, the United states entered one of its darkest periods in its history involving children, a period that is sure to be repudiated. We will, I am confident, look back on this era as more than a misguided turn in policy. It will be regarded as a human rights tragedy that historians will struggle to explain.