| Original Full Text | The Scholar: St. Mary's Law Review on Race and Social Justice Volume 26 Number 2 Article 1 5-31-2024 Legally Sanctioned Takings of Black Children: How Slavery Reverberates in the Modern Child Welfare System Abigail Mitchell Follow this and additional works at: https://commons.stmarytx.edu/thescholar Part of the Civil Rights and Discrimination Commons, Family Law Commons, Human Rights Law Commons, Juvenile Law Commons, Law and Race Commons, and the Law and Society Commons Recommended Citation Abigail Mitchell, Legally Sanctioned Takings of Black Children: How Slavery Reverberates in the Modern Child Welfare System, 26 THE SCHOLAR 141 (2024). Available at: https://commons.stmarytx.edu/thescholar/vol26/iss2/1 This Article is brought to you for free and open access by the St. Mary's Law Journals at Digital Commons at St. Mary's University. It has been accepted for inclusion in The Scholar: St. Mary's Law Review on Race and Social Justice by an authorized editor of Digital Commons at St. Mary's University. For more information, please contact sfowler@stmarytx.edu, egoode@stmarytx.edu. 141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 141 ARTICLE LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN: HOW SLAVERY REVERBERATES IN THE MODERN CHILD WELFARE SYSTEM ABIGAIL MITCHELL* I. LEGALLY SANCTIONED FAMILY SEPARATION OF ENSLAVED PEOPLES ................................................................................................. 145 A. Crafting Slavery: The Early Days ............................................. 145 B. Legislatively Sanctioned Separations........................................ 146 C. Economics and Slavery ............................................................... 147 D. Another Level of Legal Involvement: Court Sales .................. 148 E. Litigating Enslaved Family Separations ................................... 149 F. Normative Frameworks Justifying Slavery and Family Preservation Rhetoric ................................................. 152 II. FAMILY SEPARATION POST-ABOLITION & TESTING ASSIMILATION STRATEGIEs .................................................................. 154 III. THE MODERN FAMILY REGULATION SYSTEM .................................... 158 A. The Federal Law Framework ..................................................... 158 B. The Impact of the Current System.............................................. 160 * Abigail Mitchell is a graduate of Loyola University Chicago School of Law and practices as a Family Defense Public Defender in Cook County, Illinois. 1Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 142 THE SCHOLAR [Vol. 26:141 IV. ANTEBELLUM PATERNALISM & THE WELL-INTENTIONED CASEWORKER .................................................... 163 CONCLUSION ................................................................................................ 165 In a time when telecommunications were primitive and blacks lacked free-dom of movement, the parting of black families was a kind of murder. Here we find the roots of American wealth and democracy—in the for-profit destruction of the most important asset available to any people, the family.1 Today, Black children are overrepresented at all stages of the “child welfare” process, including initial family separations, terminations of pa-rental rights, and length of foster care stays.2 This disproportionality has continued despite the Supreme Court repeatedly recognizing an implicit fundamental right to family unity absent a “powerful countervailing in-terest.”3 Dorothy Roberts wrote “[t]here are few institutions as culturally 1. Ta-Nehisi Coates, The Case for Reparations, ATL. (June 2014), https://www.theatlan-tic.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/SZ4Y-SWKN]. 2. See Alan Dettlaff & Reiko Boyd, Racial Disproportionality and Disparities in the Child Welfare System: Why Do they Exist and What Can Be Done to Address Them? 692 ANNALS OF THE AM. ACAD. OF POL. & SOC. SCI. 253, 254 (2020) (arguing the causes of racial disproportion-ality originate from a common underlying factor: structural and institutional racism found within child welfare systems and society at large); see also CHILDREN’S BUREAU, AFCARS REP. No. #28, (2021) (presenting data that shows Black children are overrepresented in the American foster care system). 3. See Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925) (holding that “governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instructions from public teachers only”); see also Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981) (“[P]arent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ [and] is an important interest.”); Lehr v. Robertson, 463 U.S. 248, 261 (1983) ( “T[]he mere existence of a biological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds.”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (declaring that liberty is more than “freedom from bodily restraint but also the right . . . to marry, establish a home, and bring up children[.]”); Santosky v. Kramer, 455 U.S. 745, 75354 (1982) (“[T]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model par-ents . . . .”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“It is cardinal with [The Supreme Court] that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’”); cf. In re 2The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 143 sacrosanct and legally violated as the American family.”4 The contem-porary child welfare system employs legal authority to remove children from predominantly low-income parents—imposing demanding “service plans” on parents while their children languish in foster care placements, often prolonging separation or terminating parental rights for any per-ceived failure to comply with the system’s requirements.5 The legal sys-tem consistently justifies every step of this process.6 Throughout the history of the United States, the White American ruling class has aided in carrying out the implementation and enforcement of policies and regulations which lead to countless family separations.7 Be-ginning in the 1870s, private entities relocated around a quarter of a mil-lion predominantly impoverished Catholic immigrant children from ur-banized areas to Protestant farming communities located in the Midwest, intending to assimilate these individuals into “good” Americans.8 Start-ing in the 1880s, the federal government began separating thousands of Indigenous children from their families, first forcing them into boarding schools, then by the 1950s, using targeted child welfare removals on res-ervations to assimilate them into White society to cut costs.9 In 2017, Chung Toy Ho, 42 F. 398 (D. Or. 1890) (“[I] is direct authority in favor of the conclusion that the children of a Chinese merchant under article 2 . . . are entitled to admission into the United States with their father or after him; and, if a child, why not his wife?”). 4. See Dorothy Roberts & Nia T. Evans, The “Benevolent Terror” of the Child Welfare System, BOS. REV. (Mar. 31, 2022), https://www.bostonreview.net/articles/the-benevolent-terror-of-the-child-welfare-system/ [https://perma/cc/DGD5-FYR2] (explaining the child welfare system as structured to disadvantage and over-policed Black and low-income families). 5. See generally Dettlaff & Boyd, supra note 2, at 253 (evaluating the negative implications that family deconstruction and other devastating child welfare policies have on children of color). 6. See id. at 264 (“Multiple studies have examined the extent to which racial bias impacts decision-making at various decision points once families are involved in the system by using sta-tistical controls to isolate the role of race.”). 7. See HUM. RTS. WATCH, “IF I WASN’T POOR, I WOULDN’T BE UNFIT:” THE FAMILY SEPARATION CRISIS IN THE US CHILD WELFARE SYSTEM 23 (2022) https://www.hrw.org/sites/de-fault/files/media_2022/11/us_crd1122web_3.pdf [https://perma.cc/6KZS-ZSJN] (highlighting that the practice of separating families has a long history in the United States, stretching back centuries during the era of chattel enslavement and under White enslavers). 8. See Anita Sinha, A Lineage of Family Separation, 87 BROOK. L. REV. 445, 469 (2022) (underlining the efforts made to match children with Christian families who would provide basic necessities, care, education, and employment for the betterment of these children who would later contribute to society). 9. See id. at 457 (claiming the objective behind the displacement of Indigenous “[c]hildren [was to] replace their inferior, ‘savage’ culture with ‘civilized,’ that is, White, Christian ways”). 3Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 144 THE SCHOLAR [Vol. 26:141 when the Trump Administration implemented policies for border patrol agents to separate migrant families at the U.S.-Mexico border, it sparked significant outrage among activists and advocates.10 Professor Anita Sinha characterizes the collective narrative of family separation within minority communities in American history as a “lineage.”11 This term is fitting—underscoring the profound loss of lineage when families are sep-arated.12 Yet possibly the oldest and most persistent strain of the family separation tradition began with slavery-based removals.13 The echoes of chattel slavery’s punitive family separations still reverberate today through the modern legal separation of mostly Black children from Black parents.14 The separation of Black families remains a furtive American tradition.15 This paper aims to convey the historical narrative surrounding the sep-aration and surveillance of Black families, elucidating the ways the legal framework evolved to efficiently separate Black families and continues to uphold each step of the separation process. First, this paper examines the societal, legislative, and judicial measures taken to separate Black families during the time of slavery—all devised to ensure the maximum economic benefit for enslavers. Second, this paper will address the in-terim post-abolition period in which White society carefully crafted mod-ern family conceptions and regulations, unilaterally excluding and deval-uing Black families. Third, this paper lays out the legally sanctioned surveillance of Black families by the modern family regulation system. Finally, this paper presents the argument that the modern institution uti-lizes the same antebellum paternalism justification used during slavery to 10. See id. 474–75 (stating that the advocacy and widespread criticism of the Trump admin-istration’s family separations played a crucial role in swiftly bringing an end, particularly to the “zero tolerance” policy instructing U.S. immigration officials to separate migrant children from their parents). 11. See id. at 499 (“The lineage of US family separation [that] traces back to the American slave system” and the detrimental consequences of policies that promote deporting and putting individuals in detention because they also prevent family unions.). 12. See id. (highlighting that family reunions are prevented as a result of policies that pro-mote deportation and detention). 13. See id. (considering the corrosive nature of kidnapping both parents and children from their homes in Africa). 14. See id. at 450 (citing the Dred Scott v. Sandford decision as a prime example of manip-ulations of the White-dominated legal system). 15. See id. at 449 (comparing other family separation initiatives that the United States gov-ernment endorsed after slavery, including Indigenous boarding schools and “orphan trains”). 4The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 145 cast enslavers as “well-intentioned” and the enslaved as “in need of their guidance.” I. LEGALLY SANCTIONED FAMILY SEPARATION OF ENSLAVED PEOPLES “I have seen mothers kissing for the last time the faces of their dead off-spring; I have seen them looking down into the grave, as the earth fell with a dull sound upon their coffins, hiding them from their eyes forever; but never have I seen such an exhibition of intense, unmeasured, and un-bounded grief, as when Eliza was parted from her child.”16 A. Crafting Slavery: The Early Days In colonial America, indentured servitude included European children and often led to family separation.17 However, indentured servitude was neither permanent nor inheritable.18 As slavery became more prominent, the creation of new laws ensured that the enslaved population was unable to free themselves or their progeny.19 In the early 1660s, Elizabeth Key successfully sued for her and her daughter’s freedom in part because they were both the daughters of White men.20 In 1662, in response to this loophole, the Virginia legislature announced that all enslaved children 16. SOLOMON NORTHUP, TWELVE YEARS A SLAVE: NARRATIVE OF SOLOMON NORTHUP, A CITIZEN OF NEW-YORK, KIDNAPPED IN WASHINGTON CITY IN 1841 AND RESCUED IN 1853, FROM A COTTON PLANTATION NEAR THE RED RIVER IN LOUISIANA, 85 (C.M. Saxton 1859) (il-lustrating the agonizing impact of family separation on Black mother’s during slavery); see also Adam Serwer, Trumpism, Realized, ATL. (June 20, 2018), https://www.theatlantic.com/ideas/ar-chive/2018/06/child-separation/563252/ [https://perma.cc/7M9A-NNTY] (emphasizing the perma-nence of family separation during slavery). 17. See Jillian Jimenez, Article, The History of Child Protection in the African American Community: Implications for Current Child Welfare Policies, 28 CHILD. & YOUTH SERV. REV. 888, 889–90 (2006) (clarifying that the European children primarily affected were those belonging to indigent families). 18. See id. (discussing the change towards sentimental feelings for children during the twen-tieth century). 19. See, e.g., THE TASK FORCE TO STUDY AND DEV. REPARATION PROPOSALS FOR AFR. AM., THE CALIFORNIA REPARATIONS REPORT 94 (Robin L. Goldfaden et al., 2023) https://oag.ca.gov/system/files/media/ch2-ca-reparations.pdf [https://perma.cc/M58V-QC9Z] (stating the Constitution was the first document to protect the enslavement of people and contrib-uting to the creation of laws to higher profit margins, life expectancy, and new technology). 20. See IBRAM X. KENDI, STAMPED FROM THE BEGINNING 40–41 (Nation Books, 2016) (pointing out that Elizabeth herself was the daughter of a “Newport News legislator Thomas Key”). 5Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 146 THE SCHOLAR [Vol. 26:141 derive their legal status from their mother.21 In effect, this not only en-sured that the occasional children of White men could not claim emanci-pation, but also gave White male enslavers an economic incentive to sex-ually assault enslaved women.22 Black mothers became “de facto surrogates” for the benefit of the enslavers’ future property interests.23 B. Legislatively Sanctioned Separations Despite antebellum mythos of lenient enslavers invested in and emo-tionally attached to enslaved persons, extensive research has shown that family preservation was far from the norm.24 In a letter published in Stowe’s A Key to Uncle Tom’s Cabin, Daniel R. Goodloe wrote, “I have often heard the practice of separating husband and wife, parent and child defended, apologized for, palliated in a thousand ways, but have never heard it denied . . . [t]he law itself not [i]nfrequently performs the most cruel separations of families . . . ”25 In the Upper South, it is estimated that one-third of enslaved children were separated from at least one par-ent.26 21. See id. at 41 (detailing the exploitative tactics of White enslavers, who pursued financial gains from women of color, while simultaneously enforced racist laws to prohibit these women from engaging in relationships with Whites). 22. See id. (“In this way, heterosexual White men freed themselves, through racist laws, to engage in sexual relations with all women.”). 23. See Anita L. Allen, Surrogacy, Slavery, and Ownership of Life, 13 HARV. J. of L. & PUB. POL’Y 139, 140 (1990) (emphasizing the lack of legal rights for enslaved mothers over their chil-dren, as enslavers not only possessed the individuals in bondage but also maintained a proprietary interest in the children born into slavery). 24. See Thomas D. Russell, Articles Sell Best Singly: The Disruption of Slave Families at Court Sales, UTAH L. REV. 1161, 1176 (1996) (emphasizing the stark disparities “between the dis-course and the practice,” the separation of slave families resulted from the glaring lack of protection available to safeguard these vulnerable family units). 25. See generally Letter from Daniel R. Goodloe to A.M. Gangewer (Dec. 8, 1852), in A KEY TO UNCLE TOM’S CABIN 64 (Harriet Beecher Stowe ed., 1853) (underscoring the profound impact of the institution of slavery, where children were forcibly separated, couples torn asunder, and families fragmented— highlighting the profound challenges and heartbreaking consequences wrought by the cruel practice of slavery). 26. See HEATHER ANDREA WILLIAMS, HELP ME FIND MY PEOPLE: THE AFRICAN AMERICAN SEARCH FOR FAMILY LOST IN SLAVERY 432 (2012) (noting that slave children were regularly sold and purchased). 6The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 147 In the majority of states, no law existed to prevent family separation at commercial or court facilitated sales.27 However, Louisiana, Alabama, and Georgia enacted a limited exception for enslaved children.28 In Lou-isiana, an 1806 statute prohibited the separation of children under the age of ten from their mothers.29 Per an Alabama law passed in 1852, children were protected from family separation until the age of five without ex-ception.30 If a child was between five and ten years old, a party could produce an affidavit showing that “he believes his interest will be mate-rially prejudiced, by selling the slaves together” and insist the family be separated.31 A law passed by Georgia in 1854 similarly protected chil-dren five and under from probate court sales but allowed for the separa-tion when “such division cannot in any wise be effected without such separation.”32 Thus the law sanctioned the separation of young children in the majority of southern states without an exception for a child of young age.33 C. Economics and Slavery In 1808, Congress banned the importation of slaves causing the domes-tic trade to balloon.34 An enslaved person had a thirty percent chance of 27. See Russell, supra note 24, at 1171 (articulating that despite having statutes to protect the integrity of the family unit, loopholes exist that allow for families to be separated). 28. See id. (emphasizing that these states sought to protect the mother-child relationship but failed to reveal the extent of family separation prevention). 29. See, e.g., Wfaabe, Antebellum Slavery Law on the Separation of Children from Parents, WORDPRESS (June 19, 2018), https://wraabe.wordpress.com/2018/06/19/antebellum-slavery-law-on-the-separation-of-children-from-parents/ [https://perma.cc/BX5P-WCYQ] (finding that indi-viduals who violated the Louisiana law could be fined $1,000 and imprisoned for no less than six months). 30. See ALA. CODE § 2056-7 (1852) (“[N]o levy or sale shall be made, by which a child under five years of age shall be separated from its mother.”). 31. See id. (showing that a six-year-old could be separated from his or her mother based on a belief of prejudiced interests, but a five-year-old could not). 32. See An Act to Regulate the Sale and Division of Slaves, in Certain Cases Therein Named, 191 GA. STAT. § 1 (1854) (stating that a sale may be conducted by an “executor, adminis-trator, guardian, or other trustee”). 33. See id. (citing a Georgia state law that codified age five as an acceptable age to separate a mother from her child). 34. See An Act to Prohibit the Importation of Slaves, ch. 22, § 1, 2 STAT. 426 (1807) (ban-ning the importation of “any negro, mulatto, or person of colour, with intent to hold, sell, or dispose of such negro, mulatto, or person of colour, as a slave, or to be held to service or labour[.]”); see also Family Separation Among Slaves in America was Shockingly Prevalent, THE ECONOMIST 7Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 148 THE SCHOLAR [Vol. 26:141 being sold by their enslaver and nearly half of interstate trades destroyed immediate families.35 Most interstate trade occurred over land and was not well documented, but for those who were carried across states along the coast, manifests provide data regarding family separations.36 In one study, of the individuals identified and traced through manifests, about a third were under eighteen—though many may have been described as older in order to meet minimum age requirements for ship transport.37 Eighty-eight percent of the studied sample were separated from their im-mediate families.38 D. Another Level of Legal Involvement: Court Sales “Court” sales are any sales facilitated by courts.39 These sales were primarily conducted by sheriffs, probate officials, and equity commis-sioners.40 It is estimated that courts conducted about one-half of all slave sales throughout the antebellum South.41 For instance, during the ante-bellum period in Boone County, Missouri, the vast majority of slave sales and the hiring out of slave labor was facilitated by the county’s probate courts.42 Alarmingly, these same courts frequently separated enslaved (Jun. 18, 2022), https://www.economist.com/interactive/graphic-detail/2022/06/18/slave-trade-family-separation [https://perma.cc/YG37-2QZV] (noting that the slave population was self-sus-taining in the U.S.). 35. Accord Coates, supra note 1 (recognizing that in 1860, the industry of selling enslaved people allowed there to be more millionaires per capita in Mississippi Valley than anywhere in the U.S.). 36. See generally Family Separation Among Slaves in America was Shockingly Prevalent, ECONOMIST, supra note 34 (considering out of 1,500 formerly enslaved people interviewed in the 1930s, forty percent of those born into slavery reported losing a parent by death or separation before the age of twenty years). 37. See id. (reporting that between 1820–1860, roughly one million enslaved persons were shipped across state lines). 38. See id. (finding that sixty-five percent of enslaved people were transported with no fam-ily at all, according to the study sample). 39. See Russell, supra note 24, at 1162 (highlighting the role courts played in conducting slave sales). 40. See id. at 1167 (noting that these types of sales resulted most frequently as a result of debt or death). 41. See id. at 1164–66 (examining the records of one thousand six-hundred and eighty-nine slave sales from 1823–1861). 42. See generally James William McGettigan Jr., Boone County Slaves: Sales, Estate Divi-sions and Families 1820–1865 Part I, 72 MO. HIST. REV. 176, 193–94 (1978) (revealing “an inter-esting pattern” wherein the vast majority of an estate’s slaves were either purchased by or divided 8The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 149 families to ensure certain provisions of wills being probated were fol-lowed.43 Ultimately, legal agents had discretion to sell enslaved persons indi-vidually or in a group, but they risked personal liability if they prioritized family preservation over individual sales, which often yielded a higher profit.44 In one case, prominent North Carolina Judge Thomas Ruffin upheld the sale of four brothers but chided the executor for selling the boys together because “articles sell best, singly” and “it is the duty of the executor to get the most he can.”45 The oldest child in that case was eight years old and the youngest were four-year-old twins.46 In the judge’s view, fiduciary interest superseded the “common sympathies of our na-ture.”47 Consequently, the law favored familial separation simply be-cause it proved more profitable.48 E. Litigating Enslaved Family Separations Prior to the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, Black Americans were not recognized as “citizens” under the law of the United States.49 As a result, only a limited number of Black among the family members of the deceased); see also James William McGettigan Jr., Boone County Slaves: Sales, Estate Divisions, and Families 1820-1865 Part II, 72 MO. HIST. REV. 271, 275–77, (1978) (explaining that probate courts were responsible for over sixty percent of the slave labor for hire, whereby slaves from the estate would be hired out to do a wide variety of tasks). 43. See McGettigan Part II, supra note 42, at 291–93 (explaining that equal asset distribution in wills, along with large or small number of heirs, often resulted in the separation of slave families). 44. See Russell, supra note 24, at 1184 (“Sheriffs knew that they would be personally liable if creditors entitled to sales proceeds could show that the sheriffs’ decisions to keep members of a family together resulted in a smaller distribution of money to the creditors.”). 45. See id. at 1178 (highlighting that Judge Ruffin only upheld the sale of the boys as a group because the price was “sufficiently high” (quoting Cannon v. Jenkins, 16 N.C. (1 Dev. Eq.) 422, 426 (N.C. 1830))). 46. See id. at 1179 (underscoring Judge Ruffin’s racist remarks as he acknowledged that separating the brothers may be “harsh” but nevertheless concluded “it must be done”). 47. See id. (criticizing Judge Ruffin’s “starkly frank view” that the interests of the benefi-ciaries should prevail over the preservation of slave families (quoting Cannon v. Jenkins, 16 N.C. (1 Dev. Eq.) 422, 426 (N.C. 1830))). 48. See id. at 1179–82 (writing about the impact Judge Ruffin’s ruling had on the rest of the country). 49. See generally Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded by constitutional amendment, U.S. CONST. amend. XIV (addressing whether the U.S. Constitution granted citizenship rights to Black Americans, including freed ones—concluding that it did not). 9Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 150 THE SCHOLAR [Vol. 26:141 families could leverage the law in an attempt to keep their families to-gether.50 The following paragraphs explore a few examples where judges delved into the questions surrounding Black families. In 1811, a Kentucky court determined the validity of the sale of four enslaved persons sold to settle a debt.51 Two individuals, Milly and Jo-seph, were sold individually.52 An outstanding debt of $250–$300 re-mained, so, Ruth and her two-to-three-year-old child, David, were sold together for $400.53 Moving to quash the sale, the debtor argued that Ruth and David should have been sold separately.54 Despite the general rule that “it is the duty of the sheriff to sell separately property which is divisible,” the court upheld the joint sale.55 In justifying its decision, the court first reasoned that keeping mother and child together was morally right, but it further asserted that separating them would have “greatly di-minished” David’s value, rendering his individual sale insufficient to cover the remaining debt.56 Morality was rarely cited as the sole reason for maintaining the family together—economic justifications often took precedence.57 In 1828, in the recently free state of New York, Sojourner Truth suc-cessfully sued for custody of her enslaved son, Peter.58 From the age of 50. See, e.g., Tera W. Hunter, Enslaved Couples Faced Wrenching Separations, or Even Choosing Family Over Freedom, HIST. (Sept. 20, 2019), https://www.history.com/news/african-american-slavery-marriage-family-separation [https://perma.cc/H5R5-T5YY] (highlighting the in-credible sacrifices freed Blacks faced in their efforts to maintain their family unit—including sub-mitting themselves to re-enslavement). 51. See Lawrence v. Speed, 5 Ky. (2 Bibb) 401, 401–02 (1811) (providing background for the case at issue before the court). 52. See id. at 402 (detailing that Joseph was sold for $115.50 and Milly for $293). 53. See id. (observing the sale was properly advertised and that “effected [. . .] a fair price.”). 54. See id. (supplying the debtor’s two arguments: (1) that the sale is entirely void because the sheriff’s advertisement did not meet the legal requirements, and (2) that the sale with respect to Ruth and Davis is void because they should have been sold separately). 55. See id. at 404 (noting that in such cases where the rule is violated, the sale would be considered void and may be set aside). 56. See id. (declining to speculate on whether sale of the mother alone would have generated enough money to cover the remaining debt). 57. See Lawrence, 5 Ky. (2 Bibb) at 404 (spending much of his analysis on the economics of the sale, not the morality of it); see also Cannon v. Jenkins, 16 N.C. (1 Dev. Eq.) 422, 426 (N.C. 1830) (“[T]he Court would not punish him for acting on the common sympathies of our nature, unless in so doing he hath plainly injured those, with whose interests he stands charged.”). 58. See Alan J. Singer, Documents Reveal Sojourner Truth’s Battle to Free Her Son from Slavery, N.Y. ALMANACK (Mar. 15, 2022), 10The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 151 five years old, Peter was sold four times before Truth was able to obtain custody.59 Despite this comparatively happy ending for Peter, he carried a lifetime of scars as a result of being sold multiple times at a young age.60 Peter’s harrowing experience, which included multiple enslavers and physical abuse, serves as a precursor to the challenges faced by many children in the current foster care system.61 Many children who experi-ence the trauma of family separation, like Peter, carry it with them throughout their lives.62 In 1837, a Kentucky court decided the case of Willis v. Willis’ Admin-istrators, where an agreement was made between two slave owners to exchange two enslaved children—a boy for a girl.63 However, because both children were young, the owners agreed the children should remain with their mothers, who were still in possession of the children’s former owners.64 When the girl and her owner passed away, his estate sued to claim ownership of the enslaved boy.65 The court’s analysis focused on the parties’ mutual agreement that the children were to stay with their mothers, explaining that “[t]he slaves were small, and the former owners of each were the owners of their mothers, and they were permitted mutu-ally to remain with their mothers. Each seemed to be permitted to remain https://www.newyorkalmanack.com/2022/03/documents-of-sojourner-truths-battle-to-free-her-son-from-slavery/ [https://perma.cc/ZR4N-F3CS] (compiling the documents that validated Truth’s story that she filed suit when she learned her son was illegally sold to a planter in Alabama). 59. See id. (describing how Truth sued her son’s new “owner,” the previous “owner,” and the Albany Supreme Court for permitting the sale in violation of state law). 60. See generally SOJOURNER TRUTH, NARRATIVE OF SOJOURNER TRUTH, A NORTHERN SLAVE: EMANCIPATED FROM BODILY SERVITUDE BY THE STATE OF NEW YORK, IN 1828 (Poetose Press 2021) (exemplifying her ability to free her son by suing a slaveowner in the freed state of New York); see also Rachel Johnson-Farias, Uniquely Common: The Cruel Heritage of Separating Families in the United States, 14 HARV. L & POL’Y REV. 531, 537 n.27 (2020) (noting that Truth was one of the first Black women to win custody of and freedom for her son). 61. See generally TRUTH, supra note 60 (discovering the abuse Peter suffered at the hands of his former masters). 62. See generally TRUTH, supra note 60 (outlining Peter’s troubled adolescence, which may have stemmed from his childhood trauma); see also Cannon v. Jenkins, 16 N.C. (1 Dev. Eq.) 422, 426 (N.C. 1830) (acknowledging that breaking up a group of brothers in the slave trade could have a “harsh” effect on the young boys). 63. See Willis v. Willis’ Adm’rs, 36 Ky. (6 Dana) 48, 48 (1837) (stating the facts of the case). 64. See id. at 49 (noting the mutual agreement between the owners). 65. See id. at 48 (describing how the defendant lost at the trial court level). 11Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 152 THE SCHOLAR [Vol. 26:141 in possession, as quasi bailee for the other . . . .”66 Nevertheless, the court granted ownership of the boy to the plaintiff, and the child was presuma-bly separated from his mother.67 F. Normative Frameworks Justifying Slavery and Family Preservation Rhetoric Nineteenth-century and modern-day writers alike attempted to obfus-cate the harsh reality of family separation by highlighting the benevo-lence of enslavers.68 For instance, in 1858, Thomas R.R. Cobb wrote that married slave relationships should be protected under law, believing that separation of the couple “may rarely, if ever, occur in actual practice, is an event which, if possible, should be guarded against by the law.”69 In 1845, prior to Cobbs’ remarks, prominent slavery apologist John Henry Hammond wrote: Some painful instances [of family separation] perhaps may occur. Very few that can be prevented. It is, and it always has been, an object of prime consideration with our slaveholders, to keep families together. Negroes are themselves both perverse and comparatively indifferent about this mat-ter. Sometimes it happens that a negro prefers to give up his family rather than separate from his master. I have known such instances. As to willfully [sic] selling off a husband, or wife, or child, I believe it is rarely, very rarely 66. See id. at 49 (“The right of the property and right of possession, therefore, vested imme-diately, and the risk devolved on each of the owners.”). 67. See id. (affirming the judgment of the lower court). 68. Compare Dave Searles, Letter to the Editor: Presidents Were Benevolent Slaveowners, CAP TIMES (Oct. 5, 2021), https://captimes.com/opinion/mailbag/letter-presidents-were-benevo-lent-slaveowners/article_e2954122-dd1b-5185-b12c-bd148e34ee90.html [https://perma.cc/J54Z-HPPM] (defending the actions of former Presidents as slaveowners, insisting they were slaveown-ers by “birth and inheritance, and not by choice” and arguing they treated their slaves better than other slave owners), with Brigitte Fielder, Opinion: Benevolent Enslaver? There’s No Such Thing, CAP TIMES (Oct. 7, 2021), https://captimes.com/opinion/column/opinion-benevolent-enslaver-theres-no-such-thing/article_4ec98fa2-f66c-51c8-8ea4-cb4a3f946b29.html [https://perma.cc/3LFK-ZWPX] (responding to the troubling letter and highlighting the horrifying experiences of enslaved people from their own perspective). 69. THOMAS R.R. COBB, AN INQUIRY INTO THE LAW OF NEGRO SLAVERY IN THE UNITED STATES OF AMERICA 245–46 (Negro Univs. Press ed., 1968) (diminishing the problem of family separation in American slavery). 12The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 153 done, except when some offence has been committed demanding “trans-portation.”70 In the 1970s, Eugene Genovese propagated the view of benign pater-nalism regarding owners’ treatment of their slaves, insisting that many owners went to impressive lengths to keep slave families together or ex-perienced emotional strain when they sold their enslaved persons.71 In the 1990s, many scholars continued to assert that antebellum public sen-timent favored family preservation.72 Today, despite ample evidence of legally sanctioned violence, exploi-tation, and separation, many people still believe that slavery was charac-terized by benevolent masters invested in the well-being of their enslaved chattel.73 As Professor Sinha espouses: “American slavery was . . . a comprehensive system of social control. The consistent threat and fre-quently executed practice of family separation was a central part of this system of control.”74 In fact, much of the discourse surrounding the re-luctance to sell children was likely intended to counteract abolitionists’ critiques of family separation in the lead up to the Civil War.75 In practice, financial gain frequently overruled sentimentality; thus, family separation simply became another tool to assert total social control 70. Serwer, supra note 16 (quoting Hammond’s faulty logic and comparing it to the Trump Administration’s similar logic behind the use of separating immigrant families as a deterrence pol-icy). 71. See generally John Anthony Scott, Book Review, 18 CHALLENGE 65 (1975) (tracing the origins of Genovese’s paternalistic theory, which Genovese believed both slaveowners and en-slaved persons bought into) (citing EUGENE D. GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE SLAVES MADE (Pantheon Books 1974)). 72. See PETER KOLCHIN, AMERICAN SLAVERY, 1619–1877, 139–40 (Hill & Wang, Eric Forner ed., 1993) (discussing the dichotomy of the slave owner’s support and disruption of the slave family). 73. See, e.g., Ritu Prasad, The Awkward Questions About Slavery from Tourists in US South, BBC (Oct. 2, 2019), https://www.bbc.com/news/world-us-canada-49842601 [https://perma.cc/V7CG-UKZP] (examining the instance of a tourist attraction in the South that is addressing misconceptions regarding slavery by leading historically accurate tours that do not downplay nor soften the horrors endured by enslaved people). 74. Sinha, supra note 8, at 449–50 (“The inception of the Atlantic slave trade was, inher-ently, family separation—parents and children separated in their home country in the African con-tinent through kidnapping or sale, and forcibly brought over as slaves to the American continent.”). 75. See id. at 454 (highlighting powerful firsthand narratives of enslaved family separation from Frederick Douglass to Sojourner Truth). 13Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 154 THE SCHOLAR [Vol. 26:141 over Black families.76 It is likely that millions of Black people were for-cibly separated from their families during the centuries of slavery in America.77 The impact of this amount of generational trauma, even post-emancipation, is unknowable.78 Unfortunately, the use of paternalism to justify comprehensive social control and the characterization of surveil-lance as benevolence to obfuscate harm did not end upon abolition.79 These issues remain entrenched in the modern child welfare system.80 II. FAMILY SEPARATION POST-ABOLITION & TESTING ASSIMILATION STRATEGIES “[H]er voice is gentlest, her eye beams with fondest affection; she soothes his little sorrows and bears with his irritability with the tenderest and un-tiring patience.”81 After the ratification of the Thirteenth Amendment, which abolished slavery and involuntary servitude except as criminal punishment, new 76. See id. (illustrating the ways family separation was used as punishment against enslaved persons). 77. See Shaun King, Separating Migrant Families is Barbaric. It’s Also What the U.S. Has Been Doing to People of Color for Hundreds of Years, INTERCEPT (June 20, 2018, 1:45 PM), https://theintercept.com/2018/06/20/family-separation-immigration-history-slavery-mass-incar-ceration/ [https://perma.cc/6CCR-YXRP] (estimating that millions of Black people experienced family separation during slavery). 78. See generally Jean Humez, The Trauma of Separation, WELLESLY CTRS. FOR WOMEN (2012), https://www.wcwonline.org/WRB-Issues/the-trauma-of-separation [https://perma.cc/F6C2-CY4T] (contemplating the effects of family separation as described by the two authors (citing HEATHER ANDREA WILLIAMS, HELP ME FIND MY PEOPLE: THE AFRICAN AMERICAN SEARCH FOR FAMILY LOST IN SLAVERY (2012) and SYDNEY NATHANS, TO FREE A FAMILY: THE JOURNEY OF MARY WALKER (2012))). 79. See generally Kevin M. Ritchlin, Dismantling of Paternalism: Southern White Slave-holding Women’s and Slaves’ Responses to Slavery During the Civil War (1996) (M.A. thesis, University of Montana) (available at https://scholarworks.umt.edu/cgi/viewcontent.cgi?arti-cle=6246&context=etd [https:/perma.cc/52BB-BYVD]) (discussing how paternalism was used by southerners to justify slavery). 80. See Dettlaff & Boyd, supra note 2, at 255 (emphasizing the individual and social impact from the separation of children). 81. MARY P. RYAN, CRADLE OF THE MIDDLE CLASS: THE FAMILY IN ONEIDA COUNTY, NEW YORK, 1790–1856 159 (1981) (quoting why a child loves their mother best); Jodi Vanden-berg-Daves, Twentieth Century American Motherhood: Promises, Pitfalls, and Continuing Lega-cies, ORG. OF AM. HISTORIANS (Nov. 2016), https://www.oah.org/tah/issues/2016/novem-ber/twentieth-century-american-motherhood-promises-pitfalls-and-continuing-legacies/#fn1 [https://perma.cc/6LW6-L9H3] (expanding on the impact of motherhood). 14The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 155 institutions emerged to police and surveil Black families.82 The Thir-teenth Amendment’s “except as a punishment for crime” language al-lowed Black Codes through prison convict leasing’s involuntary servi-tude to regulate the lives of Black people by convicting them of petty crimes, such as loitering or vagrancy.83 According to the Equal Justice Initiative, “Black orphaned children and juvenile offenders could be bought to serve as laborers for [W]hite planters in many Southern states from 1865 until the 1940s.”84 While Jim Crow laws permeated southern states’ attempt to continue exploiting freed Black people for their labor, in northern cities, racialized restrictions on where Black renters and buy-ers could live thwarted migration.85 Meanwhile, by the turn of the century, industrialization and “progres-sive reforms” flourished, and as a result, the concept of the family was also changing.86 The child began to be seen as vulnerable and emotional, rather than a source of cheap economic labor.87 Swedish Feminist Ellen Key published her highly influential book, The Century of the Child, in 1900 wherein she envisioned a world where concern for children’s wel-fare was central to society and social arrangements like marriage and motherhood centered on children’s welfare.88 82. See U.S. CONST. amend. XIII (tracing back to the effects of the Thirteenth Amendment’s ratification on Black families). 83. See Ellen Terrell, The Convict Leasing System: Slavery in Its Worst Aspects, LIB. OF CONG. BLOGS (June 17, 2021), https://blogs.loc.gov/inside_adams/2021/06/convict-leasing-sys-tem/ [https://perma.cc/HKJ7-RGK2] (exposing the loophole of the Thirteenth Amendment with the “except as punishable for crime” clause in order to harm Black individuals). 84. See EQUAL J. INITIATIVE, Convict Leasing (Nov. 1, 2013), https://eji.org/news/history-racial-injustice-convict-leasing/ [https://perma.cc/C4UX-ENEF] (explaining how the loophole of the Thirteenth Amendment allowed for the labor of Black, orphaned children). 85. Cf. MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 18 (2019) (summarizing the effects of the Jim Crow Laws on Black individ-uals throughout both the North and South). 86. See Kay Hymowitz, The Real Roots of the Nuclear Family, INST. FOR FAM. STUD. (Dec. 23, 2013), https://ifstudies.org/blog/the-real-roots-of-the-nuclear-family/ [https://perma.cc/BM5L-AKAR] (describing the increase of child-centered families after the industrial revolution). 87. See Lori M. Campbell, The Twentieth Century Child, REPRESENTING CHILDHOOD, https://www.representingchildhood.pitt.edu/twentycent_child.htm [https://perma.cc/UE6M-ZFSF] (describing the change of the meaning of “child” throughout the nineteenth century). 88. See ELLEN KEY, THE CENTURY OF THE CHILD 40 (1909) (advancing the importance of marriage to growing children); see also Campbell, supra note 87 (referencing Ellen Key’s work). 15Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 156 THE SCHOLAR [Vol. 26:141 As the perception of the child shifted, so too did the conception of “motherhood.”89 Mothers were meant to “possess innate moral superior-ity,” meaning they were meant to be the moral protectors of the family and primary caregivers to children.90 This conception of motherhood du-ally “advanced women’s legal rights and subjected women to state con-trol.”91 The “ideal mother standard” simultaneously infantilized mothers while also holding them to superhuman standards.92 Many upper-class White women utilized the morality standard to fuel the creation of the “child saving movement,” and subsequently, the child welfare system.93 Yet, that advocacy ultimately “imposed middle-class norms on working-class families.”94 Poverty was the necessary predicate for intervention and subsequent separation.95 Many mothers would find themselves being judged against the ideal mother standard in courts across the country after the creation and codification of the child welfare system.96 Courts utilized the doctrine of parens patriae and the state’s “police powers,” or the inherent power to “promote the public health, safety, and welfare generally” as justification for State intervention upon the fam-ily.97 Parens patriae allows the State to step in as “parent” of the child 89. See generally Corrinne Schiff, Child Custody and the Ideal of Motherhood in Late Nine-teenth Century New York, 4 GEO. J. ON FIGHTING POV. 403, 404 (1997) (noting that the shift in women’s roles resulted from other shifts in the family unit). 90. See id. (discussing the perception of women and their role in the family). 91. See id. (analyzing the moral pedestal women were placed on). 92. See generally id. at 419 (explaining how the shift in standards resulted in contradictory outcomes to women’s rights). 93. Cf. HUM. RTS. WATCH, supra note 7, at 45 (providing an example of how wealthy White individuals spurred the creation of the child welfare system). 94. See id. at 25 (“Based on these standards many less-privileged households . . . failed to meet the middle-class definition of a proper home.”). 95. See generally id. (opining that poverty played a role in separating families). 96. See generally id. at 45 (comparing the assertion that in upper-class homes “children would live sheltered lives free from the stresses of the adult world” to lower-class households “where mothers and older children were often sent out to work,” and how this created the unreach-able standard for lower-income families to achieve). 97. See SARAH H. RAMSEY & DOUGLAS E. ABRAMS, CHILDREN & THE LAW IN A NUTSHELL 10 (2d ed. 2003) (clarifying the purposes of the police powers of the state government in regards to parens patriae); see also Shanta Trivedi, The Harm of Child Removal, 43 N.Y.U. REV. OF L. & SOC. CHANGE 523, 555 (2019) (articulating the purpose of using the police powers in tangent with parens patriae in the context of child protection); see also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (illustrating an instance where a child was removed from her caregiver 16The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 157 and “confers state authority to protect or promote a particular child’s wel-fare.”98 Child protection decisions were, and continue to be, framed in terms of parental culpability for neglect or abuse as well as a determina-tion of what is in the youth’s best interest.99 If a caregiver was a single parent, impoverished, divorced, or otherwise “other,” the ideal mother standard nearly guaranteed separation.100 Early aid societies excluded Black families, targeting Indigenous groups instead with an eye toward assimilation.101 During the “progres-sive era”, most Black families continued living in rural environments, far from the urban centers that galvanized the “child saving” movement.102 The culture around raising children within those communities focused less on individual responsibility and culpability, and more on communal responsibility spread across flexible extended family units.103 Commu-nity oversight policed child abuse and neglect where it happened, and reform efforts tended to focus on founding schools and developing mu-tual aid efforts.104 Black children entered state care by being because the caregiver had given her Jehovah’s witness materials to distribute to strangers in viola-tion of child labor laws). 98. E.g., RAMSEY & ABRAMS, supra note 97, at 10 (analyzing the role of state governments when utilizing their police powers under parens patriae). 99. See e.g., Prince, 321 U.S. at 166 (reiterating that parens patriae allows for states to act within the best interest of the child as they deem necessary); see also Shanta Trivedi, The Harm of Child Removal, 43 N.Y.U. REV. OF L. & SOC. CHANGE 523, 555 (2019) (reporting that the State looks towards the parent’s actions and their suitability for the child). 100. Cf. Schiff, supra note 89, at 415 (“Although the mother was found not guilty, because poverty was to blame for her intemperance and neglect, the court still found it appropriate to remove her children.”). 101. See HUM. RTS. WATCH, supra note 7, at 25–26 (reviewing the cruel history of early family separation systems); see also Mary Annette Pember, Death by Civilization, ATL. (Mar. 8, 2019), https://www.theatlantic.com/education/archive/2019/03/traumatic-legacy-indian-boarding-schools/584293/ [https://perma.cc/TNP2-4UTN] (discussing the rise and use of Indian boarding schools used to strip indigenous children of their language and culture). 102. See Jimenez, supra note 17, at 891 (describing the child welfare systems in Black com-munities during the progressive era). 103. See id. (detailing cultural practices in child-raising in Black communities). 104. See id. at 892 (explaining the accountability system to ensure children in the commu-nity are being supported and treated properly). 17Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 158 THE SCHOLAR [Vol. 26:141 institutionalized as delinquent.105 Yet, in the years to come child welfare would prove to be a flexible and powerful social control mechanism.106 III. THE MODERN FAMILY REGULATION SYSTEM “I couldn’t stay in my house. I couldn’t be around their clothes . . . I found myself just wandering around looking for them . . . It’s as if the three of them died. One day just died. That’s the grief that I went through. That’s the pain that I went through.”107 A. The Federal Law Framework In the 1950s, more Black mothers began attempting to utilize welfare benefits, another turn-of-the-century reform.108 States attempted to ex-clude Black mothers by dropping illegitimate children from the welfare rolls and subjecting individuals to “suitable-home tests.”109 The federal government required that they first take steps to rehabilitate the family.110 Where rehabilitation was impossible, federal funding was used to place children in foster care.111 This opened the door for unfettered removals 105. See id. at 897 (summarizing the institutionalization of Black children in the early twen-tieth century). 106. See generally id. at 890 (stating “parens patriae” as the legal principle giving way to the powerful system controlled by the service workers). 107. See Kendra L. Nixon ET AL., “Every Day It Takes a Piece of You Away”: Experiences of Grief and Loss Among Abused Mothers Involved with Child Protective Services, 7 J. OF PUB. CHILD WELFARE 172, 180 (2013) (quoting a woman experiencing grief and loss when CPS re-moved their children). 108. See generally HUM. RTS. WATCH, supra note 7, at 156 (connecting the historical move-ment of child welfare with providing parents with solutions and resources to build social connec-tion). 109. See generally Karen M. Tani, Comment, Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor, 100 FAC. SCHOLARSHIP AT PENN CAREY L. 825, 863 (2015) (stating the controversial measures taken by the ADC program). 110. See generally EMILIE STOLTZFUS, CONG. RSCH. SERV., R42794, CHILD WELFARE: STATE PLAN REQUIREMENTS UNDER THE TITLE IV-E FOSTER CARE, ADOPTION ASSISTANCE, AND KINSHIP GUARDIANSHIP ASSISTANCE PROGRAM 2 (2014) (explaining the federal government cre-ated a system to prioritize the rehabilitation of the family). 111. See id. 18The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 159 at welfare workers’ discretion.112 As Dorothy Robert wrote in Torn Apart, “ . . . [welfare] workers began snatching Black children away from mothers deemed unsuitable instead of simply denying benefits.”113 Man-dated reporting laws proliferated widely in the 1960s, exacerbating re-movals for families receiving social services.114 In 1974, the Child Abuse Prevention and Treatment Act (“CAPTA”) provided federal funds for states to prevent, assess, investigate, and prosecute child abuse.115 CAPTA also required states to include neglect in their child abuse sche-mas.116 Ultimately, CAPTA “prioritized punishment” of individual abu-sive parents who needed to “take personal responsibility” for poverty and economic hardship.117 In 1980, the Adoption Assistance and Child Welfare Act (“AACWA”) attempted to provide more support for families by requiring states to make reasonable efforts to preserve or reunify the families before re-moval.118 Post-removal, AACWA required the State either create a per-manency plan with reunification or termination of parental rights as a goal, attempting to limit the length of time children languished in foster care pending either result.119 Yet, family preservation programs proved to be relatively ineffective as they did “little to address the [families’] material need[s].”120 Racialized focus on individual responsibility and 112. See generally Tani, supra note 109, at 854 (detailing how measures taken by the work-ers should provide a positive outcome to reconnect children with their families). 113. See DOROTHY ROBERTS, TORN APART 117 (2022) (demonstrating the practice of state workers separating children from their families as opposed to denying the family welfare benefits). 114. See generally HUM. RTS. WATCH, supra note 7, at 27 (highlighting coinciding events that contributed to the increased removal of children being removed from Black families). 115. See generally Child Abuse Prevention and Treatment & Adoption Reform, 42 U.S.C. §§ 5101–5119 (1974) (codifying the ability to protect children from child abuse with the help of financial aid). 116. See generally HUM. RTS. WATCH, supra note 7, at 27–28 (noting that CAPTA was the first legislative effort to add neglect to state-based plans). 117. See id. (creating new standards and conditions to ultimately punish parents who are found guilty of neglect). 118. See id. (introducing the Adoption Assistance and Child Welfare Act (AACWA) and describing the Act’s purpose). 119. See id. (explaining how the AACWA functions after the removal of children of their homes). 120. See id. at 29 (analyzing the impact of the AACWA); see also MICAL RAZ, ABUSIVE POLICIES: HOW THE AMERICAN CHILD WELFARE SYSTEM LOST ITS WAY 89 (2020) (asserting the negative ramifications of removing children from the home under the AACWA). 19Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 160 THE SCHOLAR [Vol. 26:141 personal failures set the scene for the Adoption and Safe Families Act of 1997 (“ASFA”).121 ASFA prioritized adoptions, requiring states to file termination of parental rights if children were in foster care for fifteen months in a twenty-two month period.122 States were also required to “concurrently plan,” meaning in every case, caseworkers were required to concurrently plan for reunification along with another goal, usually guardianship or adoption.123 In 2018, the Family First Prevention Ser-vices Act (“FFPSA”) attempted to provide financial incentives for states to prioritize in-home services prior to removal.124 However, many advo-cates argued these reforms would prove ineffective because states lack the infrastructure to grant families needed services, and few children fall under the required federal definition of “candidate[s] for foster care” prior to funding being made available.125 In practice, the child welfare system has been “organized around surveillance, monitoring, compliance, and control.”126 Piecemeal reforms tied to funding are unlikely to undo dec-ades of harmful separation precedents or alter the behavior of entrenched system actors. B. The Impact of the Current System Today, the vast majority of child welfare allegations are based on ne-glect, rather than violent abuse.127 According to 2019 state-reported data, 75% of child maltreatment cases were predicated on neglect.128 Every 121. See State Plan for Foster Care & Adoption Assistance, 42 U.S.C. § 671 (1997) (outlin-ing the two outlooks, centered on morals of personal responsibility and personal shortcomings as motivations for removing children from their homes and parents). 122. See id. (emphasizing adoptions and permanently separating families); see also HUM. RTS. WATCH, supra note 7, at 30 (preventing families from being reunited because of the encour-agement of adoptions). 123. See Adoption & Safe Families Act, 42 U.S.C. § 671 (1997); See HUM. RTS. WATCH, supra note 7, at 30 (encouraging aggressive planning by caseworkers within their own discretion). 124. See Definitions, 42 U.S.C. § 675 (2018) (attempting to change the historical approach and its associate outcomes of children being removed from their homes). 125. See id. (clarifying that a child who is a candidate for foster care has been identified in a prevention plan as “being at imminent risk of entering foster care”). 126. See HUM. RTS. WATCH, supra note 7, at 57 (discussing how the child welfare system is actually detrimental to children and their families due to efforts to police them). 127. See Roberts & Evans, supra note 4 (explaining that some causes of neglect include leaving children at home, not having food, and not having secure housing). 128. See HUM. RTS. WATCH, supra note 7, at 32 (showing that neglect was a high percentage whereas physical and sexual abuse were significantly lower percentages). 20The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 161 state’s statutory definition of neglect includes “at least one poverty-re-lated factor” in its legal framework; definitions include conditions like “inadequate food, clothing, shelter, medical care, hygiene, nutrition, and supervision.”129 Further, “more than one in ten Black children are sepa-rated from their parents and placed in the foster care system before they turn eighteen.”130 In effect, poverty, surveillance, and racism enable gov-ernmental involvement, punitive intervention, and legal sanctions toward Black families. 131 Most states allow law enforcement or caseworkers to determine whether an emergency removal is warranted; some states extend that dis-cretion to other professionals, including nurses, doctors, and prosecuting attorneys.132 Removal standards vary from the broad suspicion that a child is a victim of abuse or neglect to the less permissive demand that a child be in imminent danger of serious or substantial harm.133 Removal standards substantiating the administrative decision that child abuse or neglect has occurred vary widely by state.134 For example, one state requires clear and convincing evidence, twenty-five states require a preponderance of the evidence, and twenty-four states require lower standards equivalent to credible evidence, reasonable evidence, or prob-able cause.135 129. See id. at 37 (asserting that due to the broad discretion that caseworkers are given, the unnecessary separation of families is prevalent). 130. Roberts & Evans, supra note 4. 131. See generally Kathi L. H. Harp & Amanda M. Bunting, The Racialized Nature of Child Welfare Policies and the Social Control of Black Bodies, 27(2) SOC. POL. 258, 259–60 (2020) (expanding on why “system-level factors” affect Black women disproportionately and that the lack of private medical care exposes them to greater surveillance by authorities). 132. See 214-20-00 R.I. Code R. § 1.12 (“Physicians/nurse practitioners, law enforcement officers and authorized Child Protective Investigators and Social Caseworkers II are authorized to take temporary protective custody of a child without the consent of a parent or legal guardian.”); see also Harp & Bunting, supra note 131, at 265 (addressing the disproportionate involvement of Black women in the child welfare system). 133. See Nicholas E. Kahn ET AL., The Standard of Proof in the Substantiation of Child Abuse & Neglect, J. OF EMPIRICAL LEGAL STUD. 333, 336 (2017) (addressing that some states have additional requirements, including a showing of reasonable efforts to ameliorate the need for re-moval, however, this standard is often unenforced). 134. Cf. id. (explaining that the standard of proof in criminal and civil trials do not change depending on jurisdiction; however, it varies greatly by jurisdiction in child welfare cases). 135. See id. (“The standard of proof in the administrative decision about substantiation of abuse or neglect need not be as high as the standard at adjudication.”) 21Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 162 THE SCHOLAR [Vol. 26:141 Once a child is removed from their parents’ care, their return is based on subjective determinations of the parents’ progress monitored through a “service plan” administered by a caseworker.136 A service plan can range from unsupervised overnight visitation with the child at its most permissive, to bi-weekly drug testing or in-patient rehab programs at its most restrictive.137 Caseworkers possess broad supervisory authority and might even require a parent to secure employment, locate new housing, or end romantic relationships as conditions for the child’s return.138 Sur-veillance of the life of a parent is broad and unfettered; even perceived noncompliance often leads caseworkers to conclude that return is not in the child’s best interest.139 For instance, “parents told Human Right Watch they felt like . . . their appearance, mannerisms, or tone of voice could be used against them in a child welfare report.”140 Dorothy Rob-erts, who studied the child welfare system’s inequities for over two dec-ades, contends that the system “uses family policing as the primary means to address the needs of marginalized children.”141 If the conditions of the service plan are not fulfilled, the case will likely persist until the time limits set by ASFA require a petition for termination of parental rights proceed to trial.142 This not only results in negative consequences for indigent Black and Brown parents, but it can also be incredibly traumatic 136. See generally CHILD WELFARE INFO. GATEWAY, CASE PLANNING FOR FAMILIES INVOLVED WITH CHILD WELFARE AGENCIES 14 (2018), https://www.childwelfare.gov/re-sources/case-planning-families-involved-child-welfare-agencies/ [https://perma.cc/KWV5-NJYG] (documenting the intake system for state child welfare programs and its inequities); see also HUM. RTS. WATCH, supra note 7, at 76 (detailing the same program in New York and its own failings). 137. See HUM. RTS. WATCH, supra note 7, at 76 (analyzing vast differences among service plans depending on the various needs of the families being served). 138. E.g., id. at 77 (acknowledging the vague methods and definitions assigned to casework-ers, heightening the risk for the parents). 139. See id. at 77–82 (reviewing in-depth, how parents reacted to being surveilled during supervised visits with their children, and their fear of not being granted reunification). 140. Id. at 55. 141. See Roberts & Evans, supra note 4 (illustrating the harsh reality of the government allocating more resources to family policing rather than focusing on measures to prevent the neces-sity of such intervention). 142. See HUM. RTS. WATCH, supra note 7, at 82 (providing the agency may propose reuni-fication if a parent successfully fulfills the service plan in a timely manner). 22The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 163 for the children involved.143 Even short-term removal can cause irreversi-ble trauma.144 IV. ANTEBELLUM PATERNALISM & THE WELL-INTENTIONED CASEWORKER “Surveillance is nothing new to black folks. It is the fact of antiblack-ness.”145 Early scholars of the antebellum period described enslaved family units as “prolific mothers, carefree children, and disinterested fathers all under the tutelage of a benevolent, patriarchal slave master.”146 This per-spective was also evident in justifications for slavery during the period leading to its abolition.147 This view claims that enslavers were kind, paternalistic caregivers because enslaved persons needed control for sur-vival.148 This scholarship purported that continued enslavement was in their cumulative best interest.149 But the political idea of benevolence was a front for the widespread violence utilized for economic gain, and the unfettered control of enslaved persons’ lives.150 This framework 143. See id. (noting that families in poverty face a higher likelihood of being investigated, having their children taken into foster care, and encountering obstacles to reunification). 144. See CASEY FAM. PROGS., HOW DOES INVESTIGATION, REMOVAL, AND PLACEMENT CAUSE TRAUMA FOR CHILDREN 2 (2018), https://www.casey.org/media/SC_Investigation-removal-placement-causes-trauma.pdf [https://perma.cc/JV2W-39GC] (asserting that children re-moved suddenly face unknowns that can be traumatic and create a feeling of unpredictability); see also Shanta Trivedi, The Harm of Child Removal, 43 N.Y.U. REV. OF L. & SOC. CHANGE, 523, 531 (2019) (“ . . . [W]hile generally an adult might think of removal as a “quick, isolated, one- time event,” for a child, it is a “significant turning point . . . that many children will relive over and over again in their minds.”). 145. SIMONE BROWNE, DARK MATTERS: ON THE SURVEILLANCE OF BLACKNESS 10 (2015). 146. James H. Sweet, Defying Social Death: The Multiple Configurations of African Slave Family in the Atlantic World, 70(2) WM. & MARY Q. 251, 251 (2013). 147. Id. (depicting a familial ambiance and the compassionate treatment of children within the relationships between slave-masters and slaves). 148. Id. at 251–52 (discussing the need for slave-masters to exert control over their slaves through the use of familial connections). 149. Cf. HERBERT G. GUTMAN, THE BLACK FAMILY IN SLAVERY AND FREEDOM, 1750–1925 458–59 (Pantheon Books, 1976) (paraphrasing assumptions made by early twentieth-century social scientists). 150. See generally Roberts & Evans, supra note 4 (reviewing the historical legal right of White enslavers to separate Black families). 23Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 164 THE SCHOLAR [Vol. 26:141 fueled and excused the intrusive surveillance that characterized slavery and simultaneously denied enslaved persons’ inherent humanity.151 A century and a half later, Dorothy Roberts characterized child welfare intervention as a “benevolent terror.”152 Like the paternalism inherent in slavery, state intervention via the child welfare system is similarly char-acterized as good, guiding, and in the parties’ best interests.153 Unfortu-nately, the reality is that a whole host of social institutions place econom-ically and socially disenfranchised communities in the crosshairs.154 The law sanctions near unbridled surveillance to bend families to White norms using the threat of permanent family separation to coerce compli-ance.155 The law utilizes the same notion of paternalism that enslavers crafted to justify their actions, conveniently rebranded as parens pa-triae.156 Yet, even as enslavers utilized a paternalistic justification for slavery, the abolition-minded northern public seemed to look at all avail-able evidence and remain largely unpersuaded.157 So, why are we per-suaded that child welfare intervention’s paternalism is anything but a spu-rious justification for unrestricted state-sanctioned trauma inflicted on Black families? 151. See generally BROWNE, supra note 145, at 11–12 (analyzing the historic conditions which led to modern-day surveillance tactics). 152. See id. (describing the horrific realities of slavery, colonialism, and racial capitalism). 153. See generally Roberts & Evans, supra note 4 (connecting the harmful impacts embed-ded in child welfare systems with the harmful history of slavery). 154. See id. (discussing how “the brutality of the system is obscured and excused by pater-nalistic claims of protecting innocents.”). 155. See id. (asserting that the current system operates to police families). 156. See Sweet, supra note 146, at 251 (writing on the history of paternalism in slavery and how the belief that Black families had to be “parented” has been prevalent in society). 157. See Letter from Goodloe to Gangewer, supra note 25, at 64 (evidencing how Southern-ers could not deny the cruelty of the system of slavery by using paternalistic justification). 24The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 26 [2024], No. 2, Art. 1https://commons.stmarytx.edu/thescholar/vol26/iss2/1141-165 V.3.DOCX (DO NOT DELETE) 5/7/24 11:34 AM 2024] LEGALLY SANCTIONED TAKINGS OF BLACK CHILDREN 165 CONCLUSION “Some cops are called caseworkers.”158 After the killing of George Floyd by police in 2020, activists called for the police to be “abolished.”159 They argued that the modern policing system could not be divorced from the slave catching “police patrols” from which the police evolved.160 Similarly, the modern family regula-tion system evolved from separating Black enslaved families, and cannot be divorced from its origins. While on its face, state intervention has maintained its “benevolence,” we should see it for what state intervention truly is: a new form of terror inflicted by White society on Black families. After four hundred years of activism by Black mothers against this sys-tem, change appears possible and promising.161 Change cannot come soon enough. 158. Chris Gottlieb, Black Families Are Outraged About Separation Within the U.S. It’s Time to Listen to Them, TIME (Mar. 17, 2021, 9:00 AM), https://time.com/5946929/child-welfare-black-families/[https://perma.cc/P9QX-WCHE]. 159. See generally Sean Illing, The “Abolish the Police” Movement, Explained by 7 Schol-ars and Activists, Vox (Jun. 12, 2020, 11:00 AM), https://www.vox.com/policy-and-poli-tics/2020/6/12/21283813/george-floyd-blm-abolish-the-police-8cantwait-minneapolis [https://perma.cc/9959-7QF8] (discussing the public response and attitude towards police follow-ing the murder of George Floyd). 160. See Michelle Goodwin, Policing in America: A Deadly Disease, Rooted in Slavery [Who Killed George Floyd?: Part II], MS. MAGAZINE (Apr. 20, 2021), https://msmaga-zine.com/2021/04/20/george-floyd-derek-chauvin-policing-america-slavery-who-killed-george-floyd-part-ii/ [https://perma.cc/5MQ8-2X2F] (detailing the history of slavery police patrols and its influence on modern police systems and police brutality). 161. See Gottlieb, supra note 158 (reporting on the long history of over-policing Black fam-ilies in the child welfare system and how parents are protesting for change); see also Roberts & Evans, supra note 4 (addressing the progress that activists are making with reforming the child welfare system). 25Mitchell: Legally Sanctioned Takings of Black ChildrenPublished by Digital Commons at St. Mary's University, 2024 |
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