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Roberts authors book chapter examining how prison and foster care systems harm black mothers

September 26, 2018

Caught at the intersection of the prison and foster care systems, incarcerated black mothers confront stereotypes and punitive political impulses that render it all but impossible for them to retain legal relationships to their children, argues University of Pennsylvania Law School professor Dorothy Roberts. In a new volume, Reassembling Motherhood: Procreation and Care in a Globalized World, published by Columbia University Press, Roberts has authored a chapter analyzing how prisons and the foster care system not only operate as mutually reinforcing funnels to one another, but also combine “to penalize the most marginalized women in our society while blaming them for their own disadvantaged position.” 

“According to the U.S. Department of Justice, in 2004, 11 percent of mothers incarcerated in state prisons reported that their children were in the care of a foster home, agency, or institution,” writes Roberts. In the chapter, “Marginalized Mothers and Intersecting Systems of Surveillance: Prisons and Foster Care,” Roberts explains that African Americans have long been overrepresented in prisons and foster care alike. “In the 1990s, although about 12 percent of the U.S. population was African American, about one-third of the children in foster care were black, and most had been removed from black mothers who were their primary caretakers,” she writes. “Likewise, about one-third of women in prison are black and most are the primary caretakers of their children.”

Child welfare interventions into families, such as removing children from their parents and placing them into foster care, are “typically viewed as necessary to protect maltreated children from parental harm,” Roberts writes. “But the need for this intervention is usually linked to poverty, racial injustice, and the state’s approach to caregiving,” which addresses families’ poverty not by providing social services and financial support, but instead by removing children from the home. Indeed, “[s]ince the 1970s, the number of children receiving child welfare services in their homes has declined dramatically, while the foster care population has skyrocketed.”

Further, Roberts explains, the government’s decision of whether to place a child in foster care is susceptible to racial stereotyping: For example, a study of Michigan’s child welfare system by the Center for the Study of Social Policy discovered that social workers expressed negative views of black families, mothers, and children. Statements by key policy makers and service providers reflected the belief that “African American children are better off away from their families and communities.” Those views yield real-world consequences, as a peer-reviewed study published in the Child Welfare journal concluded that “it takes more risk of maltreatment for caseworkers to place a white child in foster care than it does to remove a black child” from their home. 

The dismantling of the welfare social safety net that worsened the effects poverty in African American neighborhoods and families “coincided with the passage of the Adoption and Safe Families Act of 1997 (Public Law 105-89).” The act, which “emphasized adoption as the solution to the rising foster care population, … places foster children on a fast track to adoption,” Roberts explains, mandating that state agencies begin proceedings to terminate parental rights “if a child spends fifteen out of any twenty-two months in foster care. The swift federal timetable is often grounds for severing incarcerated mothers’ ties to their children.”

Adoption legislation is not the only barrier standing between incarcerated mothers and reunification with their children. In most states, babies born to incarcerated mothers “are automatically placed in foster care immediately after delivery.” Incarcerated mothers must also contend with a diminished ability to see or communicate with their children, whether due to exorbitant prison telephone use prices or caregivers’ failure to bring children to visit. Distance and travel costs play a significant role, as “[a] 1995 study reported that the average female inmate in federal prison was 160 miles farther from her family than the average male inmate.”

The resulting limited or nonexistent contact with children places these mothers at higher risk of losing their parental rights, Roberts notes, because “[c]hild welfare agencies may construe a parent’s failure to visit and communicate with his or her child as abandonment and grounds for [termination].” 

Even once released from prison, black mothers continue to contend with significant obstacles to reunification, often resulting from the same lack of social welfare support that may have led to the children’s removal from their homes in the first place. “A host of state and federal laws impose draconian obstacles to women’s successful reentry into their struggling communities by denying drug offenders public benefits, housing, education, and job opportunities,” Roberts writes. “With no job, public assistance, or stable housing, a mother released from prison will find it extremely difficult to meet the child welfare agency’s requirements for reunification with her children and risks termination of her parental rights … . This is, for many women, the ultimate punishment that the state can inflict.”

Roberts is the George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights at Penn Law. Her scholarship focuses on the intersection of race and gender in contemporary issues in health, social justice, and bioethics, particularly as they impact the lives of women, children and African-Americans. The twentieth anniversary edition of her path-breaking book Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, on state regulation of black women’s childbearing, was published in 2017.

Analyzing the combined impact of the prison and foster care systems demonstrates that they “work together to punish black mothers in particular ways, thereby preserving U.S. race, gender, and class inequality in a neoliberal age,” Roberts argues. Such analysis reveals the “need for cross-movement strategies that can address multiple forms of systemic injustice to contest the over-policing of women of color and expose how it props up an unjust social order.”