New York’s Child Welfare Laws Will Advance Justice

When D’Juan Collins was incarcerated for drug possession in 2007, he was the sole parent to his son, Isaiah, who was just 10 months old. During his sentence, he and his son visited at Fishkill Correctional Facility. When he was released after serving six years, D’Juan lost the fight to reunite with his son.

The foster parent who planned to adopt Isaiah did not want D’Juan to continue contact with him. And at a trial to terminate D’Juan’s parental rights, a judge could not legally order post-adoption contact, even though he noted the pair’s strong bond. “If he loses, he loses everything,” the judge said of D’Juan. Isaiah, of course, lost too.

I met D’Juan when he joined a writing group I ran at a foster care agency. I still have a picture of D’Juan and Isaiah peering out of a teepee they put together in the agency visiting room. As D’Juan wrote: “He held up the rods while I attached the pieces. While we worked, I gave him a little history lesson about Native Americans. Then he opened the zippers, and we stood inside and took a picture together.” D’Juan and Isaiah are both grinning at the camera and holding up two fingers. They didn’t know it would be the last time they’d ever spend together. 

In poor communities of color, a knock on the door from child protective investigators is as common—and unjustifiable—as a call from a holding cell. As public attitudes toward criminal justice have begun to evolve, child welfare laws have not.

The New York state legislature took steps toward changing this, passing two bills in June that advance racial and economic justice in the child welfare system. It is critical that Governor Andrew Cuomo sign these bills—and that the public recognize child welfare as a justice issue and advance legislation nationwide to protect families.

One bill, the State Central Register Reform Bill, seeks to protect families by raising the state’s unusually low standard of evidence for listing parents on a state abuse and neglect registry, and reducing the economic impact of being listed. In 2018, more than 47,000 cases were added to the database, which is visible to potential employers. Parents are often listed even if no court action has been taken against them and remain on the registry—regardless of the severity of the accusation against them—until their child reaches age 28. The bill would require a “preponderance of evidence,” not “some credible evidence,” to list parents, a standard in line with most other states. It would seal parents’ records on the registry after eight years, in most cases, and make it easier for parents to challenge their records before that. 

The other bill, the Preserving Family Bonds Act, would allow children adopted from foster care to continue to have contact with their parents if a judge agrees that it’s in the child’s best interest. Termination of parental rights has been called a “civil death penalty,” but this bill would protect family bonds by ensuring open adoption, even when it’s not possible for a child to return home.  

Taken together, these bills represent an important effort to reduce the punitive effect of the child welfare system. Too often, the system punishes and permanently separates poor families—especially Black and Native families—as the U.S. has done through law and through economic inequity for its entire history. 

The federal Adoption and Safe Families Act, passed in 1997, remains especially damaging and reflects the time’s hysteria about Black families, when media images of “super-predators,” “welfare queens,” and “crack babies” demonized Black mothers and children. The law cut the length of time parents have to reunite with their children and provided financial incentives to states to prioritize adoption. The federal government also provides nearly unlimited funds for foster care but almost none for supports that enable families to keep children safe at home.  

The bad science and policy related to crack have been discredited, but the child welfare system they set into law remains in effect. Black children are disproportionately represented in the foster care population: They are only 14 percent of the under-18 population, but they account for 23 percent of the foster care population. Black children are also more likely to enter foster care and less likely to return home than white children. Children are often removed from home even when basic supports like a housing voucher or childcare could resolve safety issues. In some states, parents have no right to an attorney in family court proceedings.

For nearly 20 years, I’ve worked with teens and parents to write about their experiences in the child welfare system. The teens I worked with at Represent, a magazine by youth in foster care, challenged the inhumanity of the system toward their families. 

Punitive attitudes toward parents hurt children, too. One young Represent contributor, Rita Naranjo, wrote: “The way people thought about my mom … helped convince me that my mother didn’t love me, and it made me feel worthless, like I was a piece of trash.” But “her addiction had little to do with how much she did or didn’t love my brothers and me.” 

Working with parents, I see how easily family life can unravel because our society offers few protections to poor families. For parents with few resources, or rebounding from setbacks like incarceration or depression, family crises can snowball. 

Piazadora Footman regained custody of her son after her arrest, only to be hit by a housing crisis soon after she’d stabilized her family. In Rise magazine, a publication by parents impacted by the child welfare system, she wrote: “Going from appointment to appointment … I could barely go to my part-time job, and I had to drop out of school. My life felt as if I were riding in a small boat with just one oar, always patching up the holes. Now my boat was leaking. I said to myself every day, ‘How am I going to keep us from drowning?’”

Yet an investigator visiting a family under stress may see failing parents, not structural failings like lack of eviction protections or accessible childcare. 

As with criminal justice, it’s possible to begin to build a child welfare system that targets the roots of family stress and interpersonal harm. In Minnesota this year, parents and advocates rallied behind a bill that would strengthen protections for Black families. U.S. Representative Gwen Moore of Milwaukee introduced the Family Poverty Is Not Child Neglect Act in May and spoke on the U.S. House floor about her own experience, at age 18, of being separated from her daughter because of poverty. This fall, the Family First Prevention Services Act went into effect in some states, making limited federal dollars available for those states to provide services, such as substance use treatment and mental health care, to help keep families in crisis together. Previously, federal funding paid only for foster care. These are important steps toward justice for families.

In New York, though, progress may already be in jeopardy. Cuomo has not yet committed to signing the two child welfare bills into law. Opponents of post-adoption contact have traded on stereotypical images of parents like D’Juan, arguing that children like Isaiah “typically come from homes that are so deeply abusive or neglectful that they often need an entirely new set of attachments to thrive” and shouldn’t have the legal option to continue to know their parents.

I’ve seen how our country’s cruel history of forced family separation remains embedded in our politics. That prevents investment in real solutions for families. It’s time to think differently about these families and to add child welfare reform to a justice agenda.

Nora McCarthy is the founder and director of Rise, a nonprofit in New York City that trains parents to write and speak about their experiences with the child welfare system and to advocate for reform.