Structures of Oppression in the U.S. Child Welfare System: Reflections on Administrative Barriers to Equity

Abstract

In the United States, child welfare reform efforts have dominated three decades of landscape. With glimmers of systemic promise and innumerable individual success stories, data suggest insufficient improvements, resulting in calls for transformation and even abolition. In this article, the authors illustrate structures of oppression that bolster the system’s tentacles, in regulating family life, contributing to racial disparities, reinforcing economic hardships, and supporting policies of family separation. Some of the structures take the form of practices, policies, laws or regulations. Individually and collectively, these structures may serve to oppress and harm those that the child welfare system intends to help. In this article, we include mandated reporting, substantiation decisions, central registries, decision-making processes, background checks, ongoing service delivery frameworks, conservative interpretations of confidentiality statutes, and how immigration status interplays with child welfare. Each of these structures could warrant an individual article, delving into the inner workings of how each oppresses families and the professionals who work with them. We also recognize that there are other structures of oppression that this article will not address. We encourage other scholars to not only continue the identification of oppressive structures, but to also work collaboratively, to generate solutions that dismantle these mechanisms that continue to perpetuate harm and unnecessary family separation.

1. Introduction

Since the early 1970s, the United States has seen child welfare firmly embedded in national politics, federal policy, and state and local responses to, at times, high profile concerns for families and children. The populace socially constructs children, especially, as vulnerable to the deviance of their parents and deserving of government intervention [1]. This construct then drives policy creation and administrative action. Further, cases of horrific child abuse and neglect, the promotion of health terrorism, where the nature of the child maltreatment problem is distorted and generalized by focusing on extreme abuse cases [2], as well as allusions to scandal, within state and local government, drive public outcry. As a result, reactive policies are designed to reduce the risk of reoccurrence of these emotionally charged situations, despite their outlier nature [1]. Over time, many child welfare agency leaders, advocates and practitioners have attempted, at the street level, to modify or reform the resulting harms of this reality. While there have been individual victories and stories of accomplishment and hope, the aggregate data tell a story of ingrained oppression in the overall system [3].

In this article, we argue for the addressing of ingrained oppression, through examination and reform of the foundational structures that frame the child welfare system, rather than focusing on the adaptation of existing practices based on reaction to external events. The structures within the system reinforce the resulting undesirable outcomes and render surface level reforms ineffective. We include mandated reporting, substantiation decisions, central registries, decision-making processes, background checks, ongoing service delivery frameworks, conservative interpretations of confidentiality statutes, and how immigration status interplays with child welfare. Many of these structures of oppression have remained unchanged since the inception of the federal child welfare system in the United States and continue to harm rather than help families.

A framework of oppression, by Young, describes its institutional roots, as follows: “oppression is the inhibition of a group through a vast network of everyday practices, attitudes, assumptions, behaviors, and institutional rules; it is structural or systemic” [4] (p. 180). Braithwaite argues that oppression has found a hospitable environment in child welfare systems across the decades of voluntary sector leadership, legislative frameworks, bureaucratic restructuring, and the professionalization movement, and simultaneously cautions those working for change to uncouple the criticism for the oppression from the individual system actors [5]. As Pennell wrote, “Many of us become social workers in order to make our communities and societies better for everyone. Too often our aspirations are stymied by work contexts that reinforce racism, sexism and other forms of oppression” [6] (p. 78).

We argue that this gradual layering of oppressive structures and an accumulation of administrative barriers not only clouds the original intent of meaningful assistance to children and families, but also creates real adversity for modern families who must navigate this now near impassable terrain. As current and former child welfare practitioners, administrators and advocates, we examine these structures and tell the story through the lens of a vignette, designed intentionally to echo the struggles we have seen in the field. Of note, this family’s story is not overly complex. Families do not need high levels of complex and intertwined problems to become involved with systems created to respond to the worst situations, which in child welfare could be egregious harm, sexual abuse or child fatality. Rather, one need only trace a path through these structures to see the inherent challenges of the current system.

2. Meet the Garcia-Smith Family

In this article, through following the path of the hypothetical Garcia-Smith family, who come to the attention of a public child welfare system, we attempt to illuminate the oppressive structures that target communities of color, marginalize family systems, and strengthen the domination of systems in regulating family life. This fictitious case was constructed from the authors’ decades worth of collective experience as child welfare practitioners. Unlike in this scenario, when children experience egregious harm there is likelihood that some of the structures we identify (e.g., a criminal registry) are important for safeguarding children. Members of the Garcia-Smith family include Jacinda (29-year-old African-American mother); Pedro (30-year-old undocumented Mexican immigrant); two children (6-year-old Antonio and 3-year-old Ebony); and over 30 paternal and maternal relatives. The family lives in an economically disadvantaged community with food and service deserts. The Garcia-Smith family was reported to the child abuse and neglect hotline. The mandated reporter—a teacher—expressed concerns about the parent’s ability to care for Antonio and his younger sister. Per the report, Antonio often comes to school hungry, dirty and tired. On the date the report to CPS was made, Antonio had a blister on his hand and when pressed, he reported to his teacher that the night before he was warming up macaroni and cheese for dinner and the steam burned his hand. When asked why his parents were not making dinner, Antonio reported that his father was working at his second job and his mother had fallen asleep on the couch, after “drinking wine and smoking a pipe that smelled funny, like a skunk”. Antonio reported that he did not want to bother her as she works two jobs and needs her rest. He reported that he had fallen asleep late in his parent’s room watching cartoons and almost did not make it to school this morning. This is where their story begins, where we review mandated reporting as one structure that requires critical analysis at this point in history.

3. Mandated Reporting

In the United States, laws specific to mandatory reporting of child abuse and neglect have been in existence for over 50 years [7]. Mandatory reporting laws were enacted in response to the seminal article, The Battered-child Syndrome, written by Dr. C. Henry Kempe and colleagues in 1962 [7,8,9,10]. In the article, Kempe and colleagues posited that this clinical condition was often not recognized or when it was recognized, it may have been handled inadequately if a physician was hesitant to notify the proper authorities [10]. Within three years of the publication of this article, all 50 states adopted a mandatory reporting law [9,11,12]. This occurred after the Children’s Bureau of the United States Department of Health, Education and Welfare provided model mandatory reporting statutes for individual states to adopt as they worked to establish legal requirements for reporting child abuse and neglect [8]. The aspirations of these laws were early identification and protection for victims of abuse [13]. Mandatory reporting laws had a far-reaching appeal, based on the belief that early detection could prevent harm to children [8].

Years later, in 1973, with the passage of the federal Child Abuse Prevention and Treatment Act (CAPTA), states across the country further expanded their reporting requirements [9]. The Act set minimum federal definitions for child maltreatment and standards for mandatory reporting as a condition for states to receive federal funds [7]. Despite having the same purpose, current laws vary considerably state-to-state in terms of (a) how child is defined, (b) what is reportable and (c) who is mandated to report [7,9,11]. This broad discretion has resulted in laws that are often influenced by racialized narratives surrounding poverty and parenting, with Lonne and colleagues decrying the authoritarian expansion of the neglect statute [14].

In the United States, the Federal Child Abuse Prevention and Treatment Act (CAPTA) requires each State to have provisions or procedures for individuals to report known or suspected instances of child abuse and neglect, in addition to individual laws for mandatory reporting. Although there is overlap in each state’s code, variances exist as well. A summary of state codes is accessible through the Child Welfare Information Gateway [15]. Mandatory and permissive reporters are required by law to report information that led them to believe a child was abused or neglected, although they do not have to meet a burden of proof that abuse or neglect have indeed occurred. In exchange for making reports in good faith, every state provides immunity to mandatory reporters from criminal and civil liability, as an incentive to report concerns to child protection agencies. Conversely, a number of states also include, in their reporting, status-specific penalties for mandatory reporters who knowingly or willfully fail to report suspected child abuse and neglect [11,16]. For example, in many states, mandated reporters failing to report suspected child abuse or neglect can face jail terms, ranging from 30 days to 5 years, fines, ranging from USD 300 to USD 10,000, or both jail terms and fines. Although these penalties are clearly listed in statute, data reporting how often these penalties occur is not readily accessible, so the level of implementation is unknown nationally.

Research indicates that race and socioeconomic status impact major child welfare decision points, beginning with child abuse/neglect hotline reports [17,18]. Children who have been racialized as Black, Indigenous or other racial or ethnic minorities and children living in low-income neighborhoods are overrepresented in reports of suspected maltreatment, by all groups of reporters, as compared to their White, higher socioeconomic status counterparts [9,19,20]. One factor that may explain the disproportionality and disparity experienced by low-income families and families of color in the child welfare system is bias [17]. Disproportionality is overrepresentation or underrepresentation of a racial or ethnic group compared with total population percentages, whereas disparity represents unequal outcomes for one racial or ethnic group as compared with outcomes for another racial or ethnic group. Recent studies point out that an individual’s sense of risk to children is both subjective and value-laden, which is especially harmful to families from culturally diverse backgrounds [8]. Explicit bias includes acts of prejudice, discrimination, and racism and is easier to identify, whereas implicit bias includes unconscious beliefs and attitudes and is harder to identify [17].

In addition to the biases that show up for individuals, bias is also embedded in the institutional structure of child welfare and its collaborating systems [8,18,19,20,21]. This ongoing reality becomes further complicated when child welfare systems use algorithms and machine learning, with big datasets that are inherently biased, to aid decision making at different points in the child welfare system [22,23]. Mandatory reporting laws are one component of oppression in the current U.S. child welfare system. Since most reports of child maltreatment come from mandatory reporters, and families of color and low-income families are more likely to be reported to CPS, this population disproportionally experiences the negative effects of the child welfare system, due to mandatory reporting policies [7]. Mandatory reporting laws may persuade individuals interacting with children to report their suspicions rather than assist families in need, whether it is based on good intentions or their own self-preservation [7]. Moreover, the punitive connotations associated with the reporting system, coupled with disproportionate resources being allocated to investigations, at the expense of services to meet families’ needs, are fundamental flaws [24]. This has led scholars and advocates alike to promote ways to redesign this policy, so that mandatory reporting is replaced with mandatory supporting and service provision [12,25], in recognition of how family surveillance perpetuates inequality and trauma [26]. It is important to also note that in addition to individual biases that mandatory reporters hold, they are part of larger institutions, such as education, health care, and law enforcement, that have their own histories of systemic oppression, resulting in families of color experiencing racism from compounding systems of oppression. Empirical evidence of this phenomenon lies in state-level, punitive policy regimes that correspond with higher numbers of children in foster care [27].

In our case example, the child welfare agency staff screen the Garcia-Smith child maltreatment report, prompting a response from a child welfare worker who investigates the incident. At the conclusion of the investigation, which families have systematically and historically described the process as coercive, penalizing, and all-powerful [28], the child welfare agency substantiates the child maltreatment report for neglect of supervision and determines the Garcia-Smith family receives in-home services. This brings us to two inter-related existing structures that we suggest may harm, rather than help, the majority of families who come to the attention of child welfare—the substantiation decision and placement on the central registry.

4. Substantiating Findings

The requirement to substantiate investigations is the foundation for the fault-finding orientation of child protection systems, and it closely correlates to the central registry system discussed next. As with the variability in mandated reporting laws, states have varying definitions of child maltreatment and different classifications of evidence (from preponderance of the evidence, to credible evidence, to probable cause) to substantiate a report [15]. As Owhe noted, the credible evidence standard does not require the investigator to weigh conflicting evidence, but merely requires the fact finder to present minimal evidence to support the allegations against the alleged perpetrator. When a report is submitted to the Central Register, as indicated, the Register accepts the findings of the local agency without making an independent determination [29] (p. 1).

Hollenbeck noted the decision-making criteria are not applied systematically, leaving CPS investigators and CPS teams with significant amounts of discretion [30]. Worker characteristics, such as tenure at the agency, background, level of risk tolerance and other factors, play a role in decisions across the child welfare spectrum, including in several of the examples presented in this manuscript [31]. Many families under investigation for maltreatment respond from a place of fear or coercion, oftentimes without the benefit of legal counsel. In the U.S., Child Protective Services (CPS) abolitionists question how substantiation decisions, with such long-term, large-scale impact, can be made without judicial review, trampling on the due process rights of individuals [32].

Not all substantiated reports are found to need protective services, while other reports that are not substantiated are determined to need protective services. In addition, reporting rates, substantiation rates and service provision rates vary significantly by state, calling into question a shared national understanding of child maltreatment and equity of response [15]. Various researchers have questioned the role of child welfare systems substantiating child maltreatment reports, particularly since the system fails to ensure access to, or funding of, needed services. Thus, it has been argued that the substantiation label may not be a useful distinction for CPS [33,34,35]. Further research demonstrated that substantiated cases and unsubstantiated cases can be strikingly similar [36,37]. Kohl, Jonson-Reid and Drake, thus, suggested that the substantiation label could be replaced with other indicators, tracked by family or by case, including court involvement and/or services needed [38].

CPS expends considerable time and resources on a fault-finding process that ultimately may not address the issues of harm, danger, and risk. In fact, it may be an erroneous structure, as the fault-finding process does not in and of itself make children safe from harm. Numerous evaluations of a reform called differential response (which removes substantiation and placement on the central registry for all cases with low and moderate risk) have demonstrated that eliminating this decision point may increase family engagement and service uptake [36,39,40,41,42]. Eliminating the substantiation decision will not compromise CPS’ ability to, when necessary, coordinate with law enforcement, seek Juvenile Court oversight, and place children in out-of-home care, if necessary, but will remove an oppressive mechanism that uses these data to further surveil and regulate family life.

5. Central Registries

Child abuse registries have served a range of purposes, as follows: capturing child maltreatment statistics that can be used for continuous quality improvement and research endeavors; providing staff with information that is used in decision-making in subsequent reports and serving as a database that potential employers can use to conduct background checks. Great variability exists in the information that states capture in central registry databases, including the name of the alleged child victim, the name of the alleged perpetrator, and the substantiation decision. In addition, there is inconsistency in the way in which reports are included, from all investigated reports to only substantiated reports to, in some cases, unsubstantiated reports for a lesser period of time [30]. Similarly, the appeal processes for removing one’s case/name from the central registry vary by state and territory, as determined by administrative rule [15], which is complicated by the fact that oftentimes, individuals are unaware their names appear on such registries.

Substantiation decisions have life-long effects on those whose names are in the registry, limiting employment prospects, particularly in careers that involve children, and negatively impacting financial earning power and economic well-being. This mechanism is described by some CPS abolitionists in the US as “being sentenced to a life of poverty” without due process [32]. For public safety purposes, it is critical that the most egregious maltreatment cases, that have been criminally prosecuted and subjected to a higher standard of proof, consistent with criminal prosecution, should be captured in a database. Without traditional child abuse registries, existing judicial structures could absorb and document these severe crimes.

Returning to our case vignette, the Garcia-Smith family now has a substantiated report that resides on their state’s child abuse registry and in the information system used for future decision-making. They were not provided information on how to appeal the decision. Their likelihood of further CPS surveillance increases if they are subsequently reported to the child abuse hotline [43]. The family transitions from the investigation stage of service to the ongoing in-home service stage, which creates the opportunity for increased interaction with, and surveillance by, child welfare staff, resulting in being subsequently reported to child welfare. The Garcia-Smith family receives two more substantiated allegations of inadequate supervision, due to the mother being asleep at the weekly arrival of the assigned in-home family therapist. The third time the family therapist arrived at the door, the six-year-old was also asleep in front of the television, and the three-year-old was alone in the living room. There was no answer at the door, so the therapist called law enforcement who, in concert with child protective services, removed the children and placed them with unrelated foster parents, while assessing the appropriateness of kin to serve as caregivers. This now leads us to deconstruct the following three additional structures: the role of family in decision making, background checks and ongoing child welfare services.

6. The Role of Family in Decision-Making

In our case example, after the emergency removal (and in other instances, at the point of a subsequent investigation process where the child welfare agency professionals thought child removal might be imminent and necessary), they held what has been generically labeled in U.S. child welfare systems as a family meeting. The mother, Jacinda, attended, but her husband Pedro was unable to attend because of his work commitments. No other family members participated; this is quite possibly a direct result of the agency professionals not searching for or contacting extended family, the meeting being scheduled during traditional work hours (8 a.m.–5 p.m.), and/or the agency’s expectation that Jacinda would invite her own supporters. At this family meeting, an independent facilitator led the assembled group through a standard agenda that was draped in family-friendly language. Unknown to Jacinda, the agency was using the “family” meeting as a mechanism to gather more information to reinforce the narrative that the children were unsafe with her and Pedro and even within their broader family system.

In the United States, child welfare agencies implement various models of family meetings, such as family team meetings, family group conferences, family group decision-making meetings, case planning conferences, and team decision-making. Many models espouse that the processes build on family strengths and protective capacities and promote family leadership in decision-making. However, it seems as if family meeting practices have devolved over time, with child welfare agencies investing minimal time and effort to widen the family circle through finding family, preparing the family to participate, and structuring the processes to embrace the family group, rather than the agency, as the primary decision-makers in safeguarding child and family well-being. As such, many of these “family” meetings resemble traditional case staffing meetings where decision-making power is rooted in the agency professionals, and ultimately the courts, continuing the pattern of silencing and subjugating families in child welfare decision-making [44]. The pursuit of concepts of empowering family responsibility and leadership to restore balance and relational healing appear to remain theoretical aspirations in many family meeting practices [45]. Institutional decision-making, again foundational to the practices and policies of the child welfare system, takes hold across a family’s experience and it is rife with an ecology of factors that are outside of family control or influence [46].

A different paradigm for decision-making (one that vests authority in children, families and communities, supported by the information provided by child welfare professionals) could upend what has become another oppressive child welfare structure. One family meeting type—the family group conference—which at its foundation was a response to colonization and institutional racism [47], gives child welfare systems a prototype that embodies family leadership principles. Pennell has suggested that fundamentally changing decision-making is one means of reversing systemic racism [6]. Decisions about family life should be nested within the family group, by those who are the expert on their family and most affected by the decisions, rather than professionals. In our case example, it is likely that had the family group been engaged in decision-making, the family’s plan on how to safeguard its most vulnerable members would likely not have been family separation.

7. Background Checks

Before any child in the custody of a child welfare department can be formally placed with a stranger, kin or kin-like individual, the agency performs home studies and background checks for any adult who resides in the home. In our case example, after the children were placed with unrelated foster parents, Jacinda identified one maternal (Aunt Ginger) and one paternal family member (Uncle Julio) who were interested in becoming caregivers for the children.

Background checks include the screening of child abuse registries within any state and/or county the potential kinship provider has resided, fingerprint checks through a state’s Bureau of Investigation, and Federal Bureau of Investigation (FBI) checks on each individual residing in the home. With the state of Colorado as an example, anyone with such crimes as a felony offense of sexual abuse or domestic violence, felony physical abuse or drug offense, violation of a protection order, or homicide, result in kin or kin-like individual(s) being automatically ruled out as a placement option [48].

Unless noted in a state’s specific requirements, it may not matter how long in the past these crimes occurred. This is critical, because, over time, certain states have liberalized their drug laws, legalizing marijuana, for instance [49]. This means that individuals residing in those states could have a felony conviction from the past, for what is now considered a legal activity. Yet, as a result, these individuals will not be approved as a caregiver, as the agency will deem them as unsafe. This disproportionately impacts families of color, since racial disproportionality also exists in the criminal justice system, with African-Americans, Hispanics and Native Americans being disproportionately incarcerated. Many of these inmates are incarcerated for drug-related offenses from the month prior, disproportionately impacting African-Americans [50].

While state policies establish which offenses on a background check will automatically discount possible caregivers, child welfare professionals have additional discretion to exclude kin or kin-like caregivers, based on their views, interpretations and biases of these caregivers’ previous social services history, or other crimes that are not felonies. Bureaucratic discretion, then, becomes the gatekeeper for kin placement, again taking control from the family itself and placing it in the hands of the child welfare system. While necessary for the bureaucracy where the system is currently rooted, bureaucratic discretion becomes yet another decision point heavily influenced by the ecology of the decision maker, including institutional, supervisorial, and individual factors [46,51]. For the decision to select a kin provider, specifically, factors include maltreatment type, family structure, caseworker’s educational background, and caseworker’s assessment of risk level [52].

This can result in child welfare decision-makers continuing to prioritize stranger placements over the possibility of children living with their family and in a culturally congruent and familiar environment. Interestingly, when felons leave prison, unless the family is currently involved with the public child welfare agency, they are able to integrate into their family and community systems and care for their children. This creates a double standard for substitute caregivers in system-involved families. The rigidity and restrictiveness of background check policies, coupled with concerns about potential media exposure, risk aversion orientation, and staff beliefs about extended families all factor into a reliance on non-familial placement resources and children being unnecessarily separated from their families.

Returning to the Garcia-Smith family, Aunt Ginger’s home did not pass the background check because she was charged and convicted for possession of two ounces of marijuana twenty years ago, a substance that is now legal in her state. Uncle Julio’s wife is an undocumented immigrant, so to avoid any involvement with government systems for fear of deportation, he requested that his family not be a placement option. Our case example is not unique. Immigrant children are more likely to be placed into foster care settings and institutions with little to no chance of ever being placed in a kinship home, partially because of the risk associated with potential caregiver immigration status [53,54]. In our example, the children remain with their foster parents (also referred to as stranger care) as the case traverses its way through the court processes and service receipt, where we turn our attention next.

8. Ongoing Child Welfare Services

When involvement with the child welfare system extends beyond initial investigation or assessment, a family becomes a ‘case’, wherein a plan is developed with the administrative intent of achieving child safety, permanency, and well-being for the child(ren) involved. Typically, these plans require participation and completion by the child’s caregivers, either to reunify with their children or to close their case with the Department if children remain in their family of origin. Services can take a range of directions, including parent education, concrete and poverty-related services, such as rent, food assistance, and transportation vouchers, and childcare assistance, substance abuse treatment, advocacy for situations involving intimate partner violence, or mental health care and services. The literature recounts a multitude of difficulties related to the creation of plans, the availability of services, and the engagement of families toward meaningful planning and delivery [55]. For the purposes of this article, we examine a commonly ordered, offered, tracked, and examined service in child welfare—therapy. Psychiatric assessment, as well as family, individual, and child therapy, are all common components of service plans [55]. While research empirically validates many of these approaches, it is less common for these interventions to be rigorously studied in child welfare populations or across cultures [56,57,58]. The use of “mis-cultured” psychological tools and assessments may not only be counteractive in providing genuine and effective family support and recommendations for (child welfare) system involved families, but can also dispense significant and consequential decisions that affect court-involved families [59]. Thus, these services can represent yet another structure of oppression for families and children, particularly if they represent communities of color and if they do not meet the underlying needs of children and families.

Therapy and therapeutic interventions were born out of psychology. Over time, the lack of participant diversity in psychology studies and the domination of Whites as editors for psychology publications illustrate narratives of power and oppression in the field [60]. In addition, there has been overwhelming overrepresentation of psychosocial research focusing on individualist societies and less on collective culture representation [61]. Individualistic cultures are often referred to as western societies, which focus on a narrow population examination [62]. People who identify as being from collective cultures are often from eastern and southern countries, where the majority of people are from Asian, Latin, First Nations, and African descendants [62]. People from non-Anglo-Saxon countries are less studied and, therefore, psychology lacks more culturally respectful therapeutic solutions for people of color. Further, the psychological workforce in the U.S. is overwhelmingly white, where non-Whites comprise just 16% of the psychological workforce, including all therapists, counselors, consultants, and medical professionals, psychiatrists and psychologists [63].

The child welfare system continues to disproportionately intervene in the lives of children of color for reasons including poverty, racial bias and discrimination by professionals, geographic location, and inherent structural racism, with Black and American Indian/Alaskan Native children being overrepresented in foster care [64]. To illustrate, a recent systematic review in child protective services indicated that racial disparities exist across the child welfare system for Black children and families [65].

At the same time, children in foster care, compared to the general population, are three times more likely to have a diagnosis of attention-deficit hyperactivity disorder (ADHD), due to a variety of factors [66]. With the many diagnoses given to foster children, there are also concerns regarding the overuse of psychotropic medications that this population experiences. Records obtained from the governmental insurance program, Medicaid, reported 40% to 60% of children involved in the child welfare system have a diagnosis of at least one psychiatric disorder [67]. Over half of children in one study were prescribed four or more psychotropic medications, with very few receiving decreasing amounts over time [68]. Similar to therapeutic modalities, psychiatric knowledge is derived from western, educated, industrialized, rich and democratic (WEIRD) societies that support more individualistic parenting styles, which may contradict the inclusion of community values and beliefs of collective parenting forms [69].

This reality compounds in the therapeutic milieu, where it meets the structural racism in psychology [70,71]. Empirically, Black individuals are three to five times more likely to be diagnosed as having schizophrenia, as compared to White patients, suggesting that a portion of these diagnoses are incorrect [72]. Black children suffering from depression are often misdiagnosed as having oppositional defiant disorder (ODD), due to their displaying symptoms of depression differently from White children [73]. It is common for White children to display depression by withdrawing, being less active and less attentive, compared to Black children who demonstrate aggressive and combative symptoms while depressed [74].

So it was with the Garcia-Smith family. Antonio, having turned seven in placement, struggled to adapt to his new living situation and was particularly frustrated after visits with his parents. These supervised visits took place at a local park until the weather turned cold. Moving inside, the two hours were spent (and observed through glass) once a week in a dull, government building. Antonio remained in the same elementary school but was suspended twice for uncustomary outbursts. In the evenings, he was hypervigilant about his little sister, and chronically yelled at the foster mother about his sister’s care. His case files described him as angry and combative. Notes recounted his refusal to follow household rules, as well as regular physical fights with the foster parents’ biological children. One evening, Antonio threatened to jump off the roof of the family’s two-story home. Antonio was hospitalized for suicidal ideation, diagnosed with depression and ODD, and prescribed two psychotropic medications. He started to see a therapist in the community.

9. Immigration Status—Another Layer

As is evident in the Garcia-Smith family vignette, the immigration status of individual family members interplays with child welfare practices. As immigrant children and family populations continue to increase in the United States, immigration policy shifts to an increasingly anti-immigrant lens, and child welfare and related social agencies find themselves at an intersect with increasingly punitive immigration policies [53,75]. Additionally, a combination of stressors, such as the process of immigration and acculturation, contribute to levels of stress among immigrant communities [76]. This provides an opportunity for child welfare and other agencies to grow into culturally humble, anti-oppressive, and anti-racist child welfare practices.

Shifts in policy and enforcement surrounding immigration have accelerated an intersection between enforcement of inhumane immigration policy, the child welfare system, and other social services agencies. Because of the increasing traverse between immigration policy and enforcement and other systems, an opportunity exists to facilitate positive outcomes in emerging issues at the convergence between immigration and child welfare systems [75]. This includes a careful and methodical increase in system knowledge of immigration and the effects on family systems, increased mutual cultural understanding, and language access [76]. This may result in multidisciplinary collaboration and reduction of disparities and mistreatment among immigrant communities involved in child welfare services.

Increasingly anti-immigrant policies, attitudes and public platforms lead to the marginalization, exclusion, terrorization, and oppression of immigrant communities [53,77]. This presents a multitude of challenges to the creation and implementation of successful, culturally respectful, and person-centered services. Some of these challenges include fear of access to services, fear of misreporting and ultimately family separation and deportation, leading to the perpetuation of trauma and immigrant mistrust of agencies and government services, which we experience with the Garcia-Smith family [77,78]. The outcome is the exacerbation of stressors within immigrant communities, including higher rates of substance use, fear of arrest and deportation, higher likelihood of abusive and or neglectful patterns, increased risk of maltreatment, perpetuation of trauma and an increased need for services [53,77,79].

Furthermore, immigrant and undocumented status offer zero protection from the oppression of systems and agencies, from discriminatory practices and staff, and less protection from the weaponization of a person’s immigration status [77]. This can increase the vulnerability for the promotion of less desirable goals, such as long-term foster care, long-term institutional care, and independent living, that often result in early transitions and aging out of the system that do not provide adequate support and true permanency for children. As demonstrated in our case study, factors associated with caregivers’ immigration status may interfere with decisions regarding the child/children’s best interest and can lead to incongruences in need identification, permanency planning, service, placement decisions, and other interventions.

10. Conclusions

Antonio and Ebony remain in foster care at the conclusion of this vignette. Jacinda and Pedro continue to struggle with economic stability and sobriety in the midst of grief and loss for their children and family life. They have both completed extensive psychological evaluations and are required to engage in therapy on a regular basis. They are constantly on buses, to the therapists, to court, to the visitations with their children and, of course, to work. They are tired but determined to get their children back to their home, supported as much as possible from behind by their family. Time continues to dwindle, with a resource-strapped agency simultaneously pursuing reunification and termination of parental rights. The agency stopped looking for extended family to be a resource and support for the parents and children. The family meetings occur quarterly, but they do not engage the wider family system in decision-making; rather, Jacinda sits in a room alone, where she feels invisible, with at least six service providers peppering her with questions and following up on “her” services. What she learns every quarter is that the clock is ticking, as the laws are clear about timely pursuit of permanency for children under six, whether that be with their family of origin or a new, adopted family.

Laypeople outside the child welfare system rarely see the inner workings of these complicated structures, and one more structure ensures this, namely, the lack of transparency shrouding the system as a whole, imposed from the system itself in the name of client confidentiality and government integrity. The system is structured to self-preserve at every turn, creating an increasingly intractable knot for families, children, and the concerned community. Indeed, as Braithwaite explains in the following passage:

Regulatory control from the perspective of child protection authorities is largely about survival. To avert danger to the child, coercive protective measures are used to change the relationships surrounding the child. To avert destabilization of the regulatory community in the face of outside criticism, child protection authorities exercise control over the narratives that are shared with the public [5] (p. 50).

Child welfare is not just a government program or service; it is the public’s collective response to child abuse and neglect. This response depends upon a social contract. CPS caseworkers intervene in the most private domain of family life, and in return the public is asked to trust that those workers will intervene in a way that protects, supports and respects children and their families. The public are essential to the life of this system; elected legislators create laws and funnel tax revenues to fund child welfare agencies, concerned citizens and mandated reporters call the hotline when they believe children are being harmed, and strangers (and kin) foster and adopt children and youths. Yet our participation is based on trust, which must be earned through open and honest communication between child welfare and the public, as “to make services accountable is reliant on transparency” [80] (p. 6).

The field’s common, consistent practice, though, is the functional equivalent of ducking under desks, hands over ears, hoping the questions will go away or another controversy will distract public attention. Meant to address that lack of public understanding is a range of oversight and accountability mechanisms, focusing on egregious and fatal cases, varying in form by country, but all trying “to understand the scope of maltreatment deaths, the size of the interventions that are warranted and the effectiveness of our efforts over time” [81] (p. 12). However, these well-intentioned, independent, local and even national reviews may do little to advance rational, evidence-based child protection practices. The system inaccurately blames confidentiality laws for silence, while promoting a “master narrative” of monstrous parents and egregious physical abuse to justify budgets, another form of health terrorism [82]. The unspoken truth, then, is that the child welfare system is challenged more by poverty-related neglect than abuse and that parents need support more than judgment. This then becomes “uncomfortable knowledge” that can give rise to disruptive, troubling moral questions [83].

The result is that child welfare has understandably lost public trust and support, most especially with the marginalized and oppressed populations that make up a disproportionately large share of cases and suffer disproportionately negative outcomes. Policy and practice would benefit from understanding the stories of those with lived experience in the system, yet the shield of confidentiality is used “to silence the answers contained in their stories” [82] (p. 59).

The system has been characterized for almost two decades, now, as a muscled authoritarian and a controller of families [84,85]. A response to this, sometimes by those closest to the system itself, is to laud incremental continuous quality improvements. While hundreds, if not thousands, of reports have designated child welfare as a broken system, we contend that is not the case. Rather, the system is producing the outcomes it is designed to achieve. We recognize that we are joining a chorus of practitioners, administrators, policymakers, advocates and researchers who are calling for everything from abolition, to transformation, to reformation of the child welfare system. We acknowledge the efforts of system reformers, creative practitioners, small local agencies, and all efforts to include the voices of people with lived experience, which create small openings and pinholes of light. This is only the glimmer of a new beginning.

The child welfare system has innumerous, deeply embedded structures of oppression, a few of which we have illuminated and reflected on in this article. There are others that we did not tackle in this manuscript but we encourage others to ponder, including emergency removals without court orders, formal/informal safety and support planning, “voluntary” services, risk and safety assessments, insufficient legal counsel for children and parents, alike, termination of parental rights (which some advocates have termed the child welfare death penalty), volunteer child advocates, and record expungement (children being placed on sex offender registries).

Instead of the existing mandated reporting statutes and processes, laws can be enacted that create a mandatory reporting system for instances of egregious harm and sexual abuse, and a voluntary notification system for other family needs, with reporters being classified as confidential but not anonymous in both instances. This could be one way to decrease unnecessary surveillance into family life, also suggested by other scholars and advocacy groups [86]. On average, 80% of child maltreatment reports that do not suggest egregious harm or sexual abuse could be served by community and neighborhood-based organizations, to meet families’ basic needs of shelter and food and connect families to substance abuse, mental health and domestic violence services. This is perhaps the next generation of differential response in child protective services, whereby the alternative response to family and child needs is not served through a government agency with family regulation orientations. If the child maltreatment investigatory processes remain intact, at a minimum, the substantiation decision, which oftentimes offers an arbitrary distinction, without a difference, could be exchanged for a statement of family/child needs; if not replaced or eliminated, it should not be used as a proxy for providing services to families or forcibly removing children. The child abuse central registry should be eliminated in favor of applicable criminal registries and their corresponding legal requirements for due process. Background checks policies should be neutralized to be biased in favor of kinship placement and not used by street level workers to preclude family systems to care for their own children. Formal and informal family networks, including children and youths, should be positioned to be the decision makers when their children become embroiled with child welfare systems. This will require the following: (1) workers’ roles to shift from surveillance monitors to service brokers and active family builders and community organizers, whose responsibility it is to bolster family integrity and organize these family groups to find solutions that nurture and protect their children (and not who various system professionals and advocates colonize as our children); (2) juvenile and family courts to respect the due process and civil rights of both children and parents, by providing effective, direct legal representation, rejecting the tradition of rubber-stamp judicial approval of government agency actions, and defer to family-led decision-making. Kin first policies should be the norm and not the reform. Anti-immigration attitudes and policies have no place in the decisions of family life.

The chosen language to describe reforms sanitizes the narrative of oppression and harm. The opportunity lies not in polarized dichotomy between those who seek to abolish the system and those who seek incremental reform internally, but in honest, joint examination, alongside communities and stakeholders. Regulatory control may long be a necessary part of this system, but significant changes must occur to design effective communities that support families and children, to provide for economic security for the most vulnerable, and to eliminate hierarchical structures and include families and children in decision-making about their own lives [87]. In particular, the foundational structures underpinning the child welfare system, as outlined, are the starting place for examination and significant change. We contend, on behalf of the Garcia-Smith family and millions of other families, youths and children similarly impacted, that the entirety of the child welfare system, that advocates and scholars alike have recently relabeled the family policing or family regulation system, must be revealed and transformed, oppressive structure by oppressive structure.