Excerpted From: Abigail Mitchell, Legally Sanctioned Takings of Black Children: How Slavery Reverberates in the Modern Child Welfare System, 26 Scholar: St. Mary's Law Review on Race and Social Justice 141 (2024) (161 Footnotes) (Full Document)

NoPictureFemaleIn a time when telecommunications were primitive and blacks lacked freedom 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.

Today, Black children are overrepresented at all stages of the “child welfare” process, including initial family separations, terminations of parental rights, and length of foster care stays. This disproportionality has continued despite the Supreme Court repeatedly recognizing an implicit fundamental right to family unity absent a “powerful countervailing interest.” Dorothy Roberts wrote “[t]here are few institutions as culturally sacrosanct and legally violated as the American family.” The contemporary 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 perceived failure to comply with the system's requirements. The legal system consistently justifies every step of this process.

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. Beginning in the 1870s, private entities relocated around a quarter of a million predominantly impoverished Catholic immigrant children from urbanized areas to Protestant farming communities located in the Midwest, intending to assimilate these individuals into “good” Americans. Starting 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 reservations to assimilate them into White society to cut costs. In 2017, 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. Professor Anita Sinha characterizes the collective narrative of family separation within minority communities in American history as a “lineage.” This term is fitting--underscoring the profound loss of lineage when families are separated. Yet possibly the oldest and most persistent strain of the family separation tradition began with slavery-based removals. The echoes of chattel slavery's punitive family separations still reverberate today through the modern legal separation of mostly Black children from Black parents. The separation of Black families remains a furtive American tradition.

This paper aims to convey the historical narrative surrounding the separation 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 interim post-abolition period in which White society carefully crafted modern family conceptions and regulations, unilaterally excluding and devaluing 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 utilizes the same antebellum paternalism justification used during slavery to cast enslavers as “well-intentioned” and the enslaved as “in need of their guidance.”

[. . .]

“Some cops are called caseworkers.”

After the killing of George Floyd by police in 2020, activists called for the police to be “abolished.” They argued that the modern policing system could not be divorced from the slave catching “police patrols” from which the police evolved. Similarly, the modern family regulation 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 system, change appears possible and promising. Change cannot come soon enough.

Abigail Mitchell is a graduate of Loyola University Chicago School of Law and practices as a Family Defense Public Defender in Cook County, Illinois.