Note to Democrats: We need compassion and reason regarding child welfare

Family separation among migrants has been a front-and-center campaign issue for the Democratic candidates and a hot topic of conversation, at the debates and elsewhere. Each candidate has a plan for immigration reform and has vowed that atrocities occurring at the U.S. border would never happen under their presidential watch. 

Many of the candidates also are tackling criminal justice reform, recognizing that the criminal system also separates millions of children from their parents. But with the exception of Julian Castro, not a single Democratic contender has a plan for the other form of family separation that also impacts hundreds of thousands of American families every day — foster care.

Castro’s Children First Plan for Foster Care vows to invest an additional $10 billion a year towards preventative services to keep families together. Although the title refers to foster care itself, the plan aims to “reduce the number of children entering the foster care system” in the first place “by addressing the root causes — deprivation, substance abuse, and a lack of social services.” Therefore, the plan tries to “keep families together.” 

Further, Castro promises to use executive action to undo President Trump’s proposed rule to prevent LGBTQ families from adopting or fostering — something Sen. Kirsten Gillibrand (D-N.Y.) tried to do by introducing the Every Child Deserves a Family Act, which would prevent foster care, adoption and child welfare agencies from discriminating against foster families or foster children based on their sexual orientation, gender identity or marital status.  

While Castro’s plan is a great start, there is so much more to be done.  An estimated 450,000 children are currently in foster care. And while TV news often flashes pictures of parents who have committed horrific abuses, the reality is that the vast majority of children in foster care are there because of vaguely-defined neglect, not abuse. Together with children whose parents are suffering from drug addiction (including those caught in the opioid crisis), these children make up over 90 percent of the children in foster care (though some cases have more than one claim).  

And under many state statutes, poverty is often conflated with neglect or is a contributing factor to neglect. Sexual and physical abuse, on the other hand, contribute to only 12 percent of the foster care population, but that is usually the story we tell about the system and the parents caught in it.

The Family First Prevention Services Act, which President Trump signed into law in 2018, aims to provide “enhanced support to children and families and prevent foster care placements through the provision of mental health and substance abuse prevention and treatment services, in-home parent skill-based programs, and kinship navigator services.” This, too, is a step in the right direction, and hopefully these services will keep more families together. But many low-income families need other supports that are not available under this law to fully thrive. To make lasting change for our nation’s children, we need to think about the child welfare system, top to bottom.  

For example, the Adoption and Safe Families Act (ASFA), the federal law that currently governs the child welfare system in the states, requires that termination of parental rights proceedings begin if a child has been in foster care for 15 out of 22 months. For incarcerated parents, those ensnared by poverty, or parents struggling with addiction, this arbitrary timeline simply may not be enough time. Thus, a parent’s rights might be terminated despite the fact that the parent may be accused of something completely unrelated to parenting. Termination occurs even when there is no identified adoptive family, leaving a child with no legal parents — an absurd outcome we should all want to avoid.  

Further, in most jurisdictions, courts are not required to consider the harm that could result from a child’s removal from his or her parents, siblings, community and school — only the potential harm that might result from staying. But as we know from cases involving families at the southern border, the harm of separation is real and must be accounted for.

Our presidential candidates need to take another look at ASFA and other child welfare laws with the same lens that many are using to examine immigration and criminal justice. We need to replace the punitive approach of the past with compassion and reason, and we need presidential candidates who make this a priority. Only then will we truly be able to keep all families together.

Shanta Trivedi is a clinical teaching fellow at the University of Baltimore Law School’s Bronfein Family Law Clinic and a former Brooklyn public defender.