AuthorGodsoe, Cynthia



Among a growing consensus that the criminal legal system is oversized, racist, and ineffective at preventing harm, the "child welfare"/family-policing system (1) continues to be praised for protecting children from "bad" parents. The tremendous harm the system inflicts on millions of families and communities--particularly low-income populations and communities of color--is ignored. So, the violence of the multibillion dollar system continues unabated: separating children from their families of origin mostly based on a family's poverty or the system's culturally biased judgment of parenting; siloing children in often long-term and high-risk foster "care"; and sometimes even permanently orphaning children via the termination of parental rights. (2) As a growing body of research, scholarship, and, most importantly, lived experiences of impacted people reveals, the punishment and family separation of poor, Black, Native, and other marginalized families is central to the American project of maintaining white supremacy, as well as other hierarchies along divisions such as class and gender. (3) The vague and malleable definitions of neglect, (4) the army of state workers mandated to report against parents who come to them seeking help, (5) and the lack of even the minimal due process accorded to accused people in the criminal legal system render the family-policing system a very effective weapon of social control. (6) To paraphrase Paul Butler describing the criminal legal system, the system is working like it is supposed to--the harms are a feature, not a bug. (7) Like the criminal system, the family-policing system is driven by, and in turn perpetuates, carceral logic--an array of legal practices that operate to police, discipline, and most importantly, subordinate a given population in the name of safety or protection. (8)

In her excellent new book, Torn Apart: How the Child Welfare System Destroys Black Families and How Abolition Can Build a Safer World, Dorothy Roberts (9) takes a monumental step toward illuminating the harms of the family-policing system and remedying the false narrative that it helps families and protects children. It is difficult, if not impossible, to overstate Professor Roberts's contributions to this field, not to mention numerous others. Twenty-one years ago, Roberts published Shattered Bonds: The Color of Child Welfare, the first full-scale examination of the system by a legal scholar. (10) In the intervening decades she has continued to document the system's harms and to inspire and support other scholars, lawyers, and advocates (including me) to consider how this system operates in parallel to the criminal system and overlaps with it to surveil, separate, and punish Black and other marginalized families. (11) In Torn Apart, Roberts deftly combines a growing body of research into racialized social control and the harms of the family-policing system with her groundbreaking past work and her theoretical framework of abolitionism. (12) In so doing, Professor Roberts has produced another iconic work that will shape the fields of family law, poverty law, and criminal law for years to come. To be clear, I mean shape both the scholarly and the practical/advocacy realms; one of Roberts' particular skills is bridging the oft-criticized gap between legal scholarship and law on the ground. Her work will influence not only how people think about and teach family law, but also, hopefully, how families interact with and are treated by the state.

This Review aims to use Torn Apart as a springboard to further explore the carceral logics of the family-policing system and, particularly, the role of lawyers in maintaining and legitimating these logics. (13) As with the criminal, immigration, and other punitive state systems, legal structures and lawyers help to create, perpetuate, and legitimate this racialized hierarchy. Roberts aptly calls out the "family court professionals" as a "powerful branch of the family-policing machinery" (p. 127). Yet, while naming state lawyers, volunteer Court Appointed Special Advocates (CASAs) or Guardians ad Litem (GALs), judges, and court officers, she does not include lawyers for children or parents (p. 127). A growing number of scholars and lawyers are recognizing that defense lawyers are too often let off the hook when examining their own complicity in these systems, (14) even though these lawyers may silence clients, sort them into those who are "worthy" and "unworthy," and ensure their compliant processing through an unjust system. Tellingly, impacted communities have long recognized that even the most well-intentioned professionals should not be at the movement's center. As Rise, a community-impacted parents' movement in New York City, puts it: "Parents [should] set the agenda. Allies will, increasingly, be allies. That is how parent power builds. To begin that cycle of shifting power, our growing movement [against family policing] must reckon with the dynamics [within the movement] that tokenize and marginalize parents." (15)

Drawing in part from my own experiences representing children and teenagers in family court, I follow Roberts's thread of the complicity of system actors to delineate how lawyers for children and lawyers for parents (albeit perhaps unwittingly) participate in the system's silencing and dehumanizing logic. In Part I, I outline Professor Roberts's core arguments documenting and theorizing family policing as a carceral system of racialized social control and highlight her self-described journey from a reform-minded critic to someone convinced abolition is the only solution. Part II delineates how lawyers representing people against the state can contribute to sustaining and legitimating its carceral project. In the family-policing system this includes both attorneys representing children and those representing parents. Part III suggests a tentative path forward, building on Professor Roberts's work and that of other abolitionist activists and scholars to argue for dismantling the family-policing system and replacing it with community-based support. (16) Lawyers and legal scholars must avoid perpetuating and legitimating the system by centering the voices of impacted people and ceding expertise and funding to them. This power shifting is essential so that "those most impacted [can] ... control the laws, institutions, and policies that are meant to serve [the people]." (17)


    In Tom Apart, Roberts persuasively describes and theorizes the family-policing system as a continuation of the criminal legal system and other "islands" of the carceral state--a system with "unparalleled powers to terrorize entire communities, shape national policies, and reinforce our unequal social order" (p. 23). She marshals data; legal, historical, and sociological scholarship; and the lived experience of children and parents who have been involved in the system (via interviews and testimonies) (pp. 5-8, 56-62, 280-81) to portray the terror in action--how the system "actually works" (p. 35). This includes surveillance of families, particularly when they are seeking help for poverty, domestic violence, mental health, and other issues, (ch. 7); coercion into "voluntary" services or entanglement into a court system with little oversight or due process (ch. 5); skewed federal funding schemes that prioritize child removal to the foster system and adoption (ch. 6); and media "panics" over (rare) cases of severe abuse and death that fuel more punitive interventions into families (pp. 285-86). Roberts details the system's overwhelming connection to poverty, and how, by blaming parents for the impact of poverty on their children, it obscures the racialized structural inequality actually harming American children. Unlike many other critiques of the system, Torn Apart not only demonstrates how the system harms parents, but situates it within an abolitionist framework, showing how even slight involvement punishes the very children and youth it is purportedly helping. (18) This rich and thorough account brings something new to those who are unfamiliar with the system, as well as to those who have worked in or researched it for years. And its portrayal of racist state violence toward children and families should shock us all into action. Accordingly, Roberts' work earns its place alongside other iconic criminal system critiques and works of abolitionist theory such as Michelle Alexander's The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Angela Davis's Are Prisons Obsolete?, and Ruth Wilson Gilmore's Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California.

    Torn Apart is a particularly urgent critique and call to action because some proposals to divest from police and incarceration recommend investing more in the family-policing system. As Roberts points out, one of the family-policing system's particular evils is that it cloaks itself in the rhetoric of children's best interests, purporting to "rescue" and "save" children from their own families. The system not only damages parents and communities--as more people are recognizing--but also inflicts particular harms on the very people it purports to protect: children and teenagers. Roberts peels back the system's "benevolent guise" to show the state-sanctioned violence we should be seeking to dismantle along with the violence of the policing and criminal legal systems (p. 26). Perhaps even more effectively, because of the rhetoric of child saving, the family-policing system keeps marginalized communities down--outside of the body politic and thus blocked from amassing power or challenging the status quo. (19)

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