How judges can use their discretion to combat anti‐black racism in the United States family policing system

• Published date: 01 April 2023
• Author: Angela Olivia Burton,Joyce McMillan
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/fcre.12706

SPECIAL ISSUE ARTICLE

How judges can use their discretion to combat

anti-black racism in the United States family

policing system

Angela Olivia Burton|Joyce McMillan

JMacforFamilies, New York, USA

Correspondence

Angela Olivia Burton, JMacforFamilies, New

York, USA.

Email: jd2u_98@yahoo.com

Abstract

Child protection court judges have broad authority and

practically unchecked discretion to shape the everyday

experiences and long-term outcomes for children and fami-

lies that come before them. For Black families, this broad

power to dictate intimate details of family life - including

the power to legally terminate a child's parental and familial

connections - is exercised within the historical and social

context of chattel slavery and anti-Black racism. Judges

wield their power to regulate the everyday lives and inter-

generational outcomes of Black families charged with child

maltreatment within a legal and practice framework charac-

terized by indeterminacy and subjectivity that implicates

the parent–child relationship and the constitutionally recog-

nized rights of family privacy, autonomy, and integrity.

Drawing on the authors’experiences and perspectives as

Black women with personal lived expertise and professional

practice with the so-called child protection or child welfare

system, and referencing the limited literature that examines

parents’experiences in child protection courts, this Article

explores how judges’exercise of discretion perpetuates

anti-Black racism in the family policing system and suggests

ways child protection judges can consciously exercise their

discretion to mitigate harm and maximize due process,

Just so many different dynamics that play into race…Cause when you walk in…and you see maybe two families that are White and the rest are all like you, you’re

like crap, I’m fucked. What else can you say about it? You’re sitting there like I’m so fucked, because look at me and look at this room. The whole floor is people

that are like me…You’re like, this is not gonna go well. (Stephens et al., 2021, p. 10).

DOI: 10.1111/fcre.12706

© 2023 Association of Family and Conciliation Courts.

Family Court Rev. 2023;61:265–286. wileyonlinelibrary.com/journal/fcre 265

accountability, and justice for Black children and families.

The authors urge child protection judges to heed the exper-

tise and wisdom of Black parents about their family's needs

and desires, to hold child protection agencies and workers

accountable to their legal obligations and duties, and to

tightly constrain their own tendencies to silence, punish,

and regulate Black parents.

KEYWORDS

anti-Black racism, child protection, child welfare, civil rights, civil

rights, constitutional rights, family court, international human

rights, judicial discretion

Key Points for the Family Court Community

•Child protection court judges can promote due process,

accountability, and justice for Black children and families

through conscious and deliberative exercise of discretion

in decision-making.

•In exercising discretion in child protection cases, judges

should work to mitigate the harms to Black children and

families from the operation of bias and discrimination

inherent in the legal and practice framework character-

ized by indeterminancy and subjectivity.

•Child protection judges should ensure that Black children

and parents have the opportunity to be heard and that

their input about their families' needs and desires are lis-

tened to and acted upon.

INTRODUCTION

It has been long argued, and is now widely recognized by national and international entities, that the well-

documented overrepresentation and disparate treatment of Black families in the United States child welfare system

is a direct result of the history of chattel slavery and institutionalized oppression of discrimination against Black peo-

ple in the United States (Roberts, 2002; Hill, 2006; Roberts, 2014; Sangoi, 2020; White et al. 2021; Biden, 2021;

Burton & Montauban, 2021; Children's Bureau, 2021; American Bar Association, 2022; New York State Bar

Association, 2022; Committee on the Elimination of Racial Discrimination, United Nations, 2022; Working Group of

Experts on People of African Descent, United Nations (2022)). Given the overwhelming evidence that the foster sys-

tem is inherently racist, oppressive, punitive, and unhelpful, we join with many advocates in calling for an end to fam-

ily policing and for abolishing the current “child protective services”(“CPS”) system of reporting, investigation,

prosecution, and “treatment”of families as the primary policy response to structurally created racialized poverty and

disadvantage (Burton & McMillan, 2022).

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