If 'Past is Prologue': Toward the Development of a New 'Freedom Suit' for the Remediation of Foster Care Disproportionalities Among African-American Children

• Author: Gloria Ann Whittico
• Position: Assistant Professor, Regent University School of Law. I would like to thank Lynne Marie Kohm, Professor and John Brown McCarty Professor of Family Law, Regent University School of Law, and Denise St. Clair, Executive Director of the newly-renamed Family and Youth Law Center, formerly known as the National Center for Adoption Law and Policy, and...
• Pages: 407-434

IF “PAST IS PROLOGUE” 1 : TOWARD THE DEVELOPMENT OF A NEW “FREEDOM SUIT” FOR THE REMEDIATION OF FOSTER CARE DISPROPORTIONALITIES AMONG AFRICAN-AMERICAN CHILDREN G LORIA A NN W HITTICO * I. I NTRODUCTION Under the “peculiar institution” of American chattel slavery, the enslaved family found itself at the mercy of economic forces that threatened to forever shatter precious familial bonds and ties of kinship. 2 The dire circumstances under which these families lived are well documented. 3 However, as the United States began its westward expansion during the early nineteenth century, these circumstances were both punctuated and elucidated by hope born of the rule of law. 4 A ray of light Copyright © 2015, Gloria Ann Whittico. 1 “Whereof what’s past is prologue, what to come in yours and my discharge.” WILLIAM SHAKESPEARE, THE TEMPEST act 2, sc. 2, at 250–51 (David Lindley upd. ed., Cambridge Univ. Press 2013) (1610–11). * Assistant Professor, Regent University School of Law. I would like to thank Lynne Marie Kohm, Professor and John Brown McCarty Professor of Family Law, Regent University School of Law, and Denise St. Clair, Executive Director of the newly-renamed Family and Youth Law Center, formerly known as the National Center for Adoption Law and Policy, and Adam Pertman, President of the National Center on Adoption and Permanency. 2 Loïc Wacquant, The New ‘Peculiar Institution’: On the Prison as Surrogate Ghetto , 4 THEORETICAL CRIMINOLOGY 377, 378 (2000) (“Not one but several ‘peculiar institutions’ have operated to define, confine, and control African-Americans in the history of the United States. The first is chattel slavery as the pivot of the plantation economy and inceptive matrix of racial division from the colonial era to the Civil War.”). See also Kurt Mundorff, Children as Chattel: Invoking the Thirteenth Amendment to Reform Child Welfare , 1 CARDOZO PUB. L. POL’Y & ETHICS J. 131, 168–69 (2003). 3 See generally Tristan L. Tolman, The Effects of Slavery and Emancipation on African-American Families and Family History Research , CROSSROADS J., Mar. 2011, at 6–17 (providing a detailed discussion concerning the impact of slavery on African-American families). 4 See generally W. Sherman Rogers, The Black Quest for Economic Liberty: Legal, Historical, and Related Considerations , 48 HOW. L.J. 1 (2004) (extensively describing the role of law in charting the economic circumstances of African-Americans in their journey from slavery to freedom). 408 CAPITAL UNIVERSITY LAW REVIEW [43:407 emanated from approximately three hundred “freedom suits” brought by slaves in the courts of the state of Missouri, 5 perhaps the best known being the United States Supreme Court’s decision in Dred Scott v. Sandford . 6 These “freedom suits,” filed between 1840 and 1861, were based upon a statute providing enslaved persons with what may have been unprecedented access to the courts. 7 Twenty-three of these cases were brought by enslaved mothers who, once having gained their own freedom, subsequently returned to court to petition for the freedom of their enslaved children based upon the legal doctrine of partus sequitur ventrem . 8 These women were mothers who had lost or feared losing “custody” of their children 9 through slave trading, because families were separated by cruel 5 David Thomas Konig, The Long Road to Dred Scott: Personhood and the Rule of Law in the Trial Court Records of St. Louis Slave Freedom Suits , 75 UMKC L. REV. 53, 53 (2006). See also History of Freedom Suits in Missouri , ST. LOUIS CIRCUIT COURT HISTORICAL RECORDS PROJECT, http://stlcourtrecords.wustl.edu/about-freedom-suits-history.php (last visited Jan. 5, 2015) [hereinafter ST. LOUIS PROJECT]. 6 60 U.S. 393 (1857). 7 ST. LOUIS PROJECT, supra note 5. 8 See generally Gloria Ann Whittico, “A Woman’s Pride and a Mother’s Love”: The Missouri Freedom Suits and the Lengths and Limits of Justice , FREEDOM CENTER J., (forthcoming 2015). 9 Id. Economist and social historian Colin Heywood has explored the dynamics of the enslaved family from the perspective of the child: [G]ruelling days working in the fields left slave mothers in the American South with little time or energy for their children. Jennie Webb informed a researcher, ‘All my childhood life, I can never remember seeing my pa or ma gwine to wuk or coming in from wuk in de daylight, as dey went to de fiel’s fo’ day an’ wukked till after dark. It wuz, wuk, wuk, all de time.’ In addition, these slave mothers faced the peculiarly debilitating circumstances of plantation life for close family relationships: rivalry from the all-powerful masters and mistresses for the affections of their children, and the constant threat of separation through being sold on to different owners. COLIN HEYWOOD, A HISTORY OF CHILDHOOD: CHILDREN AND CHILDHOOD IN THE WEST FROM MEDIEVAL TO MODERN TIMES 85 (2001) (citations omitted). It can be argued that the protection of children is one of the most basic of our cultural and moral values. Brian Simmons, Child Welfare Ethics and Values: Participants Guide , CAL. SOC. WORK EDUC. CENTER 7 (2003), http://calswec.berkeley.edu/files/uploads/pdf/CalSWEC/Participant_ Ethics_Values.pdf. The value of childhood is embodied in the following Biblical account: ( continued ) 2015] IF PAST IS PROLOGUE 409 commercial practices that had no regard for the sanctity of familial unity. 10 Through these suits, they were able, in some instances, to return the children to their families. 11 The “freedom suit” statute 12 that provided the statutory basis for these causes of action and the specific procedural requirements contained therein may provide inspiration for recommendations with implications for the present day. Although this research is primarily historical in nature, lessons learned during its course may help to shed light on the discussion of ways in which to address the persistent disproportionate rates of children of color in the social welfare foster care system. 13 This disproportionality has been described as follows: Children of color are disproportionately represented in the United States foster care system. In most states, there are higher proportions of African American/Black . . . children in foster care than in the general child population. . . . In 2000, African American/Black children represented 38% of the foster care population while they comprised only 16% of the general child population, indicating a And they brought young children to him, that he should touch them: and his disciples rebuked those that brought them. But when Jesus saw it, he was much displeased, and said unto them, Suffer the little children to come unto me, and forbid them not: for of such is the kingdom of God. Verily I say unto you, Whosoever shall not receive the kingdom of God as a little child, he shall not enter therein. And he took them up in his arms, put his hands upon them, and blessed them. Mark 10:13-16 (King James). 10 HEYWOOD, supra note 9, at 88. 11 See, e.g. , Rachel v. Walker, 4 Mo. 350 (1834), available at http://stlcourtrecords.wustl.edu/display-case-images.php?caseid=6875&page=1 (where a woman successfully sued in the Missouri Supreme Court for her own freedom as well as the freedom of her son). 12 Act of June 27, 1807, ch. 35, 1807 Mo. Laws 96, (repealed 1825). See infra Appendix A for text of both the territorial law and its subsequently enacted state law version, available at http://www.stlcourtrecords.wustl.edu. 13 Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate , 97 MARQ. L. REV. 216, 217 (2013) (providing that the system removes children of color from their families at a higher rate than children of other races). 410 CAPITAL UNIVERSITY LAW REVIEW [43:407 disproportionality index 14 of 2.5 (i.e., African American children were disproportionately represented in foster care at a rate 2.5 times their rates in the general population). . . . In 2012, 12 years later, these numbers have changed. While disproportionality rates increased between 2000 and 2004, African American/Black disproportionality has now decreased to 2.0 from 2.5 nationally. 15 The disproportionate representation of children of color in child welfare and foster care today did not happen overnight. 16 Through the lens of legal history, the case law of freed mothers suing to regain legal and custodial rights to their children in antebellum Missouri becomes a philosophical point of departure for consideration by the contemporary attorney and policy maker. 17 The case–by–case details of the valiant struggles of these women reveal the challenges faced by those Missouri families and demonstrate how those challenges could shape the development of remedies for today's families of color. 18 This paper pays tribute to each and every professional who serves as “boots on the ground” in the struggle to work toward the betterment of the lives of the most vulnerable among us, our children. These efforts, it is 14 The Technical Assistance Bulletin published by the National Council of Juvenile and Family Court Judges offers the following definition of the term “disproportionality index”: Disproportionality is the level at which groups of children are present in the child welfare system at higher or lower percentages or rates than in the general population. An index of 1.0 reflects no disproportionality. An index of greater than 1.0 reflects overrepresentation. An index of less than 1.0 reflects underrepresentation. ALICIA SUMMERS & STEVE WOOD, NAT’L COUNCIL OF JUVENILE & FAMILY COURT JUDGES (NCJFCJ), DISPROPORTIONALITY RATES FOR CHILDREN OF COLOR IN FOSTER CARE (FISCAL YEAR 2012), TECHNICAL ASSISTANCE BULLETIN 1 n.1 (May 2014), available at http://www.ncjfcj.org/sites/default/files/Disproportionality%20Rates%20for%20Children% 20of%20Color%20in%20Foster%20Care%20for%20Fiscal%20Year%202012.pdf. 15 Id. According to the text of this bulletin, it “represents FY2012 Adoption and Foster Care Analysis and Reporting...