Judging the Other: The Intersection of Race, Gender, and Class in Family Court

Published date01 January 2019
Date01 January 2019
DOIhttp://doi.org/10.1111/fcre.12397
JUDGING THE OTHER: THE INTERSECTION OF RACE,
GENDER, AND CLASS IN FAMILY COURT
Vicki Lens
This critical ethnographic study of family court child maltreatment proceedings describes and illuminates the ways in
which racial, gender, and class disadvantages can manifest on the ground as judges, attorneys, social service workers,
and parentsjoined often by gender but split by race and classadjudicate cases. The ndings suggest that intersec-
tionality worked in ways that exponentially marginalized poor mothers of color in the courtroom. They were marginal-
ized both through the rules of the adversarial process (which silenced their voices) and through the construction of
narratives (which emphasized individual weakness) over structural obstacles as well as personal irresponsibility over
expressions of maternal care and concern. Standard due process courtroom practices also communicated bias or social
exclusion, especially in a courtroom split by race and class.
Key Points for the Family Court Community:
To minimize the effects of bias when adjudicating child maltreatment cases, family court judges should consider the
application of therapeutic jurisprudence (TJ) and procedural fairness principles.
TJ includes such practices as creating a respectful, empathetic, nonpaternalistic, and supportive environment where
participants are actively engaged in the decision-making process and where cooperation rather than coercion is
emphasized.
Procedural fairness adds the perspective of lay court users and encompasses four elements: voice, neutrality,respectful
treatment, and trustworthiness.
A list of specic behaviors that exemplify TJ and procedural fairness are provided.
Keywords: Child Maltreatment Proceedings; Disproportionate Minority Representation; Family Court; Intersectionality;
Procedural Fairness; Racial Bias; and TherapeuticJurisprudence (TJ).
Virtually since its inception, juvenile court has been widely criticized on several measures,
including court inefciencies and delays, judges insufciently attuned to the social and psychologi-
cal complexity of family strife, and failing to ensure essential services and treatment (Babb, 2014;
Kahn, 1953; Spinak, 2008). As one commentator succinctly noted, As a problem-solving court,
Family Court has been remarkably unsuccessful(Spinak, 2008, p. 260). Decades of criticism have
also begotten decades of reforms, both procedural and substantive. Some examples include unied
courts where a single court system handles all types of family law cases and infusing a more thera-
peutic, problem-solving approach into proceedings (Babb, 2014).
An understudied but overarching aspect of such reforms is the salience of race, gender, and
class, especially in the adjudication of child maltreatment cases. African American children are
overrepresented in the child welfare system, and poor people are more likely than the afuent
to be accused of child maltreatment (Boyd, 2014; Courtney, Dworsky, Piliavin, & Zinn, 2005).
Gender is also a constant presence. Women often comprise all the major players in maltreat-
ment proceedings, from the parents, usually mothers, to the caseworkers who investigate them,
the attorneys who represent both groups, the judges who preside over the cases (Miller &
Maier, 2008; Reich, 2005). The mostly female judges and lawyers are also more likely to be
White, while mothers and caseworkers are often people of color (Sinden, 1999). The courtroom
is also divided by class, with the legal professionals on top, followed by caseworkers, and then
parents, who are predominantly poor.
Corresponding: vicki.lens@hunter.cuny.edu
FAMILY COURT REVIEW, Vol. 57 No. 1, January 2019 7287
© 2019 Association of Family and Conciliation Courts
This ethnographic study of juvenile court child maltreatment proceedings describes and illumi-
nates the ways in which racial, gender, and class disadvantages can manifest on the g round. These
Manifestations occur as judges, attorneys, social service workers, and parentsjoined often by gen-
der but split by race and classadjudicate cases.
I. RACIAL DISPROPORTIONALITY AND DISPARITIES
Racial disproportionalities and disparities in the child welfare system are a well-documented phe-
nomenon (Boyd, 2014). While disproportionality rates vary geographically, certain racial and ethnic
groups, including African Americans, are overrepresented compared to their percentage of the pop-
ulation (Childrens Bureau, 2016). As an example, while African American children constitute
about 14% of the population, they constitute 24% of the children in foster care (National Council
of Juvenile and Family Court Judges [NCJFCJ], 2015). They also have unequal outcomes compared
to other groups. African American children are more likely to endure multiple placements and lon-
ger stays in foster care and are less likely to be reunied with their parents (Harris & Courtney,
2003). Disparities and disproportionalities are evident at all levels, exponentially increasing from
the initial complaint, to placements and services, to nal disposition (Boyd, 2104; Childrens
Bureau, 2016; Harris & Hackett, 2008).
Decades of research and observation have suggested a myriad of reasons for these disparities.
Nearly every level of society has been implicated, from structural forces such as poverty and geo-
graphic disadvantages, to family and individual-level characteristics, including substance abuse and
mental illness, to institutional factors, including dysfunction al agencies with too few internal and
external resources to meet service needs (Boyd, 2014; Childrens Bureau, 2016; Fluke, Harden, Jen-
kins, & Ruehrdanz, 2010; NCJFCJ, 2011).
One current owing through these explanations is the impact of racial bias and discrimination.
Poverty is a risk factor for child maltreatment, and African American families are more likely to be
poor, not least of all due to structural and institutional racism (Fluke et al., 2010). While individual
and family factors, such as substance abuse and mental illness, among others, can affect people of
all incomes and ethnicities, being poor and Black whilst living in structurally disadvantaged com-
munities, can exacerbate hardship and limit access to needed supports and services (Dettlaff &
Rycraft, 2008).
Racial bias and discrimination can also inltrate the child welfare system (Boyd, 2014;
Cross, 2008; Harris & Hackett, 2008). Child maltreatment cases involve subjective judgments
about human behavior; there is thus ample opportunity for implicit bias, and the stereotypes it
triggers, to seep in and substitute for more nuanced judgments, especially when mental short-
cuts are used to process a large number of complex cases (Fraidin, 2013). The high stakes may
make workers reluctant to challenge, or even acknowledge, negative stereotypes, as they strive
to protect children (Cross, 2008). Adverse perceptions of a familys community may also cause
workers to perceive parents as willfully refusing, rather than unable, to comply with agency
directives (Miller et al., 2012). Overcoming such stereotypes requires sustained attempts to
prove ones worth beyond what is expected from other groups, and hence more difcult to
achieve (Miller, Cahn, & Orellana, 2012).
Efforts to reduce disproportionality and disparity within the child welfare system have consisted
of a myriad of strategies. A common rst step is data gathering, including analysis of administrative
data, often through task forces comprising agency and community stakeholders dedica ted to addres-
sing issues of racial disparity and disproportionality (Busch, Wall, Koch, & Anderson, 2008;
Duarte & Summers, 2012; Miller & Esenstad, 2015). Next steps frequently involve community-
based interventions, such as building partnerships with community agencies or institutions who
serve the same population, and engaging in outreach to communities of color through community-
based agencies to build trust and create stronger networks of support for families in need (Miller &
Esenstad, 2015).
Lens/JUDGING THE OTHER 73

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