Nobody's Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative.

• Author: Saulino, Jennifer L.
• Position: Review

NOBODY'S CHILDREN: ABUSE AND NEGLECT, FOSTER DRIFT, AND THE ADOPTION ALTERNATIVE. By Elizabeth Bartholet. Boston: Beacon Press. 1999. Pp. 304. Cloth, $28.50; paper, $17.50.

Sabrina Green was found dead on November 8, 1997, at the age of nine years old. She was dead from untreated burns, gangrene and blows to her head which had fractured her skull. Her body was covered with sores, and the gangrene had spread through her right arm and hand, which was missing a thumb. In her final weeks of life she had been tied at night by the arms and legs to her bed to prevent her from stealing food, according to the half-sister who had been made her guardian.... [p. 92]

As horrific as Sabrina's death sounds, her life was even worse. Sabrina was born to a cocaine-abusing mother who abandoned her at birth. When her mother was found two months later, Sabrina was sent home to her. Her mother continued abusing cocaine and died three years later (p. 93). For the next five years Sabrina lived with a family friend. When the friend died, Sabrina's half-sister petitioned the court to become her guardian (p. 93). But Sabrina's sister had ten children of her own and had already been investigated for failing to care adequately for them. The family court judge nevertheless approved the guardianship, because he only had limited information presented to him by the state agency. "Family members, neighbors, acquaintances, and school officials all realized later that Sabrina was in trouble. But no one intervened to prevent Sabrina's torture and death" (p. 93).

Elizabeth Bartholet, (1) in her book Nobody's Children, takes a strong step toward beginning a new kind of dialogue about abused and neglected children. She positions herself as a liberal who has come to terms with the fact that traditional liberal ideals are in conflict with the needs of abused and neglected children (p. 5). In doing so, she tries to convince her readers that, regardless of ideology, we all should have a different focus in the area of child abuse and neglect law. (2) She uses Sabrina as one of several examples of how programs for abused and neglected children that focus on keeping families and communities together, while well-intentioned, sometimes sacrifice the child. Bartholet's book, in that sense, is groundbreaking. (3)

Bartholet's argument begins with the history and politics of child protection programs and presumptions in favor of parents. It moves to outlining the modern day problems and the impact of substance abuse on children. She continues by demonstrating the pervasiveness of the philosophies that drove the old programs. Her analysis and examples show that the shortcomings of old programs are also present in programs purportedly designed to reinvigorate the system. She criticizes what she calls the family preservation bias and uses examples and statistics to show that the bias is unwarranted and probably detrimental. Through this format, Bartholet challenges traditional ideologies by demonstrating that they have not worked. She then takes the bold step of introducing theories most are afraid to verbalize -- like the idea that interracial adoption should be widely utilized and that the legal system should aggressively separate children from drug-abusing biological parents. But she could have gone further.

All of Bartholet's arguments and evidence support the thesis that children have a constitutional right to be raised in a nurturing and loving environment -- an environment that is in their best interests. This right would be a fully formed right equal to that of the parent to control the child's upbringing and guide her education. Thus, the law in this area should be focused on the conflict of rights and not, as it currently is, on the propriety of state interference on the parental right. Bartholet does not make that argument. She hints at it, and supports it, but does not defend it. She articulates her ultimate conclusion in the book as a need for a change in attitude and presents solutions such as more aggressive adoption and more state responsibility. Bartholet's book may seem radical, but her arguments do not take the debate in a new direction. They ultimately fall into the same child abuse mold that is focused on arguing about the successes or failures of programs and policies. (4)

This Notice advocates the redefinition of child law for which Bartholet lays the groundwork but ultimately never advocates herself. Part I presents the highlights of Bartholet's argument. Part II suggests that a thesis based on an articulation of child rights could provide the anchor that Bartholet's current proposals lack and points out weaknesses to both approaches. Part III demonstrates how a children's rights approach could provide a better platform for discussion of many problems facing this country's children. This Notice concludes that a constitutional rights approach to child law would provide sturdier support to Bartholet's policy proposals, and perhaps revitalize the entire field.

1. BARTHOLET'S ARGUMENT

   Beginning early in the book with her historical overview and continuing throughout, Bartholet criticizes the "family preservation" mindset that has permeated child protection law for the last few decades. She argues that the "entire child-protection system was shaped by the family preservation priority" (p. 39). Enforcement of child-protection laws was left, in the first instance, to child protection workers charged with keeping families together. The basis in legal history for the assumption that children are property of their parents is long held. (5) The family preservation movement came about because several writers in the 1970s and 1980s challenged the foster care system of that time by arguing that, while harm might come from emotional abuse or severe neglect, "more harm would come to children in the end from incursions on family autonomy" (p. 39). In attacking the family preservation mindset, she emphasizes the need for reconceptualization of theory and attitude.6 She argues that we should focus on the state obligation to protect children from abusive parents, not individual social agendas having nothing to do with children. We can do that by recognizing that "parents who treat their children badly are themselves victims, and if we want to stop the vicious cycle, we need to create a society in which there is no miserable underclass, living in conditions which breed crime, violence, substance abuse, and child maltreatment" (p. 6).

   Bartholet moves on to criticize "politics" for the staying power of the family preservation ideology. She criticizes the left because they use the removal of children from their homes as a proxy for racial or class injustice (p. 45). She criticizes the right because they do not want the government interfering in their own parenting rights (p. 45). She then makes a connection that few would notice: the politics of the left and the right combine with the recent movement to reduce welfare spending. The combination sends a stream of money to the poverty-stricken through the children. Thus, family preservation policies also provide a means of funding where welfare fails. Families that take more children get more money. Yvette Green, Sabrina's half-sister, took in Sabrina saying, "that she wanted to keep her family together and that she would need the additional welfare and medical benefits that would come with legal custody." (7)

   Abused and neglected children are disproportionately children of poorer parents. (8) Family preservation policies keep the search for foster parents first within the extended family (satisfying the right) and then in the immediate neighboring community (satisfying the left) (p. 47). Foster parents are paid a stipend. Bartholet demonstrates that as welfare funding has fallen in the last few years, arguments for child welfare programs have gained support. Her worry is that these funds are really just going through the back door to replace the money the government took out the front, and they are not providing more support for children. Bartholet thus realizes that an increased focus on child welfare may not mean increased resources for the actual children. (9) Yet, her conclusion to the chapter weakly suggests that liberals need to worry about children as much as the exploited groups they worry child protection policies harm, and that conservatives should see the cost-effectiveness of early intervention (p. 55). Here she demonstrates a recurring penchant for suggesting through her evidence that she is heading toward a more fundamental change in thinking but failing to follow through.

   Bartholet demonstrates that recent attempts at creating new programs still promote traditional ideals (Chapter Six). She uses as an example the Family Group Decision Making ("FGDM") model (p. 142). This new program directs child care workers to facilitate a family meeting of the extended family of the maltreated child and devise a plan for resolution. She notes that, as with old programs, a big part of the problem is measuring success: "Claims for the success of FGDM have been based almost entirely on demonstrations that state authorities have deferred to the plans developed by adult family members, and that those plans have reduced the number of foster and institutional placements ..." (p. 144). Like the old programs, the new program measures success by how many children get returned to their families, not by how those children are doing. In fact, as Bartholet points out, in a program such as FGDM, children are likely to go "unrepresented in the ... process" (p. 145).

   One of the great strengths of Bartholet's argument is its identification of problems others have not noticed. Many argue that there are not enough adoptive parents to go around. She combats that argument with the recognition that the states are at fault for not looking harder for adoptive parents (p. 181-83). States create so many hurdles against...