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The Real War on Families: U.S. Child Welfare Law in the Shadow of Drug Prohibition

Updated: Jul 24, 2023

This post is the first in a three-part series on laws related to drugs, women, and families, written in observation of Women’s History Month. The series is based on original research conducted by three talented women who graced my historical seminar in law at Ohio State University during autumn 2021.


Today’s post summarizes the excellent work of Karen Augenstein. As she writes, the inherent value of family is deeply rooted in U.S. law; yet in legislating drug control over the past 50 years, “the importance of family was forgotten in favor of punishing those with substance abuse issues in the worst way possible: taking away their children.” The paper covers three major acts of Congress (in 1974, 1980, and 1997) that form the basis of child welfare law. These laws prescribed punishments for parental drug use that led to unprecedented rates of family separation and an “explosion of the foster care system,” while parental incarceration resulted in “harsh, impossible requirements for reunification.”  

While today’s federal and state laws generally aim to protect children from abuse and neglect, the earliest laws and institutions aimed to remove children from poverty and place them with well-to-do, childless parents or with large households dependent on family labor. Many so-called orphans of the 1800s were not exactly that; rather, their parents had been deemed unfit to keep them in a sort of redistribution process. From the Progressive Era through the early 1970s, a patchwork of state laws and charitable organizations did begin to address parental violence and neglect. Fascination and outrage mushroomed around the 1972 case of a 7-year-old Chicagoan, Johnny Lindquist, who was beaten to death shortly after returning to his birth parents’ household from foster care. The publicity surrounding this crime resulted in Congress passing the Child Abuse Protection and Treatment Act (CAPTA) in 1974.


Concerns about child abuse seemed to overlap with concerns about drug abuse in the new federal law. CAPTA required states to investigate claims of child abuse and provided funding for programs including “prevention and treatment of drug-related child abuse and neglect.” The act commanded federal agencies to establish the Advisory Board on Child Abuse and Neglect, assigned the task of producing “a study of the relationship between drug addiction and child abuse and neglect.” In its first report on CAPTA’s progress, the Department of Health, Education and Welfare (HEW) noted in 1975, “The goal of most of the research now being conducted under federal auspices is to understand the causes and effects of drug abuse and alcoholism on child abuse and neglect.”


However, the anticipated cause-and-effect connection—use of drugs or alcohol leading to violence against children—was decidedly not confirmed by researchers over the following decade. Rather, these studies indicated that drug and alcohol use existed in abusive parents at ordinary (non-child-abuser) rates, among many other factors. Abuse by the previous generation of parents did emerge as a causal factor; it was also shown that violence against women frequently caused them to initiate drug or alcohol use. And among parents with problem substance use, neglect was a far more likely outcome than abuse.

CAPTA also encouraged states to adopt child welfare laws of their own and to establish child protective services. Along with court rulings, it set legal standards for deciding when parental rights could be terminated by the state. Given these new tools, more children entered the foster care system, and in 1980, Congress responded with the Adoption Assistance and Child Welfare Act (AACWA). This legislation made funds available to states for helping low-income parents to adopt children and for helping foster parents care for foster children with special needs. Language in the AACWA indicated a renewed commitment to keeping children with their birth parents and preventing removal from their homes as long as they could reasonably stay.

Meanwhile, a number of women were separated from their infants as a result of criminal prosecutions for drug use during pregnancy. A media-hyped, now-discredited “crack baby” panic convinced viewers and readers that prenatal smoking of rock cocaine would produce a whole generation of brain-damaged, erratic kids who would grow into stunted adults forever dependent on taxpayer support. At the same time, drug testing technologies were becoming cheaper, enabling doctors to test mothers on their own initiative, and of course, according to racial and socioeconomic profiles. Police officers patrolled poor neighborhoods of “known” crack use and arrested pregnant women to be tested; from 1985 to 1995, at least 230 women in 30 states were charged with crimes related to maternal drug use.


The number of children in foster care continued to grow—from around 276,000 in 1985 to around 568,000 in 1999—in part because of separating infants from their drug-involved mothers and in part because of the devastation of family units caused by cruelly long drug sentences. In 1997, the Adoption & Safe Families Act (ASFA) made it easier to terminate parental rights, creating a faster track to adoption that was intended to mitigate the overburdened foster care system. A new emphasis on the “best interest” of the individual child overtook the earlier imperative of keeping families intact. Under ASFA, new forms of parental neglect such as “inadequate supervision” and “risk of harm” could lead to an investigation; and an investigation could lead to a failed drug test, which frequently served as the basis for removing a child. Some 39 percent of cases of child removal in 2018 were due to parental drug use. The mere presence of drugs in a home can result in separation, even absent any evidence of abuse or neglect.


It appears that drug laws and child welfare laws have worked together to make families more vulnerable than ever to unwarranted separation. Disproportionate rates of children of color in foster care are a mirror of the disproportions we now know plague our criminal justice system. For mothers, the result is tragic. Among incarcerated women, most are serving time for nonviolent offenses including drug crimes, and a third of incarcerated women are the primary caregiver to at least one child. Upon release, they face grim odds of jumping through the necessary hoops to regain custody of their children. “Treatment of parents who struggle with substance abuse issues is unnecessarily punitive, and the odds are stacked against families being reunited with one another,” Augenstine concludes.


As her paper suggests, this problem has deep historical roots. Poverty itself can still bring the scrutiny of child welfare investigators. Loss of one’s children remains a primary consequence of abuse and neglect. But neglect is now a far more capacious concept than it was even in the 1970s, and the habit or disorder called “drug abuse” now practically counts as the far more vile behavior of “child abuse.” The punishment of separation can only be just when it is reserved for parents who actually harm or injure their children. 




 

Sarah Brady Siff is visiting assistant professor at the Moritz College of Law at The Ohio State University, in affiliation with the Drug Enforcement and Policy Center (DEPC). She is a historian of modern U.S. law and politics specializing in the history of drug control. The DEPC is supporting her work on two book manuscripts. “Tough on Dope: Crime and Politics in California’s Drug Wars” is a survey of local and state drug prohibition efforts from 1850 to the mid-1960s, including issues of federalism and constitutional law. “Weed Killers: Cannabis Eradication in the United States” covers the unsuccessful, century-long campaign of American marijuana prohibition with an emphasis on agricultural and environmental policy as well as law enforcement. Siff’s 2019 article “Burn, Sell, or Drive: Forfeiture in the History of Drug Law Enforcement” in the Ohio State Law Journal proposes that customary drug-related seizure and forfeiture practices in the United States are rooted in founding-era tax law.

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