It’s Past Time We Replaced Family Separation with Family Support

Family separation is a feature, not a bug of our child welfare, or family regulation,¹ system. As I explained in “A Feature, Not a Bug: The Foster System’s History of Othering,” our family regulation and foster systems have a long history of choosing family separation for Black, Native, Latinx, and low-income families over supporting them—and, in the process, pathologizing them for societal failures, finding them “unfit” to raise their own children. This commentary brings the story begun in that commentary into the present, by illustrating how policy decisions made outside of the narrow sphere of the family regulation system perpetuates family separation. Instead of policies and laws providing support to families to keep them together amidst economic insecurity, substance use, or through the immigration process, our social systems separate families, causing harm while never addressing the family’s actual needs. In this commentary, I’ll explore how the War on Drugs, mass incarceration, welfare reform, and immigration policies result in and favor separation over support and care.

Instead of policies and laws providing support to families to keep them together amidst economic insecurity, substance use, or through the immigration process, our social systems separate families, causing harm while never addressing the family’s actual needs.

The War on Drugs (and on Families)

On June 17, 1971, President Nixon declared an “all-out offensive” on drug use. That day, Nixon pledged $350 million—over $2.5 billion² in today’s dollars—in drug enforcement and treatment efforts. And thus the War on Drugs began, and from the 1970s to the 1990s, the war intensified. These years saw the creation of federal agencies like the Drug Enforcement Administration (DEA), increased drug legislation, and mandatory prison sentencing under the Anti-Drug Abuse Act of 1986.

While one could view this investment and “war” as simply an aggressive push to ameliorate a serious societal challenge, a closer look quickly disabuses one of that notion. In 2016, Dan Baum wrote about a 1994 interview with Richard Nixon’s domestic policy advisor John Ehrlichman, who stated, “The Nixon campaign, in 1968, and the Nixon White House after that, had two enemies: the antiwar left and [B]lack people. … We knew we couldn’t make it illegal to be either against the war or [B]lack, but by getting the public to associate the hippies with marijuana and [B]lacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them nightly on the evening news. Did we know we were lying about the drugs? Of course we did.” While John Ehrlichman’s comment specified heroin, soon crack cocaine would come to be the targeted drug. The link between crack cocaine and the Black community was also relatively clear, the crack form of the drug was cheaper and more prevalent in large cities and urban areas with higher populations of Black and low-income residents. Its hypercriminalization led to higher rates of incarceration for longer periods of time, further exacerbating the racial disparities in incarceration that destroyed, and continue to destroy, Black communities. The irony in the disparate treatment is that both powder cocaine and crack cocaine are the same drug.

Not only did the War on Drugs contribute to a ballooning of the incarcerated population: the home raids that John Ehrlichman mentioned went beyond physical raids of premises, becoming raids on the family unit itself. These raids came in the form of child removals from parents who used substances, a family regulation system practice that, once again, prioritized family separation over actual help. A 1991 Foster Care Summary from the U.S. Department of Health and Human Services found a 33 percent increase in the number of children who entered the foster system across the United States between 1983 and 1989. The report goes on to note, “the biggest impact that crack has had on the child welfare system is the large increases in very young infants entering the foster care system at birth as a result of prenatal drug usage, drug toxicity at birth, and abandonment at the time of birth in the hospital (boarder babies)³.” When President Nixon announced the War on Drugs in 1971, a report from the House Ways and Means Committee revealed that 330,400 children were in the foster system across the country; in 1981, the number had dropped substantially to 274,000; and by 1994, it had grown to 468,000—an increase of nearly 60 percent over thirteen years, and a number that far exceeded the number of children in the foster system in 1971.

When President Nixon announced the War on Drugs in 1971, a report from the House Ways and Means Committee revealed that 330,400 children were in the foster system across the country…by 1994, it had grown to 468,000—an increase of nearly 60 percent over thirteen years, and a number that far exceeded the number of children in the foster system in 1971.

There is no doubt that the War on Drugs separated many families, and, in time, we learned that the fear and hysteria about “crack babies” was built on a stereotype and falsehood. At a U.S. Sentencing Commission hearing in 2002, Dr. Deborah Frank, a professor at Boston University School of Medicine, testified that, “… the crack baby is a grotesque media stereotype, not a scientific diagnosis.” Dr. Frank explained that in contrast to prenatal alcohol exposure, any effects of prenatal exposure to crack cocaine were not different or worse than exposure to legal substances and, if these children were born with effects of crack cocaine exposure, they caught up to their peers over time, whereas children exposed to alcohol prenatally did not. In 2018, the New York Times editorial board acknowledged its role in the media “crack baby” frenzy, which not only cast a shadow on these children, but cast their mothers in the most negative of lights: not worthy of dignity or care, or at all entitled to their own children. The Times noted that they, along with many other media outlets, “demonized [B]lack women ‘addicts’ by wrongly reporting that they were giving birth to a generation of neurologically damaged children who were less than fully human and who would bankrupt the schools and social service agencies once they came of age.”

At a U.S. Sentencing Commission hearing in 2002, Dr. Deborah Frank, a professor at Boston University School of Medicine, testified that, “… the crack baby is a grotesque media stereotype, not a scientific diagnosis.”

The War on Drugs of the 1970s, 1980s, and 1990s had deleterious effects on families based on a notion, or assumption, that substance use necessarily resulted in child maltreatment. However, a positive drug test alone does not tell you much of anything about whether a child was maltreated, or would have been maltreated if left within the care of their parent. What it does do is allow systems and policymakers to govern via subjective judgments about a parent, one who could not possibly be trusted to make “good” decisions. As opposed to looking at parents who use substances as people first, they are blamed, stereotyped, and pathologized, and their children removed from their care without any effort, by and large, to provide them with the support they may have needed, or to investigate whether such a response was even necessary to protect the child.

The Opioid Crisis and Child Welfare

Much has been said and written about our nation’s differing approaches to drug policy as the drug, and people, at the forefront of a new drug crisis has shifted. Overall, there appears to be a public health and people-first approach to our current opioid crisis, with an acknowledgment that people are at the center of the crisis and that people need support through treatment or aids to stop overdoses in its tracks. Since the drug treatment and public health approach appears to be more humane, that might lead to a conclusion that there may not be an uptick in child welfare involvement and foster system placement, that old practices have been replaced with treatment and support for families. Unfortunately, that has not been the case.

According to the Centers for Disease Control and Prevention (CDC), there have been three waves of opioid overdose deaths, beginning in 1999 with prescription opioid overdose deaths, continuing in 2010 with heroin opioid overdose deaths, and, our current era, which began in 2013 with synthetic opioid overdose deaths (i.e., fentanyl). Data reveals that white people accounted for 69 to 85 percent of opioid drug overdose deaths from 1999 to 2020. During that same time period, Black people accounted for 6 to 17 percent of opioid drug overdose deaths, with deaths more than doubling from 8 percent to 17 percent from 2013 through 2020.

In March 2018, the U.S. Department of Health and Human Services issued a report indicating that the number of children placed in the foster system began to rise in 2012 as we began to see drug overdose deaths climb. Between 2012 and 2016, the number of children in the foster system rose by 10 percent, from 397,600 to 437,500; that number has declined in recent years, and as of 2021, the total population has fallen slightly below 2012 levels. A 2019 article from the Journal of the American Medical Association noted that the proportion of children who entered the foster system between 2000 to 2005 and 2012 to 2017 due to parental drug use were increasingly white, from the Midwest, and in nonmetropolitan areas.

Parents who use opioids also face permanent, legal separation from their children. A recent report from Movement for Family Power noted that a Kentucky law allows for termination of parental rights if a child is diagnosed with neonatal abstinence syndrome (withdrawal) at the time of birth, unless the parent was prescribed the medication or is enrolled in and complying with a substance abuse program, or, before discharge from the hospital, agrees to court-ordered assessment by a drug treatment provider and referral to treatment, all within ninety days after birth. This harsh law was passed even though, according to the National Association of State Alcohol and Drug Abuse Directors, the first line of treatment for babies with neonatal abstinence syndrome is “rooming-in, breastfeeding, gentle handling, and swaddling.” The penalty for the parent’s actions is extreme, does not consider whether the child is actually at risk of harm, and ignores the relatively simple treatment for withdrawal that could be cultivated in the hospital with the baby and parent remaining together and maintaining their legal relationship.

When we view the opioid crisis and the War on Drugs side-by-side, we see, on the one hand, how approaches differ in terms of the ways that those who use substances are treated, but there are also striking similarities in outcomes for their families. It seems to indicate a harsh reality that in addition to the racism inherent in the War on Drugs and resulting separation of Black families, there was something else happening that carried through to the present-day opioid crisis. There was, and continues to be, a perception of inability or “unfitness” for parenting based, in some cases, solely on a positive drug test. Society has deemed parents who test positive for substances as unable, or maybe even unworthy, to parent. These parents will always be at risk of family separation in a system that favors separation over support.

Society has deemed parents who test positive for substances as unable, or maybe even unworthy, to parent. These parents will always be at risk of family separation in a system that favors separation over support.

Mass Incarceration

It is impossible to discuss family separation and the War on Drugs without discussing mass incarceration; in fact, they go hand in hand. Mass incarceration is more than just the act of incarcerating an extraordinary number of individuals: it also includes the system of laws, practices, and policies that led the United States to be the world leader in incarceration, with 2 million people in our nation’s federal, state, local, and tribal prison systems. The population of incarcerated individuals has increased 500 percent since 1970. The burden of incarceration falls disproportionately on Black and brown communities, with Black people being incarcerated at a rate up to 5 times the rate of white people. Notably, according to the Prison Policy Initiative, the number of incarcerated women is rising, with Black and Native women being overrepresented in prisons and jails.

The incarceration of women is of particular interest when it comes to family separation and the child welfare system, given that about 63 percent of the 24 million children who live in single-parent households live in mother-only households. According to a 2000 Bureau of Justice report, as the 1990s came to an end, Black children were almost nine times more likely than white children to have an incarcerated parent, with the total number of children with an incarcerated parent increasing overall by 500,000 between 1991 and 1999. The same report also noted that, at both federal and state levels, when compared to incarcerated fathers, children who had lived with their mothers prior to her incarceration were placed in the foster system at a higher percentage than if they had lived with their fathers.

The effects of mass incarceration are far-reaching, affecting families and putting children at risk of placement into the foster system. Once incarcerated, parents are separated from their families and, if their children enter the foster system, they face challenging odds of ever reuniting with them.

The effects of mass incarceration are far-reaching, affecting families and putting children at risk of placement into the foster system. Once incarcerated, parents are separated from their families and, if their children enter the foster system, they face challenging odds of ever reuniting with them. When the Adoption and Safe Families Act (ASFA) was passed in 1997, it sought to address the issue of children languishing in the foster system by prioritizing finding permanent homes for them, at times to the exclusion of reunification. ASFA requires agencies to terminate parental rights when a child has been in the foster system for fifteen of the most recent twenty-two months, although many states have various exceptions⁴ to this timeline. This policy presented, and still presents, a hardship to incarcerated parents who, around that time when the law was passed, were spending an average of eighty to 103 months in state and federal prison, respectively.⁵

ASFA was passed in the midst of the War on Drugs, meaning that after separating families based on unjust sentencing laws, the state could further solidify that separation by permanently severing the legal relationship between parent and child in the name of “permanency” and “stability” for the child. Children thrown into a foster system that has significant problems don’t always find stability. Instead, many children become “legal orphans” when their parents’ rights are terminated but they haven’t been adopted. Additionally, in my own professional experience, there are a number of failed, traumatic, and harmful adoptions that take place. Criminal justice and child welfare laws conspire together to do the things that the country has always done: determine a certain group of parents are “better off” incarcerated and separated from their children.

Criminal justice and child welfare laws conspire together to do the things that the country has always done: determine a certain group of parents are “better off” incarcerated and separated from their children.

Welfare Reform

On February 17, 1993—twenty-two years after President Nixon declared his War on Drugs—President Clinton declared that his administration would “end welfare as a way of life and make it a path to independence and dignity.” He spoke of rescuing people trapped within the welfare system by providing education, training, child care, and health care, all while requiring them to get back to work within two years. By 1996, President Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act, which included a block grant to states for provision of Temporary Assistance to Needy Families (TANF), the new benefit program for low-income families that replaced Aid to Families with Dependent Children (AFDC). TANF is relevant to the question of support over separation in the child welfare context, because a long-known issue within the child welfare system is the conflation of poverty and neglect, whereby a family is involved in the system because of needs that have to do with economic insecurity rather than abuse or maltreatment. In fact, TANF benefits exist as a sort of proof point that economic support for families can decrease both child welfare and foster system involvement.

Two studies that cover a combined span of twenty-seven years seem to indicate a correlation between TANF benefits, child welfare, and foster system involvement. A 2006 study found that the second largest predictor of increased foster system caseloads between 1985 and 2000 was decreasing AFDC/TANF benefits—representing 15 percent of the growth in foster system caseloads during that time.⁶ A 2022 study found two interesting connections between TANF and foster placements between 2004 and 2016, 1) when states implemented TANF restrictions, there were statistically significant increases in substantiated neglect cases and foster system placements; and 2) when states eased TANF restrictions, there was a reduction in substantiated neglect cases, overall foster system placements, and foster system placements for neglect. This same study estimated that over 29,000 fewer children entered the foster system when TANF restrictions were eased—finding that the small amount of income from TANF benefits could be used as a tool to prevent cases of child maltreatment and foster system placement.

These studies highlight what parent and family advocates have been saying for many years: families need financial security and support to be safe—not separation. The more we depart from addressing core societal issues like a basic liveable income and stable and safe housing, the more we lean into policies that penalize families without those things in the worst ways possible: by breaking them apart.

The more we depart from addressing core societal issues like a basic liveable income and stable and safe housing, the more we lean into policies that penalize families without those things in the worst ways possible: by breaking them apart.

Although the advantages of the small amount of TANF benefits are clear, there are still significant problems in some states where TANF funds are not appropriately distributed to support families in need. A 2020 Stateline report highlighted how many states use TANF funds to pay for other programs, including child welfare services. The secretary of Louisiana’s Department of Children and Family Services said “she would like to see her state distribute TANF money differently and stop using it to pay for programs such as child abuse investigations and homeless initiative[s].” The report found that in 2018 in Arizona, about two-thirds of TANF spending went to its child welfare, foster system, and other programs, but that only 12.5 percent went to cash assistance and 2 percent to work-related programs and activities. This misallocation of funds is alarming in light of the potential benefits of ensuring this funding goes directly to families.

Immigration

The first time many may have considered the interplay between immigration and child welfare was when President Trump began his zero tolerance policy of separating children at the border. However, before the zero tolerance policy, immigration policy and child welfare policy often collided due to immigration enforcement.

As of 2018, approximately 5.2 million children in the United States resided with at least one Undocumented immigrant parent, and of that number, nearly 730,000 children were themselves Undocumented. Children who reside with Undocumented parents are at risk for family separation following immigration enforcement actions like detention and deportation, which can lead to placement in the foster system. In “Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System,” the Applied Research Center (now Race Forward) noted three paths to family separation and a child’s foster system placement in the case of Undocumented immigrant families: 1) a parent’s arrest or detention; 2) an allegation of child maltreatment that involves the local police, which might lead to immigration enforcement involvement; or 3) families already involved with the child welfare system when a parent is detained. The same report noted that between 2011 and 2017, about 340,000 parents who were removed from the country claimed to be parents of U.S.-born children. Some of these children who enter the foster system aren’t placed with relatives or family friends (i.e., kinship resources) because of their relatives’ or family friends’ Undocumented status (see Laura’s story in Teen Vogue). This leads to placement with strangers in the foster system and can ultimately lead to permanent separation from their parents, because compliance with state child welfare case plans can be impossible for detained parents to complete.

Children who were separated from their parents at the southern border starting in 2017 were placed with the Office of Refugee Resettlement (ORR) within the U.S. Department of Health and Human Services—the same agency that oversees and funds the foster system. However, these children were not placed in the foster system itself, because they had not been found to have been maltreated. These children were separated from their families based on a harsh policy and, to make matters even worse, the government failed to adequately reunify them. The Biden administration is still working to reunify families over five years after this policy went into effect. According to a recent report from the Department of Homeland Security, over 3,800 children were identified for reunification, and as of September 2022, a total of 2,766 of those families have been reunified.

When we look at both immigration enforcement and immigration policies, like the zero tolerance policy, we see an extension of family separation into the immigration context—by any means, and at any cost. This idea of family separation for “those people,” the others, in this case people who are Undocumented but who have children, people who are seeking a better life in America, are met with the same approach as America applies to its own citizens: family separation is elevated over addressing the issue at hand. Instead of doing the work of creating just and humane immigration laws, government officials operate within a broken immigration framework that forcefully separates children from their parents, all in the name of secure borders. Children and families, once again, bear the brunt of policies that fail to consider the full humanity and true needs of those within our communities.

Instead of doing the work of creating just and humane immigration laws, government officials operate within a broken immigration framework that forcefully separates children from their parents, all in the name of secure borders.

Conclusion

After taking a look at the very beginnings of our foster system through to the War on Drugs, mass incarceration, welfare reform, and immigration enforcement, it’s clear that family separation of those deemed “others” is the policy of our country. Family separation is the natural outgrowth of punitive approaches to the societal problems faced by families of color and low-income families. Understanding the full context and interconnectedness of our policies and those policies’ impact on families is necessary to truly make change. While there are some programs in each of these areas that provide families with needed support, the structure of many of these programs still subject families to child welfare and/or criminal justice system surveillance, meaning that families still exist in a tenuous position and at risk of separation. In order to move from separation to support, we must interrogate how all policies—even those that reform the system—truly honor families and togetherness.

1. I use the terms child welfare and family regulation systems interchangeably throughout this commentary. I find the terms family regulation, or family policing, system to be more apt descriptions of a system that surveils, regulates, and penalizes families instead of providing support and resources to meet their needs.
2. This figure was calculated using the Nerd Wallet Inflation Calculator which indicates how the value of the U.S. dollar has changed since 1913.
3. A 1990 memo from the U.S. inspector general defines boarder babies as “an infant who remains in the hospital even though medically ready for discharge. Babies stay in the hospital due to legal complications, questions about the parents’ ability to care for the babies, and a lack of care alternatives.”
4.  About thirty-five states, Washington, D.C., and the U.S. Virgin Islands have exceptions to filing for termination of parental rights during this time period. Examples of these exceptions include termination not being in the child’s best interest, the child is residing with a relative, or the agency hasn’t provided the parent with services it has deemed necessary for family reunification.
5. Some states, like New York and Washington, have explicit laws that exempt incarcerated parents and their children from the ASFA timelines.
6. The first predictor of foster system caseloads was parental incarceration—specifically female parental incarceration. Parental incarceration accounted for a 31 percent of the growth in foster system caseloads between 1985 and 2000.