2024-2 Feminist Ethics
Roberts, Dorothy E. (2001), "Kinship Care and the Price of State Support for Children." Faculty Scholarship at Penn Law. 821
1. Introduction
One of the key issues raised by caregiving is determining who should be responsible for its financial support. Law and public policy in the United States assume that caregiving is primarily a private matter. Parents, for example, are supposed to bear the costs of caring for their children. Martha Fineman,1 Eva Feder Kittay,2 and other feminist scholars have shown that relying on private arrangements for inevitable dependencies has negative consequences for women.3 The nuclear family norm gives women the responsibility of caregiving while denying them adequate government support and vilifying those who do not depend on husbands. Mothers who are unable to rely on a male breadwinner or their own income to raise their children must pay a high price for state support. The U.S. welfare state provides stingy benefits to poor mothers, who are stigmatized and encumbered by behavioral regulations.4 Mothers must waive privacy rights as a condition of receiving public aid.5 The law permits bureaucratic surveillance of clients to determine their eligibility based on both means- and morals-testing, to check their conformance to behavioral mandates, and to guarantee that they are spending benefits properly. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA")t' converted welfare from a federal entitlement to a means for states to influence poor mothers' work, marital, and childbearing decisions.
Less explored by feminist legal scholars is the role of the public child welfare system in caregiving by poor mothers. The child welfare system intervenes when parents are alleged to have abused or neglected their children.s State child protective agencies may provide services to these families while keeping them intact or after removing children from the home to be placed in foster care. Although fewer families are involved with child protective services than with the welfare system, the number of children in state custody is alarming. In 1999, there were 568,000 children in foster care.Y The vast majority of these children are poor.111 Not only is child maltreatment highly correlated with poverty,1 1 but child neglect is also defined and interpreted in a way that subjects greater numbers of poor families to state surveillance and intervention.12 Black children are grossly overrepresented in child welfare caseloads: nearly half of all children in foster care nationwide are black, although black children are only seventeen percent of the nation's youth. 13 The child welfare system, then, is a significant means of public support of poor children, especially poor black children.
The consequences for families involved in the child welfare system are even more devastating than the burdens attached to receiving welfare. Involvement in the child welfare system entails intensive supervision by child protection agencies, which often includes losing legal custody of children to the state. This state intrusion is typically viewed as necessary to protect maltreated children from parental harm. I argue in this Article that transferring parental authority to the state is the price poor people must often pay for state support of their children. I focus on kinship foster care as an example of relinquishing legal custody of children to gain access to necessary public services. Kinship foster care replaces a traditional, private African American family arrangement with a similar structure that is regulated by state child welfare agencies. Part I describes this transformation of kinship care from a predominantly private family network to a widely used source of public foster care. Part II discusses the structure of state payments for kinship caregiving and its correlation to the level of state supervision of caregivers.
In Part III, I explore how kinship foster care often involves relinquishing custody of children in exchange for services and benefits that families need. I discuss the increasing number of "voluntary" placements of children in foster care, the impact of state supervision on families involved in kinship foster care, and the inferior services received by these families. In Part IV, I show that incorporating kinship care into the child welfare system often harms families by disrupting, rather than preserving, ties among kin. Finally, Part V contends that the extreme government supervision of these families through the child welfare system stems from the failure of more general state support for caregiving. The onerous price exacted from poor black families for public assistance demonstrates the need for fundamental change in our philosophy of care.