Deinstitutionalizing Family Separation in Cases of Parental Drug Use

abstract. Family separation has long served as a mechanism of social control and punishment in the United States, disproportionately targeting Black, Indigenous, and other marginalized families under the guise of child welfare. Family separation remains the family policing system’s primary intervention in families, including families targeted because one parent is using substances. Recent legislation, such as the Families First Prevention Services Act, aims to reduce family separation by funding preventive services. However, the punitive approach entrenched in the family policing system remains resistant to reform. This Essay argues that the family policing system, steeped in a legacy of racialized control and punitive policies, fundamentally obstructs efforts to prioritize family preservation over child removal in cases of parental drug use.

Through an institutional theory lens, this Essay examines how the family policing system’s historical emphasis on punishment and surveillance resists even well-intentioned legislative changes. Despite the inclusion of family-centered services in recent legislation addressing the opioid crisis, implementation barriers and institutional inertia within family policing agencies perpetuate default practices of policing and removal.

This Essay argues for a fundamental reimagining of family support systems that divests from punitive family policing frameworks and centers on family preservation.

Introduction

Chanetto Rivers smoked marijuana at a family barbecue before giving birth; New York City’s Administration for Children’s Services then placed her baby in foster care, even though marijuana was legal in New York at the time.1 Susan Horton ate a salad with poppy seeds before giving birth; California’s Sonoma County Human Services Department took her newborn into protective custody.2 Police and caseworkers from the Administration for Children’s Services raided L.B.’s Brooklyn home without a warrant at 5:30 A.M., terrorizing and traumatizing L.B. and her then-seven-year-old son after the state’s child welfare hotline received an anonymous and erroneous report of drug use.3 Alicia Johansen and Fred Thornten, whose child was removed due to their drug use, spent more than two years fighting the intervening foster parents for custody of their child, even after they met every requirement imposed by a Colorado judge for regaining custody.4

These parents experienced the all-too-common phenomenon of family surveillance and separation as a result of alleged drug use. Thirty-nine percent of all children forcibly removed from their parents’ care and custody in 2021 by so-called “child protective services”—more accurately called the family policing system5—were removed in whole or in part due to parental “drug abuse.”6 As of September 2022, in twenty-three states, evidence of parental “drug abuse” alone could be used to initiate child removal proceedings.7 Some state actors, like “child protective” agents,8 interpret “drug abuse” to include not only chaotic use9 of illicit drugs, but also recreational use of licit drugs (including alcohol and marijuana).10 Studies have found that substance use does not preclude people from being fit parents.11 Further, there is substantial evidence that the removal itself and the placement of the child in the foster-care system cause actual harm.12

If the risk of harm solely due to parental substance use or misuse is tenuous, and the harm to the child caused by removal and placement in state custody is a surety, why do state governments (aided by federal law and funds) remove children due to parental drug use alone? Professor Dorothy Roberts has convincingly argued that the family policing system is not designed to protect or to improve the welfare of children.13 Roberts argues: “‘Policing’ is the word that captures best what the system does to America’s most disenfranchised families. It subjects them to surveillance, coercion, and punishment. It is a family-policing system.”14

In this Essay, we apply an institutional theory lens15 to extend Roberts’s and others’16 assertions to the system’s treatment of parental drug use. We argue that punishment and social control are so deeply institutionalized in the family policing system that recent reform efforts will inevitably fail.17 While several articles have discussed the content, promises, and failures of the Families First Prevention Services Act (FFPSA),18 this Essay adds to the literature by providing an analysis of the legislative history and legislative discourse that gave rise to the enactment of FFPSA.

We support the claim that reform efforts will inevitably fail by first reviewing the family policing system’s history. We demonstrate that the system was created to remove children from parents whom the state deemed “undeserving” or “unworthy.”19 We show that, since the system’s creation, it has particularly targeted Black, Indigenous, and nonwhite immigrants.20 We describe how states have historically removed children from families as a form of social control and as punishment for conditions that are frequently rooted in the lasting impacts of enslavement, colonialism, structural racism, and poverty.

Second, we illustrate how decades of federal legislation (and funding) favored out-of-home placements over programs that prioritize providing services and keeping children within their homes. This approach further institutionalized surveillance, investigations into deservingness, and family separation as responsibilities of the agencies tasked with implementing these laws.21

Third, we address recent legislative attempts to respond to parental drug use in ways that preserve the family, such as by providing needed healthcare and assistance to parents who use drugs. The success of these attempts has been minimal. We attribute this lack of success to institutional inertia and to state family policing agencies’ incapacity to provide the family-centered services needed to support family preservation in cases of parental substance use.22 We conclude by recommending a new approach that would institutionalize the idea of family preservation and by describing what this reimagined approach might look like.23

I. the institutionalization of coercion and punishment in the family policing system

The current punitive approach to addressing parental substance use did not arise in a vacuum. Since the colonial era, American states have wielded family separation as an extractive tool of racialized social control and capitalism against Black, Indigenous, and nonwhite immigrant families.24 The system of family policing was designed to punish parents deemed “undeserving” of parenting because of their living conditions,25 which family policing agencies treated as individual failings or flaws.26 The removal of children from the home developed as part of that punishment.

Today, removal is a central tool of what we now call the “child welfare” or “child protection” system.27 Supporters of family policing as an institution have justified it as benevolent and necessary to protect children from actual harm.28 And yet the founding institutions—and the web of law, policies, and practices that make up family policing—continue to be rooted in the philosophies that children need protection from bad parents29 and that undeserving parents should lose their constitutional right to parent30 as a form of punishment.31 Early organizations and agencies created for “child protection” were developed to achieve these ends.32

Understanding the development of the institution of family policing is crucial to grasping why recent legislative reforms, which aim to address parental substance use without defaulting to child removal, face significant institutional inertia.33 Institutional theory suggests administrative agencies and the professionals operating within them will resist changes that contradict the systemically ingrained purposes of the institution.34 Here, as the desire for social control was institutionalized in the laws and policies of the family policing system, that desire became an element of the institution. As an element, it impacted the cultures, strategies, structures, and processes of regulatory bodies (such as state and federal legislatures and administrative agencies) and organizational participants (such as family policing agencies).35 Because the “child welfare” system was established to police families and punish those deemed unfit by permanently terminating parental rights, its strategies, structures, and processes inevitably incorporate punitive elements.36 Consequently, when reforms are introduced to prioritize family preservation, the regulatory and organizational bodies within the institution will often default to family policing—a phenomenon explored in depth in Part III.

A. Slavery, Colonialism, and the Birth of the Institution of Family Policing

The modern family policing system uses the threat of child removal and the permanent termination of parental rights as punitive measures for parental drug use.37 This type of family separation has a deep-rooted history in this country as a punitive tool to exercise racialized social control over Black, Indigenous, and other nonwhite immigrant families.38

Family policing existed long before the early predecessors of modern child protection agencies were created in the late nineteenth century.39 As Roberts wrote, “Family destruction has historically functioned as a chief instrument of group oppression in the United States.”40 Later in this Section, we will discuss the colonial history of the American family policing institution, which focused exclusively on the needs of white children living in poverty.41 However, for a more complete picture of the family policing institution, one must understand its inattention to Black families—who are now disproportionately policed by the modern family policing system.42 This disregard, combined with the existence of slavery, ensured that “child welfare institutions could develop in this country without concern for the majority of Black children,” creating the conditions for “an inherently racist child welfare system.”43 This system incorporated the brutal domination and destruction of Black families that the institution of slavery developed.44

As Professor Alan J. Detlaff has documented, during slavery, the tearing apart of families through sales of enslaved people served as “a means of maintaining power and control by a system of white supremacy that is foundational to this country’s origins.”45 Further, laws enacted during slavery monetized racial heritage by making the child of an enslaved person enslaved—thereby creating a perverse incentive for sexual violence as a means of enriching the enslaver and laying the foundation for family separation as a tool for racial capitalism, because enslavers would be financially enriched through the sales of enslaved people.46 Similarly, the history of land theft, displacement, and physical and cultural genocide of the Indigenous people in the United States created an enduring legacy in the development and function of child welfare institutions.47

These dual legacies of enslavement and genocide stretched beyond the period of land dispossession and slavery. This is evident from the advent of Black Codes, which compelled many newly emancipated Black families in the South to apprentice their children during the Reconstruction era,48 and the kidnapping and coercive placement of Indigenous children in Native American residential schools (guided by General Richard Henry Pratt’s infamous notion of “kill the Indian and save the man”).49 Each of these efforts was propelled by the idea that Black and Indigenous parents did not deserve their children and could not raise children who could productively serve society’s needs—a problem that could be remedied by children’s removal from their environments.50 This legacy of family separation as a tool of pain and punishment persists today.

As Roberts has argued, it is only against this backdrop and legacy of family separation as a “terroristic weapon against Black and Native communities” that we can consider “the emergence of modern child welfare agencies for white children in the United States.”51 James Morone’s Hellfire Nation describes how Puritan beliefs heavily influenced early American social welfare institutions, shaping policies that are deeply embedded in American institutions.52 These early Puritan beliefs led colonial society to view children living in poverty as needing salvation.53 However, it was not until the beginning of the nineteenth century—when waves of immigration and increasing industrialization turned wealthy reformers’ attention to the plight of poor, mostly white, immigrant children—that permanent family separation became a more widespread response to perceived parental deviance.54 These family separation efforts were primarily driven by anti-immigrant narratives that again characterized immigrant communities, much like families in poverty during the Puritan era, as prone to deviance.55 Rarely were efforts made to reunify families once children were removed.56

It was against this backdrop that the predecessors to modern foster care and child protection—organizational elements of the contemporary family policing system—were formed. Fueled by anti-immigrant sentiment, the Children’s Aid Society in New York developed a model of saving poor children from the “evils of urban life” by sending them to “good” Christian farmers in the country, where they could work and receive moral guidance.57 Substance use was understood as an innate sin that could be passed from mother to child.58 The New York Society for the Protection of Cruelty to Children sprung up in 1874, and by the 1910s, more than two hundred Societies for the Protection of Cruelty to Children (SPCCs) existed around the country.59 The SPCCs focused on investigating abuse allegations, instituting legal action, and encouraging the prosecution of the parents for “cruelty.”60 The vilification of parents, most of whom lived in poverty, and the use of child removal as a form of punishment reinforced the idea that it was the purpose of these child protection agencies to remove children from bad homes and put them in better homes; they operated with the intent to exert social control.61 Beginning in 1854, an estimated 100,000 children were sent on “Orphan Trains” from cities to smaller farm communities in the Midwest—marking the start of formalized foster care.62 This approach, however, was not concerned with reuniting children with their parents or even with ensuring that children’s welfare had improved.63

SPCCs created the institutional framework that gave rise to the modern family policing system: an institution that punished undeserving parents through permanent family separation. In 1935, the funding mechanism for state child protection systems became federalized through the Social Security Act,64 which encouraged states to create family policing agencies and programs modeled after the existing SPCCs, thereby incorporating these early models of family policing into the state and local agencies that exist today.65 In institutional-theory terms, the Act explicitly created structures and processes that were institutionalized into organizations, which adopted and incorporated the ethos of the SPCCs into the fabric of their operations. Thus, the family policing agencies were born.

B. Institutionalizing the Disproportionate Policing of Black and Indigenous Families

While Black and Indigenous children were largely not part of the equation for the SPCCs and other Progressive Era institutions focused on child-saving, this began to shift in the twentieth century.66 Ironically, Black liberation movements and civil rights advocacy opened the doors to the institutions that would become the family policing system, creating what Roberts has described as “a Pyrrhic victory.”67 At the root of this shift was a fight over federal financial support for low-income single mothers. In the early part of the twentieth century, Progressive Era feminists advocated for federal public welfare programs to benefit unmarried mothers. Black and Indigenous women were predominantly excluded from these benefits, either by law or practice.68 But in the mid-twentieth century, Black women and children were at the forefront of successful desegregation and civil rights movements that helped open the welfare system to Black and Indigenous mothers.69

In response, government officials, particularly in southern states, began to promote a racist and sexist narrative about Black mothers. For Black women, the institution of marriage was largely inaccessible due to structural racism, economic inequality, and public benefits laws that discouraged marriage. But rather than recognizing this reality, government officials often depicted Black mothers as draining public resources by accessing public benefits for their “illegitimate” children.70 In order to curtail Black women’s access to benefits, states enacted laws to police and surveil their behavior.71 For example, so-called “suitable home” laws deputized state family policing agencies to assess whether the home environments of children receiving public benefits were “suitable” based on whether unmarried mothers had ceased all “illicit” relationships.72 The purpose of these assessments was to evaluate each mother’s morality and, thus, her eligibility for public benefits; if public benefits ceased, her child would frequently be removed to foster care.73 These suitability laws share the same puritanical motivations that underpin many modern laws governing morality or perceived sins such as drug use.74 Additional research is needed to determine the full extent to which parental drug use motivated removals during this era. However, the stigmatizing depictions of Black women as “welfare queens” in the media and policy discourse, along with the depiction of the “crack-cocaine epidemic” as a problem affecting Black communities in the 1980s and 1990s, suggest that ideals of suitability and deservingness endured beyond the mid-twentieth century.75

Similar to Black mothers, as Native American mothers attempted to access welfare benefits, they opened themselves up to scrutiny and removal of their children to foster care.76 As historian Laura Briggs has written, involvement with welfare meant the application of white, heteronormative, middle-class standards to Native families:

Welfare workers disparaged the poverty of reservations and shamed unmarried mothers and others who cared for children because they thought heterosexual nuclear families were the only proper homes for children. They refused to acknowledge indigenous kinship systems and the important role of elders and other adults in child rearing.77

Civil rights organizers appealed to the federal government to deem these suitability laws unconstitutional, calling attention to how suitability laws were fueling segregation (by driving Black families out of southern states) and starving Black children (by denying their mothers welfare benefits), but they were unsuccessful.78 Rather than address the inequities caused by these suitability laws, in 1961, Arthur Flemming, the Secretary of Health, Education, and Welfare for the Eisenhower Administration, found a workaround: states could deny mothers welfare benefits but could not leave their children without financial support simply because their caretakers were unsuitable.79 This so-called “Flemming Rule” required states either to (1) provide “services” to make a home suitable or (2) remove the child to “suitable” care while providing financial support to the child.80 It was not accompanied by additional allocations of federal funds to accomplish either of these objectives.81

Amendments to the Social Security Act in 1961 incentivized the removal of children from these homes (and from other families living in poverty) by permitting the use of federal funds to pay for removal and out-of-home placement of children (foster care).82 The 1961 Amendments did not include funding allocations to pay for services to make the home more suitable or to provide services to preserve the family unit.83

The influx of federal funding for foster care led to the formalization of the modern “foster care” system.84 As Roberts has documented, from 1945 to 1961, the proportion of Black children in foster care nearly doubled; yet from 1980 through 1999, the number of children total in foster care nearly doubled, and the proportion of Black children more than doubled.85 Further, “[f]rom 1960 through 1980, roughly 25-35 percent of Native children were separated from their families and placed in foster care, adoptive homes, or institutions, most of which were outside of their original communities and family system.”86

The history and analysis presented thus far demonstrate how the state increasingly punished parents it deemed undeserving through family separation and curtailment of their constitutional parental rights. Through a web of federal rules and legislation, federal dollars encouraged the creation of state and local family policing agencies and then encouraged family separation. In sum, separation was embedded into the framework for the modern family policing system, ensuring this approach would endure and fueling the influx of Black and Indigenous children into foster care.

C. The Institutionalization of Mandatory Reporting and Its Intersections with Healthcare

In 2019, thirty-four percent of all family policing investigations for infants were initiated by medical professionals.87 In some states, as many as eighty percent of these 2019 referrals were for parental substance use.88 As medical historian Mical Raz has demonstrated in her critical book, Abusive Policies: How the American Child Welfare System Lost Its Way, one cannot underestimate the legacy of Dr. C. Henry Kempe’s seminal 1962 article, The Battered Child Syndrome, which adopted a medicalized approach to child abuse that has been the framework for modern child protection efforts, including investigations of parental drug use.89

Kempe’s article argued that healthcare providers were uniquely situated to identify serious physical child abuse, which state child protection agencies could investigate.90 States swiftly responded, and by 1967, all fifty states had passed mandatory reporting laws. Some expanded what should be reported and investigated as alleged child abuse and neglect, reaching far beyond what Kempe had recommended.91

By 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA), which provided states with grant funding in exchange for compliance with specific requirements—including requirements that states implement mandatory reporting laws if they had not done so already.92 Although CAPTA did not explicitly include a mandatory reporting requirement for suspected parental substance use, federal guidance cautioned that parental drug use during pregnancy indicated a “high risk” for child maltreatment and encouraged physicians to “identify” infants who may be exposed to parental drug use during pregnancy so that the pregnant parent could be connected with needed services.93 CAPTA did not, however, provide any additional federal funding to cover the costs of necessary substance use or mental health services.94 It did, however, continue to fund out-of-home placements in foster care.95

A pause in the chronological sequence of this analysis is warranted because CAPTA was amended in 2003 to encourage states to develop policies and procedures that

address the needs of infants born and identified as being affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure, including a requirement that health care providers involved in the delivery or care of such infants notify the child protective services system of the occurrence of such condition in such infants.96

This notification requirement was accompanied by an express condition that the notification “shall not be construed to (I) establish a definition under Federal law of what constitutes child abuse; or (II) require prosecution for any illegal action.”97 Specifically, CAPTA provides:

The Secretary is authorized to make grants to States for the purpose of assisting child welfare agencies, social services agencies, substance use disorder treatment agencies, hospitals with labor and delivery units, medical staff, public health and mental health agencies, and maternal and child health agencies to facilitate collaboration in developing, updating, implementing, and monitoring plans of safe care described in section 5106(b)(2)(B)(iii) of this title.98

Notably, this statutory language differs from CAPTA’s mandate in a different section that required states to enact laws to ensure child abuse and neglect are reported and investigated. This difference suggests that the notification requirement was not to be equated with a report of child abuse or neglect. Further, the statute’s emphasis on “developing, updating, implementing, and monitoring plans of safe care”99 signifies a focus on providing treatment and suggests that evidence of substance use is not per se child abuse or neglect.

But while the notification requirement was not intended to be a report of child abuse or neglect, it has increased the surveillance and policing of pregnancies by healthcare providers for reasons we explore in Part III.100 Most importantly for the current analysis, this requirement created additional processes and procedures in family policing agencies to deal with notifications from healthcare providers, further institutionalizing the policing function of these agencies.101 As is a recurring theme, the 2003 amendments did not include additional allocations to pay for services for the parent that would prevent removal—or even require that services to the parent be provided.102 In practice, it is not uncommon for these notifications to result in referrals for investigations of alleged child abuse and neglect, further driving families’ entanglement in the family policing system.103 As institutional theory predicts, family policing agencies—created for the purpose of policing parental behavior—implemented these notifications with the same punitive approach they had used for eighty years.104

Mandatory reporting has fueled the rapid expansion of the family policing system since the passage of CAPTA, as states have broadened their definitions of child maltreatment and expanded the categories of mandatory reporters.105 The influx of millions of reports each year—many of them unsubstantiated—overwhelms the system, leading to invasive investigations and child removals that often harm families without effectively preventing abuse and neglect.106 Studies also show that the discrimination and stigmatization that parents who use substances experience in seeking treatment, along with the very real legal risks of mandatory reporting and family separation, constitute a significant deterrent to seeking help or treatment.107

The influx of children into foster care, and the rising federal costs of financing it, prompted Congress in 1980 to consider the impacts that removals were having on parental rights while balancing the competing goal of providing children languishing in foster care with “permanency” (via the involuntary termination of parental rights and adoption).108 Congress enacted the Adoption Assistance and Child Welfare Act of 1980 (AACWA), which required agencies to make “reasonable efforts” to preserve the family before removing a child from the home. To support this requirement, the law also amended the Social Security Act (SSA) to fund services to prevent child removal, including parental counseling and substance use treatment, through what is commonly referred to as Social Security Title IV-B Programs funding.109 However, the reasonable effort requirement was secondary to AACWA’s emphasis on achieving the competing goal of “permanency” for children.110 And despite the amendment to the SSA, AACWA’s prevention and reunification services were and are still underfunded—an issue that we discuss further in Part III.111 AACWA did not contain a funded mandate to reunite families.112

AACWA was responsible for an estimated decline in the number of children in foster care from over 520,000 in 1977 to 275,000 by 1984.113 However, this decline is attributable to AACWA’s encouragement of more parental rights terminations and the facilitation of adoptions rather than the increase in reunifications.114 Near the turn of the century, Congress again intervened to facilitate more terminations of parental rights and adoption with the enactment of the Adoption and Safe Families Act of 1997 (ASFA).115

Rather than preventing child removal and providing services to keep families together, ASFA created mandatory timelines by which parents needed to reunify with their children or risk the termination of their parental rights and adoption of their children. The law did so by requiring states to file to terminate parental rights if a child had spent fifteen of the last twenty-two months in foster care.116 Advocates for ASFA fueled the imaginations of legislators with accounts of child abuse that allegedly occurred in homes where children were not removed due to family preservation efforts or after children were reunified with their parents following foster care.117 Although there was no systematic data presented to Congress to support these contentions,118 Congress passed AFSA anyway. And while ASFA has increased the number of family policing cases resulting in adoption,119 it has also created many “legal orphans”—youth whose parents’ legal rights were terminated but for whom no adoption is ever completed.120

The horrific impact of ASFA on families with a substance-using parent over the past twenty-six years cannot be underestimated. The timelines, coupled with the threat of termination of parental rights, greatly impacted parents who struggled with substance use for several reasons. First, it is not uncommon for parents to spiral into chaotic substance use121 as a result of family separation. When parents experience an episode of relapse into chaotic substance use, it prolongs foster care stays.122 Prolonged foster care stays, in turn, decrease the likelihood of reunification and, because of federally mandated timelines,123 increase the likelihood of parents having their parental rights terminated and losing their child forever.124 Rather than fund family preservation efforts or help families to reunify, ASFA further solidified the family policing system’s institutional commitment to removing children from “bad” parents, allegedly for the children’s safety and well-being.

In summary, the institutional history of the family policing system provides a clear map as to why the system is not only ill-suited to help parents who use substances but, in fact, is not designed to help them. As we have briefly reviewed above, federal funding mechanisms for the system have incentivized out-of-home placements and institutionalized a punitive approach that threatens parents who use substances with the termination of their parental rights to induce behavior change.125

Yet, by 2018, as overdose death rates remained high126 along with high rates of foster care placements due to parental opioid use,127 there was a documented shift in policy narratives about addiction. Rather than framing it as primarily a moral or criminal-legal issue, policymakers began to frame it as a public health issue.128 Unlike parental substance use more broadly, the opioid crisis was also characterized as a medical or health issue that impacts primarily the white middle class.129 Given this narrative shift and the health-oriented federal legislation to address the opioid epidemic,130 one might expect states to retreat from removals based on substance use alone—at least in the short term.

Although legislators claimed to have adopted a public health approach in response to the nation’s opioid overdose crisis,131 the approach failed to truly prioritize public health in the family policing context. Indeed, it merely tasked the family policing system with responsibilities that either reinforced its policing tendencies or exceeded what the system was equipped to handle. As public health researchers have shown, when policing agencies try to engage in public health efforts, they cannot help but resort to their policing training and functions.132 In the family policing context, a genuine public health approach to substance use would require addressing the upstream causes of parental drug use,133 employing a harm reduction approach to current substance use (which meets the person who is using drugs “where they are at”),134 and prioritizing providing services that do not necessitate removal when possible.

II. the opioid crisis and the not-so-public health approach to parental substance use

It was not until 2016—in response to an opioid crisis portrayed as predominantly affecting white communities in suburban America135—that Congress expanded the federal requirement to identify children exposed to substances in utero to include a mandate for developing Plans of Safe Care addressing the needs of both the infant and the mother. This addition came with the enactment of the Comprehensive Addiction and Recovery Act (CARA) of 2016.136 Along with the attention paid to the rising number of opioid overdose deaths, there was a new moral panic over infants exposed in utero to opioids.137 This panic was over Neonatal Abstinence Syndrome (NAS), which was initially attributed to prescription opioid use or side effects of medications to treat opioid-use disorder.138 Addiction medicine specialists warned that “[d]eclaring war on this condition risks stigmatizing effective therapy, leaving mothers more vulnerable to relapse, overdose, and death.”139 Their warnings were not heeded.

CARA also responded to the moral panic about NAS by expanding the notification requirements for infants “affected by substance abuse or withdrawal symptoms,” now requiring healthcare providers to identify infants exposed to both prescription and illicit drugs instead of just the latter.140 CARA explicitly included an acknowledgment by Congress that addiction and overdose were public health issues.141 And yet, in the same legislative breath, Congress expanded the population of infants and families subject to the family policing system.142

When answering questions about whether a notification or referral pursuant to this provision constitutes a report of abuse or neglect, the Administration for Children and Families (ACF), the federal agency charged with the enforcement and implementation of CAPTA, hedged. ACF responded:

Not necessarily. The CAPTA provision as originally enacted and amended requires the referral of certain substance-exposed infants to [child protective services] and makes clear that the requirement to refer infants affected by substance abuse does not establish a federal definition of child abuse and neglect. Rather, the focus of the provision is on identifying infants at risk due to prenatal substance exposure and on developing a plan to keep the infant safe and address the needs of the child and caretakers. (See CWPM, Section 2.1F, Questions 1 and 2.) Further, the development of a plan of safe care is required whether or not the circumstances constitute child maltreatment under state law.143

This hedging implies that ACF knew that mandating notification risked increasing the likelihood that an investigation and removal would ensue.

In a positive step forward, CARA did require that the Plans of Safe Care also address the health and substance use disorder treatment needs of the infant’s family or caretakers.144 However, CARA still did not address the harm that interactions with the family policing system cause parents who use substances and their children. Although CARA purported to be public health-oriented, in reality, it maintained and reinforced the policing structure of all policy responses to drug use. 145 The law cloaked this policing structure by using public health rhetoric and shifting some of the policing and surveillance of parents to healthcare actors.146

In October 2018, Congress enacted the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT).147 The legislation included an amendment to CAPTA authorizing grants to states to facilitate collaboration in developing and implementing Plans of Safe Care—again reinforcing that legislators were interested and willing to amend CAPTA in order to better respond to the opioid crisis, but also signaling broad bipartisan support for increased surveillance and reporting.148

In 2021, Congress’s reauthorization of CAPTA updated the idea of Plans of Safe Care, renaming them Family Care Plans. Congress stated that the 2021 CAPTA “promotes a public health response for family care plans (formerly plans for safe care) to ensure the safety, permanency, and well-being of infants and their caregivers affected by substance use disorder.”149 Congress claimed CAPTA did this by appropriating additional monies to improve access to treatment.150 It stressed that the mandated reporting of substance exposure of the infant did not require an investigation by the agency and that CAPTA was not meant to provide a federal definition of child maltreatment that included parental substance use.151 However, the 2021 reauthorization did not recommend that infants remain with their parents while substance use treatment services are provided152—despite the evidence suggesting that these services can lead to better outcomes.153 And as scholars have noted, while the purpose of the CAPTA notification requirements for substance-exposed infants is to identify families who need services before removal becomes necessary and to do so in a nonpunitive way, this goal conflicts with current criminal legal approaches to substance use in pregnancy, which are focused on surveilling, reporting, and punishing pregnant parents.154

Further, there is ample evidence that mandatory reporting creates a significant disincentive for substance using pregnant people155 to seek prenatal medical care.156 This disincentive is particularly strong for Black pregnant people because of the pervasive and illegal reality that they and their babies are far more likely to be tested for substances, usually without consent.157

In sum, despite the widely available evidence that outcomes are better for children, parents, and the whole family when infants are not removed from their parents’ care due to exposure to a substance in utero,158 federal legislation has not gone so far as to require states to provide access to such evidence-based programs instead of out-of-home placement. Worse yet, federal law maintains healthcare providers as police and decreases the likelihood that pregnant people will seek healthcare.159

A. The Families First Prevention Services Act and the Promise of Reform

The Families First Prevention Services Act (FFPSA), enacted in 2018, was supposed to “begin a new era for the child welfare system.”160 It was first introduced in the House of Representatives in 2016, alongside several other pieces of legislation aimed at addressing the opioid overdose crisis.161 Its drafters wanted to redesign the current family policing system to emphasize a preventative model that kept children in their caretakers’ homes while providing the services that caretakers may need to keep children safe.162 To achieve this, the drafters of FFPSA proposed an amendment to current federal funding structures to provide more funding for “prevention services for children and families that are at risk for entering foster care.”163 The law amended Title IV-E of the SSA to allow family policing agencies to use federal funds to support evidence-based prevention efforts for mental health, substance-abuse prevention and treatment services, and in-home parenting skills training for a maximum of twelve months.164 FFPSA also permits agencies to use funds to pay for residential, family-based substance use treatment providers, which allow children to live with their parents while they undergo treatment for substance use disorder (SUD).165 This feature of the law was backed by evidence demonstrating that many parents with substance use disorders can safely care for their child without the child being separated from them.166 It was also supported by studies that have found that children, particularly infants born exposed to substances, fare worse if removed from their parents’ care and custody.167 Outcomes for both children and parents are significantly better when child protective services and courts use family-centered approaches to substance use treatment instead.168 These approaches allow children to remain in the care and custody of their parents while the parents receive evidence-based substance use treatment and support.169

Despite having support from many prominent family policing agencies as well as advocates in the Obama Administration’s Office of National Drug Control Policy, FFPSA passed in the House but did not make it out of committee in the Senate when it was first introduced in 2016.170 FFPSA had bipartisan support, and one of its drafters and primary sponsors was a Republican. Surprisingly, opposition to the bill came from Democrats over where its funding would come from. Democrats opposed using financial incentives previously awarded to the states for supporting adoption services to fund prevention services instead.171

FFPSA was introduced again in the Senate in 2017, where it died in committee.172 This is a common fate for legislation that does not have enough support among the chairs of committees of the controlling party, which in 2017 was the Republican Party. Most of the provisions of FFPSA were eventually enacted as part of Division E of the Bipartisan Budget Act of 2018.173 Congress has increasingly used “riders,” policy changes within budget legislation, mainly because some of the procedural hurdles to legislative enactment are suspended for appropriation bills, making them easier to pass than standalone legislation.174 The failure of FFPSA to make it out of committee suggests that the law did not have the congressional support that CARA or SUPPORT had. Despite this, FFPSA was enacted in 2018.

B. Implementation Barriers: Congressional Inquiries into the Implementation of FFPSA

FFPSA’s enactment has been flanked by implementation barriers. After the passage of FFPSA, the bill’s sponsors were quick to tout its success and claim credit for the declining number of foster care placements in 2018. In comments in front of Congress on November 20, 2019, Senator Grassley said: “Mr. President, in recent years, the opioid epidemic has resulted in steadily climbing numbers of kids entering foster care. However, in 2018, the number of children in foster care has declined for the first time since 2011. This is evidence that prevention programs are working.”175 Indeed, the number of children that have entered foster care has decreased from its height of 273,000 in 2016 to 207,000 in 2021.176 However, the numbers were trending down before the enactment of FFPSA, and FFPSA’s funding provisions did not go into effect until October 1, 2018.177 The fact that the number of children entering foster care declined before FFPSA went into effect suggests that the initial downward trend cannot be attributed directly to FFPSA.

Further, FFPSA has been hard to implement, contributing to only seventeen states and one tribe using FFPSA funds in 2022.178 And FFPSA has fallen short of furthering actual systems reform for several institutional reasons.

First, FFPSA does not truly prevent removal, as it is not triggered unless there is an imminent risk of family policing involvement.179 Advocates have asked Congress to expand the definition of who is eligible for FFPSA services to any family who is at risk of family policing involvement as opposed to only those who are at imminent risk of family policing involvement.180 FFPSA gives states wide latitude to determine what imminent risk of harm means. The federal government has issued guidance stating it applies to anyone who would likely enter foster care without intervention.181

Second, as other advocates and experts have argued, the underfunding of Social Security Title IV-B Programs, which were created in the 1990s to support family support and family preservation services, is also stymying the systems change FFPSA aims to promote. Title IV-B programs have been leveraged to ensure that social workers visit children in foster care regularly rather than to support families to prevent removal.182 As the Executive Director of the Utah Department of Health and Human Services explained, Title IV-B funding offers states tremendous flexibility to meet the needs of families and prevent removal.183 During her congressional testimony, the Director gave the example of a family of five that was at risk for child removal.184 In that particular case, the social worker had identified that the cause of the removal was poverty-related and had used Title IV-B funds to provide short-term resources to pay rent and access medical care.185 Despite the benefits of these funds, the Director noted that they only make up 2.5% of Utah’s total family policing budget.186 As Dr. David Sanders, Executive Vice President of Systems Improvement at the Case Family Programs, explained to the Senate Finance Committee, “Family First focuses on children right at the doorstep of foster care, and Title IV-B provides more flexibility for [s]tates to address issues at an earlier point and strengthen families who might be at risk.”187

Third, the overall institutional structure financing the family policing system creates tremendous administrative complexity that may prevent states from applying for FFPSA funding. FFPSA funding comes with reporting requirements. State child welfare agency directors have explained that the current family policing system’s federal funding structure—with different federal funding buckets accompanied by their own rigorous reporting requirements—is so complex that even small states have to hire twenty administrative personnel just to manage the federal financing and reporting requirements for all of the various streams of funding for family services.188 This complexity adds to the administrative burdens of an already-taxed system, and the siloing of budgets and social services makes it difficult for agencies to address upstream causes and prevent removal. In 2024, Senator Ron Wyden blamed the federal government for this administrative complexity, stating as part of a more extensive critique of the federal implementation of FFPSA: “[L]ast year, the federal government spent just $182 million on prevention services, while we spent over $4 billion on traditional foster care. Clearly priorities are out of whack. The government can and must do better to get this funding out the door to states that ask for it.”189 In sum, the administrative complexity may be preventing states from accessing FFPSA funds, which would provide an alternative to removal—leaving states to resort to their family policing functions.

Fourth, numerous stakeholders have explained that satisfying the rigorous requirements to receive confirmation that an intervention is “evidence-based,” and thus eligible for FFPSA funds, is time-intensive and costly. They have also described how the approval process is arduous and opaque.190 Based on communications between Congress and the Secretary of Health and Human Services (HHS), which Congress tasked with implementing the Act, members of Congress have argued that HHS has treated the legislative requirement that FFPSA fund only evidence-based programs as including a need for a rigorous, “academic” evaluation of each program.191 Congress has stated that HHS has frequently made decisions without communicating with study authors.192

This has led to HHS approving only a “relatively small number of interventions” for states to choose from.193 Even after interventions are cleared as fulfilling the arduous requirements of being “evidence-based,” many of these interventions may not be available in states because they are relatively new.194 HHS’s narrow interpretation of “evidence-based” means states must invest in the start-up costs of developing interventions from the ground up.195

Finally, a critique absent from the congressional discourse is that FFPSA leaves the current family policing system intact, including the expansion of reporting requirements for infants exposed to substances in utero. Miriam Mack, Policy Director of the Bronx Defenders’ Family Defense Practice, has written that FFPSA “in no way challenges the fundamental pillars upon which the family regulation system rests.”196 FFPSA does not fully separate the family policing system from its roots in centuries of institutionalization of racism and classism, reviewed in depth in Part II of this Essay. FFPSA continues to allow states wide latitude in defining child maltreatment, or the imminent risk of child maltreatment, as including parental drug use alone—rather than requiring states to demonstrate the risk of actual harm to the child resulting from that substance use.197 Some states, like Colorado, have explicitly stated in their substance legalization laws that possession or use of certain substances does not constitute child abuse or neglect unless it threatens the health or welfare of the child.198 Other states, like Michigan, have issued regulatory guidance stating that parental substance use alone does not meet the definition of child maltreatment.199 Yet despite these positive trends in some states, state legislatures continue to propose laws that would add parental substance use to definitions of child maltreatment.200

Moreover, agencies continue to remove children for parental drug use, often when it occurs in utero. FFPSA does nothing to address the punitive responses adopted by many states in addressing perinatal or maternal substance use. This continues despite evidence that these types of policies do not address either the underlying substance use or the potential risk of harm to the child—and could even make the problem worse.201

While FFPSA is an important step in permitting states to engage in family preservation activities for parents who use substances, it falls short of addressing the centuries of institutionalization of family policing and surveillance, which continue to shape the practices of local agencies responding to complaints of parental substance use. To actualize the goals of the drafters of FFPSA, we must interrogate the current system.

III. the path forward

In this Essay, we have outlined in detail both the deeply embedded structural problems with the current family policing model, including its longstanding focus on punishing parents deemed “undeserving,” and how federal legislation has further institutionalized this punitive approach in addressing problems that may be exacerbated by parental substance use. While FFPSA funding allocations for prevention services and substance use treatment that prioritize keeping children with their parents are commendable, the implementation barriers discussed above bolster the claims of scholars, advocates, and impacted families who are calling for the abolition of family policing rather than its continued reform.202 In envisioning a path forward, we join and amplify that chorus.

Family policing is not built to help families, particularly those with parents who use substances.203 As abolitionist lawyer and organizer Andrea J. Ritchie writes in Practicing New Worlds: Abolition and Emergent Strategies, “We can’t continue to organize in ways that replicate and legitimize the systems we are seeking to dismantle.”204 Thus, she explains, abolition is as much about envisioning and creating the world we wish to live in as it is about dismantling oppressive systems.205 Renowned activist and scholar Angela Y. Davis has explained that abolition “is not only, or not even primarily, about . . . a negative process of tearing down, but it is also about building up, about creating new institutions.”206 Accordingly, the remainder of this Essay is devoted to laying out a set of principled “non-reformist reforms”207 that should guide future policymaking to provide support and care to families with parents who use substances, rather than surveil and punish those families. Non-reformist reforms, as abolitionist scholar Ruth Wilson Gilmore has described, are “changes that, at the end of the day, unravel rather than widen the net of social control through criminalization[.]”208 These suggestions are not meant to be exhaustive, in part because, in the practice of abolitionism, the families most impacted by family policing must lead the way in designing the future path.

A. Families Are Calling for Abolition: Listen to Them!

A burgeoning movement of families impacted by the family policing system is calling for a radical reimagination of safety for families—namely, through the abolition of the family policing system.209 These families, including parents and (former) youth who have lived experience with the family policing system, are calling attention to the many harms perpetrated by the system, particularly for Black and Indigenous families.210 Although the family policing system is premised on the narrative that state intervention is benevolent and necessary for the care and protection of children, these families’ experiences underscore the many myths that are woven into the law, policy, and practice of family policing.211 Not only must states listen to families’ narratives, but the very families most impacted by family policing must help design new approaches that support families with parents who use substances. Some of the approaches to community care already identified by families most impacted are named below.

B. Decouple Access to Services from Family Policing and End Mandatory Reporting of Substance Use During Pregnancy

As discussed above, the current policy framework—as articulated by FFPSA and related federal and state family policing law—requires parents who use substances to engage, or risk engagement with, the family policing system to access help and treatment. Doing so comes at significant risk of mandatory reporting and family separation, and as a result, disincentivizes seeking help and care.212 Further, mandated reporting requirements for suspicions of infant exposure to substances in utero disincentivize pregnant persons who use substances from seeking both treatment for SUD and prenatal care.213 Parents who use substances need a way to access care that does not result in the punishment inherent in the family policing system. To meet that need, the state should provide parents with ways of accessing medical care, SUD treatment, and harm reduction services that do not automatically trigger mandatory reporting and possible family separation. For example, the Family-Based Recovery model includes “[i]n-home treatment that provides concurrent psychotherapy, substance use treatment and parent-child dyadic therapy.”214 Models like these offer evidence-based and effective alternatives to family separation.

Research shows that both parents who use substances and their children thrive when they are able to stay together while the parent receives treatment for their substance use.215 Rather than funneling federal money to the states via the family policing system and conditioning access to treatment on a finding of imminent risk of harm, funding should go to flexible, evidence-based treatment that prioritizes family stability and integrity and addresses the upstream causes of substance use and child maltreatment.

Ending mandatory reporting would make a significant difference in substance-using parents’ ability to access treatment. Since CAPTA’s inception, its requirements—especially its mandatory reporting provisions—have been a primary driver of family separation. Many have called for the end of this practice.216 As scholars and advocates have documented, because of the structural racism embedded in family policing, Black and Indigenous families are more likely to be reported and more likely to be separated as a result of family policing intervention.217 The racialized enforcement of the war on drugs further compounds these racial disparities. As explained in Part II, mandatory reporting can deter parents from accessing help and treatment.218 Ending mandatory reporting would focus service providers’ efforts on providing assistance and care to families, rather than acting as agents of family policing surveillance.219 As Joyce McMillan, who founded the New York City-based organization JMac for Families, has argued, we should have mandated support instead of mandatory reporting.220 Such an approach would permit parents who use substances to seek care, treatment, and other support without the very real risk of family policing involvement and family separation.

C. Prohibit the Use of Federal Funds to Pay for Removals and Neglect Findings Based Solely on Substance Use

As noted above, CAPTA creates a floor for states to define neglect, but it permits states to drastically expand their definitions of neglect—which they have done.221 Just as poverty should not be the basis for a finding of neglect, so too substance use should not be a per se basis for a finding of neglect. Most parents who use substances can safely care for their children. Congress should amend federal laws to reflect that reality. As previously discussed, the availability of federal funds to pay for foster care services dramatically shaped state behaviors in terms of prioritizing removal and foster-care placement as the appropriate response. By amending CAPTA to exclude federal funding for removals and foster care in cases with findings of neglect based solely on evidence of parental substance use, Congress can incentivize states to change their definitions of child maltreatment without infringing on states’ police powers.

Conclusion

As detailed throughout this Essay, there are numerous institutional and organizational barriers embedded in the family policing system that prevent it from being a source of meaningful help or care to families with parents who use substances. Reform efforts cannot overcome the impact of these institutional and organizational barriers. The failure of FFPSA and other piecemeal reforms demonstrates the family policing system’s inability to shed its institutional commitment to the punishment and surveillance of families.

The current family policing system does not work. Rather than institutionalizing existing approaches to substance use within the family policing system, we must pursue a new, family-centered approach that centers the lived experience of parents who use substances and is rooted in evidence—not in stigmatizing narratives and a desire to moralize and control. If we do not change our approach, we will continue to witness the impacts of an ineffective, costly, and inefficient system of family policing that harms families more than it helps them.

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Dr. Taleed El-Sabawi is Assistant Professor of Law, Wayne State University, School of Law. Dr. El-Sabawi is supported by the National Institute of Health, National Institute of Drug Abuse, Grant No. 1K01DA057414-01A1. Professor Sarah Katz is Clinical Professor of Law, Temple University Beasley School of Law and Senior Fellow, Stoneleigh Foundation. The content is solely the responsibility of the authors and does not necessarily represent the official views of the National Institutes of Health or the Stoneleigh Foundation. The authors are grateful for the able research assistance of Anna Manu Fineanganofo, J.D. Expected, May 2025, Temple University Beasley School of Law.