Articles like this one continue the verbal assault on the Trump Administration’s separation of children from adults when they cross our borders illegally (Detroit Free Press, 6/16/18). In this one, a University of Michigan law professor, Vivek Sankaran, reprises the usual talking points that rightly emphasize the trauma to children when the adults go to prison and the kids go either to detention or foster care. Unquestionably, the children suffer the same trauma that all kids do when they’re separated from their parents. These kids additionally suffer the pain of experiencing that in an unfamiliar place.
Sankaran goes a step further than previous articles to compare the Administration’s policy to that of CPS agencies. To put it mildly, he betrays little knowledge of how the child welfare system actually works. He knows the law well enough, but says nothing about the realities faced by children and parents when attempting to deal with CPS.
[F]ederal and state child welfare laws allow the government to remove children only as a last resort, when physical separation is necessary to assure their own safety.
Indeed, the laws state exactly that. The problem of course arises when caseworkers ignore the law as they routinely do. I can introduce Sankaran to countless parents who’ve had kids shanghaied by child welfare workers when they were in no danger whatsoever. Given that her case played out in Detroit and was reported on by both local papers, you’d think that Sankaran would have heard of Marianne Godboldo whose daughter was taken from her for no good reason, without a court hearing and without a valid order. The image of the SWAT team, replete with armored personnel carriers, that forcibly broke into Godboldo’s home, terrifying her daughter squares poorly with Sankaran’s sunny description of CPS.
Federal law requires child welfare agencies to make "reasonable efforts" to prevent kids from being removed from their parents. That may involve providing families with supports, or arranging for children to live informally with relatives while parents address their issues.
And yet again, the law is routinely ignored by caseworkers. Has Sankaran not read the Urban Institute’s white paper that found that, when children are taken from a mother, no effort was made to contact the father as a potential placement for the child in 55% of cases? I suppose not. Does he know that Governor Greg Abbott of Texas signed an executive order all but prohibiting the placement of children with their non-parental relatives? If he does, he carefully didn’t let on.
When child welfare agencies believe that a child faces extreme danger and must be removed, a court must review the agency’s decision, usually between 24 and 72 hours after the removal. And at that removal hearing, both children and parents are typically provided with an attorney, who can demand that the government produce evidence to justify the continued detention of the child.
Again, this is pure fantasy on Sankaran’s part. Those hearings often come much later than the 1 – 3 days he imagines and parents often have no attorney. When they do, the attorney is often provided by the state because the parents are indigent. That attorney has dozens of other cases and neither the time nor the resources to challenge the state’s case. The state’s request is typically rubberstamped by the judge in a hearing that may last as little as a few minutes. Sankaran paints a pretty picture of a process that has one and only one aim – to do what CPS wants. It’s more of a conveyor belt from home to foster care than due process of law.
In short, in order to make his case that the situation with foster kids compares favorably to that of immigrant kids, Sankaran is required to entirely misrepresent the reality of the child welfare system.
Meanwhile, he’s also required to avoid asking some very pertinent questions about our immigration laws and how they are/should be enforced. For example:
It is a violation of federal law for a person to attempt to enter this country without the requisite immigration documents. Should the Trump Administration simply ignore that law in order to keep adults and children together?
If Sankaran agrees that it’s required to enforce the law, what should be done with the child when an adult and child illegally enter the country? The adult is charged and jailed to await trial, so should the child go to jail with him/her?
The answer to that last question is “no,” because doing so would violate another federal law. So what should be done with the children? Should they be put on the street? Returned to their original country without their parents? The Administration is placing them with foster parents when possible, but often it’s not. There aren’t nearly enough foster parents for all the kids who need them, so what is the alternative? Needless to say, Sankaran has nothing to say on the subject, but of course if one is shaping immigration policy, ignoring the problem of what to do with the kids isn’t an option.
Then of course there’s another comparison that Sankaran carefully omitted. I refer of course to what happens every day in the United States and citizens who live here legally. When a parent commits a crime, is charged, convicted and sentenced to incarceration, what happens to the kids? They don’t go to prison with the parent for what should be obvious reasons. If there’s no one else to care for them, they go into foster care, often into a group home.
[P]lacing children in such conditions after separating them from their parents is perhaps the most toxic and cruel sanction a government can inflict on a child.
And yet we do it every day. Why? Because often there’s no alternative. The same is true in the case of the adults who cross our borders with kids, but without proper documentation.
There’s no shortage of people like Sankaran willing to inveigh against current policy, but again and again, they do so without asking, much less answering those questions. In the real world of actual public policy, that’s not an option.
And some like Sankaran do so by resort to misrepresenting our own child welfare system as some sort of Eden in which parents’ rights are never abused, only children who need it are placed in foster care and, when they are, it’s a safe haven and not the hell on earth so many kids describe.
The Trump Administration’s policy may or may not be the best available. And unquestionably the children suffer when they’re separated from their parents. But that isn’t the end of the inquiry. It’s easy to criticize, but far harder to craft sensible, effective policy that comports with existing law.