Print Post
  • In his new book, James Dwyer contends that children must “not begin life legally tethered to or in the custody of dysfunctional people living in horrible neighborhoods.” Tweet This
  • In any children's rights proposal, some room needs to be made for a child’s interest in and natural desires for a link to his or her biological family. Tweet This

James Dwyer, a well-respected law professor and children’s rights specialist, has written a provocative book about what he thinks it might take to effectively ameliorate the lives of the poorest children and the racism that continues to affect black Americans of all socioeconomic groups. His book, Liberal Child Welfare Policy and its Destruction of Black Livesis the fruit of an academic career that has produced a significant body of scholarship considering both the welfare of children and situations wherein parents and children’s interests conflict. He applies his proposed solutions to families of every race, but in this book, he documents empirically that they will affect a higher percentage of black Americans who are more likely to be poor. His well-sourced demographic portrait of the poorest black Americans’ homes and neighborhoods—plagued by violence, stress, health crises, fatherlessness, family complexity often including step-siblings and unrelated adult males, gangs, chaotic schools, unemployment, and substance abuse—is unstinting and overwhelming.  

Dwyer’s conclusions flow from a variety of premises that are well-acknowledged by many family scholars. These include: that poverty and family dysfunction have intergenerational effects; that neighborhoods affect child outcomes; that early childhood experiences can determine later opportunities; that government programs intended to assist the poorest Americans are regularly ineffectual for various reasons, including their focus on intractable adult problems; that there is insufficient public and political interest in the poorest Americans; and that the country is not willing to spend dramatically more on these problems. 

But Dwyer is aware that no matter how well-accepted his premises are, his proposed solutions will be controversial, in no small part because he is assailing the continuation of policies that, he claims, “liberals promote and defend.” 

Here, I will attempt to briefly summarize two of his leading, and most controversial, recommendations. First, he recommends that the state should conduct a toxicology assessment of every newborn at birth to determine the presence of drugs and alcohol. He says the state should also scrutinize the available records pertaining to every biological parent to determine whether or not there are records of past behavior correlated with child maltreatment. While the biological parents remain the default legal parents, if an algorithm composed of these behaviors generates a prediction that the child is at high risk of maltreatment at the hands of the birth parent, the state should schedule a hearing to more fully examine the parent’s history and current circumstances, while the child is taken into state custody. During this custody, the child would be placed with a foster parent, with the state strongly preferring a foster placement with those who commit to adopt. One element of such a hearing includes consideration of the neighborhood in which the biological parent or parents live. If it manifests elements known to harm children’s development, it will count against placement with a parent who lives there. If a child comes into state custody after this hearing, the biological parent or parents have just six months to demonstrate the ability to care for the child, although even this will be constrained by the hearing’s determination that there are reasonable prospects of this occurring and that the parents have immediately demonstrated their intent to make a best effort. 

In short, Dwyer contends that children must “not begin life legally tethered to or in the custody of dysfunctional people living in horrible neighborhoods.”

Dwyer also claims that prior to a child’s seventh month, it is not highly important who provides his or her basic needs, so long as these needs are promptly and consistently met. After this period, on the other hand, it is important that the state not employ foster care and parent rehabilitation practices constantly disrupting the child’s attachment needs, and rather allow the child to stay with a parent or parents to whom he or she can securely attach. Again, as throughout the book, Dwyer emphasizes the priority of the child’s needs and timing. As part of this argument, Dwyer contends that there are a large number of available adoptive parents for newborns who would be removed from their biological families. He also claims that kin-care is not an effective large-scale answer for a wide variety of reasons. 

In support of his recommendations, and in order to characterize them as less controversial than they may at first appear, Dwyer makes two important moves. First, he argues that the state is profoundly morally and legally responsible for what becomes of the poorest children as a result of their families and neighborhoods, because it is the state that assigns legal parentage to a child’s biological progenitors, who also live in particular neighborhoods, some of which are plainly toxic to children. Second, he shows that there are many contexts in which the state already decides between better and worse custodial arrangements for children based upon predictions about a child’s future welfare in this or that home and neighborhood; he is simply arguing that the state should render such a judgment at birth. 

Furthermore, throughout the book, Professor Dwyer points out that neither the law nor liberals would require adults to endure legally-enforced relationships with persons or to live in neighborhoods that would certainly harm their prospects. They would never force an incompetent adult to have a legally appointed guardian who suffers drug addiction and lives in an extremely dangerous neighborhood. They would never insist that women suffering domestic violence remain in their situations during efforts to help their partners become less violent. Yet, he states, we leave children in dysfunctional homes while we insist—against volumes of experience—that we can change their parents and neighborhoods.

James Dwyer notes that there are many contexts in which the state already decides between better and worse custodial arrangements for children based upon predictions about a child’s future welfare; he is simply arguing that the state should render such a judgment at birth. 

Dwyer’s second major recommendation involves lawmakers generating algorithmic evaluations about which neighborhoods are categorically unsuitable for children—i.e. which neighborhoods are chaotic and dangerous because of a combination of factors that include, among other things, poverty, violence, gangs, substance abuse, vacant properties, single-parent households, unemployment, and poor school quality. Such neighborhoods would be zoned “adults-only,” and the government would provide assistance for relocation. He marshals an impressive array of recent studies showing either how neighborhoods possessing certain characteristics harm children, or that moving especially young children to better neighborhoods improves their life chances.  

At every step of his argument Dwyer—who self-identifies as a liberal—articulates the likely objections of progressive scholars and child-protection officials. He fully airs these objections and then offers a response. Summarized quite briefly, he writes that progressives fear that his policies will further demonize and demoralize black Americans, particularly the poorest. They will reprise awful historical episodes wherein children were forcibly removed from slaves and Native Americans. They will rip apart biological families and unglue black communities. They will legitimize eugenics. 

Dwyer responds to each point in far greater legal and empirical detail than can be described here. He documents the adult-centeredness of existing policies, and the inefficacy of programs hoping (he believes unrealistically) to alter entrenched adult problems over many years, all the while children are suffering. He proposes that some adult suffering is warranted in order to set the next generation on a more promising path and stop the flow of intergenerational family dysfunction, for a net benefit both for the black community and the future caseload and costs of child protective services. He also presents arguments for the constitutionality of each of his proposals. He also asserts that black Americans of every socioeconomic group will benefit when others no longer wrongly associate them with the violence of the poorest ghettos. He suggests that political conservatives, too, might be persuaded to support his ideas because they are not expensive and concern the welfare of blameless children.

There is a great deal to admire in Professor Dwyer’s book, particularly his passion for children’s rights, which is unassailable. He also provides well-sourced empirical arguments, demonstrates an encyclopedic knowledge of U.S. child-protection law, and willingly takes on the strongest forms of the social and constitutional arguments against his proposals, which remain powerful. 

However, there are a few additional elements constraining his proposals, which could benefit from additional reflection. First, while Professor Dwyer’s recommendations are undeniably logical given the widely-accepted premises on which he founds them, ironically, they may meet rejection largely because of the significant racial tensions existing today—tensions, he suggests, that his proposals would ameliorate. He is therefore likely correct when he writes at the end of his book that these proposals might meet a kinder reception if voiced by black Americans who have suffered the most under the current system.

Second, regarding his insistence on the government's responsibility to make radical changes because the state determines children’s parentage. This is tricky. On the one hand, the state’s assumption that biological parents have legal parenting rights is a form of state action. But on the other hand, it might be seen as a natural right that the state merely recognizes but does not invent. I say this not to adopt a “parents-first” perspective, but due to the fact that children would seem to possess a right to know and be known by their natural parents. I highlight this point, not only because this is part of U.S. family law, but also because I've recently experienced the re-connection of a family member who was placed for adoption over 40 years ago by one of my relatives. I have witnessed first-hand what it means to him to know his parents and his heritage. 

One sees this same dynamic play out in the thousands of children conceived by new technologies, who are searching intently for their biological parents. At the very least, then, a child’s wish and/or right to know his or her family might have to be factored into the equation. Would open adoption be part of the answer? Of course, a child’s interests might vary wildly with the level of dysfunction of his or her original family; it seems impossible to disagree with Dwyer on this. But in any children's rights proposal, some room needs to be made for a child’s interest in and natural desires for a link to his or her biological family.

Third, it is fair to ask whether there are genuinely enough adults in the U.S. willing to adopt the large number of minority newborns who might become available under his proposal. It is also fair to inquire further whether the literature on kin-care shows consequences as bleak as Dwyer describes.    

Professor Dwyer is correct that the current array of laws and policies designed to assist the poorest Americans are not working. He’s also right that the political will to undertake the expenses involved in making large structural changes does not currently exist. He is also undoubtedly correct about the cycle of problems disproportionately affecting black and lower-income Americans, and the need for the earliest possible interventions in the lives of children at the highest risk.

At the very least, therefore, his book shifts the burden of proof onto those who claim to care deeply about racial equality and poverty yet wish to continue with the status quo. This constituency will either have to acknowledge clearly that they are valuing adults’—or group-rights—over the rights of children, or that they have a better and more realistic proposal that does not involve new levels of state intrusion in order to give the poorest children new opportunities within healthier families and neighborhoods. 

Helen Alvare’ is a Professor of Law at George Mason University School of Law and the author of Putting Children’s Interests First in U.S. Family Law and Policy: With Power Comes Responsibility.