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Excerpted From: Eliana Schachter and Elizabeth Kroll, The Intergenerational Effects of the Child Welfare System and the Legal Obligation to Rectify Them, 19 Rutgers Journal of Law & Public Policy 211 (Spring, 2022) (140 Footnotes) (Full Document)


childwelfareThe American Association of Pediatrics asserted that separating a child from her family “can cause irreparable harm, disrupting a child's brain architecture and affecting his or her short- and long-term health. This type of prolonged exposure to serious stress--known as toxic stress--can carry lifelong consequences for children.” Further, of the children who experience foster care, about forty percent of their mothers have a personal history of child welfare involvement. The current child welfare system is creating a destructive cycle where children are removed from their parents and placed in foster care, allegedly to save them from abuse or neglect. However, the indirect abuse and neglect that the system itself can cause are long-lasting and far-reaching; not only to the child that was in the system but potentially to the children of that child. While the assertions and suggestions in this article apply to all current and former foster youth, there is a heightened need to address the harms that manifest in foster alumni as parents because of the probability that those harms will impact a second generation. Part II of this essay will discuss the origins of the foster care system as a government association. Part III will address the psychological effects on foster children who become mothers and on the children of those mothers. Part IV will argue the legal necessity for the State to make efforts to rectify this harm under a theory of prevention and tort liability. Finally, Part V of this essay will pose a possible plan of action to rectify the harm that the child welfare system causes to both mothers and children.

[. . .]

The child welfare system is not fully broken, but flawed, with gaping holes into which thousands of Americans fall each year. Recently, there have been calls to fully abolish the child welfare system. Our final proposition does not go so far as to eradicate the system, but instead to extend it to resemble a dual child-maternal welfare system or a “family-based” system. A child welfare system and maternal welfare system are inextricably intertwined, and the approach taken until now, to address the needs of the child independent from the mother who should be, but is not, providing those needs, has created an ineffective and fragmented system.

In creating this child-maternal welfare system, we can take direction from the Tipat Chalov centers, a common service provider in Israel. Tipat Chalov centers are located throughout the state of Israel and are operated by health bureaus that provide physical health and mental health services to pre and postpartum women and their youth. These clinics are staffed by public health nurses as well as physicians, dieticians, health consultants, and social workers. These clinics are easily accessible and counteract many of the barriers to treatment that this population faces, such as lack of detection, hesitation of parents to seek out treatment, and structural failings and systematic inequality with unaddressed ramifications.

Until now, the child welfare system has “err[ed] on the side of removal” to the detriment of American children and families. To address the needs of the community, instead of punishing parents when those needs are not met, we propose a more permanent and intensive version of Tipat Cholov centers; women's clinics that provide physical health and evidence-based mental health services and are maintained and funded by welfare and federal funds. These clinics can provide a community of support and services that parents and children will not be afraid to ask for and utilize. By making these centers easily accessible and community-based, we can remove the stigma and shame that often accompany a parent seeking help from the child welfare system. Services provided will teach the aged-out generation how to be strong, independent, functional adults, and these services can be provided before a familial situation gets dire enough that removal is necessary. These services will also be goal-oriented towards leveling the playing field for underprivileged and undereducated parents through services, counseling, and financial aid. They will provide the education and direction that these mothers did not get in their youth, as most do, because of their traumatic and tumultuous history in the system. Access to this education and these services, without fear of legal ramifications but with community support, can lower the number of teenage pregnancies among foster children and decrease the prevalence of psychopathology among all child welfare system participants. These clinics, with evidence-based psychological treatment and other statistically and scientifically effective services, will provide what the child welfare system has, until now, left its wards missing: psychological health, adult skills, and parenting support.

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