Invisible and Ignored: LGBT Parents in the Child Welfare System

 
mother article
 

By the time 21-year-old Annie realized that she was attracted to women, she had endured nine years in an abusive relationship with Trent, a man more than twice her age who encouraged her heavy marijuana use.  Annie tried to leave Trent several times, but she had no independent income or family support for her and her four children.  One day, she went out on a trip against Trent’s wishes. Trent retaliated by calling Child Protective Services and reporting that Annie had abandoned her children.  So began Annie’s involvement with the child welfare system.

Annie fought hard to get her children back.  She went to classes, established a drug-free lifestyle, kept a job, attended therapy sessions, and created a healthy relationship with a woman partner. Her caseworker agreed that the goal was family reunification. Her therapy focused on dealing with her long and early history of childhood sexual abuse and her process of coming out as a lesbian.

Then, while treating a toothache with pain medication, a drug test came back showing “dirty urine” and Annie relapsed. A new caseworker came on the scene and changed course entirely. Against the recommendation of the family therapist and the lawyer for the children, the state moved for termination of parental rights, which the court granted.

It’s likely Annie’s children should not have been removed in the first place, but, even if initial removal is justifiable, reunification of parents and children is the first goal.  Consider the story of Hilda, who also lost her parental rights.  Hilda’s children entered state care after her partner injured one of the children while Hilda was at work. The federally-mandated family reunification efforts were provided by St. Francis Community Services, a faith-based agency under contract with the state. Hilda testified that a caseworker asked her if she would ever go back to “loving a man” and told her she needed to be “fixed” so that she did not pass her same-sex “preference” on to her children. At no point did the agency deny those statements. Hilda complained about the agency bias. The appellate court upholding the termination made no reference in its opinion to Hilda’s testimony about what agency personnel said to her about her sexual orientation.

These are lesbian mothers. They are not the lesbian mothers whose narratives occupy most legal scholarship, public policy advocacy, test case litigation, or media portrayals of same-sex couples raising children.  They are mothers with same-sex partners whose children have been removed by the child welfare system, a system stacked against poor families and infused with structural racism.

According to one study of Black mothers who had lost custody of their children to the state, those who identified as lesbian or bisexual were four times more likely than those who identified as heterosexual to experience such loss. Parents with higher rates of poverty, homelessness, food insecurity and incarceration are more likely to face removal of their children, and LGBT individuals and same-sex couples fall into all those categories. Thus, it would be no surprise to find children of lesbian or bisexual mothers, particularly Black children, overrepresented in the foster care system.  The overrepresentation of Black children in the child welfare system has been comprehensively documented for almost 20 years, a consequence of underlying racism described extensively by law professor Dorothy Roberts in her study, Shattered Bonds: The Color of Child Welfare.

 

This group of poor sexual minority parents and their children should stand at the center of our agenda for LGBT families.  These steps are just a beginning.

 

To date, LGBT advocacy has addressed only two aspects of the child welfare system: the licensing of LGBT individuals and same-sex couples as foster and adoptive parents, and appropriate placements and services for LGBT youth in foster care.  Parents like Annie and Hilda have remained invisible.  The needs of their children have been ignored. It’s time for that to end.

In a longer paper, I provide further detail for the following proposed solutions:

  • Oppose attacks to the social safety net and acknowledge the cruel malfunctions of the child welfare system. Poor biological parents face numerous systemic impediments to keeping their families intact, such as the state’s failure to provide legally-mandated services to prevent the removal of children; lack of adequate mental health and substance abuse treatment facilities and unrealistic timeframes for rehabilitation; insufficient reunification efforts; requirements for reunification that are inappropriate or that fail to account for the absence of paid leave, safe and affordable housing, and public transportation; and monetary incentives for states to place children for adoption rather than return them to their parents.
     
  • Focus data collection efforts on the most vulnerable LGBT populations.  Thanks to an Obama-era regulation, states will soon be required to collect data on the sexual orientation of youth who enter foster care and those who apply to be foster and adoptive parents.  LGBT advocacy groups lobbied heavily for this regulation, but did not ask that agencies collect data on the sexual orientation of the parents whose children are removed.  Such a blatant failure to see a population of LGBT parents should never be repeated. Researchers who focus on LGBT families can pair with researchers who focus on parents in the child welfare system to increase our qualitative and quantitative knowledge base.
     
  • Immediately integrate low-income LGBT parents into existing family equality campaigns. LGBT advocacy and litigation groups do not need to wait for more research.  They can right now take a number of steps to serve this population.  The first critical step is simply identifying this cohort of LGBT parents as a constituency they serve and including them in action plans and priorities. For example, the Human Rights Campaign can expand its existing All Children All Families Project to encompass these children and these families.
     
  • Oppose allowing agencies that refuse to license LGBT foster or adoptive parents to manage the cases of children in foster care whose parents are LGBT.   Agency bias should not be permitted to thwart reunification of children with their LGBT parents. LGBT organizations are already fighting discrimination by these agencies, and they should make this explicit demand part of their work.
     
  • Create working relationships between family defense attorneys and LGBT advocacy groups to better understand where advocacy is needed. Work together to educate caseworkers, judges, and lawyers in state agencies and courts who interact with LGBT families. For example, it is imperative that these individuals recognize when the biological mother’s same-sex partner or former partner is also a legal parent.
     
  • Incorporate a racial justice analysis into all work. LGBT advocacy should not replicate systemic oppression, rendering invisible the low-income communities of color whose families are being torn apart by the state. 

This group of poor sexual minority parents and their children should stand at the center of our agenda for LGBT families.  These steps are just a beginning.

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Written by:

Nancy D. Polikoff,
Professor of Law, American University Washington College of Law,
Visiting Scholar, Williams Institute, UCLA School of Law