October 25, 2011 Articles

Protecting Mothers Against Gender-Plus Bias: Part 1

By Diane L. Redleaf

The Chicago, Illinois-based Family Defense Center is a public-interest legal advocacy center that serves families involved in the child-welfare system. The Family Defense Center focuses primarily on wrongly accused family members who have come to the attention of child-welfare authorities due to a recent hotline report of abuse and neglect. The Family Defense Center provides legal services on a self-referral, merits-screening basis (i.e., not as appointed counsel) to family members without regard to gender or family status. It represents caregivers who may be mothers, grandmothers, foster parents, child-care workers, fathers, intact married or unmarried couples, or even siblings or other household members of an alleged child victim. But while the Family Defense Center provides representation to family members generally, the substantial majority of the Family Defense Center's clients are mothers. The Family Defense Center's staff has found that much of the child-protection system's intervention concerning these mothers seems grossly inappropriate and unfair, leading to the extreme harm of family separation or threatened separation of children from their primary caregiver (their mother) and severely impacting mothers' abilities to support themselves and their children.

The Family Defense Center's observation that mothers are particularly at risk of losing custody and being mislabeled as child abusers or neglecters, through no genuine fault or action worthy of that label, led the Family Defense Center to develop the Mothers' Defense Education and Advocacy Project (Mothers' Defense Project).

The unfairness we have observed is not obvious simply from the disproportionate impact of child protection intervention on mothers. Mothers continue to be children's primary caregivers. It therefore stands to reason that genuine concerns about child safety would make mothers targets of child protection intervention more often than fathers or other male caregivers. At first, for this very reason, the Family Defense Center found it difficult to pinpoint gender bias when the Department of Children and Family Services (DCFS) intervened against mothers. As the project has unfolded, however, and as the categories of cases affecting mothers disproportionately have become better defined, a clearer case for genuine gender discrimination has emerged.

The discrimination we have observed can be fairly described as "gender-plus" discrimination. The mothers we represent are subjected to a high risk of losing custody of their children and suffering impairments to their career opportunities solely or principally because they are female parents (mothers) who fall into an additional highly gender-specific category, such as being a victim of domestic violence or having depression, including postpartum depression.

To see how gender discrimination operates in the Mothers' Defense Project cases at the Family Defense Center, consider the differences between a typical Family Defense Center's case that involves allegations against an intact couple and a typical case involving allegations against a single mother in one of the four Mothers' Defense categories. (Part 2 of this article will discuss the four categories in detail, with case examples.) In the Family Defense Center's typical bone fracture/physical abuse allegation case, there is a clear-cut alleged harm (i.e., the fracture) brought to the attention of child-welfare authorities due to a call by a professional who lacks a bias against the parents, and the Hotline call was made because the injury requires explanation and accountability; and, often, a straightforward defense, such as an explanation that the injury was accidental, that there is an underlying medical condition that led to the injury, or that another person outside the family caused the injury to the child. The cases involving allegations of physical abuse that come to the Family Defense Center's attention tend not to be gender-specific; the client to be defended from an erroneous allegation may be a mother, a father, both parents, another household member or caregiver, or all of the above. In these cases, the Family Defense Center has worked with leading Chicago-area orthopedists to establish that assumptions that child abuse must have caused the injury are generally erroneous, and the Family Defense Center has often prevailed in exonerating a wrongly accused parent. See Family Defender, Vol. 9 (Spring-Summer 2010).

A typical case against a mother in the Family Defense Center's caseload, by contrast, generally involves a vague allegation of neglect, such as an allegation that the mother caused a "substantial risk of harm—injurious environment." In these cases, which make up not only a sizeable percentage of our caseloads, but also a sizeable share of the child-welfare system in Illinois as a whole, 38 percent of allegations involve a claim of risk of harm in the future rather than any specific actual claim of harm. Commonly, hotline calls alleging these grounds often come from former or estranged spouses, combative family members, hostile neighbors, or anonymous callers who have a potential for bias or a personal agenda motivating the call.

The defense to these allegations can be difficult to formulate precisely because the allegation against the mother is so open-ended. The legal defense generally requires demonstrating that the mother is a good parent. As feminist child-welfare scholar Professor Annette Appell has observed regarding poor and minority female-headed families, "Removing children from their families runs counter to what the dominant culture knows about its own families, which despite their failings are viable and worthy of respect." A possible explanation is that:

other families are not viewed as "real families" . . . particularly when they are of color. . . . Just as these families are not families, these mothers are not really mothers. They deviate from the normative notions of mother and womanhood and are defined as bad. The result is an often punitive, rather than empowering, system focused more on mothers than on their children . . . and expand[ing] the scope of state intervention beyond child protection into every realm of mothers' lives in the name of making them good mothers.

A. Appell, "Protecting Children or Punishing Mother: Gender, Race and Class in the Child Protection System (An Essay)," 48 S.C.L.Rev. 578 (1997).

Because of the already-heightened scrutiny applied to mothers in the child-welfare system, mothers who cannot prove they are a supermom will often find that the nebulous charge of causing "risk" sticks.

These very amorphous cases, in which real evidence that the mother has harmed the child is lacking and yet the case is remarkably hard to defend against, are almost exclusively brought against mothers only. Indeed, in many cases we have handled, when "environmental injurious" allegations have been made against fathers or male partners, it is because the male has acted in some concrete fashion to cause a harm, such as beating the mother. When the mother is beaten herself and did nothing obvious to "cause" that harm, she nevertheless is often viewed by the child-welfare system as a perpetrator of child neglect purely because of her status as a victim and not because of any actions she took in directly harming a child. The Family Defense Center has had numerous cases in which mothers have been labeled "neglectful" for causing "risk" when they have been the sole victim in the home, including when their infants have been asleep in another room through the entire domestic-violence incident.

Clearly, there is something grossly unfair about any system that arbitrarily or discriminatorily impairs the rights of large classes of parents, or forces them without good cause to defend their parental rights and their rights to pursue careers (because being labeled a child abuser or neglector even for a vaguely defined allegation can blacklist mothers from working with children. See D. Redleaf and S. Pick, "Challenging a Listing in a Child Abuse Registry," Children's Rights, Vol. 12, Issue 4 (Summer 2010) and Vol. 13 Issue 1 (Fall 2010)). Pinpointing the causes of that unfairness, however, requires closer analysis of the cases, the allegations, and the defenses available to mothers who find themselves the target of a hotline call that seems peculiarly gender-specific.

Framing the Mothers' Defense Project
The Family Defense Center decided to enlist Northwestern University Law School Professor Dorothy Roberts, one of our own national advisors who has written extensively about gender and race bias in the child-welfare system, to help us explain the treatment of the mothers we observed in our caseloads. Professor Roberts noted pervasive differences, especially in criminal law, in holding mothers accountable for the acts of others, while fathers and males are generally held accountable only for their own actions. Professor Roberts also found that there are often much sharper penalties for mothers than for fathers for "failure to act" when it comes to their children. Indeed, as Professor Roberts has written, there were no examples in the law she could locate in which fathers are criminally charged for failing to protect their children from the actions of others, while such cases involving mothers were commonplace. D. Roberts, "Motherhood and Crime," 79 Iowa L. Rev. 95(1993)).

The bias of criminal law against mothers is of grave concern, of course, but it is not our agency's focus; the child-welfare system is. And, unlike in the criminal system, our own clients face allegations even if there is no actual child victim and only an allegation of future "risk." Given the very low burden of proof in the child-welfare system (i.e., in juvenile court and in administrative registry determinations), clients who have several demographic strikes against them (race, class, and gender) are at especially high risk of losing their children to the child-welfare system and being labeled child abusers or neglectors (with severe consequences for their own careers as well as their family lives) without strong evidence of wrongdoing. Indeed, we have found that when mothers fall into multiple intersecting categories, they are treated with reduced deference by authorities. In these cases, given the high degree of discretion given to child-welfare authorities to determine "risk" to the child, simply being the female parent and being in a further highly gendered category, such as being a domestic violence victim or in a relationship with a "risky partner," can lead to mothers' loss of custody, absent actual wrongdoing toward a child. See Kimberle Crenshaw, "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics," University of Chicago Legal Forum 1989, 139–67). In these cases, being a member of a disfavored subclass of caregivers effectively substitutes for any requirement of specific evidence of committing child abuse or child neglect.

After meeting with Professor Roberts in the spring of 2009, the Family Defense Center staff examined its own caseloads more carefully. We began to define, identify, and categorize cases that appeared to single out mothers. We formulated four categories of cases in which we believed mothers were subjected to unfair, gender-biased assumptions:

  • mothers who are domestic violence victims;
  • mothers who have mental-health conditions, especially depression, including postpartum depression;
  • mothers who are non-offending parents and/or in relationships with offending or "risky" partners; and
  • mothers in extreme poverty due to the feminization of poverty.

We also began to collect gender-related statistics for the child-welfare system as a whole through Freedom of Information Act requests and other research, looking to see if the patterns in our own cases were mirrored in reported statistics.

While governmental statistics are not generally kept in exactly the same categories as our Mothers' Defense cases and reported categories of abuse and neglect allegations are not always teased out by gender and parenting status, we found some confirming data as to the prevalence of cases against mothers. In Illinois in 2010, parents were overwhelming indicated as abuse or neglect perpetrators. (Seventy-six percent of alleged reported harms involve parents and guardians, not other caregivers.) However, of these parental cases, 60.5 percent of reports were made against mothers compared to just 27 percent of reports being made against fathers. DCFS statistics also showed that in Illinois in 2010, sexual abuse, physical abuse, and child death made up 16.5 percent of the harms against children. The remaining 83.5 percent of harms against children are identified as "injurious environment" or other forms of neglect (in the categories of "blatant disregard," environmental neglect, lack of health care, lack of supervision, and other risk of harm). Child Abuse and Neglect Statistics, 2010, Illinois Department of Children and Family Services, January 2011 and responses to Freedom of Information Act requests. These neglect categories are the amorphous ones that allow substantial discretion in investigators to determine culpability. Mothers are indicated as perpetrators in sexual abuse, physical abuse, or death significantly less often than fathers, while in the amorphous categories of risk and environmental neglect, mothers are indicated more frequently than fathers.

The disparities we see in our own caseloads and in state and national statistics suggest that "gender-plus" discrimination against mothers is occurring. See, e.g., Weinberger v. Wiesenfeld, 420 U.S.636 (1975)(holding that a statute treating widowers less favorably than widows (sex plus martial status discrimination) violates the Equal Protection Clause of the 14th Amendment); Bach v Hastings-on-Hudson Union School Dist, 365 F.3d 107 (2d Cir. 2004). (discussing "gender-plus" description as an alternative manner of describing impermissible sex stereotypes such as assumptions that mothers with young children will be less committed to the workplace). Mothers who fall within one of the specialized Mothers' Defense subcategories appear to be at significantly heightened risk for facing restrictions on their custodial rights and being pejoratively labeled as a child neglector based on membership in the gender-plus category alone, regardless of the facts of their own particular care and their actual care of their child. That is a form of gender discrimination.

Legal Strategies for System Reform
The Mothers' Defense Project's case analysis and overarching approach was only very recently developed, and it is still an ongoing process. The gender-plus discrimination analysis is our current theory that best accounts for the treatment of the Mothers' Defense Project clients. If applied to child-welfare cases more generally, this analysis of the operation of gender-plus bias in the child-welfare system may provide a new and potentially powerful tool informing the understanding of the unfairness of the child-welfare system. This understanding could change the way many child and family advocates and service providers, along with decision-makers and the general public, see mothers who are brought into the child-welfare system.

As we know from years of efforts to gain support for our work in the larger community, many people shy away from providing assistance to families in the system due to concerns that proffered help—including grant support, pro bono legal services, and other very tangible forms of aid—is going to "bad" parents who "deserve" to lose their children. But through the revelation that the system operates with unacceptable gender biases, incorrect stereotypes, and gender-plus discrimination, mothers who are caught up in the system through no fault of their own may gain new supporters. This may help advocates in turn to develop new, effective strategies to reform policies and practices that disadvantage mothers and harm the mother-child bond.

To make the system fairer to all parents and allchildren, policies that seem neutral must be reexamined in light of their primary use against mothers based on their status and not based on their actions as parents. Only if cases against mothers are fairly judged on the facts and not based on stereotypes and presumptions will children be protected from the loss of their closest familial bond—the mother-child bond.

Contrary to much of the accepted juvenile court lore, actual neglect and actual abuse can be defined with greater specificity than many state statutes provide, and the failure to define "neglect" carefully so as to focus on parental conduct or omissions rather than the parent's status operates to mothers' and children's detriment. See Slater v. Dep't of Children and Family Servs., 2011 Ill. App. LEXIS 642 (June 17, 2011) (finding that a momentary lapse of attention by a mother did not meet the statutory neglect definition). By contrast, child-welfare systems' reliance on vague "risk" language and other proxies for adjudication of actual harm to children, like describing the mother as a "domestic-violence victim" or a "depressed mother," does not establish the level of harm that a fair adjudication requires. When mothers who have done nothing wrong are labeled as neglecters due to "risk" based on gender classifications alone, tolerance for imprecision in the legal definition encourages a serious form of gender discrimination that allows mother-child bonds to be shattered with impunity.

Challenges to this form of overreaching by the child welfare system are already underway in recent litigation in Illinois. Indeed, the ground of "substantial risk—environment injurious" is being challenged in a recent Family Defense Center pro bono case argued by Jenner and Block attorney Michael Otto. In Quinn v. IDCFS, No. 2-10-0643, we are arguing that DCFS's continued use of the "substantial risk—environment injurious" allegation violates the Illinois child-abuse-reporting law, insofar as the Illinois General Assembly already recognized the vagueness of this ground and removed it from the statute. While gender-plus-discrimination arguments were not raised in the Quinn case, the lack of legal authority for DCFS to operate under the sweeping category of "environment injurious" has been argued in this case and several others, each of which has involved mothers (most of whom were domestic-violence victims).

Policies and practices separating mothers and children due to domestic violence against mothers and the labeling of mothers as neglectful solely because they are victims have also been successfully challenged in the class action Nicholson v. Scoppetta, 344 F.3d 154 (2nd Cir. 2003). In Chicago and elsewhere, arguments based on Nicholson's holding that being a victim of domestic violence is not per se neglect and that it is unconstitutional to remove a child from a mother/victim without additional grounds of harm specific to her own conduct are actively being pressed by mothers' defenders.

Head-on challenges to the discriminatory treatment of mothers in the child-welfare system may be difficult, especially given recent decisions that limit the availability of class-action remedies in circumstances where individual discretionary judgments are permitted or required. See Wal-Mart Stores v. Dukes, 180 L. Ed. 2d 374 (March 29, 2011). Moreover, there is no statutory provision akin to Title VII that mothers can invoke to challenge the application of the gendered categories and stereotypes at work in the child-welfare system.

Nevertheless, by understanding that there is real gender discrimination at work in the child-welfare system's treatment of mothers, much stronger links between the issues affecting mothers in the child-welfare system and the treatment of poor, single-headed households, primarily headed by women, can lead to vastly more effective advocacy for child-welfare reform. Once the operation of gender-plus discrimination in the child-welfare system is better understood, the status quo acceptance of misplaced accusations and the continued assault on mothers will simply have to end. Depriving children of the care of their mothers is an extremely harmful practice, and if the deprivation rests on bias and not evidence, it should not and cannot be tolerated.

Keywords: litigation, children's rights, gender-plus bias, Family Defense Center, Mother's Defense Project, child welfare

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Diane L. Redleaf — October 25, 2011