Thursday, December 14, 2017

A. Understanding Poverty

      As the cases reveal, many courts simply do not understand or delve into the causes of poverty and its multi-dimensional effects, and thereby conflate poverty with culpability. The prevailing explanation for poverty in the United States is that behavioral choices cause poverty. In this “culture of poverty” perspective, the poor make deficient choices that trap them in poverty. This “culture of poverty” theory meshes well with the American myth of the meritocracy, which holds that anyone can pull themselves up by their bootstraps with hard work and determination. The flipside of this myth is that a failure to thrive in a capitalist economy is equated with moral failings. A neglectful parent is thus doubly to blame--she has failed both to succeed economically in a merit-based system and as a parent. As Martin Guggenheim has stated, most observers see child neglect as a family defect, “with limited or nonexistent societal roots,” rather than a problem with societal roots. In light of this paradigm's focus on the individual, there is little call for collective responsibility or action to reduce poverty. Rather, this perspective “provides a justification for doing so little.”

      A countervailing narrative of poverty is that structural forces cause poverty. This structural explanation for poverty holds that the poor are subject to forces that limit their economic opportunities and trap them in the underclass. For instance, globalization, the weakening of unions, and economic shifts from a manufacturing base to a service economy have left people lacking advanced degrees behind. Likewise, the lack of a living wage, affordable housing, or child care, keeps even working adults trapped below the poverty line. In addition, a legacy of race discrimination in housing and the workplace, as well as the criminal justice system, keeps poor people of color isolated from the mainstream economy. Purely structural responses to poverty are few and far between, making the “poverty defense” in child neglect cases unique. Yet, structural explanations do not capture how individuals, living real lives, respond to and cope with these larger social and economic forces. For instance, a judge presiding over a child neglect case cannot ignore a hungry child because the local steel mill that formerly employed the parent has outsourced its work to China. The court must deal with the family before it.

      Accordingly, a more accurate conception of poverty places individual choices within a framework of structural factors. Sociologist William Julius Wilson, who focuses on low-income, urban, African American communities, first advanced this perspective. He acknowledges various social pathologies and dislocations within the underclass, such as crime, teenage pregnancy, and a rise in single-mother families; however, he places these trends within a broader social context. People who grow up in racially segregated, poor neighborhoods develop coping mechanisms and responses that “emerge[] from patterns of racial exclusion” and that ultimately limit social mobility. While conservative theorists blame the poor for making bad choices, Wilson explains that “structural factors are likely to play a far greater role than cultural factors in bringing about rapid neighborhood change.” For instance, when the economy is strong, concentrated poverty and its associated pathologies decrease and vice versa. If culture were as determinative as conservative theorists posit, increased economic opportunity would not have such a great impact in transforming poor communities. In short, “[c]ulture mediates the impact of structural forces such as racial segregation and poverty,” and the resultant behavior “often reinforces the very conditions that have emerged from structural inequities.” Of course, structural factors combined with personal choices determine economic status for everyone, not simply the poor.

      In the years since Bazelon proposed the RSB defense, there has been extensive new psychological and social science research about how poverty influences behavior. Psychologist Craig Haney surveys this research and concludes that “crime is often committed by persons whose early lives have been pervaded by a great many of . . . potentially damaging risk factors and whose present circumstances include numerous environmental stressors.” Poverty is both a major risk factor and an immediate stressor. As Haney summarizes, poverty has negative effects on childhood development, including “lowered levels of self esteem, high levels of frustration, poor impulse control, and problematic intellectual performance and achievement.”

      Poor children are also exposed to “social toxins,” such as violent neighborhoods and negative role models that skew them toward delinquency and crime and result in dysfunctional coping mechanisms, such as drug addiction and gang membership. Faced with these risk factors, many poor children grow up to be poor adults mired in disadvantaged neighborhoods, where there are high rates of unemployment, transience, and inadequate housing. In turn, these environments can change the way people think about themselves, make them more likely to give into feelings of desperation, and exert pressure on people to engage in illegal conduct. In sum, “[r]isk factors have a direct impact on individual development, increase the likelihood that someone will be exposed to other potentially debilitating risk factors, and make it more likely they will be exposed to problematic social contexts later in life.”

      This research suggests that with regard to a poverty defense there is a role for both the RSB emphasis on social history, as well as the necessity/duress approach to how financial hardship can severely restrict the options available to poor parents. To separate poverty from culpability, actors involved in the child welfare system will need to better understand this emerging research, and lawyers for parents and children will need to educate child welfare workers and courts on how structural economic forces constrain parenting conduct. This is not an easy task. To begin with, child welfare workers are often overworked and overwhelmed and have to make difficult decisions about child safety under pressure. Likewise, even though parents are generally entitled to representation in child dependency hearings and criminal neglect hearings, those lawyers are similarly overburdened and may not have the time or resources to delve into larger social issues surrounding poverty and neglect. This is also true for counsel or guardians ad litem appointed to represent children, as well as judges. Moreover, child neglect hearings usually do not involve experts testifying on issues such as the availability of jobs in the local economy, the lack of affordable housing, or the accessibility of mental health resources. While the child welfare agency may have experts at its disposal, low-income parents cannot afford their own psychiatrists, therapists, and social workers to testify on their behalf. Further, participants within the child welfare system, including caseworkers, lawyers, and judges, carry their own implicit race, gender, and class biases and impose them on parents, who are disproportionately female, minority, and poor.

      Despite these obstacles, the poverty defense in child neglect law can be effective. As the case law exhibits, some judges have noticed the economic realities facing poor parents or have taken an inquisitorial role by scrutinizing the findings of the state's experts. Lawyers for parents, and even some parents themselves, have made compelling arguments about the difficult situations facing poor parents and the lack of state support. The challenge is to expand this sort of reasoning and advocacy throughout the child welfare system, preferably before these cases get to the litigation stage. Possible strategies include increased training for case workers and other actors within the child welfare system about the nexus between poverty and neglect and the causes of poverty. The research is constantly emerging; however, it needs to be disseminated. Advocates for the poor and legal clinics can work together to distill localized economic data and to recruit interdisciplinary experts who can translate structural information for case workers and courts. The child welfare system should also take better account of strengths within families, rather than focusing solely on pathologies.

      Beyond individual cases, there have been multiple child welfare class actions that have successfully presented evidence about structural factors in order to reform child welfare process and to obtain increased services for low-income children and parents. Class action litigation can typically harness greater advocacy resources than individual cases. The dynamics of poverty and neglect can also be discussed among participants in non-adversarial child welfare settings, such as family group conferencing and other fora that are increasingly being set up to address child neglect. In addition, legislators can be responsive to the effects of poverty by increasing funding for family support services; after all, it has been legislatures, not courts, that have largely created the poverty defense and the right to counsel in child welfare cases. For the poverty defense to realize its full potential, advocates will need to think creatively and expand their notions of relevant evidence regarding both parental and state culpability. Similar strategies would be needed wherever the poverty defense expands.

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