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Somebody's Children: Sustaining the Family's Place in Child Welfare Policy (Book Review)

Harvard Law Review, Vol. 113, p. 1718, June 2000

33 Pages Posted: 10 Oct 2000  

Martin Guggenheim

New York University School of Law


Virtually everyone familiar with current child welfare practice in the United States agrees that it is in crisis. In particular, most observers of child welfare complain that too many children remain in foster care for too long. Those hoping to reform the system approach this task from many different directions. Some propose vastly increasing the state's role in assisting families. Others recommend sharply limiting the state's role to save scarce resources for those most in need.

In Nobody's Children, Professor Elizabeth Bartholet articulates a different premise from which to examine why the child welfare system is in crisis. She asserts that current practice fails to protect children from parental abuse and neglect. As this Review elaborates, she recommends an aggressive policy of removing children from their biological families and placing them for adoption. The principal question I address is whether Bartholet's definition of the problem and her proposals for change are appropriate for the children whose lives are at stake. Although I agree with Bartholet's contention that aggressive measures are needed to serve children at risk of entering foster care, I believe her proposals would gravely harm these children and their families. We must find ways to reduce reliance on out-of-home care for children so that their own families may successfully raise them.

Part I of this Review sets forth the core proposals in Nobody's Children. Part II examines the underlying premises of Bartholet's proposals: that the goal of family preservation is fundamentally flawed because keeping chil-dren with their families or returning them to their families after they have been in foster care is futile; that society is unwilling to commit sufficient resources to help families of children in foster care; and that families of children in foster care are so inherently inadequate that it is unwise to strive to fix them. Part III examines the validity of Bartholet's assumptions and concludes that although Bartholet is undoubtedly correct in her bleak assessment of our society's unwillingness to invest in families of children in foster care, she is unjustifiably dismissive of the potential for preserving and restoring such families in the event that the appropriate resources were to be made available. This Part also challenges Bartholet's formulation of the problem with child welfare. Part IV sets forth an alternative definition of the problem by arguing that the key issue is not the abuse and neglect of children, but rather the underlying social conditions endemic in these children's lives. In this Part, I also provide some proposals that seek to address the complex needs of the children and families who are the victims of a child welfare policy gone awry.

JEL Classification: K10

Suggested Citation

Guggenheim, Martin, Somebody's Children: Sustaining the Family's Place in Child Welfare Policy (Book Review). Harvard Law Review, Vol. 113, p. 1718, June 2000. Available at SSRN: or

Martin Guggenheim (Contact Author)

New York University School of Law ( email )

245 Sullivan Street
New York, NY 10012
United States
212-998-6430 (Phone)
212-995-4037 (Fax)

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