A Quiet Revolution: How Judicial Discipline Essentially Eliminated Foster Care and Nearly Went Unnoticed

21 Pages Posted: 30 Aug 2022

See all articles by Melissa Carter

Melissa Carter

Emory University School of Law

Christopher Church

Emory University School of Law

Vivek Sankaran

University of Michigan

Date Written: August 17, 2022

Abstract

This Piece proposes a rather unremarkable concept: that juvenile court judges can safely reduce the number of children entering foster care by faithfully and rigorously applying the law. What is remarkable, however, is that judges often fail to perform this core function when a state child welfare agency separates a child from their family. Despite evidence that removal decisions are not carefully scrutinized by courts, the child welfare community continues to de-emphasize the role of the judge as an impartial gatekeeper—as the law requires—and instead encourages a different sort of jurist: one with distracting leadership responsibilities on and off the bench; one with responsibility to oversee individual cases but also advocate for broad systemic reform; one who is actively involved with families, making clinical decisions regarding their personal affairs. In this Piece, we invite judges to explore whether such extraneous responsibilities advance justice for families, or instead create an inviting space for “omnipotent moral busybodies” to emerge. This Piece makes its argument by focusing on the work of Judge Ernestine Gray, who sat on the Orleans Parish Juvenile Court for nearly forty years. Judge Gray’s disciplined approach to rigorously applying the law during the preadjudication phase of civil child abuse and neglect proceedings transformed New Orleans Parish’s intervention in families into what such intervention is meant to be: a rare, time-limited event. Judge Gray’s disciplined approach led New Orleans to become the first major city in the United States to essentially eliminate foster care.The Piece concludes with a plea for judges to embrace their role as gatekeeper, rigorously and dispassionately enforcing the law to ensure that children enter and remain in foster care only when the state produces evidence that meets the high burden required to justify family separation.

Keywords: foster care, child welfare, family regulation, family separation, child removal, CPS, family court, juvenile court

Suggested Citation

Carter, Melissa and Church, Christopher and Sankaran, Vivek, A Quiet Revolution: How Judicial Discipline Essentially Eliminated Foster Care and Nearly Went Unnoticed (August 17, 2022). Columbia Journal of Race and Law, Vol. 12, No. 1, 2022, Available at SSRN: https://ssrn.com/abstract=4192696

Melissa Carter

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Christopher Church (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Vivek Sankaran

University of Michigan ( email )

Ann Arbor, MI
United States

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