* B. A. History, University of Oregon, June 1992. Graduate, New York City Administration for Children's Services, James Satterwhite Academy, Division of Child Protection, Child Protective Specialist Core Training, July 2000. M. A. forensic psychology, John Jay College of Criminal Justice, Feb. 2002. J. D. candidate Benjamin Cardozo School of Law (June 2004). Staff editor, Cardozo Public Law, Policy, and Ethics Journal. I want to express my thanks to E. Nathaniel Gates and Carolyn Kubitschek for their guidance and encouragement with this note. I also want to thank Aviva Orenstein and Dorothy Roberts for reviewing early drafts of this note. Finally, the staff of the Cardozo Public Law, Policy, and Ethics Journal, especially Emily Compton, deserve great praise for their efforts in bringing this note to publication.

1 All the names are fictional, but the events are accurate. Except as otherwise identified, the stories all reflect my personal experiences. I have avoided sensationalized media accounts of children abused in the system. Such stories are a potent rhetorical tool, but have an adverse impact on dialogue. They focus attention and resources on anomalies causing agencies to reconstitute themselves to address exceptional circumstances. In doing so they ignore more routine concerns.

2 Section 2 will discuss this issue at length. 

3 This point will be proven in section 2 of this article. 

4 Nicholson v. Williams, 203 F. Supp. 2d 153, 248 (E. D. N. Y. 2002). 

5 Slaughter House Cases, 83 U. S. (16 Wall) 36, 69 (1873). 

6 U. S CONST. amend. XIII.

7 See Natalie Loder Clark, Parens Patriae and a Modest Proposal for the Twenty-First Century: Legal Philosophy and a New Look at Children's Welfare, 6 MICH. J. GENDER & L. 381, 403-415 (2000). 

8 See Troxel v. Granville, 530 U. S. 57 (2000) (holding that state infringement of the fundamental right of parents to make child-rearing decisions violates the due process clause); Santosky v. Kramer, 455 U. S. 745 (1982) (establishing "clear and convincing evidence" as the standard of proof required to terminate a parent's rights); Prince v. Massachusetts, 321 U. S. 158 (1944) (finding that a mother had no right, by being a parent or through protection of religious freedom, to have her child illegally sell Jehovah's Witness materials on street corners); Pierce v. Society of the Sisters, 268 U. S. 510 (1925) (declaring unconstitutional a statute prohibiting parents from sending their children to any schools but public schools); Meyer v. Nebraska, 262 U. S. 390 (1923) (declaring unconstitutional a state statute that prohibited teaching a child a foreign language before the age of eight); see generally Linda L. Lane, Comment: The Parental Rights Movement, 69 U. COLO. L. REV. 825 (1998) (documenting the development of parental rights through the Supreme Court). 

9 NINA BERNSTEIN, THE LOST CHILDREN OF WILDER: THE EPIC STRUGGLE TO CHANGE FOSTER CARE 374-375 (2001) citing ALEX HALEY, THE AUTOBIOGRAPHY OF MALCOLM X (1965). 

10 U. S. CONST. amend. XIII.

11 United States v. Kozminski, 487 U. S. 931, 942 (1988), citing Civil Rights Cases, 109 U. S. 3, 20 (1883) (quotations omitted). 

12 Id. 

13 See Plessy v. Ferguson, 163 U. S. 537, 542 (1896) (stating that slavery "implies . . . a state of bondage and the absence of a legal right to the disposal of [one's] own person."). See also Hodges v. United States, 203 U. S. 1, 17 (1906) (" The word 'slavery, ' as used in the thirteenth amendment . . . means a condition of enforced, compulsory service of one to another: 'slavery' being defined in Webster as a 'state of entire subjugation of one person to the will of another."). See also Slaughterhouse Cases, 83 U. S. 36, 49 (1872) (" The thirteenth amendment prohibits 'slavery and involuntary servitude. ' The expressions are ancient ones, and were familiar even before the time when they appeared in the great Ordinance of 1787, for the government of our vast Northwestern Territory . . . ."); Dred Scott v. Sanford, 60 U. S. 393 (1856) (explaining that slavery is defined and regulated by municipal law and varies with jurisdiction. "In other words, the status of slavery embraces every condition, from that in which the slave is known simply as a chattel, with no civil rights, to that in which he is recognized as a person for all purposes, save the compulsory power of directing and receiving the fruits of his labor."); United States v. Ingalls, 73 F. Supp. 76, 78 (D. C. Cal. 1947) (" A 'slave' . . . is a person who is wholly subject to the will of another, one who has no freedom of action and whose services are wholly under control of another, and who is in a state of enforced compulsory service to another.").

14 See United States v. Lewis, a. k. a. My Lord and Prophet, 644 F. Supp. 1391, 1400 (1986)
(citation omitted) (documenting the broadening scope of the thirteenth amendment). 

15 487 U. S. 931. 

16 Id. at 952. 

17 Id. at 942 (emphasis added), citing Butler v. Perry, 240 U. S. 328, 332-333 (1916). 

18 Kozminksi, 487 U. S. at 952. 

19 Id at 947. Citing the Act of June 23, 1874, ch. 464 18 Stat. 251 "[ w] hoever shall knowingly and willfully bring in the Untied States . . . any person inveighed or forcibly kidnapped in any other country, with intent to hold such person . . . in confinement or to any involuntary service, and whoever shall knowingly and willfully sell, or cause to be sold, into any condition of involuntary servitude, any other person for any term whatever, and every person so sold and bought, shall be deemed guilty of a felony."

20 Kozminski, 487 U. S. at 947-948. 

21 Id. 

22 Id. at 942. 

23 Id. at 948. 

24 Id. at 943 ("[ W] e find that in every case in which this Court has found a conditions of involuntary servitude, the victim had no available choice but to work or be subject to legal sanction."). 

25 It does however seem clear that the Supreme Court was operating under an erroneous view of involuntary servitude when it stressed labor. Involuntary servitude, like slavery, was a status whereby one was reduced to chattel. But, as opposed to slavery, those in involuntary servitude retained more substantial rights and would eventually be freed. See generally Bradley J. Nicholson, Reflections on Capitalism, Property, and the Law of Slavery, 27 OKLA. CITY U. L. REV. 151, 175 (2002). 

26 Akhil Reed Amar & Daniel Widawsky, Commentary: Child Abuse as Slavery: A Thirteenth Amendment Response to Deshaney, 105 HARV. L. REV. 1359, 1377 (1992) (" In the case of minors, however, we should focus less on "involuntary servitude" and more on 'slavery, ' which in this context is usefully understood as domination and degradation not plausibly for the benefit of the child."). 

27 See generally DOROTHY ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD WELFARE 239
(2002).

28 See The Antelope, 23 U. S. 66, 103 (1825) (" The very definition of slavery in the civil law, which has been copied by writers on public law, shows, that it was an institution established by positive law, against the law of nature."). 

29 See Paul Finkelman, Crime of Color, 67 TUL. L. REV. 2064, 2074-2082 (1993) (Virginia enacted the first slave statute in 1662, decreeing that one's status as a slave was determined by the status of one's mother. If the mother was a slave, so too was the child. The act read: "Whereas some doubts have arrisen [sic] whether children got by Englishman upon a negro woman should be slave or free, Be there fore enacted and declared by this present grand assembly, that all children borne in this country shalbe [sic] held bond or free only according to the condition of the mother," (emphasis in original). 

30 Amar & Widawsky, supra note 26 at 1369-70 (describing slavery as "a system of dominance and degradation in which the master may treat the slave as a possession rather than a person. Some slaves were so physically abused that they were unable to work. Clearly the Thirteenth Amendment did not exclude these people from its protection simply because they served a sadistic master . . . rather than merely a greedy master."). 

31 Kozminski, 487 U. S. at 952. 

32 Id. 

33 Id. 11

34 ROBERTS, supra note 27 at 250 (explaining that the Supreme Court noted in Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 33 (1989), that Congress had endorsed the concept of group harm in addressing the removal of Indian children from their homes by child welfare workers. Congress found "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." (emphasis omitted)). 

35 Civil Rights Cases, 109 U. S. 3, 22 (1883). 

36 U. S. CONST. amend. XIII. 

37 Id. 

38 Baher Azmy, Unshackling the Thirteenth Amendment: Modern Slavery and a Reconstructed Civil Rights Agenda, 71 FORDHAM L. REV. 981, 1019 (2002) (in propounding and ratifying the thirteenth amendment, Republicans held the conviction that "the rights they were guaranteeing were, in a fundamental sense, collective"). 

39 Andrew Koppelman, Legal Theory: Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U. L. REV. 480, 515-516 (1990). 

40 See generally DUNCAN LINDSEY, THE WELFARE OF CHILDREN ch. 6 (1994).

41 Griffin v. Breckenridge, 403 U. S. 88, 105 (1971).

42 G. Sidney Buchanan, The Quest for Freedom: A Legal History of the Thirteenth Amendment: Chapter 1: Great Expectations: The Issuance of the Emancipation Proclamation, Adoption of the Thirteenth Amendment, and Passage of the Civil Rights Act of 1866, 12 HOUS. L. REV. 2, 10 (1974) (explaining that the Emancipation Proclamation had effectively ended southern slavery and that the framers intended the amendment to reach into the future to prohibit conditions of substantive slavery). 

43 Id. at 11. 

44 Azmy, supra note 38 at 1022. 

45 Buchanan, supra note 42 at 8. 

46 Id. at 8-9. 

47 Id. at 9-10. 

48 Id. at 11.

49 Civil Rights Cases, 109 U. S. 3, 20 (1883).

50 126 F. 3d 895 (1997).

51 Id. at 901.

52 154 F. Supp. 2d 290 (D. Conn. 2001) citing Kozminski, 487 U. S. at 942.

53 See generally Ragaglia, 154 F. Supp. 2d at 290.

54 165 U. S. 275 (1897).

55 Id. at 282.

56 See Koppelman, supra note 39 at 525-526, "Robertson, although it has never expressly been overruled, stands as a decision whose rationale has evaporated from under it."

57 1993 U. S. Dist. LEXIS 3284 at *8 (N. D. Ill. 1993).

58 See id.

59 203 F. Supp. 2d 153, 248 (E. D. N. Y. 2002).

60 Id.

61 U. S. CONST. amend. XIII.

62 New York criminal statues concerning crimes against children: N. Y. PENAL LAW § 120 (McKinney 2003) (assault and reckless endangerment); N. Y. PENAL LAW § 125 (McKinney 2003) (homicide, manslaughter, murder); N. Y. PENAL LAW § 130 (McKinney 2003) (sex offenses); N. Y. PENAL LAW, § 255.25 (McKinney 2003) (incest); N. Y. PENAL LAW § 263 (McKinney 2003) (using a child in a sexual performance and promoting sexual performance by a child). 

63 N. Y. PENAL LAW § 263 (McKinney 2003) (abandonment and endangering the welfare of a child). 

64 See LINDSEY, supra note 40 at 120 (in one New York study, only 1% of child abuse allegations involve battered children). See also Martin Guggenheim, Commentary: The Foster Care Dilemma and What to Do About It: Is the problem that too many children are not being adopted out of foster care or that too many children are entering foster care? 2 U. PA. J. CONST. L. 141 at n. 19 (1999) (showing that children who have been severely maltreated by their parents constitute only 10% of the children coming into the system). 

65 The first time this author attended a hearing following an emergency removal of a child he heard the judge tell the parents that they would not be provided a lawyer as there were none available. See also Nicholson, 203 F. Supp. 2d at 221-230 (attorneys for poor parents are over-burdened and are not providing adequate representation). 

66 N. Y. JUDICIARY LAW §1046 (McKinney 2003). Cited in NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES, CHILD PROTECTIVE MANUAL appendix E (1995) (For the Family Court to make a determination that child abuse or neglect occurred a "Fair Preponderance of the Evidence is required. To terminate parental rights, the state has to present "Clear and Convincing Evidence." The standard required in criminal court is "Beyond a Reasonable Doubt."). 

67 See N. Y. JUDICIARY LAW §1046 (a)( iv) (McKinney 2003). 

68 THE CITY OF NEW YORK ADMINISTRATION FOR CHILDREN'S SERVICES: JAMES SATTERWHITE TRAINING ACADEMY: LEGAL HANDOUTS: IMMINENT DANGER 14 (June 1998) (Conditions evidencing imminent danger to the child's life and health would include, but would not be limited to, the following: The child has suffered serious physical or emotional injury, for example, sexual abuse, and the parent or caretaker refuses or is unable to protect the child. The child is in a dangerous environment and there is a substantial likelihood that the child will be harmed and the parent or caretaker refuses or is unable to protect the child. The child does not receive the minimum degree of supervision for his age and the parent refuses or is unable to care for the child. Parent or caretaker states that s/ he will seriously harm or kill the child or the child( ren) indicates that s/ he will harm or kill himself or herself. The determination of imminent danger must be made on a case-by-case basis, taking into consideration: the child's age, type of environment, condition of the child, behavior and condition of the parent or caretaker, history of the family if known, ability and willingness of the parent or caretaker to accept services, and the availability of services to alleviate the imminent danger of harm.). 

69 But see LINDSEY, supra note 40 at 169 (True acts of child abuse are actually assaults and should be treated as such. He points out the differential treatment of wife abuse and child abuse. Where, in many jurisdictions, the police are required to file a report and take a suspect in custody in a situation involving wife abuse, child abuse reports are investigated primarily by social workers whose aim is often to "treat" the abusing parent.).

70 HIPPOCRATES, EPIDEMICS, BK. 1 §11, "Declare the past, diagnose the present, foretell the future; practice these acts. As to diseases, make a habit of two things– to help, or at least to do no harm," available at www.geocities.com/everwild7/noharm.html  (last visited Feb. 14, 2003). 

71 Deborah Gregory, Savasia's Story, ESSENCE at 62 (Dec. 1995) (recounting Savasia's childhood in foster care. She endured nineteen different placements, several of which were abusive.). 

72 See generally Douglas J. Besharov, "Doing Something" About Child Abuse: The Need to Narrow the Grounds for Intervention, 8 HARV. J. OF L. & PUB. POL. 539 (1985) (explaining that despite the initial success at reducing the rate of child abuse, current practices offer little in the way of protection to the child and are actually quite harmful to the child). 

73 GARY B. MELTON, ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS: A HANDBOOK
FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS 441 (2d ed., 1997) (" Although there are no clear answers to this question yet, the fact that it is seriously posed indicates both the depth of controversy about policies concerning child maltreatment and the widespread skepticism about the ability of social service and mental health professionals to evaluate possible maltreatment validly and to treat parents and children successfully.").

74 2 U. PA. J. CONST. L. 95, 107 (1999).

75 Id. at 107 (emphasis added).

76 ROBERTS, supra note 27 at 142 (citing calculations by Mark Courtney estimating the amount spent by federal state and local governments directly for child welfare, to be $11.2 billion in 1995). 

77 See Federal District Judge Richard Posner's commentary, criticizing a Gelles type "defense" of child welfare, in K. H., through Murphy v. Morgan, 914 F. 2d 846, 849 (7th Cir. 1990). "If the fire department rescues you from a fire that would have killed you, this does not give the department license to kill you, on the ground that you will be no worse off than if there were no fire department. The state, having saved one man from a lynch mob, cannot then lynch him, on the ground that he will be no worse off than if he had not been saved. The Illinois Department of Children and Family Services could not have subjected K. H. to sexual abuse and then defended on the ground that by doing this it did not make her any worse off than she would have been had she been left with her parents."

78 Children's Defense Fund, Abuse and Neglect Basics (2001), available at www.cdfactioncouncil.org/ child% 20Abuse. htm  (last visited Feb. 23, 2003). 

79 Id. But see, Marsha Garrison, Child Welfare Decisionmaking: In Search of the Least Drastic Alternative, 75 GEO. L. J. 1745, 1777-1796 (1987) (arguing that the underlying tenets of the "minimum intervention" movement are deeply flawed and the benefits of intervention tend to outweigh the costs of non-intervention).

80 RICHARD WEXLER, WOUNDED INNOCENTS: THE REAL VICTIMS OF THE WAR AGAINST CHILD ABUSE, 175 (1995) (In Minneapolis between 14 and 26 percent of homeless adults were foster care graduates. In New York, between 25 and 50 percent of the young men in the city's homeless shelters were foster care graduates). See also BERNSTEIN, supra note 9 at 368 (until the 1980s New York City offered no support for those aging out of the foster care system at age 18, causing city shelters to be overrun by foster care graduates). 

81 Richard Wexler, Take the Child and Run: Tales From the Age of ASFA, 36 NEW ENG. L. REV. 129 at 137 (2001) [hereinafter Wexler, Take the Child and Run]. 

82 Id. 

83 Id. 

84 Id. 

85 As cited in ROBERTS, supra note 27 at 204. 

86 Id., see also BERNSTEIN, supra note 9 at 10 (describing the process whereby newcomers are systematically subjected to a regime of homosexual rapes, known as "the racket"). 

87 This situation was relayed to me by several co-workers at ACS and appears to be common knowledge within the agency. See also Nina Bernstein, City Evaluates Providers at Group Homes, NEW YORK TIMES, Sept. 1, 2001 (discussing a nineteen-year-old girl interviewed in a group home who "[ l] ike many of the teenagers who end up in group care, including a four-month stint last year at the city's Hegeman Transitional Center in Brooklyn, which has a long history of poor supervision, violence, drug use and prostitution"). 

88 Guggenheim, supra note 64 at 141 (only 10% of the children in foster care were removed for serious abuse).

89 LINDSEY, supra note 40 at 127-157 (Whether a child is removed from the home is essentially a random event. The author's study revealed that high percentages of children who were in foster care did not require it, while children who were in real danger were left in their homes). 

90 See also THE ANNIE E. CASEY FOUNDATION, CITY KIDS COUNT: DATA ON THE WELL-BEING OF
CHILDREN IN LARGE CITIES, at www.aecf.org/kidscount/ city/newo_la.htm# povaff (explaining that the poverty rate for children in their 50 city survey had increased from 18% in 1969 to 27% in 1989) (last visited Mar. 19, 2003). 

91 ROBERTS, supra note 27 at 18. 

92 See generally ARLOC SHERMAN, CHILDREN'S DEFENSE FUND, WASTING AMERICA'S FUTURE:
REPORT ON THE COSTS OF CHILD POVERTY, introduction by Marian Wright Edelman XV (1994). 

93 See LINDSEY, supra note 40 at 94-102. 

94 See generally Gelles, supra note 74 (demonstrating that home preservation programs are ineffective). But see Wexler, Take the Child and Run, supra note 80 at 129 (demonstrating those same programs to be effective). 

95 ROBERTS, supra note 27 at 137 (citing several studies). 

96 Children's Rights, Facts About Child Welfare available at www.childrensrights.org/ about/ facts. htm (last visited March 23, 2001). 

97 Cited in Besharov, supra note 72 at 558. 

98 Guggenheim, supra note 64 at 141.

99 Cited in ROBERTS, supra note 27 at 59.

100 This was stated repeatedly, by the trainer, during this author's Child Protective Specialist Training at the NYC ACS Satterwhite Academy. 

101 The doctor running this author's Medical Issues training at the NYC ACS Satterwhite Academy repeated this phrase frequently throughout the training. 

102 ACS mission statement contained in the 1996 reform plan. Cited in BERNSTEIN, supra note 9 at 437. 

103 See also Akka Gordon, Taking Liberties, CITY LIMITS 18, 20 (Dec. 2000) ("[ A] t moments of uncertainty, the mantra was 'Cover your ass'— a phrase heard often around the office. It was backed up by pervasive fear– among caseworkers, supervisors, managers and attorneys– of seeing our photograph in the Daily News as the person who made an error that was literally fatal."). 

104 Id. 

105 NATIONAL CLEARINGHOUSE ON CHILD ABUSE AND NEGLECT, PUBLICATIONS: DEFINING CHILD MALTREATMENT available at www. calib.com/ nccanch/ pubs/ usermanual/ basic/ section2. cfm (" Within any given State and community, there are different types of definitions of child maltreatment. Some definitions are found in laws, some are found in procedures, and some are found in the informal practices of those agencies assigned to implement laws concerning child abuse and neglect"). See also Howard Dubowitz et al., A Conceptual Definition of Child Neglect, 20 CRIM. JUST. & BEHAVIOR 8 (1993) (explaining the ramifications of broad and narrow definitions of child maltreatment); Susan J. Rose & William Meezan, Defining Child Neglect: Evolution, Influences and Issues, SOC. SERV.R. 279 (June 1993) (" a reliable operational definition of this concept has yet to be developed or
generally accepted in practice"). 

106 During the author's continued training phase, after caseworkers had been placed in a field office, performance standards became the source of much bemusement. When a trainer asked what the class would do in this or that scenario, the inevitable answer was "depends on who your supervisor is." 

107 This was not done for children who were old enough to communicate effectively. 

108 Not surprisingly, substantiation rates vary widely within agencies and between states and counties. NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, STATUS REPORT I: JUNE 1998: OUTCOME & PERFORMANCE INDICATORS (June 1998). ACS is broken down into boroughs, field offices within those boroughs and community districts. In Queens, the substantiation rate for abuse reports vary from 18.2% in Community District Nine (Ozone Park/ Woodhaven) to 28.7% in Community District Fourteen (Rockaway/ Broad Channel). Substantiation rates vary widely across boroughs as well. In 1997 Manhattan caseworkers substantiated 50.5% of the reports they investigated, while caseworkers in Queens substantiated only 25.5% and Staten Island caseworkers substantiated 31.8%. Interestingly, the Office of Confidential Investigations, which investigates allegations of abuse against foster parents, and other child care providers, only substantiated 14.7% of the reports it investigated.

109 For instance, one South Carolina county substantiated 89% of maltreatment reports while another substantiated only 14%. As cited in ROBERTS, supra note 27 at 54. 

110 U. S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CHILD WELFARE OUTCOMES 1999:
ANNUAL REPORT: CHAPTER 3: KEY FINDINGS AND IMPLICATIONS, available at www.acf.hhs.gov/ programs/cb/ publications/ cwo99  (last visited Mar. 19, 2003). Although nationally the median incidence of psychological maltreatment was only 3.2%, it accounted for 37.9% of substantiated cases in Utah and 29.8% of substantiated reports in Connecticut. Physical abuse ranged from 3.6% in North Carolina to 28.5% in New Mexico with a median of 21.7%. Overall the amount of maltreatment per 1,000 children varied from 1.7% in Pennsylvania to 18.3% in Florida, with a median of 9.7%. 

111 Id. 

112 Id. 

113 Id. For instance, while Minnesota has one of the lowest rates of children living in poverty it had one of the highest rates of children entering foster care. Alternatively, Texas, which has one of the highest rates of child poverty had one of the lowest rates of foster care entry. Id. 

114 MELTON, supra note 73 at 442. 

115 LINDSEY, supra note 40 at 102. 

116 Id. 

117 Id. at 154 (neither the degree of injury to the child nor the level of abuse suffered by the child were predictive of removal).

118 Mary Boykin Chestnut as quoted in EUGENE D. GENOVESE, ROLL, JORDAN, ROLL: THE
WORLD THE SLAVES MADE 67 (1974). 

119 Id. at 58. 

120 Id. at 59.

121 This problem remained constant throughout my time with the agency.

122 All child protective investigations in the state of New York begin with an oral or written report to the State Central Register of Child Abuse and Maltreatment. N. Y. SOC. SERV. LAW § 422.2( a) (McKinney 2002). The Central Register transmits the report to the local (county or borough) office to conduct the investigation. See Valmonte v. Bane, 18 F. 3d 992 (2d Cir. 1994) (providing a detailed discussion of the investigation process). 

123 NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, CASEWORK PRACTICE GUIDE: DIVISION OF CHILD PROTECTION: CHILD PROTECTIVE SERVICES 13 (2d ed., 2000) (" Within 48 hours (24 hours when immediate danger is suspected or the case involves high risk allegation), CPS staff must visit the home to initiate face-to-face interviews with all children, the subject( s), parents/ caretakers and other household members. The home visit comprises of examining the home conditions and interviewing the children, alleged subjects, parent/ caretakers and other household members.").

124 See also ROBERTS, supra note 27 at 125 (" Caseworkers in New York City can earn time-and-a-half for removing children at night, so it is simple to find someone in the office who will step in to take children without knowing the circumstances of the case."). 

125 See id. 

126 N. Y. SOC. SERV. LAW § 412.12 (McKinney 2002) (an "indicated" case is one in which there is "some credible evidence" of child abuse or maltreatment"). N. Y. SOC. SERV. LAW § 412.11 (McKinney 2002) (an unfounded report is one in which there is no credible evidence of child abuse or maltreatment). N. Y. SOC. SERV. LAW § 424.6 (McKinney 2002), each local child protective services must investigate every report). N. Y. SOC. SERV. LAW § 424.7 (McKinney 2002) (each local child protective services must make a determination within 60 days as to whether the report is indicated or unfounded). 

127 ADMINISTRATION FOR CHILDREN AND FAMILIES REPORT TO CONGRESS, GREEN BOOK OVERVIEW OF ENTITLEMENT PROGRAMS 656 (17th ed. 2000). 

128 ROBERTS, supra note 27 at 80. See also Gelles, supra note 74 at 105 (" Although there is a general belief that change can be achieved if there are sufficient soft and hard resources, as yet, there is no empirical evidence to support the effectiveness of child welfare services in general, nor in the newer, more innovative, intensive family preservation services."). 

129 ROBERTS, supra note 27 at 79. 

130 LELA COSTIN, HOWARD J. KARGER AND DAVID STOESZ, THE POLITICS OF CHILD ABUSE 23 (1996) (" it is a sophisticated industry that includes, among others, psychotherapists, the legal profession; service providers, including those in for and nonprofit agencies; welfare bureaucrats; public welfare agencies and social workers; consumer groups who either favor or oppose intrusive child welfare legislation; and political advocates (on both the left and the right."). 

131 ROBERTS, supra note 27 at 41-42. The author details the results of a Santa Clara grand jury investigation, which revealed that psychologists who testified against child welfare assessments were routinely blacklisted. A variety of ethical issues arise in this arrangement. Can the therapist, whose clients are referred from the child welfare agency, and who receives money from that agency, offer an unbiased opinion when asked to testify about the mother, or oppose an agency recommendation?

132 WEXLER, supra note 80 at 210 (arguing that poor people should be provided with food and bus fare before they are provided counseling). 

133 Mark E. Courtney et al., Race and Child Welfare Service: Past Research and Future Directions, LXXV CHILD WELFARE 99, 113. 

134 WEXLER, supra note 80 at 210.

135 BERNSTEIN, supra note 9 at 51 ("[ T] he city accorded the three "established" religions a virtual property right to the children, regardless of what was best for them or what their own parents wanted."). 

136 BERNSTEIN, supra note 9 at 366. 

137 ADMINISTRATION FOR CHILDREN AND FAMILIES REPORT TO CONGRESS, supra note 127 at 648 (the federal government spent $1,963,000,000 on payments to foster parents and $2,048,000,000 on administration and training in 1999). 

138 See generally BERNSTEIN, supra note 9 (documenting in detail, children languishing in private foster care agencies, while those same agencies fought any attempts to reform their behavior). 

139 County of San Diego, GRAND JURY REPORT, available at www. co.san-diego. ca.us/cnty/cntydepts/ safety/ grand/ reports/ report7. html (last visited Jan. 12, 2003) (reporting of foster parents that "too many are in the business of making money by renting their homes to the dependency system").

140 NORTH AMERICAN COUNCIL ON ADOPTABLE CHILDREN, ADOPTION SUBSIDY: FACT SHEETS: DEFINITIONS: STATE PROFILES: NEW YORK STATE SUBSIDY PROFILE (2001), available at www.nysccc. org  (last visited Jan. 23, 2003). A child age 0-5 is worth $460, and a child 6-11 is worth $541. In
addition there is an annual clothing replacement allowance of $806 for a 16-year-old child.

141 Temporary Assistance for Needy Families (TANF) was created by the Welfare Reform Law of 1996, replacing Aid to Families with Dependent Children (AFDC) and Job Opportunities and Basic Skills Training (JOBS). See generally at www. acf. hhs. gov/ programs/ ofa (last visited Feb. 25, 2003). See also ROBERTS, supra note 27 at 173. 

142 ROBERTS, supra note 27 at 191 (although TANF funds are subject to a number of restrictions, and increase only moderately with each additional child in the household, foster care subsidies are not scaled down when there are additional children in the home). 

143 SAN DIEGO GRAND JURY REPORT, supra note 139. 

144 ADOPTION SUBSIDY: FACT SHEETS, supra note 140. 

145 SAN DIEGO GRAND JURY REPORT, supra note 139. 

146 Id. 

147 Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (1997).

148 ADMINISTRATION FOR CHILDREN AND FAMILIES REPORT TO CONGRESS, supra note 126. 

149 Id. 

150 Id. 

151 Guggenheim, supra note 64 at 111. 

152 See ROBERTS, supra note 27 at 111. Adoption incentives seem to be working. The author documents a 28% rise in the number of adoptions from 1998 to 1999. She shows that in that same year, the number of adoptions doubled in Illinois, went up by 75% in Texas and 57% in Florida. Also, that year forty-two states took home $20 million in federal adoption bonuses. See also Wexler, Take the Child and Run, supra note 81 at 129-130 (due to ASFA, states have de-emphasized efforts to prevent removal or to reunite children with families). 

153 ROBERTS, supra note 27 at 158 (ASFA incentives aimed at aggressively terminating parental rights have led to the creation of "legal orphans," children who have been severed from their parents, but not adopted by any other family).

154 ROBERTS, supra note 27 at 91. But see Landes & Posner, The Economics of the Baby Shortage, 7 J. LEGAL STUD. 323 (1978) (arguing that a free market approach to adoption would be beneficial). See Tamar Frankel & Frances H. Miller, Forum: Adoption and Market Theory: The Inapplicability of Market Theory to Adoptions, 67 B. U. L. REV. 99 (criticizing a free market approach to adoption). Interestingly, inasmuch as being sold would seem to be a necessary incident of slavery, the debate surrounding Judge Posner's proposal was strangely devoid of a thirteenth amendment analysis.

155 ROBERTS, supra note 27 at 160.

156 Leroy Pelton, Symposium: The Implications of Welfare Reform for Children: Other Remarks on the Effects on Welfare Reform on Children: Welfare Discriminations and Child Welfare, 60 OHIO ST. L. J. 1479, 1490 (1999); citing J. Boyne et al, Log-Linear Models of Factors Which Affect the Adoption of "Hard-to-Place" Children, in PROCEEDINGS OF THE SOCIAL STATISTICS SECTION, (Social Statistics Section, American Statistical Ass'n ed, 1982). Note that this study is twenty years old and recent moves to incentivize adoptions for potential parents, coupled with a drive to recruit more parents has probably led to an even greater incidence of failed adoptions. 

157 See ROBERTS, supra note 27 at 103 (listing several state adoption websites). See also BERNSTEIN, supra note 9 at 365. The author recounts the experiences of Lamont, a foster child and the son of a foster child. At age fifteen, after seeing himself on a public service television show about children available for adoption, Lamont confronted adoption agency staff saying, "I'm not going to let you exploit me and market me like a piece of meat." 

158 See New York State Office of Children & Family Services, The Adoption Album: Internet Photolisting Search, available at www.ocfs. state.ny.us/ adopt/ internet/InternetPhotoinq. asp (last visited Mar. 3, 2003). (Allows prospective parents to sort children by age, race, sex, level of physical disability, diagnosed psychiatric needs, emotional and behavioral needs, and developmental delays.) See also Internet Adoption Photo Listing by Precious in HIS Sight, available at www. precious. org (last visited Mar. 3, 2003) (advertising that they have "over 500 children currently available for international and domestic adoption"); The Children's Bureau, AdoptUSKids, available at www.adoptuskids. org (last visited March 3, 2003). This allows prospective parents to sort children by race disability age and gender. A search on this site for all children under six yielded 144 children. Most were African Americans and many had disabilities. Id. 

159 ADOPTION SUBSIDY: FACT SHEETS, supra note 140. 

160 Id.

161 ROBERTS, supra note 27 at 167.

162 Courtney et al., supra note 133 at 117 (explaining that African American children remain in foster care far longer and are much less likely to be adopted than white children). 

163 See Gelles, supra note 74. 

164 Kozminski, 487 U. S. at 948. 

165 For more detailed analysis see Michael B. Mushlin, Unsafe Havens: The Case for Constitutional Protection of Foster Children From Abuse and Neglect, 23 HARV. C. R.-C. L. L. REV. 199 (1988). See also Lawrence G. Albrecht, Essay: Human Rights Paradigms for Remedying Governmental Child Abuse, 40 WASHBURN L. J. 447 (2001); Arlene E. Fried, The Foster Child's Avenues of Redress: Questions Left Unanswered, 26 COLUM. J. L. & SOC. PROB. 465 (1993); Brendan P. Kearse, Abused Again: Competing Constitutional Standards for the State's Duty to Protect Foster Children, 29 COLUM. J. L. & SOC.
PROBS. 385 (1996). 

166 503 U. S. 347 (1992). 

167 Pub. L. No. 96-272, 94 Stat. 500 (1980) (codified as amended at 42 U. S. C. §§ 620-628, 670- 679a (1988)).

168 Suter, 503 U. S. at 347. 

169 Albrecht, supra note 165 at 455. 

170 Id. 

171 Estelle v. Gamble, 429 U. S. 97 (1976). 

172 Albrecht, supra note 165 at 456, citing Taylor v. Ledbetter, 818 F. 2d. 791 (11th Cir. 1987). 

173 Kearse, supra note 165 at 408, citing Youngberg v. Romeo, 457 U. S. 307 (1982). 

174 Youngberg, 457 U. S. at 323. 

175 Fried, supra note 165 at 487, citing Milburn v. Anne Arundel County Dep't of Social Services, 871 F. 2d 474 (4th Cir. 1989).

176 Fried, supra note 165 at 482; Mushlin, supra note 165 at 247.

177 Mushlin, supra note 165 at 246.

178 Id. at 247.

179 DOUGLAS E. ABRAMS & SARAH H. RAMSEY, CHILDREN AND THE LAW: DOCTRINE, POLICY AND PRACTICE (2000).

180 Mushlin, supra note 165 at 233.

181 See generally Gordon, supra note 103.

182 Kozminski, 487 U. S. at 934.

183 Id. at 951.

184 Id. ("[ C] ompulsion of services by the use or threatened use of physical or legal coercion is a necessary incident of a condition of involuntary servitude."). 

185 Gordon, supra note 103 at 31 (telling the story of Carla, unnecessarily removed from her home and then placed in increasingly harsh environments.). 

186 Dylan Conger, et al., Vera Institute of Justice, Reducing the Foster Care Bias in Juvenile Detention Decision: The Impact of Project Confirm, 9 (2001) available at www.vera.org (last visited Jan. 3, 2003). 

187 Id. (Although foster children are only 2% of the city's population they comprise 15% of those in the juvenile detention system. Also, that involvement in the juvenile detention system is a toxic influence in the life of an adolescent.).

188 ROBERTS, supra note 27 at 204 (citing a study by the Vera Institute of Justice). 

189 Timothy Ross et al., Vera Institute of Justice, The Experiences of Early Adolescents in Foster Care in New York City: Analysis of the 1994 Cohort, 23 (2001) available at www.vera.org (last visited Jan. 3, 2003) (18% of the 1994 cohort who left foster care did so because they had gone AWOL). 

190  GENOVESE, supra note 118 at 35. 

191 Id. 

192 Id.

193 Id. at 37 ("[ I] n 1821, South Carolina became the last of the slave states to declare itself clearly in protection of slave life. During the nineteenth century, despite state-by-state variations, slaveholders theoretically faced murder charges for wantonly killing a slave or for causing his death by excessive punishment."). 

194 Id. at 34. 

195 Roger L. Green, Symposium: Legal and Community Services Advocates Working Together to Preserve Families, Columbia University School of Law, December 1-2, 1994, 3 J. L. & POL'Y 487, 489 (1995).

196 Kozminski, 487 U. S. at 934. 

197 Nicholson, 203 F. Supp. 2d at 248. 

198 GENOVESE, supra note 118 at 70-75. See also Mark Tushnet, Review Essay: Constructing Paternalist Hegemony: 27 LAW & SOC. INQUIRY 169 (2002) (reviewing the dispute between those who see master-slave relations under slavery as based on paternalism and those who see it based in ideas of property). 

199 Cited in GENOVESE, supra note 118 at 75. 

200 Id. 

201 Id. at 85. Ideologues of the time "vigorously insisted that blacks could never survive in the cutthroat world of the capitalist marketplace; that they would drop to the bottom of the social scale as unwanted and improvident unskilled workers and would starve to death. Slavery represented white protection against this horror; it gave the masters an interest in the preservation of the blacks and created a bond of human sympathy that led to an interest in their happiness as well."

202 Margaret A. Burnham, An Impossible Marriage: Slave Law and Family Law, 5 LAW & INEQ. 198, 209 (1987). 

203 Cheryl Harris, Bondage, Freedom & the Constitution: The New Slavery Scholarship and its Impact on Law and Legal Historiography: Private Law and United States Slave Regimes: Article Finding Sojourner's Truth: Race Gender and the Institution of Slavery, 18 CARDOZO L. REV. 309, 332 (1996) (explaining of the legal non-recognition of marriages, "[ i] t first ensured that there were no competing claims by Black men to Black women based on the marriage contract, thereby reducing legal impediments to their commercial alienation and reproduction").

204 GENOVESE, supra note 118 at 451-458. 

205 Burnham, supra note 202 at 198 (1987). See also Harris, supra note 206 at 338. 

206 GENOVESE, supra note 118 at 457 (explaining that although the actual incidence of separation was rather low, the fear of it hung over every family). 

207 Burnham, supra note 202 at 201. 

208 Id. 

209 See GENOVESE, supra note 118 at 460-75. 

210 Burnham, supra note 202 at 204 

211 Id. 

212 Id.

213 Natalie Loder Clark, supra note 7 at 381 (citation omitted).

214 ADMINISTRATION FOR CHILDREN AND FAMILIES, PROGRESS REPORT TO THE CONGRESS –OVERVIEW: FACTSHEETS/ PUBLICATIONS: II. AN OVERVIEW OF THE CHILD WELFARE SYSTEM TODAY, available at www.acf.hhs.gov/ programs/cb/ publications/ congress/ overview. htm (explaining that between 1976 and 1992 maltreatment reports increased by 331%) (last visited Feb. 02, 2003). 

215 National Clearinghouse on Child Abuse and Neglect, Highlights from Child Maltreatment 1999, available at www. calib. com/ nccanch/ pubs/ factsheets/ canstats. cfm (last visited Oct. 6, 2001). "Of the estimated 2,974,000 referrals received, approximately three-fifths (60.4%) were transferred for investigation or assessment and two-fifths (39.6%) were screened out. Slightly fewer than one-third of investigations (29.2%) resulted in a disposition of either substantiated or indicated child maltreatment. More than half (54.7%) resulted in a finding that child maltreatment was not substantiated." 

216 Children's Rights, Facts on Child Welfare: Child Abuse and Neglect, available at www.childrensrights.org/ about/ facts.htm, (in 2000, 879,000 children were found to have suffered from mal-treatment) (last visited Mar. 13, 2003), citing U. S. Dept. of Health and Human Services, AFCARS Report, available at www.acf.dhhs.gov/programs/cb/publications/afcars/report7.htm (2002). 

217 Id. (in 1998, 286,000 children entered foster care). 

218 See Ruth Lawrence Karski, Key Decisions in Child Protective Services: Report Investigation and Court Referral, 8 CHILD. AND YOUTH SERVICES. R. 643 (1999) (explaining that whether a family is receiving AFDC affects every aspect of decision making by child welfare officials regarding their case). See generally LEROY PELTON, FOR REASONS OF POVERTY (1989) (demonstrating that the poor and the very poor constitute the vast majority of those involved in the child welfare system). See also ROBERTS, supra note 27 at 27-29; WEXLER, supra note 80 at 69. 

219 See LINDSEY, supra note 40 at 97-98 (1994). See also WEXLER, supra note 80 at 105. 

220 But see ADMINISTRATION FOR CHILDREN'S SERVICES, CASEWORK PRACTICE GUIDE, supra note 123 at 15. "Interview the children while at school whenever possible." Since school administrators rarely allow caseworkers to interview children alone, this policy destroys the family's confidentiality.

221 NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, DIVISION OF CHILD PROTECTION CHILD PROTECTIVE SPECIALIST CORE TRAINING CURRICULUM, EVIDENCE FOR ADMINISTRATION FOR CHILDREN'S SERVICES CASEWORKERS, citing N. Y. JUDICIARY LAW § 1046( a)( ii) (McKinney 2003) "Proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect, as the case may be, of the parent of other person legally responsible." 

222 D. FANSHEL & E. SHINN, CHILDREN IN FOSTER CARE: A LONGITUDINAL INVESTIGATION 506
(1978), cited in LINDSEY, supra note 40 at 142. 

223 People United for Children v. The City of New York, 108 F. Supp. 2d 275, 297 (S. D. N. Y. 2000). 

224 NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, GET INVOLVED: PREVENT
CHILD ABUSE AND NEGLECT: STATISTICS, available at www.ci.nyc.us/ html/acs/ html/getinvolved/abuseprevent_ stats. html  (last visited Apr. 4, 2001). 

225 THE ANNIE E. CASEY FOUNDATION, supra note 90. 

226 NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, STATUS REPORT 1: JUNE 1998: supra note 108. 

227 ROBERTS, supra note 27 at 29.

228 NEW YORK STATE, UCR INITIAL RISK ASSESSMENT AND SERVICE PLAN 4 (1992). 

229 See NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, JAMES SATTERWHITE TRAINING ACADEMY, NEGLECT HANDOUT 4 (May 1999) (lists the "characteristics of neglecting parents" as "1) Low ego strength, manifested primarily by poor reality awareness, rigid, concrete thinking and poor judgment. 2) Preoccupied with own frustrations, worries and bodily functions to the total exclusion of the needs of the children in their care. 3) Inconsistent in daily routines. 4) Depression and apathy. 5) Cannot trust others, feel persecuted and victimized by repeated attempts to provide services."). 

230 LINDSEY, supra note 40 at 138. 

231 See id. at 139-146. 

232 Id. at 153.

233 As cited in, Marsha Garrison, supra note 79 at 1763 (criticizes the psychoanalytic foundation of Goldstein, Freud & Solnit's work). 

234 Native Americans are discriminated against at a higher rate. 20% of Native American children are in out of home, and out of tribe care. See Lorie M. Graham, "The Past Never Vanishes": A Contextual Critique of the Existing Indian Family Doctrine, 23 AM. INDIAN L. REV. 1, 3 (1998). African Americans comprise 56% of the 600,000 children in out of home care nationally. See Zanita E. Fenton, Foster Care: The Border of Family Identity Maintaining, (Re) creating, Destroying, 36 NEW ENG. L. REV. 59, 61-62 (2001). 

235 See Bradley J. Nicholson, supra note 25. "The revolutionary aspect of slavery was not capitalism, exploitation, or property law, but governance of a different race for the benefit of the colonial elite and the racial attitudes that followed from that choice."

236 See generally COSTIN, supra note 130 at 46-75 (1996). 

237 Id. at 49. 

238 Id. See also LINDSEY, supra note 40 at 13 (describing how, between 1853 and 1890, the Children's Aid Society moved more than 92,000 children from New York City to the Midwest). 

239 BERNSTEIN supra note 9 at 197-199. 

240 See generally COSTIN , supra note 130 at 46-75; LINDSEY, supra note 40 at 13-17. 

241 COSTIN, supra note 130 at 46-57. 

242 Id. at 46-75; LINDSEY, supra note 40 at 13-17. 

243 LINDSEY, supra note 40 at 14. 

244 Id. at 17.

245 BERNSTEIN, supra note 9 at 197.

246 Id at 198.

247 See generally NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1996).

248 See generally Graham, supra note 237 at 15-30.

249 Id at 15.

250 Id at 29.

251 Id at 2.

252 FENTON, supra note 237 at 61.

253 Margaret A. Burnham, Bondage, Freedom & the Constitution: The New Slavery Scholarship and its Impact on Law and Legal Historiography: Private Law and United States Slave Regimes: Article: Property, Parenthood, and Peonage: Reflections on the Return to the Status Quo Antebellum, 18 CARDOZO L.
REV. 433, 435 (1996). 

254 Id. 

255 Sheryl Brissett-Chapman, Child Protection Risk Assessment and African American Children: Cultural Ramifications for Families and Communities, Vol. LXXVI, #1 CHILD WELFARE 45, 49 (1997). 

256 BERNSTEIN, supra note 9 at 45. 

257 See generally BERNSTEIN, supra note 9. 

258 ROBERTS, supra note 27 at 19. 

259 See generally, Mark E. Courtney et al. supra note 133. 

260 BERNSTEIN, supra note 9 at 185. 

261 Id. 

262 Id at 149. 

263 Id.

264 See Courtney, supra note 133 at 107-112. African Americans continue to receive fewer services designed to prevent a child from being removed. Id. 

265 BERNSTEIN, supra note 9 at 110-11. 

266 Id at 149. 

267 Fenton, supra note 237 at 62. Whites comprise 28%, Hispanics 9%, American Indian/ Alaskan Native 1%, Pacific Islander 1% and Unknown/ Unable to determine 5%. 

268 Courtney, supra note 133 at 100. 

269 108 F. Supp. 2d 275, 296-97 (S. D. N. Y. 2000). 

270 Andrew White, John Courtney & Adam Fifield, The Race Factor In Child Welfare, report compiled for Child Welfare Watch (1998), available at www.nycfuture. org (One study found that while one in ten children in the predominantly African American neighborhood of Central Harlem was in foster care, one in nineteen children from the predominantly Latino Hunts Point neighborhood in the Bronx was in care. This was the case despite the fact that on nearly every measure Hunts Point was in greater poverty, and had more of the characteristics commonly associated with child maltreatment).

271 Id. 

272 Id. See also ROBERTS, supra note 27 at 13-14. 

273 Id. See also Wendy G. Lane, et al., Racial Differences in the Evaluation of Pediatric Fractures for Physical Abuse (African American children are more than twice as likely than their white counterparts to have a skeletal survey performed, even after controlling for a variety of factors including the likelihood of abuse and the appropriateness of performing the survey. Again, after controlling for a variety of factors they found that African American, over twelve months of age, were three times more likely to be reported for possible abuse to CPS.). 

274 Courtney, supra note 133 at 109. 

275 Id. at 108. 

276 Id. at 118. 

277 See White supra note 273. 

278 See Naomi Cahn, Book Review Essay: Race Poverty, History, and Child Abuse: Connections, 36 LAW & SOC'Y REV. 461, 474 (2002) (discussing competing theories to explain the racial discrepancy in child welfare). 

279 White, supra note 273.

280 See ROBERTS, supra note 27 at 47.

281 White, supra note 273.

282 Id. See also ROBERTS, supra note 27 at 52 citing a National Child Welfare Leadership Center study (caseworkers are unintentionally biased toward African American families).

283 White, supra note 273.

284 Id.

285 E. MAVIS HETHERINGTON & ROSS D. PARKE, CHILD PSYCHOLOGY: A CONTEMPORARY VIEW
POINT 481-486 (5th ed. 1999).

286 Id.

287 HETHERINGTON, supra note 288 at 56.

288 White, supra note 273.

289 Id.

290 A BILLINGSLEY, & J. M. GIOVANNONI, CHILDREN OF THE STORM: BLACK CHILDREN AND
AMERICAN CHILD WELFARE (1972).

291 White, supra note 273.

292 Id.

293 See CHARLES W. MILLS, THE RACIAL CONTRACT (1997).

294 See ROBERTS, supra note 27 at 229.