Too poor to procreate: How the Monroe County Court Opinion in In the Matter of Bobbijean P. furthers the rational of service cuts to poor families and fails to advance the welfare of children

March 08, 2004

By Lynn M. Paltrow
Executive Director
National Advocates for Pregnant Women

A recent decision by a Monroe County judge ordering a couple not to procreate has received national and international attention. Ostensibly, this decision addresses the personal irresponsibility of two drug-abusing parents. In fact, this decision creates a financial means test for procreation.

The judge admits this decision is both "unusual" and without legal precedent, yet conveniently chose to write it in a case where neither parent was represented by counsel. Nor did the judge solicit or receive any input from "friends of the court" who could knowledgeably address such matters as drug addiction and parenting. Instead, the judge relied on only one witness, a DHHS case worker.

There are no allegations in this case of physical abuse, and no evidence of actual medical harm. The primary basis for finding neglect is that the mother used drugs and had a "prior history of 'cocaine babies.'" Alcohol and drug addiction, like untreated mental illness and other diseases, can affect parenting ability. But both Constitutional and state law prohibit treating conditions women suffer during pregnancy (including addiction) as a form of neglect. Moreover, both the law and the best interests of the child require that courts ask, can this person parent?—not, do they use drugs?

Recently, 30 leading research scientists published an open letter asking that the terms "cocaine baby" be dropped from usage. These terms, they explain, ”lack scientific validity and should not be used.” "Throughout almost 20 years of research, none of us has identified a recognizable condition, syndrome or disorder that should be termed "crack baby." Despite the fact that they also find the term "crack addicted baby" no less medically "defensible,"the judge nevertheless uses such terms in her decision.

Many people have struggled with addiction to alcohol and other drugs while conceiving or parenting young children. President Bush and Cindy McCain (Senator McCain’s wife), are just a few of these people. We do not, however, label them neglectful nor suggest that as a society we would be better off if they lived under a procreation ban. As research documents, even mothers who use cocaine have been found to look after and care for their children adequately.

Could the mother in this case have cared adequately for her children? Unfortunately, we simply cannot tell from the decision in this case. Instead we learn that she had been "referred to substance abuse treatment numerous times," but failed to "follow through." The caseworker admits the mother “may have made attempts” at drug treatment but apparently never bothered to find out if the problem was the mother’s lack of commitment or the barriers low-income people face when seeking drug treatment. Did the mother try and get put on a waiting list? Were the only available programs designed for men? Did she have transportation to the program? Did the treatment conflict with work, court dates, or other mandated services she was supposed receive?

Asking these questions is not about making excuses for truly unfit parents - it is about distinguishing between incapable parents and those who are poor and unable to get the help they need and want. Finding the answers to these questions is essential to ensuring that children are not unnecessarily and traumatically separated from parents who love them. The truth is that drug treatment can and does work, but the right kind of treatment is often unavailable. Family Rehabilitation Programs - ones that combine drug treatment with parenting and other services allowing parents to keep their children with them – are particularly successful and cost-effective. Yet, no mention is made of a "referral" to such a program, nor even to the existence of one anywhere in Monroe County.

Failure to get mental health treatment and to have "suitable housing" are two other reasons for finding neglect. Unfortunately, mental health programs often refuse to take a patient unless he or she has first overcome the addiction problem, and substance abuse programs want the mental health issues cleared up before they will provide drug treatment. As for the housing issue, the court suggests that only jobless people “often with substance abuse” problems wind up in shelters. In today’s economy, however, plenty of Americans working full-time jobs still can’t afford housing. In Monroe County, a person earning minimum wage would have to work 95 hours a week to be able to afford a two-bedroom home.

Ultimately the decision is not about drug abuse, housing or parenting ability - it is about the kind of individual blame and false economic analysis that fueled America’s eugenic sterilization policies. Although the decision does not rest on the claim that certain individuals must be stopped from passing on bad genes, it is based on the same kind of cost analysis; social problems from high taxes, to poverty, to the overburdening of our child welfare system can be solved by controlling the birth rates of certain individuals.

The court claims public services are already "generous" but that because of parents like these "[o]ur society has reached the breaking point" when it comes to the budgets for such things as schools and social services. Accordingly, the court holds “the constitutional right to have children is overcome when society must bear the financial and everyday actual burden of care.” The “logic” of this decision, however, applies to any impoverished family, regardless of whether there is a substance abuse issue. Under this standard, the good, loving parents of children in inner-city Rochester who lose their jobs and incur catastrophic medical bills, should not be allowed to procreate. The hypothetical couple in the wealthy Rochester suburb of Brighton or Pittsford who get roaring drunk or do cocaine every night - but hire a nanny at their own expense - are welcome to have as many children as they wish.

As for America’s "generous" expenditures on child welfare, the entire federal commitment is about one half of one percent of the total federal budget. The cost of foster care, also cited by the court, reflects less on irresponsible parents than on failed policies that allocate huge amounts of money to remove children from their parents, but virtually nothing for services that would help families stay together.

In fact, it would be hard to find a modern industrial society that does less for its poorest families. The disappearance of unskilled manufacturing jobs, the lack of educational opportunity, a national health insurance program, paid parental leave, or adequate childcare for working families are structural, societal problems that conspire to make it impossible for large numbers of very good human beings to be able to support their children financially. Significantly, the only services that the judge mentions will be provided at "no cost" are birth control, including sterilization.

By sending the message that the system has plenty to offer troubled parents when, in fact, it does not, and by offering a seemingly quick fix solution - stop the bad people from procreating- the judge has done nothing to protect children and much to justify further government cuts in programs that in fact can improve the lives of families and children.