Opinion piece published in the Colorado Sun, May 25, 2021
For the past year, parents and family members complained that a judge in Arapahoe County was biased against them because they were Black. I know this because they complained to my office – the Office of Colorado’s Child Protection Ombudsman.
I would learn in time that the judge in question was entrusted with overseeing the county’s child abuse and neglect docket. Cases that require a judge to make life altering decisions for children and families – including decisions such as whether to remove a child from their parents’ care, determining whether a child should be placed in foster care or with a trusted family member, and whether to terminate a parent’s relationship with their child altogether. Decisions that can be unfairly tainted by racial stereotypes and bias.
The families that came to us expressed concerns that the judge favored white caregivers over Black ones and stated that they did not believe the judge appreciated the importance of ensuring Black children remain connected to their culture. Unfortunately, due to constraints in state law, our office has no legal authority to help these families in court proceedings.
Then the headlines appeared. On April 16th, 2021, the Colorado Commission on Judicial Discipline censured Judge Natalie Chase for repeatedly using racial slurs and making insensitive comments to various Black employees and other professionals regarding police brutality and systemic racism. The judge admitted making the comments and resigned.
The story would go viral. And while dozens of news outlets decried the behavior of the judge, none of the articles addressed the fact that the judge’s behavior confirms what researchers, lawyers and communities of color have known for decades and that is – that racial bias permeates every aspect of the nation’s child protection system. Data shows that children of color are removed from their families by child welfare agencies at a far higher rate than their white counterparts, are more likely to languish in foster care, less likely to be reunified with their families, more likely to be placed in group care, and will age out of the foster care system in greater numbers than their white counterparts.
When we talk about racial bias in the child protection system – we frequently look at the actions of law enforcement officers and human service case workers. And while it is critically important to review these systems, it should not be the end of our inquiry. Multiple professionals touch the lives of children and families every day, including mandatory reporters, case workers, medical professionals, lawyers, and yes, judges. Their actions should all be reviewed to ensure decision making is not based on racial bias.
The truth is racial bias is hard to ferret out. That is until someone’s conduct becomes so brazen that it becomes public knowledge, as was the case here. And then what? We become concerned, even outraged but to what end? The judge made tens of thousands of legal decisions that impacted children and families’ lives. The truth is the majority of these families will never learn of the judge’s censure let alone whether her conduct impacted their cases. Rather they will bear the weight of her decision making for the rest of their lives, never knowing if the outcome of their case was based upon fairness or some other inappropriate criteria.
Sadly, there is little recourse for the families and children who appeared in front of the judge. There is no legal mechanism that allows for a broad sweeping review of all the judge’s cases to ensure the decisions she made were objective and not biased. This despite the fact that the judge admitted to the judicial discipline commission that she violated judicial ethics by “manifesting bias” and “prejudice” based on race and that her conduct “undermined confidence in the impartiality” of the justice system. The only cases that might be reviewed will be those where a family or child learns of the judge’s misconduct and has the resources to get an attorney to challenge the outcome of their case. In other words, very few of this judge’s caseload will be scrutinized for judicial bias.
This seems like a patently unfair outcome – a system acknowledges harm but then places the burden on children and families to show that their case was impacted by the judge’s actions.
In the end, no one should be satisfied with the outcome of this situation. To be clear, racism in the child protection system is not over because a single judge is censured and choose to resign under pressure. Rather than being satisfied with ourselves, believing incorrectly that we have eradicated the problem, maybe we should be asking some much deeper questions such as: What would it take to create an anti-racist justice system? What will it take to prevent the tragic miscarriage of justice that took place here? Most importantly, how could this same judicial system also provide true justice and actual remedies for some of our most vulnerable citizens? These are the questions that should demand all of our attention now.
