71 Am. U. L. Rev. 1899 (2022).

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Pregnant and parenting youth in foster care are subject to a range of laws, policies, and practices that expose the realities of a child welfare system structured to focus on surveillance instead of support and family regulation instead of family integrity. Informed by my experience representing foster youth who become parents, this Article considers how youth in care are presumed unfit to parent their children because of a history in foster care and their age. A youth’s status as pregnant or parenting is weaponized to subject them to additional scrutiny, threats, and a shifting burden to justify their fundamental right to legal and physical custody of their children, free from state intrusion.

Recent studies show that youth in care are more likely to be accused of abuse and neglect and to have their child removed from their care than their counterparts who are not in foster care. This Article identifies state laws and agency practices that codify this increased level of supervision without providing the commensurate protections afforded to nondependent parents with a report of maltreatment or case in family court. Examples of these policies include social holds at hospitals, voluntary placement agreements with child welfare agencies, and targeted social service practices requiring foster youth to meet a higher burden to demonstrate their ability to parent and maintain custody of their child.

Ultimately, an interrogation of the child welfare system’s treatment of pregnant and parenting youth leads us to consider who is seen as worthy and able to parent, and who is seen as needing to be scrutinized and policed in their parenting. This Article recommends the expansion of recent legislation enacting specific protections for pregnant and parenting youth in foster care, increased legal representation when pregnancy is disclosed, and services available without coercion or increased scrutiny.

* Practice Professor of Law and Director, Interdisciplinary Child Advocacy Clinic, University of Pennsylvania Law School. The Author wishes to extend her deep appreciation to all of the pregnant and parenting youth in foster care who have shared their story and exemplified strength in their fight for their family’s unity, steadfastness in their unwavering love for their children and resolve in enforcing their rights as parents and youth in foster care. Thanks also to Bethany Callahan and the Law Review editors for their care, attention, and diligence with this Article.

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