FEATURE CONTENTS INTRODUCTION 539 I. SITUATING TIME AND MARGINALIZATION IN THE 548 FAMILY REGULATION SYSTEM A. Beginning Family Regulation: Investigatory Stage 549 B. Continuing Family Regulation: Pretrial and Trial Stages C. Permanency in Family Regulation: Posttrial Stage 558 II. CONCEPTUALIZING TEMPORAL MARGINALIZATION 559 A. A Critical Analysis of Time 560 B. Time and Managerial Justice: Performance and Procedural 563 Hassle III. SITUATING TEMPORAL MARGINALIZATION IN THE 566 FAMILY REGULATION SYSTEM A. Constriction 566 B. Stretching 576 1. Family Separation and Protracted Hearings 576 2. Barriers to Services and Treatment 585 3. Prolonging Safety Checks and Clearances 587 C. Indeterminacy 590 D. Interplay of Temporal Dimensions 594 IV. IMPLICATIONS: RECLAIMING TIME 599 A. Prefacing the Implications of Temporal Marginalization 600 B. The Managerial Level: The Perils of 601 Family Regulation Reform C. The Epistemic Level: Time as Experienced 605 CONCLUSION 611 CODA 612
INTRODUCTION
"Counsel, turn around. What do you see there? Look at the clock! Where is your client?" (1)
In 2019, advocate and parent Elizabeth Brico described the impact of being separated from her daughters by the State of Florida. As her trial for the permanent termination of her parental rights approached, she reflected on the changing role of time in her life (2):
My clock is up in late August. At the beginning of last year, my life was a mess of sleepless nights, playdates, toilet training, and seemingly endless house chores. There never seemed to be enough time in the day Now, my life is a series of endless, empty hours broken only by the routine of my court-mandated services. Instead of fixing breakfast and coaching my girls through brushing their teeth and dressing for school I drink coffee alone before biking through the heat of Florida to three and a half hours of intensive outpatient therapy, five days a week. I am not greeted in the afternoon by my daughters, but with texts from a faceless social worker directing me to take random drug tests. My days are shaped by paperwork, mandates, and a persistent sense of longing.... Every time I see my daughters now, something has changed: a favorite color, a hair style, a shoe size. I am missing everything, and I have no idea when or if my real life will begin again. (3)
Brico goes on to describe the hurdles and setbacks she faced leading up to this profound sense of temporal distortion. She describes the lack of support and the pressures of having to act quickly to avoid permanently losing her children, all while waiting months for treatment referrals. With her mental health declining after the removal of her children, she eventually "began to believe that... [she] was fighting an unwinnable battle" (4) against the family regulation system. (5) Ticking clocks and time pressure alongside procedural languor, changing expectations placed on parents, and the permanent consequences of decisions made in a snap: the moment of family separation marks the compression of the past, present, and future.
***
This Feature discusses multiple aspects of time and family regulation: the management of time through timelines and deadlines, time as a vehicle for social stratification or a medium of subordination, and time as experienced by those navigating the system.
Timelines and deadlines shape all aspects of the legal process. This is true across legal systems. Defense attorneys may use time strategically to navigate and mitigate punitive immigration sanctions. (6) In criminal court, judges regularly issue bench warrants for people who fail to appear at hearings scheduled for their cases. (7) In housing court, a tenant's failure to appear for the scheduled court date can result in their eviction. (8) Temporal inequities appear at all stages of the court process and are perhaps most prominent in low-level courts designed for the mass disposal of cases and the management and punishment of individuals. (9) Legal scholarship has long criticized lower criminal courts as engaging in the "undignified offhand disposition" of cases against low-income people. (10) Others have argued that state civil courts subordinate racially and economically marginalized litigants through "racialized extraction and dispossession... facilitated and justified through racialized devaluation." (11) The devaluing of already-marginalized people's time is one way that racial hierarchies are reproduced. (12) Traveling to court for appearances can take hours. Once in the courthouse, people are frequently expected to wait hours for appearances that merely last minutes. Regular trips to and from the courthouse are financially burdensome for those already living in poverty. The financial burden is exacerbated when attending court dates means losing a full day of work every few weeks, putting employment at risk, having to pull from scarce resources to organize childcare, or missing public-assistance appointments.
As Professor Renisa Mawani writes: "[L]aw's time has too often been assumed rather than problematized." (13) Indeed, until recently, the construction of time in and through legal systems has received little sustained attention in legal scholarship. (14) Today, the study of legal time and its impact on Black and brown people is receiving increased attention. A few recent articles focus on the relationship between race, time, and the law across subject areas. (15) A body of literature draws on critical theories, postcolonial studies, and Afrofuturism (16) to examine the relationship between power, law, and time. What characterizes this work is that it goes beyond the mere observation that time impacts the analysis and practice of the law. (17) Instead, these scholars observe that time is "integral to the... epistemology of law" and examine the ways dominant temporalities perpetuate subordination. (18)
In adding to this conversation, this Feature identifies and conceptualizes time as a marginalizing force in the family regulation system. This Feature identifies three temporal dimensions in the family regulation system: constriction, stretching, and indeterminacy. Impacted parents navigate (1) constriction in the race against permanent legal separation; (2) stretching in the slow process of having to prove themselves to the state; and (3) indeterminacy in the ever-present possibility that the state's concerns will no longer focus on a specific moment in time--the moment that gave rise to the underlying allegations--and instead, could change drastically during the course of the case. While these temporal dimensions may appear in tension with one another, they are mutually reinforcing, and families experience their effects concurrently. This Feature examines how their interplay exacerbates an already-conflictual relationship between the state and marginalized parents. Once a family is separated, the parents are up against a quickly approaching deadline--permanent legal separation looms on the other end. The longer the separation, the more likely that the state will attempt to sever the legal child-parent relationship permanently. This Feature argues that neutral conceptions of time fail to account for how the construction of time in the system fixes parents in time, (19) devalues time as a resource, reproduces social stratification, and privileges the state while disadvantaging families. This is not to say that temporal marginali-zation is the product of individual actors' conscious decision-making or intent. As Professor Kelley Fong puts it: "[T]hrough often well-meaning people trying to help, governments perpetuate marginality and reinforce existing inequalities." (20)
So far, most scholarship in the field focuses on how deadlines speed up the permanent separation of families. (21) For example, several scholars and advocates have critiqued how federal legislation paved the way to fast-track severance of legal parent-child relationships. (22) Indeed, after the enactment of the Adoption and Safe Families Act (ASFA) in 1997, permanent legal separation through the termination of parental rights increased. (23) And, as Professor Chris Gottlieb points out, so did the number of legal orphans (24)--children who have lost their legal relationship with their parents and are not adopted. (25) ASFA specifically encourages states to file termination petitions after a child has spent fifteen out of twenty-two months in the foster care system. States that give parents more time for family reunification risk losing federal funding. After the implementation of ASFA, the number of children each year who had their legal relationship with their parents terminated increased significantly. (26) This Feature examines how this constriction of time interacts with the surveillance of parents during the stretching of slow-moving phases of separation and adjudication, and how this relationship is complicated by the fact that the focus of the state is in constant flux. For example, a case that begins with allegations that a mother exposed her children to acts of domestic violence inflicted against her (27) may later focus on her own alleged marijuana use. This Feature surfaces how the interplay of constriction, stretching, and indeterminacy facilitates ongoing monitoring of current and future behavior and ultimately leads to the "slow death" of impacted families. (28)
The family regulation system holds the unique power to separate families for both short and extended periods of time. In many states, family regulation agents can separate families without a court order. (29) Family court judges can order the removal or reunification of the family once a case is filed in court. From 2017 to 2021, between 200,000 and 270,000 children entered the foster care system each year. (30) A recent report by Human Rights Watch and the American Civil Liberties Union (ACLU) has called state-induced family separation a national crisis. (31) The family...
