by Brian Shilhavy
Editor, Health Impact News

Josh Gupta-Kagan, a professor of law at the University of South Carolina School of Law, has just published a new report on “America’s Hidden Foster Care System.”

Professor Gupta-Kagan states that there are about as many children in this “hidden” foster care system as there are in the “formal” foster care system.

The “formal” U.S. foster care system currently has over 400,000 children in foster care, which means that in total there are potentially well over 800,000 children in the U.S. who have been removed from their parents. He reports:

In most states, child protection agencies induce parents to transfer physical custody of their children to kinship caregivers by threatening to place the children in foster care and bring them to family court.

Both the frequency of these actions – this Article establishes that they occur tens and likely hundreds of thousands of times annually – and their impact – they separate parents and children, sometimes permanently – resemble the formal foster care system.

But they are hidden from courts because agencies file no petition alleging abuse or neglect and from policymakers because agencies do not generally report these cases.

While informal custody changes can sometimes serve children’s and families’ interests by preventing state legal custody, this hidden foster care system raises multiple concerns, presciently raised in Supreme Court dicta in 1979.

State agencies infringe on parents’ and children’s fundamental right to family integrity with few meaningful due process checks. Agencies avoid legal requirements to make reasonable efforts to reunify parents and children, licensing requirements intended to ensure that kinship placements are safe, and requirements to pay foster care maintenance payments to kinship caregivers.

Professor Gupta-Kagan goes on to explain that recent changes in Congress, including the passing of the Family First Act, actually provides incentives for this “hidden” foster care system under the seemingly good practice of encouraging “kinship placement.”

Richard Wexler has written similar analyses of the Family First Act in the past. See:

“Family First Act” Has a “Presents for Pimps” Loophole to Allow Sex Trafficking to Continue in Foster Care Group Homes

Don’t Believe the Hype: The Family First Act is a Step Backwards for Child Welfare Finance Reform

From the Introduction of Professor Gupta-Kagan’s report:

The state child protective services (CPS) agency receives a call alleging that a parent has abused or neglected a child. The CPS agency investigates and concludes that the parent has, in fact, abused or neglected the child, and further determines that the child is in such danger in the parent’s custody that the child needs to live elsewhere immediately.

Accordingly, the agency identifies kin who can take care of the child—the child’s grandparent, aunt or uncle, or godparent—and acts to ensure the child lives with that person, at least temporarily.

At this point, one might expect the CPS agency to involve a state family court.

The state is limiting one of the most precious substantive liberty rights recognized by the Constitution—that of parents to the care, custody, and control of their children, and the reciprocal right of children to live with their parents.

Balancing that fundamental right to family integrity with the state’s parens patriae power to protect children from abuse and neglect is the subject of a complex body of federal and state constitutional and statutory law requiring court hearings focused on parental fitness and child safety.

Yet in states across the country, this fact pattern happens without court involvement or oversight.

Instead, the agency threatens to remove children and take parents to court unless they agree to change their children’s physical custody to the identified kinship caregiver.

The state thus effectuates the child’s loss of their parent’s care and the parent’s loss of their child’s custody without any other branch of government checking or balancing the agency’s actions or anyone getting a lawyer.

It is as if a police department investigated a crime, concluded an individual was guilty, did not file charges or provide him with an attorney, and told him he had to agree to go to jail for several weeks or months, or else they would bring him to court and things could get even worse.

Available data shows the practice occurs with great frequency. States do not track the number of these cases precisely (a problem on its own), but this Article combines a variety of empirical studies and state-specific documentation to demonstrate that these cases likely separate tens or hundreds of thousands of children from their parents annually, often for significant periods of time and sometimes permanently.

It is thus a practice on par with formal foster care—both in the number of families affected and in the impact on those families.

This is America’s hidden foster care system. It is a legally undomesticated process in which state agencies effectuate a change of custody for thousands of children with few, if any, meaningful due process checks.

State agencies thus coerce a surrender of fundamental constitutional rights with no lawyers or legal checks. This action, and what happens to the children and families subsequent to this action, is hidden from courts, because agencies file no petition alleging abuse or neglect.

It is hidden from the public, the federal government, and policy-makers because federal funding statutes do not require states to count or report cases in which they arrange for hidden foster care.

Hidden foster care raises multiple concerns. The first and most obvious is whether threatening to remove children if parents do not place them with kinship caregivers renders such placements involuntary, thus violating due process.

Substantively, this lack of oversight of agency determinations that children must be separated from their parents risks unnecessary and harmful separations.

Given CPS agencies’ wide discretion, the limited information often available at the beginning of a case, and the need to make quick decisions, it is easy to imagine many errors occurring, especially without court oversight.

This Article’s concern is that, absent legal regulation, the status quo gives CPS agencies tremendous power to determine the unusual case in which hidden foster care is appropriate.

Given the weighty stakes involved and the state power exercised, more procedural protections than are currently provided should be required.

Hidden foster care requires renewed attention because, as this Article establishes, a growing set of recent federal and state statutes and policies institutionalize and incentivize the practice, without imposing meaningful regulations.

This Article is the first to explain how the present child protection funding system creates incentives for states to avoid formal foster care and, as importantly, how recent (and otherwise positive) federal financing reforms risk further institutionalization of hidden foster care without regulating it.

Moreover, relatively recent state statutes and policies codify the practice without providing much of any regulation. Rather than add essential substantive limits and procedural protections to ensure safety plans that respect the rights of affected parents, children, and kinship caregivers, state policies formalize hidden foster care without addressing its core problems.

[T]he federal government should take this parallel system of foster care out of hiding by requiring states to track the number of cases in which its actions lead to parent-child separations without formal foster care, and what happens to affected children and their families.

Presently, the absence of clear data on the frequency of its use, its duration, the safety of children in hidden foster care, and other impacts on children and families limits policy discussions regarding this practice.

Given its prominence and the severity of its infringement on family integrity, gathering basic data regarding hidden foster care is essential to future development and evaluation of policies governing this practice.

Download and read the entire report here.