How Covid-19 Supercharged a Foster System Crisis

How Covid-19 Supercharged a Foster System Crisis

How Covid-19 Supercharged a Foster System Crisis

Parents are losing their kids as they struggle to navigate bureaucracies upended by the pandemic.

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In spring 2020, Kristine Cook thought she would finally be reunited with her kids. A year earlier, after a relative had sexually abused three of her four daughters, protective services in Greene County, Mo., had placed her children in foster care. Cook was recovering from a decade of domestic violence and drug, alcohol, and mental health problems, but she said she was still able to care for her daughters. Since then, she has attended therapy, parenting classes, and drug treatment. She was doing everything to prove to the authorities that she was capable of rebuilding her family.

But then Covid-19 hit. The pandemic halted in-person court proceedings. She said she lacked Internet access and couldn’t get online to access the social services in her reunification or to attend her virtual hearings. As a result, she wasn’t there as the court weighed whether her children should be permanently separated from her. For several months, Cook told me, “I wasn’t actually able to defend myself” before the judge.

“I was doing everything that they asked me to do and…my case was not going anywhere,” she said. As the separation from her children dragged on, “I felt stuck. I felt helpless.”

(Missouri Department of Social Services told me that information on specific cases is “closed and confidential,” but that its child welfare division “works to identify needs, resources, barriers, or limitations to best support the family’s effort to become safe.”)

Right now, there are more than 400,000 children in foster care in the United States and, like Cook, many of those kids’ parents have been struggling to navigate family courts and social-service bureaucracies upended by the pandemic.

When Covid-19 shuttered schools and grounded kids and parents at home, many child welfare authorities feared surging rates of abuse and neglect. One study looking at the first months of the coronavirus outbreak in New York City cited a dip in reports as evidence of the danger that teachers—who, as “mandatory reporters,” are legally obligated to report any suspected child abuse—could no longer look out for signs of abuse or neglect. Reports of child maltreatment in New York City dropped 51 percent in the spring of last year compared to the same period in 2019.

California, Illinois, Florida, and other states saw similar declines in reported child abuse along with a slew of news stories about how they might indicate rampant, undetected abuse.

Advocates for parents in marginalized communities, however, say the alarms raised about hidden abuse reflect ingrained biases in child protective services, too eager to remove kids from their homes and drag parents to court in the name of saving children.

Nationwide, Black children are significantly overrepresented in foster care. They make up about a quarter of the foster care population but just 14 percent of children in the general population. In New York City, as of the end of 2019, Black and Latinx youth made up about 90 percent of the youth in foster care.

Richard Wexler of the National Coalition for Child Protection Reform sees a correlation between anxieties about underreported child abuse and the cruel distrust of parents of color. He told me, “The theory is that as soon as these overwhelmingly middle-class, mostly white professionals no longer have their eyes on overwhelmingly poor, disproportionately nonwhite children, their parents shall unleash upon them a pandemic of child abuse.”

Legal scholar and former family defense attorney Shanta Trivedi said, “The same biases that we see throughout the system are present in mandated reporting. Mandatory reporters see kids who are coming to school in less-than-ideal clothes, or [having eaten] less food than they should or whatever. And they’re likely to report those kids.… But it’s not really a secret that their judgment of parents of color is much stronger than their judgment of middle-class white moms.”

Most reports of child maltreatment turn out to be unfounded. According to federal data, investigations could not substantiate the reports for more than 80 percent of children examined by child protective services in 2019. And the vast majority of substantiated cases do not involve abuse but, rather, neglect—which is generally the result of poverty, not malice.

Though there is not yet comprehensive child abuse and neglect reports from 2020, an analysis by University of Chicago researchers of historical reporting data found that even when there is a drop in child welfare referrals due to the lack of in-person schooling, “the number of reports that result in substantiated maltreatment”—that is, reports later proven to meet the formal definition of abuse or neglect—“is unlikely to fluctuate.” In other words, factual reporting of serious harm continued at the same rate; false and erroneous referrals declined.

As parents struggle to support their families through the pandemic, “no one is acknowledging all of the hard work and dedication that families have put into their children,” said Jeanette Vega, assistant director of the New York City–based parents’ advocacy network Rise. “And the system still says, ‘We need to save children.’”

There is undoubtedly a link between the pandemic and the conditions that might lead to child maltreatment. The pandemic is exacerbating economic and social hardships among low-income families. Losing a job, being threatened by eviction, or losing family members to Covid-19 can create extreme stress and in some cases, drive drug relapses, intimate partner violence, or violence toward children. Severe economic instability could also affect a parent’s ability to care for their child, which could in turn manifest as signs of neglect—like when a kid fails to show up for virtual class for two weeks in a row, or comes to day care looking gaunt and disheveled.

But even families are in crisis, critics of the child welfare system say protective service case workers tend to alienate vulnerable parents by aggressively investigating and criminalizing them and removing kids arbitrarily.

Ironically, Wexler said, the mandatory reporting system ends up flooding child protective services with baseless complaints, making it harder for case workers to focus on actual cases of serious maltreatment. The excessive surveillance of parents, he argued, “discourages people from seeking help, and it overloads the system with so many false allegations, trivial cases, and poverty cases, that there’s less time to find those relatively few children in real danger. That’s true in the best of times. Now with Covid, you’ve magnified the problem.”

Typically, a child-abuse report automatically triggers an investigation by child protective services. A child welfare agency either places a family under some form of monitoring or removes a child immediately. The case then goes to a family court judge for review. When a kid is transferred to foster care, the parent’s contact with them is limited to supervised visits. The court commits parents to a “reunification plan,” assigning them to various social services like drug treatment or parenting courses.

The process is complicated by the federal Adoption and Safe Families Act (ASFA), which sets a timetable for the court to seek a “permanent” placement. If the child remains in foster care for 15 of 22 months, the state can seek the termination of the parent’s custody, which “frees” the child for adoption. But families can be exempted from the timetable under some circumstances, including if the child welfare authorities have not demonstrated that they have made “reasonable efforts” to reunify the family or if the court finds termination is not in the “child’s best interest.”

Early in the pandemic, the Children’s Bureau, part of Health and Human Services, issued guidance encouraging judges and child welfare authorities to relax the ASFA timeline. And child welfare agencies and courts across the country have modified their operations—for example, by suspending some in-person court proceedings and conducting visits with social-distancing precautions. But advocates say many of these changes have not helped, and some have even prolonged separation and undermined due process.

Opportunities for contact, for instance, have been abruptly cut off for many parents with children in care. Social distancing and the closure of many public meeting spaces means drastically reduced opportunities for supervised visits. Now parents often can only see their kids through a screen, which can be emotionally wrenching.

In Colorado, a survey of lawyers with the Office of Respondent Parents Counsel (ORPC), which provides free lawyers for parents in family court, reported that about two-thirds of the attorneys they surveyed said their clients’ visits with children had fallen by at least half since the beginning of the pandemic.

Joe Homlar, director of child welfare at the Colorado Department of Human Services, said that “decisions about visitation are made locally on each case by a judge or magistrate,” but that the agency aimed to “reunify kids and parents whenever possible, and so maintaining their relationship as much as possible is a top priority for us.” The ORPC survey, Homlar acknowledged, reflects the limitations on visits under stay-at-home orders, but noted that visitation practices had changed over time: “Currently, most Colorado counties are open to in-person visitations between parents and their children. When we’ve found that isn’t the case, we’ve tried to work with counties to identify measures that will allow for in-person visits within local public health guidance.”

Meanwhile the pandemic has also disrupted parents’ court-mandated reunification plans. Many required services, like drug treatment programs, have been shut down or transitioned to virtual platforms. Parents may also be set back if they have lost their jobs and faced mental health problems as a result of the pandemic. More than 60 percent of the attorneys surveyed in Colorado said clients had been unable to comply with treatment plans in most or all cases since the beginning of the pandemic.

“To have everything shut down and to be barred from having in-person visitation with your children, and to be unable to access your treatment provider and your normal supports, means that these parents have really been left behind,” said Ashlee Arcilla, the deputy director the ORPC.

Some family defense attorneys say that courts are still adhering to the pre-Covid federal timetables that encourage authorities to push kids toward adoption.

Melissa Thompson, executive director of the ORPC, said that in some counties in Colorado, judges were “just rushing to terminate [parental rights] during a time when we know parents didn’t have the access to in-person visitation or support or treatment, or it was super-hard to get in-patient drug treatment because of the pandemic. And that simply is not fair.”

Now, a year into the pandemic, Thompson said, “we are seeing a flood of termination hearings even in cases where parents have never met caseworkers in person or had less than a handful of in-person visits with their children.”

In New York City, the pandemic has similarly snarled both the child-welfare bureaucracy and the family-court process. While the city’s total foster care population declined from 2019 to 2020, the number of kids released from foster care, including those returned to their parents, dropped sharply as well, from about 4,100 to 3,100.

The city’s Administration for Children’s Services (ACS) says that the number of terminations of parental rights per month has declined 70 percent from pre-pandemic levels. In part, this is because court hearings were restricted during the initial months of the pandemic and partly because, as the ACS said in a statement, “while the Family Court has been operating with limited capacity, [it had been] conducting proactive reviews of the cases of [more than 3,500] children with a goal of reunification.”

Nonetheless, Brooklyn Defenders, a legal aid group providing counsel to parents in family court, argues that those statistics do not tell the whole story. The group’s lawyers report resistance from the court when seeking to discharge children from foster care through emergency hearings. They also say the court has pressed forward with termination cases via videoconferencing, which advocates see as unfair to parents.

“We believe the court’s resources should really be focused on reuniting families,” said Nila Natarajan, supervising attorney and policy counsel at Brooklyn Defenders. In light of the court’s apparent reluctance to facilitate hearings to reunite families, she said, “It’s really telling that the courts want to have really large chunks of time for them to do virtual termination trials when there is a permanent severance of a family’s relationship.”

The ACS acknowledges that the pandemic has disrupted its normal operations—limiting home inspections and moving visitation and court proceedings online. But the agency has stressed that it is providing support to vulnerable parents through family centers located in communities where ACS intervention is most common. The ACS also said it would seek to offset the decline in reporting by teachers by working with other city employees that interact with kids, such as law enforcement, “to ensure they’re making reports if they suspect abuse or neglect.”

But Vega from Rise told me that she fears the ACS is deterring parents from pursuing government support even when they really do need help. “Families are scared of anything affiliated with ACS,” she said. “Parents would rather hide their struggles, stay hungry, not go reach out for anything, because of the fear that ACS will get involved.”

The long-term impact of the pandemic on child welfare systems remains to be seen. But advocates for reform hope that, because the pandemic has left so many families struggling socially and economically—not just poor parents of color—child welfare agencies might be prompted to take a more empathetic approach to helping families stay stable and together.

Even before the pandemic, some child welfare agencies were starting to undertake reforms to reduce the number of kids in care, address racial disparities in the foster care system, and shift from surveilling and criminalizing parents to providing services like family therapy and material support to prevent abuse and neglect.

Sandra Gasca-Gonzalez, vice president for the Center for Systems Innovation at the Annie E. Casey Foundation, a think tank on child and family policy, said that in cases of poverty-related neglect, “what families are really needing are resources to better support their family. They might need help with finding a job, they might need help trying to overcome eviction.” Advocates for child welfare, she added, should focus on “who really needs to be coming into the system and who really can be served better in the community.”

Beyond revamping services, Rise and other parent-led advocacy groups are demanding that governments shrink the foster care system and move toward a social-welfare infrastructure that prioritizes keeping families intact.

For families already entangled in the child welfare system, repairing bonds could prove so difficult and intimidating that some parents give up entirely. When the court process stalled, Cook lost hope. “There was so much with the strain of everything, then with me not being able to see my kids, and us not being able to fix our problems,” she told me. Rather than continuing to subject her family to a painful, seemingly interminable court process, she said she decided to allow her children to be adopted by their foster family.

Cook consented to the termination of her parental rights in November. Today, she’s in a relatively stable situation, living on her own and working a data-entry job. But, legally, she is no longer her children’s mother. Looking back, she thinks her case should have been handled differently.

“I regret my decision now,” she said, “because I’ve grown a lot more, and everything happened really fast.… I wasn’t able to process a lot of things then, because I was in denial about a lot of things. But I’ve had to face a lot of stuff, and it’s made me realize a lot of stuff that’s happened was not fair to me or my kids.”

Cook said she believes she could have proven herself capable of caring for her kids again. But the system, and the pandemic, robbed her of that chance.

“I wish I would have known everything I know now then. It would have turned out differently for me, I think. Because I pretty much laid down and played dead for them, because I didn’t know what to do.”

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