New Legislation Takes Aim at Hidden Foster Care
by Lizzie Presser
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Last month, Washington state Rep. Lillian Ortiz-Self, a Democrat, introduced a first-of-its-kind bill aimed at providing attorneys for parents who are facing hidden foster care, the subject of a ProPublica-New York Times Magazine investigation in December 2021. The story documented how, across the country, caseworkers who have not petitioned a court persuade parents to send their children to live in another home, often by threatening a foster placement if they refuse. The Washington bill unanimously passed out of the House Committee on Human Services, Youth and Early Learning on Friday.
The ProPublica-New York Times Magazine story exposed a shadow foster care system in which parents and their children have little or no legal protections. Caseworkers investigating allegations of mistreatment sometimes coerce parents to place their children with a relative, friend or family. Child welfare departments then often skirt their responsibility to keep families together or to monitor the informal arrangements, saving money in the process; the hidden system strips parents of access to free lawyers, judicial oversight and court-mandated services to attempt to reunite families.
The investigation focused on Cherokee County, North Carolina, and it revealed how children who had been diverted into hidden foster care there had suffered extreme consequences, like homelessness and alleged sexual abuse. Without any court oversight or access to legal representation, parents struggled to appeal the informal placements and reunify with their children.
The Washington state bill would provide parents with the option to consult by phone or videoconference with legal representation, through the Office of Public Defense, when the Department of Children, Youth and Families suggests a “voluntary placement agreement” to move a child to another home for up to 90 days. If after that consultation the parents request to have an attorney assigned to them, the Office of Public Defense would provide one. The state would roll out the program gradually, with full implementation by 2026.
The bill originated among the Keeping Families Together coalition, a group composed of child welfare stakeholders and activists. The coalition decided to focus its advocacy on providing pre-petition counsel because members wanted parents to be protected in the early stages of child welfare cases, when they often believe they have little choice but to comply with caseworkers’ requests in order to avoid a dependency hearing.
Between 2017 and 2021, an average of 538 children in Washington were removed from their homes through voluntary placement agreements each year. In about 35% of those cases, they were never returned home, according to data from the Department of Children, Youth and Families.
“Why wouldn’t parents be informed and why wouldn’t they be able to have counsel?” asked Shrounda Selivanoff, who leads Keeping Families Together and also directs public policy at Children’s Home Society of Washington. “That seems like the obvious step.”
This past summer, Keeping Families Together brought the idea to Ortiz-Self, who introduced the bill on Jan. 13. “Parents are at their most vulnerable when they are being asked to enter a voluntary placement agreement,” said Ortiz-Self, who, as a school counselor and mental health counselor, has witnessed the effects of family separation. “This seemed like a critical gap that needed to be fixed.”
Ortiz-Self is optimistic that the bill will continue to appeal to representatives across party lines as it makes its way through the House and the Senate. It is still unclear, though, how legislators will decide to allocate state funds this session and whether pre-petition counsel will be deemed a budget priority. The cost of the proposed legislation has yet to be assessed.
John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel, which works to ensure that parents are not deprived of their rights in child welfare cases, believes that the effort in Washington, if successful, could have countrywide implications. “This bill is unparalleled,” he said. “When you get one like this that a state passes, it can really help push change forward in other states.”
New recommendations around hidden foster care are also being considered at the national level. The Hidden Foster Care Working Group, a coalition advocating for hidden foster care reform, sent the ProPublica-New York Times Magazine article, along with other research and scholarship, to the federal Children’s Bureau, an office of the Administration for Children and Families, ahead of a meeting with the bureau this October. The working group shared its own statement of principles, which also recommends free counsel for parents.
At the meeting, Commissioner Aysha Schomburg, who heads the bureau, said that her team would release new guidance around hidden foster care to state agencies across the country, according to two participants. The Children’s Bureau has not provided additional information on the guidance it plans to issue or on whether it will include recommendations for due process for parents. The bureau did not return multiple requests for comment.