Backers of a bill that tries to legitimize hidden foster care in Virginia say it creates guardrails. On the contrary; it sends the rights of children and families careening off a cliff.

A judge in neighboring North Carolina says the same approach is unconstitutional, one county alone has paid more than $53 million to settle lawsuits and there even have been criminal charges.

There are two very important things to know about the process by which a child welfare agency removes a child from a parent and places that child with some other kinship caregiver.

1. This process, known as kinship foster care, is usually the least harmful form of foster care.  
2. But it’s still foster care.  Let me repeat that: 

Kinship care is foster care.

Kinship care is foster care.

Kinship care is foster care.

For a child, a journey that begins by being suddenly yanked out of the home, torn from parents and familiar surroundings and carried off, often in the middle of the night is severely traumatic – no matter where that journey ends.  Kinship foster care cushions the blow, but the harm of removal is still present.  

This bears repeating since the child welfare establishment here in Virginia has been doing a great job of hoodwinking lawmakers into thinking kinship foster care isn’t foster care.  They’re rushing to support a bill (HB 27/SB 39) that would, in fact, make things worse for children, parents and kinship caregivers alike.  The bill even has the Orwellian name Kinship as Foster Care Prevention Program. 

Even without the bill, this sleight-of-hand already exists in Virginia.  Virginia, like many states, has a shadow system of hidden foster care. Parents are coerced into “voluntarily” giving up the few due process protections they have and surrendering their children to the hidden foster care system. 

Essentially, these are blackmail placements.  The caseworker says: We want to take away your child.  You could fight us in court, where you’re entitled to free legal counsel if you’re indigent,  where federal law requires us to make reasonable efforts to keep your family together and where an actual judge decides if we can take your children away.  But if you do that and you lose – and you probably will - we’ll throw the kids in with total strangers and maybe split them up while we’re at it.   On the other hand, if you give up all those rights and let us do whatever we damn well please, we promise that we’ll place them with Grandma.   

Nationwide, there may well be as many children in these blackmail placements as there are in official foster care.  In Virginia, the proportion in hidden foster care is probably even higher.  

The Virginia bill changes almost nothing – except to try to give the whole practice a patina of legitimacy.  Proponents say over and over that the law adds “guardrails” to the hidden foster care process.  On the contrary, the law would send the rights of children, families, and kinship foster caregivers careening over a cliff. 

Under the terms of HB 27/SB 39: 

● Child welfare agencies remain free to bypass even the most minimal due process protections.  They don’t have to make “reasonable efforts” – in fact, the bill as written fails to require these agencies to make any effort – to prevent placement or to reunify the family.  No lawyer gets to fight the decision, no judge gets to review it. 

● The bill says families must be notified of their right to consult a lawyer.  But there is no funding to pay for those lawyers if the family is indigent – and they’re almost always indigent.  (Proponents point to a separate bill to provide such counsel – but there’s no guarantee it will pass, it’s not clear when it would take effect if it does pass, or whether there would  be enough funding to cover the entire state.) 

● Proponents say the placements are “voluntary.”  It’s claims like that which explain why I so often
invoke Orwell in these blog posts, though in this case, The Godfather seems more appropriate: It’s the ultimate example of an offer you can’t refuse. 

● Proponents point to time limits: The placements can last 90 days – oh, wait, that’s 90 days and then, if we feel like it, we’ll add another 90 days – “voluntarily,” of course.  But for young children, time passes far more slowly than for adults – six months can be agony.  For a newborn taken at birth – it’s a lifetime. In fact, 180 days actually is longer than 21% of Virginia placements made through the formal court process.   

And that assumes the child will even come home.  After those 180 days, the child welfare agency still can go to court and demand an official placement – they even can point to the fact that the child was out of the home all that time as evidence of supposed “unfitness.” And all of that time, 3-6 months can be tacked on as a fast track to termination of parental rights.  

● Proponents say the bill would make kinship foster care placements easier.  Easier than what?  It’s just as easy to make a kinship foster care placement by going to the judge and saying: “Your honor, we want to place this child with grandma.”  That Virginia may have close to the worst record in America for doing it this way –  at best, only 12% of official foster care placements are with kin -- simply reflects Virginia’s addiction to hidden foster care.  Other states and localities have no problem. 

Nationwide 35% of foster children are placed with relatives – the formal, legal, on-the-books way.  In Montana, it’s 40%.  In Illinois 45%.  In Arizona 53%.  The County-run systems in Philadelphia and Pittsburgh place more than half their foster children with relatives – without sacrificing due process or taking any other shortcuts.  This bill only makes foster care placements easier than not taking children needlessly in the first place; because there is no lawyer fighting for the family and no requirement to make reasonable efforts. 

● The bill confers no benefits on kinship caregivers and it may cost them.  They won’t be paid any additional funds.  But they will be subjected to additional, often onerous surveillance by child protective services agencies.  Depending on the specific case, kinship caregivers may lose out on benefits to which they might be entitled if a placement is court-ordered. 

Oh, and two things more: 

● Hidden foster care is unconstitutional.  A judge ruled it unconstitutional in North Carolina.  One county alone in that state has had to pay $53 million in damages to settle dozens of lawsuits.  There even have been criminal charges.  The Virginia bill won’t fix these issues. You can’t make an unconstitutional practice constitutional by passing a law. 

So why push for a law that doesn’t benefit children, doesn’t benefit families, and doesn’t benefit kinship care providers?  Because of the one group it does benefit: The Virginia Department of Social Services and county child welfare agencies.  With hidden foster care, they don’t have to deal with all that pesky due process, and they can mislead the public about the true extent to which they take away children.

Indeed, Virginia’s Commissioner of Social Services, Danny Avula, seemed to brag about doing just that. According to Virginia Public Media: 

Avula noted Virginia’s rate of placement with relatives is less than half of the national average — a statistic he said is skewed by the fact that local social services departments in the state prioritize informal placements with relatives before sending a child into the foster care system. 

“The upside of that is that it keeps our overall numbers of kids in formal foster care low,” Avula said. [Emphasis added.] 

And finally, one last point: 

Foster care is traumatic.  Kinship care is foster care.