In my last commentary, I wrote about the tragic case of Harmony Montgomery, who disappeared after being placed with her father after four-and-a-half years in and out of foster care. Massachusetts is not unusual in keeping young children in limbo for excessive periods of time in the interests of reunifying or placing them with family members. While writing about Harmony, I heard from a foster parent in New Jersey about several children who are being sent home to their parents or placed with relatives after more than three years in foster care starting in infancy or early toddlerhood. There is strong evidence that these disruptions are harmful to young children given the attachments they form to their early caregivers. For this reason, a federal law is designed to curb this practice. Talking to foster parents and advocates revealed a conjunction of policy changes, agency culture and circumstances in New Jersey that are resulting in very young children being removed from stable pre-adoptive homes after as much as three years in these homes, starting in infancy or toddlerhood. But a group of advocates is determined to protect these vulnerable children by showing legislators the reality behind the state’s pious pronouncements about the importance of biological family.
I first wrote about New Jersey in February 2021, when the Department of Children and Families (DCF) was turning away would-be foster parents, an unusual situation among states, particularly during the Covid-19 pandemic. My investigation revealed a dramatic decline in substantiated investigations and foster care entries between 2013 and 2020, which could have been due to policy or practice changes making it harder to confirm child maltreatment or to an increased tendency to place children informally with relatives before concluding a maltreatment investigation. Since that time, the number of children entering foster care has leveled off, changing little between 2020 and 2021, and the agency has begun accepting foster parents again. However, the agency’s emphasis on biological ties at the expense of emotional bonds has been raising concerns among child advocates.
Research has shown that “adverse childhood experiences, known as ACES, that disrupt attachment relationships between children and their caregivers are a “significant predictor of risk for child emotional or behavioral problems.” This is why the federal Adoption and Safe Families Act (AFSA) included a provision requiring states to file for termination of parental rights (TPR) after a child has spent 15 out of the past 22 month in foster care, unless the child is living with a relative, services to address the conditions leading to placement have not been provided, or if the state can document a “compelling reason” why TPR is not in the child’s best interests.
But New Jersey’s Division of Child Protection and Permanency (DCP&P), part of its Department of Children and Families (DCF), has been moving away from considering the importance of attachment and timely permanency for young children. In large part, this change has been a response to the current dominance of an ideology emphasizing the importance of biological family bonds, the trauma caused by family separation, and the belief that if a child must be removed from home then the best placement is with an extended family member or family friend. These beliefs were all reflected in the Family First Act, which was passed in 2018 as part of the Bipartisan Budget Act of 2018. And now there are calls to repeal the AFSA timelines that encourage timely permanency to protect children from the trauma of being separated from longtime caregivers to whom they have become attached. Also contributing to the focus on blood ties was the growing attention to racial disparities in many areas, including child welfare. This focus was intensified by the murder of George Floyd by Minneapolis police, which led to comparisons between police and child welfare and calls to abolish the “family policing system.” One organization making this call is upEnd, a collaboration between the University of Houston and the Center for the Study of Social Policy, which just happens to be the court monitor for New Jersey’s long-standing class action suit, Charlie and Nadine H. v. Murphy.
In 2018, Christine Beyer became the DCF Commissioner. She came to New Jersey directly from Casey Family Programs, which describes itself as “the nation’s largest operating foundation focused on safely reducing the need for foster care in the United States.” I’ve written before about Casey’s outsized influence on child welfare policy, which the foundation uses to promulgate its mission to “to provide and improve — and ultimately prevent the need for — foster care.” With assets of $2.4 billion and spending of $111 million in 2019, Casey works to implement its mission by providing free consulting to states and localities, convening meetings, producing research and testimony, and helping place alumni like Beyer in government offices around the country.
In 2019, under Beyer’s leadership, DCF released a new strategic plan, which contained four “transformational goals,” one of which is “preserving kinship connections.” The plan dictates that family separation should be used as rarely as possible, but that when it is necessary to remove children from families to ensure their safety, DCF will ensure that children can remain with extended family or family friends. In aid of this goal, DCF set a target of placing 60 percent of children entering care with kin in the first seven days and 80 percent by the first 30 days.
The New Jersey State Legislature has endorsed the enhanced focus on kinshipn by passing legislation which was signed by Governor Phil Murphy on July 2, 2021. The new law adds a set of “findings” which states that “kinship care is the preferred resource for children who must be removed from their birth families because use of kinship care maintains children’s connections with their families.” But the findings go beyond simply establishing a preference for kinship care. They go on to negate the importance of a child’s attachment to a foster parent in decisions about kinship placement, with the following language:
f. The existence of a healthy attachment between a child and the child’s resource family parent does not in and of itself preclude the child from maintaining, forming or repairing relationships with the child’s parent or caregiver of origin.
g. It is therefore necessary for the Legislature to amend current laws to strengthen support for kinship caregivers, and ensure focus on parents’ fitness and the benefits of preserving the birth parent-child relationship, as opposed to considering the impact of severing the child’s relationship with the resource family parents [bold added by author].
In accord with this finding, the legislation eliminated the provision that allowed the use of evidence that separating a child from the child’s resource family parents would cause “serious and enduring emotional or psychological harm” to the child in initiating a petition to terminate parental rights. This elimination of any consideration of emotional harm to the child, no matter how serious or lasting, is disturbing. The result may be a generation of foster children that are ripped from loving, stable homes with the only parents they have ever known, causing lifelong damage. To make matters even worse, a child’s reunification with a birth parent or placement with kin may not last, but it may be too late to return the child to the foster family that raised them. Witness the case of Harmony Montgomery in Massachusetts. After her third failed reunification with her mother, her behavioral problems had escalated to the extent that the foster family that had provided the only safety and stability she had ever known no longer felt capable of caring for her. (And that’s before she was placed with her unvetted father and disappeared.)
The recent legislation did make some sensible changes that could help children achieve timely permanency. It requires that DCP&P first make reasonable efforts to find a suitable relative or “fictive kin” (family friends or trusted adults who have a preexisting relationship with the child), before placing a child with another person. This is helpful, because placing a child with kin right away prevents the need to remove the child from unrelated caregivers with whom the child has already bonded. It also reduces (to six consecutive months or nine of the last 15 months) the amount of time that a caregiver (including a foster parent) must have cared for a child before qualifying for Kinship Legal Guardianship (KLG), a permanency option that allows an adult with a relationship to a child to raise that child without terminating the parents’ rights.
But aside from the new provision requiring an upfront search for kin and reducing the time to qualify for KLG, the bulk of the policy, practice and legislative changes since 2018 has made it more likely for children in foster care to be removed from foster homes where they have lived for as long as three years. Talking to some of these foster parents raised alarming concerns about DCP&P’s disregard for the damage done to children by tearing them away from the only families they have every known (or can remember) at the age of three or four.
The foster parent who first approached me (I will call her “Ms. R”) has been caring for a child (I will call him “A”) since he was born over three-and-a-half years ago. A was removed from his mother as a result of her substance abuse and mental illness. Although A’s mother did visit, she did not begin to complete goals necessary for reunification until he had been in care for three years. A’s father, late to arrive on the scene due to his mother’s refusal to identify him, was barely engaged. DCP&P had already tried to terminate the rights of both parents, but the judge ruled against the agency, arguing that the father was not given enough time to prepare for reunification. The agency did not appeal, leaving A in limbo beyond timelines and without a clear plan going forward. But after that ruling, the agency began working with A’s mother, whose rights should have been terminated by the judge at the TPR trial. A is currently visiting with his mother twice weekly and has begun to exhibit problem behaviors on visiting days. On one occasion, A’s school called the CPS hotline after A returned from a visit saying “Mommy hurt me,” but DCP&P declined to investigate. A DCP&P worker raised concern about the mother’s rough handling of A during visits, but A’s mother managed to get the worker removed from the case. A’s mental health provider has suggested that the visits end to stop his problem behaviors, as A’s extreme aggression jeopardizes his placement at school and endangers other children. The provider also opposes reunifying A with his mother, but DCP&P appears to be undaunted: the judge has issued a “self-executing order” allowing reunification to proceed at the agency’s discretion without a hearing.
Ms. R referred me to Ms. S, who has been caring for “B” for three-and-a-half years, since she was five days old. B was removed from her parents due to neglect related to substance abuse and mental illness. The father almost killed B in utero by attacking her mother late in her pregnancy, sending her to the emergency room. At 10 months old, B was placed with a relative, but she came back into care neglected and sick after her father had taken her back and was live-streaming himself high with her on Facebook. After the pandemic began, visits became virtual and the parents were given extra time to comply with their case plans. When B was 18 months old, her father began bringing another relative to his visits with her. In her sixties, childless and with mobility problems, the relative nevertheless wanted to raise B and the DCP&P was happy to oblige. When B was two-and-a-half, her goal was changed to Kinship Legal Guardianship with the relative. B began progressively longer visits with the relative, returning to the foster home exhausted with an unused toothbrush, gastrointestinal problems, regressed behaviors and reports that her father was at the visits against agency requirements. The relative refused to speak to the S’s or to take B to trauma therapy. B’s attorney was in favor of adoption by the S’s, and a trial was scheduled and postponed multiple times. Before it could take place, DCP&P simply placed B with the relative at the age of three-and-a-half. B’s lawyer remained opposed to the move but with the new legislation discounting the importance of attachment to the foster parent in TPR cases, told the S’s that his argument would no longer carry weight with the judge.
Ms. R also referred me to Ms. T, who has been caring for “C” for almost three years. “C” came to the R’s at the age of 13 months old malnourished, dehydrated, unable to walk or crawl, and needing hospitalization, after his mother was arrested and her boyfriend brought the three children to New Jersey. C has global developmental delays; his two siblings are autistic and were placed in another home, but the siblings had regular visits. The goal was never changed from reunification, in part due to delays caused by Covid-19. After C had spent nearly three years with the T’s, DCP&P began to plan for adoption, but not with the T’s. C’s two autistic siblings had been moved to an unrelated foster parent who was willing to adopt all three children. Ms. T received a call one morning stating that overnight visits would start that Friday–in a home C had never visited before. Since the visits have started, C has become clingy at home and his behaviors have deteriorated in school to the extent that Ms. S now has to pick him up at noon from his all-day pre-K class. C’s attorney believes he should stay with the T’s and his pediatrician has expressed strong opposition to the move. But DCP&P appears to be resolved on keeping the children together, citing the 80-20 rule, which applies to placements within 30 days, not three years.1 Clearly, the agency believes that the blood ties between siblings who have never lived together outweigh C’s attachment to a foster family that has raised him for the last three-quarters of his life–including the foster “brother” he grew up with, who has now been adopted by the T’s.
In all of these cases, DCP&P chose to remove children from foster parents who had been caring for them for three or more years and wanted to adopt them. This is far beyond the timeline contained in federal and New Jersey law, which requires states to file for TPR after a child has been in foster care for 15 of the past 22 months. States are allowed to make exceptions based on the best interests of the child, the lack of services for the parents, or a child already living with a relative, but it does not appear that these exceptions applied in these cases. For the two children, B and C, who were placed or about to be placed with relatives, those relatives should have been identified and the children placed with them much earlier if the placement was going to happen at all. The goal of having 80 percent of children placed with kin within a month should not be cited to justify moving a child to kin after three years; yet DCP&P staff cited it to justify “C”‘s placement with a stranger after almost three years with his foster family
We should not make policy based on individual cases and we do not know how frequent these extended stays in foster care are or whether they are increasing in New Jersey. Data on how long children stay in foster care before achieving permanency is not available either in New Jersey or nationwide.2 Nor do we know the extent to which the pandemic has contributed to delays in permanency; it did not seem to affect the case of A, whose mother did not start working on her case plan for three years, but it seems to have contributed to the delays in permanency for “B” and “C.” In addition, a historically high shortage of family court judges has also been delaying the scheduling of hearings in New Jersey; the state Senate is moving to fill the vacancies now. However, it appears that policy and practice in New Jersey are moving in the direction of delayed permanency as children in foster care wait for parents to work on their case plans or appropriate relatives to appear. And the New Jersey Legislature’s elimination of attachment to foster parents as a criterion in TPR filings is clearly designed to remove one obstacle to reunification or relative placement outside the timeframes that are considered acceptable by child development experts.
It is unfortunate that New Jersey does not seem to be interested in collecting data that might cast light on the extent and impacts of the increased emphasis on blood ties. For example, child advocates worry that DCP&P may be increasingly waiving foster parent licensing requirements for kin caregivers at the expense of children’s safety, but DCF does not provide data on the number of waivers granted. Data on re-entry into foster care after reunification or permanent placement has not been updated on the data portal maintained by Rutgers University since 2019 and data on maltreatment after reunification has not been updated since 2018. Whether DCF is simply indifferent or prefers not to share this data is not a question I can answer.
BA small but growing group of New Jersey foster parents and child advocates is determined to push back against current trends and place children’s needs front and center where they belong. Begun in response to the dramatic decline in foster care entries and fears that children were being left in dangerous homes, the Child Advocacy Association of New Jersey (CAANJ), is housed inside a nonprofit (Miriam’s Heart) that supports foster and adoptive children and families. CAANJ fought unsuccessfully against removing the provision that allowed the use of evidence that separating a child from the child’s foster parents would harm the child in initiating a petition to terminate parental rights. Currently, the group is supporting bills that would require foster parents, relatives, pre-adoptive parents, or caretakers to be party to reviews or hearings involving a child under DCP&P care; establish an Office of Child Advocate or Ombudsperson; and increase the frequency of permanency hearings from every 12 months to every six months. They also have a wish list of legislation that they would like to draft if they can find sponsors. This includes a foster parents’ bill of rights and legislation allowing foster parents to be considered “kin” for placement and adoption purposes (not just Kinship Legal Guardianship) after the child has been with the family for a specified period of time; strengthening the requirements to search for relatives at the beginning of a child’s foster care placement; requiring TPR hearings to take place within six months of a child’s goal changing to adoption; allowing open adoption to be an option in foster care adoptions; and imposing uniform standards for whether resource, kinship, or biological caregivers when it comes to agency involvement, removal and reunification.
The national movement to place blood ties above attachment and bonding has found a faithful echo in New Jersey, where children’s needs are being disregarded as they are being reunified with parents or placed with relatives long after they should have been settled in permanent homes. Ironically, DCF has a “Statewide Action Plan” for addressing ACES among New Jersey’s children, but the plan does not require the agency itself to stop inflicting ACES on its own clients. But a group of child advocates is fighting back and trying to enlist legislators in the quest to put children’s needs back on the front burner. This child advocate fervently hopes that they succeed.
- Moreover, it is not clear that the 80-20 rule was meant to be satisfied by placing a child with siblings in the home of a non-relative.
- Ideally we would want to know, for each child exiting to a permanent placement, the amount of time they were in foster care, and how this “time to permanency” has changed over time. Such data are not provided routinely by states and the federal government and requires manipulation of data by researchers using statistical analysis software.