The Minnesota Child Maltreatment Fatalities Report: Essential reading for child advocates everywhere

A shattering new report from a Minnesota child advocacy group demonstrates that many of the more than 160 deaths of children from abuse and neglect over an eight-year period ending last May were preventable. These deaths, the report concludes, can be attributed to “a child welfare philosophy which gave such a high priority to the interests of parents and other adults in households, as well as to the goals of family preservation and reunification, that child safety and well-being were regularly compromised.” This report is essential reading for child advocates everywhere, because this philosophy reigns around the country, and the troubling factors identified exist in states where most of the child population resides.

Produced by the child advocacy group Safe Passage for Children of Minnesota, and authored by Safe Passage Executive Director Richard Gehrman and Maya Karrow, a fellow from a local law school, the project collected information about 88 children who were killed between 2014 and 2022. The Minnesota Department of Human Services (DHS) told project staff that it was aware of 161 child maltreatment deaths during a period that mostly coincides with the period studied.¹ But DHS refused to provide information on any of these deaths (in violation of state and federal law), so the staff had to rely on news reports, online court records, and information provided by counties for the 88 cases it had identified.

Like child maltreatment fatality victims nationwide, the dead children were young, with 42 percent under a year old and 36 percent between one and three years old. Children under four were 78.4 percent of the Minnesota deaths very similar to the 76.3 percent for child maltreatment fatality victims nationwide. Black children accounted for 26.1 percent of all the fatalities reviewed. In contrast, Black children were 17.8 percent of children involved with child welfare and 10.6 percent of the state’s child population in 2021.² Based on the statistics and case file reviews, the report’s authors expressed concern that chld welfare agencies in Minnesota “may have tended to leave Black children in more high-risk situations for longer periods of time than children of other races and ethnicities.” The report’s authors are not the first to have asked whether fears of being accused of racism may be leading agencies to leave Black children in harm’s way even more than children of other races.

The most common causes of death among the cases reviewed were blunt force trauma to the head (33 percent) and body (19.3 percent). The other major causes of death were asphyxiation (17.0 percent) and gunshot wounds (8.0 percent). Other causes included drowing, sepsis, poisoning from drugs, stabbing, hypothermia/hyperthermia, fire, and undetermined causes.

The most common perpetrators of child fatalities were mothers (27.3 percent), mothers’ significant others (23.9 percent), and fathers (22.7 percent). In 65.9 percent of the cases, one or more of the perpetrators had a history of substance abuse. Shockingly, there were seven deaths in foster care, of which six were in kinship foster care. In another appalling finding, there were seven cases in which a child was killed along with the mother or while attempting to intervene in an assault on the mother.

A concerning pattern was the evidence of child torture in a surprisingly large number of cases. The project’s reviewers identified 14 cases (or 15.9 percent) that displayed signs of torture, according to criteria outlined by experts. The authors used the case of Autumn Hallow, who was killed at the age of eight, as an illustration. Investigators found that Autumn’s father and stepmother frequently bound her in a sleeping bag as punishment, sometimes with her hands tied behind her back or overnight, and starved her for six months so that she weighed only 45 pounds when she died. A particularly appalling feature of her case was the “chilling indifference by all the authorities involved to the screams of a child [reported repeatedly by neighbors] and the pleas of an increasingly distraught mother.” Autumn’s cause of death was declared to be asphyxia and blunt force trauma. Her father and stepmother were convicted of second-degree unintentional murder in her death.

The project uncovered numerous systemic flaws that contributed to the 88 deaths reviewed. These included inappropriate assignment of reports to a “family assessment” rather than a factfinding investigation; the failure to respond adequately to repeated reports suggesting chronic maltreatment; seemingly endless chances given to parents to address chronic problems; the return of children from foster care to homes where safety had not improved; the placement of children with kin without appropriate vetting; leaving children with mothers who repeatedly failed to protect them from violent partners; and the lack of integration between child welfare and child custody cases.

The repeated inappropriate assignment of cases to the “Family Assessment” (FA) track, which is intended for low-risk cases, was a major recurring theme in the case reviews. Minnesota is one of 34 states that initially adopted a two-track model, often known as differential response, for responding to reports of suspected maltreatment. (Some states have since terminated the practice). The idea was that a less-adversarial response than an investigation would be a better way to engage families with lower-risk cases. But with its practices like informing parents of visits beforehand, interviewing children in front of their parents, and making no finding as to whether maltreatment occurred, the report explains that FA is not appropriate when the risk to children is high. Yet, by 2020, 62 percent of CPS reports in Minnesota were assigned to Family Assessment. The researchers found that 31 of the 59 families with Minnesota child protection history had at least one and as many as six Family Assessment cases prior to the fatality. As the authors point out, “it is self evident that the repeated use of FA in chronically referred families is inconsistent with the policy that FA be used only in low-risk cases.”

Among the examples cited by the authors for the inappropriate use of FA was one that occurred following a report that a mother and her boyfriend were hitting their children with objects and dragging them by their hair. This family was the subject of six previous reports that included allegations of “physical abuse, sexual abuse, and unhygienic and unsafe conditions, including rotten food, garbage, drugs, alcohol, and sharp objects accessible to children throughout the home.” Twenty days after that last FA, two-year-old Lyla Koob was dead. Her mother’s boyfriend admitted to shaking her in frustration after she vomited. Her autopsy revealed bleeding on the brain and injuries behind both eyes.

Based on analysis of court records, the researchers found that 71.6 percent of the dead children’s families had previous involvement with child protection. The 61 families included 59 with prior history in Minnesota and two with prior history in another state. In view of these percentages, it is not surprising that the project staff found that Minnesota child welfare had a pattern of failure to respond adequately to chronic maltreatment.

In some cases, the researchers noted a pattern of inaction by child welfare agencies in the face of chronic multitype maltreatment, or maltreatment that includes neglect as well as abuse. The case of Tayvion Davis, who died in 2018 at the age of eight, was used to illustrate this type of negligence. Before he was born, Tayvion’s mother was convicted of malicious punishment of a child after she and two adult relatives held down and beat one of her children. From that time until Tayvion’s death, the family was the subject of at least ten reports of physical abuse, sexual abuse, or neglect. According to court records, the children were hit with a hammer and a metal rod, whipped with a belt, burned with boiling water or chemicals, deprived of food and sleep as punishment, and threatened with death if they talked about the abuse. There were multiple reports of sexual abuse of Tayvion or a sibling by the oldest sibling, juvenile and adult relatives, and an unrelated adult.

Tayvion Davis froze to death in 2018 after his mother locked him in the garage overnight in subzero temperatures. The autopsy found numerous scars that suggested years of abuse that may have escalated into torture. Unbelievably, Tavion’s siblings were returned to their mother after being removed in the wake of Tavion’s death. They remained with her for another five months, during which she was the subject of several additional reports. It was not until they were removed again that they told their foster parents that Tavion was deliberately locked in the garage, resulting in murder charges against the mother.

The researchers also found that counties gave parents multiple chances to address chronic problems, while failing to execute effective safety plans for children remaining at home. One example of this tendency was the case of Aaliya Goodwin, who died at the age of five months. There had been eight reports for two older siblings regarding the parents’ substance abuse. Between 2015 and 2021, four safety plans were mentioned in court records, the oldest sibling was placed in foster care and returned home twice, the mother was charged with nine drug-related offenses and convicted of five, and the father was charged seven times with two convictions. The county opened a new FA in January 2022 due to a report of domestic violence and the mother agreed to a substance abuse assessment. Three days later she was found passed out on the couch after using drugs and alcohol. Aaliyah, squashed between her mother and the couch, was dead of positional asphyxia.

Another pattern cited in the report was counties’ tendency to return children from foster care to a home that was still unsafe. The project revealed that 26 percent of the children who died had been previously removed from their parents and then returned. The case of Khamari Golston was provided as an illustration of this pattern. Multiple abuse injuries to four-month-old Khamari resulted in his and his twin sister’s removal and placement in foster care. Their mother was charged with felony malicious punishment and assault. But only two months after adjudicating these children to be in need of protection, the judge sent them home for a “trial visit.” The mother was said to be cooperating with her case plan but there was no documentation of this in the court record. Eight weeks later, Khamari was dead of suffocation or smothering. He also had multiple injuries consistent with physical abuse. Khamari’s ten-year-old sister reported that their mother frequently choked him and covered him up when he cried.

Some children were returned from foster care to parents with serious mental illness. The report cites six-year-old Eli Hart, whose mother killed him with multiple shotgun blasts to the head and torso nine days after he was returned home. Eli was returned home without evidence that his mother’s mental illness was under control. Instead, her mental health remained a concern throughout the year that he was in foster care and during a trial home visit. She received eight traffic-related convictions (including for speeding and reckless driving) and was also charged with theft of pharmaceutical drugs during the time he was in foster care.

The occurrence of seven deaths of children in foster care, of which six were in kinship care, was a startling revelation of this study. There have been concerns raised around the country that the growing focus on kinship placements may be leading to the placement of children with family members who have not been adequately screened and are not appropriate caregivers. And indeed, the project staff found a “lack of due diligence in deciding whether a kinship placement would ensure the safety and well-being of the child.” To illustrate this pattern, the report offers the history of Leila Jackson, a 17-month-old who was killed by her foster father in 2018. Her autopsy showed “extensive subdural hemorrhages and severe brain injury, as well as extensive bruising on her buttocks.” Layla and her brother were placed in the kinship home after their mother’s parental rights were terminated. The foster parents denied having criminal records or substance abuse histories, but a background check (which was never conducted) would have revealed convictions for DWI, theft, possession of drug paraphernalia, and disorderly conduct.

The pressure to keep children with mothers who were victims of domestic violence, even when these mothers showed they were unable to protect their children, was another systemic problem noted by the project team. The authors found that 28.4 percent of the cases involved domestic violence–not surprising in view of the co-occurrence of child maltreatment with domestic violence. But that seven children were killed along with their mothers, or in an attempt to protect them, was shocking indeed. This is a difficult issue, and removals of children from domestic violence victims by CWS have been harshly criticized. But as the report put it, “at a certain point a line is crossed and it becomes imperative to move children to a safe place.”

In Minnesota, public child welfare cases are heard in juvenile court and custody cases in family court, which means that the same family can have two different court cases with different judges. The findings of the report suggest that the failure to consolidate these cases can place children at risk. In the case of Eli Hart, who was killed by his mentally ill mother, the custody case filed by his father was put on hold pending a resolution of the juvenile court case surrounding his mother. This is despite the fact that the mother’s mental health remained a concern and that all reports indicated that the father was a good and safe parent for Eli.

In sum, the report concludes that “the professional norms currently guiding child protection and foster care are out of alignment with those of the broader community.” As a first step, the report recommends that DHS release more information about child maltreatment fatalities, including making public the fatality and near-fatality reports that counties are required to submit to the state; such reports include information about previous reports and investigations on these families. This recommendation is particularly important because if the public knew about the types of egregious failures described in this report, there might be more public support for changes.

The report contains many specific recommendations to correct the systemic flaws found in the case studies. This year, Safe Passages will be distributing the report to legislators and briefing them on its findings and recommendations. Rick Gehrman, Executive Director Rick Gehrman reports that he will be working with legislators to translate some of these recommendations into legislation to be introduced in the next session, addressing at a minimum some of the Family Assessment practices that endanger children. The ultimate goal, Gehrman says, is to “raise public and legislative awareness of the child welfare practices that endanger children and to bring about a change in the overall philosophy of child welfare services in Minnesota.”

In effect, Safe Passages for Children has unofficially implemented the first recommendation of the Committee to Eliminate Child Abuse and Neglect Fatalities in its 2016 final report, Within Our Reach. That report recommended that each state, with federal funding and assistance, identify and analyze all of their child abuse and neglect fatalities from the previous five years in order to identify factors associated with maltreatment fatalities and agency policies and practices that need improvement to prevent fatalities. Based on this report, every state would develop a fatality prevention plan. Unfortunately, legislation supporting this proposal stalled in Congress and no state has elected to do this on their own. Maryland’s Council on Child Abuse and Neglect and its Child Fatality Review Board, inspired by this recommendation, formed a joint subcommittee that produced an excellent review of child maltreatment fatalities between 2007 and 2015 which identified systemic flaws and made recommendations to correct them. Other than that report, I am not aware of any other similar project by a state or local government agency. Let us hope that this report encourages other child advocacy groups and community boards to act where governments have not.

The final words of the report deserve to be repeated. “The erosion in professional norms that has gradually caused human services entities to tolerate the current level of neglect and physical abuse of children has developed over the course of decades. A concerted effort by a community of professionals will be required to restore standards that were once taken for granted, and to place appropriate limits on the ability of adults in a child’s life to harm them.”

Notes

The actual number was likely two to three times as high because the manners of so many maltreatment deaths are misclassified.
See Child Maltreatment 2021. Table C-2, Child Population 2017 to 2021 shows the state’s child population rose from 1,300,061 in 2017 to 1,317,567 in 2021. Table C-3, Child Population Demographics, shows that there were 140,129 Black children in Minnesota in 2021. That figure, divided by 1,317,567 gives the Black percentage of all children in Minnesota as 10.6 percent in 2021.

New Jersey to foster parents: thanks but no thanks!

Foster Parents Needed As COVID-19 Pandemic Strains Families is a typical headline these days, as illustrated in an article from Illinois. The pandemic has imposed new impediments to recruiting and retaining foster parents, including fears of exposure to COVID-19, loss of employment and income, and concerns about supervising virtual schooling. But these issues do not seem to be affecting New Jersey, where prospective foster parents are told that they are not needed, thank you very much! While the state credits its efforts at child abuse prevention and family preservation for its lack of need for foster parents, the explanation seems to lie elsewhere. Over the course of five years, the state has cut in half its rate of confirming allegations of abuse and neglect–resulting in a similar fall in the number of children entering foster care. This is a big change, and one that demands explanation in order to ensure that the agency is continuing to fulfill its mission of ensuring children’s safety in New Jersey.

Would-be New Jersey foster parents who click on “Be A Foster Parent” on the website of the Department of Children and Families (DCF) are greeted with the following message: “Thank you for your interest in becoming a resource parent to children and youth in state care. Due to the COVID19 Pandemic and its impact on operations, DCF has suspended all new inquiry submissions at this time. Please continue to check our website for any updates.” This is an odd message indeed, as it seems to imply that the pandemic has made recruitment and licensing impossible. But agencies around the country have adapted quickly to move vetting and training online in order to enable new foster parents to enter the pipeline. Not so New Jersey.

When we asked DCF why foster parents are being turned away, we received the following reply from DCF Communications Director Jason Butkowski. “[W]e did experience a 19.17% reduction in out-of-home placements from 2019 to 2020. This is attributable both to New Jersey’s statewide prevention network and our ongoing work to preserve families and keep children and parents together in their homes while receiving services.”

Interestingly, a message sent earlier to prospective foster parents gave a different answer. In May, 2020, would-be foster parents received a message saying, “In New Jersey, the number of youth in foster care continues to be reduced each year because we are focusing first on kinship placements,” as quoted in an article by Naomi Schaefer Riley. We asked Mr. Butkowski which explanation was more accurate–prevention and family preservation or kinship placements–but received no answer.

So what is going on in New Jersey? Certainly, foster care numbers have been decreasing. According to the data portal maintained by Rutgers University, annual entries to foster care fell from 5,504 in 2013 to 2,525 in 2019, as shown in the chart below. The rate of decrease in foster care entries became even steeper between 2018 and 2019, with a decrease of 23.7 percent in the number of entries in that one year alone. The total number of children in foster care dropped from a high of 7,775 in May 2014 to 4,463 in February 2020–before the pandemic closures occurred. So what could be causing this drastic decline in foster care placements and caseloads?

Source: NJ Child Welfare Data Hub, available from https://njchilddata.rutgers.edu/portal/entering-placement-reports#

One possibility might be a decline in child abuse and neglect, which Butkowski is implicitly assuming by attributing part of the fall in foster care cases to DCF’s “statewide prevention network.” In that case, one might expect reports to child abuse hotlines to decline significantly. But according to monthly state reports, calls to child abuse hotlines hardly changed between 2014 and 2019, decreasing very slightly from 165,458 to 164,417. Of course we cannot be sure that reports are an accurate measure of child maltreatment; but one might expect a significant reduction in hotline calls if a large reduction in maltreatment were occurring.

DCF’s Butkowski also credited the agency’s work to “keep children and parents together in their homes while receiving services” as a reason for declining foster care entries. It is true that most substantiations of abuse or neglect do not result in foster care. Instead, DCF works with many families in their homes to help them avoid future maltreatment. But DCF has been emphasizing in-home services for years. Of all the children who were under DCF supervision in foster care or in-home services, the percentage receiving in-home services rather than foster care was 84.7 percent in May 2014 and 90 percent in February 2020. So children were somewhat more likely to receive in-home services in 2020 than in 2014, but the difference was small and not likely to explain the big fall in the foster care rolls.

So with hotline calls basically unchanged, and only a slight increase in the emphasis on in-home services, how did New Jersey manage to reduce its foster care entries by almost half in six years? One can think of the child welfare process as a funnel, starting with referrals, the child welfare term for hotline calls. As we discussed, those have fallen only slightly. Only some referrals are screened-in and accepted for investigation; many are rerouted or receive no action because hotline workers determine that they do not concern abuse or neglect. But a reduction in screened-in referrals is not part of the explanation for New Jersey’s drop in foster care placements. New Jersey reported that 60,934 referrals were screened in in FFY 2019, compared with 59,151 in FFY 2013–a slight increase.

The next step in the child welfare funnel is investigation, and here the count shifts from the number of referrals to the number of children. According to data submitted to New Jersey to the Administration for Children and Families (ACF) and published in Child Maltreatment 2019, the number of children receiving an investigation in New Jersey increased slightly from Federal Fiscal Year (FFY 2015) to FFY 2019–from 74,546 to 78,741. However there was a stunning drop in the proportion of these children who were found to be abused or neglected (known as “substantiation” in the child welfare world). In FFY 2015, 13.0 percent of the children who received investigations (or 9,689 children) were found to be abused or neglected. In FFY 2019, only 6.5 percent of the children receiving investigations (5,132 children) were found to be victims of maltreatment. In other words, among the children who were involved in investigations, the proportion who were found to be maltreated dropped by half. Similarly, the number of children found to be maltreatment victims dropped by 47 percent. (This is very similar to the 44.6 percent decrease in foster care entries between those years shown in the Rutgers data portal cited above).

Note: The substantiation rate is the number of children found to be maltreatment victims divided by the number of children who were the subject of CPS investigations. Data are from Child Maltreatment 2019, available at https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2019.pdf

It turns out that aside from Pennsylvania, which is not comparable to other states because it does not report on most neglect allegations, New Jersey had the lowest rate of substantiation per 1,000 children of all the states in FFY 2019. Only 2.6 children per 1,000 were found to be maltreated, compared to a national rate of 8.8 children per 1,000. In FFY 2015, this rate was 4.9 per 1,000 children in New Jersey–almost twice as high.

How did the number and percent of children found to be victims of child maltreatment drop so much in New Jersey over a four-year period, despite little decline in hotline calls? We asked DCF this question but received no reply. In the notes it submitted to ACF with its 2019 data, DCF acknowledged a decrease in the number of substantiated victims of maltreatment and stated that this is consistent with a continued trend–but provides no explanation. Perhaps policy or practice has changed to make it more difficult to substantiate abuse or neglect, through a change in definitions or in the standard of proof, or perhaps in training or agency culture. But such a change was not mentioned either by Butkowski or in DCF’s submission to ACF.

Let us revisit DCF’s previous message to foster parents saying that “In New Jersey, the number of youth in foster care continues to be reduced each year because we are focusing first on kinship placements.” This is an interesting statement because it implies that these kinship placements are not through the foster care system. It is important to understand that children can be placed with relatives in two ways. A child can be found to be a victim of maltreatment and placed with a relative, who becomes licensed as a foster parent. In New Jersey, 1,619 foster children (or 41 percent of the 3,951 children in foster care) were living with licensed kinship foster parents in November 2020. But these children are included in the state’s count of children in foster care, so they cannot account for the caseload drop. DCF must have been referring to something else.

Perhaps DCF’s earlier message to foster parents referred to the agency’s increasing use of a practice called “kinship diversion.” As described in an issue brief from ChildTrends, kinship diversion is a practice that occurs during an investigation or an in-home case when social workers determine that a child cannot remain safely with the parents or guardians. Instead of taking custody of a child, the agency facilitates placing the child with a relative. If this occurs in the context of an investigation, kinship diversion may result in a finding of “unsubstantiated” even when abuse or neglect has occurred, on the grounds that the child is now safe with the relative. We have no idea how widespread this practice is in New Jersey or nationwide since neither New Jersey nor other states report the number of these cases. However, the system of informal kinship care created by diversion has been called America’s hidden foster care system and nationwide it appears to dwarf the provision of kinship care within the foster care system.

There are many concerns about kinship diversion, as described in an earlier post: caregivers may not be vetted or held to the same standards as foster parents; they and the children they are caring for do not receive case management and services; they do not receive a foster care stipend and may have to depend on much-lower public assistance payments; there is nothing preventing caregivers giving children back to the parents without any assurance of safety; and parents are not guaranteed the due process rights and help with reunification that come with having their children in foster care. Because of the various concerns around kinship diversion, litigation has been filed in several states challenging this practice.

There is one other possible explanation that comes to mind for DCF’s foster parent surplus–dropping foster care rolls due to the COVID-19 pandemic. We removed data from the time of the pandemic from the above discussion to avoid confounding its effects with those of policy and practice changes but we need to ascertain whether the pandemic’s impact on calls to the hotline has affected entries into foster care. As in most states, hotline calls in New Jersey fell sharply in the aftermath of school closures and other pandemic measures. The number of child maltreatment referrals between March (the onset of school closures and quarantines) and November 2020 (the last month for which data are available on the DCF website) was 98,306, compared to 131,344 in the same period of 2019–a drop of 25 percent, based on monthly reports from DCF. It is likely that fewer calls from teachers now teaching virtually were a major factor behind this drop in hotline calls.

Entries into foster care also fell sharply in the wake of the pandemic. Foster care entries dropped from 1,949 in March through November 2019 to only 1,211 in the same months of 2020–a drop of 37.9 percent–which may have reflected in part the reduction in hotline calls and in part the continuing decrease in foster care entries that we have described. But the number of children in care did not drop nearly as much as entries into care. Between February and November 2020, the total number of youth in care decreased only 11 percent from 4,463 to 3,951. This drop is surprisingly low–in fact it is less than the decrease in the foster care caseload during the same months of 2019 (16.1 percent). The small size of this caseload decline reflects the fact that foster care exits dropped even more than foster care entries. Exits from foster care dropped from 2,754 in March through November 2019 to 1,661 in the same months of 2020. That is a drop of over 1,093, when the drop in foster care entries was “only” 738.[1] As a result, it appears that the number of children in foster care was higher, rather than lower, due to the pandemic. Therefore, it does not appear that the pandemic contributed to the decline in demand for foster parents.

One might expect to hear expressions of concern, or at least interest, in the recent precipitous drop in the number and rate of substantiations and in the foster care caseload from the court-ordered monitor charged with ensuring that New Jersey’s child welfare system is fulfilling its mission of protecting children. Since 2006 New Jersey has been operating under a settlement agreement in a lawsuit filed in 1999. The Court Monitor is Judith Meltzer, Executive Director of the Center for the Study of Social Policy (CSSP). In its most recent report, CSSP praised DCF for maintaining its progress toward meeting all the benchmarks required to exit the lawsuit, despite the challenges posed by COVID-19. Ironically, the report mentions DCF’s progress in “Prioritizing Safety.” The report does not mention the precipitous drop in foster care entries or substantiations before the pandemic or the fact that the state is turning away prospective foster parents.

New Jersey may be the first state to have stopped accepting applications for foster parents, and the reasons cited by DCF do not seem to explain this unusual event. Careful study of DCF data shows that the rate at which allegations of abuse or neglect are substantiated has been cut in half, and that there has been a similar reduction in entries into foster care. This cut in the substantiation rate could be due to policy or practice changes making it harder to confirm child maltreatment or it could be due to an increased tendency to place children with relatives without establishing officially that maltreatment has occurred. Without an adequate explanation from the state, the extent to which either of these factors is driving these trends is unknown. It is imperative to know the explanation of this trend to ensure that DCF’s new policies and practices are not compromising its mission of keeping children safe.

[1]: Reasons for this drop in foster care exits may include court shutdowns and delays and suspension of services parents need to complete their reunification plans.

Kinship Diversion: A parallel system of foster care

The development of a system of informal kinship care that is parallel to the foster care system has recently begun to receive attention among academics, advocates and policymakers. This second system includes relatives who are caring for children under an informal arrangement facilitated by child welfare agencies through a practice called kinship diversion. This system has been called America’s Hidden Foster Care System by Josh Gupta-Kagan, Associate Professor of Law at the University of South Carolina. Because most states don’t collect data on this practice, we don’t know how many children are affected, but it appears to be the most prevalent placement for children investigated by child protective services (CPS) agencies and greatly dwarfs kinship care within in the foster care system.

An issue brief from the research organization ChildTrends states that there is no agreement on the definition of kinship diversion, but in general it refers to a situation where a child welfare agency decides a child cannot be safe in a home due to abuse or neglect. But instead of taking custody of the child and requesting court approval for this move, the agency facilitates the transfer of custody to a relative outside the foster care system. This transfer is often effected through a “safety plan” or agreement between the parents, the agency, and the relative to keep the children safe. Whether stated or implied, parents know that failure to agree to the plan may result in the removal of their child and court involvement. According to Marla Spindel of the DC Kincare Alliance, sometimes the agency transfers custody of a child without the agreement of the parent, and only the agreement of the kinship caregiver.

The only national data on the prevalence of kinship diversion appears to come from a study of children who had contact with child welfare services within a fifteen-month period starting in February 2008. The researcher, Wendy Walsh, found that informal kinship care was the most common out-of-home placement for children found to be abused or neglected, accounting for almost half of children placed out of home. But these data are over ten years old. The limited data suggest that states are using kinship diversion in many more cases than they are licensing kin as foster parents. According to the most recent national data, 32 percent of children in formal foster care were in a relative home as of September 30, 2018. Gupta-Kagan cites a number of more recent studies in individual states that suggest kinship diversion is being used “with roughly the same frequency” as formal foster care overall–including relative and non-relative caregivers.

Newer data on kinship diversion are greatly needed. ChildTrends used a social worker survey to estimate the rates of kinship diversion in “several” unnamed jurisdictions. The researchers reported that “[I]n some jurisdictions, for every [ten] children entering foster care, an additional [seven] were diverted, while in others there was an equal split—for every child entering foster care, another child was diverted.” Without knowing how many and what jurisdictions were studied, and whether these were the highest and lowest ratios, it is hard to know how to interpret these data.

In addition to information about the extent of kinship diversion, we know little to nothing about how informal kinship care arrangements initiated through kinship diversion differ from foster care. Among the questions raised by ChildTrends are: Do kinship caregivers undergo a background check? Are services and supports provided and to whom? How do the services and supports differ from those provided in foster care? How long do diversion arrangements last? In their studies of three jurisdictions, ChildTrends found that agencies usually initiated background checks but often failed to complete them; an official case is not always opened; and services and supports to children, parents and caregivers are “inconsistently provided” and differ by jurisdiction. The “greatest disparity in supports” was that diversion caregivers do not receive foster care stipends and usually have to rely on welfare assistance to support the children.

As Gupta-Kagan points out, kinship diversion has raised various concerns both ends of the child welfare ideological spectrum. Those who are concerned about parents’ rights worry about the state removing children without due process protections for their parents. Moreover, unlike with foster care, there is no requirement that the agency make reasonable efforts toward reunification or develop case plans prescribing what parents must do to get their children back. Those who are concerned about children’s safety and well-being worry that kin caregivers may return the children to their parent at any time, regardless of safety, or may allow unsupervised visits with dangerous parents. Child advocates also worry that there is no permanency for these children as they move back and forth between parents and caregivers. Moreover, informal kinship caregivers may not receive the same level of screening as potential foster parents. These caregivers and the children they raise do not usually receive the same supports as they would in foster care, including stipends, case management, and mental health, drug treatment and parenting services. If not granted custody in court, these caregivers have no legal rights to obtain medical care, enroll children in school, or approve services, and a parent can come back and take custody of the child at any time.

Some stakeholders support kinship diversion because they think it is always better to keep children out of state custody and allow families to decide their own futures. In the jurisdictions that it studied, ChildTrends found a wide variety in opinion among stakeholders but widespread agreement (over 90 percent) in favor of kinship diversion among agency social workers in five states.

Gupta argues that the “hidden foster care system” enabled by kinship diversion is “likely growing and it is certainly becoming institutionalized through federal funding incentives, new federal funding which strengthen those incentives, and state policies which seek to codify the practice.” As Gupta points out, there is a strong financial incentive for states and other jurisdictions to use informal kinship care. They avoid expensive foster care payments as well as the expenses of case management and other services to children in foster care and their families. Gupta argues that the new Family First Act further incentives kinship diversion by allowing funding for services to children and their parents for a year or more while they remain in an informal kinship placement.

Gupta fails to mention another incentive for kinship diversion–reducing the foster care rolls–which has become increasingly viewed as a favorable outcome and even (somewhat paradoxically) as a goal of child welfare systems. For example, one of the four pillars by which the District of Columbia’s child welfare agency measures its performance is Narrowing the Front Door, or reducing entries into foster care. Casey Family Programs, the two-billion dollar private foundation with an oversize influence on child welfare policy around the county, still proclaims (somewhat anachronistically) on its website that one of its four primary goals is to “Safely reduce the need for foster care by 50 percent by the year 2020.”

Some kinship diversion critics, like Gupta-Kagan, argue for more regulation of the practice to require appointment of attorneys for parents, impose a maximum length of time for safety plans that change custody, and allow parents to seek court review of safety plans. Others, like Marla Spindel of DC Kincare Alliance, believe that kinship diversion as currently practiced is both harmful and illegal under state and federal law.

There is a case to be made for an outright prohibition on kinship diversion to eliminate the possibility that an abused or neglected child be returned to the parents before a professional can assess that the child is safe. Custody changes involving CPS would have to take place through an official removal subject to court approval, leading to formal foster care, or through a time-limited Voluntary Placement Agreement (VPA, which is allowed by federal and state law). A VPA can be used to place a child with a relative for a limited time period (such as 90 or 180 days) with the requirement that court proceedings be brought if reunification with the birth parent is not achievable in that timespan.

DC Kincare Alliance (DKA) and the law firm Ropes & Gray has filed an unprecedented federal lawsuit against kinship diversion in the District of Columbia. The lawsuit was filed on behalf of three relative caregivers and three children they are raising. DKA argues that CFSA is violating the federal Social Security Act and several DC laws by using kinship diversion instead of removing these children formally and licensing their caregivers as foster parents. The case seeks a court ruling that kinship diversion is illegal and an order prohibiting CFSA from engaging in this practice. It also seeks damages for lost foster care payments “and other injuries.”

As policymakers debate restrictions on kinship diversion, no time should be lost in learning all we can about the extent and nature of the practice today. At a minimum, as proposed by Gupta, states should be required to track every case of kinship diversion to provide information about the total number of cases, the safety and well-being of the children, how long they remain in these arrangements, and how cases are resolved. We also need to know the policies and practices that states are following in terms of clearances, supports, monitoring, and other ways the arrangements may differ from foster care. The hidden foster care system must be brought out of the darkness and into the light of day.

The Family First Act: A Bad Bill that Won’t Go Away

continuing rsolution

Some bad ideas just won’t go away. The Family First Prevention Services Act (FFPSA) is rearing its ugly head yet again. The act, which failed to pass the Senate in 2016, has been incorporated into the continuing appropriations bill passed by the House of Representatives on February 6.

Chapter I of the Act, billed as “Investing in Prevention and Family Services,” would allow Title IV-E funds to be used to fund services meant to keep children out of foster care, including mental health and substance abuse treatment, parent training and counseling, and kinship navigator programs.

The general idea of allowing Title IV-E funds to be used for services to prevent foster care placement makes sense. (I prefer to call these family preservation services rather than “preventive services” because true preventive services would seek to prevent maltreatment before it occurred, rather than preventing removal from the home after maltreatment has already occurred.) But the bill limits the list of services funded to mental health, substance abuse treatment, and parent education and training. It does not include services like domestic violence prevention, peer mentoring or support groups, crisis intervention, housing assistance, and many others that could be crucial to keeping families together.

Chapter II of FFPSA is billed as “Ensuring the Necessity of a Placement that is Not in a Foster Family Home.” This chapter would forbid federal reimbursement for a placement other than a foster family home (often called “congregate care”) beyond two weeks without an “age-appropriate, evidence-based, validated functional assessment” using a tool approved by the Secretary of Health and Human Services to determine that the child’s needs cannot be met “with family members or through placement in a foster family home.” Such placements must also be approved by a court within 60 days. The bill also establishes stringent requirements that must be met by agencies seeking to qualify for reimbursement, including on-site nurses, for example.

This approach is problematic for two reasons.

First, we don’t have enough foster homes. States around the country are reporting foster home shortages. Reports of children being housed in offices and hotels have come from California, Texas, Oregon, Kansas, and Georgia, Tennessee, and Washington DC. With group homes closed, this problem will only worsen.

The attempt to close congregate care facilities without providing an alternative is eerily reminiscent of the closure of institutions for the mentally ill in the 1960s. These hospitals were supposed to be replaced with community health services that were never funded. We are still reaping the consequences with the abundance of mentally ill people sleeping on the streets of America’s cities.

Nevertheless, the authors of the Family First Act made sure to specify that: “A shortage or lack of foster family homes shall not be an acceptable reason for determining that the needs of the child cannot be met in a foster family home.” One wonders where these children should go but perhaps the sponsors don’t care. It is the states and counties that will find a place for the children, even if the federal government does not pay a share.

Second, we don’t have enough good-quality foster homes. Anyone who works with foster children and parents knows that a minority of foster parents do a spectacular job, treating their charges like their own children. But many of the other homes barely improve upon the abusive or neglectful homes the children were removed from.

I’m talking about foster parents that never visit the child’s school or transport them to activities, insist that the social worker to take them to the doctor and therapist, refuse to meet the child’s birth family, and siphon off part of the foster care payment for their own purposes. These children need extra love, support, and enrichment, not the bare bones of room and board and nothing else.

The widespread simplistic belief that a foster family home is always better than a non-family setting has been promoted widely with heavy support from ideologically driven funders and advocates including the Annie E. Casey Foundation and Casey Family Programs. These groups employ slogans like Every Kid Needs a Family, ignoring the fact that most children entering foster care do have a family that they want to return to, and would not necessarily prefer being placed in a family of strangers rather than an educational or group setting where they can receive the enrichment they need while awaiting reunification.

Research supports the idea that quality is more important than the type of setting, and that high-quality group care can have even better outcomes than high-quality foster home care. Moreover large sibling groups can often be kept together only by placement in a non-family setting.

It is hard to understand that anyone believe that a loveless, bare-bones foster home is better than an idyllic environment like the Crossnore School in North Carolina, where foster children (including sibling groups) benefit from dedicated cottage parents, an onsite school, and multiple forms of mental health treatment, including equine-assisted therapy. But the bare-bones foster home has one advantage over Crossnore. It is much cheaper.

Clearly, legislators want the savings from eliminating non-family options to offset the increased costs imposed by the expansion of Title IV-E to include preventive services. The Congressional Budget Office estimated that the restriction on non-family placements would offset almost 70% of the costs of extending IV-E reimbursement to family preservation services, over a ten-year period.

It is not surprising that government officials in the three states with the largest foster care populations–California, New York, and Texas, have all expressed concern about or opposition to the Family First Act. Other states have expressed their opposition as well .

Aside from a pair of hearings that were orchestrated by the bill’s sponsors to support their vision for the legislation, there have been no hearings or floor debate on the Family First Act. Last year, it passed the House by voice vote, and its Senate sponsors tried to get it through without a vote before going on summer recess. They failed, thanks to courageous Senators who cared about children enough to resist pressure from the powerful coalition supporting the bill.

Lets hope that the same wise and courageous Senators make sure this dangerous legislation is not allowed to slip into law in the urgent effort to pass a continuing resolution. Lets not save money on our most vulnerable kids. Spending money on better placements now will surely reap savings down the road in crime, unemployment, and welfare receipt.