Tuesday, January 1, 2008

Turning foster children into unpersons

Correction: This post states that the Kansas child welfare agency licenses the state's foster homes and institutions. In fact, that is done by another state agency.

If torturing logic were a war crime, the Kansas Department of Social and Rehabilitative Services (SRS) would be hauled before an international tribunal.

In previous posts to this Blog I described how the state’s most populous county, Sedgwick, was taking children from their homes and institutionalizing them for more than a week before there was even a court hearing. It was all done at the whim of the state child welfare agency and local law enforcement.

When the legislature told Sedgwick County that it had to do what every other county in Kansas does – hold that first hearing within 72 hours – various county officials threw a fit, declaring that they needed to hold the children in foster care for a week in order to prevent foster care.

That really is what they said. You see, according to both county officials and the State of Kansas that week in an institution is not foster care. Why not? Because they don’t call it foster care, they call it “protective custody.” And if that isn’t absurd enough, the federal government is buying into the distinction, and letting Kansas get away with keeping huge numbers of foster care placements “off the books” for statistical purposes. That has implications for the safety and well-being of children well beyond Kansas.

The deputy district attorney in charge of these cases in Sedgwick County estimates that 80 percent of the children taken away this way go home or are placed informally with a relative within that first week – which raises an obvious question: If 80 percent of the children you take away can go home or be placed with a relative within a week, did those children really need to be taken away in the first place?

One possible way to answer that question is through a process called a Child and Family Services Review (CFSR), a process the federal government uses to examine each state’s child welfare system every few years. It’s actually a pretty pathetic process that can produce misleading results – see NCCPR’s publication The Trouble With CFSRs for details – but unless your particular state happens to be under a good consent decree, there’s not much else out there.

But when the federal reviewers come to Kansas, they’ll never know about all those children taken from everyone they know and love and then “thrown back” within 72 hours (or, until 2007, within a week in Sedgwick County).

That’s because Kansas either is violating federal regulations, or has concocted a clever scheme to exploit a loophole. Either way, Kansas has turned all these children into what George Orwell called “unpersons.” When it comes to the data Kansas shares with the general public, state legislatures, and the federal government’s national database on foster care, these children simply don’t exist.

They don’t exist because they were never in foster care. They were only in “protective custody.” And, SRS says, they were in the custody of law enforcement, not SRS.

Yeah, right.

Here’s how it all works: Every state is required to report data about its foster care system to a central federal database, the Adoption and Foster Care Analysis and Reporting System (AFCARS). It’s administered by the Administration for Children and Families which is part of the U.S. Department of Health and Human Services. AFCARS data help the federal government determine how well the system is serving America’s foster children. They help point out states that may be leaders and states that may be doing particularly poorly. And the data are used for the CFSRs.

AFCARS has bred a plethora of regulations and a huge online policy manual. And where there are lots of regulations, there are lots of potential loopholes. Kansas may have found one.

AFCARS requires that, whenever a child is taken from his parents because of suspected abuse or neglect and kept out of the home for at least 24 hours, the state must report this as an entry into foster care.

AFCARS also requires that states report the total number of foster care placements endured by each child. This is vitally important because the trauma of foster care is compounded when a child is forced to move repeatedly from one placement to another.

In Kansas, when a child is taken away without a court order it is done by law enforcement. Even though, in many cases, it is SRS that asked that the child be removed, the physical act of removing that child and driving him to that first placement, is performed by a police officer. (The trauma is compounded in Sedgwick County, because the first placement often is an institution, the Wichita Children’s Home). Therefore, says SRS, the child is in the protective custody of law enforcement, therefore, SRS says, we don’t have to report it. In addition, if SRS keeps custody after the court hearing, but the child is moved to another placement that same day, that first placement in the Wichita Children’s Home never goes on the books. What is really two placements appears as only one.

But AFCARS regulations don’t actually say that the child welfare agency has to have “custody” for a placement to count.

Rather, the online manual says that “the State is required to count a placement that lasts more than 24 hours while the child is in foster care under the placement, care or supervision responsibility of the State agency” [emphasis added].

When it comes to such placements in Kansas:

● It is SRS that often asks law enforcement to take custody in the first place.
● The children generally are placed in a home or institution that must be licensed by SRS.
● SRS workers visit the child while in the facility.
● In the case of the Wichita Children’s Home SRS workers even are on site to oversee the case.
● SRS develops the plan to either send the child home, place the child in informal care with a relative, find a foster home with strangers, or keep the child in an institution.
● SRS foots the bill. SRS reimburses institutions like the Wichita Children’s Home for the cost of these placements.

That sure sounds a lot like “placement, care or supervision responsibility.”

Whether or not the placement “counts” to SRS, whether or not it “counts” to the Sedgwick County District Attorney’s office, and whether or not it “counts” to the Administration for Children and Families, we may be sure of one thing: It counts to the child.

Apparently the Kansas Legislature thinks so, too. Because under Kansas law, it is not the police, but rather the home or institution where the child has been placed – such as a temporary foster home or the Wichita Children’s Home – that is deemed to “have physical custody and provide care and supervision for the child.” As noted above, such facilities typically are approved and licensed by SRS.

Here’s how all this has an impact on the CFSR process:

During that process, states are evaluated two ways: Evaluators look at the data compiled by the state and reported to AFCARS, and the reviewers conduct what is supposed to be an in-depth examination of a total of 50 cases from three counties. One of those counties has to include the state's largest metropolitan area - in Kansas that's Sedgwick County, where the problem of off-the-books foster care placements is worst. The files examined in these 50 cases are the child welfare agency's case files.

CFSRs are supposed to address issues including:

● Did the agency keep the child safe?
● Did the agency keep the child in her or his own home whenever possible?
● Did the agency avoid moving the child from one placement to another?
● Did the agency avoid needless use of "congregate care" - group homes, institutions, shelters?

So here's what happens when the reviewers come to Kansas:

● They won't know that a large number of placements ever occurred at all.

● Many of these are placements the reviewers probably would say were unnecessary, since the child was returned home or placed informally with a relative within a week. But they won't know about those placements when they "grade" Kansas on avoiding needless foster care.

● Both the state data and the casefiles are likely to understate the number of placements, since Kansas sometimes does not count that first placement in a shelter.

● The data will understate Kansas' use of congregate care, since many of those first placements, at least in Sedgwick County, are in an institution, the Wichita Children's Home.

I am not aware of any other state which engages in this kind of manipulation of data – and no one I’ve spoken to is aware of any either. And NCCPR can confirm that states responsible for at least one-third of entries into care either can’t engage in a similar dodge or won’t. That means Kansas’ evasion has implications well beyond the state’s borders – it compromises the ability to compare state performance and the integrity of the entire AFCARS process.

But ACF is looking the other way. We first asked the Acting Associate Commissioner in charge of the Children’s Bureau, Joe Bock, to tell us if this kind of dodge violated federal regulations without telling him which state was involved. That way we could be sure any opinion would be untainted by even the appearance of political concerns. (The Bush administration has politicized the CFSR process at least once before, when Florida, then governed by Jeb Bush was given special consideration in choosing which counties would be evaluated).

But Bock refused. He claimed it was his policy to refuse such requests, but also said the policy is not in writing. After we then told him the state, Bock sent a letter to NCCPR claiming that Kansas was not violating federal regulations.

Therefore, today – January 2 - we have asked the Acting Commissioner’s acting boss, Acting Assistant Secretary Daniel Schneider, to reverse that decision. ACF has reversed itself before when similarly absurd rulings led to bad press. But this time there may be a complication.

Guess what state Schneider is from.