Monday, February 13, 2023

Will truthiness triumph in Kansas?

It will if some lawmakers attacking kinship foster care get their way

A few months ago on this blog, I posed a hypothetical question to some folks in Oregon.  Now I’d like to pose the same question to some politicians – and some journalists – in Kansas: 

Suppose a couple of strangers kidnapped your child at birth and fled to Mexico.  Suppose they took really good care of your child.  Suppose a year, or two years, or three years later they came back.  Should they be allowed to keep your child? 

Of course not, you say? 

But wait.  The kidnappers took great care of your child.  They just figured they’d do a better job than you.  And now your child has bonded with them.  After all, the kidnappers are the only family your child has ever known!  

Still no?  Are you sure? 

Then why are Kansas lawmakers and their media allies backing a bill that would do essentially the same thing in foster care cases? 

Oh but this is different, you say.  When foster parents (especially white, middle-class foster parents) play the bonding card against birth parents or their extended family (who are more likely to be neither middle class nor white) the foster parents didn’t do anything illegal – in fact, the placement was authorized by a government agency, and the foster parents probably have the best of intentions. 

So what?  

If alleged bonding is superior to every other consideration and this child supposedly would be terribly harmed if moved from “the only family he’s ever known;” if such a move would be contrary to his “best interests,” why should that alleged harm be inflicted on a child just because, in the case of a kidnapping, the initial removal was illegal? 

I ask because, right now, in Kansas, the bonding card is being played do denigrate everything from sibling connections to choosing relatives over strangers when placing a foster child for adoption.

In fact, the research is overwhelming that when children really have to be placed in foster care or adopted, kinship foster care – placement with extended family or close family friends – is more stable and better for children’s well-being than what should properly be called “stranger care.”  Kinship placements also are safer, and kin are less likely to dope up foster children on potent psychiatric medication. 

That’s why federal law has a preference, albeit far too minimal a preference, for placing children with relatives. To receive federal foster care funds, states must 

consider giving preference to an adult relative over a nonrelated caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards. 

In Kansas, when the state has terminated parental rights and the state is looking for an adoptive home, state law also has an extremely mild preference for kin.  Under current state law: 

the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to granting such custody for adoption to a relative of the child and second to granting such custody to a person with whom the child has close emotional ties. [Emphasis added.] 

Even this mild preference has the all-purpose loophole “best interests of the child” – the most dangerous phrase in the child welfare lexicon since “best interests” is subject to the whims – and prejudices – of those making the decisions. 

But even this is more than some Kansas lawmakers can stomach. 

Notwithstanding the mass of research showing kinship placements are far more likely to be in “the best interests of the child,” they’re proposing to specifically downgrade kin, and give preference to stranger-care parents if the child has been in their physical custody  for more than two years, or for more than half the child’s lifetime -- or any other time the political employee in charge of the state family policing agency unilaterally decides this would be “in the best interests of the child.” 

Oh, and if, by some chance, the family police still dare to prefer a relative, the foster parents would be given power to go to court and demand they get the child instead.  If the court dared to say no, they’d have the right to appeal – thereby prolonging impermanence for the child while also making it easier to cite their own stalling as a reason not to take a child from “the only family he’s ever known.” 

In the real world … 

Here’s how this would play out in real life: Middle-class caseworkers take away poor people’s children and throw them into the homes of middle-class strangers – people the caseworkers can identify with.  They make little or no effort to find relatives.  If relatives do turn up, they find all sorts of excuses not to license them as foster parents (licensing requirements often involve middle-class creature comforts; relatives tend to be poor). The relatives spend months trying to meet those requirements.  Or the agency finds all sorts of other excuses to find the relatives unsuitable.  Or it’s months before relatives even find out the child is in foster care. 

Meanwhile, the agency, perhaps with the aid of the middle-class stranger-care parents, stalls and stalls and stalls.  So by the time the relatives meet the requirements and jump through any other hoops thrown in their way, so much time has passed that, well, you know how it is, right? The middle-class stranger-care parents are “the only family the children have ever known.”  So, under the proposed law, they would get to step right up and keep a poor person’s child for their very own. 

In fact, the law goes even further.  It would eliminate even the extremely mild preference for relatives in existing law at any point in the adoption process - even if the relatives are available and meet all agency criteria from the start.  If this bill becomes law, the slight preference that serves to make the playing field a little less unequal for impoverished kin when facing off against affluent strangers is wiped out from day one.  (This raises a question: Would this put Kansas in violation of the federal law cited above?) 

All of this would be bad enough in any state.  But this law is being proposed in Kansas, which, year
after year, tears apart families at
one of the highest rates in America – well over double the national average.  (It may be far worse; Kansas either violates federal regulations or exploits a loophole in federal regulations, depending on how you interpret the regs, to avoid counting a large number of placements.) 

In a state where the entire child welfare establishment has shown such profound hatred for overwhelmingly poor, disproportionately nonwhite families who lose their children to foster care, “best interests” is little more than a euphemism for middle-class white privilege. 

Public radio weighs in 

And yet, here’s how KCUR Public Radio framed the story:  

The current law giving relatives a priority can mean taking a young child away from the foster parents who raised them, even when those foster parents want to adopt. 

Kansas lawmakers could change that. They worry that the current system may sometimes run counter to the child’s best interests and possibly traumatize children. 

In fact, the law would repeal any preference for relatives when they, too, want to adopt – and that framing assumes that adoption should be preferred over, for example, guardianship, which often is a better way to achieve permanence for children with relatives.  The law would privilege paper permanence over relational permanence. 

Oh, and if Kansas lawmakers really cared about not traumatizing children, they’d stop letting the family police take them away at such an obscene rate in the first place.  

As for that pesky research, the research that shows kinship placements almost always are the less traumatic option, KCUR gives it a quick mention, toward the very end of the story, in what journalists call the “To be sure…” grafs – as in, “To be sure, there is another side of the story that we don’t agree with so we’ll shove a couple of token sentences about it in here.” 

And, indeed, the to-be-sure grafs are quickly followed by 

Lawmakers and supporters of the proposed law acknowledge these facts, but they say each case is different and common sense needs to be applied. 

A preference for truthiness 

Common sense?  How is acknowledging research and ignoring its findings common sense?  In fact, it’s more like substituting for truth what Stephen Colbert famously called “truthiness” -- the belief that something is true based on the intuition or perceptions of some individual or individuals, without regard to evidence, logic, intellectual examination, or facts.  In this case, backers of this bill are saying, in effect: I like white middle-class strangers better than impoverished relatives so my gut says it’s “common sense” to give them preference.  The truth is in the research, but truthiness says giving strangers preference is in children’s “best interest” – research be damned. 

And, of course, existing law already leaves judges ample flexibility to invoke the all-purpose mantra “best interests of the child” to ignore any preference for relatives. 

If the backers of this bill really believed that judges should simply be free to use their “common sense” then they would have proposed a law with no preference of any kind.  Instead, they privilege the privileged, equate common sense with their own middle-class sensibilities and tilt the balance away from what research says is truly in children’s best interests. 

Further indicating how desperate proponents are to flee from reality is the fact that the high-profile case that started this frenzy doesn’t even involve relatives seeking to care for a child.  It involves two competing sets of stranger-care parents.  One set of stranger-care parents is willing to keep four siblings together – which is what research suggests usually is best.  The other wants to keep a three-year-old, even if it means she won't  be united with siblings because these stranger-care parents are “the only family she’s ever known.”

Not only did Kansas politicians rush to take the side of the foster parents who would keep the siblings separate, somehow the politicians extrapolated from this case to support a bill that attacks any kinship preference for adult relatives who want to adopt! 

In Kansas, they’ve taken truthiness to a whole new level. 

To see just how much harm the white, middle-class version of “best interests of the child”  “common sense” and trying to play the bonding card can do to children of color – and why, for Native American families, it took a federal law to curb that harm, check out this outstanding story from Julia Lurie in Mother Jones.