In child welfare, possession is 9/10 of the law – if you know the loopholes

 

There is so much in this brilliant story by Sandy West in the Texas Observer that it’s hard to know where to start. 

The centerpiece of the story involves representatives of private agencies, sometimes licensed, sometimes not, sometimes nonprofit, sometimes not, suddenly showing up and offering contracts to new mothers, sometimes just days after giving birth. The contracts, may or may not be in a language the mother actually can read. They involve the mother giving temporary custody to someone chosen by the agency.  At least it’s supposed to be temporary. 

But that isn’t the worst of it. 

The worst is how easy it is for middle-class foster parents handed these children to exploit legal loopholes, go into court and say, in effect: “We’re better people than this child’s parents, so we should get to keep the child!” They can do it even when the private agency objects. They can do it even when the state family police agency objects. 

It’s one more example of the ugliest of family policing realities: attempts by those with enough money to step right up and take a poor person’s child for their very own. 

In one of the two cases examined in the story, this happened: 

At the hearing, [Judge] Fisher said the Louisiana couple would be ineligible to sue again for custody based on their time caring for the child while the state sought another placement. 

“If that were the case, I could go kidnap a child from the playground and keep it for six months and then file for adoption,” Fisher said, per the court transcript. “They don’t have permission to have the child, so they don’t have standing.” …

But the Phillipses have continued their efforts to terminate the teen’s parental rights and adopt her daughter ever since, court records show. 

Texas is not even the worst. Many states formally allow foster parents to “intervene” if they’ve had a foster child for long enough, a practice exposed by ProPublica and The New Yorker.  This year, Indiana lawmakers even made this odious practice easier.

The Texas Observer story points to other issues: 

● This is still another form of hidden foster care. Such placements have even less in the way of due process protections than official, openly-acknowledged foster care. And these placements are not counted as entries into care, making a state’s foster care numbers look artificially low. 

This is at least the second form of hidden foster care discovered in Texas. The placements described in the Texas Observer story are in addition to the many so-called “parental child safety placements” in Texas.  Were “parental child safety placements” counted as foster care, which, for all intents and purposes they are, they would nearly triple the number of children reported torn from their parents in Texas every year. 

● This also illustrates the danger of various forms of what should be called sugar-frosted foster care.  That’s when private organizations, such as Safe Families for Children, offer to help impoverished families by finding volunteers to take in their children, as opposed to, say, finding volunteers to help ease their poverty. There is nothing nefarious in it. Those running the program have the best of intentions and they don’t try to trick or coerce anyone. But it’s open to the same sorts of abuses if a volunteer “safe family” decides they want to keep the child for their own and either goes to court or simply calls child protective services.

How the Kansas “child welfare” agency makes hundreds of foster children “disappear.”

Even the Wizard of Oz couldn’t do that. But at last, we’re getting a peek behind the curtain. 

This post was updated on August 4, 2025, to replace comparative figures for 2022 with figures for 2023, the most recent available.

Seventeen years after we first raised the issue, an ugly little practice that leads to hundreds of needless foster care placements in Kansas every year finally is getting some attention – though far from all of the attention it deserves. 

The Kansas Legislature passed, and the governor signed, a bill that may slightly reduce the number of times this practice is invoked – but it still allows the family police agency, the Department of Children and Families, to keep such placements “off the books” – so no one will know how many children really are taken from their homes in Kansas each year. 

The practice is known as placing children in “police protective custody.” It’s a special Kansas twist on the ugly practice of “hidden foster care.” What Kansas allows is so awful that it earns the state a special note in the narrative for the NCCPR Rate-of-Removal Index. 

After decades, it appears that DCF finally has leadership that is concerned about the practice and how it leads to the needless removal of children. They supported the modest reforms.  But they’re still sticking to the disingenuous claim that these placements are not foster care. 

Why are police protective custody placements not foster care? Because, DCF says, they’re police protective custody placements, that’s why! 

And no wonder: 

In a foster care placement, an agent of the government demands that parents surrender their children. The government then decides where that child will go – perhaps to a relative, perhaps to a stranger, perhaps to a group home or institution. The government decides when – or if – the children ever will see their parents again. 

In a police protective custody placement, on the other hand, an agent of the government demands that parents surrender their children. The government then decides where that child will go – perhaps to a relative, perhaps to a stranger, perhaps to a group home or institution. The government decides when – or if – the children ever will see their parents again. 

See the difference?  

Well, actually there is that one difference. When the police take the child (hence the term “police protective custody”) and the child is returned home at or before the first court hearing – which can be as much as six days later – DCF pretends it never happened!  In other words, when Kansas tells the public, and the federal government, how many children were torn from their homes and placed elsewhere by force of law, they don’t count police protective custody placements. 

How many such placements are there? No one knows for sure, but apparently quite a lot – so many that it can take the rate of removal in Kansas from outrageous all the way to obscene. Even worse, it appears that a significant proportion of these placements involve dumping children into the worst, most traumatic form of placement of all – institutionalizing them in parking place “shelters.”   

            Nat. Avg.      KS official      Estimate: KS+
                                                               "police protective
                                                custody"

Officially, in 2023, the most recent year for which comparative data are available, Kansas consigned 2,662 children to the chaos of foster care – that made the rate of removal in Kansas double the national average, even when rates of child poverty are factored in. 

But in March, DCF finally released some figures on police protective custody placements. While not precise, they suggest that anywhere from 979 to 1,076 children were taken into police protective custody and then “thrown back” – much the worse for the experience – before the first hearing, and so would never be counted in official figures.  (A link to DCF’s figures and an explanation of the estimate can be found at the end of this post. If anyone wants to suggest an alternative figure, I’d be glad to take a look.) 

Using the low-end estimate, that would mean Kansas really took away 3,641 children in 2023. That would make the rate of removal in Kansas nearly triple the national average and the third highest in the country.

The practice goes back a long way 

We first discovered the practice in 2007, while working on our report about Kansas child welfare. We discovered it when it was referenced in passing in an op-ed column written by the public official who, then as now, might be Kansas’ foremost proponent of a take-the-child-and-run approach to child welfare. That would be Ron Paschal, then as now the deputy district attorney in charge of the Juvenile Division in Sedgwick County (metropolitan Wichita). His op-ed hinted that the number was huge, but offered no specifics. 

Just as in 2007, the most extreme use of police protective custody placements is still in the Wichita area. In that region, it appears that more than half of all entries into care were police protective custody cases in which the children were returned to family within six days. 

The excuse for hiding all these placements 

Although DCF has more concern about these placements now than it did in 2007, it still uses the same excuse now as then for failing to report them as entries to the public or to the federal government: It’s not foster care because DCF doesn’t have custody of the children – the police do. In other words: Sure, they’re in exactly the same places and subject to exactly the same control as if DCF had them, but hey, so what? That’s our technicality and we’re sticking to it! 

At best DCF is exploiting a loophole in federal regulations concerning what must be reported as an entry into foster care, at worst they may not be following those regulations. 

Those regulations do not say a child has to be in the custody of a given agency to be counted as in foster care.  Rather, the state family police agency must have “responsibility for placement and care of the child.”  In the case of Kansas police protective custody placements, children may be placed in foster homes group homes or institutions that are licensed and overseen by DCF. That sure sounds like responsibility for placement and care.  But, in fairness to DCF, when we asked the federal Administration for Children and Families about this in 2007, they were just fine with letting Kansas do this and looking the other way. That may be in part because if Kansas doesn’t call a case foster care, the federal government doesn’t have to pick up part of the tab for that case. 

So maybe DCF can get away with it legally – ethically it’s a shameful misrepresentation of the full scope of the extent to which Kansas destroys families.

Six-day placements are almost never necessary 

The new data also tell us something else: In nearly 1,000 cases – and maybe more – a Kansas law enforcement officer decided that something was happening to a child that was so awful it required tearing that child from everyone she or he knows and loves and throwing that child in with strangers – at worst dumping them into an institution. And yet, that child could be returned, typically to the home from which she or he was taken, within six days. 

A sadistic, brutal parent out to beat and torture a child does not suddenly reform in six days.  Neither does a parent who’s been deliberately starving a child. In these sorts of extremely rare cases, the problem is not likely to be remedied in six days.  Where the danger is not severe and immediate, odds are there are things that can be done without taking away the child. Here’s a good example, from next door in Missouri, of a police officer who understands that.  

But Ron Paschal doesn’t understand that. In legislative testimony, he cited horrible situations supposedly requiring police protective custody, and declared in written testimony that when the child then is returned home from this supposedly impossibly horrible situation within six days “THIS IS AN INDICATION THAT [POLICE PROTECTIVE CUSTODY] WAS SUCCESSFUL.” (Capitals in original(!)) 

That’s like saying that kidnapping a child does the child no harm, and even declaring success, if the child is rescued in a few days.  I think most people – especially the children in question – would consider it far better not to be kidnapped in the first place.  And make no mistake, particularly for a young child, the trauma is every bit as great as a kidnapping – no matter how “short” the time in foster care – oops, sorry, I mean “police protective custody.” 

If anything, Paschal suggests Kansas still isn’t tearing apart enough families.  He cites claims that child abuse is underreported, and the fact that his position has popular support – as evidenced by viewer comments on a television station website. 

This is a longstanding belief on Paschal’s part. You can read more about him in NCCPR’s 2007 report on Kansas child welfare. 

One other thing about police protective custody placements. They don’t always end with a return to the birth parents. Sometimes they end with an informal arrangement to place the child in the home of a relative – in other words, the classic version of hidden foster care. So Kansas’ special version of hidden foster care – police protective custody placements – probably increases the number of classically hidden placements. 

______________

How we estimated the number of unreported foster care entries in Kansas. 

In written testimony to the Kansas Legislature, Deputy DCF Secretary Tanya Keys includes several tables on Page 5. One of those tables puts the total number of Police Protective Custody (PPC) placements in 2024 at 2,509.  Another table states that of all the children Kansas officially admits they put in foster care in 2024, 1,433 of them started off as PPC placements. So if 1,433 out of 2,509 PPC placements ultimately became officially recognized foster-care placements, that leaves 1,076 that did not. That would be 1,076 children taken from their families but never officially counted as foster care placements. 

But the number might not be that high. In an email, Keys explained that's because the 1,433 figure is actually an estimate, extrapolating from various data sources. (By the way, however much I disagree with the agency, Keys sure works hard – she answered my emails on a Sunday night.) 

But there’s an alternative, simpler way to estimate: The Kansas Reflector reports that during a legislative hearing 

Keys said, the Kansas Department of Corrections reported 39% of children dropped off at juvenile facilities last fiscal year by law enforcement officers across the state were subsequently released to a family member. 

“Forty percent of those children are returned to a parent or relative. That’s their placement outcome after a juvenile intake an assessment worker is alongside that family,” Keys said. 

That would be 979, and that more conservative figure is the one I’ve used to estimate the real rate of removal in Kansas.

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.

Is this family police agency leader really bragging about misleading the public?

Perhaps if we all say it often enough we can stop
family police agencies from misleading us about this.

Last week, Virginia’s Director of Social Services, Danny Avula, gave a presentation to the state Commission on Youth.  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.] 

The practice Avula seems to be bragging about, and the hoodwinking of the public that goes with it is, in fact, shameful. 

On the surface, Virginia appears to have a low rate of tearing apart families.  But that’s only because Virginia hides a whole lot of its foster care placements – by not calling them foster care.  

There’s a term for these kinds of placements – “hidden foster care” (of course).  But I prefer “blackmail placements” because that’s how they usually work. 

The family police agency decides to remove a child from the home.  To make the process easier, for the agency, not the family, they essentially blackmail the parent: Give us the child and let us place him “informally” with a relative -- without involving the court, without having to deal with a family defense attorney and without even the minimal due process rights you normally have -- or we’ll go to court and throw your child into the home of a stranger, or worse, a group home or institution. 

By some estimates, nationwide, there may be as many children in hidden foster care/blackmail placements as there are in the kind where the numbers are officially reported to the federal government and the public.  That means that instead of tearing apart families 206,000 times per year, it’s more like 412,000.  

When they fail to report these placements, states are, at best, exploiting a loophole in federal regulations.  At worst, they are ignoring those regulations and the federal Administration for Children and Families chooses to look the other way. 

The deception is compounded when family police agencies deny that these placements are foster care – calling them kinship placements or worse “kinship diversion.” 

Though kinship care is almost always the least harmful form of foster care, kinship care is still foster care.  

There’s nothing unusual about family police hoodwinking the public by keeping hidden foster care hidden and calling it something else.  What is unusual is when they seem to brag about it. 

That sure sounds like what Avula was doing when he said that when it comes to all those blackmail placements “The upside of that is that it keeps our overall numbers of kids in formal foster care low.” 

Upside for whom?

The children still have been torn from their families.  And while they are in kinship foster care with a relative, that could have been done through the formal system with the state forced to report that they did it and at least some minimal due process rights for the families. 

When state officials say blackmail placements are better because the child is being placed with relatives, once again they’re trying to hoodwink you.  Going to court does not deny a child placement with kin instead of strangers – unless that’s what the family police always wanted in the first place. 

There’s no “upside” for the children, and there’s no upside for the families.  It’s only an upside for the state of Virginia, which can pretend to be tearing apart fewer families and for local family police agencies (in Virginia these systems are county-run) which don’t have to deal with those pesky family defense lawyers, can save money on court costs and never have to pay the relatives the way they pay strangers.  (Formal placement doesn’t guarantee relatives will get such placements, but informal placement guarantees they won’t.)

 The families know this.  As Virginia Public Media pointed out: 

[A] 2022 report from the newly created Office of the Children’s Ombudsman found issues with Virginia’s practice of informally placing children with relatives. It included comments from parents who felt they’d been coerced into giving up their children for an unspecified amount of time, without representation from an attorney. 

“My children were kidnapped,” the report quotes one anonymous parent. “There was no court order.”

Oregon using COVID-19 as excuse for hidden foster care, depriving families of due process

Their own “clarification” makes one thing clear: They will sometimes take children when parents have COVID-19

           This story from Reuters is supposedly a “fact check” to reassure people in Oregon that no, the state child welfare agency will not take away your children just because you have COVID-19.  But the “clarification” offered by the Oregon Department of Human Services is anything but reassuring. The agency effectively admits that, under some circumstances they will  take your child if you have the coronavirus.  And they will bypass the already minimal due process protections available to families in order to do it.

          Such abuse of power is alarming in any state - but especially in states such as Oregon, which has a long ugly history of tearing apart families at rates well above the national average.

It all started with this official notice from Oregon DHS:

Effective 4/22/20, if in the course of an assessment a caseworker or supervisor makes the determination that a child will enter substitute care because their caregiver is infected with COVID-19, the caseworker or supervisor will need to select a newly created case note value for tracking these specific entries.

            It’s understandable that some people would read this and think it means what it says: That DHS will take away your child if you have COVID-19.  DHS says that’s not what they meant.  And to an extent I believe them.  If a wealthy parent came down with the coronavirus, but the nanny still was showing up and the parent could isolate himself or herself in one wing of the family McMansion, no, DHS wouldn’t take away the child.

           

But what if the parent is poor and living in a small apartment? What if DHS deems a parent in such circumstances “too ill to care for the children”?  DHS’s own “clarification” is, in fact, a thinly-disguised sugar-coated threat.  And they’re using COVID-19 as an excuse to make an end-run around minimal due process protections for families and consign children to the chaos of foster care with no attorney for the family, no court review, no chance for a neutral arbiter to decide of the placement is necessary.

            This is done by labeling the placement “voluntary.”  So now, let’s look at the DHS statement “clarifying” the earlier statement:

We do have the capability, within our current rule and procedure, to work with a legal parent/guardian on a voluntary basis, to make a temporary plan for their child(ren) if they are too ill to care for their children. We would explore all options with a parent/guardian in that circumstance including their friends, family and community resources. If we exhausted all options, we could place their child in foster care. This would be a voluntary placement that does not affect a parent’s custodial rights and does not involve the child dependency legal system.

No such thing as “voluntary”

            Notice how often they say “voluntary”? That should send your b.s. meter off the scale. Because in the real life world of child welfare there is no such thing – repeat: No. Such. Thing. as a “voluntary” foster care placement.  Because in child welfare possession is way more than nine-tenths of the law.

            Once you sign the form “voluntarily” surrendering your child to foster care, DHS may say you can get the child back whenever you want because you haven’t given up “custodial rights.”  But all DHS has to do is say: We don’t think you’re ready yet, and we’re going to court. (They can even declare it an emergency and simply get a judge to rubber stamp the existing placement by phone or Zoom without you being present.) Or the foster parent may decide you’re not really suitable and call the child abuse hotline. Either way, the very facts that:

1. Someone else already has physical custody of your child.

2. You “admitted” by agreeing to the “voluntary” placement that you were unable to care for the child, and

3. The “trained professionals” at the child welfare agency and/or the foster parents now deem you unfit

make it extremely unlikely that a judge will let you get your child back.

            Even more outrageous is the way DHS presents the fact that the courts are not involved as though that somehow bolsters the position of the family. On the contrary, as noted above, it means DHS, having secured the parent’s “consent” to the “voluntary” placement can bypass the few legal protections the system affords to families. 

Hidden foster care

It also means, by the way, that DHS can do everything on the cheap – they don’t have to pay the friend, relative or foster parent.  And they can get away with not reporting the placement as an entry into care – making the number of children DHS tears from their families look lower than it really is.  This hidden foster care system is a pervasive problem across the country.

            As for the claim that “We would explore all options with a parent/guardian in that circumstance including their friends, family and community resources” before resorting to foster care with strangers, parents don’t need a giant coercive child welfare bureaucracy for that. 

            For starters, among the many heroes on the frontlines of the pandemic are home health care workers.  If Oregon DHS is serious about helping families stay together when an impoverished parent has contracted COVID-19  it could set up a fund and resources to allow parents with COVID-19 to bring help into the home, just the way rich people do, instead of DHS taking the children out.

            In cases where that’s really not viable, parents can reach out to friends and family on their own.  And if DHS really wanted to help with that, it would set up an online family finding resource entirely separate from child protective services that parents could use to help them find extended family and friends – as opposed to programs that kick in only after child protective services agencies are involved.  

            To really help families, agencies have to relinquish some of their power. Instead, Oregon DHS is using COVID-19 as a smokescreen to wield even more unchecked power over vulnerable families.

Lessons from the hidden foster care scandal in North Carolina

Cherokee County, NC Courthouse

Lesson #1: It’s probably happening in your community, and it should be a scandal there, too.

There is quite a scandal in the child welfare system in Cherokee County, North Carolina.  But where to begin?  How about with the first few paragraphs of this September 11, 2019 story by Kate Martin of the nonprofit news site, Carolina Public Press:

The State Bureau of Investigation is continuing to look into possible felonies at Cherokee County’s Department of Social Services, nearly a year and a half after its investigation began.

Current and former workers of Cherokee County’s DSS office, including former director Cindy Palmer, are under investigation related to removing children from parents without judicial oversight using a document called a custody and visitation agreement or CVA. Social workers at the office did so for more than a decade, according to testimony in court last year.

Whether the agents are now looking at related issues that have come to light in recent months remains unclear.

Although suspended as director in March 2018, Cherokee County DSS rehired Palmer as the office’s business officer in June 2018, and she continues in that role despite the ongoing criminal probe.

The reason we all should be paying attention is simple: Some of the things exposed in Cherokee County first by investigative reporters for the Associated Press and now by Carolina Public Press are highly unusual – at least I hope they are.  But at the heart of the scandal is a practice that goes on all over America.  And the real scandal is that only in North Carolina is it being treated as a scandal. 

          

  There are many names for the practice in question: shadow foster care, the foster care Twilight Zone, blackmail placements, and hidden foster care.  Whatever you call it, it is a system that rivals in size and scope the open, relatively above-board foster care system – but with even less due process and less accountability.  I’ve written about it in general and I wrote about the North Carolina scandal when it first broke well over a year ago.  But much has happened since.

How hidden foster care works

            It works like this: A parent is told at a minimum:  We’re going to take your children away and place them in foster care with strangers. In some cases they’re told: We’ll also separate them from each other and place them far, far away. You can go to court and try to get them back but, well, good luck with that. Good luck even visiting them.  Then they offer the alternative: Just sign this little piece of paper in which you “voluntarily” agree to have us place the children with someone nearby – usually a relative.

            Of course no lawyer for the family ever looks at that piece of paper first, or explains to the family their rights.  The parents’ only explanation of what the piece of paper means is what the caseworker tells them it means. And while many of these placements are theoretically short-term, in some of the North Carolina cases these agreements effectively involve signing away rights to a child forever.

            As I said, it happens all over the country. But only one state child welfare agency has aid the whole thing is illegal: North Carolina. (North Carolina is one of the states in which counties run child welfare and the state social services agency has some oversight.)  Even in North Carolina, it’s not clear if the state would have acted had the practice not been exposed in a major national news story by Associated Press reporters Mitch Weiss and Holbrook Mohr. Since then, Kate Martin of Carolina Public Press (CPP) has been following up aggressively. 

The timeline

            Here’s what happened and when, based on news accounts:

            October, 2017: A state Department of Health and Human Services team conducting a routine review discovers that plenty is rotten in the County of Cherokee Department of Social Services.  A memo obtained by Carolina Public Press nearly two years later reveals what the state examiners believed to be widespread falsification of records involving contact between child welfare caseworkers, birth parents and foster children.

            The memo also states that terminations of parental rights “are pursued very quickly with little or no engagement with parents.  It is hard to believe with the lack of engagement and documentation that TPRs are even granted.”

            There is no indication that they also discovered the use of hidden foster care at this time.  But, it appears the state did very little about what it did discover.  The Cherokee County district attorney told Carolina Public Press she was “flabbergasted” she was not notified at the time about what might be criminal activity.

As CPP put it: 

Although the DHHS memo expressed concern about records falsified by duplicating other records, it focused not on potential criminal fraud or violation of families’ rights, but on DSS funding and destabilizing DSS child placement actions: “These records are tied into funding. A parent’s attorney could get ahold of these records and make an argument to have the kids returned home.”

            December, 2017: A local attorney, Melissa Jackson, discovers the use of hidden foster care in Cherokee County while representing a father coerced into “voluntarily” signing a so-called “custody and visitation agreement.”  As the Associated Press would later report:

Soon after Jackson exposed the practice, the North Carolina Department of Health and Human Services sent an “urgent” letter to county agencies on Dec. 20, 2017, warning that “facilitating the completion of private custody agreements” without court oversight “falls outside of both law and policy.”

            If the state did anything else at that point, there is no public indication of such action.

            December, 2017: Jackson and attorney David Wijewickrama sue Cherokee County on  behalf of parents whose children were taken using CVAs.  They are seeking class-action status.

            Early March, 2018: The state asks Cherokee County for a “corrective action plan.”

            March 14, 2018: With Jackson’s client prominently featured, the AP story exposing Cherokee County’s system of  hidden foster care is published.  The story reveals that the practice dates back at least to 2007 and may involve hundreds of families.  Exactly how many is unclear because former Cherokee County DSS attorney Scott Lindsay said at court hearings that many “files are missing.”

At about the same time, District Judge Tessa Sellers rules that CVAs violate state law, the state constitution and the United States Constitution.   According to the ruling:

The CVA is the product of both actual and constructive fraud on behalf of the Cherokee County Department of Social Services, it’s agents and Attorney Scott Lindsay and director Cindy Palmer.

            March 16, 2018: Now the state is really interested, and, apparently, concludes that a “corrective action plan” is not enuogh. After the scandal makes national news, the state announces it will temporarily take over the child welfare functions of the Cherokee County Department of Social Services.  The takeover begins three days later.

            At about the same time the county district attorney – who only learned of the scandal by reading the AP story – asks the North Carolina State Bureau of Investigation to investigate possible criminal wrongdoing.

            March through June 2018: Though the state is taking over the child welfare functions, the county DSS still is overseen by a local Board of Social Services.  The Board holds what is apparently an unusually large number of special meetings. But we don’t know exactly what happened at all of them – because, Carolina Public Press reveals, the minutes are missing.  We do know, however, that Lindsay’s replacement as DSS attorney, David Moore, said Palmer may have lied under oath.

April 2018: The Board of Social Services suspends Palmer, with pay.  She is replaced with an acting director.  Moore tells the board Palmer should not be allowed to return.

May, 2018: The position of business officer for Cherokee County DSS becomes vacant. Palmer had held that job before she was named director. 

            June 11, 2018: Palmer resigns as DSS director.

            June 11, 2018: Palmer’s interim replacement hires Palmer to be the DSS business officer – the job Palmer held before she became DSS director.

            June 12, 2018: DSS attorney David Moore resigns.

            July, 2018: Cherokee County DSS receives a bill of $3,311.87 for document shredding services covering the period mid-June to mid-July, 2018.  The highest previous monthly total since November 2017 was $367.76, in May.  In November and December, 2017, the bills were $90.17 per month. 

            Or, as Carolina Public Press put it:

The DSS agency in early 2018 also started a curiously timed massive shredding campaign, which went into high gear after Palmer returned to the agency in June 2018. The effort was supposedly designed to create urgently needed space and did not touch child welfare documents, which DSS had been ordered not to destroy. But a year later, the space remains unused. Whether any additional child welfare documents went missing remains uncertain.

            October, 2018: The state Deparemtent of Health and Human Services ends its direct control over child welfare in Cherokee County.

            November, 2019: The State Bureau of Investigation’s findings concerning CVAs, and possibly other issues, are now in the hands of the state Attorney General’s office.  CPP reports that “Palmer, and possibly others, remain under criminal investigation…” by that office.

            And a new problem has been discovered: The county and the state have had to repay the federal government more than $247,000 in federal foster care funds to which they were not entitled “after mistakes by social workers and their supervisors.”

Is Nebraska reducing foster care – or just hiding it?

For decades Nebraska was a national example of child welfare failure. Year after year the state took away children at one of the highest rates in the nation.  The state human services agency suffered from a succession of poor leaders, including one of the very worst, Todd Landry. Landry even made a sick joke at the expense of vulnerable families.   (Proving that no matter how big a failure you are, there’s always room for you in child welfare, Landry now is in charge of child welfare in Maine.)

Nebraska’s failings are outlined in detail in a report NCCPR released in 2012.

But then it looked like things were turning around.  When Matt Wallen was named Nebraska’s Director of Children and Family Services he took some constructive steps.  The new leader of the entire state health and human services agency, Dannette Smith, appears to want to continue the progress.  The rhetoric coming from her agency certainly has improved.  But do the numbers back up the words?

Officially, the number of children torn from their families in Nebraska dropped significantly in recent years.  Officially, as of 2018, Nebraska’s rate of child removal was “only” about 20 percent above the national average, when rates of child poverty are factored in.

But did removals really decline?

Hidden foster care

It seems that even as official entries into foster care have declined, another kind of foster-care has increased.  In an outstanding law review article on the topic, Prof. Josh Gupta-Kagan of the University of South Carolina School of Law calls it “hidden foster care.”

It’s something I’ve been writing about for a decade now: Child protective services agencies go to a family and coerce them into surrendering their children “voluntarily.”  In fact, there’s usually nothing voluntary about it.  The agency says: Place your children with a relative “voluntarily” or we’ll go to court and place them with total strangers.

In Texas, nearly two-thirds of entries into care occur this way.  There are indications the number may be almost as high in Virginia – though the data are limited.  And now, some Nebraska advocates claim that, in the past couple of years there’s been as one put it “a huge increase” in such placements in Nebraska.

Although we read federal regulations as requiring states to report these entries into foster care in official statistics, typically they don’t – and the federal government has not cracked down on this evasion. Indeed, in an Orwellian twist, some states refer to this as “diversion” from foster care.

It is not. 

Kinship care is foster care

Though placement with a relative is almost always the least harmful form of foster care, kinship care is still foster care.

The issue actually got attention in Nebraska for the wrong reasons.  Whenever the Nebraska child  welfare agency tries to put its dismal past behind it, a fear-mongering chorus rises up, aided and abetted by an Omaha television station that specializes in hype and hysteria over child abuse – which is why I’m not linking to their story. So in this case, the concern is based on the false claim that these hidden foster care placements are less safe, because a court didn’t sign off on them.

In fact, multiple studies have found that kinship foster care – even informal kinship foster care - typically is better for children’s well-being, more stable, and, most important, safer than what should properly be called stranger care. 

The temptation to use hidden foster care in Nebraska is understandable. In Nebraska the courts tend to be even worse than the child welfare agency, particularly in metropolitan Omaha.  Here’s one example. There’s another on Page 41 or our Nebraska report.

So, one could argue, even if the “improvement” in Nebraska consists entirely of placing children with relatives who formerly would have been placed with strangers, that’s still an improvement.

But such placements are too easy to abuse. They deprive families of even the minimal due process protections available when a worker formally removes the child and then goes to court to rubber-stamp the removal.  In Nebraska, we don’t know if these are all cases in which the children otherwise would have been placed with strangers, or if they include cases in which the children would not have been removed at all if the agency had been required to go to court.

And these placements are too easy to hide. 

Because now we don’t know if Nebraska made progress in dealing with its obscene rate of removal, or just found a way to sweep it under the rug.