Many positive strides are occurring in foster care. In July, Ohio passed a law that changes the age when foster children are forced out of the foster care system from 18 to 21. This last month laws were passed that when implemented will significantly increase the moneys paid to family members who take in a foster child relative. One of the biggest prior successes was the passing of the Fostering Connections Act of 2008 that mandated family finding among several other changes. However since that time, lack of accountability continues to stand out as one of the most damaging, crippling and devastating issues for foster children.
The Fostering Connections Act of 2008 mandated:
“… within 30 days after the removal of a child from the custody of the parent or parents of the child, the State shall exercise due diligence to identify and provide notice to all adult grandparents and other adult relatives of the child (including any other adult relatives suggested by the parents), subject to exceptions due to family or domestic violence…”
Many foster children advocates applauded the passing of this act. It was seen as a monumental shift in protecting the rights of the children and their families. On the surface you may also feel that having a federal law ordering foster care agencies to search out parents and relatives of a foster child creates a huge benefit for foster youths. More relatives would be found meaning that thousands of foster kids would spend less time in the system and be placed with family members, not with strangers or in a government-run or, worse, a private business operated group home.
However, as with many laws, lack of enforcement is often a critical problem. Simply passing a law that says that “the State shall exercise due diligence to identify and provide notice to all adult grandparents and other adult relatives of the child…” is insufficient. A key area of focus is on the wording “due diligence.”
You and I may assume that we have a pretty good idea of what due diligence is, but that’s not the way it works in government. Once a federal law is passed, either rules or guidelines are established to define aspects of the law such as what constitutes “due diligence.”
Rules, in theory, carry clout because actions are explicitly defined. In this way state and other government agencies can be held accountable to follow these rules. Sadly, no rules were created for the Fostering Connections Act. Instead “guidelines” were created.
Unlike rules that can be legally enforced, guidelines function more as suggestions. The strongest wording in the guidelines for the Fostering Connections Act is “encouraged.” State and other agencies are “encouraged” to perform family finding in order to reflect the intent of the Act. Sadly, this is a strategy that often fails.
If you are a parent, you know that simply “encouraging” your child to do their homework is often quite ineffective. Imagine if businesses only “encouraged” their workers to show up on time or treat customers with respect. I can hear you laughing because you know that simply “encouraging” people to take action doesn’t work without either a carrot or a stick. Rewards and consequences are necessary in motivating people to take or not take action.
Many states passed laws that at first glance seem to have stated very clearly the actions that constitute family finding. California Regulations under their Welfare and Institutions Code 302. (b) state:
“Unless their parental rights have been terminated, both parents shall be notified of all proceedings involving the child. In any case where the social worker is required to provide a parent or guardian with notice of a proceeding at which the social worker intends to present a report, the social worker shall also provide both parents, whether custodial or noncustodial, or any guardian, or the counsel for the parent or guardian a copy of the report prior to the hearing, either personally or by first-class mail.”
When I first read this, I thought the regulation was clearly worded. That was before I talked to the director of one of the California agencies that acts as a watchdog over the state’s foster care system. During our initial conversation, the director agreed that family finding should be conducted no matter where the parents are. However, in a later conversation, she recanted her earlier assertion about the mandate to do family finding, saying that the California regulation “is open to interpretation.”
My understanding was that the director felt the wording in the state’s regulations was not explicit. I don’t know about you, but I always thought that watchdog organizations fought for the best practices and outcomes, not spend their time looking for loopholes so that agencies can perform at a lower level.
So even if a foster care agency has information on the location of a foster child's parent, many managers and directors will defend their lackluster family finding efforts by claiming that the law does not explicitly state what constitutes thorough family finding. Worse, the director of one of California's leading foster care oversight agencies will not support either the intent of the Fostering Connections Act or California’s regulations on family finding. Where is the accountability when a watch dog agency acts more like a whipped dog and won't step up to support laws and regulations that help more foster children get out of a system that so many experts say is broken?
One of the most egregious examples of a lack of accountability came during a news investigation in 2013 into one of the foster care shelters in Oklahoma City. Randy Ellis of the Oklahoman wrote about 78 foster children under the care of the Oklahoma Department of Human Services who were missing, with dozen having been gone for more than 90 days. Michelle Zettee of Midwest City, Oklahoma, a former Court Appointed Special Advocate (CASA) volunteer, stated, “There needs to be some accountability here … When DHS has a child removed from his or her parents — I feel that DHS should have as much responsibility to provide adequate supervision and ensure the child's safety as they are attempting to require from the child's parents.”
Although this was disputed later, the article states that the shelter director told a visiting group from CASA that “older children were free to leave at any time and … the shelter staff will not follow the child nor will the police be called,” when they run away. Even though there are protocols in place for when a foster child leaves a group home, they are not always followed. Melissa Jones, a DHS program supervisor, stated that “In 11 years with the department, more than half of that in management, I've never had to reprimand a worker for not making a very diligent effort to find a child.” Apparently in this case, no employees were reprimanded making this a sadly perfect example of the lack of accountability that permeates the entire foster care system.
One of the most painful realities for foster children is that the adults who are tasked with caring for and doing their utmost to protect these youths will hide behind nuances of the law. If these agencies were businesses, they would be out of business. Don’t allow yourself to think for a moment that we should accept less from our government agencies.
I, for one, refuse to accept that our government be allowed to operate by doing less. With millions of tax dollars coming to state and local foster care agencies each month, foster children deserve the best effort from social workers and management. Whether there are rules or simply guidelines, it’s clear that foster care agencies are mandated to do family finding and search out a foster child’s family members, especially both parents. Unfortunately, because of privacy rules questionably put in place to protect foster children, it’s next to impossible to know how often only a token due diligence has been performed. No one can be held accountable if there is no process in place to ensure that proper actions are being taken. Until there are changes in how foster care agencies operate, we may never learn exactly what this lack of accountability is having on the lives of the roughly 400,000 children in foster care.
These youths do not deserve adults who will use any excuse to avoid accepting responsibility for their actions. Children know when they have done something wrong and are told to own up to it. It’s terrible that foster care management can’t act better than our kids and own up to their failings and be accountable for their actions. Until this mentality of avoidance changes and there are oversight agencies that will work to clarify and enforce the rules and intent of the law, thousands of foster children will continue to suffer. They deserve so much better.
Owner/Editor - Chris Chmielewski