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America's Shadow Foster Care System: A Call to Reform

By FindLaw Staff | Last updated on

A recent article in The New York Times Magazine tells a harrowing story, which raises a hypothetical. Suppose a state child protection agency gets a call that a child may be abused or neglected. The caseworker investigates and determines that this may be true and that leaving the child with the parents may be harmful.

The caseworker then presents the parents with a Hobson's choice: Give your child to another caregiver, typically a family member (kinship placement), indefinitely, or else they will seek a family court order placing your child in foster care with strangers. This route could also lead to the termination of your parental rights.

In other words, turn over your child "voluntarily" or face the prospect of losing them forever.

What the caseworker doesn't tell you is that, unlike the formal foster care system, this "shadow foster care" system is not designed to support you or your child. But it does let the caseworker strike a case off their list.

Shadow Foster Care Can Be Dangerous

In fact, shadow (sometimes called "hidden") foster care poses profound problems for all involved. Kinship caregivers get virtually no support. They don't get funding, health care, or therapeutic services that are routinely provided to foster parents.

Then there's the impact on the parents. They are essentially stripped of their fundamental rights. The caseworker doesn't have to present evidence to, let alone persuade, a judge of anything. No evidence of abuse or neglect. No evidence of any danger if the child remains with their parents. Parents don't get a lawyer, and there is generally no formal judicial procedure for getting their child back.

In fact, the courts have no involvement. No independent third party assesses whether there's actually been abuse or neglect. There is no judicial determination that placement with someone other than the parents is in the best interests of the child. No finding that the proposed caregiver is adequate or capable. No ongoing supervision to ensure that continued kinship placement serves the child's best interests. No ultimate goal of reunifying the family.

And that's not to mention the effect on the child of being separated from their parents indefinitely, perhaps permanently, for potentially no legally defensible reason.

We Don't Know How Many Kids Are in Shadow Foster Care

Unlike foster care, there are generally few, if any, state reporting requirements for these "voluntary" kinship placements. Because of this, we don't know precisely how many children are involved in shadow foster care (or who they even are). According to some reports, there may be just as many children in hidden foster care as there are in state foster care systems. That amounts to at least tens, maybe hundreds, of thousands of children.

Temporarily placing a child with a family member until the parents get their act together may, in some cases, be beneficial to all involved. But overall, the downsides seem to outweigh the upsides.

A Call to Reform

University of South Carolina Law School Professor Josh Gupta-Kagan proposes a solution. He suggests regulations that provide:

  • A process by which parents can challenge the need for kinship placement in court
  • Limits on the length of time a child is in kinship placement without more formal court action
  • Paid lawyers for the parents before they lose physical custody and during the time of kinship placement
  • Funding and other resources for caregivers while they are in physical custody in a kinship placement
  • Reporting requirements for state agencies that separate parents from their children in kinship placements

These legislative changes seem to balance the interests of all involved. Caregivers would receive the resources necessary for taking care of a child. Parents would have the opportunity to demonstrate that they are fit and able to care and provide for their child before they are taken away. Judges would ensure that parents get a fair opportunity to present their position and have the power to return the child to the parents' custody when appropriate.

And children would have the benefit and stability provided by temporary — and only temporary — kinship placement in times of need.

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