June 01, 2020 Article

The Risk of Hidden Foster Care During COVID-19

The pandemic has resulted in significant challenges for our systems, but it cannot be used as a justification for separating families without due process.

By Angie Schwartz and Cathy Krebs

We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation. Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all coronavirus-related articles are outside the Section of Litigation paywall and available to all readers.

When children are removed from their parents’ custody by a child protection agency due to allegations of abuse or neglect, research has clearly illustrated that placing them in kinship foster homes often leads to better outcomes than care in traditional foster care with non-relatives. Placement with family may be even more important during COVID-19 as kinship families are more likely to take in an entire sibling group preventing additional trauma of being separated from sisters or brothers. In addition, many kinship caregivers want to assist the children in their care in remaining connected to their parents through video or socially distanced visits frequently, while finding adequate visitation time is a particularly acute challenge for many children in non-kinship families. Finally, research has illustrated that placement with kinship caregivers often means more stable placements with fewer placements overall and often results in better mental and physical health. These benefits of kinship placement have been found when child welfare systems make formal placements by the child protection agency into a relative’s home. Because these are formal foster care placements, kin caregivers also benefit from case management, the support of attorneys and social workers, and monthly financial assistance to ensure that they can meet the basic needs of all the children in their care. Foster families as well as parents also have recourse to the courts when a dispute arises affecting the care of the child.

Unfortunately, the pandemic has put roadblocks in the way of approval of family members as foster parents, for example social workers are unable to do home visits and fingerprint background checks may not be able to be completed. The pandemic is also likely to result in additional burdens to our child protection systems, particularly as states begin emerging from stay at home orders and calls to the hotlines may surge while the child welfare systems struggle to deal with a backlog of court cases, approvals, and investigations that were put on hold or delayed during the pandemic. States are likely to face severe budget challenges, pressuring child protection systems to find the lowest cost interventions possible. These challenges and others caused by the pandemic may increase the likelihood of the use of “hidden foster care”.

"Hidden foster care" is the term used by Professor Josh Gupta-Kagan to describe a widespread practice that has existed for decades, under the guise of “safety plans” or diversion programs, under which a child welfare agency tells a parent that unless the parent places his or her child with a friend or relative, the agency will remove that child and place the child into foster care. In addition to this coercion of the parents through the threat of removal, the agency often simultaneously tells the relative that unless the relative takes the child into his or her home and takes action to protect the child, often by seeking guardianship of the child through a family or probate court, the child will end up in foster care with strangers and the relative may have no access to the child as a result. The practice and language are a little different in each state, but the end result is the same: The child and the parent are separated, without court review or access to counsel and often without a plan for reunification. And because the foster care system was bypassed, the relative or friend who took custody of the child is left to care for the child without the supports and services that the child welfare system provides to support children who have experienced abuse and neglect and without assistance in navigating contact and reunification with the parent. While families can benefit from avoiding the foster care system, and the foster care system itself can be very problematic, hidden foster care raises many concerns, including the infringement of a parent and child’s “fundamental right to family integrity with few meaningful due process checks.” Josh Gupta-Kagan, “America’s Hidden Foster Care System,” 72 Stan. L. Rev. 841 (2020). In some cases, the separation of children from their parents may be entirely unjustified and without sufficient evidence that the child is unsafe. Even if separation is justified, accomplishing it through threats and incomplete information is very problematic for each member of the family. A full description of the practice and associated risks can be found in the article "Addressing Hidden Foster Care: The Human Impact and Ideas for Solutions." 

There are a variety of reasons why social service agencies or workers may utilize hidden foster care.  When the foster care system is diverted, the state can save thousands of dollars on things like monthly financial assistance to the caregiver, respite supports, case management, caseworker staff time to prepare court reports, monthly visits to the home, and the reunification supports and services to the child and parent. When a child enters hidden foster care, the state often closes the case completely, which lowers stress for social workers who often carry burdensome caseloads. Despite these incentives, it should not be assumed that child welfare agencies are unconcerned about this hidden foster care. Many social workers are attempting to adhere to the wishes of the family to avoid the loss of control that can result once a child is in foster care. Other times, systems feel their hands are tied by licensing rules that may prevent the child from staying with family members if a formal foster care case is opened. Child welfare agencies exist to protect children, and often when leaders and social workers understand the human impact of hidden foster care, they are interested in addressing it.

The current pandemic may encourage states to increase their reliance on hidden foster care. Removing a child formally from their parents’ custody means scheduling court hearings which may be difficult during periods when states are under stay at home orders and courts are limiting hearings. Even once the stay at home orders are lifted, getting to court may be difficult as courts struggle to deal with crushing backlog of cases. In addition, child welfare agencies understandably want to limit their workers’ exposure to the virus as well as keep caseloads to a minimum. Encouraging parents to send their kids to live with relatives outside of the court process may seem like a good solution to barriers like the inability to officially approve family members as foster parents because social workers in some jurisdictions cannot do home visits. State budget challenges may make choosing the less expensive option—hidden rather than formal foster care—even more appealing. Yet despite the good intentions, the reality is that the child then enters the hidden foster care system, and parents and caregivers are not generally provided with full information on what bypassing the court system will mean. Parents may not understand that hidden foster care often means that there will be no timelined plan, services, or assistance provided to reunify the parents and children. Caregivers may not understand that in bypassing the foster care system they will not receive full foster care payments nor assistance with child care or mental health services. Children also can lose the right to remain in their school or origin, to receive partial credits if they do have to transfer schools, as well as the right to extended foster care. 

Hidden foster care has long been overlooked, but with Professor Josh Gupta Kagan’s recent law review article America’s Hidden Foster Care System, along with significant policy and legislative reform proposals in California (See e.g. A.B. 2124 (seeking to transfer some hidden foster care cases from probate to juvenile court)) a state scandal and related litigation in North Carolina (Hogan v. Cherokee County, 1:18-cv-96 (W.D. N.C.)), and impact litigation in the District of Columbia (K.H. v. District of Columbia, 1:19-cv-03124 (D.D.C.)), this issue has finally begun to receive much needed attention. Advocates from over a dozen states (including the ones with the largest child welfare systems) have begun to brainstorm solutions to address hidden foster care, for example, collecting accurate data on the issue, providing a right to a lawyer before agreeing to any bypassing of the foster care system, defining voluntary transfers of physical custody to help ensure that the placement of children truly is voluntary, and limiting safety plans. In addition, systems which require team decision making prior to any out of home arrangement are able to ensure consistency of practice and gather data on the longer-term impact of hidden foster care placements. The current pandemic threatens to undermine these initial efforts and exacerbate this hidden system. 

Advocates need to be aware of current increased pressures on the child welfare system as well as the human cost of hidden foster care. We need to ensure that our state leaders are aware of the dangers of hidden foster care and educate community members about the risks of agreeing to a hidden foster care arrangement. States also need to track the number of cases in which physical custody changes pursuant to a safety plan or agency demand as well as the outcomes in those cases. Lastly, to ensure that the transfer of custody is truly voluntary, parents and children must have a right to a lawyer before agreeing to any bypassing of the foster care system. The Children’s Bureau of the U.S. Department of Health and Human Services has recently changed policy to allow states to seek federal reimbursement under Title IV-E for the cost of multi-disciplinary legal representation for parents and children. States can utilize this new funding to provide lawyers when the state compels a change in physical custody outside of the formal foster care system. 

The pandemic has resulted in significant challenges for our systems, but it cannot be used as a justification for separating families without due process, leaving them in legal limbo and not providing needed services to ensure family integrity and child safety.

Additional Resources on Hidden Foster Care

Start Your Litigation Membership Today!

Join the ABA's Section of Litigation and gain value and insight in your career, no matter your experience level. Signing up is easy and grants you member-only access to the latest news, information, and thinking on litigation strategy.

Angie Schwartz is vice president of policy and advocacy at the Alliance for Children’s Rights. Cathy Krebs is the director of the Children’s Rights Litigation Committee.


Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).