Commentary

Missouri must reduce family separations, not only formal foster care numbers

September 21, 2023 5:55 am

Leaders of Missouri’s child welfare agency last week touted a reduction in the number of children in the state’s overburdened foster care system, telling lawmakers it represented progress toward building a more preventative system (Annelise Hanshaw/Missouri Independent).

The Missouri Independent recently reported on the modest decline in the number of children in Missouri’s formal foster care system. Beneath the headline, however, the story revealed the urgent need to regulate the disturbing practice of hidden foster care — which Missouri’s Children’s Division has effectively admitted to practicing.

That practice violates parents’ and children’s due process rights, separates families unnecessarily, and shortchanges kinship caregivers.

In these hidden foster care cases — euphemistically called “temporary alternative placement agreements” under Missouri law — the Children’s Division decides on its own that a parent and child need to be separated.

The division then threatens the parent, explicitly or implicitly: Agree to this family separation, or we’ll take you to family court and your child could be placed with strangers. You could even be subject to termination of your parental rights, the threat of which applies to every family court neglect case, no matter how minor the initial neglect allegation.

And in Missouri, unfortunately, this is not an idle threat: Families have been subject to terminations for cases that involve inadequate child care.

The Independent’s story and a Missouri statute describes this practice as “voluntary.” But calling it voluntary doesn’t make it so.

This practice is coercion.

Parents face threats from an agency that has the power to destroy their families. And the Children’s Division does not give parents an attorney to advise them on the best course of action, or to challenge the Children’s Division on whether a family separation is truly necessary. Without a family defense attorney to challenge the Children’s Division, nobody should expect the Children’s Division to get it right in every case — and there surely are unnecessary family separations.

The result is trauma to children and families that we know family separations cause.

The harm also extends to the kinship caregivers who are also pressured into taking care of children. In the formal system, these caregivers can obtain a foster care license, and monthly subsidies that come with it. This is particularly important for kinship caregivers who, in the aggregate, are less well off financially than stranger foster parents. Through hidden foster care, there’s no such payments; the Children’s Division separates children without having to pay for it.

Missouri lawmakers are absolutely right to demand more data on the Children’s Division’s hidden foster care practice. The existing data underscores the need for reform.

Just under half (508 of 1,065) of affected children actually returned home — nearly identical to the proportion of children who leave formal foster care to return home, according to the Children’s Division’s latest annual report.

The next largest group of children ended up in formal foster care, meaning they suffered through the same family separation, but with at least the first 90 days of that separation not subject to due process checks and balances. Another 246 children were sent to another caregiver or to formal guardianship, essentially leading to an extended or even permanent separation of parents and children without giving the parent a lawyer to challenge that separation.

Here’s what the legislature and Children’s Division should do. First, full transparency about the data is essential. Second, Missouri should appoint counsel to all parents whenever the Children’s Division seeks to separate a family. Further reforms are outlined by the Hidden Foster Care Workgroup, a group of advocates for parents, children, and kinship caregivers, of which I am a part.

Appointing lawyers for parents is essential. Lawyers can determine if the government is trying to separate a family out of court in situations when it simply couldn’t win in court, which is a constitutional violation that has been proven to happen in other jurisdictions. Lawyers can advise parents on their options and ensure any choice is truly voluntary. Lawyers can negotiate fair agreements with the Children’s Division.

When it is safe for families to reunite, lawyers can advocate with the division to ensure it happens without delay.

Lawyers for parents have been proven to be beneficial. They reduce the time that children spent separated from parents, and do so without increasing safety risks. And different jurisdictions around the country have expanded preventative legal advocacy offices to represent parents at risk of suffering a family separation, like the families facing hidden foster care demands from the Children’s Division.

And, following 2020 guidance from the federal Children’s Bureau, Missouri can draw down significant funds to help pay for these lawyers.

When the Children’s Division talks about keeping families together and reducing the number of children in foster care, it is speaking the right language. But to live up to the promise of that rhetoric, Missouri needs real reforms to its hidden foster care practices.

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Josh Gupta-Kagan
Josh Gupta-Kagan

Josh Gupta-Kagan’s teaching and scholarship focus on legal issues affecting children and families, especially child neglect and abuse and juvenile justice law. He joined the Columbia Law School faculty as a clinical professor of law on July 1, 2022, and is the director and founder of the Family Defense Clinic, which represents parents and other caregivers facing allegations of child neglect or abuse.

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