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New Legislation Would Soften Foster Care Rules That Tear Extended Families Apart

Even shoplifting can disqualify prospective foster parents.

(Photo: Nadezhda1906 / iStock / Getty Images Plus)

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When April’s paternal nephews first came to live with her, one was two months old and the other was one-and-a-half years old. She had to fill out the paperwork necessary to retrieve the older boy from foster care, where he had been placed months earlier after being removed from his mother.

Under California law, if a potential caregiver — any adult in the household or any adult who might have “significant contact” with the children has an arrest or conviction for anything other than a minor traffic violation — they must apply for a criminal record exemption. Granting the exemption is at the discretion of each county — and often the social workers assigned to the family. This has led to an uneven application of the law and, as April and her family learned, can result in tearing families apart.

April filled out lengthy application forms; she and every adult in her household (her husband, her roommate and her babysitter) were subjected to background checks and repeated interviews. Finally, she was approved.

Her nephews became part of the family, which included not only April and her husband, but also their two preteen children and April’s 17-year-old sister. The entire family adapted to its new, larger configuration. “My kids loved them like they were little brothers,” April recalled. (April has asked to be identified only by her first name to protect her family’s privacy.)

April and her husband traded their existing car for a larger model with seven seats. They brought the children to fairs, cooked meals that the smallest kids would eat and, in general, rearranged their lives to accommodate their newest members. “Everything we did was kid-friendly,” April told Truthout. “It was like family time all the time.”

But it wasn’t always easy. Studies have shown that children who have been subjected to frequent foster care moves experience adverse psychological and health consequences. That was certainly the case for April’s older nephew who, during his 18-month life, had already been bounced around to three different homes.

This meant that not only were April and her husband up all night with an infant, but they had to contend with the older boy’s behavioral issues. “He needed therapy and professional help,” explained April. “He would break or hide things. He did not feel settled.” April told Department of Children and Family Services workers that she needed more support for the boy, but she never received it. Determined to find help for her nephew, she took him to numerous doctor appointments and evaluations, filling out endless forms to demonstrate his need. Meanwhile, his behavior required that an adult attend to him at all times. Many times, April was that person, but that meant she often wasn’t able to spend much time with her own children, her sister or her younger nephew.

Still, April was determined not to give up. “I didn’t want him to go back to foster care,” she said. “I knew he’d be even more disturbed if he went to another home.”

Little by little, her nephew began to adjust. “We’d cheer when there were breakthroughs,” she recalled. Meanwhile, his younger brother began walking, talking and singing his ABCs.

One year after bringing the boys to April’s home, child welfare officials decided to return them to their mother. By that point, their father, April’s brother, had been in and out of jail and was not allowed to have contact with them. As a non-parent, April was not allowed to be involved or even informed about her nephews’ health and well-being.

A Shoplifting Charge Leads to Increased Scrutiny

Less than six months later, April learned that her nephews were on the verge of being taken from their mother and placed in foster care again. By then, her sister had turned 18 and moved out. Her sister had also gotten arrested for shoplifting, but the court agreed to dismiss her charge and expunge her record if she stayed out of trouble for a year. Still, April’s sister’s arrest — and failure to fulfill community services and probation requirements for a juvenile arrest — triggered a process that ultimately tore their family apart.

The second time she applied to care for her nephews, April did not have to go through the application process beforehand. Instead, the boys were brought to her house and then child welfare officials began the application process. Her sister’s charge should have qualified for an exemption, which would have allowed her sister to live in the same home and help with the children, but social workers refused to grant it. That may not have mattered in the children’s placement given that her sister was no longer living in the same house. However, the social worker assigned to the boys used the charge as a reason to place April’s household under greater scrutiny.

Four months after her nephews were once again placed with her, April received a call from a social worker. “We have concerns about the kids being in daycare for so long,” she recalled the social worker saying. It didn’t matter that the family had only one car, which her husband used to bring the boys to daycare before driving to work. Once he finished work, at 7 pm, he drove to the daycare, picked up his nephews and brought them home.

Soon after, a social worker showed up at April’s door and said that the children were being relocated to foster care. When April demanded to see the court order, the social worker first showed her an order stipulating that the boys’ biological mom get weekly visits. When April noted that the order did not stipulate their removal and offered to take the boys to the visit herself, the worker left.

Three weeks later, child welfare officials removed the young boys, ages one and three, from April’s care, picking them up while they were napping at daycare. April filed an appeal with the Department of Children and Family Services. She also appealed in state court; her petition was denied. She has since appealed the denial and is awaiting a court date.

But that may not matter now. Under California’s adoption of the Indian Child Welfare Act, the children were sent out of state to live with a Native American family. (The act stipulates that, if immediate family members are not approved for custody, Native children must be placed with a Native family. For April’s nephews, once they were removed from her care, that meant sending them to a different state to live.) April, who is also Native American, is not allowed to have further contact with her nephews, a fact that breaks her heart.

Under the federal Adoption and Safe Families Act, if a child has spent 15 of the past 22 months in foster care, states must begin proceedings to terminate parental rights. Shortly after the boys were moved to Oklahoma, their mother lost her parental rights; the boys, ages two and four, are now eligible to be adopted.

Automatic Disqualifications Tear Families Apart

April’s experience is not unique. In California, people with past arrests or convictions unrelated to child endangerment must apply for an exemption if they want to provide homes for younger family members, keeping them out of foster homes with strangers. In 2015, 2,153 people with past criminal records applied for exemptions. Of those, only half (1,080) were approved. For the other thousand-plus people, many of whom were not denied but simply submitted incomplete applications, their younger family members were relegated to foster care. The practice isn’t limited to California.

All 50 states require background checks for past convictions for prospective foster parents though each has a different set of rules and ways to apply for exemptions. As April’s story demonstrates, the charge need not be related to child safety to disqualify an applicant or a household: In 32 states and the District of Columbia, for instance, a person is automatically disqualified if he or she has been convicted of a drug-related offense within the past five years. In three states, 10 years must have passed before they can qualify for an exemption. In seven states and Puerto Rico, a person with a drug conviction is permanently ineligible.

They’re offering safe and loving homes, but because of stigma and blanket assumptions about people with criminal records, they’re being denied.

Mihal Rose Ansik works with formerly incarcerated women at A New Way of Life, a reentry program for formerly incarcerated women in the Los Angeles area. “These family members are doing everything we want them to do,” she told Truthout. “They’re offering safe and loving homes, but because of stigma and blanket assumptions about people with criminal records, they’re being denied.”

In Los Angeles alone, 30,000 children are in foster care. Of those, 20,000 have been placed in out-of-home care. Half are with (non-parent) family members or relatives who have been approved by the Department of Children and Family Services as foster parents; the other half are in group homes or foster homes with strangers.

California Considers Legislation That Could Keep More Extended Families Together

Now, California lawmakers are considering new legislation, SB 213, to make the process easier for caregivers with criminal records.

Susan Abrams, an attorney with the Children’s Law Center of Los Angeles and architect of the bill, notes that the current process for reviewing a prospective foster parent’s criminal convictions often results in undue delays and further harm to families. California, she said, had its own process for reviewing a prospective foster parent’s criminal record for exemption. In 2008, the federal government passed its own set of requirements, mandating a different way of reviewing past criminal convictions. “California put the federal requirements on top of their existing requirements, leading to a confusing web of what crimes are exemptible,” she explained.

Furthermore, neither set of requirements gives a timeline for granting or denying an exemption. It can happen within a couple of weeks or the process can drag on for several years. Family members whose convictions were either long ago or relatively minor seem to wait the longest because of the difficulty of collecting information. Abrams recounts one grandfather whose conviction occurred before records were kept digitally. While child welfare officials tried to find his paperwork, his grandson languished in various group homes.

The new legislation that California lawmakers are considering addresses both concerns, streamlining the lengthy and complex exemption process, simplifying the list of non-exemptible crimes to mirror federal requirements and reducing delays. While it does not address the exact experience of April and her family, Abrams points out that, under the bill, the county’s child welfare department could make an exemption even if her sister’s charge had not yet been dismissed. In other words, social workers could determine that her juvenile and shoplifting charges had no bearing on child safety.

Finally, the bill allows certain misdemeanors to be considered for exemption that currently are non-exemptible. “We’re not creating a per-se [or blanket] exemption,” clarified Abrams. Instead, the bill allows social workers the discretion to consider exemptions on a case-by-case basis for convictions such as statutory rape and indecent exposure. “They’re really scary-sounding crimes,” Abrams acknowledged. “People are concerned that people with these convictions might hurt children.” But she notes that these convictions don’t necessarily imply that a potential caregiver is a threat toward children and that the bill simply allows social workers to closely examine the caregiver’s background rather than summarily dismiss the application.

Abrams has worked on cases in which people have been charged with statutory rape for a teenage relationship in which one teen was 18 or over, and the other was not. She also noted that, in the 1970s and beyond, charges of indecent exposure were often leveled against gay men. One prospective foster couple was turned down because one of the men had been convicted of indecent exposure decades earlier and was thus disqualified from being a foster parent. Currently, misdemeanor convictions of statutory rape and indecent exposure are not eligible for exemption.

The bill continues to excludes certain felonies, such as assault or abuse against children, child pornography, or any crimes involving violence. This means that Tiffany Johnson, the associate director and community organizer at A New Way of Life, would continue to remain ineligible to care for her sister’s three daughters.

Abuse Survivors Continue to Face Stigmatization Even After Prison

In 1994, Johnson was convicted of second-degree murder for the death of her abusive stepfather. She was sentenced to 15 to life in prison, and paroled after 16 years.

Four years later, in 2014, her three nieces were placed in foster care when their grandmother, who was informally caring for them, was hospitalized for a series of surgeries. Johnson learned that they were on the verge of being placed for adoption.

Not only would adoption have permanently severed her nieces from their family, but her nieces most likely would also have been separated from each other. Johnson’s oldest niece had already been placed in a separate home from her sisters, a move that left her angry and prone to acting out. Between 63 percent and 71 percent of siblings placed in foster care are sent to separate placements, and studies have shown that adoption usually cements that separation.

Johnson spoke with social workers at the Department of Children and Family Services. But because of her murder conviction, she was ineligible to provide a home.

Johnson’s 26-year-old daughter applied for guardianship of her cousins and was approved, provided that she could find a home with at least three bedrooms for herself, her five-year-old son, and the girls. The two youngest, then ages seven and thirteen, could share a room, but foster care rules dictated that her son and oldest cousin must have rooms of their own.

However, Johnson’s daughter couldn’t afford to rent such a large home. She also didn’t have the necessary credit. Social workers said that Johnson, who had been saving to buy her own house, could rent the apartment in her own name and pay for it. However, she could not be around her nieces at all.

Johnson emptied her bank account to rent and furnish a four-bedroom house. “I spent just about $10,000 just [so they could] move in,” she told Truthout. “Then I had to help with the rent until my daughter [then working part-time at a local hospital] could get another job.” In December 2015, social workers brought the three girls to live with their cousin; that meant that Johnson was not allowed to spend Christmas with her daughter and grandson.

“I am permanently banned from seeing them so long as they live in foster care,” she said. If her nieces are home, she cannot visit her grandson. Nor will she be able to visit and help her daughter, now pregnant and about to give birth, with her newest grandchild. The only way she can do so without jeopardizing her nieces’ placement is if she sits outside the house and waits for her daughter to bring the newborn to her.

Though SB 213 won’t apply to her, Johnson understands its importance for many families, particularly those in low-income communities of color, which have been hardest hit by mass incarceration. “The incarceration rate in our community has skyrocketed,” she pointed out. “In our community, there’s at least one person, if not several, who have been incarcerated in each household.” Instead of jettisoning their applications — or forcing them to wait indeterminate lengths of time as background checks are conducted and tangled requirements navigated — she says that the foster care system should take into consideration whether the crime involved harm to children. Furthermore, she noted, “there’s always room for growth and change. People do grow up. I was convicted in my early twenties. I paid my debt for 16 years and the parole board found me suitable [for release].”

SB 213 has passed in the Senate and the Assembly Judiciary Committee. It is currently in the Assembly Committee for Appropriations, which has until September 1 to report the bill to the floor. While the bill, if signed into law, would only affect potential caregivers in California, it could serve as model legislation for advocates fighting to keep families together in other states. “Family members who step up as caregivers can be a lifeline for people who are parenting from prison, and other parents as well, because they can slow down or even stop the clock on the termination timeline,” noted Ansik. “The lifeline is cut short, though, when that relative is excluded from being a caregiver based on a past conviction unrelated to the safety and well-being of that child.”

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