From the Empirical Archives: Second Time Foster Child

Second Time Foster Child

Toni Hoy

Originally published in the February 2013 issue of Empirical

A child is bruised and battered. He is hungry and cold, lacking such basic necessities as safety and nurturing. However, all is not lost. Hope lurks around the corner when a loving foster family feels a connection to one such child. The family brings the child home, first as a foster child, and some time after, makes a forever commitment to the child through adoption. Years later, generally at or just before the onset of puberty, the same child is once again facing foster care re-entry. If it was bad enough being a “first time foster child,” it really stinks to be a “second time foster child.”

During the early 90s, state child welfare agencies were taking children away from parents in alarming numbers. Once a child received the foster care sentence, he never seemed to get out, at least until he became an adult. Foster care rolls swelled to the highest levels in history shorty before President Clinton signed the Adoption and Safe Families Act (ASFA) into law in 1997. How did so many children end up in the foster care system anyway?

The feminist movement, widespread drug abuse, health hazards, and media pressure contributed to increasing foster care rolls. The role of women in society changed drastically during the 1970s. Women spent less time at home and more in the workplace. The crack cocaine epidemic created a population of addicted mothers who were unable to properly care for their children, landing their children in foster care.

The crack cocaine epidemic was followed by the AIDS epidemic of the 1980s, landing even more children in foster care, as mothers became severely ill or deceased. About the same time, several children “known to the system” died at the hands of their birth parents due to severe neglect and abuse. Across the nation, child protective services caved to media pressure to remove children from their families.

State agencies agreed to “err on the side of the child.” In Illinois, the foster care rolls ballooned to 52,000 state wards, while parents were haphazardly blasted with false allegations.

Teachers and other professionals involved in childcare-related careers lost their jobs over rampant false allegations. In 1994, in an Illinois class action suit, 150,000 parents filed DuPuy v. Samuels, alleging that child protective services were taking too many children away from their parents for too little reason. The landmark case, which settled in favor of the parents, resulted in new rules that expedite hearings for parents and workers in childcare-related fields. Judge Rebecca Pallmeyer referred to it as “…a staggering risk of error…” What were states to do with tens of thousands of children languishing in foster care?

Advocates proposed federal change, demanding safety, permanency, and wellbeing for children in care elements which became the foundation of ASFA. Amongst other things, ASFA offered to pay states to move children out of foster care. States received $4000 per finalized adoption and $6000 for every child that met standards for a “special needs” adoption. ASFA urged parents to resolve their substance abuse, domestic, and financial unrest quickly, by threatening to terminate their parental rights. Under ASFA, states may legally sever familial ties for children who remain in foster care 15 to 22 months. With the premise that prospective adoptive children came with a myriad of trauma-related mental health issues, ASFA also offered assistance for adoptive families. Children moved out of foster care with the aid of Medicaid cards and financial subsidies for their new parents. In 1997, President Clinton passed ASFA into law. With the exception of the birth parents, who often couldn’t comply with systemic demands quickly enough, ASFA worked like a charm. Children moved in droves from foster care to permanent, adoptive homes. Child welfare workers made quick work of ASFA, blasting the public with adoptive media campaigns, hosting adoption parties, and advertising waiting-child profiles.

Child welfare agencies challenged caseworkers by assigning definitive quotas to move children from transience to permanence through adoption. Caseworkers met the challenge by downplaying the children’s mental health concerns, assuring prospective adoptive parents that once the children were placed in loving, permanent homes, the children would certainly be “just fine.”

Once again, Illinois led the way, drastically reducing the 52,000 state wards to 15,500. Department of Children and Family Service Director, Jess McDonald, lined his office walls with adoption awards. State agencies and adoptive families rejoiced while birthparents grieved. Meanwhile the effects of prenatal substance abuse, neglect, and physical abuse lay dormant in the children’s brains, waiting to explode with the onset of puberty.

It wasn’t generally long before adoptive families discovered that something with their new additions was a little “off.” The children were hyperactive. They scrounged for food and displayed odd behaviors. They demanded constant attention, bullied other children, triangulated adults, and destroyed property. Traditional sticker charts and behavior programs failed miserably.

The children ignored limit setting and natural consequences. In the heat of frustration and exhaustion, parents sought professional help. In the early 2000’s, the ASFA generation hit puberty and the odd behaviors increasingly manifested in unsafe and unmanageable behavior.

A plethora of psychiatric evaluations and inkblot tests soon uncovered an alphabet soup of diagnoses including: ADD, ADHD, PTSD, RAD, ODD, OC D, BD, CD, LD, BPD, bipolar disorder, anxiety, and schizophrenia. Many children responded well to medications and/or therapies.

For others, symptoms escalated to self-harm, aggression, and violence. Families were living in a constant state of turmoil. Psychiatric hospitals made attempts at stabilization; however, psychotropic drug treatment is not an exact science. Repeated hospitalizations cycled children through the “psychiatric revolving door” with no answers, edging families to the brink of giving up. Seeking help, adoptive parents returned to the same state agencies who once promised them that in time, the children would be “just fine.”

Which state agency should serve this population of severely traumatized youth, who needs intensive in-home, community-based, or residential services? Is it the state agency in charge of education, mental health, or child and family services? In many states, lack of synergy between agencies directs parents in an endless round robin without answers. Hospitals and therapists discourage parents from bringing their children home, due to the safety risk to other family members. Taking such a drastic step automatically defaults “the case that nobody wants” to the child welfare serving agency. Child welfare agencies respond to hotline calls of child psychiatric lockouts with “the Devil’s Deal.” Illinois reports an alarming 104 psychiatric lockouts in 2010. To put it in perspective, that is about two per week and more than one per county.

As mandated reporters, hospitals are required to report incidences of suspected abuse, neglect, or abandonment to a state child abuse hotline, placing them in the quandary of reporting the very parents they seek to aid and protect. A hotline call generates a child abuse investigation against the family that is unable to attain intensive in-home, community based, or residential services.

The child protection investigator walks through the motions of a procedural Catch 22. Bring the child home and be charged with child endangerment for failing to protect your other children, or leave him at the hospital and be charged with neglect. The politically acceptable term for this unethical dilemma is “custody relinquishment for mental healthcare” a.k.a., legally forcing parents to trade custody for treatment, a.k.a., “the Devil’s Deal.” Legal charges send parents to juvenile court, in hopes of getting neglect charges amended to “no fault dependency” as well as to administrative law court to get their names removed from the state central register of indicated child abusers. Worse, some states additionally file felony charges against the adoptive parents, threatening them with jail time for failing to rectify a situation in which every state agency has staunchly refused to offer help. In still other states, parents are charged outrageous amounts of mandated child support over threats of jail time. To add insult to injury, birth parents who caused the brain disorders get off scot-free.

If all that were not bad enough, the case proceeds through juvenile court under “the child abuse lens.”

Juvenile justice systems are typically equipped and designed for cases of neglect, abuse, and dependency. What is a judge to do with a case that lands in his courtroom for which there is no applicable law?

They use existing laws, tweaking and twisting them, trying to make them fit a situation for which they were never intended. Judges, Guardian Ad Litems (GAL), child welfare workers, and CASA volunteers lump no fault dependency cases right in with the rest of the child neglecters and abusers. Such cases are viewed under “the child abuse lens,” subjecting good parents with sick children to be continually investigated, interrogated, separated, and humiliated through a court process that was never intended to serve them.

Processing no fault dependency cases in the same manner as child abuse cases inhibits therapeutic progress for children, while oppressing parents. Large percentages of these children have Reactive Attachment Disorder (RAD) due to infant or child neglect. Bonding and attachment therapy is in order for these children a therapy which, when effectively done, creates a stronger bond between the child and his parents or primary caregivers. The child’s basic needs of food, shelter, clothing, warmth, and nurturing were not met in early stages of development.

He learns very early that since no one is present to control his environment, he must control it himself. He develops a lack of trust in adult caregivers along with an unhealthy, weak bond with his parents. Bonding and attachment therapy seeks to rebuild the parent/child relationship with strong bonds and healthy relationships, which provide the child with vital trust.

The child learns to rely on others, and is more apt to give up his need to control his environment. When his needs are met, he feels safe and secure, and the violent and aggressive explosions cease. However, “the Devil’s Deal” works contrary to appropriate treatment when it pits child v. parents in a court of law and assigns ents), creating a “systemic wedge” between child and parent. With so many others filling the role of parent, there is no room for the parent to fulfill his parental responsibilities. Thus, while the therapists seek to strengthen the bonds between children and parents, in order to heal the child from pre-adoptive trauma, the system is simultaneously driving them apart, stalling therapeutic progress.

No longer does the educational meeting invitation arrive in the parent’s mailbox. Rather, it is re-directed to the child welfare educational surrogate, who has little information on the child’s education or the fact that the parents are not to blame for a system which failed their child. In plain sight of child and parent, the educational surrogate not only makes decisions in lieu of the parent, but also signs on the signature line marked for parents. The GAL makes legal decisions for the child without input from parents.

The caseworker makes the rest of the decisions and the judge monitors them all. With so many individuals and organizations acting as the parents, there is really no room for the parents to parent. As a result of constantly being viewed under “the child abuse lens,” parents’ credibility is lost in the mix. Their input is largely overlooked and promptly dismissed, resulting in chronic oppression.

Parents are emotionally beaten down in the process. Over constant threats of negative reports to the court, threats of losing their other children, and threats of complete termination of parental rights, parents are forced into silence and submission. While it all sounds unethical, it is perfectly legal. Or is it? What happened to all those provisions that the federal government strategically placed into ASFA to address severe mental health conditions due to pre-adoptive trauma? Would a few hundred dollars per month of adoptive subsidy provide the level of services such a child needs? In a word, no. Rarely do health insurance plans cover costly, intensive in-home or community based services, which are recommended by therapists. Residential services can cost upwards of $150,000 per year with zero dollars of available funding to assist parents. These are the issues that force the hand of “the Devil’s Deal.” What about that Medicaid card? Most states advise parents that it does not cover intensive services, once again steering them toward “the Devil’s Deal.” Some states advise parents that the current state laws supersede federal law. Parents once again face a dreaded dead end. However, let’s take a closer look at what the Medicaid law says in regards to treatment that is “medically necessary.”

Medicaid contains a provision called the Early, Periodic, Screening, Diagnostic and Treatment (EPSDT) which states, in part “if a practitioner of the healing arts deems that a treatment is medically necessary to correct or ameliorate a condition, the state must provide it, whether or not it is covered under any other state plan. If they cannot provide it, they must arrange for it. The time period for arranging it is six months…” Since nearly all children adopted through a subsidized adoption have Medicaid, their treatment is covered as required by federal law. Passing state law which contradicts or supersedes federal law is unequivocally illegal. How do states continue to get away with denying treatment?

The answer is that the same parents who naively bought into the idea that the children would be “just fine” also bought a bill of goods that incorrectly stated that treatment under the EPSDT provision of Medicaid is not covered. Not enough parents have challenged the states’ failure to apply the law in federal courts. The temporary solution is a parent-led federal lawsuit against the state Medicaid agency. The permanent solution is to amend ASFA by inserting the EPSDT wording directly into ASFA, making clear that states may not deny treatment that children are legally entitled to under federal law–the same federal law that awarded them the promise of ASFA–safety, well-being, and yes, permanency.

Because of failure to comply with the EPSDT provision of Medicaid, the federal government awards permanency to children through adoption and stands idly by as the states take the child’s permanency away from them. Children face compounded issues of abandonment and adoptive families grieve, while states gain the benefit of drawing down federal funding for treatment.

Historically speaking from a social perspective, the pendulum sails large numbers of children into foster care, swinging them back into adoptive homes and finally flips them all the way around, forcing them back into foster care, rendering them “second time foster children,” just to repeat the cycle all over again. Adoptive families made the commitment to children’s permanency. The federal government provided two vehicles to assure children that “permanency” is truly permanent–EPSDT and ASFA.

Now, if we could just get the state agencies to obey the law.

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