Criminalizing Foster Parents

By Lori Groves and James Kenny

The United States foster care system has a higher turnover rate than most fast food industries. Of the estimated 200,000 licensed foster homes, from 30 to 50 percent drop out each year. With 500,000 children in foster care, we have a critical shortage of homes. Why are foster parents leaving? Of all the reasons, the biggest by far is that they are treated poorly.

Being a foster parent can be the toughest job you will ever love. Foster children often come with serious issues. They may lie and steal. They have behavior problems and learning difficulties. They may suffer from a variety of physical and mental illnesses. Foster parents quickly learn that a nurturing love is often misunderstood and is not always enough. Yet, they generally rise to the challenges, knowing that they have the chance to make a difference in the life of a child.

Foster parents must be vetted initially by a thorough home study, which usually includes a background social history, psychological testing, a police check, medical records review, and collateral information from references. Then they must complete hours of parent training and they must keep up their skills with annual continuing education. They are professional parents.

So, here you are as a new foster parent. You have welcomed your first foster child and you are excited. Your caseworker is supportive. You are dealing with the multiple issues that neglected and abused children bring with them. Your own children have adjusted and welcomed a new member to the family. As time passes, you and your foster child are bonding.

Then, often as a surprise, an allegation is made. No one warned you that this was likely. Someone has called in to say that you spanked your child. The child may have told her teacher that you touched him “improperly” during a bath. The birth mother may have charged that you left the child alone or locked him in his room. The caseworker may even charge you with neglect for failing to keep a doctor’s appointment or for not taking the child for visitation, even though he was sick. The allegations may not be what we normally consider abuse or neglect, but simply reflect a violation of welfare policy. Any and all allegations, however, must be taken seriously.

What is the Charge?

The Division of Family and Children’s Services (DFCS) reminds you that they have additional rules and policies. As a professional parent, you are held to a higher standard of care. Here are some examples: DFCS Manuals my forbid physical punishment. The Manual may require that babysitting and respite care are provided only by another licensed foster parent, or by someone over the age of 21. Since the child is a ward of the state, failure to follow any direction given by the caseworker may also be construed as abuse or neglect. Can you imagine getting charged with neglect for leaving an eight year old with a 19-year-old to babysit? It happens! A serious problem for foster parents is that these charges (failing to follow policy) are lumped with and labeled as child abuse, no matter how minor they may sound.

How Allegations Are Made

Allegations can be made by anyone. In order to encourage the reporting of abuse, the accuser is granted complete anonymity. Consequently, the foster parent can never examine or confront the accuser. To further the effort to assure the safety of the child, no strong proof is required. Hearsay is allowed. The standard is “credible evidence,” believable but not necessarily true evidence. This is a sad joke because even the word of a four-year-old or the word of the biological mom who is a drug addict and wants a fast way out may appear credible to the caseworker. And that word alone can be sufficient to remove the child from the home.

Once the caseworker with Child Protective Services (CPS) has substantiated any charge(s), your child may not only be removed, but in many states, you are placed on a LIST, the same list with sex offenders and others.

The consequences of being listed are severe. Foster parents will lose their license. They cannot work with children. The authors know people who have lost their jobs as a case manager in a mental health clinic, a prison guard, a school bus driver, coach, scout leader, and other jobs because of this stigma. All they have done is allegedly fail to follow a policy that required exceptional parenting. Unproven allegations can and often do lead to a criminal-sized penalty for a mere policy violation.

The welfare department faces no reciprocal accountability. Although they are a party to the foster care contract, no charges are laid when they fail to follow their own Child Welfare Manual and Polices. Caseworkers are required to make home visits, to file permanency plans in a timely manner, to disclose to foster parents detailed background information about the child; to respond to certain requests made by the foster parents and other mandates When DFCS fails to follow their half of the contract, nothing remotely comparable happens to them. Even worse, when a foster parent complains; they may be “blackballed” by the caseworkers and DFCS, which means they will not get any more child placements in their home.

Foster parents begin with a love of children. Most of them leave, not because they cannot face the challenges of handling troubled youngsters, but because they fail to receive support from the system. Here are a few of the extraneous issues they must deal with:

  • Foster care receives negative publicity. Children may be threatened: “If you don’t behave, we will have to send you to a foster home.” Then there is always the occasional neighbor or friend who does not want “those kinds of kids playing with our kids.”
  • They get caught in a power struggle with the DFCS over what is considered best for the children in their care. They will lose this battle, because the children are officially wards of the state, and even long-term foster parents have no legal standing. Although foster parents do all the hard work, they have a minimal say in planning the child’s future
  • They must face allegations from anonymous accusers and may have charges substantiated against them with one-sided minimal evidence and no due process procedure to defend themselves. If they need an attorney, they must pay for one themselves.
  • Finally, a substantiated charge of child abuse or neglect will place foster parents on an accessible List that may well cost them their job. In most cases, it is extremely difficult to get one’s name removed from the list.

In corporate America contracts impose civil obligation that both sides are meant to follow. Foster parents have entered into a contract with DFCS. However, in the business world, contract violations must be proven by a preponderance of the evidence. This is not so for foster parents. Foster parents who break this contract may be given felony-sized penalties without due process. So what can be done?

What Can Be Done?

In order to stop the drain of good foster parents, we propose three changes to the way that allegations of abuse and neglect are handled.

  1. Raise the standard of proof. If hearsay is acceptable, have the CPS worker require at least three sources to back up the complaint. Make the foster parents aware of the charges in writing and get the foster parents’ written response before substantiation. “Credible evidence” is too weak and an unfair standard. Raise the level of proof required to a “the preponderance of evidence.”
  2. Separate criminal child abuse from a civil policy violation. The CPS worker would then have two option: 1) To substantiate a charge of “Improper Professional Parenting,” a policy violation. 2) A criminal charge of child neglect or abuse. Improper parenting, a mere policy violation, might be handled with a reprimand, a requirement for corrective action, or even the loss of a foster parent license. But it would not lead to a foster parent’s name being listed.

Criminal child abuse would obviously be further subdivided into misdemeanors and felonies. With criminal charges, foster parents would have the right to defend themselves in a trial court where due process procedures are followed. Hearsay evidence is not permissible. You can face your accusers. The state must prove its case “beyond a reasonable doubt.” Conviction of child abuse would merit being placed on the LIST.

We must cherish our foster parents for their unselfish willingness to tackle a task that few others take on. Unfortunately, they are leaving the system because of the way they are treated. All foster parents are vulnerable daily to allegations of child abuse. Failing to follow DFCS policy and/or to meet a high standard of parenting is a civil violation with a criminal-sized punishment. Being on the accessible LIST of child abusers is a heavy penalty with serious consequences.

When foster parents are accused of failing to meet acceptable standards of parenting, they deserve all the rights that our legal system guarantees. They deserve better treatment than the substantiation of unproven charges based upon hearsay. We must cherish our foster parents for their unselfish willingness to tackle a task that few others will take on.