By Jordan Isern, J.D.
When the pandemic began, states across the U.S. witnessed between a twenty to seventy percent decline in reported cases of child abuse and neglect. However, this is not good news. In fact, it is downright alarming. Indeed, this decrease in reported cases is not because child abuse and neglect have decreased. Rather, the consensus is that this decrease is due to an increase in underreporting.
In a December report, the CDC found that children are at increased risk for abuse or neglect due to “[t]he COVID-19 pandemic and the social and economic effects of mitigation measures, such as loss of income, increased stress related to parental child care and schooling responsibilities, and increased substance use and mental health conditions among adults[.]” Accordingly, one study estimates that as many as 250,000 cases of child abuse or neglect have gone unreported since March 2020.
The pandemic has swept children experiencing abuse or neglect out of reach from traditional reporting resources. In 2018, sixty-seven percent of child abuse or neglect reports originated with mandatory reporters, such as teachers and doctors. Meanwhile, only sixteen percent originated with nonprofessionals, such as friends, neighbors, and relatives. With things like school and doctor check-ups becoming remote, children have less contact with these mandatory reporters and thus, cases are less likely to be reported.
The remainder of this article discusses how the pandemic impacted the child welfare system and what federal government measures might exacerbate and mitigate its negative effect.
Monitoring Child Welfare
Child protective services is not a federal agency, rather it is an umbrella term for the many agencies that protect children on a state level and receive guidance from the federal agency, the Children’s Bureau. At the beginning of the pandemic, the Children’s Bureau issued guidance that allowed child protective services to begin operating remotely and scale back in-home investigations. The implementation of these guidelines varies vastly between jurisdictions.
Operating under the new guidance, many agencies adopted new approaches to embrace virtual investigations and check-ins, such as videoconferencing. But some social workers lament that “it’s hard to know who else is in the room with [the child] and thus if the child is able to speak freely about what’s happening in the home.” Others say that the remote setting presents an obstacle for permanency, as the process depends on building a personal connection with children to determine best placement. Finally, others say that videoconferencing is altogether infeasible for young children and infants.
At the same time, in-person investigations still happen, and during those investigations, social workers risk contracting or transmitting COVID-19. States have taken various measures to dampen this risk. Some states advise social workers to contact the families beforehand to ask if anyone has symptoms or had recent exposure to the virus. Others have social workers skip the home altogether and meet the family outside or at a park. But still, in other states, social workers report that they have been required to conduct in-person investigations without proper protective gear.
Meanwhile, already-overworked social workers across the country are handling even more cases during the pandemic. In fact, social workers have taken the state to court on the matter in several states.[1] According to one lawsuit, social workers were operating at thirty-one percent more capacity than they were supposed to, according to state guidelines. However, these lawsuits may have little effect, as the Children’s Bureau also issued guidance in response to the pandemic that granted extensions to states that were required to improve their system in order to maintain federal funding.
Entering Foster Care
At the beginning of the pandemic, there were 440,000 children in foster care. Further, cities like Chicago have reported up to a thirty-three percent increase in the number of children in foster care during the pandemic. The question is where to put them.
Shortage of Foster Homes
The pandemic worsened the preexisting shortage of foster care homes. The traditional foster care system is built on frequent movements of children from home to home. Given that this structure inherently creates more risk of COVID-19 exposure to children and their foster families, it is not surprising that foster care children in some states test positive for COVID-19 at nearly double the rate as the general population. And, perhaps responsively, many experienced foster parents — who are more likely to be elderly and at higher health risk — are now unwilling to take in new foster children for fear of exposure. Others are no longer able to accept children because the pandemic has rendered them financially or physically unable to do so.
To make matters worse, prospective foster parents face new barriers because of the pandemic. To become a foster parent, one has to attend training sessions, submit to multiple home inspections, and a caseworker visit. This involves in-person contact and thus, exposure risk, which prospective foster parents may not want to incur.
Overcrowding and Understaffing in Group Homes
Due to the shortage in foster homes, more children are placed in institutional settings during the pandemic, such as group homes. But group homes have their own issues. First, group homes are overcrowded, prompting some group homes to temporarily “park” children in hotels and even offices. Second, this overcrowding spreads COVID-19. In fact, a Texas court found, in one children’s group home, that 50 of 103 children tested positive for the virus. Finally, children’s group homes face staffing shortages as caretakers increasingly stay home because of the pandemic.
Barriers to Kinship Foster Care
Statistically, children in kinship foster care — when relatives assume custody over children rather than strangers — have better outcomes. However, the pandemic has erected new barriers to this type of care. For instance, in some jurisdictions, kinship placement is obstructed because social workers no longer conduct in-person home visits to evaluate potential placement situations. Furthermore, potential caregivers may not be able to or may find it difficult to complete background checks and fingerprint tests to complete the evaluation process. This results in an increased burden on other foster care options, such as traditional foster families and group homes.
Diversion of Children Outside the Foster Care System
There are signs the foster care system is buckling under these burdens. Experts report the pandemic has exacerbated the “hidden foster care” problem. “Hidden foster care” is a widespread practice that operates under the guise of “safety plans” or diversion programs, where a child welfare agency presents a parent with an ultimatum: the parent must place his or her child with a friend or relative, or the agency will remove the child and place him into foster care.
The problems associated with hidden foster care are clear. Unlike kinship foster care, hidden foster care is diverted outside the system. Consequently, the parent and child have no right to court review, access to counsel, or formal reunification plan—implicating serious concerns for the parent and child’s fundamental and due process rights. Furthermore, the designated caretakers are not vetted and thus, children are left vulnerable to abuse. And, because these caretakers are outside the system, they are left to raise the child without the supports and services the child welfare system provides.
Though there is no formal reporting for hidden foster care, experts estimate it has increased since the pandemic because, at bottom, it saves pandemic-withered states’ money and resources. Once a child is moved into hidden foster care, their case file is closed—reducing a social worker’s caseload. Moreover, states save money compared to traditional foster care and kinship care, by skimping on things like financial assistance to the caregiver, respite support, case management, court reports, visitations, and reunification support.
Exiting Foster Care
For all that, getting into foster care during the pandemic is easier than getting out. For better or for worse, the courts have deemed getting children into foster care an “emergency hearing” and continued to remove children from their homes by court order. However, the courts do not accord the same prioritization for children exiting foster care, as they do not consider those cases an emergency. Therefore, proceedings to get children out of foster care do not get the same privileges, if there is a proceeding at all.
Currently, there are two ways to get out of the foster care system: (1) permanency, either through reunification with biological parents or adoption; and (2) aging out. Permanency involves a judicial process whereby the court “blesses the creation of a new ‘forever family’ with a smack of the gavel.” Meanwhile, aging out does not involve a judicial process. In fact, there might be no process at all. It is simply the cessation of welfare aid to children once they reach a certain age. Sometimes, but not always, it involves the development of an exit plan with child protective services before the aid ends.
Reunification
Reunification also is not considered an “emergency hearing” and therefore, most courts are not prioritizing reunification cases. In practice, this means court hearings for reunification have been cancelled, stalled, or backlogged. Moreover, when the court does host these hearings, they are often remote, and this may affect the outcome. Family law advocates argue that “when judges are distant from the families they are judging, they are more likely to judge them harshly.”
While parents wait indefinitely to appear in court, they must navigate contact with their children. Contact with their children is important not only for children’s development, but also for the parent’s legal posture. Child development and bonding are used as legal arguments in cases that determine whether to return a child to their parents or whether to approve or expedite an adoption to another family. Typically, if a child is in the foster care system, this is done through “visitations.” But the pandemic has hamstrung this critical contact. First, many child welfare services, judges, and individual foster families terminated or limited in-person visitation for fear of COVID-19 transmission. And, some did not require an alternative remote process. Second, many low-income parents do not have access to or know how to use videoconferencing technology. Finally, young children and infants might not be able to sit still during a videoconference or benefit from that format of visitation, as young children rely more on “touch and smell for bonding.” Some states have taken measures to mitigate this, such as allowing visitations in outdoor settings and encouraging parents to send children recorded lullabies or pictures.
Meanwhile, though courts have extended some deadlines for parents and made certain forms available online, parents are still in the dark about their other legal requirements. Often during the reunification process, parents are required to take steps to prove they are ready to get their children back, such as taking parenting classes or submitting to drug treatment. However, nearly everywhere, these classes have been suspended due to the pandemic, leaving parents without a path for reunification.
On the opposite end of the spectrum, one state harnessed the pandemic to expedite reunification. In April, Michigan’s Supreme Court and Department of Health and Human Services united to announce they had identified nearly 200 foster children who were “close to being returned home[.]” The joint effort said they will institute a “rapid permanency process” for these cases, which uses a team approach to reunification by mobilizing caseworkers, judges, and lawyers to determine the necessary supports and services. And, using the virtual court format, they will try to resolve any issues that come up without in-person hearings to reduce delays and keep the process moving.
Adoption
Meanwhile, as one expert told NBC, “[c]ourts are taking an unprecedented amount of time to process adoptions[.]” Though the digitization of certain forms has reduced some legal obstacles to adoptions, adoption hearings face the same cancellations, delays, and backlogs as reunification hearings. Meanwhile, outside the courtroom, adoptive families report pandemic conditions have been both a benefit and a curse when it comes to getting to know biological parents and children to determine the best placement. Some families report that videoconferencing allows adoptive parents to speak more with biological parents before the adoption takes place, while others say that masks and social distancing reduce their ability to connect with biological parents.
Aging Out
The pandemic has placed foster children set to age out of foster care in a particularly precarious position. Generally, children leave the system between their eighteenth and nineteenth birthdays and many subsequently become homeless. But foster children up to age twenty-three are able to extend child welfare care if they meet certain work and school requirements. Foster children who follow this path typically attain better outcomes.
Meeting this work requirement is hard, especially during a pandemic, when the unemployment rate is reaching record highs. A FosterClub poll found that sixty-five percent of foster children were laid off or had their hours cut during the pandemic. Moreover, foster children who follow extension programs generally rely on student-housing and because of the pandemic, many universities have shut dorms down. Consequently, these foster children have less stable housing.[2] Unstable housing adversely affects foster children’s ability to perform in school and complete paperwork for COVID-19 government assistance programs.
So far, eight states and the District of Columbia have issued moratoriums on discharging children and young adults from child welfare care during the pandemic. And, there is more hope on the horizon. In December, Congress passed its latest pandemic relief stimulus package, which included the “Supporting Foster Youth and Families through the Pandemic Act.” The Act specifically targets foster children under these extensions. First, it places a moratorium on aging out and increases eligibility until age twenty-six. Second, it waives education and work requirements during the pandemic. Third, it allows children who recently aged out or became ineligible for these extension programs to re-enter care. Finally, it provides funding for training, education, and housing resources.
Conclusion
The pandemic weakened the child welfare system. And, while states and the federal government have taken steps to mitigate its impact, more still needs to be done. Below is a list of additional measures the government should take to protect children and families during the pandemic.
Social work and detection
- Issue COVID-19 guidance for mandatory reporters to detect child abuse
- Equip social workers with PPE and protective gear
- Reduce social worker caseloads
Foster Care
- Commence large-scale recruitment campaigns for new foster parents
- Provide more financial support and resources for foster families
- Implement safeguards to prevent hidden foster care such as: data collection, give parents a right to a lawyer before bypassing the foster care system, statutorily define “voluntary” transfers of custody, and provide kinship caregivers information regarding their options
Reunification, Adoption, and Aging Out
- Deem visitation an essential service and provide an avenue for safe in-person visitations
- Educate parents about how to stay in contact remotely and provide resources
- Extend court deadlines for parents seeking reunification to accommodate those who have been financially impacted from the pandemic
- Institute a rapid permanency process where possible
- Classify hearings for adoption and reunification as “emergency hearings” so that courts will prioritize these remote hearings
[1] These states are Oregon, Mississippi, and Texas.
[2] The FosterClub poll also found that twenty-three percent of respondents reported they were “forced to move or feared being forced to move.”
This article was originally published on the COVID-19 and the Law blog.
Jordan Isern graduated from Harvard Law School in May 2021.
