ABA Brings ‘Hidden Foster Care’ to Light

March 11, 2021 by Robert Franklin, JD, Member, National Board of Directors


I love learning new things, particularly about subjects I already know a lot about.  This article taught me something I didn’t know about foster care and child protective agencies (ABA, 6/1/20).  The journalistic “hook” is the impact of the COVID-19 pandemic on those agencies and foster care.  But the real story is a practice that’s been dubbed “hidden foster care.”

Hidden foster care apparently has been practiced by CPS agencies for decades, but has only recently come to light.

“Hidden foster care” is the term used by Professor Josh Gupta-Kagan to describe a widespread practice that has existed for decades, under the guise of “safety plans” or diversion programs, under which a child welfare agency tells a parent that unless the parent places his or her child with a friend or relative, the agency will remove that child and place the child into foster care. In addition to this coercion of the parents through the threat of removal, the agency often simultaneously tells the relative that unless the relative takes the child into his or her home and takes action to protect the child, often by seeking guardianship of the child through a family or probate court, the child will end up in foster care with strangers and the relative may have no access to the child as a result.

So hidden foster care is a bit different from the parallel practice of coercing parents into signing an agreed plan under which their kids are taken from them and placed in foster care.  That too is a widespread practice, but the child’s relatives aren’t always involved.  So the two are somewhat different, but the results are much the same.

The child and the parent are separated, without court review or access to counsel and often without a plan for reunification.  

Indeed, that’s pretty much the whole purpose of those “voluntary” agreements – to remove from the process lawyers and judges who might raise pesky issues of due process of law and parental rights that CPS would often prefer didn’t come up.  Plus, without a court hearing, the whole process of shanghaiing children from parents is so much quicker and less expensive than it otherwise would be.  State agencies find it ideal; parents and children, not so much.

As to hidden foster care:

And because the foster care system was bypassed, the relative or friend who took custody of the child is left to care for the child without the supports and services that the child welfare system provides to support children who have experienced abuse and neglect and without assistance in navigating contact and reunification with the parent.  

In short, it’s a money and time-saving device.  No courts, no lawyers and no need to provide services – if you’re a state agency, what’s not to like?  If you’re a caseworker, it’s the easiest and quickest way to get that file off your desk.  The problem of course is that no one knows whether the relative who was browbeaten into taking the child is at all capable or qualified to provide the requisite care.  Naturally, kinship care is generally far superior to stranger care, as the article acknowledges.

When children are removed from their parents’ custody by a child protection agency due to allegations of abuse or neglect, research has clearly illustrated that placing them in kinship foster homes often leads to better outcomes than care in traditional foster care with non-relatives. Placement with family may be even more important during COVID-19 as kinship families are more likely to take in an entire sibling group preventing additional trauma of being separated from sisters or brothers. In addition, many kinship caregivers want to assist the children in their care in remaining connected to their parents through video or socially distanced visits frequently, while finding adequate visitation time is a particularly acute challenge for many children in non-kinship families. Finally, research has illustrated that placement with kinship caregivers often means more stable placements with fewer placements overall and often results in better mental and physical health.

So why engage in the practice of hidden foster care?  Since kinship care is preferable, on average, to stranger care, why not just go through the process of diverting the children to a relative who’s known to be capable of caring for them?  Again, the sole reasons appear to be time and money.  The agency doesn’t want the bother and using its awesome power to intimidate both parents and relatives is simply too expedient to ignore.

In the end, the ABA piece gets it right.  We need to strengthen parental rights vis-à-vis state child welfare agencies.  As a practical matter, that means they should have the right to legal counsel whenever their parental rights are at issue.  Without that, state agencies will continue to steamroll parents and kids.  Hidden foster care is just on of the many ways in which they do so.

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