Thursday, November 17, 2011

Does Foster Care Protect Children?

by Law Journal for Social Justice at Arizona State University

November 16, 2011

by Fatima Badreddine

On Jenna’s eighteenth birthday, she arrived at her home only to discover that her foster parents had taken all of her belongings and placed them in the driveway. She stayed at a friend’s house for a few days, but she soon became homeless. Jenna had been in foster care since she was six years old and was passed around from foster home to foster home. The lack of stability in her life left her traumatized, feeling alone and unwanted. Jenna’s eighteenth birthday should have been a happy day. Instead, it was one of her most hurtful experiences, invoking a renewed sense of anguish and rejection.

Unfortunately, Jenna’s experience illustrates one of many examples of the problems associated with foster care in America. Foster care has been a traumatic experience for children, many of whom are shuffled between different foster homes. Sanda Chipungu and Tricia Bent-Goodley reported in 2004 that after about three months of being placed in a foster home, many children exhibited symptoms of “depression, aggression, or withdrawal.” In severe cases, children exhibited symptoms of “sleep disturbance, hoarding food, excessive eating, self-stimulation, rocking, or failure to thrive.”[1] Like Jenna, more than half of the former-foster children that were surveyed reported that they were not prepared to support themselves after leaving foster care.[2]

However, foster care was created as a temporary injunction to find safe havens for abused and neglected children. Foster care was not designed to be a permanent remedy for abused and neglected children. Rather, the goal was to either return the foster children to their parents, or to place the children for adoption when returning them to their families is inappropriate. However, some children have remained in foster care permanently, being shuffled among different foster homes until they reached the age of majority. This unstable and continuously evolving environment contributes to the psychological problems described by Sandra Chipungu and Tricia Bent-Goodly. Furthermore, some children have been placed in abusive foster homes, meaning that they were shuffled from one abusive or neglectful environment to another. Considering that many children have been negatively impacted by foster care, is it an appropriate method for protecting abused and neglected children?

In Arizona, the statistics for children who have been removed from their home, both temporarily and permanently, are staggering. The number of children in out-of-home care[3] increased monthly from January to June 2011. In January 2011, 10,512 children were in out-of-home care, and by June 2011, 11,082 children were in out-of-home care.[4] These statistics become more significant when compared to the length of time that children remain in out-of-home care. About 22.6% of children remain in out-of-home care for over a year, while 20.7% of children remain in the state’s care for over two years.[5] This means that over twenty percent of foster children in Arizona have not been in a permanent living arrangement for more than two years. Furthermore, the report fails to clarify how long children are in state custody beyond two years, leaving the impression that the Department is attempting to bury this important information.

Likewise, the Arizona Department of Economic Services does not include statistics regarding the mental health and emotional well-being of children under state care. As mentioned above, the longer a child is separated from his/her family and support system, the more likely he/she is to experience emotional distress. Yet, the Department excludes this information from its statistical reports, which prevents the public from reviewing whether the Department adequately meets the needs of foster children.

Unfortunately, some children in Arizona have suffered from abuse while in foster care. Arizona Child Protective Services (“CPS”) does not consistently visit all children in out-of-home care, which is an important element in preventing and reporting foster care abuse. In March 2011, CPS case managers failed to visit 17.5% of children, and licensing case managers failed to visit 11.5% of foster homes.[6] This is a significant amount of children who have not received the minimal monitoring required by the state, thereby increasing the potential for unreported abuse in foster homes and families. In fact, during a mere six month time period, from October 2010 to March 2011, two children in Arizona died while in CPS custody due to “alleged abuse.”[7] The report did not include statistics concerning the number of reported abuses that resulted in harm other than death. Furthermore, the majority of children in out-of-home care are under the age of six[8] and unlikely to have the mental and emotional capacity to understand, let alone report, abuse. Thus, the actual amount abuse inflicted on foster children in Arizona is likely higher than disclosed in the Semi-Annual Child Welfare Report.

Victims of abuse while in state custody may seek restitution through the courts, but this process is complicated by state statutes that grant sovereign immunity to government officials and employees. Although 42 U.S.C. § 1983 permits victims of foster care abuse to overcome sovereign immunity, the burden to overcome it is heavy. As a result, there is minimal litigation in the United States and Arizona involving foster care abuse.

In Weatherford ex rel. Michael v. State (2003), the Supreme Court of Arizona ruled that foster children could establish liability against state employees for abuse under 42 U.S.C. § 1983. The Court concluded that a foster child “has a right to reasonable safety while in foster care” and that this right required more than protection just from “known or obvious dangers.”[9] So, the Court expanded the previous Grubbs II test to include a negligence liability for social workers.[10]

However, a foster child still has a difficult burden to overcome. He/she must prove that: 1) the social worker was unjustified in acting “with deliberate indifference” by putting or keeping a child in foster care, when the social worker knew or should have known that the child would be exposed to danger; or, 2) the state worker deliberately ignored or refused to obtain information that placing the child in foster care would expose that child to danger, and the worker had “time to consider the placement for a foster child . . . .”[11] Furthermore, the court must consider “the totality of the circumstances” because the social worker is not liable if he/she cannot find placement for the child or is bound by “financial constraints.”[12] The totality of circumstances rule grants wide deference to social workers because the Court does not clarify what constitutes adequate time to consider or find placement. The Court also fails to specify the extent of reasonable “financial constraints.” So, although the Court expanded the state’s liability under § 1983 to include negligence, it simultaneously granted wide deference to social workers, making the plaintiff’s burden difficult to overcome.

Foster care in the United States and Arizona is in a state of chaos and confusion. Although foster care was created as a temporary tool to protect abused and neglected children, a significant amount of children in Arizona remain in foster care for over a year. A year or longer in an unstable and impermanent home environment is a considerable amount of time for a child, making it more likely that the child will develop psychological or physical harm. Until foster care is reformed to account for these issues, it should be reserved as an emergency solution for extreme cases of abuse and neglect that seriously threaten the safety and/or health of the child.

[1] Douglas Abrams & Sarah Ramsey, Children and the Law: Doctrine, Policy and Practice 439 (West, 4th ed. 2010).
[2] Id. at 440.
[3] Defined by the Arizona Department of Economic Security as the number of children in CPS custody “who require placement in a foster care setting.” Clarence H. Carter, Dep’t of Econ. Sec., Child Protective Service Bi-Annual Financial and Accountability Report, at 3 (Ariz. 2011), financial_and_program_accountability_2024_report.pdf.
[4] Id. at 3a, 3f.
[5] Clarence H. Carter, Dep’t of Econ. Sec., Child Welfare Reporting Requirements: Semi-Annual Report, at 44 (Ariz. 2011), http:// mar_2011.pdf.
[6] Id. at 46.
[7] Id. at 58.
[8] Id. at 39.
[9] Weatherford ex rel. Michael v. State, 206 Ariz. 529, 537 (2003).
[10] Id.
[11] Id.
[12] Id. at 538.


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