I was honored (and more than a little overwhelmed) to be interviewed on MPR News to discuss the implications of the MN Supreme Court case ruling in favor of foster parents over paternal grandparents in a contested adoption case.
You can listen to the interview below:
In preparing for this interview, I read over the court's decision, as well as the dissents (
Download MN Supreme Court Opinion – Dunning case). I wanted to share some of my thoughts about this case, the court's ruling/dissents, and expand more on the implications of this case.
I am not a legal expert or scholar so this is my perspective from a child welfare scholar standpoint. Back in early January, I was contacted by Olivia LaVecchia from the City Pages. Olivia was writing a story about this case and was looking for my thoughts as a child welfare scholar. Although none of my quotes were included in the article (the executive director of my Center, Traci LaLiberte, was included) Olivia did let me know later that I was helpful in providing broader contextual information for her as she wrote the story.
As I shared with Olivia, and mentioned briefly in the MPR interview, I saw this case as a story about what happens when systemic issues and communication and collaboration between systems fail. There have been comments on news sites, blogs and facebook discussions that largely are sympathetic to the foster parents, in sum pointing to the attachment and bonding that has been formed by both the children to the foster parents and vice versa. And there is no doubt that that has happened; there is no doubt in my mind that these parents have been wonderful, stellar and committed caregivers to these children; nor is there any doubt in my mind that to disrupt this placement would be very traumatic and emotionally heartbreaking to the children and the parents both.
The problem to me is that had earlier issues regarding kinship identification, kinship placement, and interstate collaboration and communication been practiced as required and with the best interests of the children in mind, then we wouldn't be having this discussion at all because these kids could have been placed with the relatives as their first placement, and the bonding and attachment would have been with the grandparents.
I had several pages of notes prepared for the interview and had such a short time to discuss with Mr. Picardi, but here is some expansion of some of the systemic issues that I believe were at play in this case:
1. The interstate compact on the placement of children (ICPC) is an agreement that is in place in all states to provide assistance and oversight in placing children in foster and adoptive placements across state lines. But the ICPC is problematic to actually practice in real life and often fails children and families. Each state does adoption differently; how each state practically processes ICPC requests differ as well.
2. One of the things that complicated this particular case is that a federal law that regulates how long children can be in placement before moving ahead with the "permanency plan" (that is, terminating parental rights and moving toward adoption or legal guardianship if reunification with family is determined to be not in the child's best interest) called the Adoption and Safe Families Act (ASFA). Since these two girls in this case were placed as newborns, the minute they are placed with the foster family, that timeline clock starts ticking, and for children under 8, that means six months before the permanency review hearing is supposed to take place determining their plan for permanency.
Think about how this disadvantages relatives who come forward to adopt. In this case, because of the delays from the grandparent's state, the paperwork for the ICPC wasn't done in time to comply with the law. So the grandparents were screwed in part because of the fact that their state did not complete the ICPC process in a timely way, and because Minnesota did not have the resources or the ability to make the other state finish the paperwork.
3. We now practice something called "concurrent permanency planning" in child welfare which means that instead of planning for a child to be reunified with his or her parents and then, if that does not happen, we start planning for permanency (adoption or legal guardianship) in a sequential way, we are now by law required to do both at the same time. So the track is to place the child in the first foster placement with someone whose job is dual – to help support the child's reunification with the parents and also commit to adopting the child (or assuming legal guardianship) in case there is a termination of parental rights.
This is a terribly difficult job to do. To work to care, nurture and support a child, while helping support the child through the reunification process, and then to also adopt is asking a lot of families. As a result there is an unintended consequence to setting up the system this way. Many families sign up to do concurrent permanency planning (also known as legal risk placements) as their first choice for adoption because they often get babies and younger children (as in this case – both girls were placed as infants from the hospital).
Many social workers I've worked with have talked at length about how difficult it is to have foster parents who are concurrent permanency placement homes really do a good job helping in the reunification process - and can you blame them? It would be difficult. For those doing this type of placement, in Minnesota the chance of the child becoming available for you to adopt is about 20%. That means most families will see 4 out of 5 of the children they care for reunite or go to relatives. For famililies who hope to adopt by becoming a concurrent permanency placement, it means lots of loss and lots of unknowns.
BUT – that is what they signed up for. And so while it's hard, and while I empathize and have compassion for the difficulty, it is SO FRUSTRATING to work with foster parents who half-heartedly or half-assed support reunification because they're really hoping for a TPR so they can adopt. It feels like you're being lied to, as the social worker, and it feels like they're manipulating the system. Sometimes it even feels like they're sabotaging the reunification – and if there is a relative interested then watch out for fireworks because foster parents often feel claim to those children because they've put in the sweat and tears.
Again, I feel a lot of compassion for concurrent permanency foster parents. They have a TOUGH job. And they are underappreciated. But they do have a job, and that is to support reunification.
4. The relatives should, when at all possible, be the concurrent permanency placement option. When families live in different states, or even in different counties, this can be mishandled. This is politics at play, between states and counties. When done well, relatives that are the concurrent permanency option end up being able to keep children in the larger family systems, as well as provide the stability and safety children need, without multiple placements and transitions. So when states and counties do not do a diligent search for relative placements or don't engage with relatives from the beginning, then families lose out on the opportunity to become the concurrent permanency placement.
Now, readers will chime in and say things like, the families were not appropriate, we couldn't find anyone who could pass the background check etc., the apple doesn't fall far from the tree, the family wouldn't work with us, etc., etc.
Yes, these issues always come up. And for most of them, the easy way out is to just go ahead and rule them out because why not? A worker only has so much time and here we have eager concurrent permanency foster parents jumping at the chance to take in the kids. So you can fill in the rest of the story. Engaging relatives becomes more of a check-list and a rule out, rather than using social work skills and really working with the relatives because you believe its the right thing. Instead of advocating on behalf of relatives who are scared of the system (particularly if they're families of color and they have historical reason to be suspicious of government agencies who separate families), helping them get good legal representation, working to help them push past red tape and other bureaucratic barriers what ends up happening? Social workers do all the above for the FOSTER PARENTS not the relatives.
5. Contested adoption cases like these are rare, but when they occur they seem to have the following elements – foster parents, often who are white and middle or upper class, who feel entitled to keep the children, and have the means to hire the best and most prestigious/premiere adoption attorney and often with the support of a local or state legislator – and biological or relatives, often of color, working class, who do not have the knowledge of the system enough to know what kind of attorney would best represent them, and without support of local politicians.
6. Then in many cases, there are racial issues too. They are not additional, or separate, but intersectionally entwined with everything else.
7. In this case, the foster family said at one time that they would help make sure the children had a relationship with their relatives. Yet out of frustration with the court case, they expressed that now they no longer would do that. I hope that this is just momentary frustration but it shows how little this is about the children and how much it's about grown up adults acting like children. Also, I was personally disturbed that the child who is named after the grandmother is not called by that name by the foster family. One more clue that the foster parents don't value the relational connection to the biological family.
So, that is a very long post that doesn't even begin to cover this case! And keep in mind that there are details I don't know and/or can't begin to cover them all, but I want to end with this.
Nobody wins, really, in this situation. The girls have lost their opportunity to be raised with their biological family and even if the foster parents do the right thing and change their mind about having a relationship with the grandparents, the girls will not know their grandmother in the way they could have. While the foster family and their attorney hired experts to say that the attachment would be traumatic to these girls (and I believe that yes, it would be very difficult), I feel they patently overplayed the reality that these girls have the capacity to attach to the grandparents. The kids who struggle with attachment are the ones who never had the opportunity to attach in early life. These girls, by the very fact that they are strongly attached, definitely would be able to attach to other caregivers. The people in this case who are having more difficulty with the attachment are the foster parents.
In addition we often, regularly, move children who have been in placements even longer, because it's the right thing to do. I sometimes use this analogy. Let's say a child has been kidnapped by a stranger who treats them like their own and years later is found. That child may have grown up attached and bonded to the kidnapper but once found, they will still have to be taken away and returned to the custodial parent(s). We have to because it's the ethical thing to do, the right thing to do, even if we know that it means causing trauma by separating the child from the only parent they know. Now, don't get angry and leave comments that I'm calling the foster parents or the relatives kidnappers because I'm not – but this just shows how easily we can justify certain elements such as attachment to caregivers in ways that benefit us when it is about us and not about the child. Rather than thinking about it in the larger context of what's best for the children.
For their part, the relatives also believed it was their entitlement to have the girls, and as a result they and the foster parents created an atomosphere that really poisoned what could have been a lifelong supportive system of care for these girls.
There is a common saying among many of us who work in child welfare – a child can never have too many people love them. If only the adults in this case believed this as well.
Thanks for sharing your analysis. You have captured so many important pieces here of where things went wrong. I have one thought to add.
Minnesota’s permanency laws are actually stricter than the federal Adoption and Safe Families Act. ASFA requires a permanency hearing no later than 12 months after the child enters foster care, and initiation of a termination of parental rights petition after the child has been in foster care 15 of the previous 22 months, except if not in the best interest of the child, or if the child is in the care of a relative. Minnesota has required a permanency hearing at 6 months for children under 8 for some time, and in 2012, that requirement was extended to all children. While the permanency hearing is intended to (among other things) ensure that social services is truly doing concurrent permanency planning for children so they are not lingering in care, the unintended consequence can be permanency moves forward when relatives have yet to fully participate in the process. The legal changes from 2012 also further emphasize early relative engagement, but a legal change does not change the practicalities involved in working with out of state relatives or relatives who are not privileged enough to be able to completely devote their time and energy to working with the system on being licensed, etc. Not to mentioned the personal emotional turmoil those relatives are likely feeling because the children are placed in foster care.
I believe the intention of the Minnesota law is to look at time through the eyes of a child — 6 months is a long time, especially when you are young, but to be separated from your family for a lifetime is a much longer time. We need to think about how to stack the odds in favor of children for their whole life, and that involves continued, concentrated attention to placement with relatives, and when placement is not possible due to safety that cannot be mitigated, continued connection.
Peppy, thanks for the ASFA clarifications, and yes Minnesota recently changed the law – it used to be over 8 it was 12 months (it was changed last August and I forgot to include that).
And I agree with your thoughts – that the idea was to look at time through the eyes of a child. However it is so correct that the fast timelines don’t give enough time to identify relatives (not to mention how difficult it is to really expect a parent to change behavior – if it’s chemical abuse related or mental health – in 6 months or a year, but that’s a whole separate post).
I appreciate your comments – thank you for adding your perspective.