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Charts & Graphs

Comparing Racial Disparity in Florida’s Child Welfare System

A critical step in reducing racial disparity in the child welfare system is having a way of measuring it. The standard methods, including the one used by DCF in its public dashboards, all have documented weaknesses that either under- or over-estimate disproportionality and provide numbers that cannot be directly compared between different subgroups like regions or CBCs. This post uses a standardized measure proposed by Rolock 2011 to show where in Florida’s system we need to focus. There will be numbers and lots of graphs, so here are the main points.

  • In fiscal year 2018-19, non-white kids in Florida had 1.80 times the risk of experiencing a child abuse investigation as white kids.
  • White kids under investigation were then slightly more likely to have their allegations verified (1.07x) and white kids who were verified were slightly more likely to be removed (1.04x), but not at rates that overcame the initial disparity in investigations. White children also had a higher chance of being discharged from care once in it (1.06x).
  • The result is that non-white children had 1.73 times the risk of being in out-of-home care compared to white children. The disparity was even higher for non-white teens at 2.20 times the risk of white teens.
  • Disparity rates varied widely by CBC, with risk of out-of-home care ranging from nearly even in one CBC (1.008x) to almost five times as high (4.720x) in the most racially disparate CBC. Those differences were driven largely by disparity in investigations and then an inability to discharge non-white children at equal rates. This was especially true of the CBCs with the highest disparity in out-of-home care.
  • In terms of placement, non-white children in care were at higher risk of incarceration, Baker Act, and running away. White children were at higher risk of being placed in a therapeutic placement under most CBCs.

The takeaway is that if non-white children were in care in the same proportions as white children, there would be 4,000 fewer kids in the system. That would save $23.4 million per year in board rate payments alone. The National Council for Adoption estimated that in 2010 it cost a state approximately $25,000 per year to keep a child in foster care. If that’s true today, racial disparity in foster care costs Florida $100 million dollars annually.

The chart below shows the disparities by CBC. The values answer the question “How many times greater are non-white children at risk of the action compared to white children when accounting for state demographics?” It calculates each stage of the case using the group of kids who entered from the previous stage — for example, the risk of removal is calculated using the group of children whose allegations were verified. This lets us see how each stage contributes to or corrects for previous disparities. You can see clearly: racial disparity begins at the beginning. The rest of this post explains this chart.

Weighted risk ratios for each CBC at each stage of a case. Data source: DCF Dashboards. (click to enlarge)

First let’s discuss disparity

Conversations around measuring disparity often turn into a debate about how many children should be in foster care or need to be the target of child welfare services. One argument in that debate says that not all difference is disparity. Disparity, in that view, is only “a bad difference,” and some kids need to be in foster care for their protection. Under that view, if more Black kids are in foster care, then that could be reflective of their needs and not necessarily bad thing. A stronger version says that Black kids are in care more because they need to be, full stop.

The argument is rarely that blunt, but it’s always lurking. For example:

One issue that clouds this discussion is that there is no clear standard for child welfare involvement. One cannot say, for instance, that because less than 1% of children in the United States are in foster care that this is the correct percentage—nor is there any evidence that this percentage should necessarily be higher or lower. While it is often assumed that less contact with the child welfare system is good, both under and over representation of specific ethnic or racial groups should raise questions…

Rolock, 2011.

As such, much of the literature frames child welfare services as either a neutral or positive public health project that either helps or does not help families. It is rarely posited as something that harms. Under that neutral good view there is some “correct” number of kids in foster care, even if the goal is to get that number as low as possible. For example, Bywaters et al. (2015) describes and then rejects a framework of supply and demand where families have needs that create demand for child welfare services and the government and communities in turn supply those needs. Intead, Bywaters frames the issue as one of the inequities that drive kids into care — and by doing so, the moral and ethical problems of the system become more clear. Roberts, Cloud, Phillips & Pon, Burrell, Cooper, and many more writers have put the child welfare system into the context of people who experience it and the communities that pay for it most heavily.

We also know foster care is a system of inequity because, while there are lots of privileged people seeking to make it unavoidable for other families, they are not simultaneously demanding access to the system for their own kids. Families need community safety, good physical and mental health, social support, material wealth, and political power to create better lives. If you have that, you don’t need DCF. Nobody calls DCF to put their child in foster care for a few days while they go on a business trip, and there is no Operation Varsity Blues for rich people trying to scam their kids into care. That’s because foster care is not a good thing.

Take the responses of Black mothers in Florida’s system, who described the ways the system takes and keeps kids for reasons completely unrelated to parenting:

The sense of powerlessness and helplessness was profound as parents described being trapped by personal limitations and systemic unresponsiveness. Concentrated poverty translated into a series of severe deficits: lack of sound housing, nutritious food, accessible healthcare, adequate transportation, and childcare services. Concomitant with high standards set by the courts, such factors combined conspired to decrease the likelihood these families would ever see their children returned

Kokaliari et al. (2019).

When a bad thing happens almost exclusively to poor, disfavored, and marginalized people, the morality and ethics of the situation are clear. Difference in a punitive, inequitable system is disparity. Further parsing of who “needs” to be in the system is no more instructive than debating who “needs” to be poor, unhealthy, or alone. We can discuss what drives more kids into foster care as a question of inequity, but no kid should be there at all. Now let’s get to the numbers.

Measuring difference

The simplest way to measure difference is to just count. In the chart below you can see that non-white children (the sum of DCF’s Black and Other categories) made up about 28% of the population, whereas they made up 42% of investigations and 40% of out-of-home care. Their percentage of discharges was slightly lower at 39%. These patterns are going to play out again and again — racial disparity starts on the telephone.

Before we go further, the three DCF categories Black, White, and Other should be interpreted with lots of caution. Schmidt et al. (2015) found that one state’s system tended to label kids as white at higher rates than school districts labeled the same kids, and even higher than the kids described themselves. The study also showed that 20% of the children’s racial self-identification changed over time. To my knowledge, the race labels in Florida DCF’s system are entered when the case comes in — usually for a baby — and not updated again.

DCF doesn’t limit case managers or investigators to just the three categories. They actually have the six below, plus three extras: Unable to Determine, Declined to Respond, and Unknown. They additionally capture whether the child is or is not Hispanic. (They have a marginally helpful FAQ about it here.) In DCF’s public-facing dashboards, they roll these options into the three categories above. The “Other” category is entirely too broad — an Asian child and a child who is multiracial Black and white will have very different experiences in care, but are lumped into the same group. I can’t undo that here. Future work needs to be done.

Removals in FY2018-19 from Public FSFN Database (Feb. 2020). The numbers are close to the “Removals” line above, but are not exact because DCF does monthly point-in-time counts and the numbers here are every child who came into care during the period.

Back to the measures. To determine disparity, you might next look at proportions, the number of kids per 1,000 in the general population who find themselves at each stage in the system. You can see below that 86.59 per 1,000 non-white kids went through investigations, but only 47.15 white kids did.

Number per 1,000 kids in the population.

There is an important factoid hiding in this chart. If non-white kids were in foster care in the same proportion as white kids (4.52 per 1,000), there would be around 4,000 fewer kids in care. That would reduce our foster care rolls by about 17%. At a board rate of $16 per day, that would save the state $23.4 million per year in foster care payments alone. Racial disparity costs money. If you use the National Council for Adoption‘s 2010 estimate that it cost a state approximately $25,000 per year to keep a child in foster care, racial disparity costs Florida $100 million dollars annually.

Now on to our next measure. Taking out-of-home care as an example, if you divide the proportion of Black children (6.9 per 1,000) by the proportion of all children (5.45 per 1,000) you get a value called the disproportionality index (DI) or the disproportionality representation index (DRI). In this example, 6.9 / 5.45 = 1.27. This is the measure that DCF uses on its dashboards. It has the benefit of being easy to understand: there are 1.27 times more Black kids in out of home care than “should be” as compared to all kids in the community. It has the drawback of making it harder to compare regions or CBCs of different sizes and racial compositions. As an extreme example, 3.0 / 9.0 gives a DI of 3.0, but 43.0 / 49.0 gives 1.14, even though they are both separated by 6 per 1,000. Conversely, I can get a DI of 3.00 by 3.0 / 9.0 or 20.0/ 60.0. The value 3.0 can represent vastly different experiences on the ground.

Below is what it looks like on DCF’s dashboards. Graphing the DI is messy.

DCF Dashboard using the disproportionality index as a measure. You can see giant dips and spikes in the number of kids categorized as “Other/Multi-Racial”.

If you divide two groups’ disproportionality indices by each other, you get a new number that is sometimes called the disparity index (Shaw et al., 2008), and is a calculation of relative risk. A value of 1.0 would be equal risks in the two groups. The chart below shows that non-white kids are anywhere from 1.64 to 1.84 times as prevalent in the system as they are in the general population (and white kids are underrepresented by the same amount). You can see that the disparity is the highest in investigations (1.84), goes down a little in removals (1.71), and rises again as you go through the stages of a case to out-of-home-care (1.73) and being in care for over 12 months (1.80). This is exactly what we saw in our very first chart of measures above. It’s just easier to see the relationship now.

The disparity index, just like the disproportionality index, has its own quirks that make it hard to compare among different CBCs or regions. Specifically, it tends to under-estimate the risk when the percentage of the measured population is small and over-estimate the risk when it is large. (Rolock 2011). To DCF’s credit, it does not provide side-by-side comparisons on its dashboards. But that’s what we need to do, and doing so requires more complicated math that gives simpler measures.

On a final note, we also want to measure how disparity creeps in at each step through the system. That means we should use a step-wise approach, calculating the disparity at each stage based on the population that entered the stage from the previous step. For example, to get a disparity measure for children who were removed, we will use the group of children who had verified maltreatment — not all kids in the general population. This is sometimes called decision-point based enumeration. (Thurston & Miyamoto, 2020.) Now, here we go. This is what this post is actually about.

Harder math, better graphs

To compare CBCs to each other, let’s use a measure called the weighted risk ratio (WRR). The WRR allows you to more directly compare groups that are themselves not homogeneous. Nancy Rolock at University of Illinois at Chicago wrote in favor of using WRRs in child welfare back in 2011. They are also recommended for use in the special education arena to determine differences among lots of different schools and districts, which helps focus resources and scrutiny on places that need it. I’m using the special ed formula.

WRRs answer questions like: “How many times greater is a specific racial group at risk of being removed in comparison with all other racial groups under the same CBC, weighted by the demographics of the state?” The math-magic is that WRRs adjust for the variability between different CBCs to give you a number you can compare even when the CBCs don’t have the same group percentages (our 3/9 and 20/60 example above). The downside is that it doesn’t work well for small numbers so you have to use an alternate formula that compares the local risk to the comparison group’s statewide risk.

So what does that get us? The chart below shows the weighted risk ratios for children in Florida at each listed stage of the system (based on the population from the previous step in most cases). All of the data comes right from DCF’s dashboards, just calculated in a different way. I’m using the categories White vs. Non-white (i.e., Black + Other) to make it easier, and also because I don’t trust DCF’s “Other” category to stand on its own. A risk ratio of 1.0 means that white and non-white children have equal risk of being screened in at that stage. If a value is less than 1 (orange), then white children have higher risk, and if the value is greater than 1 (blue), then non-white children have higher risk.

Data source: Florida DCF Dashboards, FY2018-19. (click to enlarge)

The top row of the graph shows that during fiscal year 2018-19, non-white children in Florida had 1.836 times the risk of an investigation as white children in Florida. White children were then slightly more likely to have their allegations verified (-1.072) and slightly more likely to be removed (-1.043), but neither number was large enough to make up for the original disparity. And, importantly, white children were also more likely to be discharged (-1.057). The result is that non-white children in Florida were at 1.733 time the risk of out-of-home care placement than white children.

The graph also breaks it down by age in the next rows. You can see that the risk was highest for non-white babies and decreased slightly through age 14. White babies were more likely to be verified and removed (albeit not at rates that overcame the original disparity in investigations), but then around age 10 things shift. Non-white tweens and teens with verified allegations were at higher risk of removal than white ones (1.023 and 1.131). White teens were then significantly more likely to be discharged than non-white teens (-1.374). The result is that non-white teens in Florida had 2.196 times the risk of out-of-home care placement than white teens, a risk much higher than any other age group.

Weighted risk ratios by CBC

Now for the bigger picture. Here is the same chart by CBC, again for fiscal year 2018-19. The CBC with the highest WRR for investigations, Citrus Family Care Network (3.427), is almost three times as high as the CBC with the lowest, Kids First of Florida (1.196). The WRR in the out-of-home care measure ranges from nearly even at -1.008 to a whopping 4.72. Racial disparities are happening everywhere, but not in the same ways.

(click to enlarge)

You can see so much in these graphs. For example, you see that disparity starts in investigations under every single CBC. By the verification and removal stages, you can see how the local systems work either towards or against disparity, but only one CBC managed to overcome that initial skew. The systems with lower racial disparity in their investigations seemed to correct for it better than the areas with higher disparities. A few areas at the top of the chart actually compounded the disparity through disproportionate removals (but so did the CBC at the very bottom).

Finally, the graph shows that the areas with the highest levels of disproportionality in their out-of-home care populations (seen at the top of the chart) significantly struggled to correct for it through discharges. Only one CBC — Kids First of Florida — was close to equal on its out-of-home care rates, and it also had the highest rate of discharging non-white children.

Let’s look at the same chart from the perspective of Black children vs. non-Black children below.

(click to enlarge)

A few things leap out when centering on Black children. First, the disparity in investigations is lower but still high. Black children in Kids First Florida in Clay County (Circuit 4) actually have lower risk of investigation as non-black kids. Again, removals of Black children tended to be correlated with areas with higher out-of-home care disparity. There are even CBCs where Black children have lower risk of being in out-of-home care than non-Black children, but that may be due to the over-representation of kids in the “Other” category. Those areas still had higher risk for non-white kids.

The most striking thing about this graph, though, is the insanely low risk of discharges (i.e., high risk of not being discharged) for Black children in those areas with the highest out-of-home care disparity. It’s like there’s a jetstream pushing Black kids into care and keeping them there. I wonder what that could be.

One more chart — the CBC chart organized by DCF regions.

(click to enlarge)

Weighted Risk Ratios of Discharge Types

The obvious next step is to try to look at discharges by race as well. To do this, I used DCF’s Exits from Care dashboard and added up the values for fiscal year 2018-2019. Here’s what I got. You can see that CBCs with high disparity have trouble discharging non-white children across all discharge types. CBCs with lower disparity do manage to discharge non-white kids at higher rates here and there, especially into guardianships and reunification. Only three CBCs managed to adopt non-white kids out at slightly higher rates: Big Bend CBC (1.08), ChildNet Broward (1.06) and Heartland for Children (1.03).

(click to enlarge)

One CBC really stands out above because its risk ratio numbers are huge. A white child with Family Integrity Program in St. Johns County (Circuit 7) had 7.29 times the risk of being adopted (I recognize that’s a weird way to say it) and 5.08 times the risk of guardianship as a non-white child. That’s because in 2018-2019 only 5 non-white children were adopted and 2 non-white children went into guardianships, compared to 56 and 15 white children respectively. That means 55% of white kids in St. Johns County exited through adoption or guardianship, but only 15% of non-white kids did. Yes, it’s a small CBC with about 180 kids, 80% of which are white. It only discharges about 15 kids per month, but as you can see below, it rarely breaks 5 non-white kids exiting per month, mostly to reunification, and many months have 0. Someone should ask questions about that.

Placement Settings

This last part doesn’t come from DCF’s dashboards. Instead I used the Public FSFN Database from February 2020 to look at every kid in foster care’s placement history. Specifically, I ran queries for correctional, therapeutic, mental health (Baker Act), and runaway episodes. I limited the queries to just those kids who came into care in fiscal year 2018-2019, which cut out kids who had been in care for years prior, but also let us say that these are events that happened early in their removal period and doesn’t bias towards kids who were in care longer and had more chance to be arrested, etc. I used DCF’s numbers for removals, which in retrospect may not have been the right call because DCF’s numbers were slightly lower than what is found in the database. It’ll still get us in the ballpark.

The graph below shows a significant difference in risk of non-white kids being placed in correctional placements, and very extreme skews towards white children for therapeutic placements and non-white children for mental health placements at many CBCs. Non-white children were at higher risk of running away almost everywhere, which could be a factor of there being more non-white teens in care or of not seeing the system as helpful.

(click to enlarge)

That’s it. Now let’s get to work.

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Charts & Graphs

Month 3: Only a crisis if you thought 2010 was awful

Florida statewide intakes by month over time.

The May numbers are out and they begin to show how the pandemic is affecting things later in the pipeline from investigation to removal. Remember that investigations take about 60 days from intake. Intakes were down 6% in March and 16% in April from their expected numbers based on historical trends. Closures on investigations in May, however, dropped nearly 34% from the expected trend. That suggests investigations may be taking longer to close. Meanwhile, verifications were down 22% from trend, and removals were only 7% below trend.

Difference from expected value based on seasonal trends.

Having removals come in 7% under the trendline is very normal. It happened in November 2019 and didn’t make headlines. This suggests that the reduction in intakes was more heavily weighted toward low-risk cases that would not have resulted in a removal anyway. DCF only verifies about 15% of calls and only removes about 4-6% children under investigation, so a reduction in frivolous cases is a win for everyone. We need to wait another month to see how the remaining March-April intakes come out.

On the back-end, exits from care are still very low. They were 40% lower than last year and 20% below the trend line. Reunifications and adoptions were both down. Courts should probably set a few rocket docket days to hear the cases that are pending an uncontested reunification, adoption, and guardianship.

Looking ahead, intakes in May dropped about 33% from 2019 levels, or 9.9% below trend. That puts us back to 2010-level numbers, and it’s still too early to say whether that is an anomaly or a new normal.

You can explore the numbers all the way down to the county level using the dashboard.

Here are the statewide details for this month.

Intakes were down about 9.9%. It’s very hard to put that decrease in context because the intake numbers started behaving oddly in mid-2019. The “turn” may have predated the virus, but we’ll only know if this was a dip or a new normal with more time. The numbers for April have been adjusted up to -16.3% (from -26.5% last month) based on the new data. That’s still hurricane levels low.

Intakes.

Investigation closures were down 34%. We are starting to see the pipeline effects of the lockdown. Intakes were low in March, so closures — which take up to 60 days — are predictably low in May. Based on the numbers of intakes in April, closures should be down even more in June.

Investigation closures.

Verifications were down 22%. Verifications have been steadily decreasing for years. The fact that verifications didn’t drop as much as closures suggests (but definitely doesn’t prove) that the lockdown resulted in a larger percentage of lower risk cases from being called in. It doesn’t fully prove that because we can’t say how the pandemic affected DCF’s perception of what should be verified.

Verifications.

Removals were only down 7%. That’s well within normal ranges for removals. This is the strongest indication yet that the pandemic resulted in fewer low-risk cases being reported — with the same caveat that we don’t know how DCF’s risk analysis changed. Removals per 100 victims went up a little, again suggesting that more low-risk cases were removed from the investigation pool.

There’s been a lot of discussion about homebound children and sexual abuse cases, and sure enough removals were up for sexual abuse (+23%), inadequate housing (+14%), and inadequate supervision (+10%). That could mean more egregious sexual abuse cases or less risk-tolerance from DCF. Removals came in lower than expected for physical abuse (-11%), drug abuse (-7%), and domestic violence (-3%). All of these, however, were within normal ranges, meaning we saw similar ups and downs throughout the last 16 years. The removal of Black children was down 7.7% in May and 22% in April. That April number was very low.

Removals

Discharges from care were down 20%. That’s very low. Courts are starting to get back up and running, so this number should go back up over time as cases that were ready to close get put on the docket. Here are the numbers by permanency type: reunifications were down 13%, adoptions were down 13%, and guardianships were flat.

Exits.

That’s it for now. The full dashboard lets you see the numbers all the way down to the county level.

Categories
What I'm Reading

A starter reading list on how child welfare policies harm Black people, families, and communities

The child welfare system has nothing to say about anti-Black state violence because the child removal system engages in it daily. Do the reading, and then let’s get to defunding the removal system, redirecting billions in resources directly to communities experiencing problems, and stripping child welfare decisions from bureaucrats and locating them properly back with families.

All quotes are from the books and articles they fall under. Feel free to suggest other readings in the comments. [Edit: As I get offline suggestions, I will add new things.]

Shattered Bonds: The Color of Child Welfare by Dorothy E. Roberts (2002):

The new politics of child welfare threatens to intensify state supervision of Black children. In the past several years, federal and state policy have shifted away from preserving families toward “freeing” children in foster care for adoption by terminating parental rights. Welfare reform, by throwing many families deeper into poverty, heightens the risk that some children will be removed from struggling families and placed in foster care. Black families, who are disproportionately poor, have been hit the hardest by this retraction of public assistance for needy children. And tougher treatment of juvenile offenders, imposed most harshly on African American youth, is increasing the numbers incarcerated in juvenile detention facilities and adult prisons. These political trends are shattering the bonds between poor Black children and their parents.

Prison, Foster Care, and the Systemic Punishment of Black Mothers by Dorothy E. Roberts (2012):

Foster care is more than a precursor to prison (for children), and prison is more than a precursor to foster care for children (of the incarcerated). The simultaneous buildup and operation of the prison and foster care systems rely on the punishment of black mothers, who suffer greatly from the systems’ intersection. This Article analyzes how both systems work together to punish black mothers in the service of preserving U.S. race, gender, and class inequality in a neoliberal age. The intersection of prison and foster care is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color. I investigate this particular systemic intersection to help elucidate how state mechanisms of surveillance and punishment work to penalize the most marginalized women in our society while blaming them for their own disadvantaged positions. This systemic intersection naturalizes social inequality and obscures the need for social change.

Toward the Abolition of the Foster System by Erin Miles Cloud (2019) [added 6/11/2020]

However, unlike the criminal legal system, the foster system is often excused from rigorous critique, in part because it is framed as helpful, supportive, and well-intentioned rather than punitive and retributive. Yet it is incumbent on society to interrogate all systems that disproportionately impact Black people, even those that supposedly protect us. As long-time activist Joyce McMillan says, “Do people really think that somehow the child welfare system targets Black people but targets them in a good way?” If we can agree that implicit bias and racism are at least part of why our society is more likely to shoot a Black person, call the police on Black people, or profile a Black body, why do we believe that there are more noble reasons for the disproportionate reporting of Black mothers and removal of Black children? The reality is that both the criminal legal and the foster systems are rooted in deeply violent historical narratives about Black bodies that do more to promote punishment than safety.

It is especially important to critique the foster system when the individuals it claims to help explicitly characterize it as harm. In my nine years of representing parents, I have almost never heard my clients use words like “support,” “assistance,” or “rehabilitation” to describe their experiences with the foster system. Mothers and activists like Dinah Ortiz-Adames consistently denounce it. Within my own family, I have experienced it break down rather than build up bonds. Even the children who are supposed to be served by this system decry its effectiveness.

Issue 1: Anti-Black Racism, Bio-Power, and Governmentality: Deconstructing the Suffering of Black Families Involved with Child Welfare by Doret Philips & Gordon Pon (2018):

In this article, we focus on how anti-Black racism and white supremacy are embodied or manifested in tangible or visible forms in the child welfare system. Given the often heart-wrenching narratives of suffering experienced by Black children and families involved with child welfare services, we ask the following two guiding questions: 1) how are colonialism, anti-Black racism and white supremacy embodied by the child welfare system? And, 2) how can the extreme suffering experienced by many Black families involved with the child welfare system be understood? This schema of embodiment is necessary to deconstruct how anti-Black racism, colonialism, and white supremacy are manifested in the day-to-day policies and practices of child welfare.

What Can the Child Welfare System Learn in the Wake of the Floyd Decision?: A Comparison of Stop-And-Frisk Policing and Child Welfare Investigations by Michelle Burrell (2019):

The child welfare system needs a public image shift. The image of parents who have been subjected to government intrusion needs to be shifted, from a public mindset that those who are receiving intervention from child protective officials need or deserve it, to a healthy criticism and interrogation of the intrusion and family separation based on allegations that have not been proven true. Recently, the prospect of removing children from their parents at the border was met with much public backlash, and mental health professionals across the country insisted that the harm being caused by such separation was inhumane and could have longterm irreparable effects. This is also true for children removed from their parents residing in the United States. The same irreparable harm applies to children separated in communities across the country.

Racial Bias in American Foster Care: The National Debate by Tanya A. Cooper (2013):

In disproportionately high numbers, Native American and African American children find themselves in the American foster care system. Empirical data establish that these children are removed from their families at greater rates than other races and stay in foster care longer, where they are often abused, neglected, and then severed from their families forever. For the past few decades, a vigorous debate has raged regarding whether these children are actually at greater risk for maltreatment if left at home or are just targets of discrimination in a hegemonic institution. Although the research previously showed no racial differences in child maltreatment rates, the latest Congressional study has found that African American and Native American children are at greater risk for child maltreatment than children of other races. Despite the caution with which researchers have interpreted the data and implicated future policies, scholars are asking whether, as a society, we are protecting or destroying children from these historically disempowered races. Foster care laws offer little practical guidance because the overarching legal standards are too vague or not consistently applied.

Systems thinking, however, provides one useful framework for uncovering points in the foster care system where unintended bias manifests and potential leverage points to exert pressure and effect change. A systems thinking approach also reveals that the foster care system’s primary motivation is simply perpetuating itself; accordingly, to achieve meaningful reform, public policy makers in the U.S. must closely examine this billion-dollar, publicly-funded bureaucracy and the racial disparities it routinely fosters.

African American perspectives on racial disparities in child removals by Effrosyni D. Kokaliari, Ann W. Roy, and Joyce Taylor (2019):

African American children are overrepresented in foster care at twice to three times the rate of white children. Scholars argue that racism and oppression underlie disproportionality (Križ & Skivenes, 2011).

This study explored disproportionality as seen through the eyes of African American parents in the child welfare system. The aim was to understand why African American families are over-represented in child custody statistics and to improve family and parenting support for African American communities.

Who am I? Who do you think I am? Stability of racial/ethnic self-identification among youth in foster care and concordance with agency categorization by Jessica Schmidt et al. (2015):

While it has been well documented that racial and ethnic disparities exist for children of color in child welfare, the accuracy of the race and ethnicity information collected by agencies has not been examined, nor has the concordance of this information with youth self-report. This article addresses a major gap in the literature by examining: 1) the racial and ethnic self-identification of youth in foster care, and the rate of agreement with child welfare and school categorizations; 2) the level of concordance between different agencies (school and child welfare); and 3) the stability of racial and ethnic self-identification among youth in foster care over time. Results reveal that almost 1 in 5 youth change their racial identification over a one-year period, high rates of discordance exist between the youth self-report of Native American, Hispanic and multiracial youth and how agencies categorize them, and a greater tendency for the child welfare system to classify a youth as White, as compared to school and youth themselves. Information from the study could be used to guide agencies towards a more youth-centered and flexible approach in regards to identifying, reporting and affirming youth’s evolving racial and ethnic identity.

Colorblind Must Not Mean Blind to the Realities Facing Black Children by Zanita Fenton (2006):

The interaction of state agencies and administrative bodies, especially those of the justice system (including police, prosecutors, and judges) with communities of color is a major factor that contributes to a dynamic that is central to understanding the pervasiveness of institutional racism. People of color have a general distrust of the justice system that is well founded in history. This foundation includes both legal and extra-legal persecution of Black males, an entire era of extrajudicial lynching, the more recent documentation of racial profiling, and police brutality against people of color. The disproportionate numbers of Black children in foster care easily leads one to believe there are biases operating in this system as well. Thus, there is a real reticence in inviting state involvement of any kind into the private and family lives of people within the Black community.

However Kindly Intentioned: Structural Racism and Volunteer CASA Programs by Amy Mulzer & Tara Urs (2016):

Although CASA programs are a relatively new development, emerging as an experiment of one judge in Seattle in the 1980s they are part of the larger historical story of child welfare. The demographic make-up of CASA programs—mostly middle-class white women over the age of 30—easily recalls the women who, after the Civil War, played the primary role in establishing the modern child welfare system. The ability of white women to speak for the best interests of poor children of color, to advocate for their removal from their families, and to receive deference and praise from legal systems, comes to our modern legal system with
deep roots. Understanding the role of race, gender, and power in forming the structure of the child welfare system explains in part why our legal system so comfortably tolerates a volunteer advocate whose role, in any other context, would not survive even a halfhearted due process challenge. And a full picture of the racist underpinnings of the modern child welfare system helps develop a fuller view of CASA programs.

Categories
Charts & Graphs

The April Data Is Out

We are finally starting to see what impact a nationwide quarantine will have on the foster care system. DCF handled 18,894 intakes in April, which was the lowest number in at least a decade. You could call that 40% lower than last year, or you could say that it’s 26% lower than expected, given that the numbers have been on a downward trend anyway. Either way, as you can see in the full dashboard, we’re beyond hurricane numbers, which typically give a month of lower intakes and then a return to normal. We are instead moving into something unprecedented: what happens if the foster care system doesn’t get new kids?

Ins and outs

For context to the numbers below, I want to give an analogy. The foster care system is a pipeline. Kids come in through the front and leave out the back. Governmental policies, more than anything else, determine the rates at which kids enter and exit. Over the decades, various federal and state administrations have prioritized removals, adoptions, reunifications, in-home services, licensed placements, family placements, and a slew of other policies that had the primary effect of changing the rate of kids coming in and the rate of kids going out.

The middle of the system is like a firehose. If you push water into the hose faster than it can exit, then your hose will expand and eventually burst. If you don’t keep enough pressure in the hose, the water will sit and become stagnant. Pressure comes from pumps and valves and other mechanisms that keep things moving.

Putting that water hose in child welfare terms, the policies around permanency timelines, judicial review, and funding limitations are designed to keep kids moving through the system. The policies around placements are meant to provide enough flexibility that the system can expand and contract without suffering serious shocks.

The most significant expansions and contractions in systems have largely been a result of intentional governmental policies. Since the acculturation of Americans to mandatory child abuse reporting from the 1960s through the 1990s, there has been a steady stream of reports, but not always a consistent level of governmental response. People have built careers, contracts, and budgets around handling a certain number of cases or children per month. Foster parents make work decisions based on the board rate, and programs hire staff on the reasonable assumption that every child who leaves will be replaced by a new one.

A lot of discussions have centered on the question of whether kids will be left in unsafe homes due to the pandemic. I think that’s a valid question. We don’t know whether those 26% of calls would have resulted in removals or not. We don’t even have a good baseline, because we don’t know how the pandemic will change the rates and nature of child maltreatment. We have reason to believe financial insecurity raises the risk of abuse and neglect, but we also know that income inequality and racial disparities impact the numbers by targeting certain families for scrutiny. We have no idea what happens when everyone goes through social and financial trauma at the same time.

The pandemic also raises a second question of what happens to the system if people don’t call cases in and that steady stream of kids suddenly dries up. Will investigators start removing children on facts that would have otherwise gotten a pass? Will the system hold onto existing children longer to minimize the time that beds stay empty? Will programs close or change their focus to take in different kids? Will foster parents not take one child because they had built their home’s budget around two or they now have their own families to look after? Will children who had been bounced around before suddenly find stability when there is no other child waiting to take their place.?

We have never in modern history had a prolonged supply-side shock to the child welfare system. How it responds will tell us a lot about how it works.

Here are the numbers for Florida.

Intakes were down 26.5% from the expected rate. You can see that the March numbers have been adjusted up to -4% because they don’t look so low compared to the new trend. The numbers were down in every region of the state.

Verifications were normal, maybe even a little up (+1%). They’ve been going down for a very long time. That dip in December 2019 predates any serious talk of pandemics. I have no explanation for that. Verifications follow this pattern everywhere except the Southern and Northeast Regions, where they were flat.

Removals were down 19%. There’s usually a two-month lag between an intake and a removal. These investigations would have happened during the pandemic, but the calls likely came in right before it. We are still seeing hurricane levels here. Removals for physical abuse (-30%), inadequate housing (-11%), inadequate supervision (-18%), and sexual abuse (-14%) were all significantly down. Drug abuse (-4%) and domestic violence (-6%) removals were low but normal.

Removals per 100 intakes were normal (-2%). Again, these removals are based on intakes that came in right before the lockdown. We will be watching this number over the next months to see what happens.

Exits were low-normal (-5%). This will also be interesting to watch.

Reunifications were normal (-1%). But, you can see that drop-off getting ready to happen. If that line jumps back up next month, we’re continuing our normal downward trend. If it falls off even more, we have something new happening.

Guardianships may be back to normal (-0.4%). You can see that guardianships took a huge hit in March, but hopped back up in April. Again, that is either part of the old decrease or it’s a new normal. Only time will tell.

Adoptions recovered (+3%). I suspected that judges would handle the adoptions that got postponed, and that seems to be what happened. Those cases were already ready, so it’s easy to just set the one final hearing. We do not yet know how the pandemic will affect the permanency timelines of cases that come in now.

The full dashboard is available here. You can check the numbers for your region, CBC, circuit, or county. You can also see the breakdown of how removals are different for different maltreatment types. I hope you’re doing well in these strange times.

Categories
Case Law Updates

No qualified immunity for baseless investigations & safety plans in the Sixth Circuit

When you’re being investigated for a crime, you have rights. You have the right to remain silent, and the right against unreasonable search and seizure of your property. If you are arrested, you have the right to an attorney, a trial where you can confront the witnesses against you, and afterwards the right to an appeal. We value these rights because we know from centuries of experience they are necessary to limit the abuse of state power, even if they are often insufficient when needed most.

If you’re investigated for child abuse, however, your rights are far less clear. You typically do not have the right to remain silent; you may never find out the identity of the person who called in the initial abuse report against you; and your children, home, and person can be searched based on that anonymous report with no clear way of challenging the search in the moment, and no way to limit the use of anything found later if the original search was unreasonable. You are not arrested at the end of a child abuse investigation, but your children can be. We call it removal, but it’s state custody just the same. And your failure to cooperate can lead to your children’s removal all by itself. Florida Statutes include in the definition of “harm” to a child when a parent:

Makes the child unavailable for the purpose of impeding or avoiding a protective investigation unless the court determines that the parent, legal custodian, or caregiver was fleeing from a situation involving domestic violence.

§ 39.01, Fla. Stat. Ann.

Courts and policymakers have become more aware of these dynamics and their constitutional implications. An upcoming article by Josh Gupta-Kagan at University of South Carolina School of Law adds a new dimension to this story: the use of voluntary safety planning in lieu of removal. Writes Gupta-Kagan:

While informal custody changes [through safety plans] can sometimes serve children’s and families’ interests by preventing state legal custody, this hidden foster care system raises multiple concerns, presciently raised in Supreme Court dicta in 1979. State agencies infringe on parents’ and children’s fundamental right to family integrity with few meaningful due process checks. Agencies avoid legal requirements to make reasonable efforts to reunify parents and children, licensing requirements intended to ensure that kinship placements are safe, and requirements to pay foster care maintenance payments to kinship caregivers.

America’s Hidden Foster Care System, upcoming in 72 Stanford Law Review 841 (2020).

To my knowledge, Florida DCF doesn’t publish stats on how many families are under safety plans. We can get a rough estimate by comparing the investigation numbers to the removal numbers. From February 2019 to February 2020, Florida DCF received 359,329 intakes. Of those, 247,406 were accepted for investigation (69%). Of those, 21,420 investigations (9%) resulted in verification for at least one child in the investigation. There were about 36,589 kids in those verified investigations, but only 15,422 children (42%) were actually removed.

So what happened to the 21,000 kids who were verified maltreated but not removed that year? I would guess, for many of them, safety plans. Done cooperatively with the parents, they can help support a family through difficult times. Done coercively, they can separate a family indefinitely without any meaningful recourse. That brings us to the case.

Holly Schulkers ate some chips

This case begins in February 2017, when Holly Schulkers of Kentucky ate some chips and went to the hospital for scheduled induced labor. It ends with her being coerced into a safety plan that required supervised contact with her children for months, she alleges, with no factual or legal basis whatsoever. The story in between is the worst form of standard child welfare investigation procedure.

Here’s a little of that in-between. Holly tested “presumptively positive” for opioids, but said she had taken some of her daughter’s prescription cough medication and had eaten poppy seed chips — specifically, according to a news story on the case, Everything Bagel chips. The hospital never did a confirmatory test, but let her breastfeed and noted no problems in her care of the baby. They did, however, order an umbilical cord test just in case and called in the social worker. The social worker notified child welfare, and the baby stayed in the hospital an extra 72 hours to watch for signs of withdrawal. Apparently none came.

Both a second urine test and the umbilical cord test would eventually come back negative. The child welfare people would know that. But still, they insisted on a safety plan: Holly Schulkers was to have no unsupervised contact with any child, and if she violated that restriction then all of her children would be removed and the case would be brought to court. Note the order there — first removed, then reviewed.

The Schulkers hired an attorney who advised Holly to take a hair follicle test. It was also negative. The attorney advised child welfare that the Schulkers could not be held to a safety plan with no factual basis. Child welfare, meanwhile, went to the older Schulkers children’s school and interviewed them alone in a room, resulting in them coming home scared that their mother would be arrested and they would be taken to foster care.

There are lots of other details in the opinion, such as a supervisor calling Holly to accuse her of heroin usage, which she denied; a nurse stating that Holly showed her the bag of chips; and a supervisor telling the investigator to release the Schulkers from the safety plan, but the investigator never doing so. The result was a two-month safety planned separation from her children. And a lawsuit.

Holly Schulkers sued the social workers

It is more accurate to say that the entire Schulkers family, kids included, sued the social workers. If the facts above seem very heavily against the child welfare professionals, that’s for a reason. Prior to taking the case to trial, the defendants moved for dismissal and summary judgment. In a dismissal, the court assumes that all the pleaded facts are true. In a summary judgment, the court takes all conflicting facts in whatever light is most favorable to the other party (the Schulkers in this case). If both motions are denied, then the case goes to trial. More often, though, the case goes to settlement. To sum up the assumed-true facts:

(1) The hospital staff believed the pre-delivery test of Holly’s urine was a false positive and were permitting Holly to continue to breastfeed the baby;

(2) Holly’s second confirmatory urine test results were negative; and

(3) the results of the umbilical cord testing were also negative.

Therefore, the court notes, “Plaintiffs allege that Defendants did not have any plausible suspicion that the Schulkers’ children were subjected to abuse or neglect at the time they conducted the interviews.” This isn’t the case of an investigation based on an anonymous source or flimsy evidence. This is a case about an investigation based on no evidence at all after the doctors determined the drug tests were negative. The question is whether state actors who engage in baseless investigations can be forced to go to trial and defend their actions, or whether they are protected by the constitution from being sued in the first place.

The defendants’ arguments for summary judgment were not particularly interesting. The decision notes a few times that the defendants kept inviting the court to view the facts in the light most favorable to them, which is not how summary judgment works. There was clearly a dispute about the evidence, and disputes about evidence go to trial.

The motion to dismiss, though, would mean no trial at all. State agents are cloaked in sovereign immunity, which significantly limits their ability to be sued for mundane, everyday governmental mishaps. To permit a lawsuit, the courts must consider whether the state agent violated the person’s constitutional rights and whether the right that was violated was “clearly established” in the law. The state officials have to be on notice that what they’re doing is a constitutional violation. That usually means some prior case has already ruled on similar facts or legal principles. That also means you hope that your case isn’t the first.

But this one was. Surprise.

The Sixth Circuit ruled

The court started by acknowledging that the prior case law in the Sixth Circuit wasn’t clear on the question of what basis is required for children to be detained and questioned by child welfare professionals. The Supreme Court, however, has given the circuit courts discretion to address the constitutional question in the first instance when necessary to “promote the development of constitutional precedent,” and “promote clarity in the legal standards for official conduct, to the benefit of both the officers and the general public.” That’s what the court did.

Interviewing kids in school

First, the court found that the children were clearly “seized” as the term is understood under the Fourth Amendment. They were in a closed room, alone with a government official, and not free to leave. The social workers did not try to argue this point. That seems wise, given their age, but other courts around the country have not been as sure about whether a child is seized if questioned while at school, where they are already, in a way, seized from their parents’ custody by the state. (It seems like sitting in a classroom for social studies and being held in the principal’s office for a custodial interrogation are not the same thing, but I’m not a federal judge.)

The court then reviewed a few competing legal standards for whether a seizure for questioning is reasonable — the same type of analysis that goes into probable cause and stop-and-frisk cases — and found that none of the standards would render the facts here ok. In legal speak, once the state knew that the drug tests all were negative, it “did not have any significant interest in interviewing the children.” At the very least, a social worker “must have reasonable suspicion of child abuse before conducting an in-school interview without a warrant or consent.”

In the Eleventh Circuit, which includes Florida, a somewhat similar situation to the Schulkers’ occured in Loftus v. Clark-Moore. In that 2012 case a father filed a private petition for dependency against the mother and then did not like the onslaught of investigation by DCF that his petition invited. He sued the state, alleging, among other things, that the questioning of his children at school without his consent was a violation of the Fourth Amendment. The Eleventh Circuit held that there was no clearly defined right against the questioning of children at school. In the Eleventh Circuit “a state official may seize a student at a school so long as the seizure is ‘justified at its inception’ and is ‘reasonably related in scope to the circumstances which justified interference in the first place.'” For the Loftus father, it was justified by his own dependency petition.

A jury will have to determine whether the social workers who questioned the Schulkers actually had reasonable suspicion at the time they interviewed the kids. The real facts are typically much messier than the assumed true ones. And this doesn’t mean that investigators can’t question children — it just means they need reasonable suspicion, parental consent, or a court order. That’s really not that much to ask the state to comply with prior to locking children in a room and grilling them about their parents. (See Shanta Trivedi’s The Harm of Child Removal.)

Involuntary safety plans

The Schulkers also brought suit for violation of their Fourteenth Amendment right to parent their children. They argued two violations here: one was substantive, one was procedural. Both were accepted by the court.

The substantive right was easy. Parents have a right to parent their children, and the state has a duty to protect those children. The balance of parents’ rights gives way when the state has reason to believe the children are maltreated. The whole child welfare system lives in this balance. But in this case, at least under the assumed facts, the state had no reason to believe the children were maltreated at all. Under the assumed facts, the hospital called the case in and later determined the drug test was a false positive. The state’s interest in the Schulkers family ended there.

The state tried to argue that a safety plan for supervised contact during the investigation did not cause a deprivation of rights because it was not a removal or termination. But the court didn’t bite. An order from a state agency to have only supervised contact with your own kids for an indefinite period of time is an infringement on your right to freely parent. If done inappropriately, that can be unconstitutional.

The Eleventh Circuit has only issued one opinion related to parental rights and child welfare safety plans. In Maddox v. Stephens, out of Georgia, a medically fragile child was released by the hospital to a paternal grandmother who was trained to provide care. The mother was going to be trained but was booted from the hospital after an altercation. The case worker quickly drafted a safety plan for the child to remain with the grandmother while trying to figure out which county to file a deprivation petition in. The Eleventh Circuit held that the facts didn’t shock the conscious: first, because the state had no control over the hospital releasing the child; and second, because permitting someone who wasn’t trained to have custody would have been worse. The safety plan was actually based on safety. The case provides no guidance on how the court would rule on a safety plan entered with no factual basis.

Back to Kentucky, the arguments on procedural due process were next. The Schulkers argued that they did not voluntarily enter the safety plan because they did so only based on the threat that the children would be removed if they didn’t. That doesn’t sound wrong — warning you about the legal consequences of your actions is not a threat — but in this case it wasn’t true. The evidence, at least at this stage, was that the state had no intention of removing the children. A supervisor even told an investigator to release the family. So, why did the social workers require the safety plan? The Schulkers say to draw down federal dollars for the case.

Even more interesting is the argument that the Schulkers had no meaningful way to challenge the plan except to violate it and risk having their children put into foster care. That’s not due process. The family repeatedly requested for the safety plan to be dissolved and were repeatedly told no even after a supervisor approved releasing them. The defendants say the Schulkers could have filed a “service appeal,” but there is nothing in the record to indicate anyone ever told them that at the time and some evidence that an investigator gave them info on a different procedure that would not apply until after the children were deemed abused. The court did not rule on the constitutionality of the actual process — it ordered a trial to determine whether the family had a meaningful way to challenge the safety plan or not. The assumed true facts were that they did not.

And that’s the next step of this saga. Though the named parties here are the social workers, the real defendant is Kentucky. The parties might go to trial, but more likely they will settle the case for some reasonable amount of money and, hopefully, a commitment from the Commonwealth to update its procedures to formalize the process for safety plans. That might include automatic expiration dates, a chance for formal administrative or judicial review, and a clear statement of rights. It might also include a commitment to support policy change that would clarify the procedure for the temporary detention of children for questioning. Other states should probably look at their laws, too. Given the expansion of pre-removal safety plans, this lawsuit could very easily travel.

Categories
Case Law Updates

Man has rights to children terminated for being on Miami time

This one is stupid and should never have happened. A father was 51 minutes late to his TPR trial because he had car problems. He showed up right after the judge entered a default against him. He moved to set the default aside, and it was denied. He appealed and apparently nobody conceded error because it took a written opinion from the Fourth DCA to fix it.

I note that the appellate case number is a 2019 case. It is April 2020 for one more day. They could have conducted a TPR trial against him every week since then. The only time you hold on to a default that tightly is when you know you’re going to lose. What a colossal waste of time.

M.B., v. Department of Children & Families, 4D19-3631, 2020 WL 2060285 (Fla. 4th DCA Apr. 29, 2020).

Categories
Case Law Updates

Third DCA bans preemptive surrenders

The Third District Court of Appeal in Florida issued a surprising opinion last week in D.M. v. Department of Children & Families. The case involved a child born in 2007. The Mother signed a surrender of her rights in 2010, but no TPR was ever entered. The child was eventually placed back with her. Ten years later, she refused to pick the child up after a Baker Act, and he was sheltered once again.

A year later, DCF filed a petition to terminate both parents’ rights. It alleged the grounds of abandonment, failure to comply with the case plan, irrespective of services, 12-of-22 months, and three-or-more removals. On the second day of trial, the child’s mother executed another surrender. The judge conducted a colloquy and accepted the surrender, over the child’s objection that it was not in the child’s best interest to terminate her rights. The trial continued and after hearing evidence the judge terminated both parents’ rights.

Let’s acknowledge for a second the value of having an attorney for the child here. Without the child being represented, the judge would not have heard the full weight of the child’s position that the mother’s rights not be terminated. The Department, guardian ad litem, and the mother were all in agreement. The person who had to live with the decision the longest was not, and their attorney translated that position into legal action. Sure, in the end the judge granted the TPR, but after a much more deliberative review than would have occurred if the child had not had counsel. The appeal is not about that, though. The court acknowledged in a footnote that the child had an interest in family integrity and his due process rights were protected through his attorney and the ample process involved.

The opinion is actually about the mother’s surrender. The Third District held that the final judgment on the mother’s termination must make “findings of fact specifying the act or acts causing the termination of parental rights.” The language is right from the Juvenile Rules on consents in TPR cases. Those findings must go beyond the parent’s consent and justify the underlying facts that support the termination of their parental rights. The court likened it to a criminal plea, which must be made on some factual basis of an actual crime. It remanded back to the trial court to make those findings, likely by stipulation from the parties if everyone agrees (but it appears the child does not).

The opinion is explicitly based on a Fifth District opinion from 2003. See C.B. v. B.C., 851 So.2d. 847 (2003). In that case, the mother filed a private TPR petition against the imprisoned father, who was alleged to have committed sexual abuse. To avoid the egregious details of the petition in the final judgment, the father executed a surrender. The trial judge ordered the mother to draft a final judgment based solely on the father’s surrender. The Fifth District held that the Juvenile Rules require, when a parent consents to a TPR, that the underlying facts be incorporated.

The holding doesn’t sound crazy, until you think through the implications. Many parents surrender early in a case, long before DCF files a petition to terminate their rights. In Northeast Florida, for example, a certain judge has been known to talk parents into surrendering at the shelter hearing. D.M. seems to hold that you cannot do that. If there is no other ground for a TPR, then there can be no independent factual basis to support a surrender. There won’t be an independent basis in most cases until a parent has at least attempted a case plan, adding months to a case that nobody benefits from.

I think the Third’s opinion gets the law wrong because the Fifth got it wrong. Under Chapter 39 and the Juvenile Rules, there are two distinct forms of legal consent at play here: (1) a parent’s surrender of the child to the Department and consent for subsequent adoption, and (2) a parent’s consent to a petition to terminate their parental rights. They are not the same thing.

A surrender to the Department is an independent ground for a TPR. If the surrender is executed prior to the filing of a TPR, then the only ground in the petition is likely, but not necessarily, the surrender itself. The parent’s surrender waives all future notice and therefore the TPR goes through on the basis of the surrender alone. In these scenarios, the consent is given to DCF for the adoption, but the parent is never even noticed for an arraignment at which to take a plea.

The second type of consent is the legal plea that occurs after the filing of a petition against a parent. This consent must be a response to a legally valid petition. In dependency law, the options are deny, consent, or admit. Just as you cannot plea to a crime with no factual basis, you cannot consent to a TPR petition that is not legally sufficient. If you want to get TPR’d that badly, you can surrender. They are not the same thing. The court’s ruling that surrender is equivalent to consent and must be accompanied by other grounds effectively nullifies the provision that surrenders are independent grounds for TPR.

And that’s where the Fifth District got it wrong back in 2003. The father in C.B. did not consent to the petition. In fact, he surrendered to create a new ground for TPR because he specifically disagreed with the allegations in the original petition. The criminal analogy is not that he would be consenting to something without a factual basis — instead, he was accused of one crime, came to court, punched the bailiff, and then asked for his first charge to be dismissed because he’s going to jail anyway.

In more legal terms, the father engaged in a form of unilateral stipulation. It’s a very common trial tactic: you stipulate to a witness’s testimony or an expert credentials because you believe the effect of their testimony will hurt far worse than the substance of their testimony. But this was unilateral stipulation to the extreme: a petitioner in a TPR case only needs to prove one ground, but a petitioner still has the right to prove their whole case.

In a criminal case you cannot plead to a misdemeanor to preclude the state from going forward with felony charges. In a civil case you cannot admit negligence to preclude a plaintiff from going forward with their intentional tort claims. The legal claims, if proven, have different legal effects. And the same is true in dependency: an involuntary termination can be automatic grounds for a future case involving a different child. A voluntary surrender cannot.

So, the trial court in C.B. erred by dismissing the mother’s other grounds once the father strategically created a new one. The appellate court in C.B. then erred by looking to the consent language for a remedy (“let’s just make the final judgment list all the bad stuff”), when the appropriate resolution would be a ruling on whether a court can halt a trial once one ground is proven (“let’s still give her a chance to prove the bad stuff”). Because the father in C.B. didn’t really consent, there could be no stipulated facts for the final judgment language. They were going to trial regardless.

Alternatively, the Fifth District could have considered whether a parent can surrender a child not to the Department and not for subsequent adoption. In C.B., the mother argued that she was standing “in the shoes” of DCF for the purposes of accepting the surrender, but her argument was backwards: the father couldn’t surrender because she’s not DCF whether she wanted to accept it or not. Maybe we don’t want parents to just be able to surrender their rights and walk away, child support being a right of the child and all. It is not surprising that C.B. has only been cited one other time in 17 years, and not even for the legal principles at play here.

So C.B. was wrong on the law, and D.M. was wrong for following it, but I’m not very upset about the result. I have never been a fan of preemptive surrenders by parents. The father in C.B. appears to have been gaming to prevent public record of a heinous act. (He had already managed to get a no contest plea in criminal court.) But preemptive surrenders most frequently happen on the worst day of a parent’s life. They are often a result of the Department inviting a parent to trade the surrender of one child in exchange for leniency on a case plan for another (or some future) child. These decisions are fraught with problems, and too frequently result in a child just getting orphaned into foster care with no real plan.

Admittedly, the Juvenile Rules do not make any of these distinctions very clear and in fact they seem to conflate pre-filing surrender and a plea of consent to a petition. The rules never align with the statutory language that the parent’s consent during surrender is to the child’s placement with DCF for adoption. That may be worth someone looking at more closely.

It’s worth noting that even on a surrender the court still has to find that the termination is in the child’s manifest best interests (a lengthy analysis of the child’s circumstances) and the least restrictive means to protect the child from harm (a legal analysis to determine whether the parents’ rights were properly protected). It sounds like the court did that here. The law allows preemptive surrenders whether I like them or not. Maybe that should change.

Categories
Charts & Graphs

What happened in March?

A lot of people have been asking, hypothesizing, and, frankly, guessing about what effect a global pandemic and quarantine coupled with unprecedented levels of governmental and community response will have on child welfare measures. Anyone who claims certainty right now is selling something. We really don’t know.

We do have a few new data points, however. Florida DCF released its dashboard numbers last week, and they show a reduction in intakes. It’s not nearly as large as I expected. You can get different numbers depending on how you count, so there’s plenty of room for salesmanship, but I would say anywhere from 10-17% down is defensible. A lot of other measures were affected way more. Many were not affected at all.

I created a dashboard to look at all of this. I made it for COVID-19 but you can also review other events in Florida child welfare history. Below are the things I noticed in the data.

Intakes were down

I’m going to use investigation intakes as the measure for this discussion, mostly because DCF has a dashboard on those. Intakes, as far as I understand DCF’s documentation, are completed calls to the hotline that are either accepted for investigation or screened out. I don’t think it includes abandoned calls.

First, let’s look at the actual numbers. Did the floor fall out of intakes in March? Not at all. They were in the middle of the decade’s high and low. Back in January 2010, we got 8,000 fewer calls per month and removed a lot more kids.

Florida statewide investigation intakes. Data source: DCF Dashboards.

It’s hard to read charts with all those ups and downs. To smooth things out, let’s take the year-over-year change in March of each year instead. What you see below is that intakes were down about 10% from March 2019 to March 2020. But, they were also down 8% from March 2018 to March 2019 after being up for five prior years. You could call that a 2-point or a 25% decrease from 8 to 10, but it doesn’t really look like that much to me. It could be part of an ongoing trend that started when Governor DeSantis took office. Again, the number was somewhere in the middle of the decade’s high and low.

Florida abuse investigation intakes for March of each year above, with percent change from previous year below.

Maybe March is just weird. Maybe the previous administration did a huge child abuse awareness campaign in March that increased calls. The next chart looks at all the months at once. It’s a little spaghetti-esque, but you can see the general trends: January and February were pretty normal, but March is down over the last two years. It’s not lower than the summer months, but it’s definitely been dropping in the last two years.

Florida abuse intakes year to year with one line per month.

We need a way to compare months to each other over different years. We can do that using seasonal decomposition. I’ve used this before and always get a lot of questions about it. So, as an example, if you are in the business of selling sunscreen, your sales will go up and down during the year because of the weather (these are called “seasonal factors”). Those seasonal factors are pretty stable over time — summer sales will be more than winter sales every single year. But your sales also change over time due to other forces like the economy or how people feel about tanning (“trends”). Those effects are not the same year to year. To really determine if you had a good month in sales compared to the past, you would want to remove the seasonal effects and the trends so that you’re comparing what is left over (sometimes called the “noise” or “error” value). So let’s do that for abuse calls.

Below are the seasonal factors for statewide intakes. These are the predictable ups and downs you see year to year. The colors represent the seasons to make it prettier. You can see that abuse investigation intakes go up about 12% in April, then down about 10-11% in the summer. That corresponds to those very regular ups and down in the first chart above. There are still around 20,000 abuse calls per month in the Summer — it’s just 22% fewer than in the Spring. Just like in the sunscreen example, we will adjust the numbers to account for these normal ups and downs that are caused by the seasons.

Florida abuse intakes seasonal factors for 2010-2020.

Next we have to filter out the bigger trends by taking a moving average. (I’m using a +/- 6 month median window here.) You can see that abuse calls have remained mostly flat. There was a slight rise at the beginning of 2016 and then again in June 2017. Since January 2019 (a new administration), we’ve seen a slightly decrease. The ends of trend lines are always bumpy, but especially when you have a giant worldwide pandemic sitting right off the edge. As we get more data, this line will get smoother.

Florida abuse intakes trend line. Uses a 13-month moving median.

Now for the magic: if you take the original DCF values and remove both the seasonal effects and the trend line, you get a flat line with easily comparable ups and downs. I turned it into a bar chart to make it easier to read below. I also added two horizontal lines to mark four standard deviations from the mean. (Thanks to anomaly.io for sharing their work.) Anything higher or lower than that is probably an anomaly.

So, what does the graph show? Intakes were probably about 16% below the decade’s seasonal average in March. And, that was very, very rare.

Seasonal decomposition for Florida investigation intakes. The horizontal lines in the lower chart indicate 4 standard deviations from the mean. Anything crossing those lines is likely an anomaly.

There is one other similar dip in intakes. It occured in September 2017 during Hurricane Irma when intakes were 15% lower than expected. There are two smaller dips in June 2018 and June 2019 that I have no explanation for. The highest spike in the other direction was March 2011 (+13%) right after the Barahona case hit the news.

What does all this tell us? That intake numbers dropped in March: 10% over last year or 16% over a typical March in the last decade. Those are hurricane level numbers.

What doesn’t it tell us? Whether those lost calls would have resulted in removals or whether they were low-risk calls that easily got pushed aside when other things became more pressing. There were still 25,000 intakes done. Investigations take about 60 days, so we won’t know more until later. Even then the picture will be murky because we won’t know what wasn’t called in or how to account for a workforce that can’t do in-home inspections except in urgent cases.

What else don’t we know? We don’t know what April will look like. I’ve heard people predict that cases will go up, which makes some intuitive sense. But the data does not show that actually happens after hurricanes, and we don’t know whether this downturn will be a passing moment or a new normal that changes the numbers forever.

What else changed?

Intakes have been getting all the press, but here are some other statewide child welfare measures that are also worth looking at.

Verifications jumped up 12%. You don’t even need math — you can see this in the DCF data. Verifications had been higher than expected for a couple of months, but this may by the March 2020 numbers making the rest of 2020 look stronger than is real. For comparison, verifications went down significantly (-12%) the month of Hurricane Irma. There was no rebound, which is slight evidence that maybe they weren’t that bad.

Seasonal decomposition for Florida investigation verifications.

Removals were pretty normal. They were down, but not by much more than a ton of other months that didn’t have a pandemic in them. For comparison, removals were down 20% during Hurricane Irma and never really bounced back after that. Again, that might be evidence that those were lower-risk removals. The only extraordinary spike in removals was in March 2011 after the Barahona case. I wonder if any of those were removals from adoptive parents?

Seasonal decomposition for Florida removals.

Exits from care were low but normal. Exits were down 11%. For Hurricane Irma, exits went down 20% and rebounded over 4 months.

Seasonal decomposition for Florida exits from care.

Reunifications were very normal. It’s interesting that there were lots of times in the last decade when reunifications dipped low, but this wasn’t one of them. I can’t explain that spike in 2010.

Seasonal decomposition for Florida reunifications.

Guardianships were down 34%. You can see this right in the data, too. During Hurricane Irma, guardianships went down 12%, so this really is a notable decline. That other giant dip is in February 2015, after Phoebe Jonchuck was found dead.

Seasonal decomposition for Florida exits to guardianship.

Adoptions were normal, maybe… I really like this one, because it shows how tricky this stuff is. First, adoptions are very seasonal — tons get done in June and November of each year. Also, when hurricanes and other events have suppressed adoptions in the past, they have shown large spikes a few months later to make up for the backlog.

We expect February to be 9.4% down from the year average. So it is unusual to see in February 2020 there was a giant spike (+64%) in adoptions before the event we expect to dampen the numbers. The increase was driven largely by the Central Region cranking out a lot of adoptions in February. If they saw a lockdown coming and rushed to finish pending adoptions, then that is an effect. If the spike happened because a few large sibling groups get adopted, then that is a coronavirus coincidence. Notice that March 2020 is registering in the numbers as normal, but looks very low. I expect these numbers to level out when we get a few more months of data to determine the wider trends.

Seasonal decomposition for Florida exits to adoption.

Everything else? The tableau dashboard lets you filter by region, CBC, circuit, or county. In addition to the measures above, it also lets you look at major maltreatment categories like substance abuse, domestic violence, physical abuse, sexual abuse, and inadequate supervision. I’ll update it next month when the new numbers come out.

Until then, have fun and stay safe!

Categories
Uncategorized

Miami Courts: Closed

The 11th Judicial Circuit of Florida issued an order this afternoon shutting things down.

https://www.jud11.flcourts.org/Court-Announcements/ArtMID/584/ArticleID/3442/COVID-19-Advisory-8-Administrative-Order-20-03-Cancels-All-Non-Emergency-Proceedings-Except-Mission-Critical-Court-Matters-for-March-17-27-2020

_______________________________

ADMINISTRATIVE ORDER 20-03 CANCELS ALL NON-EMERGENCY PROCEEDINGS

EXCEPT MISSION-CRITICAL COURT MATTERS FOR MARCH 17-27, 2020

The Honorable Bertila Soto, Chief Judge of the Miami-Dade Courts, today issued Administrative Order 20-03, cancelling all non-emergency court proceedings, except mission-critical court matters, for the period from Tuesday, March 17th, through Friday, March 27th.

Also pursuant to Administrative Order 20-03, all time limits and deadlines set by judicial order and/or authorized by rule and statute applicable to: civil (circuit and county), family, domestic violence, probate, small claims, and appellate proceedings are suspended from close of business Friday, March 13, through close of business on Monday, March 30.

The time period may be extended based on guidance from health and government authorities and in coordination with the Florida Supreme Court. Future updates will be provided as needed.

All court employees who have the capability to work remotely from home will do so in coordination with their supervisors.

Pursuant to Administrative Orders 20-02 and 20-02 A1, issued Monday, March 16th, all court facilities remain closed to the public except for mission-critical court matters during the time period of March 17-27, 2020.

Mission-critical court matters include:

  • First appearances (bond hearings)
  • Arraignment hearings for in-custody defendants, but defendants do not need to appear in court. If there is a written plea, the case will be set for trial. If there is no written plea, the arraignment hearing will be reset.
  • Baker Act & Marchman Act (substance abuse) hearings
  • Juvenile shelter and detention hearings
  • Access to Clerk’s Office intake windows for filing of emergency petitions for temporary injunctions (domestic violence, and dating, stalking, repeat and sexual violence, and risk protection orders)
    Note: All hearings on final injunctions pursuant to F.S. 741, 784 and 790 will be canceled and re-scheduled to a future date. All temporary injunctions will be extended and will remain in full force and effect until the next hearing date.
  • Emergency hearings set by presiding Judge
  • Trials that were underway before the Florida Supreme Court issued Administrative Order 20-13 on March 13th will continue.

All non-emergency court proceedings, including but not limited to: special set hearings, trials, and all calendars, including but not limited to, motions, pretrial motions, foreclosures, uncontested divorces and case management conferences, will be cancelled and re-scheduled to a future date.

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Categories
Charts & Graphs

54 pages about 49 kids: The children who refused placement in Hillsborough County

Back in August, an ad hoc committee of the juvenile justice board in Hillsborough issued a lengthy report on the state of placement instability in their circuit. The report diagnosed the phenomenon of children refusing placement as a major source of that instability.

The committee concluded that “children under the care and custody of Florida’s child welfare system should not have the ability to refuse temporary placements that have been determined to be in their best interest by the parties charged with their care.” The committee recommended a new law to expand the “children in need of services” statute to permit foster children to be placed into staff secure facilities (i.e., 24-hour supervision) if they refused placement, were chronic runners, didn’t go to school, or didn’t comply with the treatment recommended. They could then be placed in a physically secure (i.e., lock-down) facility if they didn’t comply with the staff secure program.

The proposal initially struck me as well intended but misinformed. Foster kids can already be placed in staff secure facilities by DCF without a court order. Any group home can be converted to staff secure by upping the staffing ratio and making sure someone is awake at all times in the home. You don’t need a new legal regime for that — you need money.

Second, foster kids can be placed in physically secure programs through a DJJ commitment, a SIPP placement, a Marchman Act placement, or a Baker Act. All of those placements are extremely expensive and have a limited number of beds. The gatekeepers for those programs have to do constant triage to limit use of the programs to the neediest children. If you want to increase access to secure settings with intensive treatment, it will take money to expand the placement array. Once you have a sufficient array, you can start working with the less extreme cases described by the committee.

The report correctly notes that Florida’s foster care placement system is reactionary. It recommends data collection and analysis to create predictive models for which children will have future placement challenges, because “indisputable data on risk factors is not available and would be beneficial to decision making.” If you know me or have read anything on this blog, you know that I couldn’t pass that challenge up.

It turns out that Hillsborough has been logging when children refuse placement in FSFN since 2017. (This should be required for all CBCs.) There were 49 kids in the most recent version of the public database that had ever refused placement. Me and my team of intrepid students reviewed the complete history of all 49 kids, then the history of their most common placements, and then the whole placement array in Hillsborough. What we learned filled over 150 pages. I have broken it into a main report and an addendum that gives a narrative of the placement history of all 49 children. (The addendum will come out soon — it’s over 100 pages.) This post is a summary.

What we found was consistent with existing research on placement instability in foster care. The refusal children were disproportionately non-white teens with significant time in group home settings; but there were children as young as seven who refused. For the most part they were well-known to the system: the median number of placements prior to refusal was 21 (31 in total), and nearly 70% of their placements prior to refusal (75% in total) ended because the provider requested the child be removed. Being ejected by providers after placement was the most pronounced feature of children who refused placement. Most of the children refused only one or two times; and many spent more time at the agency’s office because no appropriate placement could be found than they did because they refused.

What surprised us was that children were slightly more stable after refusing placement than they were before, at least temporarily. The refusal episodes seemed to elicit an agency response that children’s previous placement instability did not. Usually the added stability was from the agency obtaining therapeutic placements, but sometimes stability came from negative causes, as some kids ran away for extended periods of time or were arrested. In some cases, it appeared that the children refused with a specific placement in mind they wanted to be in.

Speaking of arrest, the committee was mostly composed of DJJ professionals, so it makes sense that they were focused heavily on that population. However, it turned out that the children who refused placements were not any more seriously involved in the delinquency system than other unstable kids in foster care. They did, however, appear to have higher levels of mental health needs.

And that’s where Hillsborough is particularly failing. Our review of the system as a whole found a placement array that routinely played hot potato with high-needs children, bouncing them around in circles often back to placement they were just kicked out of. When I first read the committee’s report, my thought was “you’re describing an STGC — just open one.” Hillsborough has no Specialized Therapeutic Group Care programs, and instead sends children across the state to therapeutic programs. Locally it relies on group homes that rarely keep children more than a month on average and enhanced rate foster homes that keep kids a median of 4 days per placement. The problem isn’t the law; the problem is the array.

Our review disagrees with the committee’s report in another way: instability was in fact highly predictable and often began long before a child refused placement. Existing research shows that a child with 4+ placements has a 70% chance of additional instability, and a child with 6+ daily maladaptive behaviors has a 25% increase in risk of disruption per additional behavior. By reviewing the placement histories we found 131 highly unstable children in Hillsborough since 2017, many of whom had more than 50 placements. Only 38 of them had ever refused a placement, though. Refusal and non-compliance are not appropriate triggers for intervention — instability is.

Where we agree with the committee is this: Hillsborough needs to regain control over its array and create a clear escalation process for children who are serially ejected from placements. This will take a significant effort to change the culture. The burden should not be on the children to accept a 22nd placement failure or risk civil commitment for disobedience. The burden should be on the providers to work with children to never get to that level of instability.

Our full report is linked here. The addendum containing the narratives for all 49 children will be released soon. I hope this is helpful to people on the ground in Hillsborough.

Here are the documents via our dropbox:

A special thanks to the good folks at Print Farm for putting together the report and the graphics.