In some states you can go golfing but you can’t visit your child in foster care

Introduction

In April, when nurses came for her 4-day-old baby, Ms. Smith clutched the girl tightly and sobbed. Two police officers stood outside Smith’s hospital room to watch over the newborn’s transfer to the child services department in Adams County, Colorado, which places infants and children in foster homes.

The agency took Smith’s baby after Smith, who is only being identified by her last name to protect her privacy, tested positive for methamphetamine. After being released from the hospital, the 19-year-old first-time mom walked to her home carrying an empty car seat.

During the past eight weeks, Smith has seen her baby only about a dozen times — over a video feed with spotty sound, mostly showing her daughter sleeping. During one viewing, when Smith heard her baby crying, she felt her shirt become wet with breast milk.

“I just want to see her to see that she’s okay,” Smith said. “It just hurts that I can’t hold her or kiss her or feed her, or when she starts to cry, comfort her.”

If not for the novel coronavirus, Smith would have had regular foster-care visits when she could hold her baby. But the county has restricted in-person visits in favor of virtual ones. In March and April, at least 23 states banned in-person parental visits for all, or almost all, foster-care cases to curb the spread of the virus, according to a Center for Public Integrity survey of all 50 states and the District of Columbia. Many states began to ease restrictions on visitation in late May and early June.

The troubling result from the ban on visitations is that parents and their children in foster care have missed out on visits that are critical not only for bonding but also for convincing caseworkers and judges that they are ready to take over custody. Smith has grown increasingly depressed because she cannot see her daughter and has missed some virtual visits, Smith’s mother said.

Some states have started reopening, but many continue to ban visitations. In Illinois visits that are supervised by social-service staff are still banned, even as hair salons, golf courses and churches reopen. 

Child welfare offices must balance the safety of workers, children and foster families. Advocates, however, say the bans — which apply to families regardless of their risk of exposure to the coronavirus — are in opposition to federal guidance and the advice of medical experts who have urged child welfare workers to make decisions on in-person visitations on a case-by-case basis. 

“The public health concerns are serious, and parents’ access to their children and ability to work towards reunification are also very grave, severe, and difficult to navigate,” said Tanya Gassenheimer, a staff attorney at Shriver Center on Poverty Law, a Chicago-based legal advocacy group.

Blanket suspensions

At least 11 states, including Alaska, Delaware, and Washington, as well as the District of Columbia, banned all in-person visits between parents and their children who are in foster care for more than a month this spring, without stating any exception in their policies, according to the Public Integrity survey. 

Another seven states restricted almost all visits with limited exceptions. Four banned all in-person supervised visits.

Most states that issued blanket bans have begun to ease restrictions or say that they will do so in the coming weeks. For families resuming visits, some have been separated from their children for nearly three months, which could hurt their chances to reunify. Many parents worry that states may suspend visits in the autumn if coronavirus cases increase.

Some states and counties allowed for in-person visits on a case-by-case basis. Lawyers, however, said it is practically impossible to arrange visits between biological parents and their children because caseworkers or foster parents might object to visits given the risk of infection. 

Child welfare officials argue that banning or limiting in-person visits is necessary to reduce the risk of exposing parents, children, workers and foster families to COVID-19. Many children in foster care are placed with older relatives or caregivers, who are more at risk of dying from the novel coronavirus. Families or group homes may house multiple foster children from different families, which also increases the risk of viral spread.

Trenee Parker, the director of Delaware’s Division of Family Services, said the agency’s decision to suspend visits for families was based on guidance from the state public health department. They are trying to encourage more frequent video visitation, she added. Some visits reopened on a limited scale at the beginning of June.

The New Mexico Supreme Court suspended in-person visits in March. Brian Blalock, the cabinet secretary for the state’s Children, Youth and Families Department, said he worked with the court on its decision and it was a difficult one. The department first urged caseworkers to find alternative ways to meet safely, for instance in public parks. 

In early April, however, the department sent a letter to parents notifying them that the state supreme court had suspended in-person visits. The agency can petition the courts on behalf of a parent for in-person visits — for instance in cases when separation from a parent could lead to the loss of a native language. As of April 24, the agency had secured in-person visits in 36 out of 675 cases. The state stopped tracking last month. In late May, the state allowed additional visits based on local COVID-19 conditions.

In March, the Children’s Bureau, the federal agency that oversees child welfare, asked lawyers and judges overseeing welfare cases not to issue orders banning all visitations.

Medical experts weighed in, as well. Dr . Rahul Gupta, the former public health commissioner for West Virginia and the chief medical officer for the March of Dimes, said some limitations on in-person visits are warranted depending on underlying health conditions, children’s ages and the risk of exposure. 

But he said he opposes outright bans because it can adversely affect the mental health of  parents and their children.

Gupta said if child welfare agencies don’t have the resources, such as face masks, to safely supervise visits or to transport parents to a meeting place, agencies must explain to parents why they cannot. 

“We cannot blanketly, without a full explanation, stop all of the legal rights of the parents in those situations because of a pandemic,” Gupta said. We shouldn’t “absolutely prohibit visitations when you can still get Taco Bell.”

California said in a letter to county welfare directors on March 21 that “it may not be prudent” to have in-person visits in some cases but recommended counties assess each case individually. For children under 3 years old, however, the state’s Department of Social Services, which oversees the child welfare system organized at the county level, recommended maintaining “face-to-face” visits to allow for “critical early bonds.”

Michigan allows in-person visitation in some cases, and it expedited reunification for 112 families, speeding up childrens’ return home when it was safe to do so.

A small window for bonding

After years of decline, the number of children in foster care began to rise in 2012, reaching more than 437,000 in 2018, according to the latest data published in 2019. The increase was driven largely by an escalation in parents abusing drugs. 

The federal government advises that a positive drug test should not be the sole factor in determining whether to remove a child. But Colorado is one of 18 states that classifies substance abuse during pregnancy as child abuse and newborns can be removed from their parents’ care if they test positive for drugs. 

So, under normal circumstances, Children and Family Services in Adams County likely still would have put Smith’s baby into foster care. Both she and her baby, whose name was withheld to protect her privacy, tested positive for methamphetamines. 

Abuse isn’t the primary reason children are removed from their parents. Around two-thirds of parents in the child welfare system have been accused of neglect, not abuse. The agencies’ goal is to provide parents support so their children can go home safely. Even for families that reunite, however, the time apart can spark depression, anger and mistrust. Child development experts say visitation is a crucial ingredient to help families maintain some semblance of normalcy and retain a bond with a child in preparation for a return home.

“Look at it from the child’s perspective: They’re traumatized by the separation,” said Josh Kagan-Gupta, a law professor at the University of South Carolina. “The goal and most common result of a foster care case is for them to reunify. We should make that as easy and positive and safe as possible.”

In some ways, Smith is a good candidate for reunification. The welfare investigation found her responsible for neglect but classified the severity as “minor.” She is working, with the help of her lawyer, to enter a program supporting teenage mothers. Smith said she passed recent drug tests and is not addicted to methamphetamines. She said she took the drug four times, twice during her pregnancy, when anemia and a thyroid problem during the pregnancy made her feel like she couldn’t get out of bed.

“Look at it from the child’s perspective: They’re traumatized by the separation.”

Josh Kagan-Gupta, a law professor at the University of South Carolina

It was an impulsive and selfish choice, said Smith, who has become increasingly depressed because of the separation from her baby.

But it’s not drug use that may set Smith on a path that makes it harder to reunite with her baby. It’s the lack of visitation. By the time the county allows in-person visitations again — which may be in the next few weeks as the state reopens  — Smith’s daughter may have bonded with someone else, a person whom Smith is not allowed to see during her virtual visits and can only send chat messages to. While not the sole factor in determining placement, attachment can be an element that is considered by the courts in reunification.

“Visitation is the thread of connection parents have with their children as they fight to be reunified. That’s how they can see their children, watch them grow, watch them develop,” said Gassenheimer at the Shriver Center on Poverty Law. 

The organization, which works on issues that disproportionately affect low-income individuals, sent a letter to the Illinois Department of Children and Family Services urging them to maintain in-person visits to the maximum extent possible. In a response, the department said it was continuing to adapt policies to the public health crisis. 

Ticking time bomb

A federal law, the 1997 Adoption and Safe Families Act, requires that if children are in foster care for 15 out of 22 months, states must file for termination of parental rights. Parents who are incarcerated or in immigration detention are particularly at risk of losing custody.

For Destiney, a mother in Garrett County, Maryland, this is a ticking time bomb.

Destiney’s three children, all under five years if age, were taken from her 14 months ago because of a bite mark on her youngest child, and scratches on her youngest child, according to Destiney, who is being identified by only her first name to protect the privacy of her children. Destiney said the bite marks were caused by the older brother. Destiney’s lawyer, Dara Accord, an assistant public defender in Maryland, confirmed that the court had mentioned concerns about the bite mark being inflicted by a child. Other circumstances may have been involved in the removal.

Accord said Destiney was on track to be reunited with her children. Before the Garrett County Department of Social Services suspended her foster care visits on March 31, Destiney had been seeing her children on unsupervised visits and was about to start overnight visits. 

Destiney went 58 days without seeing her children. Even though the department resumed her in-person visits on May 27, Accord is worried that the 15-month time period will run out and her client could lose her children.

The Children’s Bureau has urged states to count limitations imposed by COVID-19 as an exception to the timeline.

“It’s killing me. I stay up all night crying because I want my kids,” Destiney told Public Integrity in April. At that point she had no idea when she would see them again.

Her two older children live with her mother-in-law, who was eager to allow visitations and willing to drive the kids to their parents’ house.

“I dropped my boys off on a Monday and told them, ‘don’t worry mommy and daddy will pick you up on Wednesday,’” Destiney said in an interview with Public Integrity in late April. “I lied to them.”

During the suspended visits, Destiney’s oldest child stopped talking to her because he was angry that she didn’t come to pick him up. She connected with her middle child over Facebook video, but said she mostly saw the toddler’s forehead as he bobbed around the screen.

Destiney’s mother-in-law, told Public Integrity in April that the children were confused. The oldest child got stomachaches, which the mother-in-law interpreted as a sign of anxiety. She told the children “the sickness” — a term they use to refer to the COVID-19 pandemic — didn’t allow them to leave the house, but he asked every day if he would see “mommy and daddy.”

Destiney questions whether the protocols protected her kids from the virus.

On March 25, a few days before the shelter-in-place order started, Destiney offered to watch her kids during the day. It’s an arrangement similar to the unsupervised visits she had before the novel coronavirus, but one that would put them together for a longer time each day.

Destiney doesn’t leave the house, and her husband is a mechanic who can socially distance at his job, she said. She said the social service department told her that they wouldn’t allow her to change her visitation schedule without a new court order.

Instead, the kids are going to daycare with other children because her mother-in-law, who works in telecommunications, is an essential worker and can’t herself telecommute. This means she’s unable to watch the children during the day. Destiney and her mother-in-law agree the children face more risk of coronavirus exposure at daycare than they would at home. 

Accord filed an emergency motion in the Garrett County Circuit Court on April 6 to enforce the court-ordered visitation plan that Destiney had in place before the pandemic. It was dismissed without a hearing. Even with visits now resumed nearly two months later, it’s unclear what will happen if the state sees another spike in coronavirus cases.

“Visitation with a child is an essential activity,” Accord said. Under Maryland’s recent shelter-in-place order, “someone can go to the store and buy feed and walk their animal. Surely visitation with your child is essential.”

Updated on June 19, 2020: This story has been updated to remove references to a court opinion and the ages of Destiney’s children in response to privacy concerns.

Updated on June 16, 2020: This story has been updated to reflect the Illinois Department of Children and Family Services sent a response to the Shriver Center on Poverty Law.