In my last post we personified the real-life implications of discretion in the child welfare systems and how it can create inconsistency. We will now review current statutes, California’s most widely used policy manual, (the structured decision-making tool (SDM)), and culture of the agencies involved to uncover exactly why and how discretion can create inconsistencies that inflict further unnecessary trauma. The problem is not that child welfare agencies have discretion – every unique family deserves a response that best suits them – the problem is that this discretion is unfettered. There are clear steps and guidelines; however, a social worker can use something called an “override” (p.5) to change the course of a child welfare case based on their personal judgment. In this post I will illuminate unchecked discretion can have negative consequences for families.
It is important to have an overview of the juvenile dependency process before we go into the issues. First, a report of neglect or abuse is made to the child welfare service. These reports can be made by a law enforcement agent, officials at the child’s schools, family members, etc. Once a report is made, an official at the child welfare agency will determine whether and how quickly a response is warranted. Once a social worker responds, they have to make assessments about the risks of the child’s situation to determine what the best course of action will be (ie: open a case and work with the family, close the case, or remove the child). A social worker is to make those decisions, with or without the approval of a supervisor, using the SDM. These determinations will not be reviewed by a judge until the child welfare agency has a detention hearing, which can take days or weeks.
I. Evaluation of Relevant Statutes
California Welfare and Institution Code § 300 defines state law on the issue of removal. The subsection relevant to substance use related neglect is as follows:
(b) (1) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse. A child shall not be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family.
If a report comes in and gets substantiated, a social worker can launch an investigation. If, during the course of investigation, it is determined that there is substantial risk of the child suffering then WIC § 300 is the controlling statute for removal. Although there are different potential causes for removal according to the statute, I would like to focus on substance use related neglect since this issue is at the heart of the overwhelming majority of child welfare cases.
I would like to break down this statute to identify where the law grants discretion which creates opportunities for agents of the state to subjectively evaluate conditions. First, what constitutes “substantial risk?” The statute lists substance abuse as a cause for willful or neglectful failure to care, but it does not state that that substance abuse automatically creates a substantial risk that the parent will willfully or negligently fail to care for the child.
The determination of whether or not a child is at “substantial risk” is subjective and these crucial decisions are largely made by a case worker, with approval of a supervisor if there are issues that require overrides. Overrides are when a social worker uses their clinical experience to make judgment calls outside of the guidelines in the SDM. (pp. 8-9) This type of discretion is subject to implicit biases that social workers might carry, especially when it comes to substance use disorders.
In many cases, substance use disorders can constitute grounds for removal; however, there is evidence that removal is typically not the best one for the child or parent involved. A child being yanked out of their home by strangers is extremely traumatic and is likely to cause long term suffering and issues; however, in some situations that might be in the best interest of both the parent and the child. Removal can have a positive impact on some parents by giving them a reason to begin to make serious life changes, but it can also drive a parent further down the rabbit hole of addiction by taking away the only thing that gave them hope to keep fighting to make those changes. Issues with removal are very complex and need to be tailored to individual situations, that is absolutely a fact. That fact is also the reason why these decisions should not be completely susceptible to the judgment of one social worker (and possibly a supervisor) without any safeguards or protection. Of course, discretion can also be used in ways that have a positive impact on families. However, this statute leaves a lot of room for subjectivity without any safeguards when making such a crucial decision about the trajectory of a child’s life.
Next, California Welfare and Institutions Code § 309(a) governs the responsibilities of the child welfare agency to keep a child with their parent or at least, place the child with a family member. The law regarding placement is as follows:
309 (a) Upon delivery to the social worker of a child who has been taken into temporary custody under this article, the social worker shall immediately investigate the circumstances of the child and the facts surrounding the child’s being taken into custody and attempt to maintain the child with the child’s family through the provision of services. The social worker shall immediately release the child to the custody of the child’s parent, guardian, Indian custodian, or relative, regardless of the parent’s, guardian’s, Indian custodian’s, or relative’s immigration status, unless one or more of the following conditions exist:
(1) The child has no parent, guardian, Indian custodian, or relative willing to provide care for the child.
(2) Continued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a relative.
According to this statute, the child welfare agency “shall… attempt to maintain the child with the child’s family through the provision of services.” The agency is not mandated to maintain the child with the child’s family through the provision of services. However, the agency is also not allowed to fail to exert any effort to maintain the child. This leaves the standard regarding continued detention – which states that it should only be used if there is immediate and urgent necessity for the protection of the child and there are “no reasonable means” that could protect child in their home or the home of a relative – subject to human judgement once again. Do “reasonable means” look the same in every case?
Lastly, California Welfare and Institutions Code § 361.4 governs the emergency placement of children who have been declared dependents of the state and is as follows:
(3) Notwithstanding paragraph (2), a child may be placed on an emergency basis if the CLETS information obtained pursuant to paragraph (2) of subdivision (a) indicates that the person has been convicted of an offense not described in subclause (II) of clause (i) of subparagraph (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, pending a criminal records exemption decision based on live scan fingerprint results if all of the following conditions are met:
(A) The conviction does not involve an offense against a child.
(B) The deputy director or director of the county welfare department, or his or her designee, determines that the placement is in the best interests of the child.
(C) No party to the case objects to the placement.
WIC § 361. 4 outlines the standards for clearing potential emergency placements in regard to criminal records. The statute indicates that placements can be approved even if the person who is intending to take temporary custody of the child has a criminal record, so long as the other conditions are met. One of these conditions is that “the deputy director or director of the county welfare department, or his or her designee, determines that the placement is in the best interest of the child.” This means that determining whether or not a family member is the best option for placement of a child despite a criminal conviction is ultimately left up to the judgment of a human with their own subjective beliefs. I would be interested to know how the agency would determine what was in the best interest of the child.
As you can see, all of the statutes discussed above have discretion built into them. Like mentioned above, discretion can be used for positive outcomes like keeping families together, placing children with relatives who might have criminal records, or promptly removing kids out of dangerous situations when the SDM might not call for those actions. However, in light of the entire process and the lack of guidance or oversight until after these decisions have been made, and the fact that these decisions can have traumatic consequences that cannot be undone it should not be so easy to use discretion to circumvent a well-established tool.
II. The Role of Risk Assessment
Every county in California utilizes the structured decision-making tool to inform their decisions regarding child dependency. Levels of risk determine the decisions made by the child welfare agency involved about a particular case. The section regarding substance abuse of a caregiver states,
The caregiver is diagnosed with chemical dependency or abuse AND is currently using. Current use does not require that caregiver be under the influence at the moment of the call, but that the caregiver has used within the past two weeks and has not entered into a formal or informal program to achieve abstinence; OR The caregiver is using illegal drugs; OR The caregiver’s alcohol use suggests a probability that dependency or abuse exists, such as blackouts, secrecy, negative effects on job or relationships, identified drinking patterns, etc. (p.28)
I thought it was interesting that a person with a substance use disorder (not alcohol) can be classified as neglectful even if they haven’t used in two weeks, yet a person with an alcohol dependency is afforded a more thorough evaluation of how their drinking affects their ability to care for the child.
The structured decision-making tool is intended to assist child welfare agents make risk assessments throughout the process described earlier. However, not every decision will be dictated by the SDM because each and every step recommends a certain action but also gives an easy “check this box and explain” override option that can be used retroactively.
This seems like a major problem. Let’s look closer at the override options to uncover how “checking a box” to avert the recommended course of action can be problematic. The first step in the SDM is determining whether or not the report requires a response and this step has an “override” option. (p.5) This is when the agency has received a report of neglect and is determining the next course of action.
This initial override also allows for a report to be opened as a referral even if none of the criteria are marked. That is, even if means the social worker cannot substantiate any neglect or abuse under the criteria provided by the SDM, the social worker can, nevertheless, use their judgment to open a referral at the request of law enforcement, due to local protocol, or any other reason that they can specify. The SDM provides both a procedure to be followed and a way to completely subvert that procedure.
The next opportunity for an override is when the social worker is determining how quickly the agency must respond to the report. The social worker or child welfare agent may use policy overrides to increase the level of risk, necessitating a response within 24 hours or decrease, necessitating a response within 10 days. Policy overrides at this step can increase the risk level because of a request by law enforcement, the need for forensic materials that could be compromised if too much time passes, and a belief that the family might flee. (p.7) All of these things seem like valid reasons to increase the level of risk until we remember that all (except the request of law enforcement) can be based off of a subjective belief of a social worker. A social worker can also decrease the level of risk in the same manner for the following reasons: the child is in an alternative safe environment, child safety requires a strategically slower response, or the incident happened over six months prior and no maltreatment has occurred since. (p.7)
The discretionary override at this step allows a social worker to either increase or decrease the level of risk for whatever reason they deem appropriate. A supervisor’s approval is only required if the social worker is decreasing the level of risk. (p.7) There is a small line for the social worker to define a reason, but it seems like it would be awfully easy for a social worker to make a judgment call under this opportunity for an override without much accountability. This means that a child with a report of neglect could receive intervention almost immediately when it might not actually be justified or could be left in an unsafe situation for too long based on the decision of one person to check a box.
For example, a report could be made about young children sleeping in a car at night on the street with a parent suspected of drug use because of their criminal history. In this situation, the social worker could decide that the child’s physical living conditions are immediately hazardous to health or safety because it is likely that they are being exposed to drug use and other crimes, which would necessitate a response within 24 hours. The social worker could also use their discretion to say that homelessness or sleeping in a car is not neglect without first investigating the entire situation. This means that the children could potentially remain in a more dangerous situation because the social worker supplemented the actuarial tool (SDM) with their personal judgment or a family – already struggling with homelessness – will now be susceptible to being forcibly separated because a social worker believed an emergency response was necessary.
The final risk level determination is also subject to discretionary overrides. Risk level is the basis for determining action at every step of the child welfare agency’s involvement. See the excerpted section from the SDM below:
The policy overrides again make sense and seem to provide pretty clear guidelines. The discretionary overrides, on the other hand, do not provide any guidance into what factors to consider when increasing or decreasing risk level. Even though overrides can only shift the risk level by one, this could mean the difference between closure and continued services. Considering the heavy implications of risk assessments in these cases, the idea that discretion without clear standards can completely determine the direction of a case seems unwise.
It is important to understand the differences in policy overrides and discretionary overrides. Discretionary overrides are based upon clinical experience, also known as the judgment of the social worker (pp.8-9), and policy overrides are agreed upon by county. For example, a policy in some counties is that there will be no removal for homelessness only. Discretionary overrides seem to have the potential to have the most adverse consequences.
A study was conducted to determine the effectiveness of California’s risk assessment tool that made determinations, specifically, about the differences in outcomes when a social worker strictly adheres to the manual and when a social worker factors in their clinical experience and utilizes overrides. While reviewing 7685 cases, the study found that cases where the scored risk was entirely determined by the risk assessment tool produced a statistically significant relation between the scored risk and the actual occurrence of neglect or rereferral. On the contrary, cases where the social worker believed the risk assessment tool to be incorrect did not have a significant statistical relation to the actual occurrence of neglect or rereferral. This means that when social workers used their discretion to bump a case up to high risk, those children are no more likely to have actually been harmed or to face harm in the future. (Note: a bump to high risk from low or moderate is the kind of thing that can be grounds for removal of a child.)
III. Lack of Judicial Oversight
The problem is not discretion in and of itself. It makes sense to have some flexibility to allow for evaluation on a case by case basis. The problem is that it is too easy for social workers to use discretion to change outcomes and there is little substantial opportunity to review. Martin Guggenheim is the nation’s leading expert on the child dependency system. He is quoted saying the following:
My experience over 25 years of representing parents and children in these kinds of cases is that the court system operates least like a court of any court system I’ve ever experienced. Agencies almost always win the position that they seek, by having judges either be persuaded that the agency should win or by just starting out with the presumption that the agency has worked so closely with the facts that it knows what is best. This is not a system of law that operates like most others, in which there is an understanding that an independent fact finder, the judge, is to play the prominent role in what happens. Instead, child welfare is seen mostly as case management, and that the expert is not the judge but the case supervisor. And so, judges tend to give great deference to what is recommended. And in most jurisdictions, most of the time, what the agency seeks, it gets.
The child dependency system throughout the country is much more informal and supposedly non-adversarial, which makes for an interesting environment for parental defense and children’s rights. The collaborative spirit between the agencies and judges seems to encourage a system where government agents have discretion to make crucial decisions about the trajectory of a child’s life without clear, initial guidelines initially or post-facto accountability.
In my next post we will review current legislation aimed at foster care and the child dependency system. I will suggest ways that legislation and policy can be improved to actually address the needs of families where substance use disorders pose a problem. The idea is that a trauma-informed, state-wide approach — where social workers are not granted quite so much unfettered discretion — could improve outcomes for families.