A State-Wide Trauma-Informed Care Approach: Implementation of Stricter Guidelines for Discretion in Child Welfare Cases and a Shift Towards Family Services in the Early Stages

I. Current Landscape

            The good news is that California as a state recognizes the importance of implementing a trauma informed approach to child welfare cases. Assembly Bill 2083 was approved by Governor Brown at the end of 2018. The bill provides a continuum of care provision, which means that foster children will no longer be aged out of the system, and provisions for counties to ensure that foster care placements are actually equipped with training to deal with children who have trauma. The legislation is focused on creating case plans or placements that are tailored to the specific needs of each child, since we know that children entering the system have been through life events that create long-lasting trauma.

            In my view, AB 2083 establishes the threshold for a state-wide approach to child dependency. Assemblyman Ken Cooley, who introduced this legislation, asserts that the bill does the following:

  1. Sets the expectation for coordinated services at the local level for youth who require services from multiple agencies through formalized Memorandums of Understanding.
  2. Requires the Secretary of Health and Human Services and Superintendent of Public Instruction to establish a joint inter-agency resolution team at the State level with certain responsibilities, including but not limited to, providing technical assistance to county agencies to establish local MOUs, and link youth to needed services.
  3. Requires the interagency team to review the availability of appropriate placements (from family homes to congregate care) that are trained and/or supported to provide trauma-informed care to foster youth and make recommendations to the Legislature for improvements in this area.
  4. Requires the interagency team to consult with stakeholders, including practitioners, to develop a plan to increase the availability of trauma-informed services to youth in care.

All of these things are great and a step in the right direction, but what if there were state-wide Memoranda of Understanding that each county agreed upon that addressed the needs of families before children are removed and placed in foster care? Why are there not interagency teams established by the Secretary of Health and Human Services to link parents to drug treatment programs, housing opportunities, child care and job training so that families have the tools to create healthy environments for themselves and their children?

Continue reading “A State-Wide Trauma-Informed Care Approach: Implementation of Stricter Guidelines for Discretion in Child Welfare Cases and a Shift Towards Family Services in the Early Stages”
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Who’s Watching the Watchers? – How Overrides Undercut Well-Measured Assessment Tools

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.

Continue reading “Who’s Watching the Watchers? – How Overrides Undercut Well-Measured Assessment Tools”

The Current Structure of the Child Welfare System in California Creates A “Damned if you do, Damned if you Don’t” System, Unnecessarily Inflicting Trauma on Those Involved

As mentioned in my introductory post, the focus of my research will be the discretion granted to government agents to make determinations about when a parent’s substance use disorder constitutes cause for removal of children. I would also like to address the discretion granted to make determinations about placement of those children. This post will outline and personify the issue in preparation for my next post which will dissect policy, statutes, and current procedure to identify the places where discretion leaves the current system subject to inconsistency.

I. Background and Context of the Problem

            The right to raise your children without government interference is fundamental. Meyer v. Nebraska, 262 U.S. 390, 403 (1923). However, in critical situations the government has long reserved a right to take action to protect the interests of children in our society. One of these critical situations is when the parent’s substance use disorder affects their ability to care for the child. However, determining when the disorder actually constitutes neglect is largely up to the discretion of the agencies involved.

            Society has long treated addiction as a personality defect; however, things are starting to shift. The U.S. Surgeon General released a report in 2016 which outlined the benefit of shifting to a public health approach when viewing substance use disorders. Even the terminology which is used to discuss the population affected by substance use has changed – the recommended description is no longer “drug addicts.” It is now, “individuals with substance use disorders.” The language used may seem like mere minutia, but it symbolizes a move away from faulting the individual for the substance use disorder that they have developed. Trauma accumulated from adverse childhood experiences that carry into adulthood often drive parents to find solace in the “escape” provided by substances. Many parents who have substance use disorders have no desire to hurt their children and they would never allow their children to suffer but for the disease that has a hold on them.

            The drug epidemic has dramatically increased the number of children involved in the child welfare system. Unfortunately, government agencies aiming to protect children in California (and across the country) have not shifted to a more trauma-informed, rehabilitation focused approach or simply do not have the resources to do so. This takes us to the heart of the problem: how does the government effectively decide when substance use disorders deem a parent unfit? Does a substance use disorder automatically render a parent unfit to care for their child?

            Currently, it seems that protocol is more or less very lax and leaves a lot of discretion for government agencies to decide when actual intervention is necessary, when removal is essential, and when overrides are acceptable. Overrides are when a social worker or decision maker in the welfare agency decides to deviate from what would be “proper protocol.” In almost all offices overrides are perfectly fine even if the override is rationalized after the fact. Policy and discretionary overrides allow a social worker to factor the outlined criteria against his or her own judgment and knowledge of the case. (Please see pp. 151-153.) The possibility of overrides is present throughout the entire process, from removal all the way until reunification. This often results in an inconsistent application of the law on a case-by-case basis and can inflict unnecessary trauma on the children and the parents involved with little accountability.

            California Welfare and Institutions Code § 300 dictates removal, and California Welfare and Institutions Code § 309 creates guidelines for placement and asserts that a child who is removed should at least be placed with a relative unless there are no reasonable means to do so. Both of these statutes and existing policy give county agencies substantial discretion to make these critical determinations. In my next post I will thoroughly break down California WIC §§ 300 and 309.

            II. Personification of the Problem

           A lawyer once told me a story about a family that highlighted the inconsistency of application of the law when it comes to removal of children for substance use disorders. Consider a family with two mothers who are cousins by marriage – one mother was raised in a stable household and the other mother was raised in a tumultuous environment with heavy substance use.

Continue reading “The Current Structure of the Child Welfare System in California Creates A “Damned if you do, Damned if you Don’t” System, Unnecessarily Inflicting Trauma on Those Involved”

When Discretion Goes Wrong: Government Agencies and Removal of Children.

Hi, I’m Lauryn Barbosa and I am a second-year student at Santa Clara University School of Law. I was born and raised in the Bay Area and received a B.A. in Intercultural Peace and Justice Studies, with a minor in History, at Holy Names University in Oakland. During my undergraduate studies, I was exposed to, and became passionate about, social justice. What I learned about the injustice of our criminal “justice” system, coupled with the experiences of members of my family affected by that system, drove me to attend law school. I hope to become an attorney to advance social justice by representing indigent clients in criminal defense.

Throughout this policy seminar, I will be exploring the role that the police and the Agency ― the majority of California counties refer to Child Protective Services under that moniker ― play in the removal of children and how reliance on its discretion results in an inconsistent application of the law. In 2018, the United States Court of Appeals for the Ninth Circuit held in Demaree v. Pederson that “there is no qualified immunity for investigators who remove children from a home without a warrant or immediate threat of serious physical harm to the child at all.” In this instance, a couple appealed an order of summary judgment in favor of a social worker who was alleged to have committed a violation of their constitutional rights. The couple faced criminal charges and their children were removed from their home for a month after a Wal-Mart photo technician reported photos of their children in the bathtub. A police officer made an unsubstantiated recommendation that the children were being sexually abused, which the social worker decided was determinative ― even though the children underwent medical exams for sexual trauma that came back normal and there was no other evidence. While this decision was essential for accountability and should be celebrated, this is just one instance in a sea of many where the state’s intervention did much more harm than good.

As mentioned above, local agencies retain broad discretion, under California Health and Institutions Code § 300, to remove children and this often leads to inconsistent application of the rules, especially when it comes to substance abuse related neglect. This is the niche area I will hone in on. Because every family situation is unique, I understand the necessity of some discretion on the part of the government agencies. However, I believe this unbridled discretion has created a culture where children are either snatched away from their families and placed in foster care preemptively or suffer serious harm or death because the state refuses to step in. There has to be a way to develop better statutory and policy standards that can hold the Agency and the police accountable before the only relief available is a lawsuit, since at that point the damage is already done and the trauma has already been inflicted.

This area is of particular interest to me because I have witnessed the lives of children be severely impacted by the decisions of the police and the Agency in this exact area and the courses of action were drastically different in each case. While the cases I witnessed first-hand will not be the focus of my research, I will use other cases to compare the facts and identify patterns in the actions of the Agency and police officers regarding the removal of children. I will also use current police manuals and policy guides to demonstrate the issues with current protocol. I am intending to use those patterns and current policy guides to formulate policy recommendations that will provide for a more consistent application of the state’s obligation to protect children under California Health and Institutions Code § 300.