The Need for a Consensus Standard of Care in Screening Prospective Adoptive, Foster, and Kinship Placements

• Author: Daniel Pollack
• Position: Professor at the School of Social Work, Yeshiva University, in New York City
• Pages: 397-415

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THE NEED FOR A CONSENSUS STANDARD OF CARE IN SCREENING PROSPECTIVE ADOPTIVE, FOSTER, AND KINSHIP PLACEMENTS

DANIEL POLLACK*

I. INTRODUCTION

The lack of a clear legal “standard of care” for the evaluation and screening of prospective adoptive, foster, and kinship applicants directly undermines the child placement process, the physical and emotional development of children placed in adoptive and foster homes, and the adjudication of legal issues arising when children are harmed. Often, it is only when a lawsuit is filed that society is forced to take a hard look at its legal expectations, and it is then compelled to acknowledge that there may be a very real distinction between child welfare’s “best practice” standard and the legal standard of care.

Standards of care are defined by statute, contract, common law, professional guidelines, and experience, and may vary widely from state to state.¹Differences in training, knowledge bases, and culture yield a wide variety of definitions. The best practice standard in child welfare refers to those actions, processes, strategies, or interventions that claim to produce the best results for children and families.²When based on valid evidence and offered by reputable organizations, the best practice standard will often lead to superior outcomes. The best practice standard may or may not be considered the legal standard of care. Indeed, there is no single, universally-accepted depository of published standards of care or best practice standards for screening prospective adoptive, foster, and kinship

Copyright © 2012, Daniel Pollack.

* Daniel Pollack, M.S.S.A. (M.S.W.), J.D., is a professor at the School of Social Work, Yeshiva University, in New York City, and a frequent expert witness in child welfare cases. The author expresses his thanks to Deborah Bauman, Kate Cleary, James Marsh, and Harvey Schweitzer for their valuable suggestions and comments.

¹Online Resources for State Child Welfare Law & Policy, CHILD WELFARE INFO.

GATEWAY (Oct. 2009), http://www.childwelfare.gov/systemwide/laws_policies/statutes/ resources.pdf.

²Child Protection Practices Bulletin: Innovative Strategies to Achieve Safety, Permanence, and Well-Being, U. N.M., http://childlaw.unm.edu/docs/BEST-PRACTICES/ WHAT%20IS%20BEST%20PRACTICE%20(2011).pdf (last visited Oct. 18, 2011).

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placements.³Despite the lack of absolute clarity of either best practice standards or the legal standard of care, this article advocates a narrowing of the gap between the two, when applicable, with the legal standard of care coming closer to that of child welfare best practice standards.

There is a pressing need to establish, by consensus, professional practice guidelines, both to ensure improved placements for children and to provide courts and clinicians with an accepted baseline standard. This is a time-consuming and arduous undertaking; yet, it has been done by other professional specialty areas without sacrificing flexibility for unity.⁴It is time for the child welfare community to do the same in the area of screening prospective adoptive and foster parents.

The importance of the placement and screening process and the importance of the standard of care in that process are the two principal concerns of this article. Liability of parents, agencies, and the state are addressed tangentially. Part II examines the importance of the assessment, evaluation, and screening process. Part III then discusses the elements of this process. Part IV looks at the standard of care of the assessment, evaluation, and screening process, and Part V offers a brief conclusion and recommendations.

The term standard of care is firmly grounded and accepted in law. No such consensus definition exists regarding screening prospective adoptive and foster parents. Consequently, workers, agencies, and courts may lack a measurable, agreed-upon guideline by which to determine if a worker or agency provided the required legal standard of care. Any clarity the professional child welfare community can offer, especially if derived by consensus, will greatly assist workers and agencies to act appropriately in specific circumstances.

³DICKERSON ET AL., HOW TO SCREEN ADOPTIVE AND FOSTER PARENTS: A WORKBOOK FOR PROFESSIONALS & STUDENTS 7 (2011).

⁴See, e.g., Ching H. Wang et al., Consensus Statement for Standard of Care in Spinal Muscular Atrophy, 22 J. CHILD NEUROL. 1027 (2007), available at http://jcn.sagepub.com/content/22/8/1027.full.pdf+html (describing how the International Standard of Care Committee for Spinal Muscular Atrophy was formed with a goal of establishing practice guidelines for clinical care of these patients). The twelve core committee members worked with more than sixty spinal muscular atrophy experts in the field through conference calls, e-mail communications, etc. to accomplish this goal. Id.

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II. THE IMPORTANCE OF SCREENING PROSPECTIVE ADOPTIVE,

FOSTER, AND KINSHIP PLACEMENTS

The Director of the Michigan Department of Human Services recently said:

A child’s welfare is first and foremost the responsibility of the family. . . . [W]hen a family is unable, or unwilling, to care for their children, the courts, law enforcement, community partners and DHS all share responsibility for ensuring that children are safe and that families receive the support and services needed to achieve successful reunification.⁵

This work is demanding, and safety and well-being simply cannot be compromised. Child welfare professionals should not only view child placement as one possible after-the-fact response to abuse and neglect but should also focus on promoting the safety and well-being of all children who are in state custody.

Just as solid research can overcome skepticism, a better understanding of the crucial nature of the evaluation and screening process of prospective adoptive, foster, and kinship parents can illuminate what is truly useful welfare policy. Under the current child welfare framework, however, there remains a puzzle: Why do adoptive and foster children still get severely injured and killed in their placements⁶Regrettably, part of the answer is that guaranteeing the safety and well-being of any one child is most strongly influenced by factors beyond the control of child welfare authorities.⁷The answer is also that, from a legal standard of care

⁵Maura D. Corrigan, Op-Ed, Removing Children from Families Always Follows Legal Procedures, DETROIT FREE PRESS, May 9, 2011, at A22. See also Amy M. Salazar et al., Understanding Social Support’s Role in the Relationship Between Maltreatment and Depression in Youth with Foster Care Experience, 16 CHILD MALTREATMENT 102, 103–11

(2011).

⁶Whether the rate of abuse of adoptive children, foster children, or both is greater than the general population is a matter of debate. See Richard J. Gelles & Ira Schwartz, Children and the Child Welfare System, 2 U. PA. J. CONST. L. 95, 107 (1999) (“[C]hildren who reside in foster care fare neither better nor worse than children who remain in homes in which maltreatment occur[s].”).

⁷See Jocelyn Brown et al., A Longitudinal Analysis of Risk Factors for Child Maltreatment: Findings of 17-Year Prospective Study of Officially Recorded and Self-Reported Child Abuse and Neglect, 22 CHILD ABUSE & NEGLECT 1065, 1073–75 (1998)

(discussing the complex nature of risk factors for child abuse and neglect).

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perspective, child welfare professionals have not embraced an evaluation and screening process that is adequate in scope, depth, and quality.⁸The bottom line is that screening and evaluation matter, and child welfare authorities do have a healthy measure of control over the selection of adoptive and foster parents, even if they cannot guarantee the safety of any one child.⁹

The United States Department of Health and Human Services reports that “an estimated 1,460 children . . . died from abuse or neglect—at a rate of 1.96 deaths per 100,000 children” during the federal fiscal year of 2005.¹⁰The department further noted:

Three-quarters (76.6%) of child fatalities were caused by one or more parents . . . . More than one-quarter (28.5%) of fatalities were perpetrated by the mother acting alone. Nonparental perpetrators (e.g., other relative, foster parent, residential facility staff, “other,” and legal guardian) were responsible for 13.0 percent of fatalities.¹¹

In 1874, when child abuse first came to the nation’s attention,¹²child protection services were established in response to physical abuse and

⁸See, e.g., Joan Heifitz Hollinger, Adoption Law, 3 FUTURE OF CHILD. 43, 48 (1993).

⁹R. Alta Charo, And Baby Makes Three—Or Four, Or Five, Or Six: Redefining the Family After the Reprotech Revolution, 15 WIS. WOMEN’S L.J. 231, 238 (2000) (discussing modern adoption statutes’ focus on the well-being of the adopted child and the rigorous screening process prospective parents must go through).

¹⁰CHILDREN’S BUREAU, U.S. DEP’T OF HEALTH & HUMAN SERVS., CHILD

MALTREATMENT 2005 61 (2007), available at http://www.acf.hhs.gov/programs/cb/pubs/

cm05/cm05.pdf.
¹¹Id. at 62. The study also noted:

More than three-quarters (76.6%) of children who were killed were younger than 4 years of age, 13.4 percent were 4–7 years of age, 4.0 percent were 8–11 years of age, and 6.1 percent were 12–17 years of age . . . . The youngest children experienced the highest rates of fatalities. Infant boys (younger than 1 year) had a fatality rate of 17.3 deaths per 100,000 boys of the same age. Infant girls (younger than 1 year) had a fatality rate of 14.5 deaths per 100,000 girls of the same age. In general, fatality rates for both boys and girls decreased as the children get older.

Id.

¹²Lois A. Weithorn, Protecting...