Placing Children With Relatives: the Case for a Clear Rationale for Separate Foster Care Licensing Standards, Background Check Procedures, and Improved Relative Placement Statutes in Alaska

• Publication year: 2017

§ 34 Alaska L. Rev. 161. PLACING CHILDREN WITH RELATIVES: THE CASE FOR A CLEAR RATIONALE FOR SEPARATE FOSTER CARE LICENSING STANDARDS, BACKGROUND CHECK PROCEDURES, AND IMPROVED RELATIVE PLACEMENT STATUTES IN ALASKA

Alaska Law Review
Volume 34, No. 1, June 2017
Cited: 34 Alaska L. Rev. 161

PLACING CHILDREN WITH RELATIVES: THE CASE FOR A CLEAR RATIONALE FOR SEPARATE FOSTER CARE LICENSING STANDARDS, BACKGROUND CHECK PROCEDURES, AND IMPROVED RELATIVE PLACEMENT STATUTES IN ALASKA

COURTNEY LEWIS ^[*]

ABSTRACT

Policymakers generally agree that if a child cannot live safely with her parents, then the child should be placed expeditiously with a relative. Alaska's current system for evaluating relative caregivers is overly complicated, creating unnecessary barriers for relatives and increasing the risk of mistakenly denying placement with relatives. This Article argues that Alaska should adopt a three-step approach to achieve better outcomes based on the American Bar Association's model licensing standards, which are narrowly tailored to evaluate whether a child should be placed with a relative. Additionally, this Article argues that Alaska should repeal its state statute that gives the child welfare agency the ability to establish prima facie evidence to deny a relative if a relative would not be eligible for a foster care license, for two reasons. First, a review of the history of the state's statutes indicates that the legislature did not intend to provide the Department of Health and Human Services with the current definition of prima facie evidence. Second, Alaska's current statute is not compliant with the 2016 federal regulations regarding the Indian Child Welfare Act. Lastly, this Article argues that Alaska should adopt a statute clearly delineating the court's authority to order placement of a child facing foster care with a relative to expedite compliance with relative placement in frontline child welfare practice. Adopting these proposals would reduce barriers and the number of mistakes in frontline child welfare practice, which would increase both the timeliness and the number of children placed with relatives.

INTRODUCTION

G.K. Chesterton's recommendation applies here: never tear down a system until understanding why it was built in the first place. ^[1] This Article argues that there is a clear rationale for Alaska to adopt less onerous foster care licensing and relative caregiving procedures given the government's duty to place children in foster care with relatives ^[2] absent good cause to do otherwise. Because the benefits of placing children with family first are well documented ^[3] and reflected in the law, ^[4] this Article treats these benefits as a given.

Alaska's current system is overly complicated, which increases error and creates unnecessary barriers that harm children. Consider the example of four-year-old Cassandra, who is removed from her parents and placed in a shelter. Cassandra's parents ask that she be placed with her Aunt Kelly, who submits to a background check. Aunt Kelly does not pass the background check because she has a felony conviction from six years ago for driving under the influence, which is a ten-year barrier crime that prevents her from receiving a foster care license under the Alaska Administrative Code (AAC). ^[5] This all despite the fact that after Aunt Kelly was convicted, she completed treatment for her alcohol abuse and has remained sober and in recovery ever since.

The Department of Health and Human Services' Office of Children's Services (the "Department") has the discretion to place Cassandra with Aunt Kelly, ^[6] but does not do so because the frontline worker erroneously believes a variance ^[7] is required in order to place Cassandra with Aunt Kelly. The frontline worker tells Aunt Kelly to apply for a variance before the Department will approve placing Cassandra with Aunt Kelly. The variance application requires copies of Aunt Kelly's DUI convictions, letters of recommendation, and proof that Aunt Kelly completed treatment so she can demonstrate her rehabilitation. ^[8] Undeterred by this burden and the fact that the variance approval process can take up to 180 days, Aunt Kelly pursues the variance. ^[9] This in addition to the forty-five days it took Aunt Kelly to receive that initial denial from the Department. ^[10]

In the meantime, Aunt Kelly files for a court hearing to explain to the court why Cassandra should be placed with her. Aunt Kelly has a hearing before the court. This is the court's first relative placement review, and the court is relying on the state statute regarding relative caregivers' right to a review hearing. ^[11] The Department argues that it has prima facie evidence that Aunt Kelly should be denied custody because her prior DUI conviction renders her ineligible for a foster care license per the AAC. ^[12] The court is troubled about the original denial, but the court is unsure if it has the authority to order a specific placement. The Department argues that state law gives it the authority to make placement decisions. ^[13] The court asks for further briefing on its authority. Aunt Kelly, unaccompanied by counsel because she cannot afford a lawyer and is not entitled to public counsel for this hearing, ^[14] is not familiar with the case law ^[15] or the statutes ^[16] in Alaska that could demonstrate to the court that it indeed has the power to order the Department to place Cassandra with her.

While the variance request and litigation are pending, four-year-old Cassandra lives in a shelter, separated from her family. Cassandra exhibits behavioral concerns. The shelter staff note frequent crying and withdrawn behavior. Cassandra's increased behavioral issues are now making it more difficult for the Department to find Cassandra a suitable foster home.

Eventually, the variance is granted and the Department makes arrangements for Cassandra to change placements. Nine months after the original request, Cassandra is finally placed with Aunt Kelly.

This example highlights several, but by no means all, of the problems in Alaska's current child welfare system: the confluence of the Department's policies, the state administrative code, state statute, and state case law, and the additional need for correct application by frontline professionals. Relatives seeking placement face many barriers not covered in this example, including the application of recently released federal regulations. ^[17]

Part I of this Article explains how a one-size-fits-all licensing and background check system grew to encompass background checks for relatives seeking to care for children in foster care. Further, Part I reviews the 2016 federal regulations issued by the Bureau of Indian Affairs (BIA) that interpret the Indian Child Welfare Act (ICWA) with regard to good cause to deviate from placing children with relatives. Moreover, Part I will review relevant state law and its legislative history in the context of Alaska's background check system. This Part additionally discusses case law and statutes related to court-ordered placements of children with relatives.

Part II discusses the challenges on the frontline in the application of the state system and federal law. The discretion given to the Department was meant to address the flaws of a one-size-fits-all system, but has not been adequately applied to the frontlines of child welfare practice in Alaska. ^[18] The Department's high turnover rate and training issues lead to mistakes, even when frontline workers do their best to place children with relatives when possible. ^[19]

Part III proposes a three-step approach to achieve better outcomes in Alaska's child welfare system. First, Alaska should adopt the American Bar Association's model licensing standards when it comes to background checks for foster care licensing. The model licensing standards not only comply with federal standards for foster care licensing, but are also designed to assess safety and the best interests of the child. ^[20] Relatives who do not want a foster care license but whose background checks would be considered under these safety standards would still fare better than under Alaska's current system because the model licensing standards are tailored to child welfare. ^[21]

Second, Alaska should repeal the section of its state statute giving the Department prima facie evidence to deny a relative for failure to meet foster care licensing standards. Relatives who are denied placement of a child by the Department have the right to court review where the Department must prove by clear and convincing evidence that the relative should be denied. ^[22] The current prima facie standard whereby the Department can deny a relative custody if the relative is ineligible for a foster care license does not comport with the federal regulations issued by the BIA effective December 12, 2016. ^[23] Additionally, the prima facie evidence definition is overbroad because background checks for foster care licenses have been swept into a system designed to encompass more than just foster care. ^[24] Prima facie evidence is also overbroad because foster care licensing has stringent requirements about other considerations, such as housing. ^[25] The original meaning of that section of the statute, which was tied to crimes and abuse history the legislature considered related to child safety, has been lost through various statutory changes, which makes the current statute both overbroad and vague. ^[26] A review of the history of...