Pregnant in foster care: prenatal care, abortion, and the consequences for foster families.

AuthorMoore, Katherine

INTRODUCTION

Girls in foster care get pregnant. A lot. (1) For example, in 2005 the New York City Office of the Public Advocate estimated that as many as "[o]ne in six young women in foster care in New York City are pregnant or are already mothers...." (2) When a teenage girl gets pregnant, there is always a complex set of issues and challenges that she will face: whether or not she will continue the pregnancy, what medical services are available to her if she decides to have the child, what abortion services are available to her if she does not, who will retain custody of the baby, whether she will give the baby up for adoption. For a pregnant teen in foster care, these issues are amplified by the child welfare system, where there are many more actors in play than just the pregnant girl, her parents, and the father of her child. The foster parents, the biological parents, and the state each play a substantial role in determining how the pregnant foster girl manages her pregnancy and the resources available to her, yet at the same time, the existing legislation and policies guiding these actors are inadequate for addressing her needs and often hinder her ability to exercise her rights.

While the populations of girls who become pregnant and girls in foster care overlap in great numbers, legislative and judicial actions in both state and federal forums have addressed the topics of teen pregnancy and foster care as separate and discrete, ignoring the challenges that pregnant girls in foster care face. For example, basic teen pregnancy prevention legislation that focuses on contraception, health, and sex education fails to account for the common experience of foster girls, who may lack access to a comprehensive health education due to gaps from frequent school changes and who may be particularly uncertain of whom to ask for access to birth control. There is a two-way informational gap that needs to be closed: legislators, policy makers, judges, agency officials, and others involved in the welfare of teenagers should make sure that when creating foster care policy, they also consider the impact of pregnancy, and that when considering measures to combat or mitigate teen pregnancy, they also consider the segment of teenagers in foster care.

This Article argues that the existing state and federal statutes, agency regulations, and sparse case law leave pregnant foster girls without appropriate resources and assistance. Child protection laws should provide for assistance with prenatal care and planning and access to abortion in order to truly serve their purpose. Part I of this Article provides background material concerning foster care and entitlements for foster children, including the medical care that foster children receive through Medicaid, and the various barriers to abortion access for women in general and for minors in particular. Part II of this Article discusses current agency regulations specifically related to pregnant foster girls as well as judicial responses to the intersection of pregnancy and foster care. Part III discusses statutory and regulatory recommendations to improve the situation of these young women.

  1. Fpster Care, Entitlements, and Abortion Access

    Foster care has traditionally included a range of options including, officially and unofficially, kinship care. The availability of kinship care (care by relatives of the foster child) can create more complexity in the relationships that foster children have with their foster parents. The legal framework for entitlements for foster children includes medical care and specific Medicaid provisions, which allow foster children to access certain services, but which also place limits on their access to choice within the healthcare system. Some of those limits include Medicaid barriers to funding for abortion, as well as parental consent and notification laws in many states.

    1. Foster Care

      1. Overview of Foster Care

        The number of children in foster care is large. (3) In the United States, there were nearly 500,000 children in foster care at the end of fiscal year 2009. (4) Federal legislation such as the Adoption and Safe Families Act (5) has been promulgated in order to promote adoption in general and to incentivize quicker adoption, thereby reducing the number of foster children. (6) State agencies also often promote preventive services to reduce the number of children removed in the first place, and agencies provide services to parents with the goal of returning children to their homes. (7)

      2. The Process

        A minor child is typically placed in foster care when the State finds that remaining in the care of her parents places her health or life in danger. (8) Provisions regarding removal of children from their homes often refer to "abused" or "maltreated" children. (9) Beginning with the first child protective agency in the world, the New York Society for the Prevention of Cruelty to Children, (10) the United States government has sought to provide housing and care for children who are removed from their parents by the State. Individual state statutes vary in their exact terms, but generally, children who are physically or otherwise abused, as well as children who are neglected, may be removed from their homes, typically by a state child protective agency. (11) Foster parents are paid a fee for provision of items such as food and clothing to their foster children, (12) and some state agencies pay foster parents an additional fee for their parenting services. (13) In some states, foster parents who are related to the child (kinship foster parents) are paid as well (14) when they act as official, rather than ad hoc, foster parents. Ad hoc fostering situations arise in families when a child is placed with a family member, often a grandparent or other relative, on a temporary or permanent basis without the involvement of the State and child protective services. Such arrangements are often used as temporary relief for parents who cannot care for their children but who do not wish to relinquish or endanger their legal custody. Both formal and informal kinship foster care arrangements will be discussed in more detail below.

      3. Overarching Legal Issues and Responsibilities

        The responsibility for the management and care of these children is split between many parties and cuts across state and personal spheres. Biological parents, former legal guardians, foster parents, government agencies, and, sometimes, private foster care contractors each have different rights over and responsibilities to the child. Generally speaking, the government agency has the primary legal authority over the child, the foster parents have custodial rights, and the biological parents retain "residual parental rights." (15) State statutes usually define these residual rights. For example, biological parents may retain some rights to direct the religious needs of their children, but the state can satisfy this by making reasonable efforts towards accommodation. (16)

      4. Kinship Care

        In the history of the foster care system, kinship care has remained available as an official and unofficial option. When a child is removed from her home by the state, the state agency faces an administrative choice as well as a policy decision regarding whether to place the child in kinship care or stranger (nonkinship) care. Relatives often take children on an ad hoc, voluntary basis for brief or extended periods of time, without direct involvement from the State or with the State's tacit approval. Grandparents, siblings of parents, and other extended family members have provided care for children when their parents could not do so on their own or at all, regardless of whether the state has been involved in officially removing the children from their parental home. The U.S. Supreme Court described the tradition of extended family involvement in childcare in 1977:

        Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. Over the years millions of our citizens have grown up in just such an environment, and most, surely, have profited from it. (17) Alternatively, relatives may also become official custodial guardians and may act as other foster parents do, including becoming licensed, passing background checks, and fulfilling other state-mandated requirements. (18)

        The debate over whether children are better off being placed with extended family members or with non-family members has a long history, and different states have taken different policy stances on the issue. (19) Most states promote kinship care as a policy. (20) Children in kinship care are more likely to be placed with their siblings, (21) and children may experience less stress when placed with family members. (22) Studies have shown that children in kinship care have fewer moves than their counterparts in nonkinship or stranger foster care, and are "less likely to experience subsequent maltreatment while in care." (23) Providing money and specialized services to kinship foster families would help to promote kinship arrangements. However, many state agencies do not provide these services or financial support to kinship foster parents, or they provide a lower level of support than is provided to nonkinship foster parents. (24)

        Despite some states' emphasis on kinship foster care, there are impediments to this type of support for children. Different states have different licensing and other requirements for kinship placements relative to stranger care. There are some benefits to official licensing of family members, most notably the payment that licensed foster parents receive for taking in foster children. (25) However, official licensing requirements can also cause delays and can even prevent...

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