Choice or Coercion? How the Push to Avoid Formal Foster Care Has Contributed to the Creation of a Dangerous Hidden Foster Care System

By Sydnie Peterson*

Family units will often come into contact with child protective agencies when they are at their most vulnerable and in crisis. This was the case for Brian Hogan, whose first experience with local child protective agencies occurred after his wife experienced a heart attack and was sent to a hospital approximately two hours away from his home in Murphy, North Carolina. After receiving the tragic news that his wife would likely not make it through the night, Hogan decided to leave his daughter in the care of his neighbors so he could spend what he thought would be his wife’s last moments by her side. While Hogan’s daughter admittedly enjoyed her time with the neighbors, school officials reported that she smelled of cat urine and lacked appropriate clothing. In response, local child protective agencies stepped in to investigate Hogan’s household. The local agency implemented a safety plan where Hogan’s daughter would be put in the temporary custody of Hogan’s father, Warren. 

Unfortunately, Hogan’s hard times would continue after his wife’s heart attack. Although she recovered, Hogan lost his apartment soon afterward due to financial hardships, forcing him to move in with his mother-in-law. Ultimately, local child protective agencies asked Hogan to relinquish custody to his father indefinitely. Hogan could not read, had no resources to explain his legal options, and was intimidated by the threat of his daughter being handed over to the state through the foster care system. Feeling he had no other choice, he consented to surrendering custody to his father with no promise of visitation or a reunification plan. 

What occurred to Brian Hogan is not routine. Safety plans are commonly introduced when a child protective agency learns of neglect and these plans often include placements with family members. Nonetheless, after the safety plan is implemented and the family unit reaches a stable point, it is standard procedure for state family court to then determine what further action is in the best interests of the child. Once state family court gets involved, a myriad of integral rights come into effect, including procedural and substantive due process rights. Further, when children are placed into foster care, state agencies are obligated to instill more safeguards. First, state agencies must put reunification plans in place to bring the family unit back together once certain objectives have been completed. Second, state agencies have an obligation to ensure all foster care households are safe and to provide payments to caretakers. Lastly, state agencies have obligations to guarantee the child is receiving adequate healthcare and other rehabilitative services. When children are placed with families outside of the foster care system, like Hogan’s daughter, the state has no obligation to attempt reunification of the family unit, ensure safety, provide payment, or guarantee the variety of services offered to foster families. This often leaves families estranged for long periods of time. Also, it can leave children in hazardous homes and frustrate family members who have accepted the responsibility of caring for the child when they lack sufficient resources to effectively do so. 

While it may appear obvious why the hidden foster care system is problematic, this is not always clear to families. Not partaking in the formal foster care system can be enticing. First, the formal foster care system commonly places children with strangers. Children may find placement with a stranger frightening and communicate this feeling to their parents. Also, parents may believe that once their child is placed into a home with a stranger, they will lose all access to them. Further, the formal foster care system is entrenched in the legal system, which appears unapproachable and costly to many, especially individuals who are impoverished or otherwise vulnerable. For these reasons, families have good reason to believe avoiding the formal foster care system is in their best interests, especially when facing pressure from a child protective agency. 

Overall, this informal foster care system is hidden because state agencies are not required to file a petition alleging abuse or neglect when placing a child with a family member. Therefore, it is uncertain how many families have been uprooted by the hidden foster care system. Josh Gupta-Kagan posits in his Stanford Law Review article that tens to hundreds of thousands of families may have been impacted by the hidden foster care system on a temporary or permanent basis. This ultimately presents a problem of great magnitude that requires solutions.

Gupta-Kagan provides solutions to mitigate the harms of the hidden foster care system in his article. First, he argues that all parents subject to a safety plan should be appointed an attorney which will help bolster families’ understanding of the safety plan and allow them to negotiate with better leverage. This could ultimately result in better safety plans for children and families, with safer placements and clearer reunification plans. Second, Gupta-Kagan recommends that a maximum length requirement be placed on safety plans. Therefore, a reunification would also be the goal, and if reunification was impossible given the circumstances, the court would intervene. Gupta-Kagan advocates for a thirty-day safety plan maximum, as he believes any longer is unreasonable without court intervention. Third, he argues that parents should always be able to ask the court to review safety plans without consequence. These spontaneous reviews would create a check on state agencies’ powers while still allowing the informal safety plan practice when it is beneficial.

Ultimately, Brian Hogan regained custody of his daughter and was awarded $4.6 million dollars after winning a civil suit against the Cherokee County Department of Social Services. However, the Hogan family is but one of many that have been impacted negatively by the hidden foster care system. More broad reforms, like those presented by Gupta-Kagan, must be implemented to ensure that parents have a strong understanding of the implications of foregoing the traditional foster care system and that they do not feel coerced by the feigned perks of the hidden foster care system.

* Sydnie Peterson, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member