a placement is when the state conducts background checks. Nationally, federal law requires states to conduct criminal history background checks and disqualify individuals from receiving foster care maintenance or adoption payments either permanently or for five years when someone is convicted of certain felonies. If states fail to do this, they lose federal reimbursement. This was passed as a part of the Adoption and Safe Families Act of 1997 (ASFA). Also, under federal law, child abuse and neglect (CA/N) records must be checked. Washington, like many states, has codified these under state law, requiring background checks for individuals wanting unsupervised access to children under the care of the Department of Children, Youth, and Families (DCYF). In Washington, relatives have historically had to undergo the same background checks as stranger foster parents regardless of whether they want to be licensed, adopt, or just be temporary placement for a child while their parent works to have their child returned to their care. States can add more crimes to the required federal list, making it even harder for relatives to be placement due to criminal or CA/N history. Many states do. Some states permanently disqualify individuals convicted of a drug- related crime or assault or battery. These three crimes. when felonies. are actually five-year disqualifying crimes on the ASFA list; and when lesser charged, they aren’t even a part of the federal ASFA list. I am sure to many people, this feels like we are assuring the safety of children, but to me, it feels like we are putting children’s welfare at risk by prohibiting access to relatives who love them and could take care of them. Having these crimes be permanent disqualifiers says that no matter what someone has done since that conviction and no matter the child’s relationship with their relative, it doesn’t matter—the child will be better off without that relative, and it’s alright they may lose the only familial connection available to them. This is one of the many ways the ASFA and the family regulation system dismantle families and a place where the race of a family and the racism inherent in the system makes the risk of dismantling Black, Indigenous, and other People of Color (BIPOC) families larger. The systemic racism of over-policing in the
criminal legal system leads to disproportionate conviction rates for BIPOC individuals. The over-policing in the family regulation system also leads to disproportionate CA/N findings for BIPOC individuals. Both systems impact the lives of BIPOC relatives wishing to care for their family, leaving BIPOC children at risk of being placed at disproportionate rates in stranger foster care, the majority of whom are white. In 2002, when I started representing parents in Tacoma, Washington, it was often a painful and traumatic struggle for parents, children, and relatives caught up in the family regulation system, even though, at the time, Washington had a statute that provided clear preferences for placing with relatives. And logistically, the convoluted and complex rules around background checks were frustrating and Orwellian. If a parent was lucky enough to have identified a relative within 24-48 hours of their child being taken from them, DCYF could do an emergent background check and receive results back within an hour. If the parent and the relative missed the window and the child was in a foster care home, it was no longer considered an emergent background check—meaning that a background check went through the regular process, which took weeks, if not months, to complete. That also meant the DCYF agency case worker had to object to the proposed relative placement under DCYF policy, even if the worker believed the best placement was with that relative. Even though state law allowed courts to place with relatives while the background check was pending, judges often refused to do so. If the background check results were delayed months out, the parent would often be left arguing to place with a relative was finally approved, but the DCYF worker would often argue the child was bonded to the foster parents and shouldn’t be placed for example, with their grandmother (whom they had known their entire life). I remember once having to argue to get a child placed with a relative who worked as a school bus driver (and therefore had already had a criminal history check for her job). The relative came to the initial shelter care hearing willing to be a placement. However, the emergent placement window had already ended before I was even assigned to the case. The caseworker objected to the relative
being the placement. It felt untenable that this relative who knew this child and family, who cared for other people’s children for a living, this person who already had a background check, wasn’t good enough. The caseworker argued it wasn’t a background check for this purpose, “So we just don’t know, do we?” and “We have to confirm they haven’t committed a crime since they got that other background check.” I have no doubt, that every day, family defenders face similar questions from agency caseworkers and make similar pleas to courts to place children with their family, with children’s wellbeing in the balance. Back when I was doing direct representation, Washington State’s disqualifying list included additional crimes not on the ASFA list and having no impact on child safety, like forgery, malicious mischief, and theft (both felony and gross misdemeanor). Additionally, a founded CA/N neglect finding was a permanent disqualifier. And under the old policy, the caseworker had to look at all criminal and civil infraction history, not just what was on the list. The line caseworker assigned to a dependency might have no experience reading a criminal history and might not know anyone convicted of a crime before. This caseworker was left to judge whether a relative’s background was “approved” or whether they wanted to ask the court to keep the child with a “safe” foster parent who was a stranger. Caseworkers were left to decide whether a crime impacted child safety. They would sometimes demand relatives track down old court records, sometimes from other counties or states. Some of the records were so old they were no longer in existence, putting the background check in limbo. If the caseworker wanted to, they could seek administrative approval to overrule some crimes on the list. But that was only if the caseworker wanted to start the process, and it could require multiple approval levels above the line caseworker. Relatives with any criminal, civil infraction or CA/N history were swimming upstream. Convincing the court to take what the court often perceived as a risk on a relative rather than the “safety” of a foster care placement felt like an uphill battle. It felt like parents, children, and families were in a lottery system. Did the DCYF caseworker
understand the importance of and want to support family connection? Was the caseworker trained that research showed children had better outcomes in relative care rather than stranger foster care? Would the caseworker meet the parent and relative where they were at? What if the parent whose child was just removed was angry at the worker, or what if the relative didn’t trust the worker—would the caseworker get that those were understandable responses? Would the caseworker come with their own preconceived notions about what criminal or CA/N history must mean based on their own experiences, presuming foster care was better? Would the background check be delayed for weeks or months with no explanation offered? Would the prospective relative even be given a chance? Would the child be given a chance? When I moved from direct representation of parents to supporting a statewide system managing parent representation, I brought my concerns around background checks with me and realized others in Washington State were also concerned. The Washington State Parent Ally Committee (WSPAC), a majority of whom were former parents with lived experience in the system, started sharing the problems they were still having with background checks. Even though they had changed there lives, had their dependency cases dismissed, and now mentored parents going through the family regulation system, their criminal histories and CA/N findings labeled them like a scarlet letter. Sometimes they were barred from certain jobs or volunteer work with unsupervised children or they were not able to be relative placement. The motto of the WSPAC is “People Change, Families Reunite” but the family regulation system refused to see the change. At the 2008 Washington State Birth Parent Conveying organized by Children’s Home Society of Washington and the WSPAC, there was a call to push state leaders to revisit background checks policy. Changes Over Time There have been many calls from communities and advocates since that time, and there have been changes in Washington since then that attempt to make background check requirements less harmful on relatives.
44 | FIJ Quarterly | Fall 2022
FIJ Quarterly | Fall 2022 | 45
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