FIJ Quarterly - Fall 2022 Edition

DCYF now has a separate unit responsible for conducting background checks. They are trained to understand how to read criminal history and look for trends in criminality but are also knowledgeable that people can change and that people can be unfairly judged. Rather than leaving it to a caseworker’s discretion whether to request administrative approval for a crime or CA/N finding like before, all crimes that are eligible and all CA/N findings are assessed for administrative approval. Line caseworkers are prohibited from making secondary assessments under DCYF policy, meaning if someone is cleared by the background checks unit, their criminal history should not be used by the caseworker to object to the placement. Our agency and family defenders can contact the background checks unit lead if we hear of problems with background checks like someone failing when we believe they should have been cleared. We also now participate along with other advocates and our state Child and Family Ombudsman’s Office in a standing monthly meeting with the background checks unit lead to work through issues we are seeing and think through ways to refine the background checks process. In 2014, State law was amended to limit crimes and civil infractions on the DCYF disqualifying list to only ASFA crimes or a crime or civil finding involving child safety, permanency, or well-being. Crimes like theft were removed from the background checks list, and all the permanent disqualifiers on our current state list are federally required. In 2020, a state law passed requiring DCYF to develop a system for individuals with a CA/N finding to request a Certificate of Parental Approval (CPI). If someone has received a CPI, the previous CA/N finding cannot be used as the sole basis to disqualify that individual. And for those without CPIs, a CA/N finding is no longer a permanent disqualifier in Washington State. DCYF changed its policy and expanded the time a relative can be assessed for an emergent background check for up to seven days rather than the old window of 24-48 hours. This gives parents more time to identify the best placement for their child and to access a background check process where someone could be cleared within an hour’s time.

Last year, legislation passed that allows for child-specific foster care licenses. The background checks unit now has the authority to approve an individual’s criminal history, knowing it is for a specific relative foster care placement when they might have been hesitant to clear a person for a full foster care license. Child-specific foster care licenses will allow relatives to access funding and benefits that can strengthen and support those placements. The Parents Representation Program provides technical assistance to family defenders to help them understand the technicalities of Washington State’s background checks law and policy. We also provide access to funds and encourage the use of independent experts, such as forensic social worker experts to complete private home studies and testify when DCYF is objecting to relative placement, including due to criminal history or due to the check not being completed. Ongoing Problems While progress has been made, there is still more to be done in Washington to speed up criminal and CA/N history checks and to address the bias and racism inherent in those checks. There is no system to allow for portable background checks so that if an individual is criminal history cleared for one purpose, they could get cleared for things like relative placement at the same time, which would eliminate future wait time for prospective relative placements. We hear regularly that prospective relatives are discouraged by a trial-level caseworker from even starting the background process by telling a relative they won’t pass and it’s “a waste of time” because they have criminal or CA/N history. DCYF caseworkers can even stop the referral for the background check from even happening. For example, in a recent case, a caseworker refused to refer for the background check unit and said they were objecting to the placement because the relative has a good relationship with the parent. Under DCYF policy, caseworkers are still required to object to relative placements when the background check is still pending, or a relative has a disqualifier. Children are still being placed in stranger foster care where there is an available relative stepping forward to care for them.

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A Washington State Supreme Court case has some examples of ongoing problems with background checks. In the unanimous decision, the Court found the trial court abused its discretion in refusing a Black child’s request to be placed back with his relatives. One of the relatives, Grandma B., had a job that required her to have a background check, but she still had to go through the process again. A private home study was done of Grandma B. after DCYF refused to conduct a home study because another a home study was being completed for relative Aunt H.; this led to a private home study being completed on Grandma B. However, both DCYF and the Court Approved Special Advocate objected to the private home study on Grandma B., and the trial court said it was inadequate but refused to explain why. Another relative was discouraged from applying for a background check due to a criminal history. The decision notes relatives must be given a meaningful

preference in dependency cases. They also noted child protection service and criminal history can serve as proxies for class and race, stating: “We know that like all human beings, judges and social workers hold biases, and we know that families of Color are disproportionately impacted by child welfare proceedings. Therefore, actors in child welfare proceedings must be vigilant in preventing bias from interfering in their decision-making. Factors that serve as proxies for race cannot be used to deny placement with relatives with whom the child has a relationship and is comfortable.” 1 Parents’ attorneys continue to reach out to our agency to provide technical assistance around ______________ 1 Matter of Dependency of K.W. , 199 Wash.2d 131, 156 (2022).

46 | FIJ Quarterly | Fall 2022

FIJ Quarterly | Fall 2022 | 47

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