An Affiliated Project of the Institute to Transform Child Protection at the Mitchell Hamline School of Law
What is hidden foster care?
Hidden foster care occurs when a state, county, or tribal child protective services (CPS) agency separates a child from their parents without court authority or oversight, and requires relative caregivers or others to assume primary responsibility over the child's care. CPS agencies threaten parents, explicitly or implicitly, that they will remove their children, bring them to court, and possibly place them with strangers if the parents do not comply.
While agencies may present these arrangements as optional, this is rarely the case—agencies have used their immense power to coerce parents into a family separation. Parents and guardians, without access to legal advice, too often act out of fear rather than a careful consideration of factors in the best interests of their family, and may feel compelled to accept arrangements that are harmful to their family.
When hidden foster care occurs, many protections and services that would otherwise be provided to families when children are separated from their parents or guardians through the court system are lost. Sometimes CPS agencies use hidden foster care arrangements when they lack legally sufficient evidence to prove abuse or neglect or cannot justify a family separation in court. Agencies may operate under the assumption that they do not have a legal obligation to arrange visits between parents and children, work toward reuniting children with their parents, or financially support relative caregivers.
What are the harms posed to children and families?
Hidden foster care is a coercive practice. Parents, children, and relative caregivers are forced to make life-altering decisions without adequate information about their rights. Additionally, the safety and well-being of children is at risk because hidden foster care disrupts their lives and does not assure their safety.
Isn't it good to keep children with relatives?
While it’s true that children who must be separated from their parents do better when placed with relatives or other adults they know well, the coercive and involuntary practice of hidden foster care is not the right way to ensure that children can remain with their kin.
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In cases where children do need to be removed from their parents for their own safety, their relatives can become formal foster care providers, which provides the relatives with important resources and enables them to receive federal financial support. In fact, 35% of national formal foster care placements are with relative caregivers, with rates much higher in certain states and counties. States provide significant financial support to those kinship foster families, but deny that support to kinship caregivers in hidden foster care.
In some circumstances, families do need to make alternative plans regarding the care of their children. We fully support truly voluntary agreements made between family members without the threat of CPS involvement.
What is the solution to hidden foster care?
First, states need to collect data and report on the practice of hidden foster care. We know from informal data collection that hidden foster care is significant and pervasive. However, because states are not required to track data on the outcomes of hidden foster care cases, there is a lack of publicly-available data to document the full extent of the problem. Research suggests that in the 33 states studied, the total number of family separations via hidden foster care amounts to more than 200,000 children per year. Collecting and publishing national data is the first step towards addressing the problem of hidden foster care in America.
States should also provide legal representation to parents whenever the state suggests or facilitates a family separation. Effective lawyers can provide an essential checks and balances on agency power, and help ensure that parents’ choices are truly voluntary. Other possible solutions include ending policies that encourage and incentivize coercive CPS practices, imposing time limits on informal family separations, and supporting children and families with necessary services if a family separation occurs outside of the formal foster care system.
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See the Coalition's Statement of Principles for a more detailed description of how to regulate this practice and ensure that family separations are never hidden from oversight and agency accountability.