(Ned Oliver/ Virginia Mercury)

Last in a two-part look at kinship care in Virginia. To read the first installment, click here

There is an inherent conundrum built into child welfare. Social workers are trying to protect kids, but  separating them from their parents is traumatizing, even if it’s for their own safety.

And reams of research shows that, if they have to be removed from their homes, children do best when they’re placed with family members.

So, for more than a decade, Virginia has been pushing to do just that: Divert the kids away from the system entirely by identifying relatives who can take custody if they’re unsafe in their homes.

The trouble is, nobody knows what happens next.

“If you’re asking me, at the state, what’s occurring with that diversion practice — how is that happening, how is it occurring, which families are getting services, which are not, how quickly are the kids going back to the family — the biological family — what are the outcomes, do they ultimately stay with that family, that sort of thing, I can’t answer those questions for you,” said Carl Ayers, director of the Division of Family Services with the Virginia Department of Social Services.

Diversion is, according to Ayers, the most “high risk” area within social services. By that he means there is no standardization to the practice. The state has no guidance, no regulation, no code that governs how local departments should practice diversion. And because Virginia is state-supervised and locally-administered, each local department of social services practices diversion in whatever way it sees fit.

That means that some families may get a home visit from a social worker before taking in the child. Some may not. In some counties, a caseworker might provide support to the family after diversion has taken place.

But often, the cases are “closed prematurely and meaningful permanency may not be established for the child,” states a 2016 state Department of Social Services report on the practice.

Advocates largely agree that diversion is well-intentioned. It’s an attempt to lessen, as much as possible, the trauma that a child will inevitably go through when being separated from their parents by at least keeping them with familiar people.

But in Virginia the practice is engulfed in a mountain of uncertainties. While foster care is often less than an ideal situation, it at least gives caseworkers the legal standing to check on the child, ensures the family has training to help them cope with emotional trauma and that a judge can determine if the child should be reunified with their parent.

In diversion, none of that is guaranteed.

“We’ve lost all control,” said Cathy Pemberton, a recently-retired DSS employee who worked at the state, regional and local levels over her 34-year career. “We want to do the right thing for the child, but then we lose the contact, we lose the control and we don’t really know.”

Lack of data

Diversion is a national practice that many states use, and Virginia really started ramping up its use during Gov. Tim Kaine’s administration in an effort to reduce foster care numbers.

The term “kinship care” refers to all sorts of situations, including informal relationships when grandparents take custody of a child without any involvement from DSS. Diversion occurs when child protective services has already gotten involved with the case, and when the parent or social worker identifies a relative who the child can live with to avoid foster care.

Often, once it is decided that a child cannot live with their biological parents and a relative is willing to take them, the case is closed and no additional tracking occurs. And it’s unclear how long diversion placements last. They can last just a few days, or they can become permanent.

Tomi Turner, family services manager with the Bedford Department of Social Services, said in her department diversion could be used when there is a heated argument teetering on emotional or physical abuse within the family. Then it might last a few days for things to cool off and for workers to connect the family to services.

In other cases, she said, there may be some intense mental health or substance abuse challenges, for example, that require the diversion to last longer while the parents get whatever services they need. Or it may ultimately result in the relative taking custody so that the child has some long-term permanence.

The best insight into the number of diversions that occur in Virginia is data from language in the 2016 budget, which had some local departments track all diversion placements.

Thirty-one departments participated, and from July 2016 to December 2017, about 1,300 families were diverted, encompassing about 2,200 children, Ayers said.

There are 120 local departments in Virginia. If all of them practice roughly the same amount of diversion, around 5,000 children may have been diverted within that 18-month time frame. There are about 4,700 children in foster care in Virginia.

“That’s how prevalent diversion practice is, that’s what it looks like,” Ayers told the Virginia Board of Social Services during its April meeting. “We have to figure out some type of guidance.”

Different opinions

There are varying thoughts on diversion within the world of child welfare. Few experts would say that it does not have its uses, but there are concerns around whether it really sets the child up for success.

“While some family members may offer a safe, less intrusive alternative to the bureaucratic complexities of state-supervised foster care, some child welfare experts worry that too many abused or neglected children are being inappropriately ‘diverted’ to live with relatives without the necessary safeguards and supportive services for children, caregivers and birth parents,” states a comprehensive report by the Annie E. Casey foundation on the kinship diversion debate.

In Virginia, kinship caregivers are often doing the same work as foster parents but without the support or financial assistance. That’s concerning to many child welfare experts, because the children almost always come with a lot of emotional trauma that their new caregivers may not be equipped to handle.

“Parenting is the hardest job in the world in the best situation,” said Lisa Specter-Dunaway, CEO of the advocacy group Families Forward. “So when you add mental health issues, behavioral health, significant trauma, it makes something difficult even more difficult.”

Others argue that the foster care system is inherently traumatizing and keeping kids out of it is always better for their well-being.

“Some agency leaders and families believe strongly that, when relatives are willing and able to care for children safely, children do better without the uncertainty and potential disruption of ongoing system involvement,” the Annie E. Casey foundation report states.

“It is complex,” Pemberton said. “We don’t want kids in foster care, it’s not good for kids at all. But when it happens, and there’s no other option, then we need to make sure that we’re doing everything that the child needs to recover from whatever brought her to us to begin with. And when you don’t have any mandated follow up or even legal ground to follow up, you just don’t know that that happened.”

But the biggest problem for advocates and those working in child welfare in Virginia is the uncertainty. Maybe diversion is working, but nobody can know for sure.

“I think, in our effort to reduce the number of children in foster care, one of the ways to do that is to increase these types of placements,” said Jeanine Harper, executive director of Greater Richmond SCAN, or Stop Child Abuse Now. “And that’s a really healthy, good thing for children and their families and for caregivers: To know their children are with people that will maintain the bonds, potentially.

“But we’re doing it, and we don’t really know how well we’re doing it,” she continued. “Ultimately we don’t know if children are better off.”

Reunification with parents

Additional concerns swarm around whether or not parents are getting a fair shot at reunifying with their children once they’ve been separated. In foster care, a judge can decide if the child can live with the parent again. But there is no court oversight in diversion.

“Anytime the state does something that interferes with someone’s constitutional rights, the state has a responsibility there,” said Valerie L’Herrou, an attorney with the Virginia Poverty Law Center. “Diversion, arguably, creates that responsibility.

“I would certainly agree that we don’t have to have the courts involved in that situation where there’s a clear pathway for kids to come back,” she added. “So the problem is when there isn’t a clear pathway and the kid stays away forever.”

The 2016 Virginia Department of Social Services report points out that, “when custody is transferred to a kin caregiver,” the department “has no further legal obligation to the parent in terms of reunification.”

“They’ve deprived this parent of their child using the force of the state, in this case as a threat, but they’ve provided no due process whatsoever,” L’Herrou said.

Regulations

Right now, the state is waiting on a report from Child Trends, a child-focused research organization, with more details on the data collected between 2016 and 2017 on diversion. From there, Ayers said, the state will determine how to provide guidance to the local departments.

“I’m not sure where diversion will take us,” he said. “I’m not sure that I’m majorly worried that we’re placing children at risk. I’m not worried about their safety from that end of it.”

Andy Crawford, director of the Bedford Department of Social Services, said regulations are a double-edged sword. He would like to see some guidance around diversion, but not if it becomes an unfunded mandate.

Local departments of social services are struggling with high turnover and low retention rates in their work forces. If they don’t get the staff they need to institute new requirements for diversion — to pay for the time a social worker would have to spend checking up on families, for example, or inputting data — new regulations could hurt more than they help.

“We have a problem where we don’t have enough staff in this state,” said Crawford, who is also the president of the League of Social Services Executives. “So what happens when you don’t have enough staff is people make mistakes or they don’t do their jobs well because they’re stressed. So when people make mistakes the General Assembly makes more policy. When the General Assembly makes more policy, that makes the work even harder.”

The first step with diversion, though, is understanding if it actually helps children.

“We cannot answer the question: What happens to these kids?” said Allison Gilbreath, policy analyst with Voices for Virginia’s Children. “We don’t have any data, we don’t know qualitatively: Are they better off? Are they having their basic needs met long term, do they enter the system later, do they eventually go back to their family of origin? We can’t answer those questions. And that concerns me.

“That’s a lot of children who we’re not 100 percent sure we did the right thing. We may have, but we don’t know.”