Longer stays in foster care prompt lawmaker's move toward easier termination of parental rights

Published: Jun. 27, 2019 at 7:20 PM CDT
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For Marathon County foster parents who have been serving for a few years, they’ve watched firsthand as not only the number of children in the system increased, but also the length of time they were staying in foster homes.

“You never know when you say yes if it’s gonna be a few weeks--or if it could be years,” Wausau foster mom Sandy Schmidt said.

Sue Mathson, fostering children for seven years, said it used to be six months. But now, “It seems like all of our homes are filled with kids that have been there a long time...over a year.”

Seven years ago, a foster child in Wisconsin spent an average of 157 days in the system, according to the Wisconsin Counties Association. At the end of 2017, the average stay was 364 days.

It’s not hard for experts to explain the change. The primary driver behind not just the increase in the lengthening timeline but the rise of children in the system is explained by an average of 80% of child welfare cases coming from homes where methamphetamine and opioid abuse are factors that push the children into the system, according to the Wisconsin Department of Children and Families (DCF).

What’s harder to explain is the solution. Wisconsin’s foster care system isn’t designed to handle the length of time it takes for people struggling with addiction to recover, and lawmakers and experts don’t have immediate answers. A 2016 study from the National Center for Biotechnology Information (NCBI) found that after a 12-month period of opioid detoxification, 72 to 88% of patients would relapse in the next 12 to 36-month period. For many patients in recovery, relapses occur on average seven times before the treatment is successful, according to multiple professionals in social services and law enforcement.

Republican state representative Pat Snyder shares familiarity with the issue. He’s currently the chairman of the Assembly’s Committee for Children and Families, and sits on Marathon County Department of Social Services’ (MCDSS) Administrative Review Panel. The latter commission is where he gets some of his firsthand knowledge of the crisis, and it’s also where he’s seeing cases that are motivating a legislative push that he hopes could provide a solution to children caught in foster care for lengthy periods of time.

Snyder tells 7 Investigates he’s been researching ways and talking to judges and lawyers about making involuntary termination of parental rights (TPR) easier in Wisconsin and speeding up the adoption process, and says the current system has loopholes not shared by many other states. Among his plans is removing jury trials and creating a statewide standard for the amount of time that the court system can continue to delay TPR or provide extensions. Ultimately, his issue is with a process that drags out months and years longer than he believes it was intended.

But the foster care community says that process isn’t always a bad thing.

“I think legally, it should be a slow process, when you look at the significance of what that means in the life of a child--and certainly in the lives of their parents,” MCDSS director Vicki Tylka noted. The caseworkers she directs are often influential voices in that process, and she says they want to make sure they explore every possible option before supporting a TPR decision.

Foster parents familiar with the biological parents of the children they foster explain how they see well-meaning parents all the time, struggling to recover to get their children back.

“They make a mistake but then they recover again, but then they make another mistake, and then they recover again,” Wausau foster dad Patrick Schmidt explained. “These are well-meaning, well-intentioned, capable people of parenting their kids that struggle with this substance abuse that are making progress. And so the court and the county and even the foster parents want to bear with them for a little bit because we realize that it’s not a Point A to Point B clean line to recovery. And so that’s part of the reason why it’s taking longer, and why I understand in some cases why it should take longer.”

But at the same time, he recognizes it’s a process that looks different for every person.

“I have a lot of empathy for those people because I’ve worked with them,” he said. “Somebody may disagree and think, ‘We can’t bear that amount of time, because a child needs a permanent home.’ And I understand that. I don't’ know what the perfect number of months or years is. I think every situation’s different...So whatever legal processes need to change, they need to be flexible to understand the different nuances and situations that people are trying to reunify in.”

For Snyder, he says he isn’t necessarily targeting parents who are actively trying to recover from addiction--but he does have a different idea about how to keep parents involved while providing children with a stable home: he says he wants Wisconsin to become an open adoption state.

“If it’s an open adoption state, they might be able to release their child, give it to a healthy family for a loving environment, but still try to stay with their struggles to work on that--and in the meantime, know about the child,” he explained.

“There’s a difference between parents that are struggling and relapsing, but working hard to try and get their kids back--and parents who just don’t care,” he said. “We’re not trying to come in and be the Gestapo...but if you aren’t making strides 15 of 22 months of trying to help, you know, get back with your child--then we should really take a strong look at that.”

Federal law requires all states to start involuntary TPR once a child has been in out-of-home (OOH) care for 15 out of 22 consecutive months. But most states have a variety of modifiers to that rule, and Wisconsin is no exception. Even after a child has been in the system for the time required, social services and the court system can--and often do--extend their time if they see parents are making an effort to reform, or if other exceptions exist.

Additionally, Wisconsin has a two-step process for TPR. First, grounds for termination have to be proven, which include a variety of definitions for abandonment, relinquishment, continued denied visitation and continuing need of services and protection. Secondly, even if grounds for termination are established, it has to be proven that TPR is in the child’s best interest.

The second phase is one where at least two hearings--and a jury trial--have to be held. The jury trial is unique to Wisconsin and only a handful of other states, and it’s one of the places where Snyder wants to start making cuts.

“There’s been recommendations from several family judges that we eliminate jury trials,” Snyder told us. He believes that’s one of the issues that’s dragging out adoption proceedings, although adoption rates overall in Wisconsin sit nearly exactly in the center of rates around the country, at 2.11 per 1,000 in population and 1.90 per 1,000 in child population, according to a 7 Investigates analysis of 2017 U.S. census data compared with 2017 information from the Adoption and Foster Care Analysis and Reporting System (AFCARS). For comparison, West Virginia ranked highest in 2017 at 5.74 per 1,000 in population, and Virginia the lowest at .90.

This isn’t the first time Snyder has pushed for legislation that relaxes the requirements for involuntary TPR. He co-chaired the Foster Care Task Force that resulted in a package of eleven bills that passed the state legislature in 2018, two of which tried to remove some of those barriers to terminating rights.

Today, he’s part of Assembly Speaker Robin Vos’ newly-minted Adoption Task Force, working on the same issues of terminating rights and shortening adoption wait times as he was two years ago.

“We really didn’t go far enough,” he said of the Foster Care Task Force. The difference now? He says the group knows more about what needs to be fixed.

Ultimately, those who weighed in on the issue acknowledge it’s difficult to set any definite standard when dealing with scenarios that differ greatly from case to case. But one children’s counselor who has been in the field for 35 years says the move toward easier TPR could be especially meaningful for children in the system dealing with other issues, like physical abuse in the home.

“I felt frustrated that those children had to keep being returned to their parents, because of the state statutes,” Peaceful Solutions’ Lee Shipway acknowledged of children she counseled in those situations. “I felt at times that if those kids could have had their parents rights terminated, they could have been adopted by a loving home, parents that would have treated them well.”

Of adoption, the Schmidts say that while it’s both a celebration--and a loss.

“It’s a loss to the child,” Sandy said. “They lose their biological parent on some level, and it’s a loss obviously to the biological family to lose a child. And that’s not just the parents, but that’s grandparents and aunts and uncles and cousins. So it's a really, really big decision and it shouldn’t be made lightly.”

“It’s not necessarily the laws that are keeping us from coming to that decision point,” Patrick added. “It’s the overwhelming number of children and the limited resources that we currently have in Marathon County.”