DEE WILSON CONSULTING
The Erosion of Child Protection in Washington State
(Originally published December 2023)
By Dee Wilson and Toni Sebastian
The Washington State Office of the Family and Children’s Ombuds’ report, “Child Fatalities and Near Fatalities in Washington State” (September2023) describes a large increase in fatalities and near fatalities related to suspected child maltreatment since 2017. From 2017-2022, OFCO reviewed an average of 35 child fatalities from suspected maltreatment cases that had been open or recently opened, i.e., within 12 months of the date of death. In 2022, OFCO reviewed 39 suspected child maltreatment fatalities, a modest 11% increase which could be due to random yearly variation. However, the number of near fatalities from suspected child maltreatment more than quadrupled from 8 in 2017 to 35 in 2022.
The OFCO report indicates that fatalities and near fatalities due to suspected maltreatment have increased in Washington due to a huge increase in drug overdoses affecting all ages of children and youth. According to the OFCO report, in 2017 there were a total of 5 fatalities and near fatalities due to “Accidental Ingestion and Overdoses” compared to 52 in 2022, a ten-fold increase in six years. Critical incidents involving fentanyl ingestion by children increased from 0 in 2017 to 38 in 2022.
The safety threat to children of accidental opioid ingestion and death
or near death has greatly increased in recent years for both children,
0-10 and youth, 11 to 22 years of age. During 2022, there were 24 cases
of accidental ingestion and overdoses of children, 0-10 and 28 cases
of youth and young adults, 11-21 years of age. Almost a third of
accidental ingestion and drug overdoses involved children 0-2 years
of age. It is an open question whether all drug overdoses involving
infants with limited mobility were actually accidental. Given infants’
limited mobility and motor skills, there is a distinct possibility that in
some cases infants were given a small amount of a dangerous drug to
sedate the child.
In part, the large increase in fatalities and near fatalities reflects the
changing social milieu of substance abuse, especially the increased
use of fentanyl. However, it is already apparent that the Keeping
Families Together Act (KFTA), sometimes referred to as HB 1227, has
had a large effect on CPS and judicial decision making, both before
and following its implementation on July 1, 2023. KFTA is discussed
at length in the recently released OFCO annual report and in a recent
data analysis completed by DCYF staff.
KFTA narrowed the grounds for all involuntary out-of-home placement
of a child to “risk of imminent physical harm,” a standard not much
different than the one used for decades by law enforcement officers for taking a child into protective custody. However, KFTA also establishes rigorous standards for showing that “risk of imminent physical harm” exists, including the requirement that a legal petition show a causal connection between substance abuse, mental illness, or other conditions in the home and an imminent threat to a child’s physical safety. Substance abuse or mental illness, in and of themselves, are not grounds for child removal, regardless (it seems) of their severity.
In addition, a legal petition which seeks removal of a child from a parent “shall contain a clear and specific statement as to the harm that will occur if the child remains in the care of the parent, guardian and custodian …,” not “will likely occur.” I question how any sensible caseworker could possibly assert in any circumstance that “The child will accidentally ingest fentanyl if not placed out of the home” unless this has already occurred, in which case the child may be deceased or near death.
As the DCYF PowerPoint, “Keeping Families Together Act,” (October 16, 2023) makes clear, the immediate result of KFTA has been to reduce entries-into-care due to “risk only,” and risk of future harm, leading to a 24.6% reduction in entries into care from July 1, 2023 through September 30, 2023 compared to the same months in 2022. In Region 5, entries-into-care, including through protective custody, court orders and voluntary agreements declined 43% from 2022 to 2023.
The 25% reduction in entries-into-care in 2023 followed a large reduction in dependency actions and in entries-into-care in 2022. This reduction may also have been largely due to KFTA, after the law’s passage but before its implementation. In May 2022, Patrick Dowd, the OFCO Director, informed me through email: “… DCYF staff in some counties have described a culture shift when assessing child safety and family preservation. They feel their court has embraced the requirements in HB 1227 … and applied this new standard when determining whether or not a child should be removed from the home.” This comment suggests that KFTA has already had a large impact on placement decisions, not just because of the law’s specific requirements for child removal, but also because many juvenile court judges and commissioners enthusiastically support the values and assumptions of the new law. The same is probably true of many DCYF caseworkers, supervisors and managers.
This sea change in child protection has had the greatest effect on at- risk infants. The number of infants placed in out-of-home care declined by 40% from July 1– September 30, 2022 vs. the same time period in 2023. This is a disastrous change, the worst possible effect of KFTA because of the vulnerability of infants. Applying a strict risk of imminent harm standard to the removal of infants in homes where a parent (or parents) has severe functional impairments due to substance abuse or mental illness (or both) endangers their lives. Infants are too vulnerable to wait for them to be harmed from child maltreatment, regardless of a parent’s degree of functional impairment, before placing an infant in unlicensed kinship care or in foster care. KFTA’s legal standard for child removal is a formula for increased child fatalities and near fatalities among young children. This is what has occurred, with no end in sight.
Prenatal substance abuse
However, the influence of KFTA on CPS and judicial decision making is only one part of the erosion of child protection standards in Washington. During the past year, DCYF has issued guidelines to hospitals regarding reporting of prenatal substance abuse (PSA) that allow hospital staff to forego making CPS reports of PSA when there is no safety concern, and instead develop an interagency “Plan of Safe Care” with the parent or parents. Not surprisingly, this new approach to PSA has resulted in fewer CPS reports from hospitals and fewer infants being placed within 30 days of a CPS report of PSA.
There is very little research regarding use of Plans of Safe Care, but what little there is has not been encouraging. A recent report regarding a program in New Mexico similar to the new approach to PSA in Washington found that 41% of parents for whom a Plan of Safe Care had been developed were not aware of such a plan. (communication from Maralyn Beck). A recently published study, “Family Care Plans for Infants with Prenatal Substance Exposure” (Sieger, et al, 2023) found that, in a sample from Connecticut, “Less than one third of FCP’s (family care plans) included substance abuse services and less than one fifth included children’s services.” Law and policy are one thing; implementation is something else.
However, it would be a mistake to assume that the DCYF guidelines that allow hospitals to forego making CPS reports of PSA except when they identify safety concerns represents a big change in practice. A study of infants diagnosed with PSA from 2006-13 in Washington state (Rebbe, et al, 2019) found that the state’s hospitals reported only 42% of known cases of PSA, and that only 13% of infants with a PSA diagnosis were placed out-of-home during the neonatal period. It appears that new DCYF guidelines have endorsed what was (to a large extent) already many hospitals’ reporting practices.
It would also be a mistake to conclude that Plans of Safe Care are inherently less effective than CPS in-home safety plans. In-home safety planning is arguably the weakest part of child protection programs both in Washington and nationally due to a lack of guidance from research, dubious practice wisdom, indifferent implementation resulting partly from excessive workloads and the lack of safety-oriented services. KFTA has created an urgent need for research-based guidelines and an infrastructure of private agency contracts that support in-home safety planning, infrastructure that does not currently exist. Betting young endangered children’s lives on in-home safety plans developed and implemented by inexperienced and overwhelmed caseworkers is reckless, ill-advised public policy, which is what is occurring in Washington under a social justice banner.
The increase in child fatalities and near fatalities and/or of drug overdoses among children is the tip of the iceberg reflecting an erosion of child protection standards in Washington State. The number of near fatalities is an inadequate proxy measure for serious physical injury following a CPS report; it is likely that serious injuries, both intentional and unintentional, greatly outnumber near fatalities. In addition, the rate of re-report of children assessed as moderate risk and high risk has increased since 2020, as described in the DCYF PowerPoint mentioned above. It appears that many DCYF caseworkers have decided to ignore or minimize risk assessment in their decision making, both in regard to placement decisions and decisions regarding provision of services, a trend that predated the passage of KFTA.
Implementation of KFTA
The implementation of new legislation is greatly affected by the beliefs, attitudes and values of agency staff, judicial officers and other professionals. Consider the following statement from DCYF:
“(KFTA) requires the court to consider if participation in services would prevent the need for removal. If so, should the parents agree to services at the shelter care hearing, the court shall place with the parent.”
How judicial officers and caseworkers implement this KFTA provision will depend on what they believe regarding the immediate effect of therapeutic services on child safety. The idea that a child deemed at risk of imminent harm, or high risk for child maltreatment due to substance abuse and/or mental health challenges, will be immediately safer when a parent or parents agree to enter services, or in the initial phase of treatment, is false.
Treatment of chronically relapsing conditions such as substance abuse or depression is usually a rocky road, with periodic setbacks. Parents who enter treatment programs may not stop misusing drugs or alcohol, or even when clean and sober, be able to provide safe, nurturing care to their child for many months. However, if caseworkers and judges believe that “services equal safety,” they are likely to return children to parents prematurely. It is of the utmost importance that decision makers understand that “treatment is not protection,” especially in the early stages of treatment, and that the recurrence of maltreatment during therapeutic services is common.
Services and KFTA
Both the OFCO report and DCYF analysis of KFTA comment that the law’s implementation was not accompanied by additional services and resources. In fact, the DCYF PowerPoint referenced above maintains that substance abuse treatment and mental health treatment services in Washington have declined during recent years. It appears that the developers and legislative sponsors of KFTA did not consider the need for additional services and resources to safely reduce the number of children in foster care. A main goal of KFTA is safe foster care reductions. However, as implemented, this goal would be more accurately described as safe foster care reductions in which a concern with child safety is barely discernable.
The OFCO report emphasizes the need for more substance abuse treatment services, but this is only a small part of what is needed to implement KFTA without disastrous effects on child safety. An array of safety-oriented services is needed, including many more residential care facilities for substance abusing mothers and their young children, crisis nurseries, respite care, therapeutic child care programs, expanded low-income housing programs, and private agencies which can support in-home safety plans with (at least) weekly visits. Many foster parents are able and willing to mentor birth parents during the reunification process, and these foster parent mentors should be compensated for their services.
It may be possible to achieve safe foster care reductions through KFTA, but not without additional therapeutic resources, a better understanding of in-home safety planning and an infrastructure to support in-home safety plans.
Furthermore, in its current form KFTA is dangerous law, especially in regard to infants and toddlers living in homes with combinations of parental substance abuse, chronic mental illness and domestic violence. Language needs to be added to the law to clarify the requirement that petitions for child removal show the causal connection between substance abuse, mental illness and other conditions in the home and risk of imminent physical harm. The requirement that a legal petition must describe what “will occur,” should be amended to say what “will likely occur.” The provision of KFTA which encourages courts to consider returning an endangered child to the care of parents at shelter care when they agree to services should be amended to reflect an understanding of the dynamics of substance abuse and mental health treatment.
The state legislature should require DCYF to submit a yearly or bi-annual report regarding the outcomes of KFTA and of changes in the state’s approach to prenatal substance abuse. It is also important to make some state agency other than DCYF responsible for tracking all child deaths from suspected child maltreatment, regardless of whether a deceased child has ever been reported to CPS.
Policymakers in Washington, with the support of many child advocates, have embarked on a dangerous initiative in child protection. It would be an understatement to assert that this experiment has gotten off to a bad start. There is an urgent necessity to carefully -- and regularly -- study KFTA outcomes and the state’s new approach to PSA, and to make revisions to the law as needed. Policymakers and child welfare managers can remain committed to the goals of KFTA while addressing the challenges to effective implementation more realistically and adaptively.
In the meantime, OFCO, DCYF data analysts and the Seattle Times editorial board deserve to be commended for their excellent reports and dispassionate analysis of KFTA, child fatalities and near fatalities, and their advocacy of services needed to protect the state’s most vulnerable children in this new era of child protection.
References
Annual Report 2023, Washington State Office of The Family and Children’s Ombuds, November 2023.
Beck, M., Executive Director, New Mexico Child First Network, personal communication, Oct. 30, 2023
“Child Fatalities and Near Fatalities in Washington State,” Washington State Office of The Family and Children Ombuds, September 2023.
Keeping Families Together Act, DCYF External Webinar, Oct. 16, 2023, https:www.dcyf.wa.gov/practice/practice-improvement/HB-1227
Rebbe, R., Mienko, J., Brown, E. & Rowhani-Rahbar, A. “Child protection reports of infants diagnosed with prenatal substance abuse” (2019), Child Abuse and Neglect, 88, pp. 28-36.
Sieger, M.L., Nichols, C., Chasnoff, I., Putnam-Hornstein, E., Patrick, S. & Copenhaver, M., “Family Care Plans for Infants with Prenatal Substance Exposure” (2023), Child Welfare, Vol.101, No. 2. pp. 169-92. ©
Sounding Board 2023
January – The Debate Over Use of Predictive Analytics in Allegheny County
February – Using an Algorithm to Predict Hospital Encounters, Any- Cause Injury and Abusive Injuries at CPS Intake
March - The Increase in Hotel Placements
April - The Reduction in Foster Care in Washington State
May - How to Reduce Foster Care Without Endangering Children
June - Lessons from Child Fatality Reviews in Washington State
July - Do Child Fatality Reviews Prevent Maltreatment Related Child Deaths?
August - Transforming Child Welfare Through Poverty-Related Services
September/October – Providing Poverty Related Services in Child Welfare: Guidelines and New Developments
November - In-home Safety Planning
December – The Erosion of Child Protection in Washington State
See past Sounding Board commentaries
©Dee Wilson
