Originally posted on The Imprint on 5/2/2022

As a former child welfare director, I am troubled by the lawsuit filed against the New York Office of Children & Family Services that seeks the removal of newly adopted host home regulations. This lawsuit ignores the reality that every day, Black, brown and poor families with children in this country — more than we can keep track of — hit a crisis point and are too scared to ask the government for help.  

Why? Because they fear that needing help will bring them to the attention of systems designed not to help but to blame them for their frailties and translate that into a need to remove their children and punish them. Often, that system is child welfare, and while its current rules, mandates, regulations and procedures were designed to intervene when there is abuse or neglect, it was not designed to help families who simply need help during an emergency.  

As a result, families too often find themselves in front of a wide-open child welfare door, where they are disproportionately investigated and their children removed and then languish in foster care, and ultimately struggle to succeed later in life.

Instead, the New York host family homes regulations, as described by OCFS Commissioner Sheila J. Poole, is designed to do the following: 

“… support families who need temporary help caring for children during a surgery, illness or death in the family or other temporary family crisis. … there are wonderful families in communities throughout our state willing to support their neighbors who do not have friends or relatives who can safely care for their children in an emergency. Parents will now have a reliable place to seek temporary care of their children when they need it without fear of unnecessary child welfare involvement.”

The petitioners of the lawsuit against OCFS claim that the hosting regulations will create a “shadow foster care system” and assert that the regulations will deprive families of the “protections” and safeguards of the child welfare system. We need to see this for what it threatens to be: an attempt to subject some parents and families to unnecessary and discriminatory scrutiny and surveillance in a system that already does too much of both. 

I assure you: Walk up to any Black, brown or poor family in America and offer them the opportunity to have “judicial oversight” and “court mandated services” and I will tell you what they will do — run as fast as they can. But that is exactly what those who support the New York lawsuit are proposing to do for families who have done nothing wrong except find themselves asking for and needing help — something almost any of us have done at some point in our lives. 

The difference is, some of us have help nearby in our families and social networks and some folks do not. And instead of assuming that these families understand what they need and that they are fully capable of making decisions on behalf of themselves and their children, this lawsuit assumes that they need to be brought to the attention of a child welfare system. While the rest of the nation is talking about preventing child abuse and neglect and intervening with families earlier, this legal strategy is suggesting that we need to open the child welfare door wider. 

The truth is we need more ways to connect with families in crisis, not more openings to get involved with the child welfare system. Safe Families for Children is one such way and New York’s regulations make it clear it is not to be used as “shadow foster care” — it is a choice made by two families, one who needs help and the other who is willing to do just that. Across the nation, Safe Families has served tens of thousands of families who needed help who can vouch for that!

I fear that this lawsuit will lead more parents in need of emergency child care services to voluntarily transfer “care and custody” of their children to the state. No parent wants to do that, nor should they be forced to do so, when they are not abusing and neglecting their children. When using host families, parents maintain full custody of their children. It is the parents who are asking for someone to host their child temporarily, without coercion and not initiated by a child welfare investigation. 

It is the parent who decides, not the state, to have their child hosted; it is the parent who is introduced to potential and available host homes, and they choose. The host families are all volunteers; they are not being paid; they have no motivation other than helping. 

This lawsuit should give us all pause. Exactly what existing law gives government the authority to take these basic rights away from parents simply because they are experiencing the kinds of inevitable emergencies that are part of everyday life? And who among us thinks that it should be open to debate?  

This type of regulation of community supports for families is not without precedent: child care facilities, schools and camps are all regulated by rules and procedural safeguards. Host homes will also be subject to regulation, including background checks.  And while parents do not need an attorney to enter into a hosting decision, under the regulations, they will be given access to a list of free and affordable legal counsel before they make the decision. And most certainly, the children do not need an attorney unless the lawsuit is suggesting that they need protection from their parents, who are doing everything they can, as they cope with an emergency, to make sure that they are safe. Most people would find it hard to understand what problem this lawsuit is solving.

We must be diligent in pointing out the difference between host families and what the lawsuit and subsequent coverage refer to as a “shadow system” or “hidden foster care.” Hidden foster care involves an informal arrangement where a relative or friend cares for a child in an attempt to bypass a child welfare investigation. There is no court oversight and children often languish in these arrangements with no advocacy. It is terrible. 

But the New York regulations do not allow hosting to take place if there is an open investigation with child services. Under the legislation, hosting in New York cannot be a response to a CPS investigation and is therefore not “hidden foster care.” Hosting is, instead, one among what many of us in this field hope will become community-based solutions to address families who need help with their children, help a child welfare system was not designed to give. 

Mother Teresa once said that “the problem with the world is that we draw the circle of our family too small.” This lawsuit threatens to exacerbate this problem in New York.