Washington state legislators are weighing a bill that would guarantee legal counsel for hundreds of parents ensnared in “hidden foster care” — informal placements arranged outside of court oversight.
In a practice deployed to varying degrees nationwide, social workers with the state’s Department of Children, Youth, and Families offer parents the option of voluntarily handing over their children to friends or family. In exchange, parents can provide input on where they would like to have the children stay without the dictates of a formal foster care placement.
Legislation introduced by Rep. Lillian Ortiz-Self (D) would provide public defenders for those parents, who currently face separation from their children through contracts with the child welfare agency known as “voluntary placement agreements.” Such arrangements have been criticized by social work scholars and child welfare advocates, who say they can be coercive and strip parents of their due process rights.
“When you look at representation for such a critical decision in your life — whether or not to place your children in the care of the state — we just want to make sure that parents fully understand what they’re stepping into and what their options are,” Rep. Ortiz-Self said in an interview last week.
According to state data shared with members of the Washington Legislature, the number of children who entered foster care as a result of a voluntary placement agreement totaled 342 in 2022 — more than half taken from families of color. Even though that annual number has decreased over the past five years, there is only scant public information about how and when Washington social workers offer parents these voluntary agreements, and whether most families involved ultimately end up in the more formal foster care system.
Gabrial Cisneros-Lassey, a father in Spokane, said he had little choice when Washington CPS workers suggested he hand over his children. He described a struggle with addiction and homelessness in January 2016, when social workers offered him a voluntary safety agreement.
Cisneros-Lassey said he was in favor of preventing his two children from being placed in foster care, by having them live with their mother, for example. But he recalled that social workers shot down his ideas and he felt he had no recourse other than signing the voluntary agreement.
“I felt very alone and small and without a voice,” Cisneros-Lassey, said in an interview. “When you’re somebody that has no resources and no money to hire an attorney, when CPS tells you to do something, that’s law.”
Cisneros-Lassey currently helps other parents facing the removal of their children in dependency court hearings with a group called Parents for Parents, and is part of the Spokane Parent Advocacy Network. He now has custody of his children, but even their brief stints in foster care have left a mark.
“When children get taken away, there’s a lot of damage that happens,” he said, “trauma that is unseen for years and years.”
At a legislative hearing last week in Olympia, Allison Krutsinger, spokesperson for the Washington State Department of Children, Youth, and Families, said the agency is “very supportive” of efforts to involve legal counsel early in child welfare cases. Krutsinger said it could help parents navigate “a deeply complex, complicated and stressful situation.”
However, she said the state’s child welfare agency has concerns that Ortiz-Self’s House Bill 1295, was too “vague” and overly broad.
On Friday, the House Human Services, Youth, & Early Learning Committee will vote on the bill, which would be phased in over three years, at a total ongoing cost of $12 million a year. Ortiz-Self said she plans to introduce an amendment to her bill proposal that clarifies the offering of legal representation would apply only to parents offered voluntary placement agreements — not to all parents being investigated by social workers when a formal case has yet to be filed in court.
But the Snohomish County legislator said she is determined to curb the state’s reliance on “hidden foster care” — a practice that is not new but has drawn national scrutiny in recent years.
Legal scholars say when social workers offer parents under investigation of child maltreatment informal agreements to relinquish custody of their kids, they do so without the important guardrails that come with court supervision.
Columbia University law professor Josh Gupta-Kagan has been among the most outspoken critics of these arrangements, saying they lead to unnecessary family separations and parents agreeing to things under unfair coercion: the terrifying prospect of having their children taken into foster care.
Gupta-Kagan, who authored a landmark 2020 Stanford Law Review journal article on the use of hidden foster care across the nation, notes the power differential between the CPS worker — backed by the state — and the typically low-income, marginalized parents being investigated for maltreatment allegations with no legal representation or recourse.
“These agencies carry authority that no one else does — to literally destroy a family,” Gupta-Kagan said. “Any interaction they have with parents, even if they don’t make the threat of taking the child away explicit, it’s going to carry that coercion.”
Buoyed by local and national media reports, increased awareness of hidden foster care practices has prompted lawsuits in North Carolina, Washington, D.C. and New York, among other states. A handful of state legislatures have also considered bills to track and address the harms of hidden, or shadow foster care as it is sometimes called.
California passed legislation in 2021 to provide greater court oversight of some hidden foster care arrangements, but similarefforts that year in Maryland and Texas were unsuccessful. In this session, Houston state Rep. Lacey Hull (R) has reintroduced a bill that would limit the use of “parent child safety placements” by the Texas Department of Family and Protective Services to 30 days, and mandate legal representation for parents in those situations.
Washington’s HB 1295 is backed by an advocacy group that aims to tackle racial disproportionality in the child welfare system and to reduce the number of children who enter foster care. Inspired by the national racial reckoning that followed the murder of George Floyd, the Keeping Families Together coalition also helped pass a pair of bills that raise the standards for removing children from their parents and make it more difficult to terminate parental rights. Rep. Ortiz-Self authored House Bill 1227 in 2021 and House Bill 1747 in 2022, both of which were signed into law.
“If we are going to sever family ties, we have to make sure that we do it because we absolutely have to,” Ortiz-Self said. “If there’s ever any other options, services, supports, guardians or family members that can step in and keep the family united, or help reunification, we have to take those chances.”
Tara Urs, an attorney with the King County Department of Public Defense and a member of the Keeping Families Together coalition, said there are times when voluntary placement agreements can be helpful. Some parents may want to temporarily place their children with a relative during a crisis, or to enter a drug treatment program, thus avoiding the lengthy process of a CPS court case.
But without a lawyer present during meetings with social workers, parents could relinquish their children when the state does not have enough evidence to file a child maltreatment petition to a judge, she said. Legal representation can also be essential to ensuring parents get access to the services and support they may need to keep the children safe.
“Every step that we can take to level the playing field for parents is important,” Urs said. “Given the extraordinary power disparity that comes with any CPS interaction, we can’t ever completely level it out — but to just tip the scales even the slightest bit closer to even is a helpful step in avoiding family separation.”