Favoring Reunification for Children in Foster Care is a Legal Mandate, Not Bias Against Foster Parents

Federal and state laws governing child welfare agencies have long required that reasonable efforts be made to prevent the removal of children from their homes, and to reunify children with their families of origin when removal cannot be safely prevented. Beginning with the Adoption Assistance and Child Welfare Act of 1980, federal policy has mandated that reunification be prioritized as the preferred permanency outcome for children who enter foster care due to abuse or neglect.

The recent events surrounding a juvenile dependency court judge in Yolo County, Calif., demonstrate an alarming disregard for these legal requirements as well as a failure to take into account data on reunification.

Last month, the Yolo County Board of Supervisors voted 4 to 1 to remove local Superior Court Judge Steven Basha from overseeing dependency cases involving children in foster care. According to Yolo County Supervisor Matt Rexroad, who called for the vote, Judge Basha showed “judicial bias” by favoring reunification in dependency cases.

In a letter to Presiding Judge Janet Gaard in April, Rexroad alleged that Basha “is biased and not acting consistently with the values of this community nor the best interests of children in the care of Yolo County.”

In support of his claim, Rexroad asserted that Basha’s openly stated preference for reunification is tantamount to “personal bias” against foster parents, and that he fails to appropriately utilize reunification bypass (a policy provision that allows parental rights to be terminated without attempting reunification in specific qualifying circumstances).

At the Board of Supervisors hearing in which the motion was debated, several foster parents testified in support of the recusal. As reported in the local newspaper, foster parents testified that Basha exhibited a “predetermined” plan for dependency cases that favored birth parents at the expense of children’s best interests. Other stakeholders testified against the recusal motion. The executive director of the local Court Appointed Special Advocates (CASA) program called the claims of bias “unfair and unfounded,” while a local attorney and law professor stated in a letter to the board that he saw “no evidence of bias.”

The motion on which the county supervisors voted is section 170.6 of the California Code of Civil Procedure, which allows judges to be disqualified from cases if they exhibit prejudice toward any party that compromises their ability to make impartial decisions. In the circumstances involving Basha, the Yolo County supervisors voted to issue a blanket 170.6 order recusing him from all dependency cases. In response to the vote, Basha voluntarily requested reassignment from the dependency court, which was granted by Presiding Judge Gaard even as she described his performance as “beyond reproach both legally and ethically.” However, the precedent that was set by the supervisors is troubling in its implications.

Federal and state laws are clear about the mandate to prioritize reunification in child welfare cases. The actions and statements of Basha as reported in local news coverage appear consistent with the legal requirements that children be returned to their families of origin whenever this can safely occur.

Reasonable disagreements may exist about what constitutes “safety” in the context of reunification, but it is certainly a lower threshold than the “best interests” standard expressed by the board. Though the legal standards related to reunification appear to have been articulated to the supervisors by attorneys and advocates providing testimony, the supervisors seem to have relied on their own personal views about the factors that constitute children’s best interests.

There is also an empirical question that appears to have gone largely unanswered in these proceedings: Are Basha’s reunification decisions inconsistent with reunification patterns in the rest of California?

This information is readily available from the California Child Welfare Indicators Project at the University of California, Berkeley. Since 2009, the data indicate that, on average, Yolo County children in foster care achieved permanency (reunification, adoption or guardianship) within 36 months of entry at virtually the same rate as children in the rest of the state (80.1 percent in Yolo vs. 79.6 percent in California). Reunification constituted 66 percent of these permanent outcomes for Yolo County, children, compared with 70 percent for California.

Indeed, across all of the federally mandated measures of permanency, Yolo County’s reunification rates were lower than the state average. Rates of re-entry into foster care were also lower. Since 2009, an average of 9 percent of Yolo’s reunified children returned to foster care within one year compared to 12 percent of all California children, which suggests that Yolo County reunifications were relatively stable.

The claims of the Yolo County Board of Supervisors — that Basha’s decisions reflect systematic bias or prejudice — appear to be contradicted by state and federal child welfare laws, as well as publicly available empirical data. Legislative bodies, such as the Board of Supervisors, should exercise extreme caution in limiting the autonomy of a judicial branch of government, particularly when the facts are widely disputed, as in these circumstances. The Board of Supervisors’ vote to recuse a judge for alleged harm to foster parents carries unsettling implications.

Foster parents are precious, vital resources who play a crucial role in the child welfare system and in the lives of the children who are separated from their birth families. Positioning foster parents as the natural and/or legal adversaries of birth parents, however, is as spurious as it is concerning. Foster families are charged with the difficult but critical job of providing temporary care, support and stability for children who cannot safely be cared for in their homes.

When it comes to making permanent decisions about children’s futures, child welfare policy is clear: children should be returned to their parents’ care whenever this can safely occur. Child welfare workers carry the tremendous responsibility of recommending when or if children should return home, and judges make reasoned decisions based on evidence from multiple sources as well as the laws that apply to dependency cases. Foster parents and local legislators are essential to a thriving child welfare system, but their responsibility does not extend to determining permanency for foster children.

Jennifer Lawson is a postdoctoral fellow at the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin and this fall will join the faculty of the School of Social Work at Texas State University as an assistant professor. Bryn King is an assistant professor at the Factor-Inwentash Faculty of Social Work at the University of Toronto. Reiko Boyd is a visiting assistant professor and incoming assistant professor at the Graduate College of Social Work at the University of Houston. Jill Duerr Berrick is the Zellerbach Family Foundation Professor and co-director of the Center for Child and Youth Policy at the School of Social Welfare at the University of California, Berkeley. 

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