For a second time in the past year, Texas lawmakers are considering placing guardrails on a common but little-discussed social work practice known as “hidden foster care” that affects thousands of state residents a year.
After a similar bill died in a special session last year, Texas Rep. Lacey Hull has reintroduced legislation to better monitor cases where parents are advised by social workers to give up their kids to friends or relatives as an alternative to a child’s formal removal into foster care. The legislation calls for an accounting of how often the practice occurs, imposes time limits on how long it can last, and requires that parents be notified of their rights to refuse the arrangements.
“My goal is to save families the heartache of separation when it is not necessary, make the separation shorter, give court oversight as an accountability mechanism, and let us see through the reporting requirements how often these placements are used,” Rep. Hull said at a hearing today before the House Human Services Committee.
Specifically, the Republican lawmaker’s new proposal, House Bill 1085, adds restrictions to what are called “parental child safety placement agreements.” Under these informal deals, parents avoid the lengthy ordeals that follow when child welfare agencies petition the courts for a foster care removal. But little is known about what happens afterwards, and how the children and families fare.
Child welfare advocates who are critical of this shadow foster care system say it can involve unfair coercion, a lack of due process and oversight, and could place children in jeopardy in unregulated alternative homes.
A 2020 Stanford Law Review article by law professor Josh Gupta-Kagan estimated that nationwide, between 100,000 and 300,000 children may be separated in this manner each year.
Meagan Corser, a senior policy analyst for the nonprofit Family Freedom Project — an advocacy group that fights for parents’ rights — noted the benefits of the practice, but also expressed concerns to Texas lawmakers today.
“There are a lot of cases in which formal removals don’t make sense — where we don’t need to put the kid in formal foster care; maybe a very temporary placement with a relative makes sense during the investigation phase,” Corser said. “So there are good uses for parental child safety placement agreements — but there are a lack of due process protections around them.”
Rep. Hull’s House Bill 1085 would place a 30-day limit on these placements, and require child welfare workers to open a court case if they believe children should remain out of their homes for an extended period. Under the legislation, social workers could extend the temporary placement for a maximum of 30 additional days, providing they notify parents of their rights to refuse the extension and to have an attorney represent them. The bill would also require that information about these placements be included in reports to federal agencies so that more accurate data on “hidden foster care” can be collected.
Julia Hatcher, a Galveston attorney and president of the Texas Association of Family Defense Attorneys, also spoke in support of the bill, but said the law should require that parents are notified of their rights earlier in the process, not only when social workers want to extend informal arrangements already in place.
“They’re under a lot of duress when they sign these things,” Hatcher said.
Not all child advocates are opposed to such arrangements between parents and social workers. Informal placements could provide parents experiencing a crisis at home more control over who cares for their children, some argue, as opposed to a foster care placement, possibly with strangers, that is governed by lawyers and judges.
“It’s not that these can’t be a valuable tool,” said Andrew Brown of the Texas Public Policy Foundation. “It was originally designed to be a safety valve to prevent separations.”
But these days, he added, “families are often faced with: ‘Comply or have your child taken into the traditional foster care system.’” Brown noted federal cases where the court has found that some social workers use “safety placements” when they want a child removed from home but lack the evidence a court would require for such an invasive action.
“It must be time-limited and subject to court oversight,” Brown said, adding that “HB 1085 strikes a good balance.”
The issue of family separations outside the court process gained national attention when Gupta-Kagan, currently a law professor at Columbia University Law School, popularized the phrase “hidden foster care” in his law review article.
Critics say the lack of court oversight can lead to kids being taken from their parents unnecessarily or being kept away for too long. Texas has been among the states with the highest rates of opting for the informal “hidden foster care” placements, Gupta-Kagan has said.
Yet specific tallies have been difficult to come by. A Texas Children’s Commission report noted there had been 34,000 “informal kinship placements” in 2014. In 2022, that number had dropped to 1,481, according to the state’s Department of Family and Protective Services.
“We’ve had to speculate for years about how big this system is — data is not reported,” Brown said at today’s hearing. The requirement under Hull’s bill for better tracking would change that, in addition to broader protections for children and families. “It puts important guardrails in terms of timeline and critical due-process protections about the way in which the hidden foster care system operates.”
Note: This story has been updated to include the most recent number of informal kinship placements in Texas.