Tanzina Vega: Welcome to The Takeaway, I'm Tanzina Vega. Every year, hundreds of thousands of children enter or exit the foster system, but as courts across the country began to shutter due to COVID-19, family court proceedings in many states were delayed, and in some cases, ground to a halt. That has trapped many foster kids and their parents in a legal limbo like Ivy Warwick in Washington State.

Ivy Warwick: My husband and I have been foster parents for almost 10 years.

Tanzina: Like many foster parents, Ivy relies on regular hearings to work towards a resolution of her family's case.

Ivy: When it comes to the predictability of court dates and timelines, paperwork being filed, it has really been set back in Washington State. I'm just really worried that that is going to set the case back further, even further into next year, possibly, middle of next year, and just not really seeing any light in the end of the tunnel.

Tanzina: For the next part of our series, Justice Delayed, which examines how COVID-19 has affected our judicial system, we're going to take a look at how the pandemic has affected the family court system, specifically, foster care families. I'm now going to turn to Betsy Kramer, an attorney and director of policy and special litigation at Lawyers For Children in New York City. Betsy, welcome to the show.

Betsy: Thank you, Tanzina.

Tanzina: John Kelly is a senior editor at The Imprint. John, welcome.

John Kelly: Good to be with you, Tanzina.

Tanzina: Betsy, foster care cases revolve around these events called permanency hearings. We heard a little bit about that from our foster parent in the beginning of the segment. What is a permanency hearing, and how important are they to children?

Betsy: Permanency hearings are crucial to children and their families. They are regularly scheduled hearings at which the court reviews the status of the child's foster care placement. The court makes sure that the child's placement is appropriate, that their services are being provided appropriately, that efforts are being made toward returning the child home or moving towards some other permanency option, be it adoption, placement with another relative or family resource, or discharged to adult independent living. Without permanency hearings, children can't return home to their families, they can't be adopted, and they can't be placed in the custody of some other relative or family member or friend who comes forward to care for them.

Tanzina: John, when COVID-19 hit, how did that exacerbate some of the issues in the foster care system that already existed before the pandemic hit?

John: As Betsy mentioned, a lot of child welfare cases play out on two tracks, in the community, via the child welfare agencies, and then, in the courts. Really, in both cases, both systems, what we reported in most states was that early on in the pandemic, the decision was made to keep the front end open and greatly limit much of the rest of the activity. That meant that investigations into reported abuse or neglect continued as usual, and in the courts, the hearings continued to decide whether or not a removal to foster care was appropriate.

A lot of those periodic checks and permanency hearings that are supposed to be part of a child welfare case, especially after a youth is placed into foster care, either were delayed or relegated to remote but very often were delayed and that includes lots of things like services rendered to families to keep them together, services meant to help facilitate the reunification of families, family time visits between foster youth and parents or siblings. These were all made extremely difficult by the simple fact that society was shutting down, to some extent, and a lot of the things that child welfare relies on to operate are in-person services and events that just were not held.

Tanzina: Betsy, in cases that require more priority, if there is a child who is in danger, if there's an emergency, do those cases or have those cases been prioritized, or have those cases also been caught in this slow grinding to a halt?

Betsy: Cases that are determined to be emergencies have been given priority, cases, where the life or health of a child is at stake, are being given priority and heard by the courts, but from a child's point of view and a child who is in foster care and is waiting to be reunited with their family or even waiting to have more expansive visits with their family and for whom that question is dependent on court action, that should be a priority.

Time moves very differently for children. A young child who's been removed from their family experiences a six-month delay much differently than an adult experiences a six-month delay. The long-term impact of children spending time in foster care can be harmful to children. All of these cases really need to be treated as emergencies and with priority.

Tanzina: John, we're examining how different parts of the judicial system have been backed up because of COVID-19. When you look at the picture nationally for foster care cases, specifically, are there regions where things are piling up even more than others? Are there specific areas that are really backed up?

John: I think that what Betsy honed in on there was the most common point of anguish among a lot of different regions as we started to report on, "Okay, what's going on here?" in the early months. It's family time. It's facilitating time for these children to be with their parents if they're in foster care because a big expectation of the child welfare process, the expectation is, if you remove a child into foster care, that the system is going to make efforts to reunify the family and nothing is more important to that than the time they are allowed to spend together.

It was quite quickly a point of contention or a problem in a lot of regions as this started. We found that to be the case in California. New York instructed early on that family time was to continue happening. Our reporting months later was that, in a lot of cases, it did not. In Illinois, the public defender in Chicago actually sued DCFS in Illinois because they had a blanket ban on supervisors that's between parents and children. That particular aspect really stood out as the one that was common around the country where there was a real halting of a service where everybody agreed that was extremely not optimal.

Tanzina: John, have there been any cases where some states have adopted their foster care programs to meet the challenges of COVID-19 in a good way?

John: I think that over the last several months, more states have been able to acquire and deploy more technology to facilitate the many virtual things that need to happen now and a lot of systems were probably caught unaware of the need they were going to have, to have tablets and phone devices and things to give to families for visiting time, to the courts to facilitate hearings, and to foster youth, many of whom are on college campuses and need to continue education.

Tanzina: Betsy, with the courts being closed or slowly starting to reopen, and we know that that's going to take a while as well even with the use in some areas of video equipment, there's still many foster care families that have to make some informal agreement to address some of the ongoing issues. Are those successful? Are those adequate?

Betsy: They can be helpful, but they're not adequate because, in many cases, the foster family and the agency overseeing the foster care placement and the family can't agree on what should happen, what is appropriate, and what is needed. That's why we have the courts to make decisions when people can't agree. There are also certain steps that just can't be taken without the courts.

A child can't be reunited with their family if there has been a court order mandating that there be supervised visits only. Without court approval, you can't move to unsupervised visits although everybody might be ready for unsupervised visits. You can't adopt a child without a court order. While informal agreements are helpful in some cases and there has been a great effort for all of the players to work collaboratively, we need the courts to be functioning to really help kids in foster care move forward.

Tanzina: Betsy, one of the interesting data points, in this moment, is that reports of child abuse have dropped during the pandemic. Why is that? Do we know?

Betsy: The vast majority of reports are made by schools, doctors, and other service providers who are seeing children in the community regularly. Because that contact has been greatly reduced, the number of reports has been reduced.

Tanzina: John, there are a number of lawsuits that have been brought against different states' responses to the pandemic, can you tell us what some of the major ones are and what the allegations are?

John: I would say that there is one in particular that we've reported on, and I mentioned it before, this is the litigation that Illinois brought against DCFS, which specifically challenged a blanket policy related to COVID. DCFS came and said, "No supervisors will happen. They're not safe," and that policy went on for months. The public defenders in Cook County challenged that saying, "This needs to be something that's determined on a case-by-case basis," and that, over time, while it might have been a forgivable position to take when really nobody knew what was going to go on with coronavirus, you have to start moving towards normalcy again in the process.

As far as other litigation, I'm not aware of a ton that's specifically about COVID, but there are certainly ongoing class action lawsuits and litigation that has been settled against many states' child welfare systems. There's quite a few states where it's ongoing, and in the states that have settled their litigation and are trying to meet particular benchmarks, I think there's no doubt that COVID-19 and the restraints put on systems has added an extra challenge to meeting those.

Tanzina: Betsy, family courts are attempting to reopen in some parts of the country, what do we see going forward in terms of the backlog right now in cases being heard? With the slow down here, I feel like there are lots of kids and parents who are going to be continuing to be in that limbo.

Betsy: You're absolutely correct. There is a huge backlog of everything that hasn't been heard for the last six months. We need to catch up on all of those cases, the cases that were pending at the time of the shutdown, the cases that have been filed since the shutdown need to be heard, and there are constantly new cases coming in. There's a huge backlog of cases that could or should have been filed during the shutdown that will now need to be filed. I think the courts are really going to be inundated with proceedings trying to catch up.

Tanzina: Betsy Kramer is an attorney and director of policy and special litigation at Lawyers for Children, and John Kelly is a senior editor at The Imprint. Thanks to you both.

John: Thank you.

Betsy: Thanks for having us.

Tanzina: You can find all of our stories in the series about how COVID-19 has affected our nation's judicial system at the takeaway.org/justicedelayed.

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