Chairman Carey:

The Virginia League of Social Services Executives (VLSSE) submits the following comments regarding the draft regulation to implement the Parental Child Safety Placement Program, 22VAC40-705, sections 60 & 200: 

Background[1]

Prior to the successful implementation of the Parental Child Safety Placement Program on July 1, 2024, there were many efforts on the part of both VLSSE and the Virginia Department of Social Services (VDSS) along with numerous other child welfare advocates to incorporate consistent foster care diversion guidance throughout all Commonwealth of Virginia local department of social services (LDSS).  Below are major highlights dating back to 2014:

2023

VLSSE worked with VDSS, Eric Reynolds, Children’s Ombudsman for the Commonwealth of Virginia, and then Special Advisor to Governor Youngkin, Janet Kelly, to develop recommendations for a legislative proposal for the 2024 General Assembly Session.  VLSSE subsequently provided input to Senator Barbara Favola on what would become Senate Bill 39 which became effective July 1, 2024.

2022

Eric Reynolds, Children’s Ombudsman for the Commonwealth of Virginia, submitted draft legislation for LDSS and LDSS agency attorney feedback. 

VLSSE submitted formal legislative recommendations regarding foster care diversion.  Major points:

There are three major components to consider when applying court intervention to CPS cases involving voluntary out of home placements.

• Safety, permanency and well-being for children.
• Legal rights and responsibilities of local departments of social services, families of origin, and substitute caregivers. 
• Timelines for court intervention mandated for voluntary out of home placements. 

Any legislation involving court intervention for voluntary out of home placements should be grounded in the components above and should allow for the details of implementation of that process to be outlined in regulations and guidance

2019

On October 31, 2019, a Diversion Input Session was conducted at the Child Welfare Advisory Committee (CWAC) meeting.  CWAC is made up of child welfare professionals, including LDSS staff, along with other advocates in the field.  CWAC is the primary organization to advise the Director of the Division of Family Services at VDSS on child welfare issues. It helps ensure that all child welfare activities are child-centered, family-focused and community-based.

2016

General Assembly Session –Budget Amendment, Item 343I

-Directed VDSS to conduct a pilot project on data collection and reporting for local departments of social services (LDSS) regarding facilitated care arrangements (i.e., foster care diversion)

Project Intent

-Collect baseline data regarding “diversion cases” (CPS, CPS Ongoing, and Prevention), that will assist in exploring the barriers to achieving safety and stability for children with kin or alternative caregivers.

2014

Kinship Care Legislative Proposal from the Virginia Poverty Law Center submitted to VLSSE for review.

Draft Regulation Comments

Section D.(1)(a)

While VLSSE is not opposed to conducting a criminal inquiry through the current platform provided by VDSS (Accurint), LDSS staff are not trained to assess which criminal convictions are “barrier crimes”.  LDSS staff are also not trained to assess criminal convictions outside of the Commonwealth of Virginia that could potentially be “barrier crimes” as per the Code of Virginia.  VLSSE proposes that LDSS be required to document any prior criminal history of a proposed caregiver and document a full assessment with the proposed caregiver about the circumstances of any criminal history as part of the overall caregiver assessment. 

Section D.(2)

While VLSSE supports referrals for services to address substance use disorders for proposed caregivers involved in the PCSPP, a regulatory requirement directing LDSS to conduct drug screenings for proposed caregivers could lead to a disproportionate number of relatives or fictive kin being eliminated as placement options for children:

Overreliance on drug testing: Drug testing (particularly urine and toxicology testing, which often produce inaccurate results¹⁶) is overused as a diagnostic indicator or as a measure of safety. The overreliance on testing leads to decisions being made that can have serious, irreversible, and inequitable consequences for families, particularly for Black and Native American mothers who are more likely to be reported to child welfare and health departments at the time of giving birth (“How can the child welfare system support families affected by substance use disorder?”, Casey Family Programs, August 15, 2023). 

Instead, VLSSE recommends that proposed caregivers be screened for potential substance use disorders through the Permanency Assessment Tool rather than the proposed “reason to believe” criteria that may be challenging for staff to assess.  VLSSE recommends D.(2.) be stricken and proposes the following language be added to Section D.(1.)(a.)(iii):  

“If the local department’s assessment of the proposed caregiver indicates that a substance use disorder requires further assessment, the local department will provide necessary referrals for treatment to include a substance use assessment and/or screening for substance use.  This action will be documented in the child welfare case management system”. 

The Code of Virginia does not address potential substance use by a proposed relative or fictive kin caregiver, and, while VLSSE agrees that further evaluation by an LDSS for substance use may be a factor in determining the suitability of a relative or fictive kin placement, this action can be completed using the caregiver assessment referenced in Section D.(1.). 

Section D.(3)

VLSSE opposes the language as follows: “including the assessment of safety risks posed by other children living in the home”.  While LDSS may assess the characteristics of other children living in the home, LDSS has no way to assess potential safety risks posed by “other children” as juvenile criminal records and medical, school, or other assessments would not necessarily be available to an LDSS.  VLSSE recommends this language be stricken.  VLSSE recommends a written assessment of other children in the home be included in the overall proposed caregiver assessment.

Section D.(5)

VLSSE opposes the requirements of D.(5) and recommends the following language:

“The identification of a criminal conviction or founded child protective services disposition requires further assessment, including a discussion with the individual about the circumstances surrounding the crime/founded disposition, time frame of the crime, current status (probation, parole, etc.), and the individual's explanation of the crime/conviction/founded disposition. This information must be documented in the case record. A supervisory approval review of the placement by the supervisor, Director, or Director's designee is required before the child may be placed into the home of the proposed caregiver with a criminal conviction or founded disposition.  Documentation of the supervisory approval review must be entered in the case record.  The Department will periodically review placements of children that require supervisory approval reviews.”  

Section F

VLSSE proposes that the number of business days to conduct the facilitated meeting be increased from five business days to 14 calendar days.  Given that logistical factors such as holidays, weekends, availability of facilitators for the meetings, and availability of relatives to attend due to other commitments, such as employment, may impact the ability of LDSS to conduct the meeting, this additional number of days gives the LDSS and the family additional time to plan attendance and participation in the facilitated meeting.  The timeline of 14 days is also consistent with other LDSS program requirements for children entering foster care.

Section K.(2)

Section § 63.2-1533(g.) of the Code of Virginia states: “(iii) the local department should seek a child protective order or other court action”.  Section K.(2.) requires an LDSS to seek “removal”.  The language in Section K.(2.) should be aligned with the Code rather than specifying a removal petition as a child protective order is the least restrictive option. 

Summary

While VLSSE supports the premise of the PCSPP and supports the implementation of the program, further restrictions upon its use by LDSS working with families and children could lead to underutilization of the program by LDSS, families, and proposed relative caregivers.  There could be an increase in the number of children entering foster care rather than being placed with relatives or fictive kin and could also be further situations of LDSS noncompliance with the requirements of the program which will lead to the decline of the safety, permanency, and well-being of children.  This program was meant to codify the practice of diversion from foster care and provide relatives and fictive kin with financial support to care for children at risk.  VLSSE advocated for guidance and legislation that would support LDSS’ ability to further engage with families by placing children with relatives and fictive kin rather than with stranger foster families and/or in congregate care facilities.  The benefits of placement with relatives and fictive kin has, in numerous studies, been documented to provide better outcomes for children and their families and exemplifies a “Kin First” culture in the Commonwealth.  The proposed draft regulation, as written, will further hamper LDSS efforts to place children with relatives and fictive kin.  The Code of Virginia already sets out how the PCSPP program should be implemented, and the draft regulations put requirements in place that may ultimately undermine the original intent of the legislation.

Sincerely,

Rebecca J. Morgan, M.Ed.

President, VLSSE

Director, Middlesex Department of Social Services