When policy meets practice: the untested effects of permanency reforms in child welfare

Journal of Sociology and Social Welfare, March, 2006 by Amy D'Andrade, Jill Duerr Berrick

In addition to over-breadth, inequitable application of reunification exceptions may occur. In California, social workers act as the first gatekeeper, determining whether to recommend reunification exception to the court. Judges act as the second gatekeeper (with lawyers on all sides attempting to influence the decision) determining whether or not the exception will be applied. Depending on child welfare staff and judicial training, community standards, and agency resources, parents with similar characteristics might be treated quite dissimilarly with geography playing a greater role in case outcomes than other, more relevant factors. A recent survey of California counties suggests reunification exception is being applied quite differently across the state, with counties tending to rely on different circumstances to deny services to parents. For example, of 51 counties responding to a survey (out of 58), 15 counties most often used conditions #10, 15 and #13, and six indicated they often used condition #3, to deny services to parents (D'Andrade, Mitchell, & Berrick, 2003). In fact, when tested empirically in six counties (Berrick, Choi, D'Andrade, & Frame, in review), we found that although recommendations to bypass services were relatively infrequent overall (about 5% of all parents in the study), significant differences were found between counties: In one county it was almost impossible for a family not to receive services (only 1.5% of eligible parents were recommended for a bypass), whereas in another, well over a third of parents eligible for bypassed services (36.9%) were recommended to the courts.

An examination of court appeals related to this portion of the state legal code shows that vague or ambiguous wording of indicators has caused some difficulties. For example, confusion has arisen with condition #13, which addresses the situation of substance addicted parents. Reunification services are not to be offered substance abusing parents when they have "resisted treatment" in the last three years, or failed related case plan requirements twice before. While some courts interpreted "resisting treatment" to mean a parent has actively refused to participate in ordered or recommended treatment (In re Brian M., 2000), other courts ruled that merely failing to seek and obtain treatment can be considered "resisting" (In re Levi U., 2000). While these concerns have since been clarified with further legislation, they resulted in legal delays due to court appeals, and inequitable application of a law that has extremely serious consequences for parents.

The state of California does not require that counties track how and when reunification exception conditions are applied, or which are used. A survey of California counties found that while most counties report using reunification exception, only half of them track use. Of those that do monitor when reunification exception is used, only slightly over half identify which conditions were used to deny services to parents (D'Andrade, Mitchell, & Berrick, 2003); certainly there are no federal requirements for reporting, so utilization and variability between states is unknown.