A recent procedural change within the Division of Children and Family Services (CFS) of the Nebraska Department of Health and Human Services has some child welfare advocates worried about the safety of children. The change is part of a larger shift from the federal level which focuses on a de-emphasis on drug testing and an emphasis on keeping families together.

A main goal of the foster care system is to protect and nurture children who are at risk with their biological parents. The courts can remove children from their homes and place them in a foster home if the child’s safety is in question. Drug use by the biological parents is often a factor. A change in the state procedure in October 2018 brought on by the Family First Child Services Act (FFSCA) is moving away from drug testing parents. The FFSCA is a piece of federal legislation passed early last year that focuses on prevention of children going into the foster care system by “mental health services, substance use treatment, and in-home parenting skill training.” The goal is to keep families together.

The drug testing procedural change, which went into effect in October 2018. (Courtesy CFS)

"The key is through that family engagement, to understand what's going on with the family. What are their needs, what's the right services? Do they need some skill builder type services?" said Matt Wallen, the director of Children and Family Services. Wallen says the change in procedure is designed to move away from punishing parents who may have a substance abuse issue and give them the skills to raise their children.

“How can we work with them to help support them to be better parents, if you will, to ensure the safety of their child," Wallen said.

The policy encourages the parents to make use of training offered to them. The training helps them learn skills like how to create a family budget, shop for groceries, keep a clean home and know what a good bedtime is for their children.

The policy also says: "A drug test alone cannot determine the existence or absence of a substance use disorder..." and "...drug testing is not an effective deterrent of the use of substances by the parents and caregivers of children."

Wallen says drug tests don’t tell you much. They don’t tell you the extent of use or abuse or your ability to parent.

“Families are the most passionate and the most appropriate people to be raising their own children, so we want to try to address the underlying situation in the family,” Wallen said.

Research is divided on the topic. One study shows separating a child from parents can “provoke fear and anxiety in a child and diminish his or her sense of stability and self.” Another study concludes "adults placed in childhood out-of-home care had poorer school performance; higher rates of school dropout, public assistance, homelessness, arrest, and chemical dependency; lower marriage rates; and poorer mental and physical health than those not receiving childhood out-of-home care."

Director of Child and Family Services Matt Wallen. (Photo Courtesy DHHS)

Another study, however, shows: “on average, out-of-home placement appears to neither place additional burden on the already vulnerable children who enter State custody, nor contribute to improved well-being for these children, at least in terms of short-term changes in cognitive skills and behavior problems.” Wallen says the revised state policy encourages a more preventative measure – a way to attack the root of the problem, not a symptom.

"And I felt like there was a real limitation if we just come in and we immediately say ‘we're going to drug test you, drug test you, drug test you and drug test you.’ We might drug test you just several times a week, we might drug test you to determine if you can visit your child or not," Wallen said. "That's not right. We're trying to engage families and strengthen families and support families to raise your own children."

Sarah, a foster care parent, though, sees the change differently. Sarah’s not her real name as she agreed to speak with us on the condition of anonymity. She says when dealing with an addicted parent, the focus should be on the safety of the children first.

"We would be concerned if a child care provider was not sober while they were taking care of our kids," Sarah said. "It's concerning to me if children are being left in the care of people who are maybe not capable of making the best decisions for them in that moment."

Sarah and other foster parents she spoke with had not been made aware of the change. They are worried these changes are being made through an administrative memo which isn’t subject to a public hearing. She feels such a major shift in the state’s approach to foster care should not be done without any input from the public.

"We want to be prioritizing reunification and prioritizing keeping families together – but not at the cost of child safety," Sarah said.

Some foster parents and child advocacy groups are worried about the effects of a policy change involving drug testing of biological parents of children involved in the state's foster care system.

Sarah says we aren’t best serving parents and in turn not best serving the children, when we focus on a parent’s well-being and the positives of keeping families together, while completely ignoring the most important variable in the equation: the safety of a child in the care of the state of Nebraska.

"But also for the parents that if they need services they're not going to get the services they need if the state isn't aware of their current situation," Sarah said.

The Inspector General Julie Rogers investigates any death or serious injury of a child who is receiving help from the state of Nebraska. She says drug testing is a tool for caseworkers to use when working with a family. To both help the parent get the services they may need for their addiction while balancing child safety. Without the tool, caseworkers are without a major instrument for them to do their jobs.

"If the system is unprepared to respond to whole system changes with little planning that include all of the stakeholders there is more of a risk that children will fall through the cracks, while the rest – mental health providers, county attorneys, the court system – to name a few, make the necessary adjustments," Rogers said.

Kim Hawekotte also has some concerns. She’s the executive director of the Foster Care Review Office that provides oversight of children in foster care in Nebraska. Hawekotte has also worked as a prosecutor within the juvenile division for the Douglas County Attorney's office. In her time as a prosecutor, Hawekotte says she’s seen the importance drug testing plays in helping parents stay sober. She says there’s a constitutional right for parents to raise their own children. But she says some believe there’s a greater need to keep parents at a distance when their addictions may put their children at risk. And when it comes to justice…

"Everybody has that vision with the blind lady and her on the scale," Hawekotte said. "And on the scale, right now, you have the constitutional rights and you have the safety of the child, and you have to tip those scales and determine which is most important."

But sometimes, she says, common sense should prevail.

"So if you walk into a house today and the parents are actively using meth and that child hasn't eaten, that child is under the age of 2 or 3 (and) cannot care for themselves – all of the sudden that becomes a very high-risk household that the safety of the child will tip that scale – that we have to go in that direction," Hawekotte said.

Wallen of Children and Family Services says as part of the initial assessment by CFS, workers are already trained to look for these things and report what they find.

The change in drug testing policy affects all foster care cases – those involving the court and also those where the parents enter what’s called a “voluntary case.” This is where, after an initial assessment, CFS asks parents to opt in to safety plans – and they do so voluntarily – and can back out at any time. Wallen says CFS can pursue a court case if a parent chooses not to opt in.

Hawekotte says she worries this will be a way for more cases to become voluntary cases, where the courts and law enforcement aren’t involved. That is already the trend. According to Legislative Resolution 430: Child Welfare Funding and the New Families First Legislation prepared by State Senator Kate Bolz, there were 2,942 voluntary cases in Nebraska in 2017. In 2018, that number jumped to 4,031 – an increase of 37 percent in one year. The number of total children removed from homes due to "parent/caretaker drug abuse," fell from 481 to 257 during that same time period – a decrease of 46 percent.

Voluntary cases have traditionally been for lower risk families, but with this procedural change, Hawekotte worries there will be more children in harm’s way.

"Have we pushed all those cases then into a 'non-court voluntary' case and is there proper oversight and proper services being offered to in those on a non-court voluntary basis?" Hawekotte said.

Hawekotte says her office doesn’t know if kids are being fully protected because her office doesn’t get access to that data. The Office of the Inspector General does have access to all abuse and neglect cases.

These “voluntary placements” are supposed to be a way for CFS to work with families without involving the courts. In the Nebraska Legislature, Sen. Kate Bolz has proposed a bill which seeks to implement some of the services for families. It also aims to involve law enforcement and county attorneys in more voluntary cases. That bill is scheduled for a public hearing Thursday.