The appropriate points of progress for children in foster care are laid forth in the Rules of
Procedure for Child Abuse and Neglect Proceedings and are based on the W. Va. Code §49-6-1, et
seq. Table 1 summarizes some of the specific program time periods which need to be monitored
by DHHR through management information.
Specific Progress Time Periods
|Within 10 days of continuation of emergency custody or transfer of custody||Preliminary hearing|
|Within 30 days of order for preadjudicatory improvement period||Family case plan|
|Within 30 days of temporary custody order (if preadjudicatory improvement period has been ordered, then as soon as possible or within 60 days at the conclusion of the improvement period) *||Final adjudicatory hearing|
|Within 45 days of the entry of the adjudicatory order (no later than 60 days if improvement period has been ordered)||Dispositional hearing|
|Within 18 months of final disposition order (unless there are extraordinary reasons that warrant delay)||Permanent placement|
The children were entered with a service code of 10 (foster care) or service code 14 (adoption) its own database. It took five members of the Legislative Auditor's staff 14 days to cross reference the children and enter them into the database with the following information: child's name, date of custody, area number, living arrangement, case worker's name, birth date, gender and race.
In order to compare the Department of Health and Human Resources performance with the standards contained in the Rules of Procedure, the information had to be obtained through the county offices case records as none of this information was contained in the Department's management information system. Table 2 illustrates some of the Rules and whether this information is contained in the Department's management information system.
Important \Information for Children in Foster Care
|Rules and Procedures for Child Abuse and Neglect||Contained on SSIS|
|Date of custody||Yes|
|Birth date of child||Yes *|
|Preliminary hearing within 10 days of custody||No|
|Improvement period ordered: Yes/No||No|
|Final adjudicatory hearing within 30 days of temporary custody or 60 days of conclusion to improvement period||No|
|Completion of case plan||No|
|Post adjudicatory improvement periods ordered||No|
|Permanency plan completed||No|
|Permanent placement of child after 18 months of final dispositional order||No|
|* Although there is a field for the child's birth date on the SSIS printout, 299 children lacked a birth date (including 7 children already adopted).|
The Department of Health and Human Resources lacks the ability to determine whether cases are being controlled so that children's cases are meeting statutorily set time standards. Thus, DHHR lacks the ability to adequately control its foster care cases. One of the main tenants of control is to compare performance with standards. However, the Department of Health and Human Resources cannot measure performance without the basic ability to determine how many children are in care, where these children are, or if these children even exist? Ultimately, children are the ones who incur the greatest cost. Without knowing who the children are or where they are, the Department of Health and Human Resources lacks the ability to be accountable for them or to hold case workers accountable for them. One caseworker had a child in foster care for a year and informed the Legislative Auditor that he/she had never met the child.
DHHR presently cannot allocate staff with adequate knowledge of work loads. If backlogs occur in moving children through the foster care system, then the allocation of staff should be able to be changed to resolve the problem. However, the lack of an adequate management information system prevents the Department of Health and Human Resources from knowing when modifications to individual case workers' and county's work levels need changed. This can prevent the timely reallocation of staff.
The Department of Health and Human Resources lacks the ability to organize according to the problems associated with different types of caseloads and needs of children, e.g., abused and neglected or juvenile delinquents. The Department of Health and Human Resources lacks the ability to plan for budget or other problems that may be projected from management information about its caseload of foster care and adoption.
The Legislative Auditor recommends that the Department of Health and Human Resources continue its development of a new management information system to allow monitoring of the status of each child in its custody. (See Appendix E for Agency's Overview of F.A.C.T.S.)
The Legislative Auditor recommends a follow up audit of the Department of Health and Human Resources' new management information system to determine if it has improved the ability to maintain accountability of children in custody.
ISSUE AREA 2: Two hundred-fifty eight (258) children legally free for
adoption are Waiting to be Transferred to the Adoption Unit.
The Department of Health and Human Resources Social Service Manual (Chapter 15000), states the responsibility of the agency is to "...provide whatever services are necessary to get to know and understand the child and his needs, to give him as full a life as possible, and to find his adoptive family as quickly as is consistent with good practice."
In addition, the Social Service Manual (Chapter 15420) states, "As soon as it is possible to identify a child's need for an adoptive family, a referral of that child must be made to the Adoption Exchange. All new state wards must be referred within thirty (30) days of SSIS legal status change to guardianship." Furthermore, "All children who are currently legally free and appropriate for adoption, must be registered on the Adoption Exchange no later than thirty (30) days of receipt of this manual material."
The job of the adoption unit is to find adoptive families for children whose parents rights have been terminated. According to the Office of Social Services, West Virginia had 815 children in state guardianship as of August 1997, which increased from the previous year. Interviews with foster care workers and adoption workers indicated a backlog of children waiting to be transferred to the adoption unit. The Legislative Auditor's sample of cases revealed that 16 children were waiting to be transferred to the adoption unit, although full parental rights had already been terminated. Upon further inquiry, the four DHHR adoption supervisors confirmed a total of two hundred fifty-eight children were waiting to be transferred to the adoption units. Table 3 indicates by region the number of children waiting to be transferred.
|REGION||Number of Children|
Our review of 456 sample case files showed that these children, ranging in age from 2-11 years, have been waiting for transfer between 8 days and 40 months. The waiting period begins at the time of termination of parental rights.
As shown in Table 4, workers are currently working on a total of 294 cases; added to the 258 cases waiting to be transferred, 552 children in the state are waiting to be adopted. Thus, 47% of adoptable children are still being served by a foster care worker rather than an adoption worker. Graph 1 shows a comparison of the number of children in the state waiting to be adopted, to the number of children's cases that are waiting to be transferred to the adoption unit.
|Region||Cases serviced by Adoption Worker||Cases Waiting to be Transferred to the Adoption Unit||Total||Number of Workers||Average Number of Cases per worker|
The Legislative Auditor's Office was unable to determine the cost of keeping children in foster care compared to the cost of them being adopted. We do know that the highest state pays to foster families is $400/month, which does not include children with special needs. The Legislative Auditor's Office made 2 requests to the Department of Health and Human Resources for financial information, including the cost of children in foster care. According to DHHR officials, a communication breakdown between our DHHR liaison and the Budget Office had occurred and that the financial information will be provided to us for the next report.
It is difficult for the adoption unit to find adoptive families for children as quickly
as possible, when they are not able to take all of the cases. The ability for the DHHR to
hire more adoption workers would give more children the chance to get adopted, and out
of the foster care system.
The Department of Health and Human Resources should hire additional adoption workers to eliminate the backlog of children waiting for adoption.
ISSUE AREA 3: Courts allow for visitation after the termination of
parental rights, robbing the child or children of stability and permanency.
West Virginia Code §49-6-5(6) states,
"...upon a finding that there is no reasonable likelihood that the conditions of
neglect or abuse can be substantially corrected in the near future, and when
necessary for the welfare of the child, terminate parental, custodial or guardianship
rights and/or responsibilities of the abusing parent and commit the child to the
permanent sole custody of the nonabusing parent, if there be one, or, if not, to either
the permanent guardianship of the state department or a licensed child welfare
Case law, in R.J.M., 164 West Virginia 496 , recognizes the effects of instability on a child. Children "need consistent, close interaction with fully committed adults, and are likely to have their own emotional and physical development retarded by numerous placements."
Children in foster care exist in limbo, waiting for the system to provide a permanent living
arrangement. As the length of time a child spends in the system increases, the chance of adoption
decreases. This suspended animation creates mental and emotional trauma, creating a vicious
cycle which makes the child even more difficult to place in a permanent situation. Court ordered,
department supervised visitation is costly to the state in terms of the amount of time required to
coordinate and oversee the visits. Rewarding an adjudged unfit parent with visitation does not
benefit the child in any way.
In two cases reviewed by the Legislative Auditor, court ordered visitation occurred after the termination of parental rights. In one case the court found eminent danger existed to the well-being of infant children. Department efforts to prevent the placement of the children, through special services and in home improvement periods were not effective. The court ordered that custody of the children be placed with the Department of Health and Human resources. Thirteen months later, parental rights were severed. The court ordered that the parents be allowed to visit with the children under Department supervision.
In another case, the court found that the parents had taken no action to identify the
perpetrator of abuse and that the child, due to his medical, emotional and development problems,
is in need of specialized care. In light of the parents' actions, the court found that it was not in
the best interest of the child to plan for reunification with the family. Parental rights to the child
were terminated. Permanent care, custody and control of the child was given the Department of
Health and Human Resources. Neither parent was entitled to further visitation with the child;
however, custody of two siblings was placed with the Department at the same time, and the
mother was granted Department-supervised visitation.
When termination of parental rights is essential to the well-being of the child, court ordered visitation complicates the permanency plans and confuses the child. Court rules 33 and 36 of the Rules of Procedure for Child Abuse and Neglect allow for terms of visitation during the disposition hearing process. The disposition hearing determines the appropriate placement of a child adjudged to be abused and neglected. Rule 32 requires the dispositional hearing to take place "within forty-five days of the entry of the final adjudicatory order unless an improvement period is granted... and then no later than sixty days." Permanent out-of-home placement is achieved only when the child has been placed in a permanent, court-approved, and ratified foster care home, or the child has been adopted or emancipated. Case law, in Carlita B., 185 West Virginia 648, allows courts to consider continued visitation when parental rights are terminated due to neglect or abuse.
Judicial interpretation of state law varies significantly form one court to another. Caseworkers reported to the Legislative Auditor that judges and/or prosecuting attorneys lack standard responses to and interpretations of child welfare law. In the absence of specific standards in the code, courts may weigh each case individually.
When the judiciary grants visitation after the parents have proven themselves unfit or
unable to care for the child, the state has a difficult time placing the child in a stable, permanent
living arrangement. Adoptive families are hesitant to become involved with a child when the child
has court ordered contact with the perpetrators of abuse or neglect.
Impact of Possible Federal Legislation:
New federal legislation, the Adoption and Safe Families Act of 1997, represents a
fundamental shift in the philosophy of child welfare, from a presumption that the primary
consideration ought to be the return of the child to the home, to one in which the health and
safety of the child is paramount. This Act requires states to begin termination of parental rights
proceedings in certain types of cases, such as when a child has been in foster care for fifteen out
of the previous twenty-two months or is legally abandoned. This affects 654 children currently
in West Virginia's foster care system. The law allows states to begin termination proceedings
within thirty days and to make reasonable efforts to place the child for adoption when the child
has been subjected to "aggravated circumstances" or parental rights to a sibling have been given
up voluntarily. The Code of West Virginia, §49-6-5, allows for the total severance of parental
rights when there is clear and convincing evidence that the infant child has suffered extensive
physical abuse while in the custody of the parents and there is no reasonable likelihood that the
conditions of abuse can be substantially corrected.
Amend §49-6-2 of the Code to prohibit continued visitation when parental rights are terminated.
ISSUE AREA 4: Six Percent of our Sample of Foster Care Court Orders Reviewed Were Unsigned by the Circuit Court Judge.
The West Virginia Department of Health and Human Services (DHHR) is required to have certain information in each foster care child's case records. The files are divided into various "blocks" such as Legal, Narrative, Correspondence, and Medical. Effective July 1, 1987, a new block in the Social Services record was developed for each individual child who enters foster care. The block was initially supposed to be labeled "Foster Care." Some of the required contents of this block include: 1) Initial petition seeking DHHR custody; 2) Court order granting DHHR custody and all subsequent petitions and orders; and 3) Voluntary placement agreements and/or voluntary relinquishments.
According to §51-3-4 of the West Virginia Code, the orders of every court shall be signed by the judge and entered as a record. Furthermore, Meyers v. Washington Heights Land Co. states, "Courts of record must speak by their records. What is not thereby made to appear does not exist in law." Douglas v. Feay states, "Unless and until the proceedings of a court are recorded and signed as required by this section they can have no force or efficacy whatever."
While reviewing a sample of case files, the Legislative Auditor found that all of the court
orders in the files were not signed by the circuit court judge (See Table below). Of the 2,313
court orders that the Legislative Auditor reviewed, 134 did not have a signed copy in the case
files. For example, the Legislative Auditor found that four court orders terminating parental
rights were not signed by a judge.
|Total Court Orders||Court Orders Not Signed||Orders Not Signed Terminated Parental Rights|
The Legislative Auditor's Office cannot pinpoint the exact causes of unsigned court orders in foster care case files. However, possible causes include: (1) DHHR workers are not receiving court orders from the circuit clerk's office; and (2) DHHR workers are not filing the court orders in the case files.
The most serious effect from having unsigned court orders involves possible legal entanglements. For example, in four of the cases found, the order was to terminate parental rights. If adoption occurs and parental rights have not legally been terminated, obviously, the children and parents involved will be adversely affected.
Thus, children may be staying in the system longer than necessary, especially ones who
are waiting to be adopted. Foster/adoptive parents who are willing and able to adopt may have
to wait because of delays in the court system caused by unsigned orders. By not having signed
copies of court orders, DHHR workers must make additional efforts to obtain copies of these
orders if adoption occurs. In addition, workers may be following invalid court orders. In
essence, DHHR is at the mercy of the court system when it pertains to getting orders signed.
DHHR staff cannot proceed with trying to get children adopted if court orders are not signed and
sent to the Department.
When the Legislative Auditor's Office conducted field work at the various DHHR offices throughout the state, the staff noticed that the court orders were located in both the Legal block and the Foster Care or IV-E/IV-B block of the file. Some duplicates of the court orders were found in one block or the other. The court orders are an integral part of the foster care/adoption process and should be maintained in consistent order from county to county. For example, a file in one county was transferred to another county. The case file contained missing court orders and obsolete forms. In addition, there were no originals of the voluntary placement agreement. The worker had to reconstruct the history of the child's placement. In conducting the field work, the Legislative Auditor was told that there were hearings held, but in some cases orders were not filed with the circuit court and therefore were not in the case records. In another case, both parental rights were terminated but there was no court order attesting to this fact. The Legislative Auditor was told that even records within the same region can vary from county to county.
POTENTIAL LOSS OF FEDERAL TITLE IV-E REIMBURSEMENT
Discussion with DHHR officials further indicates the problems with court orders. DHHR researched the loss of Federal Title IV-E reimbursement for foster care due to certain language in court orders needed to qualify for reimbursement. DHHR officials informed the Legislative Auditor's Office:
Federal Title IV-E foster care legislation requires that court orders, placing children in out-of-home care reflect judicial determinations that remaining in the home is contrary to the child's welfare and that reasonable efforts to prevent removal were made or were not possible. When these determinations are not reflected in an order the state may not claim reimbursement for the cost of care for an otherwise-eligible child. The State code mandates these determinations in Chapter 49-6, the neglect abuse section of the Code, but does not in Chapter 49-5, the juvenile section.
The West Virginia State Supreme Court issued standardized court orders reflecting required determinations for all types of custody in 1994, yet a significant number of orders placing children in care do not reflect these determinations.
Between April and December 1997, 421 youth found to be otherwise eligible could not be claimed for federal reimbursement due to lack of required language in court orders. Over one-half (288) were removed due to delinquency.
As of December, the average monthly social service cost of foster care direct payments
per child is $1397.76. This represents a significant loss of federal monies, solely due to
language in court orders.
DHHR estimates that this amount applied to 421 children at 73% reimbursement rate projected over a 12-month period. If this is correct, the state is losing $5.1 million dollar annually in federal title IV-E funding, due to court orders being completed incorrectly or not signed at all.
This information agrees with the Legislative Auditor's Office's field interviews of DHHR employees. Numerous DHHR employees stated that there are problems with the court system. According to one employee, due to new judges in the circuit court system and the number of civil, criminal, and juvenile cases the county has a large backlog of cases. Prosecutors have had and are having a hard time getting court dates. This particular county is getting all of its new cases heard, but there are so many cases that it is difficult to get the old cases heard before the court.
Another DHHR employee stated that the court system varies from county to county, making it difficult for workers to anticipate the actions of the court. Each judge requires various paperwork to be filed and in a timely manner. Some judges attempt to work with the DHHR workers, giving them the needed time, while others do not. If the court system were able to operate more evenly, it would be very helpful to the worker. The aforementioned examples illustrate why DHHR workers may have a difficult time in getting children adopted. Delays in the court system and the degree of variance in the court system on a state level may contribute to why some children are staying in the system for such a long time.
The Legislative Auditor recommends that DHHR monitor legal orders in foster care cases.
DHHR should petition the appropriate circuit court judges to sign the 134 unsigned court orders identified by the Legislative Auditor's Office and also to 421 court orders which were not issued following the West Virginia State Supreme Court's standardized court orders as set forth in 1994. DHHR should then attempt to obtain additional federal funding for those cases which, after signed and/or modified court orders, allow foster children to qualify for Title IV-E or Title IV-B funding.