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Preventing the need for foster care in D.C.

In the District of Columbia, when a child is removed from the custody of one parent, the child may go live with another parent after a quick investigation and approval by the Child and Family Services Agency (CFSA) — usually within 72 hours. The child is only placed in foster care if the other parent is deemed unfit.

However, if the other parent lives out of state, D.C. requires that parent to undergo a home study investigation by his or her state to determine fitness. If the other state, after investigations that sometimes last several months, deems the home study unsatisfactory, CFSA may deny custody to that parent.

Unlike the rule for D.C. parents, that denial is not dependent on a finding that the other parent is unfit. Importantly, while these studies are being completed, the children are temporarily in foster care.

Earlier this month, two Maryland fathers, represented by Arnold & Porter and with the help of the Children’s Law Center, filed suit against the District of Columbia. The fathers are claiming violations of due process and equal protection rights. Essentially, their children were removed from custody of their D.C.-based mothers, and the Maryland fathers were not allowed to take custody until Maryland completed a home study.

The District is obviously concerned about whether its children are safe and well-protected; these are not rules that are enforced out of spite or for some evil motive. However, lengthy investigations required for out-of-state parents necessarily mean that those children remain in foster care, deprived of their parents, for the duration of the investigations. That is harmful, especially to the children.

Foster care is important and necessary. My wife and I are foster care parents and it is the greatest job ever. But children should not be placed into foster care lightly. At best, it is supposed to be a temporary placement before finding a permanent solution for the child — whether placing the child back with his or her parent if that parent is fit or finding another permanent solution such as adoption.

What’s the answer? Maybe D.C. should send its CFSA investigators to the other states to perform the exact same investigation they do in D.C. I suspect it wouldn’t be that difficult in most cases — the other parents probably reside most often in neighboring states. Whatever the solution, it seems harsh to presume the unfitness of the other parent and to allow that presumption to go on for months.

For its part, D.C. is relying on a federal law (the Interstate Compact on the Placement of Children) that they argue applies regardless of whether those children are placed with a parent. My bet is that their reliance on that law is misplaced under these circumstances. Courts in other states — for example, California, Arkansas and Washington — have held it inapplicable to placements with out-of-state parents.

Congratulations to Arnold & Porter for representing the fathers and their children pro bono. This is great work — they are an inspiration to us all.