What We Need to Protect American Families

Vivek Sankaran
Vivek Sankaran, University of Michigan Law School

Vivek Sankaran, one of America’s strongest voices for family preservation, graduated from the University of Michigan Law School in 2001. Since then, he and his alma mater have built a legal advocacy clinic for Michigan families involved in the system, as well as a fellowship that serves as one of the nation’s top incubators for legal minds in child welfare.

We asked Sankaran for his thoughts on the Family First Prevention Services Act, the legal framework of the child welfare system, and the right way to make decisions about drugs and maltreatment cases.

The Family First Prevention Services Act passed this year, which significantly changes the federal financing piece of child welfare. What excites and concerns you about the new law?

What excites me is just the shift in focus to allow flexibility. For the first time, it’s not just a waiver, or exception, but I think it reflects the federal government’s recognition that prevention is really where we should be investing.

I’m a huge fan of Jerry Milner at the Children’s Bureau, and his staff. Everything he talks about is around how we can keep families together. For years, we’ve been saying one thing, and then you look where the money goes, and it’s been supporting something completely different.

My main concern is, I worry that people see this as a sea change and think of it as the end of conversation. ‘OK, we’ve done this, now we can move on to other things.’ I hope that we see it as the beginning of a longer set of initiatives.

Because I think if you look at the Fam First Act, it’s pretty limited in the types of services that IV-E money can fund. And I think we have to wait and see what this evidence-based clearinghouse means, and how that further narrows the types of services available.

I’m a little bit nervous because we’re a field that’s not well-funded. There are going to be great programs where … we don’t have the data because we haven’t had the money to fund the pilots.

The time-limited nature of the services are also another question in my mind … whether that’s wise to place those sorts of limits.

What should Congress and the feds consider in terms of a bigger role in primary prevention?

Building on Family First and making federal funding even more flexible on innovative projects, giving states much more latitude in how they are spending IV-E money to fund a wide array of preventive services.

We’ve been talking a lot in the community about things like legal supports, advocacy for families. Oftentimes families have legal barriers such as being evicted, or benefits are denied, or there’s a special education issue.

And everyone can tell you that’s what’s destabilizing the family unit. But right now, there’s no way to sustain funding for programs to help with that.

I ran a project in Detroit, called the Detroit Center for Family Advocacy, for seven years. It closed in 2016 because we couldn’t get funding. And that was a project where the child welfare agency grew to rely on us.

They’d call us up and say, “We’ve got a family and there’s been allegations of abuse and neglect. We think the kids can remain safely, but there’s a domestic violence victim, so we need a restraining order to help keep the abusive ex-husband away from the kids.”

We relied on foundation money, and after seven years, foundations were like, ‘We’re not in this for the long haul. This was seed money. Where is the public support?’

And the reality is, there is no funding source. Until we get to a point where we recognize that to fix foster care we have to move way upstream, we’ll always be a reactive system.

The idea of giving states more flexibility, I think generally is a good thing. I worry that we’re stuck in what we know, and we don’t have incentives to try anything else. And federal requirements over the years have become so onerous in states.

You think regulation has stunted innovation?

If you talk to child welfare administrators, they have a tunnel vision of compliance, the regulatory system, the CFSR [federal Child and Family Service Reviews], the program improvement plans. It’s very difficult to have conversation with them about designing a system … because day-to-day, they don’t envision, they don’t project. They’re just pulled into this compliance and regulatory scheme.

And that funnels down to caseworkers too. A couple years ago I called a caseworker on a Wednesday in Flint. Her answering machine said if it’s Monday or Wednesday morning, I’m not returning phone calls because those are paperwork days.

So families don’t have emergencies on Mondays or Wednesdays? But it’s not her fault.

Isn’t some of that about lessening the load with better process? It’s crazy how little some systems have embraced technological advances and opportunities.

I totally agree. If you go down to the Detroit juvenile court, and go to their file room, you will see records in manila folders, with pieces of paper. And lawyers going through them. And I asked a clerk one day, what happens if a lawyer just takes it? She said, ‘it wouldn’t exist.’

If there was one thing you could make absolutely required by federal law, uniformly throughout the country, what would it be?

That all families have a right to a lawyer. I think at first the feds operated as if child welfare was just the executive branch of child welfare agencies, and the foundation world has been the same.

But we’ve started to slowly embrace that courts and lawyers can muck it up. You can have your family team meeting and come up with a plan, but you go into court and as a lawyer I can say, ‘Well I wasn’t a part of it, so I’m going to use my rhetoric and undercut what you’ve done.’

There are certain child welfare directors who have recognized that lawyers can make their agencies perform better. Good lawyers. One problem in the field is that far too many of the lawyers in it aren’t necessarily the ones you want to invest in.

But that’s sort of a chicken and the egg problem, until the money and resources come to this field. I have lots of law students who want to represent families in child welfare cases. Where do I send them, to New York? They have great institutional nonprofits.

A lot of them say, ‘I want to stay in Michigan.’ In Michigan, they’d have to hang a shingle out.

The role of substance abuse in child protection cases is front and center these days. Do you have any thoughts on what the litmus test or standards should be for when addiction is severe enough to warrant a removal of a child and when it isn’t?

I don’t know if I have a straightforward answer. I think it’s looking for concrete ways in which substance abuse is affecting the parenting ability of the parent.

So the answer can’t be that a mom tested positive for marijuana, or her baby did, so we must remove.

The bigger issue for me though, and this is where I find a lot of what we’re forced to do in child welfare as morally suspect, is that there are so many families that want to get substance abuse treatment, I represent them in our clinic. And we just don’t have the resources available for folks not involved in the child welfare system to get it.

In child welfare, we’re cleaning up a mess that society has left. And I don’t mean that about the family, I mean we intervene too late, and then sort of act as if we’re doing something good for this child.

It leaves me with a bad feeling. I don’t feel good when we put a kid in foster care when we had so many points to intervene and we’ve failed the family.

If you are interested in reading more about federal child welfare and juvenile justice policy, read our annual special issue “Kids on the Hill: A Special Issue on Child Welfare Policy” by clicking here!

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John Kelly, Editor in Chief, The Chronicle of Social Change
About John Kelly, Editor in Chief, The Chronicle of Social Change 1213 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change. Reach him at jkelly@chronicleofsocialchange.org.