When J.D. Vance was twelve, his mother, struggling with substance abuse, sped down the highway and told him that she was going to crash the car and kill them both. When she slowed down, Vance fled, his mother was arrested, and the family became the subject of a Child Protective Services (CPS) investigation. As Vance-the-memoirist describes it, he feared foster care. He wanted to live with his grandmother, “mamaw,” but he wasn’t confident she would pass muster as a foster parent, so he lied to the social workers. Vance’s plan worked: the case was closed, and “mamaw” informally gained physical custody of Vance.
Scholars would likely refer to Vance’s experience as an instance of hidden foster care, while policymakers would describe it as “kinship diversion”: CPS agencies transfer physical custody from parents to kin or fictive kin (e.g., family friends) under the threat of involvement in the formal “family regulation system.” Today, this process typically occurs through documents known as “safety plans,” ostensibly voluntary agreements offered by CPS investigators after a brief preliminary safety assessment. These agreements avoid formal foster care placement but deprive parents of procedural due process protections. Families often agree to this arrangement because they are familiar with the harms and risks of formal foster care—for parents, intense state surveillance, loss of visitation, and employment consequences if there is a finding of abuse or neglect; and for children, separation from their family and community, unstable placements, and abusive foster homes. Other parents don’t understand what they are signing nor that they are supposed to have a choice in the matter. Importantly, because the child is not in the state’s custody, the state owes neither the child nor their new caregivers, such as Vance’s “mamaw,” any foster care subsidies.
Hidden foster care is not a small-scale phenomenon—precise figures aren’t available because of its informality, but it’s estimated that 250,000 American children are currently in hidden foster care (on top of roughly 330,000 children in formal foster care). Despite this, it has received scant attention from scholars who work on the political economy of family governance. In this post, I explain how hidden foster care, which is believed to have emerged in the 1980s, furthered the neoliberal-social-conservative project of dismantling the welfare state and reinstating the poor-law-style ideal of family responsibility. This story, I argue, contains important lessons for progressives seeking to replace formal state programs with informal family- and community-based initiatives.
The Kinship Care Paradox
Today, about a third of children living in formal foster care are cared for by kin. But these proportions were once much lower. Beginning in the mid-1980s, through a convergence of progressive activism—which sought to preserve families by placing children in foster care with family members—and the expanding family regulation system’s foster-parent shortage, kinship care became increasingly common. Between 1986 and 1990, kinship foster care placements grew from eighteen percent of all placements to thirty-one percent in twenty-five states. This trend was particularly strong in California, Illinois, and New York, where, by 1997, there were at least as many kinship caregivers as traditional foster parents (and where racial disparities were and continue to be especially stark).
The shift presented a paradox for the neoliberals who sought to reimpose private family responsibility, as kinship foster parents were, according to the Burger Court’s unanimous decision in Miller v. Youakim, legally entitled to the same subsidies as non-relative foster parents. Kinship foster care thus muddied the boundary between publicly funded care by strangers and free care by family and community members. And as other sources of social support withered away with the dismantling of the welfare state during the 1980s and ‘90s, foster care subsidies took on an increasingly significant role for poor families. For instance, when the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) replaced AFDC with the much less generous and more restrictive TANF, a relative who cared for several children through kinship foster care might receive two to four times as much in foster care subsidies as she could in welfare benefits (if she still qualified).
This disparity was no coincidence. Foster care subsidies operate as diverted welfare: when a child is removed, the parent loses access to benefits; if the child is placed in formal foster care, the state instead pays more generous benefits to the foster parent. And in the late ‘90s, this diversion was reinforced at the systemic level. While the federal government attacked welfare, it invested in the foster care system. In the four years after the passage of the PRWORA, spending on foster care increased by approximately the same percentage as spending on food stamps decreased. Furthermore, Congress began using TANF contingency funds, intended to supplement aid to impoverished families during budget shortfalls, to fund the foster care system. States too started spending newly flexible TANF funds on family regulation. Arizona, for instance, spends 61% of its TANF funding on its CPS system and only 13% on welfare payments.
The strictures of the PRWORA may have also perversely incentivized impoverished parents to place their children in the foster care system. In the years that followed the PRWORA, there was a significant increase in voluntary foster care placements. In New York City, voluntary placements increased 41% in 1997. By 1999, 1 in 10 children admitted to foster care in NYC were being voluntarily placed there, and many of these placements were with kin. Looking at this perverse phenomenon caused Dorothy Roberts to conclude that “transferring parental authority to the state is the price poor people must often pay for state support of their children.”
Neoliberalism thus failed to close all possible avenues for welfare-style support. For the most desperate families, submitting to the violence of the foster care system was a means of accessing increasingly scarce state support. Moreover, when children were placed in kinship care, this funding went to a child’s extended family or community, rather than to strangers. (When Robert Little, Malcolm X’s younger brother and a former kinship foster kid, was made commissioner of foster care in New York in the early ‘90s, he heralded kinship foster care as a form of economic development for the Black community.) As a result, contrary to the neoliberal-social-conservative ideal of private family responsibility, market distribution, and the minimal state, in foster care, the convergence of policy changes and existing legal requirements resulted in state funding for private family care.
The rise of hidden foster care emerged as a neoliberal fix for this paradox: informally moving children from their impoverished parents to their only slightly better-off relatives for free. Because these placements occur outside of the formal foster care system, CPS agencies bypass the Youakim requirement to offer kin the same benefits as non-kin foster parents. And by depriving kinship caregivers and children involved in the hidden-foster-care system subsidies and services, hidden foster care reintroduces the ideal of private family responsibility into the foster care system.
Neoliberal Co-Option of a Progressive Reform?
Increased reliance on hidden foster care is also attributable to federal legislation that funded and incentivized hidden foster care placements. In 2008 and 2018, federal foster care legislation, seeking to keep children with their extended families, directed funds towards kinship diversion.
Progressive advocates championed and celebrated this legislation, and it’s not difficult to see why. On its face, these efforts to direct funding towards diversion rather than formal foster care might look like a way to undercut the family regulation system’s violent intrusion on minority and impoverished families. It might even look a bit like a non-reformist reform.
And from the perspective of families who “voluntarily” opt-in to hidden foster care, it has its benefits, chiefly that the kinship caregiver has the authority to determine when the children can see their parents. By contrast, in formal foster care, as a condition of IV-E funding, foster parents must provide “substitute care for children placed away from their parents.” The state then determines how and what kind of visitation the parent may have with the child. And if a child’s parent previously lived with the kinship foster parent, the requirement that the parent move out of the home may render the parent homeless.
When Vance informally lived with “mamaw,” his mother visited regularly. She even spent a few months living with them. If Vance’s grandmother had been a formal foster parent who received subsidies, she wouldn’t have been allowed to let Vance’s mother drop by at will, let alone stay with them.
Yet despite these advantages, the shift to hidden foster care has undermined one of the few remaining systems of social support for impoverished families. It has also entrenched the neoliberal-social-conservative ethic that to be a family is to care for one another without pay. In a sense, according to the logic of our current system, to receive foster care subsidies, kinship caregivers must agree to no longer treat the child’s parent(s) like family.
As the story of hidden foster care demonstrates, progressive or even abolitionist projects that seek to subvert the formal system by moving funding into informal systems and diversion programs face a perennial risk: co-option by a neoliberal-social-conservative project that is all too ready to replace well-funded, formal state processes with problematic informality and private responsibility by families and communities.
The story of hidden foster care is, thus, reminiscent of Melinda Cooper’s description of the LGBT movement’s slide into left-social-conservatism. In her account, ‘90s neoliberalism ushered in a significant shift in the response to the AIDs crisis. What had previously been an “effort[] to radicalize the imaginary of social redistribution” transformed into a fight for legal recognition that would include same-sex couples “within an already exclusive system of private, work-based health insurance,” allowing them “to take care of themselves and thus renounce their rights to state welfare altogether.” This is Cooper’s tragic extension of Polanyian theory— countermovement activists, policymakers, and public-interest lawyers are fully internal to capitalism.
Maybe we oughtn’t be so fatalistic. Even if calls to subsidize informal kinship placements through Medicaid-style programs seem exceedingly unlikely to succeed in today’s climate, there have been recent successful efforts to increase transparency in hidden foster care, and due process reforms could plausibly be enacted using preexisting federal funding. In pursuing these goals, however, we must remain clear-eyed about why this austerity-driven informal system took hold and the extent to which progressive efforts (unwittingly) encouraged it.
