It’s just common sense: An adult's past criminal history or history of child maltreatment is not to be balanced against the safety of a child. This is not to say a person with any criminal record should be barred as a foster parent, but certainly an applicant with a substantiated history of child maltreatment, no matter how far in the distant past, should be permanently barred.
Foster care agencies have a legitimate reason to inquire about a prospective foster parent’s criminal and child maltreatment history, be it an inquiry, arrest, charge or conviction. Why? Quite simply, the agency seeks to maximize child safety.
In addition, a good background check helps identify a superior applicant while simultaneously reducing the agency’s potential liability. In many states, the agency responsible for approving foster parent licenses is permitted to waive or not even take into account an applicant's child maltreatment or criminal history if the offense happened many years ago or if the agency's internal risk analysis indicates no cause for concern.
Generally, employers have a legal right to obtain an individual’s criminal record before hiring them. But there are limitations to this practice. The actual decision not to hire someone otherwise qualified because they have a criminal record must be related to something specific in their criminal record, not just the fact that they have a criminal record.
Across the country, some municipalities have begun to “Ban the Box,” to no longer at the outset ask questions about an applicant’s criminal history. Only later in the interview process may a criminal background check be requested. In similar fashion, Virginia Gov. Terry McAuliffe recently used his executive power to permit more than 200,000 convicted felons to vote.
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But legal restrictions on licensing people with previous criminal or child maltreatment allegations or histories to be foster parents are not akin to allowing these same people to vote. Put another way, an adult being left alone in a voting booth is not the same as a child being left alone with a potentially abusive or neglectful caretaker.
As a society, we have at times been uncomfortable with the use of criminal records for employment or voting purposes. One of the purposes of our criminal system is rehabilitation, after all. How is a person supposed to get a job if they are disqualified based solely on their earlier behavior?
But isn’t the question of licensing people as foster parents vastly different? The risks associated with each are wholly dissimilar. A foster parent has the challenging and extremely important 24/7 task of providing a home for a child who has already experienced, at a minimum, great upheaval.
Whether medically or psychologically determined to be particularly at risk, foster youth have, without exception, experienced a series of events that led them to be in the care of the state and find themselves in whatever “home” the state has decided is more appropriate for them.
The notion of balancing is pervasive in constitutional law. Supreme Court Justice Benjamin Cardozo wrote in his book “The Nature of the Judicial Process” that legal decisions depend “largely upon the comparative importance or value of the social interest that will be thereby promoted or impaired.”
This is not one of those cases.
Daniel Pollack is a professor at the School of Social Work, Yeshiva University in New York City and a frequent expert witness in child abuse and foster care lawsuits. Email him at dpollack@yu.edu; call him at 212-960-0836.
Noy Davis is an attorney with the law firm of Schiff Hardin LLP in Washington, District of Columbia. [Through Schiff Hardin, she represents First Star Institute. The views expressed herein reflect those of the Institute; they do not reflect the views of Schiff Hardin LLP or any of its other clients.] Email him at ndavis@schiffhardin.com; call her at 202-778-6412.
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