“Least Restrictive”

Sometimes you will hear someone (usually a judge or attorney) talk about the “least restrictive” options or alternatives to removal for a child. Here’s what they’re talking about.


The least restrictive is when the child can remain in the home with the parent, perhaps with a safety plan or other services. If a Child in Need of Assistance (“CINA”) petition is being filed, it’s unlikely that the child will remain at home, because once the neglect or abuse is severe enough to involve the court, it’s unlikely that the Department of Human Services (“DHS”) believes they can keep the child safe at home.


The next best (or “least restrictive”) option to be considered is a non-custodial parent or other relative. These individuals also need to be vetted, though the depth of the background check is much lower than a foster parent. It may involve a drug screen and basic criminal background/abuse registry check. Grandparents, aunts/uncles, or even adult siblings are common relative placements. At the beginning of the case, DHS will send out relative notification letters.


Unfortunately, they may not know who to send those to. Parents may not disclose relatives (even noncustodial parents) for a variety of reasons: shame at being involved in “the system,” estrangement from family members, or fear that if the child goes to the non-custodial parent, s/he will never “get them back.” However, the goal is always to return the child to the parent from whom s/he was removed, so if the custodial parent involved in the case is able to reunify, the child(ren) will be returned to him/her.


Additionally, some relative placements that would be otherwise appropriate are ruled out because of geographic distance. The goal is always reunification with the parent, which requires progressively more visits (with progressively less supervision). If the relatives live out of state, or even in state, but several hours away, this is going to make parenting time/visits difficult, if not impossible.


Fictive Kin is next on the list. Someone who is fictive kin is not a relative placement but is also not a stranger. It is someone who is known to the child, whether it’s a family friend, teacher, coach, or someone from the family’s church family. Really, fictive kin can be anyone known to the child, but again, this individual will need to be vetted before the child is placed with him/her.


If DHS is unable to place the child in any of these homes, they will seek an appropriate foster home. Foster parents must be licensed, which can sometimes be time consuming, because it includes pretty significant background checks. Foster parents are licensed through Four Oaks, which has a contract with DHS. Foster parents must annually renew their license and take classes to maintain that license.


Foster families may or may not be licensed to adopt; some families only want to foster, some want only to adopt, and others are open to both options. Many adoptions come through foster care, however, so if a family wants to adopt, they may want to foster as well. Just because someone fosters a child, though, does not mean they are required to adopt, should the family not reunify. This is true even if they are licensed to adopt. If they are fostering the child and open to adopting the child, they are considered the concurrent plan.


I tell parents that this means that they (bio-parents) are Plan A. But if something happens and that doesn’t work, we don’t want to be scrambling at the last minute to try to find someone to take their child in. So, we try to have a Plan B (concurrent plan) just in case. That doesn’t mean we aren’t trying to reunify the family or that we think the parent is going to fail. It just means we want to have a Plan A and B.


The options after foster home get “more restrictive” pretty quickly. These alternatives include shelter, detention (if the child is found to have committed a delinquent act), and PMIC (Psychiatric Mental Institute for Children) of MHI (Mental Health Institute). If a child has a delinquency case and a CINA case, it is considered a “dual status” case. DHS is “point person” on the CINA case, but the Juvenile Court Officers (“JCOs”) generally run the delinquency case.


DHS and the legal professionals work diligently to ensure that kids are not in shelter very long, though if they are a difficult foster placement, it may be longer than anyone wants. Length of stay at PMIC or MHI typically depends primarily upon the child’s progress, but unfortunately, the reality is that it is sometimes due to Medicaid/Insurance issues.


The level of “restrictive alternatives” is, then, on a continuum. Iowa Code 232.2(4) requires that the child is to be placed in the “most appropriate, least restrictive, and most family-like setting available and in close proximity to the parent’s home, consistent with the best interests and special needs of the child, and which considers the placement’s proximity to the school in which the child is enrolled at the time of placement.”


“Least restrictive” is not the only consideration, then. “Most appropriate” is equally important. While detention or a PMIC may be “most restrictive,” it can also be “most appropriate” in some cases. Typically, we will consider the Least/Most Restrictive issue first, and then determine whether it is most appropriate. Other times, they end up in a more restrictive setting than is appropriate simply because there is nowhere else to go. These are the really tough cases. One of the things I really focus on when I am the GAL with a child in shelter, a PMIC or other significantly restrictive environment is to check in with the child frequently—in person, if possible—because these kids can often feel like they’ve been forgotten (especially if parents aren’t visiting/calling).


One final thing to remember. Even if a child is in shelter, s/he can often continue to attend their home school. The shelter will work with the school district to set up transportation, though it may take a few days. This can be an important consistency for the child; they can still go to “their” school, work with “their” teacher, and play with “their” friends. However, shelters are often full, so kids may end up in a shelter too far from their home (e.g., at shelter in Fort Dodge, but their school is in Polk County), which means they won’t be able to stay in their school. This is obviously disruptive to their education but is sometimes unavoidable.


As always, let me know if you have any questions or comments about the post (but don’t reveal any confidential information!).