Signed Away in a Kitchen: How CPS Moves a Quarter-Million Children a Year Into a Foster System With No Judge, No Lawyer, and No Record

A caseworker knocks. Within an hour, a mother has signed a one-page "safety plan" handing her children to a grandmother, an aunt, a neighbor. There is no petition, no hearing, no appointed attorney, no judicial finding that removal was warranted — and, critically, no entry in any federal database. The child is gone from the home but has never legally entered foster care. Researchers call this "hidden foster care," "shadow foster care," or "kinship diversion," and the best available estimates put its scale at roughly 250,000 children a year — approximately equal to the entire formal foster care system. It exists because it is cheap: a child moved this way costs the state almost nothing, generates no federal Title IV-E draw, triggers no permanency clock, and never appears in the numbers by which agencies are judged. The cost is transferred, in full, to a grandmother on a fixed income and to a child whose legal status becomes a blank.

How the Mechanism Actually Works

The setup is deceptively simple. A hotline report comes in. An investigator arrives and identifies a safety concern — often substance use, a dirty house, an unexplained injury, or, very frequently, poverty misread as neglect. Instead of filing an abuse-and-neglect petition in juvenile court, the worker presents the parent with a choice framed as voluntary: sign a safety plan moving the child to a relative today, or the agency will remove the child into stranger foster care and take you to court.

Legally, the parent is agreeing to a private custody arrangement. Practically, the parent is complying with a state threat. Josh Gupta-Kagan, now a professor at Columbia Law School, described the dynamic precisely in his foundational 2020 article America's Hidden Foster Care System, 72 Stan. L. Rev. 841: the agency "threatens to remove children and take parents to court unless they agree to change their children's physical custody to the identified kinship caregiver." Because the child is never taken into agency custody, the placement is never reported in state or federal statistics.

The paperwork varies by state and is usually banal. Texas calls it a Parental Child Safety Placement and uses DFPS Form 2207, a "Family-Initiated Parental Child Safety Placement Agreement and Safety Plan." Washington uses Voluntary Placement Agreements. New York's local districts used "alternative living arrangements" and "Relative/Resource Placements." Cherokee County, North Carolina, invented its own instrument and called it a Custody and Visitation Agreement. The labels differ; the architecture is identical — a signature substituting for a court order.

What follows the signature is often nothing. A Child Trends survey found that a majority of state agencies acknowledged using the practice, and a majority of those states reported that after diversion they "discontinue ongoing supervision with the caregiver and leave the caregiver as the physical custodian of the child." The agency has separated a family based on a suspicion of abuse and then walked away from the child it deemed unsafe.

The Money: Why "Voluntary" Is Also Free

This is not primarily a story about caseworkers being lazy. It is a story about a federal funding statute that makes formal removal expensive and informal removal free.

Under § 472(a)(2) of the Social Security Act and 45 C.F.R. § 1356.21, a child qualifies for Title IV-E foster care maintenance payments only if the first court ruling sanctioning removal contains a judicial determination that remaining home would be "contrary to the welfare" of the child. That finding cannot be made retroactively. If it is missing from the first order, the child is ineligible for federal foster care dollars for the entire duration of that placement.

Read that backwards and the incentive is obvious. No petition means no finding, which means no Title IV-E claim — but it also means no state maintenance payment obligation at all. Title IV-E is an open-ended entitlement in which the federal government reimburses states at the Federal Medical Assistance Percentage, ranging from 50% to 83% depending on state per-capita income, plus 50% of administrative costs and 75% of certain training costs. Federal Title IV-E support was roughly $9.7 billion in FY2024, out of about $11.0 billion in total federal child welfare funding, per the Congressional Research Service.

But the federal share is only a share. Every IV-E-eligible child in a licensed home still costs the state 17% to 50% of the maintenance payment, plus the state half of administration, plus caseworker visits, court time, agency counsel, a guardian ad litem, and — under the Adoption and Safe Families Act — a permanency clock that eventually forces expensive resolution. Historically, states claimed Title IV-E maintenance for only about 41% of children in foster care; the rest were carried entirely on state and local dollars. A diverted child costs approximately zero on every line.

The savings do not evaporate. They land on the caregiver. Kinship caregivers outside the system are routed to TANF child-only grants, which typically run $200 to $500 per month per child, versus foster care maintenance payments that are set per child and supplemented by clothing allowances, infant supplements, and specialized-care increments. The Urban Institute's comparison is stark: a caregiver of two young children on a foster care subsidy receives roughly $1,400 a month; the same caregiver on TANF child-only receives roughly $577. Because TANF adjusts only incrementally by household size while foster care pays per child, the gap widens with every additional sibling. And a caregiver cannot draw both for the same child.

The Annie E. Casey Foundation's 2024 Family Ties series — built on a Child Trends survey of all 50 states, D.C., and Puerto Rico, with 46 agencies responding — found that 33 states have policies expressly permitting kinship diversion, and that only 23 of 46 states provide any financial assistance to unlicensed kinship caregivers, compared with 44 that provide it to licensed ones. Diversion is, definitionally, the unlicensed column.

The one federal funding stream aimed at these families is the Kinship Navigator Program. Congress set aside $20 million a year under Title IV-B, subpart 2 for FY2018–2021, and since October 1, 2018, states may claim 50% federal financial participation for kinship navigator costs — but only for models rated promising, supported, or well-supported by the Title IV-E Prevention Services Clearinghouse. As of the most recent guidance, only about five models have cleared that bar nationally. The support system for hidden foster care is, in funding terms, a rounding error against a $9.7 billion program.

The Legal Architecture That Permits It

The doctrinal keystone is Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006), a class action against the Illinois Department of Children and Family Services. Writing for the panel, Judge Richard Posner held that safety plans do not require judicial hearings because of their "non-coercive nature," reasoning by analogy to civil settlement: it is "not a forbidden means of coercing a settlement to threaten merely to enforce one's legal rights." That single sentence — treating a mother facing the loss of her children as a litigant negotiating a contract — is the permission slip under which hidden foster care operates in much of the country.

The counterweight is thinner but real. In Croft v. Westmoreland County Children and Youth Services, 103 F.3d 1123 (3d Cir. 1997), a caseworker with no objective evidence of abuse demanded that Dr. Henry Croft leave his own home or lose his four-year-old daughter to foster care. The Third Circuit called the threat "blatantly coercive" and held that coerced separation without an objectively reasonable suspicion of abuse is an arbitrary abuse of power violating substantive due process. Hernandez v. Foster, 657 F.3d 463 (7th Cir. 2011) applied similar reasoning where parents alleged they were threatened into accepting a safety plan restricting access to their 15-month-old.

The synthesis, as the Grandfamilies State Law and Policy Resource Center's caselaw survey puts it, is that the circuits addressing the question require reasonable suspicion — but reasonable suspicion is a floor a caseworker clears by simply having a report, and no court reviews whether the floor was cleared unless a family later sues. Ninety-nine percent of these cases never produce a lawsuit.

The collateral damage is a list of protections that simply switch off. Because no judicial proceeding exists: CAPTA's guardian ad litem requirement (42 U.S.C. § 5106a(b)(2)(B)(xiii)) never attaches. ASFA's 15-of-22-month permanency clock (42 U.S.C. § 675(5)(E)) never starts. Federal monthly caseworker visit standards never apply. Title IV-E Guardianship Assistance, which requires six months in a licensed kinship foster placement (42 U.S.C. § 673(d)), is permanently foreclosed. And for Native families, ICWA's notice, active-efforts, and placement-preference provisions (25 U.S.C. § 1912) are triggered by a "child custody proceeding" — an informal safety plan is not one, which means the entire Indian Child Welfare Act can be walked around with a signature.

Named Cases: What It Looks Like When It Surfaces

Cherokee County, North Carolina is the only jurisdiction where this practice has produced felony convictions. The county Department of Social Services used homemade "Custody and Visitation Agreements" to transfer custody of children out of court, with no lawyer for the parents and none for the children, targeting families struggling with addiction and poverty. DSS attorney Scott Lindsay advised Director Cindy Palmer and her staff to use the instruments. A Macon County jury convicted Lindsay of 12 felony counts and 2 misdemeanor counts of obstruction of justice. Palmer pleaded guilty to one felony count of obstruction in October 2021, receiving a mitigated sentence of 5 to 15 months suspended for 12 months of unsupervised probation. In May 2021, a federal jury awarded $4.6 million to Brian Hogan and his daughter; the court later awarded $1.78 million in attorneys' fees.

The human cost surfaced nationally when ProPublica and The New York Times Magazine published "They Took Us Away From Each Other", following children diverted in Cherokee County into homelessness and alleged sexual abuse. The day after publication, defense lawyers offered $4 million to Molly Cordell, then 21, who had been made homeless after workers illegally separated her from her family.

Texas produced the one hard number the country has. After two children died in hidden foster care in 2015, DFPS published its counts: roughly 34,000 safety-plan placement agreements in 2014 — substantially more than formal removals that year. In FY2015 a monthly average of 11,667 children were living in Parental Child Safety Placements; by February 2018 the monthly average was 4,267. Texas is not an outlier in practice, only in disclosure.

Washington State tracked its Voluntary Placement Agreements and found that between 2017 and 2021, an average of 538 children a year were removed by VPA — and in about 35% of those cases the children never returned home. A "temporary" arrangement permanently dissolved more than a third of the families that entered it.

New York tried to formalize the shadow system and was stopped. In April 2022, Lawyers for Children, the Legal Aid Bureau of Buffalo, and co-counsel — represented by Proskauer — sued the Office of Children and Family Services over its Host Homes regulations, which authorized placing children with strangers under monthly agency check-ins but without court oversight or legal representation. New York's Court of Appeals struck the program down, holding that OCFS lacked authority to create it and that it undermined the legislature's "carefully designed" foster care system.

The Accountability Gap

The oversight architecture of American child welfare is built almost entirely on one trigger: agency custody. Remove that trigger and every watchdog goes blind at once.

AFCARS — the Adoption and Foster Care Analysis and Reporting System — counts children for whom the IV-E agency has placement and care responsibility. Preliminary FY2024 estimates show about 328,947 children in care, with 170,943 entries and 176,730 exits, and 39% (127,449 children) placed with relatives or kin. Diverted children appear in none of it. The Child and Family Services Reviews measure performance on the AFCARS population, which means diversion improves a state's apparent numbers by shrinking the denominator. Court improvement programs review court files that do not exist. Child fatality review boards examine deaths of children "in care." Citizen review panels review cases in the system.

The result is a policy black hole. Estimates of scale run from 100,000 to 300,000 children annually; ProPublica's reporting put the shadow system at "roughly the same" size as formal foster care, which takes in about a quarter-million children a year. One analysis of the 2.2 million children in kinship care nationally found 32% — roughly 700,000 — in voluntary kinship arrangements or diversion. Nobody knows the real figure, which is the point.

Federal regulators have partially closed one excuse. ACF's final rule at 88 Fed. Reg. 66700 (Sept. 28, 2023), effective November 27, 2023, lets Title IV-E agencies adopt kin-specific licensing standards distinct from non-relative standards, and requires that eligible children receive the same foster care maintenance payment regardless of whether the home is a licensed relative or unrelated foster home. The old justification for diversion — "Grandma can't pass licensing, so we can't pay her" — is now, in most cases, an administrative choice rather than a legal constraint.

Congress has twice attempted the obvious fix. Senators John Cornyn (R-TX) and Jon Ossoff (D-GA) introduced the Foster Care Placement Transparency Act, S. 5214, in the 118th Congress. In the 119th, the same policy returned as the Hidden Foster Care Transparency Act, S. 2902 and H.R. 5507, the House version led by Rep. Nathaniel Moran (TX-01). The bills reach arrangements labeled "kinship diversion," "foster care diversion," "safety planning," and "informal family planning" to the extent they occur without court order or oversight, and would require states to report how many children were separated, how long arrangements lasted, whether parents and children had counsel, and whether caregivers were referred to kinship navigator programs, IV-B or IV-E prevention services, or legal help. HHS would publish an annual report to Congress. The Senate effort follows Ossoff's 13-month subcommittee investigation into abuse and neglect in Georgia's foster care system. Neither bill has become law.

Who Benefits, and Who Pays

The incentive structure deserves naming plainly. State and county agencies benefit twice: they avoid maintenance and administrative costs, and they post lower entry-into-care numbers that read as reform success. Foundations and reform organizations that have spent two decades pressing agencies to reduce the foster care census — Casey Family Programs alone reported $2.64 billion in assets and $154 million in expenses for tax year 2023 (EIN 91-0793881) and works directly with state agencies as a systems consultant — created the metric environment in which "fewer kids in care" is the scoreboard. To its credit, Casey now publishes materials identifying hidden foster care as a problem. But a movement that measures success by census reduction and a bureaucracy that can reduce the census with a signature and a threat is a combination that did not need anyone to act in bad faith to produce this outcome.

The people who pay are not ambiguous. Parents lose their children without a hearing, without counsel, and without any deadline by which the state must prove anything. Caregivers — overwhelmingly grandmothers, often themselves poor, often themselves aging — take on children with no maintenance payment, no Medicaid foster care category, no legal custody with which to consent to surgery or enroll a child in school, no respite, no clothing allowance, and no path to subsidized guardianship. And the children get the worst of both worlds: separated from their parents on the state's say-so, and then left in a placement the state has declared itself no longer responsible for supervising.

What Would Actually Fix It

Five changes, in descending order of leverage.

Count them. Pass S. 2902 / H.R. 5507 and add a hidden-foster-care module to AFCARS. Nothing else is enforceable against a population that does not officially exist.

Give parents a lawyer before the signature. Washington's approach is the model: when the agency proposes a voluntary placement, the parent gets an immediate phone or video consultation with the Office of Public Defense and may request appointed counsel, phased to full implementation by 2026. Pre-petition counsel is the single intervention that converts Dupuy's legal fiction — a parent freely settling — into something resembling the real thing. It also qualifies for federal reimbursement: ACF has permitted Title IV-E administrative claiming for legal representation of parents and children since 2019.

Put a clock on it. Safety plans should be written, dated, and expire — 30 days is a defensible outer limit — after which the agency must either close the case, return the child, or file a petition and face a judge. Gupta-Kagan documents agencies enforcing safety plans well past 90 days.

Pay the caregiver the foster care rate. The September 2023 kin-licensing rule already requires payment parity for licensed kin. States should default to licensing and paying kinship caregivers rather than diverting them into a $200-a-month TANF grant, and should fund kinship navigators to make that path navigable.

Restore the child's protections. If an agency concludes a child is unsafe at home, the child is entitled to a guardian ad litem, a permanency plan, agency supervision, and — for Native children — the full protection of ICWA. Those obligations should attach to the fact of state-induced separation, not to the paperwork the agency chooses to file.

The through-line is a single principle that American law already claims to honor: the state may not dissolve a family without proving its case to a neutral judge. Hidden foster care is the discovery that this principle can be evaded not by defying it, but by never invoking it — and that a quarter-million children a year can disappear from the ledger of a $9.7 billion federal program simply because nobody was required to write their names down.

Sources: Gupta-Kagan, America's Hidden Foster Care System, 72 Stan. L. Rev. 841 (2020) · ProPublica / NYT Magazine, "They Took Us Away From Each Other" · ProPublica, "A Multimillion Dollar Settlement for a Young Woman Once Lost in the Shadow Foster System" · ProPublica, "New Legislation Takes Aim at Hidden Foster Care" · ProPublica, "Child Advocates Sue New York Over Proposed Shadow Foster Care System" · NC DOJ, "AG Josh Stein Applauds Convictions in Cherokee County DSS Case" · WFAE, "Why a Jury Awarded Millions to a North Carolina Father and Daughter Separated by DSS" · WLOS, "Federal Judge Awards Attorneys $1.78 Million in Cherokee County DSS Case" · Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006) · Croft v. Westmoreland Cnty. CYS, 103 F.3d 1123 (3d Cir. 1997) · Hernandez v. Foster (7th Cir. 2011) · Grandfamilies, Hidden Foster Care and Kinship Diversion Caselaw · Grandfamilies, "Hidden Foster Care in NYS" · Annie E. Casey Foundation, Family Ties series · AECF, "New Insights on State Kinship Diversion Policies" · Child Trends, "State Tracking of Kinship Diversion Can Inform the Field" · Chapin Hall, "Diverting Children from Foster to Kinship Care" · ABA Journal, "Shadow Foster Care" · Federal Register, 88 FR 66700 — Separate Licensing Standards for Relative or Kinship Foster Family Homes · 45 C.F.R. § 1356.21 · CRS, Child Welfare: Purposes, Federal Programs, and Funding (IF10590) · ACF, Kinship Navigator Program · Urban Institute, Estimating Financial Support for Kinship Caregivers · S. 2902, Hidden Foster Care Transparency Act (119th Cong.) · H.R. 5507 (119th Cong.) · S. 5214, Foster Care Placement Transparency Act (118th Cong.) · The Imprint, "Federal Lawmakers Want to Track Hidden Foster Care" · The Imprint, "Washington State Tackles Hidden Foster Care" · Texas DFPS, Family-Based Safety Services / PCSP · Lawyers for Children, Host Homes litigation · Casey Family Programs, Hidden Foster Care · Casey Family Programs Form 990-PF, TY2023 (EIN 91-0793881), via ProPublica Nonprofit Explorer.