COMMENT

"IN THE LITTLE WORLD": BREAKING VIRGINIA'S

FOSTER-CARE-TO-PRISON PIPELINE USING
RESTORATIVE JUSTICE

INTRODUCTION.............................................................................. 314

I. VIRGINIA AND THE FOSTER-CARE-TO-PRISON PIPELINE ......... 314

A. Virginia'sFoster Care System...................................... 315

B. Virginia'sFoster Care Population ............................... 318
C. Termination of ParentalRights and Available
Placements ................................................................... 320
D. Counseling Services for Virginia's Foster Youth......... 323
E. Virginia'sPrisonPipelines........................................... 324
II. NORTHERN IRELAND AND ITS OUT-OF-HOME CARE
EVOLUTION ......................................................................... 325

A. Northern Ireland Implements Intensive Support

Units............................................................................. 326
B. Restorative Conferencing in the ISUs of Glenmona,
Northern Ireland.......................................................... 327
III. BREAKING VIRGINIA'S FOSTER-CARE-TO-PRISON PIPELINE
USING RESTORATIVE CONFERENCING................................ 332
A. Restorative Conferencing Methods............................... 333
B. Implementing Restorative Conferencing Methods in
Virginia........................................................................ 337
CONCLUSION................................................................................. 341

313
314 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

INTRODUCTION

"In the little world in which children have their existence, whoso-
ever brings them up, there is nothing so finely perceived and so
finely felt as injustice."'

Measuring a nation's strength by the health of its economy or

armed forces is easy. In those regards, the United States is one of
the strongest nations on Earth. If we judge our country's strength
by how it cares for the 443,000 children in foster care, 2 however,
the result is completely different. The United States has created a
foster-care-to-prison pipeline that sweeps vulnerable children into
the penal system at alarming rates.
This Comment proposes that integrating restorative justice con-
ferencing into Virginia's foster care system can help break its fos-
ter-care-to-prison pipeline. Part I details Virginia's foster care sys-
tem and the foster-care-to-prison pipeline. Part II reviews and
explains how restorative conferencing in Glenmona, Northern Ire-
land's equivalent foster care system correlates strongly with de-
creased incarceration of foster children. Part III outlines how Vir-
ginia can implement the same restorative conferencing in its foster
care system and pioneer a program that could affect its foster-care-
to-prison pipeline.

I. VIRGINIA AND THE FOSTER-CARE-TO-PRISON PIPELINE

In order to understand Virginia's foster-care-to-prison pipeline,

it is important to understand that the foster-care-to-prison pipe-
line is a national problem. In 2004, the Bureau of Justice Statistics
conducted a national survey of 14,500 inmates from state prisons
and 3700 inmates from federal prisons using computer-assisted
personal interviewing. 3 Of those surveyed, 7% reported having
ever been in foster care. 4 Furthermore, of the 999 inmates between

1. CHARLES DICKENS, GREAT EXPECTATIONS 66 (Heritage Press ed. 1967).

2. CHILDREN'S BUREAU, THE AFCARS REPORT, PRELIMINARY FY 2017 ESTIMATES AS
2
OF AUGUST 10, 2018, https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport 5.pdf [https
://perma.cc/TN3Z-Q99R]. Data accurate as of September 30, 2017.
3. BUREAU OF JUSTICE STATISTICS, THE SURVEY OF INMATES IN STATE CORRECTIONAL
FACILITIES (2004). The sample was selected from 1585 state prisons and 148 federal prisons.
Id.
4. Youngmin Yi & Christopher Wildeman, Can Foster Care Interventions Diminish
Justice System Inequality?, 28 FUTURE CHILDREN 37, 39 (2018), https://files.eric.ed.gov/full
2019] FOSTER-CARE-TO-PRISON PIPELINE 315

ages eighteen and twenty-one that were surveyed, 5 15% reported

ever being in foster care. 6 As of September 30, 2004, less than 1%
of children under the age of eighteen were placed in foster care.7
This means foster children are 21% more likely to be incarcerated
than children raised by their families.
Before explaining how the national foster-care-to-prison pipeline
impacts Virginia's foster youth, this Comment will give an in-depth
explanation of how Virginia's foster care system is administered,
the makeup of Virginia's foster care population, the factors that
lead to a child's placement in the system, and the types of counsel-
ing services the system provides to foster youth.

A. Virginia'sFoster Care System

The primary focus of Virginia's child welfare system is the reu-

nification of families.8 Children who are not reunified with their
families are placed in the foster care system, 9 which currently fails
to provide children with the necessary support due to inadequate
oversight and training.

text/EJ1179175.pdf [https://perma.cc/A84J-3EEZ].
5. See Bureau of Justice Statistics, The Survey of Inmates in State and Federal Cor-
rectional Facilities, DS1 FederalData (2004), https://www.icpsr.umich.edu/icpsrweb/NACJ
D/studies/04572/datasets/0001/variables/V0013?archive=nacjd [https://perma.cc/4PVD-NS
43] (documenting ages of federal prisoners surveyed); Bureau of Justice Statistics, The Sur-
vey of Inmates in State and Federal CorrectionalFacilities, DS2 State Data, https://www.
icpsr.umich.edu/icpsrweb/NACJD/studies/04572/datasets/0002/variablesVO013?archive=n
acjd [https://perma.cc/8X4P-4RHA] (documenting ages of state prisoners surveyed).
6. Yi & Wildeman, supra note 4, at 39.
7. CHILDREN'S BUREAU, THE AFCARS REPORT 1 (2006), https://www.acf.hhs.gov/sites
/default/files/cb/afcarsreportll.pdf [https://perma.cc/M5V2-FC3V] (explaining that 517,000
children were in foster care). In 2004, there were 73.3 million children under the age of
eighteen in the United States. Child Population:Number of Children (in Millions) Ages 0-
17 in the United States by Age, 1950-201 7 and Projected 2018-2050, CHILDSTATS.GOV, https:
//childstats.gov/americaschildren/tables/pop1.asp [https://perma.cc/G27R-UBYG] (indicat-
ing a total child population of 73.3 million in 2004).
8. VA. DEP'T OF SOC. SERVS., CHILD AND FAMILY SERVICES MANUAL, Pt. E, Foster Care,
§ 1.1 https://www.dss.virginia.gov/files/division/dfs/fc/intro-page/guidancemanuals/fc/07_
2019/section_1_foster_careoverview.pdf [https://perma.cc/Z87Z-XCA7] [hereinafter FC
GUIDANCE MANUAL § 1].
9. VA. DEP'T OF SOc. SERVS., CHILD AND FAMILY SERVICES MANUAL, Pt. E, Foster Care,
§3 https://www.dss.virginia.gov/files/division/dfs/fc/intro page/guidancemanuals/fc/07_20
19/section_3_enteringfostercare.pdf [https://perma.cc/4ZDQ-4QYV] [hereinafter FC
GUIDANCE MANUAL § 3].
316 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

Virginia's foster care system is locally administered and state-

supervised. 10 This means that rather than having direct state over-
sight, local departments oversee the care and placement of foster
children.' 1 In turn, these departments are supervised by local
boards that report to the state.1 2 Virginia's foster care system is
also subject to review by the Children's Bureau (or "Bureau"), an
office of the United States Department of Health and Human Ser-
vices ("DHHS").1 3 The Children's Bureau conducts federal reviews
to ensure that state practices conform to federal law.14
In its reviews, the Children's Bureau looks into the safety and
well-being of foster youth. 15 The Bureau also focuses on whether
caseworkers diligently seek out permanent homes for foster chil-
dren.1 6 In 2004, 2009, and 2017, the Bureau expressed concerns
with Virginia's practices relating to the safety and well-being of
foster youth,1 7 caseworker trainings,1 8 and the state's efforts to find
permanent homes.1 9 Caseworkers in Virginia are responsible for
facilitating where children are placed as well as supervising their
well-being during placements. 20 In its previous review, the Bureau
found that caseworkers were not consistently taking the basic
steps necessary to ensure foster children's well-being. 2 1 For one,
22
many caseworkers do not complete their regular monthly visits.
This step alone can result in care giver maltreatment remaining
undiscovered. 23 As for placements themselves, caseworkers place
children in settings that would not typically be approved but for
the use of emergency placement protocol. 24 In fact, Virginia's De-
partment of Social Services ("VDSS") found that in ninety-eight
cases (4%), basic placement safety requirements for emergency

10. JOINT LEGISLATIVE AUDIT & REV. COMM'N, IMPROVING VIRGINIA'S FOSTER CARE
SYSTEM 3 (2018) (hereinafter IMPROVING VA.'S FOSTER CARE].
11. Id. at 4.
12. Id.
13. Id. at 5.
14. Id.
15. Id.
16. Id.
17. Id. at 5.
18. Id. at 71.
19. Id. at 45-46, 51.
20. Id. at 61-62.
21. Id. at 18.
22. Id. at 19-20.
23. Id. at 19.
24. Id.
2019] FOSTER-CARE-TO-PRISON PIPELINE 317

placements were not met. 25 These cases were spread across thirty-
four of Virginia's departments of social services. 26
As for caseworker training, in 2017 the Bureau noted that new
staff routinely skipped their required initial trainings. 27 Another
external review revealed that VDSS failed to provide effective on-
the-job training. 28 Of those surveyed, 25% of caseworkers felt they
had not received sufficient guidance and training, while 23% of re-
sponding supervisors believed most caseworkers did not have the
necessary skills and knowledge to effectively manage their cases. 2 9
With respect to permanent placements, a higher proportion of
children "age out" of foster care in Virginia than in other states.3 0
In 2016, 19% of children exiting Virginia's foster care system aged
out, which was more than double the national median of 8%.31 This
has been a common trend for Virginia since 2007.32 Virginia's high
age out rate correlates with insufficient efforts by caseworkers to
reunify children with their parents or find them permanent place-
ments. For instance, local departments made "concerted efforts" to
find permanent homes for foster youth in only 25% of the cases
sampled in a federal review, which is much less than other states'
45%.33

A lack of a permanent placement affects a foster child's ability

to develop emotional connections and community ties.34 When fos-
ter children have multiple temporary placements in nonrelative or
congregate care, their ability to form secure attachments to any
care giver is disrupted. 3 5 This attachment disruption essentially

25. Id.
26. Id.
27. Id. at 71.
28. Id.
29. Id.
30. Id. at 44; Children Exiting Foster Care by Exit Reason in Virginia:Emancipation,
KIDS COUNT DATA CENTER, (2016), https://datacenter.kidscount.org/data/tables/6277-child
ren-exiting-foster-care-by-exit-reason?loc=48&loct=2#ranking/2/any/true/870/2632/13051
[https://perma.cc/HW72-EAQK] [hereinafter Children Exiting Foster Care]. Only New
Hampshire has a higher percentage of children "aging out" of foster care. ChildrenExiting
Foster Care, supra.
31. IMPROVING VA.'S FOSTER CARE, supra note 10, at 44.
32. Id.
33. Id. at 45-46.
34. BETH TROUTMAN, EFFECTS OF FOSTER CARE PLACEMENT ON YOUNG CHILDREN'S
MENTAL HEALTH: RISKS AND OPPORTUNITIES 1 (2011), http://www.ocfcpacourts.us/assets
/files/list-751/file-921.pdf [https://perma.cc/95SN-PLAK].
35. Id.; LINDSAY ZAJAC, GROUP CARE IN THE UNITED STATES: A BRIEF REVIEW OF
318 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

stunts a child's ability to develop healthy emotional relationships

36
and negatively impacts a child's psychiatric development.
Younger foster children are particularly susceptible to the negative
effects of attachment disruption. 37 Understanding the makeup of
Virginia's foster care population will provide more insight as
to the number of children at risk of or suffering from attachment
disruption.

B. Virginia'sFoster Care Population

Over the past decade, Virginia's foster care population has gen-
erally decreased. 38 As of September 2016, Virginia had the lowest
rate of children in foster care of any state in the country, with 2.6
per 1000 children in the system. 39 However, the current population
of children in Virginia's foster care system is increasing in accord-
ance with a nationwide trend. 40 Between 2007 and 2013, the num-
ber of children in Virginia's foster care system decreased from 6700
to 4270.41 As of June 2018, however, the number increased by 9%
from 2013 to 4670.42 The creation of the Fostering Futures pro-
gram, which raised the exit age for foster care from eighteen to
43
twenty-one, further increased Virginia's foster care population.
As of June 2018, 667 additional children between the ages of eight-
een and twenty were in the system, increasing Virginia's total fos-
ter care population to 5340.44 Thus, Virginia's foster care popula-
tion increased by 25% between 2013 and June 2018.45
Despite raising the age limit of foster care to twenty-one, a ma-
jority of the population consists of younger children. 46 In 2007, 45%
of all children in Virginia's foster care system were younger than

PREVALENCE, PROBLEMATIC OUTCOMES AND ALTERNATIVES 1 ("Children who develop inse-

cure attachments with their care givers are at increased risk for problematic outcomes, in-
cluding externalizing behaviors and psychopathology.").
36. ZAJAC, supra note 35, at 1-2.
37. See id. at 1.
38. IMPROVING VA.'S FOSTER CARE, supra note 10, at 6.
39. Id.
40. Id.
41. Id.
42. Id.
43. Id.
44. Id.
45. Id.
46. Id. at 8.
2019] FOSTER-CARE-TO-PRISON PIPELINE 319

twelve. 47 By 2018, this proportion grew to 58% of the foster care

population. 48 Furthermore, Virginia's foster care population has
seen a pronounced increase of children under five in recent years. 49
The number of kids younger than five in the system increased
by 21% between 2013 and 2018-more than double the 9%
overall rate of increase for children under eighteen during the
same period. 50
There is a strong correlation between the increasing number of
young children in Virginia's foster care system and the opioid cri-
sis.51 The number of children who entered Virginia's foster care
system as a result of parental drug abuse increased by 71% be-
tween 2007 and 2016.52 While Virginia's growth rate is unfortu-
nately in line with a nationwide trend, it is significantly higher
than the national growth rate of 47%.53 Even though the primary
objective of the Virginia foster care system is reunification and per-
manency, 54 this objective is harder to achieve where parental drug
abuse is involved.
Separating children from their parents, however, is traumatiz-
ing for foster children. 55 In fact, long-term studies have shown that
impoverished children placed in foster care are more likely to suf-
fer emotional problems than children raised by abusive or neglect-
ful parents.5 6 However, the state cannot turn a blind eye to chil-
dren suffering parental abuse and neglect. In such circumstances,
Virginia state courts usually begin the process of terminating pa-
rental rights and seeking foster care placement. 57

47. Id.
48. Id.
49. Id.
50. Id.
51. See id. at 9.
52. Id.
53. Id.
54. See supra note 8 and accompanying text.
55. TROUTMAN, supra note 34, at 1.
56. Id.
57. Id.
320 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

C. Termination of ParentalRights and Available Placements

In Virginia, Termination of Parental Rights ("TPR") is a process

initiated when parents or care givers threaten a child's well-be-
ing.5 8 A Juvenile and Domestic Relations judge determines
whether TPR is in the best interest of the child using clear and
convincing evidence. 5 9 TPR can only occur where (1) reasonable ef-
forts have been made to prevent a child's removal; and (2) allowing
the child to remain in their home would be contrary to the child's
welfare. 60 Once TPR is granted, Virginia has four primary place-
ment options for foster children: relative placement; nonrelative
placement; nonrelative therapeutic placement; or congregate
care. 6 1
Relative placement involves a child being placed with a family
friend or relative who has been trained and approved as a licensed
parent.6 2 Nonrelative placement occurs when a child is placed with
63
a licensed foster parent previously unknown to the child. Non-
relative therapeutic placement is where a child with special care
needs is placed with foster parents who are trained, licensed, and
supported through a child placing agency rather than the local de-
partments of social services. 64 Lastly, a child can be placed in con-
gregate, or group home, care where strict supervision procedures
are in place. 6 5 Children placed in congregate care have complex
physical and behavioral health needs and require intense treat-
ment and supervision. 66
Virginia law prioritizes relative placement care for foster chil-
dren unless it is inappropriate or unavailable. 67 State law also re-
quires foster children to be placed in the "least restrictive" place-
ment that suits their needs. 68 Studies show that the best practice

58. FC GUIDANCE MANUAL § 3, supra note 9 (citing VA. CODE ANN. § 16.1-277.02) (Cum.
Supp. 2019)).
59. Id.
60. Id.
61. IMPROVING VA.'S FOSTER CARE, supra note 10, at 27-28.
62. Id. at 27.
63. Id.
64. Id. at 27-28.
65. Id. at 28.
66. Id.
67. Id. Departments of social services are also directed to "engage 'other individuals
who have significant relationships with the child."' Id. These individuals are referred to as
"fictive kin." Id.
68. Id.
2019] FOSTER-CARE-TO-PRISON PIPELINE 321

for ensuring the overall well-being of a child is to prioritize relative

placements and to utilize congregate care as a last resort.69 In rel-
ative care, children suffer less trauma, enjoy increased stability,
and better maintain their sense of community. 70 Conversely, con-
gregate care should only be used where a child has a "clear clinical
need for intense treatment and supervision, and no other place-
ment options can meet those needs." 7 1 As a result, children are ex-
pected to receive nonrelative placements if relatives are ruled out
and congregate care is deemed unnecessary. 72 If a nonrelative
placement is unavailable in a child's locality, the child may then be
placed in nonrelative care in a different locality, or in congregate
or therapeutic care. 73 These alternative placements could result in
children being removed from their community or being placed in
an overly restrictive environment.
As of 2016, local departments of social services placed only 6% of
children with relatives, approximately one-fifth as often as the na-
tional average, despite legal requirements and established best
practices. 74 Recent interviews conducted by VDSS suggest that this
low rate of relative placement relates to inadequate efforts by local
departments to secure relative care. 75 At the time, only 22% of 970
sample cases used the "person locator" tool available to local de-
partments for finding relatives. 76 Furthermore, letters asking rel-
atives to be foster care providers were not sent in 44% of 965 sam-
ple cases. 77
Virginia's low rate of relative placement care is not solely due to
insufficient efforts by social workers. In the past twelve months,

69. Id.
70. Id.; see also PEW CHARITABLE TRS. & GENERATIONS UNITED, TIME FOR REFORM:
SUPPORT RELATIVES IN PROVIDING FOSTER CARE AND PERMANENT FAMILIES FOR CHILDREN
3-5 (2007) https://www.pewtrusts.org/-/media/legacy/uploadedfiles/wwwpewtrustsorg/rep
orts/foster_care_reform/supportingrelativespdf.pdf [https://perma.cc/K7FT-AZJD]. As of
2007, 78% of foster children living with relatives in Virginia reported a stable home. Id. at
11 app. B.
71. IMPROVING VA.'S FOSTER CARE, supra note 10, at 28.
72. Id.
73. Id.
74. Id. The national average was 32%. Id.; see also Bridget Balch, Virginia Lags Behind
National Average for Placing Children in Foster Care with Relatives, Report Says, RICH.
TIMES DISPATCH (Apr. 4, 2019), https://www.richmond.com/news/virginia/government-polit
ics/virginia-lags-behind-national-average-for-placing-children-in-foser/article_023e026a-3b
cb-5994-905c-65a37644ad67.html [https://perma.cc/Z87S-SHHW].
75. IMPROVING VA.'S FOSTER CARE, supra note 10, at 28.
76. Id. at 28-29.
77. Id. at 29.
322 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

half of the 161 caseworkers surveyed by VDSS stated that relatives

declined to provide foster care. 78 The four commonly given reasons
were "(1) the high needs of the child in foster care, such as chal-
lenging behavioral or medical needs, (2) an inability or unwilling-
ness to go through the foster parent approval process, (3) an ina-
bility to meet the criteria for approval, and (4) an inability to
assume the financial responsibilities of caring for the child." 79
Other obstacles to relative placement include parents' unwilling-
ness to provide information about a child's relatives8 0 and failure
by local departments to use existing procedures to expedite the ap-
proval of relatives as foster parents. 81
A consequence of Virginia's low relative placement rate is that
the system places children in congregate care more often than
needed. 82 In 2016, 17% of children in Virginia's foster care system
lived in congregate care, compared to 12% nationwide.8 3 Further-
more, the proportion of Virginia's foster children placed in congre-
gate care has increased over the last five years, whereas the pro-
portion of children in congregate care placements nationwide has
decreased in the same time period. 84 This increase in congregate
care placement has been especially prevalent for children over the
age of twelve. 85 For Virginia foster youth over the age of twelve, the
rate of using congregate care as a child's predominant placement
increased from roughly 27% to 39% between 2012 and 2017.86
National experts agree that states should use congregate care,
such as treatment facilities and group homes, only for a short term
when a child has a clinical need. 8 7 A "substantial proportion" of

78. Id.
79. Id.
80. Id.
81. Id. at 30.
82. Id. at 32; see also Editorial:No More Foster Care Excuses, FREDERICKSBURG.COM
(Dec. 15, 2018), https://www.fredericksburg.com/opinion/editorials/editorial-no-more-foster-
care-excuses/article_23b22272-f52c-5171-9fd9-c25f79d747eb.html [https://perma.cc/P8EM-
XSUB] ("A substantial proportion of children in congregate care settings in Virginia do not
have a clinical need to be there.").
83. IMPROVING VA.'s FOSTER CARE, supranote 10, at 37.
84. Id.
85. Id.
86. Id.
87. Id. at 3; see also CHILDREN'S BUREAU, A NATIONAL LOOK AT THE USE OF
CONGREGATE CARE IN CHILD WELFARE 7-10 (2015) https://www.acf.hhs.gov/sites/def
ault/files/cb/cbcongregatecarebrief.pdf [https://perma.cc/6JN5-3SFP] ("Child development
theory, federal legislation, and best practice confirm what we know intuitively-children
should be placed in settings that are developmentally appropriate and least restrictive.").
2019] FOSTER-CARE-TO-PRISON PIPELINE 323

Virginia's foster youth in congregate care, however, do not have a

clinical need for the placement. 88 In fact, 60% of children who en-
tered congregate care in Virginia between 2012 and 2016 did not
meet the threshold standards required for such a placement. 89
Studies have shown that when states unnecessarily place children
in congregate care, these children and teenagers later have a lim-
ited ability to form healthy attachments with care givers. 90 These
overly restrictive placements also limit foster children's ability to
develop an age-appropriate level of independence. 91
Although Virginia provides counseling services for foster youth
to help address their mental wellness issues, the following section
explains why these services are not helping foster youth success-
fully manage any of these developmental issues.

D. Counseling Services for Virginia's Foster Youth

Virginia's Medicaid program provides mental health and intel-

lectual disability services to the state's foster children. 92 Commu-
nity service boards and private providers primarily provide for six-
teen mental health-related services, including crisis intervention
and stabilization. 93 There are several indicators, however, that fos-
ter youth are not receiving the mental health services they need. 94
First, multiple mental health services, including intensive commu-
nity treatment and therapeutic behavior services, require approval
before treatment can begin. 95 Second, a 2017 federal review found
that local departments of Virginia's social services did not properly
assess the mental and behavioral health needs of children in foster
care for nine of thirty-four applicable cases. 96

88. IMPROVING VA.'S FOSTER CARE, supra note 10, at 38.

89. Id. AFCARS indicated that as of 2016, 23% of children in congregate care had no
indicators necessitating the intense level of treatment and supervision provided in congre-
gate care. Id.
90. Id. at 36; see also ZAJAC, supra note 35, at 1.
91. IMPROVING VA.'S FOSTER CARE, supra note 10, at 36.
92. VA. DEP'T OF SOC. SERVS., CHILD AND FAMILY SERVICES MANUAL, Pt. E, Foster Care,
§ 13.8.3.8, Mental Health Treatment and Intellectual Disability Services (Apr. 2013 ed.)
https://www.dss.virginia.gov/files/division/dfs/fc/intropage/guidancemanuals/fc/04_2013/
Section _13_ProvidingFoster_CareServices.pdf [https://perma.cc/ME7R-BFUD] [hereinaf-
ter FC GUIDANCE MANUAL § 13].
93. Id.
94. IMPROVING VA.'S FOSTER CARE, supranote 10, at 23.
95. FC GUIDANCE MANUAL § 13, supra note 92.
96. IMPROVING VA.'S FOSTER CARE, supranote 10, at 24.
324 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

Federal reviews further discovered that foster parents struggle

to obtain mental and behavioral health services for children in
their care. 97 Of the foster parents who indicated that children in
their care needed behavioral or mental health services in the
twelve months before the 2017 survey was conducted, 46% indi-
cated they were "rarely or only sometimes" able to obtain the nec-
essary treatment. 98 Many of the foster parents pointed to lack of
follow through or responsiveness from local department staff as a
primary obstacle to children receiving treatment they needed. 99
The lack of sufficient counseling services, in combination with
Virginia's young foster care population and low relative and per-
manent placement rates, contribute to undermining and eliminat-
ing the community ties and developmental capacity of Virginia's
foster youth. In turn, this leads children to act out and engage in
delinquent behavior that ultimately funnels them into the prison
pipeline.100

E. Virginia'sPrison Pipelines

There are several descriptors for the system that funnels chil-
dren into prison. Scholars have written about the cradle-to-prison
pipeline, 101 the school-to-prison pipeline,1 0 2 and the foster-care-to-
prison pipeline. 103 In 2007, the Children's Defense Fund reported
on Virginia's cradle-to-prison pipeline. 104 The report noted that
while poverty is the primary driving force behind children being

97. Id.
98. Id.
99. Id.
100. See Miriam Aroni Krinsky, Disrupting the Pathway from Foster Care to the Justice
System--A Former Prosecutor's Perspectives on Reform, 48 FAM. CT. REV. 322, 324-25
(2010).
101. See, e.g., CRADLE TO PRISON PIPELINE: VIRGINIA, CHILDREN'S DEFENSE FUND (2007)
https://www.childrensdefense.org/wp-content/uploads/2018/08/cradle-prison-pipeline-virgi
nia-2008-fact-sheet.pdf [https://perma.cc/U86X-PA46].
102. See, e.g., Cassie Powell, "One of the Worst:" The School-to-PrisonPipeline in Rich-
mond, Virginia, RVAGOV (Mar. 2016), https://scholarship.richmond.edu/cgi/viewcontent.
cgi?article=1128&context=law-student-publications [https://perma.cc/8663-YHDD].
103. See, e.g., Rachel Anspach, The Foster Care-to-PrisonPipeline: What It Is and How
It Works, TEENVOGUE (May 25, 2018), https://www.teenvogue.com/story/the-foster-care-to-
prison-pipeline-what-it-is-and-how-it-works [https://perma.cc/9SXX-VT9H].
104. CRADLE TO PRISON PIPELINE, supra note 101.
2019] FOSTER-CARE-TO-PRISON PIPELINE 325

funneled into the prison system, children in foster care were at a

higher risk of being trapped in the pipeline. 105
While few scholars have compiled evidence on this subject, the
available statistics surrounding Virginia's foster care alumni indi-
cate that a foster-care-to-prison pipeline does exist. According to a
2017 study, 25% of Virginia's surveyed foster youth were incarcer-
ated by age twenty-one, compared to the national average of
22%.106 In the 2000s, studies revealed that children under govern-
ment care in Northern Ireland were being swept into a prison pipe-
line similar to Virginia's.1 07 To address this problem, Northern Ire-
land began implementing restorative conferencing in its
comparable congregate care units.

II. NORTHERN IRELAND AND ITS OUT-OF-HOME CARE EVOLUTION

Northern Ireland's out-of-home care system is similar to the fos-

ter care systems established in Virginia and throughout the United
States. Comparing the United States to Northern Ireland impli-
cates societal externalities that have played a role in shaping the
foster care landscape in the two countries; but any such incongru-
ities notwithstanding, the underlying problems, and the proposed
policy responses thereto, are highly analogous. Most importantly,
the evolution of Northern Ireland's out-of-home care system is il-
lustrative of the immense benefits that foster youth can reap from
targeted policy initiatives designed to encourage more robust in-
vestment in the infrastructure of a system failing its intended
beneficiaries.
While local departments administer Virginia's foster care sys-
tem, the United Kingdom's Department of Health, Social Services
and Public Safety supervises Northern Ireland's out-of-home care

105. Id.
106. ELIZABETH JORDAN ET AL., CHILD TRENDS FOR THE BETTER HOUS. COAL.
&

CHILDREN'S HOME SOC'Y OF VA., SUPPORTING YOUNG PEOPLE TRANSITIONING FROM FOSTER
CARE: VIRGINIA FINDINGS FROM A NATIONAL SURVEY AND POLICY SCAN 12 (2017) https://
www.childtrends.org/publications/supporting-young-people-transitioning-foster-care-virgin
ia-findings-national-survey-policy-scan [https://perma.cc/4Q8K-NPEG].
107. WILLIE MCCARNEY, UNICEF, A RESTORATIVE JUSTICE APPROACH TO WORKING WITH
CHILDREN IN RESIDENTIAL CARE 2, 4 (2010) https://www.unicef.org/tdad/4williemccarney.
pdf [https://perma.cc/w54S-AXZB].
326 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

on a national level. 108 Children in Northern Ireland's out-of-home

care system are referred to as "looked after" children. 109
During the 1980s and 1990s, Northern Ireland focused on en-
hancing preventative and interventionist foster care programs, but
these programs led to the decline of residential services for looked
after children.1 10 By the mid-1990s, residential homes were a place
of last resort for Northern Ireland's looked after youth because
years of neglect had led to a decline in available volunteer service
providers and residential care locations."
In October 1998, Northern Ireland's Department of Health, So-
cial Services and Public Safety released the ChildrenMatter report
detailing the department's findings after a regional review of resi-
dential care homes.1 1 2 The report revealed that, like Virginia's cur-
rent foster care system, there were inadequate residential homes
available for looked after children, and children were inappropri-
ately placed.1 13 The report further revealed that a majority of resi-
dential homes had an unacceptable level of violence and overly re-
lied on the accommodation's security to effect control.1 1 4 In
response to the report's findings, the Department of Health, Social
Services and Public Safety created the Ministerial Children Matter
Task Force, which created a two-part Regional Action Plan.1 1 5 This
action plan resulted in the creation of Northern Ireland's Intensive
Support Units. 116

A. Northern Ireland Implements Intensive Support Units

By 2001, the Children Matter Task Force had created Intensive

Support Units ("ISUs") as residential homes within the out-of-
home care system that would serve as regional specialist accom-
modations for looked after youth. 1 7
Like children in Virginia's con-
gregate care facilities, regional specialist accommodations provide
a heightened level of supervision and care focused on helping the

108. See id. at 2.

109. Id.
110. Id.
111. Id.
112. Id.
113. See id.
114. Id.
115. Id.
116. Id.
117. Id.
2019] FOSTER-CARE-TO-PRISON PIPELINE 327

most problematic looked after children deal with complex emo-

tional issues. 118
Unfortunately, placements in ISUs increased the likelihood that
looked after children would become entangled in the criminal jus-
tice system. 1 19 Surveys conducted at youth offender institutions in
England and Wales similarly found that 29% of boys and 44% of
girls in these institutions reported having been looked after youth
at some point in their childhood. 120 In fact, offenses committed in
children's homes were more likely to be reported to the police than
those committed by children elsewhere. 12 1 These statistics strongly
indicated that ISUs were creating a pipeline to juvenile justice
centers.
To fight this phenomenon, Northern Ireland began introducing
restorative conferencing into its out-of-home care system so that
looked after children could receive similar treatment to those who
live among their families.1 22

B. Restorative Conferencing in the ISUs of Glenmona, Northern

Ireland

In April 2005, ISUs in Glenmona, Northern Ireland were se-

lected as the experimental locations for implementing restorative
conferencing.1 23 The experiment's goal was to reduce the number
of looked after children transferred from the Glenmona ISUs to the
Juvenile Justice Center.1 24 The Glenmona ISUs partnered with
several community programs so that the ISUs' staff could receive
sufficient restorative conferencing training.125 Barnardo's, the
ISUs' primary partner in the Glenmona experiment, is the oldest

118. Id.
119. Id. at 4.
120. Id.
121. Id.
122. Id.
123. Id. at 15, 19.
124. Id. at 15.
125. Id.
328 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

126
and largest children's charity in the United Kingdom. Bar-
nardo's volunteers administered restorative conferencing training
12 7
to ISUs throughout the experiment.
The process involved fully training senior staff of the ISUs in
informal and formal restorative conferencing techniques as well as
128
Therapeutic Crisis Intervention tactics on the children and staff.
Staff who had daily and direct contact with the children partici-
129 The tar-
pated in two-day trainings on restorative conferencing.
get of the staff training was to cast restorative justice practices in
the light of building restorative communities where good relation-
ships are of primary importance. Before discussing the benefits re-
storative conferencing had on the community development of Glen-
mona's looked after children, this Comment will review the
informal and formal restorative conferencing methods taught to
Glenmona ISUs' staff.

1. Informal Restorative Conferencing in Glenmona ISUs

Informal restorative conferencing uses casual and spontaneous

communication techniques to help participants respectfully and
thoughtfully communicate their perspective on a situation while
also challenging participants to reflect on how their behavior af-
fects others.1 3 0 The Glenmona ISUs used four specific informal re-
storative conferencing methods: restorative enquiry, affective
131
statements, impromptu mini-conferencing, and weekly circles.
Restorative enquiry is the foundation of every restorative con-
ference method. 132 Restorative enquiry asks participants to ac-
133
tively listen to each other without judgment. The enquiry in-
volves five questions, which can be adapted to the participants:

126. Our Organisation,BARNARDOS, https://www.barnardos.org.uk/who-we-are/our-orga

nisation [https://perma.cc/G3T4-KVBJ].
127. MCCARNEY, supra note 107, at 15; see also Marie Gibben, BELIEVE IN CHILDREN:
OBJECTIVES, INT'L INST. FOR RESTORATIVE PRACTIcES (2010).
128. MCCARNEY, supra note 107, at 7, 15-16.
129. Id. at 15.
130. Id. at 8-9, 11.
131. Id. at 9, 24-26 app. 3.
132. Id. at 24, app. 3; see also Thalia N. C. GonzAlez & Benjamin Cairns, Moving Beyond
Exclusion, in JUSTICE FOR KIDS: KEEPING KIDS OUT OF THE JUVENILE JUSTICE SYSTEM 243-
44 (Nancy E. Dowd ed., 2011) (discussing various restorative practices and theories utilized
in schools).
133. MCCARNEY, supra note 107, at 24 app. 3.
2019] FOSTER-CARE-TO-PRISON PIPELINE 329

(1) What has happened?

(2) Who has been affected?
(3) What needs to be done to repair the damage caused?
(4) How can we involve everyone who has been affected in find-
ing a way forward?
(5) How can everyone do things differently in the future?13 4

In conjunction with restorative enquiry, affective statements are

part of informal conferencing. 135 Affective statements communi-
cate a person's feelings about an altercation or situation. 136 ISU
staff regularly used these two methods to address nonemergency
daily issues that arose within the home. 137 These situations could
involve something as simple as children failing to return clothes
they borrowed from another housemate or failing to complete as-
signed chores.
A third informal restorative conferencing method Glenmona
ISUs staff used was impromptu mini-conferencing.1 38 While im-
promptu conferencing is more structured than restorative enquiry,
it was part of the informal conferencing training as it was used to
address daily communication issues rather than serious alterca-
tions or behavioral issues. 139 Impromptu mini-conferencing re-
quired staff to act as mediators between the children who had a
conflict, using restorative enquiry to guide the discussion and en-
sure affective statements were used. 140 The key to this conference
method is that staff do not act as a judge, but rather as conversa-
tion facilitators whose goal is to help the children come to a mutual
conclusion.141
Lastly, the Glenmona ISUs used restorative conferencing circles
on a weekly basis as part of the informal restorative conferenc-
ing. 142 When using the restorative conferencing circle informally,
everyone in the ISU--children and care providers-gathered in a
circle and took turns discussing concerns or updates on the

134. Id.
135. Id. at 9.
136. Id.
137. Id. at 9, 16, 24 app. 3.
138. Id.
139. Id. at 25-26 app. 3.
140. Id. at 25 app. 3.
141. Id.
142. Id. at 26 app. 3.
330 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

house. 143 Unlike a circle responding to a behavioral issue, the circle

here never addressed serious behavioral problems; rather, the cir-
cle was a method of grounding the placement home and developing
stronger social and communication skills amongst the staff and
children. 144
While the Glenmona ISUs used informal restorative conferenc-
ing methods on a regular basis, children in ISUs still needed more
formal and intensive restorative conferencing to address more se-
vere altercations such as interpersonal violence or behavioral cri-
ses. 14 5 Glenmona ISUs use Restorative Conferencing and Thera-
peutic Crisis Intervention as formal restorative conferencing
methods.

2. Formal Conferencing in Glenmona ISUs

Formal conferencing is a scheduled, highly structured process

used to address serious behavioral problems or altercations. In the
Glenmona ISUs, staff used Restorative Conferencing and Thera-
peutic Crisis Intervention to address severe problems such as petty
146
theft, behavioral crises, and interpersonal violence. Restorative
conferencing required the ISU staff, children, Barnardo's trainers,
and other affected parties to sit down with the looked after child to
address and resolve the altercation using restorative enquiry and
affective statements. 147
The second formal conferencing method used in the Glenmona
ISUs, Therapeutic Crisis Intervention ("TCI"), is a specialized
technique that helped staff adequately respond to a child in a crisis
situation. 148 A crisis situation occurs when a child's inability to
cope results in a sharp change of behavior that could result in harm
to others or the child.1 49 Central to the TCI approach is that it re-
quired ISU staff to ask the child what they were feeling and how
the environment was affecting them, which made the child's needs
the central focus of the intervention. 150

143. Id.
144. Id. at 9-10.
145. Id. at 16, 26 app. 3.
146. Id. at 7, 16, 26 app. 3.
147. Id. at 26 app. 3
148. Id. at 7.
149. Id.
150. See TCI System Overview, CORNELL RESIDENTIAL CHILD CARE PROJECT, http://rccp.
2019] FOSTER-CARE-TO-PRISON PIPELINE 331

3. Restorative Conferencing and Community Development

The goal of restorative conferencing is restoring and rebuilding

relationships. 151 Research indicates that through a mutual ex-
change of expressed affect, which involves children expressing
their emotions to each other, 152 foster children can build communi-
ties through the emotional bonds restorative conferencing cre-
ates. 15 3 In particular, restorative conferences provide a safe space
for children to exchange and express intense emotions. 154 This ex-
change of emotions leads children to build critical social capital. 155
Social capital refers to "the connections among individuals and the
trust, mutual understanding, shared values and behaviours that
bind us together and make cooperative action possible." 156 By ad-
dressing this social capital deficit in its ISU, the Glenmona exper-
iment improved the relationships within the ISU among children
and staff.157
Staff reported that restorative conferencing allowed them to
work longer with children in a crisis who would typically have been
referred to the Juvenile Justice Centre. 158 Furthermore, staff re-
mained "highly motivated" to continue working in the ISUs, which
in turn led to less turnover in the facility.159 Looked after children
in the ISU also reported that they felt safe and cared for.1 60 Along
with anecdotal reports of improvement, the Glenmona experiment
had positive empirical effects on the out-of-home-care-to-prison
pipeline.

4. Quantitative Results of Glenmona ISUs

Since the initial restorative conferencing program was imple-

mented in the Glenmona ISUs, Barnardo's went on to train and

cornell.edu/tci/tci-1_system.html [https://perma.cc/Q52-SXDA].
151. See MCCARNEY, supra note 107, at 9.
152. See Expressed Affect, CHILD MIND INST. GLOSSARY, https://childmind.org/glossary-
entry/expressed-affect [https://perma.cc/NV8T-79GB].
153. See MCCARNEY, supra note 107, at 9.
154. Id.
155. Id.
156. Id. (citations omitted).
157. See id. at 20-21.
158. Id.
159. Id.
160. Id. at 20.
332 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

support staff in eight other care units by 2010.161 Juvenile Justice

Centre statistics indicate that implementing restorative conferenc-
ing in ISUs strongly correlated with a decline in the percentage of
162
looked after children in youth detention facilities. Between 2004
and 2006, 35% of children admitted to the Juvenile Justice Centre
were looked after children.1 6 3 In 2007, after restorative conferenc-
ing was implemented in multiple ISUs, that percentage dropped to
29%.164 In 2008, 19% of Juvenile Justice Centre youth were looked
after children.1 65 As of July 2009, the majority of looked after chil-
dren referred to the Juvenile Justice Centre were coming from res-
66
idential care units that did not use restorative conferencing.1
In light of these results, Virginia should use similar restorative
conferencing practices to help break its own foster-care-to-prison
pipeline.

III. BREAKING VIRGINIA'S FOSTER-CARE-TO-PRISON PIPELINE

USING RESTORATIVE CONFERENCING

Using restorative justice practices with children in the United

States is not a novel practice. 16 7 While restorative justice practices
are often used when youth enter the juvenile justice system, this
Comment proposes a plan to integrate restorative conferencing
throughout the foster care system in order to break the foster-care-
to-prison pipeline in Virginia. As discussed in Part II, formal and
informal restorative conferencing practices and models can be used
to help foster children develop the sense of community and connec-
tion Virginia's foster care system currently fails to supply. Restor-
ative conferencing would not only create a community for foster
children to rely upon, it could be integrated cost-effectively
throughout the foster care process to develop the social capital that
is necessary to divert children from the prison pipeline.

161. Id. at 19.

162. Id. at 20.
163. Id.
164. Id.
165. Id.
166. Id.
167. See, e.g., Press Release, State of Ill. Cook Cty. Circuit Court, Restorative Justice
Cmty. Court Arrives in North Lawndale (July 20, 2017), http://www.cookcountycourt.org/
MEDIA/ViewPressRelease/tabid/338/ArticleId/2564/Restorative-JusticeCommunity-Court-
arrives-in-North-Lawndale.aspx [https://perma.cc/3EJF-RDCE].
2019] FOSTER-CARE-TO-PRISON PIPELINE 333

A. Restorative ConferencingMethods

There is no one-size-fits-all approach to restorative conferenc-

ing, nor should there be. In fact, the foster care system's generic
approach to every case causes many foster children to feel as
though their individual identities, goals, and struggles are over-
looked or ignored. 168 The Glenmona experiment illustrated that us-
ing restorative conferencing throughout the foster care process can
empower children by giving them an avenue to control their own
journey, providing them with a sense of community, protecting
their voices, and ultimately, breaking the foster-care-to-prison
pipeline 169
Virginia can also begin dismantling its foster-care-to-prison
pipeline by implementing restorative conferencing throughout the
foster care process in three specific situations. First, nonemergency
Family Group Conferencing should be utilized prior to TPR. Sec-
ond, Virginia should give foster care providers and caseworkers in-
formal and formal restorative conference training. Third, local de-
partments of social services should create school response units
trained in restorative conferencing to interact with local schools.

1. Nonemergency Family Group Conferencing Pre-TPR

Family Group Decision Making ("FGDM") is a model of restora-

tive conferencing used in child welfare systems across the globe. 170
FGDM was first introduced in New Zealand to counter traditional
decision-making models in child welfare systems that ceded control
to child welfare professionals and experts. 171 The purpose of the
FGDM model is to place control back into the hands of children's
communities by respecting and protecting their cultural ties. 172
Family Group Conferencing is a tool used within the FGDM model.
FGCs are conferences that often deal with the aftermath of a harm-
ful event by building partnerships among families and focusing on

168. See Amma Mante, 8 Things All Kids in Foster Care Want People to Know, ELITE
DAILY (May 15, 2016), https://www.elitedaily.com/life/kids-in-foster-care-want-you-to-know
/1492485 [https://perma.cc/JZXK-3XFX] ("Foster kids aren't actually 'foster kids.' They are
young people who happen to have experienced foster care. What they are not, is a monolith
with uniform feelings or responses on every issue.").
169. MCCARNEY, supra note 107, at 2, 18-21.
170. LEE BARNSDALE ET AL., SCOTTISH EXECUTIVE, EXAMINING THE USE AND IMPACT OF
FAMILY GROUP CONFERENCING 10 (2007).
171. Id. at 11.
172. See id. at 11-12.
334 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313
3
a family's strengths and the child's community.17 Most im-
portantly, FGCs provide children with time to meet privately with
their community, without professionals, where the focus is on the
child's wellness.1 74
While FGCs were not used during the Glenmona experiment,
Northern Ireland has used FGCs throughout its child welfare sys-
tem.176 The focus of these FGCs has been to transfer power tradi-
tionally held by welfare systems back to the family using commu-
76
nity resources already in place.1 As a result, a child's community
acts as the guardian of her overall well-being while the state acts
as a child's protector.1 77 This structure has resulted in children
maintaining stronger connections with their communities during
their formative years.1 78 In contrast, Virginia's current rate of non-
relative and congregate care placement has resulted in foster chil-
dren becoming isolated from their communities at critical points in
their lives.1 79
Throughout Virginia, local departments of social services al-
80
ready utilize some variations of FGC before TPR.1 Several locali-
ties invite a child's parents, care givers, caseworkers, guardians ad
litem, and other significant members of the child's community to-
gether for the group conference.181 In its current incarnation, how-
ever, FGCs are usually used only when changing a child's place-
ment. 8 2 In order to help a child maintain the sense of community
temporary placements tend to undermine, however, the state
should expand its use of FGCs beyond the placement decision pro-
cess and include it as part of TPR rehabilitation.
Currently, Virginia's Juvenile and Domestic Relations courts or-
der parents to follow a rehabilitation process when their parental
rights are initially at risk of termination. 183 The State also requires

173. Id. at 11.

174. Id. at 12.
175. Id. at 2.
176. Id. at 12.
177. Id.
178. Id. at 20.
179. IMPROVING VA.'S FOSTER CARE, supra note 10, at 28-29.
180. See, e.g., CITY OF RICHMOND DEP'T OF SOC. SERVS., TEAM DECISION-MAKING
MEETING 2 (June 25, 2009) https://www.dss.virginia.gov/files/division/dfs/fe/intro_page/tool
kit/local_resources/richmond/tdm_policy.pdf [https://perma.c/32Y5-QKXE].
181. Id. at 3-4.
182. Id. at 2.
183. Act of Mar. 18, 2019, ch. 434, 2019 Va. Acts_, - (codified as amended at VA. CODE
ANN. § 16.1-283 (Cum. Supp. 2019)); see also Toms v. Hanover Dep't of Soc. Servs., 46 Va.
App. 257, 267-75, 616 S.E.2d 765, 770-74 (2005).
2019] FOSTER-CARE-TO-PRISON PIPELINE 335

parents to demonstrate their continued dedication to their child's

well-being by maintaining active contact with the child and sub-
stantially planning the child's future for the first six months of a
child's temporary placement. 184 In this specific context, FGCs could
be utilized as a method of helping not only parents maintain the
requisite amount of statutory contact with their child but also help-
ing the family develop a community infrastructure and communi-
cation techniques that can endure after parental rights are
restored.
Unlike most FGCs in place, courts could require that at least one
monthly visit involve an FGC that is not a result of disciplinary
concerns about the child, but instead focuses on the child's commu-
nity and addresses the child's typical daily concerns. Under this
proposal, nonemergency FGCs would involve the child's parents,
care givers, caseworker, guardians ad litem, and other invited
members of the community to meet and discuss topics of im-
portance to the child, such as new interests in extracurriculars or
case developments.
For example, if a child begins expressing interest in playing bas-
ketball, the nonemergency FGC that month would involve the
child's parents, care givers, caseworkers, guardians ad litem, and
other pertinent community members to gather and discuss what
opportunities are available for the child to explore playing basket-
ball, why the sport has become of interest to the child, and plans
for helping the child make the goal a reality. By making these dis-
cussions a monthly requirement within the TPR process, Virginia
could limit the deterioration of a child's social capital.
Unfortunately, nonemergency FGCs are not a magical cure that
will always result in family rehabilitation and reunification. While
there is evidence that nonemergency FGCs can lead to higher rates
of family reunification, there are too many cases where formal TPR
is necessary to protect a child's safety. 185 Once the state perma-
nently removes a child from a parent's care, however, Virginia can
still help the child maintain a sense of community through other
methods of restorative conferencing by training care givers and
caseworkers in informal and formal restorative conferencing meth-
ods. Specifically, Virginia should create Restorative Conferencing
Response Units to interact with schools and train care providers
and caseworkers in informal and formal restorative conferencing.

184. Ch. 434, 2019 Va. Acts at -.

185. TROUTMAN, supra note 34, at 1.
336 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

2. Restorative Conferencing Response Units for Schools

Creating stable school response units in local departments of so-

cial services would help bridge the gap between a child's at-home
community and the school system. Unlike children who are part of
a normative family unit, foster children do not always have a con-
sistent point of contact for schools to reach out to. Constant place-
ment changes prior to or after TPR can leave schools with limited
choices of whom to contact when a foster child is a party in an al-
tercation with other students or staff.
By training caseworkers in restorative conferencing tactics, such
as restorative enquiry and impromptu conferencing, and dispatch-
ing them to local schools, local foster care systems would provide
education administrators with a stable point of contact for foster
youth enrolled in their schools. In turn, foster children would have
a consistent point of contact trained to ensure that the children's
voices are heard and protected. Establishing this dependable con-
nection to an ally within the foster care system beyond placement
providers would also expand children's community ties beyond
their home while providing them with advocates who more
properly understand these children's points of view.

3. Restorative Justice Training for Foster Care Providers and

Caseworkers

A major reason foster children have a high rate of changing

homes is that care providers and caseworkers feel ill-equipped to
adequately handle a foster child's behavioral and developmental
issues. 186 This leads care providers who have other children in the
home to request that a child exhibiting behavioral problems be re-
moved for fear that they will not be able to protect their other chil-
dren.1 8 7 The Glenmona experiment illustrates how the implemen-
tation of restorative conferencing can address this training
deficiency and turnover rate.
In the Glenmona experiment, the evidence demonstrates that
after receiving and implementing informal restorative conferenc-
ing and TCI techniques, staff "fe [lt] listened to" while also learning
188
to take responsibility for their own contributions to altercations.
This willingness by staff to take accountability developed a sense

186. See IMPROVING VA.'S FOSTER CARE, supra note 10, at 71-72.
187. MCCARNEY, supra note 107, at 5.
188. Id. at 18.
2019] FOSTER-CARE-TO-PRISON PIPELINE 337

of mutual respect and trust between the staff and the looked after
children in their care. 189 Furthermore, staff using the restorative
approach in the Glenmona experiment reported that it made them
view their children as "frightened children in crisis and not de-
structive trouble makers," 190 a change brought because the restor-
ative training staff made a cultural change in the home-the pur-
pose of restorative conferences.1 91 As a result of the restorative
approaches, ISU staff reported they were able to work longer with
children in crisis who would have previously been transferred to
the Juvenile Justice Centre. 192 These results are a compelling rea-
son for Virginia to begin training congregate care providers in re-
storative justice methods.
Virginia's congregate care providers should also be trained in in-
formal restorative conferencing, formal restorative conferencing,
and TCI. This training will not only provide congregate care pro-
viders with the tools to effectively navigate the heightened crisis
situations they face with children placed in their care but would
also provide children improperly placed in congregate care with a
system to protect and express their needs.
Critically, training congregate care providers using the same
method as the ISUs in Glenmona will help develop a sense of mu-
tual trust and respect between congregate care providers and the
foster children they care for. This mutual respect can provide these
children with senses of community, belonging, and civic spirit-
things which are vital for children to develop pro-social skills and
attitudes.1 93

B. Implementing Restorative ConferencingMethods in Virginia

A primary concern with these restorative conferencing sugges-

tions is that implementation would require extensive training,
time, and resources. This concern is valid since studies show that
the extensive training requirements contribute to low relative
placement acceptances as well as low training turnout among case-
workers. 194 The policy infrastructure already in place in Virginia

189. Id.
190. Id.
191. Id. at 12, 15.
192. Id. at 18.
193. Id. at 14.
194. IMPROVING VA.'s FOSTER CARE, supra note 10, at 28, 70-72.
338 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

and within the federal government, however, provides adequate

tools and means for implementing the suggested restorative con-
ferencing scheme.

1. Restorative Conferencing Time Commitments

Implementing the three restorative practices suggested previ-

ously necessarily implicates time commitments for all the parties
involved, such as parents, caseworkers, and care providers. Re-
quiring restorative conferencing practices from the initial tempo-
rary placement of a child, through the TPR process, and possibly
up to the age of twenty-one when Virginia foster children age out
of the system195 would require hundreds of caseworkers and care
providers to dedicate time to both training and conferencing. Inte-
grating the three suggested restorative conferencing methods can
be done efficiently, however, using the sustainable and attainable
training program seen in the Glenmona experiment.
The Glenmona ISUs only required staff to participate in one two-
day training session at the ISU rather than extensive outside pro-
gramming.1 96 After the initial two-day training, on-site training
and mentorship was provided up to two days per week during the
preliminary months of implementation, followed by support from a
mentoring group that assisted with any further difficulties, prac-
tice issues, and other additional support as needed. 197
Using Glenmona's implementation practice as a model, Virginia
should first develop the Restorative Conferencing Response Units
in local departments. The Response Units should not immediately
begin responding to local schools, however; the caseworkers in the
Response Unit should first act as the on-site trainees for tradi-
tional caseworkers, guardian ad litem staff (or their equivalent),
and congregate care providers and staff. Using the Response Units
to provide an initial wave of training to these specific parties in the
foster care system would go a long way toward integrating restor-
ative practices throughout the foster care process.
To avoid placing a substantial burden on the parties' time, case-
workers, guardians ad litem, and congregate care providers should
only be required to attend one two-day training conference per
year, where the best restorative conferencing practices are dis-
cussed and taught. After the initial training, the initial Response

195. See id. at 6.

196. See MCCARNEY, supra note 107, at 15.
197. Id. at 16.
2019] FOSTER-CARE-TO-PRISON PIPELINE 339

Units should then be built within each local department using a

rotation schedule to provide on-site training through the nonemer-
gency FGCs required as a part of the TPR rehabilitation process.
Allowing the three programs to interact as both training and care
would consolidate time requirements so that local, state, and fed-
eral best practices are met without increasing the burden on case-
workers, guardians ad litem, and congregate care staff.
Once congregate care staff transition from weekly on-site train-
ing, caseworkers and guardians ad litem can serve as the mentor
groups for the home providers while the Response Unit becomes an
available resource to the school. Although delaying when Response
Units become active may raise concerns about how behavioral con-
cerns of foster children at school are addressed, the Glenmona ex-
periment demonstrated that solely training group care providers
in restorative conferencing still led to a decrease in juvenile
referrals. 198
By first implementing restorative conferencing in the foster care
community at home, children gain necessary communication skills
and a sense of community that will allow them to maintain a
greater level of stability, and in turn, better navigate new school
environments. This will likely result in fewer foster children lash-
ing out, thus decreasing the need for emergency response units. 199
In addition to time commitment implications, the suggested re-
forms may also implicate personal privacy concerns, particularly
in implementing the School Response Units.

2. Privacy Implications of Restorative Conferencing

For the Response Units to be successful, someone would need to

inform teachers of their students' current foster care status in or-
der for the Response Unit to be notified as needed. While school
administrators may be made aware of a child's custodial status,
foster children may not wish to have every teacher they interact
with know their personal situation. Older foster children in their
teens are likely to feel particularly distressed by this system.

198. Id. at 20.

199. It is inevitable that in the time between response units training local foster care
providers and reporting to schools, foster children who have yet to benefit from restorative
conferencing will be referred to the juvenile justice system. The point of the suggested im-
plementation plan, however, is not to ignore this reality but to create an efficient and effec-
tive solution to our current foster-care-to-prison pipeline problem without substantially
draining available resources.
340 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 54:313

To address a foster child's concern regarding personal privacy in

school, Virginia could implement a conditional waiver system to
allow a child to opt-out under specific conditions that take into con-
sideration age and the child's personal progress. The central focus
of these restorative conferencing reforms is to provide foster chil-
dren a sense of community and belonging by giving them a voice in
the process. Stripping foster children of their autonomy for the
sake of ease would likely lead to a continued sense of isolation, and
in turn, behavioral choices that feed the foster-care-to-prison
pipeline.

3. Financial Resources for Restorative Conferencing

As for financial resources, both state and federal legislators have

passed bipartisan legislation to provide additional resources for
foster care. 200 In 2018, Congress passed the Family First Preven-
tion Services Act, effective as of 2020.201 The bill provides states
with funds to implement TPR prevention services and provides ad-
ditional funding to states for improved relative placement rates. 20 2
In February 2019, Virginia's General Assembly passed a $2.8
million Foster Care Omnibus bill and implemented its first Foster
Care Caucus. 20 3 This spending bill allocated $851,000 to imple-
menting the Family First Prevention Services Act. 204 Additionally,
the legislature added $3.2 million dollars to Temporary Assistance
for Needy Families ("TANF") to help with relative placement
costs. 205 With these newly available funding resources, Virginia

200. Allison Gilbreath, 2019 Legislative Session Advocating for Kids in Foster Care,
VOICES FOR VIRGINIA'S CHILD. (Feb. 25, 2019), https://vakids.org/our-newsfblog/2019-legisl
ative-session-advocating-for-kids-in-foster-care [https://perma.cc/5TSN-PGEL].
201. As of June 5, 2019, the Family First Prevention Services Act has not released a
concrete list of covered services but does restrict federal funding for congregate care services.
See John Kelly, Family FirstAct Clearinghouse Misses May Goal for First Slate of Approv-
als, CHRON. Soc. CHANGE (June 6, 2019), https://chronicleofsocialchange.org/youth-services
4
-insider/family-first-clearinghouse-misses-may-goal-for-first-slate-of-approvals/35 14
[https://perma.cc/EAH6-R879].
202. Allison Gilbreath, Family FirstPrevention Services Act Will Change Child Welfare
for the Better, VOICES FOR VIRGINIA'S CHILD. (June 18, 2018), https://vakids.org/our-news/
blog/families-first-prevention-act-will-change-child-welfare-for-the-better [https://perma.cc
/XEH9-Z3TR].
203. Allison Gilbreath, Big Year for Foster Care Reform: 2019 Legislative Wrap Up,
VOICES FOR VIRGINIA'S CHILD. (Feb. 25, 2019), https://vakids.org/our-news/blog/big-year-for-
foster-care-reform-2019-legislative-wrap-up [https://perma.cc/B2B2-Z45Y].
204. Id.
205. Id.
2019] FOSTER-CARE-TO-PRISON PIPELINE 341

has an unmatched opportunity to break its foster-care-to-prison

pipeline by implementing restorative conferencing practices
throughout the foster care system.

CONCLUSION

The latest legislative trend in spending and policy provides Vir-

ginia with the opportunity to integrate restorative justice confer-
encing practices throughout its foster care system. Implementing
nonemergency Family Group Conferencing would protect foster
children's community bonds and help maintain them during the
emotionally traumatic Termination of Parental Rights process ra-
ther than allowing these bonds to degrade and disappear. Creating
Restorative Conferencing Response Units for schools and training
caseworkers and care providers in Restorative Conferencing meth-
ods will give children the tools they need to engage with a support-
ive community system when facing hardships rather than turning
to delinquent behavior.
Virginia's implementation of restorative conferencing through-
out the Termination of Parental Rights process will help the foster
system develop into the community its children so desperately
need. Through this community, Virginia will not only improve the
lives of thousands of children-it will begin breaking the foster-
care-to-prison pipeline currently engulfing children in government
care.
JoannaR. Steele
*

* J .D. Candidate 2020, University of Richmond School of Law; B.A., 2013, University
of North Carolina at Chapel Hill. I would like to share my sincerest gratitude to Professor
Doron Samuel-Siegel for generously donating her time and experience throughout the writ-
ing process. Most importantly, this Comment is dedicated to my parents, Angela and Harry
Steele, whose love and kindness helped reshape the lives of several foster children-includ-
ing me.