FOSTER CARE, CHILD WELFARE REFORM IN REVIEW
THE LEGAL ORPHANS
“The story public family law tells about parenthood is both inaccurate and normatively misguided,” writes Cynthia Godsoe in a recent Brooklyn Law School Legal Studies Paper, Godsoe continues on to explain:
- child welfare policy, embodied in the Adoption and Safe Families Act (ASFA) statutory scheme, is flawed in two significant ways. First, it fails to recognize the socioeconomic factors underlying most child maltreatment and instead defines maltreatment primarily based upon normative parental behavior standards unrelated to child safety. It relies upon a very small number of extreme abuse cases to define the problem and any proposed solutions. This results in the legal system addressing child maltreatment in an ineffective post hoc triage fashion in stark contrast to the medical community‟s preventive approach to the problem. Second, it ignores the real ties that exist between parents and children even after children have been removed from their parents‟ care. As a result, interventions at all stages of the child welfare process are misguided: before children are removed from their parents‟ care, while they are in foster care but the state still seeks reunification of the family, and after parental rights are terminated. The devaluation of the parent-child relationship after termination has led to perhaps ASFA‟s most disturbing legacy—over a hundred thousand “legal orphans.”
The impact of this “reform” on minority populations is particularly troubling. Writing in Alaska Law Review, Sheri L. Hazeltine explains that “rates of termination of parental rights and adoption of children from Alaska state foster care have exploded in recent years.” The dramatic increase “resulted from new and stricter child protection laws passed by the Alaska Legislature in 1998 that make it easier to terminate Alaska Native and non-Native parental rights. The legislature passed these new child protection statutes to conform with the federal Adoption and Safe Families Act of 1997.”
Hazeltine explains that while it had been crafted to solve the problem of foster care drift, the new legislation instead resulted in other consequences, among them that the number of adoptive homes for children did not appear to have kept pace with the increase in terminations of parental rights, in turn creating a “cadre of legal orphans” – children legally severed from their natural parents without an adoptive home.
Hazeltine notes also that “the aforementioned outcomes directly conflict with the [Indian Child Welfare Act’s] definition of the best interests of the Indian child and the ICWA’s goal of promoting the stability and security of Indian tribes and families.”
Professor of law Dorothy Roberts explains how this “reform” came to be in an excerpt of her book Shattered Bonds: The Color of Child Welfare on PBS: “Congress has abandoned the focus on preventive and reunification programs it once expressed. Leading the way is the Adoption and Safe Families Act enacted by Congress in 1997 to amend the 1980 Child Welfare Act. President Clinton signed the law within a year of directing the federal government to take steps to double the number of foster children adopted annually to 54,000 by 2002. The new federal adoption law — known as “ASFA” — represents a dramatic change in the way the federal government deals with the overloaded foster care system. Its orientation has shifted from emphasizing the reunification of children in foster care with their biological families toward support for the adoption of these children into new families.”
Finally, the mainstream media is beginning to notice that something has gone terribly wrong with this well-intended piece of legislation. In a recent article aptly entitled “Failed Adoptions Create More Homeless Youths,” the New York Times examines the case of a “failed adoption,” one that “is part of a growing group that is entering the local shelter system for homeless youths after their families vanish as quickly as the government checks attached to them do.”
“I’m definitely seeing more failed adoptions,” said Anne Holcomb, the coordinator for the Night Ministry’s Open Door Youth Shelter. “I’m seeing more than I did in the ’90s and even more over the last four years, because these youths were adopted as kids and now they’re 18.”
Research shows that from 1988 to 2006, children were typically adopted at age 7. Now, a little more than a decade after the boom years of 1998 to 2001 — accounting for 22,057 adoptions — more youths are aging out of subsidies than ever before.
“There was a huge scramble to pressure people into permanency,” said Mark Ruckdaeschel, director of Neon Street Dorms, a homeless youths shelter in Uptown. “And there was a big discussion about the financial benefits for doing this. It was a selling point.”
Monthly subsidies range from $360 for an infant to well over $1,000 for a child with special needs, the Times explains.
As I explained in a previous article, rewarding states for adoptions is part of the problem, rather than a solution. It is gratifying to see the mainstream press beginning to come to this realization.
But ASFA isn’t the only piece of incremental tinkering to roll out under the banner of reform.
THE OTHER REFORMS
Writing in the NYU Review of Law & Social Change, Ian Vandewalker, of the Center for Reproductive Rights, describes yet another “get tough on child abuse” reform effort – one that targets the unborn children of mothers. This policy, Vandewalker notes, is itself creating yet another category of legal orphans:
- Several states allow a mother and child to be permanently separated for something the mother did before the child was born; these states have made the use of illegal drugs while pregnant a ground for terminating a mother’s parental rights. The intuition motivating such a policy is that drug users are bad parents, and the state protects children by removing them from such parents. This presumption in favor of termination is fundamentally ill conceived. Termination of parental rights is a drastic and unwise response to the public health problems caused by illegal drug use: drug use or addiction does not, ipso facto, make someone unfit to care for a child, although it may cause behaviors which constitute bad parenting. If those behaviors do emerge and they rise to the level of abuse or neglect, they would be sufficient legal ground for government intervention to protect the child in every state in the nation. So, making drug use itself a ground for breaking up a family is unnecessary. Given that it also has various negative effects, including trammeling the constitutional rights of mothers and creating legal orphans, the policy should be abandoned.
All the while, would-be reformers continue to file cookie cutter lawsuits, ostensibly to “reform” the worst of the child welfare systems. Chief among them Children’s Rights, Inc., which currently has four “active, pre-judgment cases” on hand. These would be in Massachusetts, Oklahoma, Rhode Island, and Texas.
I first began to lose confidence in this organization when it took Richard Gelles on board. As Professor Roberts explains in her PBS commentary:
- Advocates drummed up support for ASFA by pointing to cases where family preservation failed miserably. They recounted tragic stories of children who were killed after caseworkers returned them to blatantly dangerous parents. They passed around photographs of abused children to members of Congress. Perhaps the most effective rallying tool was The Book of David: How Preserving Families Can Cost Children’s Lives by prominent family violence scholar Richard Gelles. The Book of David reported the events surrounding the suffocation of a little boy by his abusive mother after caseworkers sent him home from foster care. Gelles attributed this tragic lapse in judgment to the priority policy makers placed on families, rather than children. According to Gelles, caseworkers were interpreting the requirement to use “reasonable efforts” to preserve families to dictate reunification at all costs. Family preservation policies were a license to risk children’s safety. Gelles argued that “the basic flaw of the child protection system is that it has two inherently contradictory goals: protecting children and preserving families.” He advocated reinventing the child welfare system “so that it places children first.”
This is not to suggest that all reform efforts are in vain. The Nebraska Appleseed Center for Law in the Public Interest recommended in September that efforts at privatizing the child welfare system be abandoned after a blistering state audit of the privatization initiative was issued.
“It’s time to say enough is enough,” said Sarah Helvey, an Appleseed attorney. “There is a growing body of evidence now that this reform is failing,” the Omaha World-Herald reports.
By October of 2011, Appleseed had found support among many other advocacy groups, and had gained the attention of the news media. Indeed, even the Nebraska Foster Care Review Board had joined forces with Appleseed and other advocacy groups in their mutual effort to reverse the “reform” effort before it damaged more children than it already had.
As I reported in a previous article, a report issued by Nebraska’s Platte Institute bears out the perverse financial incentives driving these reforms. The Institute found that: “The current system creates an incentive to shuffle a child into foster care, not because it is the best option for the child, but because in many cases funding is sure to follow. On the other hand, alternatives that actually cost less and are more effective are not taken into serious consideration.”
Indeed, it it is difficult to fathom how legislators could support such privatization efforts given the abysmal track record in Texas – the state that led the charge.
FUNDAMENTAL RESTRUCTURING NECESSARY
Professor of social work Leroy Pelton explains that the current structure of the child welfare system is dysfunctional, and that: “A fundamental restructuring of the system will be necessary before it can accommodate any large-scale expansion of family preservation and prevention programs and services.” Lacking such a restructuring, “any incremental approach or tinkering with the system in its present form will not change its focus from placement to prevention.”
The incessant piecemeal tinkering with the system serves only to strengthen it, even as it provides an intellectual trap for would-be reformers. “Just by calling for more workers, more training, better academic credentials, advocates serve to maintain the status quo,” Pelton explains, adding that: “Even radical critics have succumbed to the delusion that more of the same, albeit of higher quality, is what we need.”
EARLIER EFFORTS AT REFORM
Brenda McGowan (1983) points out that the field of child protection is one which has been repeatedly attacked “for its failure to insure permanency planning, its inability to prevent placement, its failure to place children in need of protection, its inherent racism and classism, its anti-family bias, its violations of parents’ and children’s rights, its arbitrary decision-making procedures, the incompetence and inefficiency of its staff, its costs, and its mismanagement” (p. 72). The era to which McGowan is generally referring is the 1960s. Little has changed since, save that a child protection lobby “whose power has increased in recent years as physicians have swelled the ranks of what was originally composed of social workers” (Finkelhor, 1979, p. 2) has formalized its operations, and that state and county agency administrators have become increasingly sophisticated in maximizing the inflow of federal dollars, often with the assistance of the private consulting firms.
Although competent practice strategies have been discussed frequently over the past several years, agency administrators and staff are often confused about how and where to make changes in policy and practice which would better serve children of color (Pierce & Pierce, 1996). As a result, the child welfare system operates to the detriment of the primary clientele it serves. To the extent that there are occasional successes, they are accidental and subject more to the winds of fortune than they are attributable to the knowledge base of the profession or the skills of its workers. While a great deal of clinical and empirical studies have been conducted, a relatively small number of facts have been produced. At best, conventional casework approaches yield a 50% success rate (Garbarino, 1984).
The permanency planning movement has failed to provide the promise of permanence and stability to foster children. It has been blamed for adding another bureaucratic layer to an already fragmented system, thus contributing to rapid turnover and uncovered caseloads (Kamerman & Kahn, 1989) and the failures of family preservation and reunification as major components of permanency planning have been likened to the outcomes of deinstitutionalization of the mentally ill (Fein & Maluccio, 1992).
Multidisciplinary approaches have recently been advanced as a solution to the “crisis” in child protection (U.S. Advisory Board on Child Abuse and Neglect, 1995), yet early findings from research on the effects of multidisciplinary treatment indicate that this method was successful only in 40% to 50% of cases (Williams, 1980). In an effort to increase adoptions of minority children, legislative proposals such as the Multiethnic Placement Act have been advanced. Yet few empirical studies have assessed the attitudes toward interracial or interethnic adoption from the perspective of people of color, and interracial adoption remains statistically rare (Bausch & Serpe, 1997). Citizen Review Panels have been established as an alternative to administrative review, yet an audit conducted by the Utah Legislative Auditor General (1996) found that the review type affected neither the length of stay nor the number of placements. Guardian Ad Litem programs have been universally established to protect the interests of children in the family courts. The results have been predictable, as the Program Evaluation Division of the Minnesota Legislative Auditor (1995) explains:
- Many concerns have been raised about the use of guardians ad litem. Most complaints have centered on guardian actions in family court cases, primarily in contested divorce actions. Complaints have focused on guardian bias, lack of oversight and accountability, inadequate training, and inappropriate communication between guardians and judges. Parents have also complained that there is no place to seek relief if they have a problem with a guardian.
Among the Auditor’s findings: There is no regional or statewide system to process complaints about a guardian; there are no uniform statewide procedures to remove a guardian from a case or program; there is not a universally understood or consistently applied definition of the appropriate roles and responsibilities for guardians in Minnesota, leading to frequent confusion and differing expectations; thirty-three counties do not have any basic training requirements and 57 counties do not have any continuing education requirements. Perhaps not surprisingly, guardians ad litem also enjoy absolute immunity against prosecution for their role in family court.
Indeed, the entire child welfare system would appear to the casual observer to be in a perpetual state of “reform.” Incremental adjustments, such as alterations in caseworker training policies, efforts at involving law enforcement in varying degrees during the investigative stages, movement toward a “less adversarial approach” to interventions, and reorganizations of existing bureaucratic structures have been identified as among current reform efforts (Wilson, Vincent, & Lake, 1996). There have also been countless efforts at reform of these systems through litigation. As of 1990, George Miller and the members of the Select Committee on Children, Youth and Families had counted over 45 lawsuits which had been won by child advocates based on violations of the Adoption Assistance and Child Welfare Act.
While some modest gains have been made from time to time, for the most part these gains have been temporary. In some instances, litigation has only worsened matters for children in care, as it did in Utah by virtue of further increasing the unnecessary removal of children from their homes. As Miller observed some years ago: “This system has been sued and sued and orders have been issued and people have just continued on their merry way” (Committee on Ways and Means, 1988). These efforts at reform have all failed because the core tasks of the child protection system-investigation of families and child removal-remain unchanged.
Not only has federal oversight has been all but nonexistent, but Congress has often waived penalties imposed on states for lack of compliance with the reasonable efforts requirements of Public Law 96-272 (Ellertson, 1994). After years of well-documented indifference on the part of child protection and foster care agencies toward the modest requirements of the law, Congress has decimated the meager protections it offered children through its enaction of the Adoption and Safe Families Act. I am hard pressed to find room for optimism in the face of recent legislative changes. The war against child abuse will likely continue for some additional years, until such time as the casualties of the war mount to such an extent that even Congress cannot overlook them. The misdirection of funding away from assisting the poor toward instead removing an ever-increasing number of their children is likely to continue unabated until such time as society reaches a more compassionate consensus and disassembles the child removal apparatus, establishing in its place a system which is genuinely supportive of families and children.
See also: Reprise: The Ominous Parallels
Bausch, R. S., & Serpe, R. T. (1997). Negative outcomes of interethnic adoption of Mexican American children. Social Work, 42,136-143.
Committee on Ways and Means, U.S. House of Representatives (1988). Foster Care, Child Welfare, and Adoption Reforms. Washington, DC: U.S. Government Printing Office.
Ellertson, C. (1994). The Department of Health and Human Service’s foster care review system needs a major overhaul. Children and Youth Services Review, 16, 433-444.
Fein, E., & Maluccio, A. N. (1992). Permanency planning: Another remedy in jeopardy? Social Service Review, 66, 335-348.
Finkelhor, D. (1979). Sexually Victimized Children. New York: Macmillan.
Garbarino, J. (1984). What have we learned about child maltreatment? In Perspectives on child maltreatment in the mid ’80s. Washington, DC: National Center on Child Abuse and Neglect.
Hazeltine, S. L., (2002). Speedy Termination of Alaska Native Parental Rights: The 1998 Changes to Alaska’s Child In Need of Aid Statutes and Their Inherent Conflict with the Mandates of the Federal Indian Child Welfare Act, 19 Alaska L. Rev. 57.
Legislative Auditor General (1996). Digest of a sunset audit of the foster care citizen review panels. Report #96-08. Salt Lake City: Author.
McGowan, B. G. (1983). Historical evolution of child welfare services: An examination of the sources of current problems and dilemmas. In In B. G. McGowan & W. Meezen (Ed.), Child Welfare: Current Dilemmas – Future Directions () (pp. 45-90). Itasca, IL: F. E. Peacock.
Pierce, R. L., & Pierce, L. H. (1996). Moving toward cultural competence in the child welfare system. Children and Youth Services Review, 18, 713-731.
Program Evaluation Division, Minnesota Office of the Legislative Auditor (1995). Guardians Ad Litem. St. Paul: Author.
Roberts, D., ASFA: An Assault on Family Preservation. Frontline: A failure to protect. Available at http://www.pbs.org/wgbh/pages/frontline/shows/fostercare/inside/roberts.html
U.S. Advisory Board on Child Abuse and Neglect. U.S. Department of Health and Human Services (1995). A nation’s shame: fatal child abuse and neglect in the United States. Washington, DC: Author.
Williams, G. J. (1980). Management and treatment of parental abuse and neglect of children: An Overview. In G. J. Williams (Ed.), Traumatic Abuse and Neglect of Children at Home (). Baltimore, MD: Johns Hopkins University Press.
Wilson, C., Vincent, P., & Lake, E. (1996). An examination of organizational structure and programmatic reform in public child protective services. Report #96-12-4101. Olympia, WA: Washington State Institute for Public Policy.
Vandewalker, I., NYU Review of Law & Social Change, (2008). Vol. 32, p. 423.