US Senate Moves Forward On Foster Care Reform

When you ask a child who has been in foster care how we can best improve the current foster-care system, often the answer will be: You could have helped my mom so that I did not have to go into foster care in the first place.
Senate Finance Committee Chairman Orrin Hatch

Senate Finance Committee Foster Care Hearing Aug 2015
Senate Finance Committee Hearing, August 4, 2015
A Way Back Home: Preserving Families and Reducing
the Need for Foster Care

Congress is moving toward revamping the nation’s foster-care system, reflecting a major shift in how policymakers and a growing number of experts in the field of child welfare view the dilemma of keeping children safe while preserving families.

Federal lawmakers in both parties appear to be in agreement over the basic principles underlying such a reform. Senator Orrin Hatch (R-Utah), the chairman of the Senate Finance Committee, hopes to move legislation forward this fall, he explained in his opening remarks during a hearing entitled A Way Back Home: Preserving Families and Reducing the Need for Foster Care, held on August 4.

It is truly a bipartisan effort. Senator Hatch has been working with Ron Wyden (D-Ore), who has sponsored a reform proposal. Senators Michael Bennet (D-Colo) and Michael Crapo (R-Idaho) have also introduced legislation aimed at reforming the foster care system.

Senate Finance Committee Chairman Orrin Hatch has always had a way with words that has managed to earn him admiration and support from both sides of the political aisle. In recounting the testimony provided during a previous hearing on foster care group homes held in May, he explained that the committee heard testimony “about how expensive, inappropriate, and ultimately detrimental placement in these homes can be for many children and youth.”

Hatch thereafter expressed his sentiments quite clearly, saying:

I believe that we should do whatever we can to reduce the reliance on foster care group homes. There is a point when we should refuse to spend scarce taxpayer dollars to subsidize a placement that we know results in negative outcomes for children and youth. As I have said in the past, no one would support allowing states to use to federal taxpayer dollars to buy cigarettes for foster youth. In my view, continuing to use taxpayer dollars to fund long-term placements in foster care group homes is ultimately just as destructive.

Senator Hatch continued on to explain that, “Currently, the federal government devotes the highest proportion of its federal foster care funding to the least desirable outcome for vulnerable families: removal of a child from his or her home and placing them in stranger care or in a foster care group home. Current federal foster care la ws prohibit states from using certain federal funds to provide upfront services that could ameliorate harmful conditions in the family home.”

Many states are operating under waivers from these rules, allowing an increasing number of children to remain in their homes, he explained. The rationale is a simple one: “When you ask a child who has been in foster care how we can best improve the current foster-care system, often the answer will be: You could have helped my mom so that I did not have to go into foster care in the first place.”

Senator Wyden’s statement most eloquently expressed the perverse nature of the child protection system as it works today:

This morning in America, there’s likely to be a single mom with two kids, multiple part time jobs, and a big worry. She works long hours to provide for her family, but even then, it’s a struggle to pay the bills and keep food on the table. And because her work schedule changes week to week, she’s forced to leave her children unattended at times. A neighbor might place a concerned call to Child Protective Services. Once that happens, social workers have to choose between two bad options – breaking up the family, or doing nothing at all to help.

Here’s why that needs to change. Whenever you ask anyone who has been through the child welfare system about what could have helped them the most, the answer is often, “helping my mom … helping my dad … helping my family.” But that’s just not in the cards when social service workers have nothing to offer but foster care.

“Today, kids predominantly wind up in foster care because their families, like that single mom, are caught in terribly desperate circumstances that lead to neglect. Most youngsters in foster care aren’t there because of physical or sexual abuse,” the Senator added.

“Maybe mom or dad needs help covering bills for a month, substance abuse treatment, or connections for child care. Oftentimes, a youngster’s aunt, uncle, or grandparents could step up, especially if they have some assistance. In my judgement, every one of those avenues should be explored before breaking a family apart. In fact, it can save resources in the long-run without compromising on safety,” Wyden said.

Wyden said that he planning to introduce legislation called the “Family Stability and Kinship Care Act,” built around the principle of keeping families together whenever possible. True to his word, on August 05, 2015, Senator Wyden was joined by seven other members of the committee in “introducing a bill to keep families together by allowing the nation’s largest child welfare funding stream to support front-end family services to reduce unnecessary foster care stays,” a prepared release explains.

Among the cosponsors of the bill were Senators Debbie Stabenow, Bob Casey, Michael Bennet, Sherrod Brown, Maria Cantwell, Chuck Schumer, and Bob Menendez. All of the cosponsors are democrats.1

Over 60 organizations expressed support for the bill, including the American Academy of Pediatrics, the Association of University Centers on Disabilitie, the National Association of Public Child Welfare Administrators, the Center for Family Representation, the Center for the Study of Social Policy, the National Kinship Alliance for Children, the National Indian Child Welfare Association, the National Congress of American Indians, and the Children’s Defense Fund, all of whom signed a letter of support for the proposed legislation.

Returning to the recent hearing, Sandra Killet, executive director of New York City’s Child Welfare Organizing Project, was the first to provide testimony to the committee, saying:

Today I bring to you the voices of many parents who have forever been changed by the child welfare system. Most families live in very stressful environments facing everyday trauma based on their circumstances. Many are being penalized for living in conditions that are beyond their control. These families are also being told by CPS workers that they do not have the ability to protect their children in their own community. I believe that most parents want to be good parents but may need some help or assistance along with way.

Ms Sandra Killet, Child Welfare Organizing Project

Ms Killet spoke of the difficulties faced by parents struggling to navigate the system alone, and the difficulties they encountered in trying to fulfill the requirements of their reunification plans. She spoke of the issue of having a record in the system – one that could potentially impact on a family’s employment prospects. And, she spoke of the lack of available services that could provide some basic assistance to families as an alternative to removing their children.

Changes in the financial structure of Title IV-E – which provides payment to states for foster care, but not for prevention – are an essential element of reform, she explained.

Rosalina Burton, former foster care ward

Rosalina Burton, a former foster care ward, testified of the difficulties she’d encountered with the system. As part of a large sibling group that was separated, she found her family growing apart from one another. There were some failed efforts at reunification, however no services were provided to assist the family to reintegrate. She had enjoyed a stay with her aunt at one point, however in a subsequent placement her aunt was disallowed, for reason unknown to her. Her advice to the committee – based on first-hand experience as a “protected” child in care – was quite specific:

Support prevention services such as intensive counseling and financial assistance that help kids stay with their families. Support these same services after reunification so all parties can talk open and honestly about their fears, hopes and expectations to help families stick together, and to understand the damage time away from each other can have on their relationships. Support kinship placements at all times because sometimes parents will fail to reach the bar, but their kids should not be forced to find a new family when extended family members are available.

Testimony was also provided by Donna Butts, executive director of Generations United. She described her group as being a national membership organization focused solely on improving the lives of children, youth, and older people through intergenerational strategies, programs, and public policies.

Her testimony consisted of a highly detailed account of the benefits of kinship care as an alternative to group homes or placement with strangers. In sum and substance, she explained that: “Based on the research and how we know children fare, a key way to preserve families, reduce reliance on group homes and promote permanency and better outcomes for children is to prioritize and support placements with kin when children cannot remain with the birth parents.”

Charles Nyby, Differential Response and Safety Operations and Policy Analyst with the Child Welfare Program in Oregon, was among the system professionals to speak. During his testimony, he spoke of a particularly heartrending moment when he was ordered by a judge to remove a three-year-old child from her mother’s arms and place her in foster care. This, after he’d tried to convince the judge that he felt that he could help the family remain together safely.

“I remember wishing I was able to describe the impact this type of removal has on a child, how the trauma of that removal is so great, it should only occur when safety can’t be obtained through other means,” he told the committee. Nyby continued on the say:

It’s my opinion that in order to continue progress with Child Welfare reform, changes are needed in the way Child Welfare systems are funded. We need to be able to support families to safely parent their children and we need the ability to bring services to the family where they are in their process of change. Systems need flexibility just like families do. Foster care is an essential element of every child welfare system and it is a safety service that should only be used when there are no other options.

Ann Silverberg Williamson, Executive Director of the Utah Department of Human Services, described a promising program that was initially phased in during 2013. Using a federal waiver, the state was slowly rolling out a program known as HomeWorks statewide. She described it generally as a promising program aimed at keeping more children safely in their homes.

“Without the waiver, the federal Title IV-E dollars are limited to supporting foster care services. Now, HomeWorks is allowing us to invest federal funds toward supports that have much greater value — not only to children and youth by keeping families whole — but also to the tax-payers receiving a greater return on the dollar,” she explained.


I will admit to harboring a great deal of skepticism when it comes to system stakeholders promoting “promising” or “innovative” programs. I do, however, remain cautiously optimistic that some meaningful changes may indeed be on the horizon, as many federal representatives have grown weary of spending countless billions of dollars year after year on a system that has demonstrated with tremendous consistency that it failed in its mandate to protect children, even as it tears far-too-many innocent families apart.

System critics, however, have long assailed the “perverse” federal financial incentives that serve to promote placement over prevention. As Kenneth A. Visser, Director of Family Preservation in the Michigan Department of Social Services explained to a Congressional Committee in 1991: “The current system of financing rewards us for foster care placement.” More to the point, as Joseph R. Pisani, speaking on behalf of the National Conference of State Legislators explained: “You are paying us to do the wrong thing, and providing us with federal disincentives to do the right thing.”2

There are many good ideas currently on the federal drawing board. Revamping Title IV-E to allow states greater flexibility would be a significant step in the right direction. One major obstacle standing in the way is the Adoption and Safe Families Act, which has already created a huge class of “legal orphans” who have had their right to their families terminated by default.3. The Adoption and Safe Families Act should either be extensively revised, or repealed outright, as it is certain to present an impediment to meaningful reform.

1. Information from United States Senate Committee on Finance, press release, “New Child Welfare Bill Focuses on Keeping Families Together,” August 5, 2015.

2. Committee on Ways and Means, U.S. House of Representatives (1991). Innovative Child Welfare Services Programs Designed to Strengthen and Preserve Families, Washington, DC: U.S. Government Printing Office; Committee on Ways and Means, U.S. House of Representatives (1979). Amendments to Social Services, Foster Care, and Child Welfare Programs, Washington, DC: U.S. Government Printing Office. Much of my personal skepticism is drawn from the reform that is perpetually in progress. Note that the titles of both these hearings clearly suggest “innovation” and reform. Hearings dating back into the 1950s and 1960s are littered with promises of system reform that have yet to be delivered. Also, of the 60-plus organizations that signed on in support of the recent legislative proposals, many stand to benefit financially through the expansion of home visitation programs. See Epstien, W. (1997). Social science, child welfare, and family preservation: A failure of rationality in public policy. Children and Youth Service Review,19, 41-60 (“Family preservation services, intrusive and possibly irritating, may actually exacerbate bad situations, producing harmful effects”).

3. Kathleen S. Bean, Aggravated Circumstances, Reasonable Efforts, and ASFA, SSRN Scholarly Paper (Rochester, NY, December 5, 2008); Jennifer Wriggins, Parental Rights Termination Jurisprudence: Questioning the Framework, SSRN Scholarly Paper (Rochester, NY, 2000); Cynthia Godsoe, Parsing Parenthood, SSRN Scholarly Paper (Rochester, NY, August 2, 2012); Charisa Smith, The Conundrum of Family Reunification: A Theoretical, Legal, and Practical Approach to Reunification Services for Parents with Mental Disabilities, SSRN Scholarly Paper (Rochester, NY, August 31, 2014); Josh Gupta-Kagan, The New Permanency, SSRN Scholarly Paper (Rochester, NY, September 17, 2014); Kendra Huard Fershee, The Parent Trap: The Unconstitutional Practice of Severing Parental Rights Without Due Process of Law, SSRN Scholarly Paper (Rochester, NY, August 31, 2014), ; Catherine J. Ross, The Tyranny of Time: Vulnerable Children, Bad Mothers, and Statutory Deadlines in Parental Termination Proceedings, SSRN Scholarly Paper (Rochester, NY, January 23, 2004).