When considering adopting kids from foster care, prospective parents are usually concerned about childproofing their home, completing the required classes and background checks, and in so many other ways, becoming ready for the arrival of a human being they will be responsible for around the clock. What these parents might not be as well aware of is the complex legal landscape they are about to enter. This article, written by a foster/adoptive parent, presents an overview of public opinions, legal viewpoints, and legislative mandates which have shaped child welfare policies today.
Natural Family Preservation
Common wisdom dictates that children, no matter what, belong to their natural (biological) parents. Parents are their children’s guardians. Parents take care of their kids and raise them to adulthood. Kids are safe with their parents.
For most children, this premise holds true. Though, not so much for 424,000 kids in America who enter foster care because of abuse, neglect, or abandonment: the three basic criteria for children’s removal from their family’s homes.
What should be done about them? What does their future hold?
Most Americans agree that if kids have to be removed from their biological parents and placed in foster care, their parents should be given the opportunity to reform or recover so that they could regain their ability to raise their children. This general belief is mirrored in legislative acts and child welfare policies at both federal and state levels.
Law strongly supports biological family preservation. It presumes that biological parents possess the fundamental right to direct the care and custody of their children, and that, by default, they act in their children’s best interests. A historical chain of federal legislative acts–The Indian Child Welfare Act of 1978, the Adoption Assistance and Child Welfare Act of 1980, the Adoption and Safe Families Act of 1997, and Family First Prevention Services Act of 2018–all speak in favor of family preservation and view child removal as a necessary, in some circumstances, but temporary measure.
A series of the U.S. Supreme Court cases (e.g., Quilloin v. Walcott (1978); Santosky v. Kramer (1982)) also recognized the supremacy of parents’ rights to parent their children and required clear and convincing evidence of their inability to do so before their rights can be suspended or terminated.
Those bonds, however, have limits. As Fred Wulczyn, senior research fellow and director of the Center for State Child Welfare Data at the University of Chicago, noted, the Supreme Court repeatedly acknowledged “the interest of the state to protect and promote children’s welfare and to assure that children have permanent homes. The exercising of this authority emphasizes that a child is not the absolute property of a parent, although state action is limited to situations in which parents are proven unfit or unwilling to perform parental duties and obligations.”
When a child is legally removed from his or her family, he or she becomes the ward of juvenile (children’s) court, which holds the so-called dispositional hearings to “determine whether the child can remain at home and, if not, where the child will live” (Children’s Bureau, U.S. Department of Health & Human Services). To preserve natural families, children’s courts order local child welfare agencies, like the Department of Child and Family Services in the Los Angeles County where we live, to provide reunification services to the birth parents so they can assume responsibility for the children removed from their homes. But, for how long?
Without a clearly defined time limit for reunification, a large number of children used to be trapped in a continuous drift through foster homes, sometimes returning to their parents or relatives, yet often re-entering foster care. Meanwhile, the kids’ psychological stresses would compound and their chances for a future with another adoptive family would dwindle to zero through no fault of their own.
In California, my home state, even 10 years after the introduction of reunification limits described below, foster youth would spend, on average, about six years in the system, with nearly two in five returning to foster care at least once. “Most troublingly,” noted a report from Public Policy Institute of California, the state’s largest policy-setting think tank, “nine percent of all youth who emancipated in 2007, first entered state care when less than a year old, meaning that they had spent their entire lives in the system. Roughly an additional 1,000, or 19 percent of all who emancipated, first entered between ages 1 and 5.” In other words, more than a quarter of children leaving foster care in California that year spent all or most of their childhood in it.
At the end of foster care, then and now, comes emancipation, which means that upon reaching a certain age, 18 in most states, foster children have to leave foster care and live on their own.
To compare, while the young adults in the general population can continue to rely on their families well past 18, foster care youth, traumatized by the removal from their original homes, separation from their birth families, and multiple foster home placements are somehow expected to become fully independent and self-sufficient in time to be cut off from state care at 18.
What happens in real life, as Donaldson Adoption Institute experts explain, is that “these youths, lacking permanent families to help them transition into adulthood, are at heightened risk of negative outcomes: emotional adjustment problems, poor educational results and employment prospects, and inadequate housing and homelessness; furthermore, they are more likely to become involved with the criminal justice system.”
The Adoption and Safe Families Act (ASFA)
Concerns about the universal application of the reunification policies, resulting in virtually indefinite confinement in foster care and multiple home placements, led to the passing of the federal Adoption and Safe Families Act in 1997. The act was an important step in shifting the focus from family preservation and reunification to efforts to achieve permanency and stability for children, in part through adoption.
ASFA required states to make reasonable efforts to preserve or reunify families, limited the timeframe for dispositional reviews to 12 months, and mandated the states to terminate parental rights for children who have been in foster care for 15 of the most recent 22 months. After ASFA, children’s courts no longer had the leeway to continue children’s cases indefinitely.
One might assume that most children in the nation’s foster care system are in some stage of reunification with their biological parents. Not quite. The Children’s Bureau reported that only 55 percent of foster children nationwide were undergoing reunification in 2015, and a similar number–one half–were able to reunite with their birth parents that year.
This is definitely good news for those kids who can return to their families, but what about the other half? How can these children ever find a permanent home?
Here, in another groundbreaking change to child welfare policies, ASFA directed states to engage in concurrent planning, i.e., planning family reunification simultaneously with other, out-of-home options for permanency such as kinship care (placement with a relative), adoption, and guardianship. In the post-ASFA world, when a child is removed from home and detained by the court, the state sets in motion a two-pronged process: family reunification services and an alternative track for the child’s permanency in case reunification fails.
ASFA created a paradigm shift in the way child welfare is run in this country. By setting a clock on reunification, ASFA put a pressure on states’ child welfare systems–and on biological parents–to comply with the court orders, or release the children into alternative tracks towards permanency.
While still prioritizing reunification, the Children’s Bureau warned that “child welfare agencies may find it challenging to help families achieve timely reunification, while at the same time preventing children from reentering foster care.” What this meant is that held to tight deadlines, these agencies, especially the overstrained ones like the Los Angeles County DCFS which oversaw 21,303 children in out-of-home placements in June of this year, would be hard-pressed to adequately support the biological parents’ efforts to get back their children, and not return them to their biological families too early.
Child psychologists concur with the concern about early reunification. Unless the harmful environments from which the children were removed have changed, it is risky to send them home. Chances are family reunification in those cases will lead to further abuse and a likely re-entry into foster care.
This foster system re-entry, governments realized, is not only emotionally damaging to the children, but also costly. In 2014 alone, federal, state, and local government agencies spent $13.5 billion on the removed children’s out-of-home care, nearly half of all of child welfare expenditures.
Concurrent Planning, or Alternatives to Reunification
Concurrent planning is still a relatively new phenomenon in American child welfare. The idea that a child could be placed with a pre-adoptive foster family originated sometime in the 1970s. It wasn’t until the 1980s that Lutheran Social Services in the state of Washington developed the first concurrent planning model for the children placed in its care, one that favored reunification, but also encouraged the child’s foster family to adopt him or her, should reunification fail.
With ASFA, concurrent planning became a national mandate, and beginning in 2000, the Children’s Bureau has started awarding grants to states to promote it. With the federal government providing the overarching goals, policies, and funding, states were expected to develop their own statutes detailing their concurrent planning policies.
The implementation of concurrent planning was not instant. In 2002, five years after the passing of ASFA, only 37 states had these statutes, and like state adoption laws, those statutes varied (and still vary) from state to state.
Current concurrent planning guidelines from the Children’s Bureau set the 7 main goals:
- Ensure that the child’s first placement is their last
- Expedite sustainable permanency
- Minimize a child’s separation from parents, relatives, and caretakers . . .
- Keep siblings together
- Empower [birth] parents by involving them in alternative placement plans when reunification is not possible
- Engage the family’s relatives and support system immediately for potential placement and permanency plan discussions and actions
- Communicate with parents . . . regarding their children’s need for permanence, case plan progress, and the agency’s concurrent planning policy.
These guidelines lay out the benefits of concurrent planning to the children, such as fewer placements and quicker case processing and achievement of permanency, and to the system itself through “reduced court involvement” and cost-saving.
If a child is placed in a foster-to-adopt home, rather than in a purely foster emergency placement, or a group home, the child’s foster parents are presumed to be his or her future adoptive parents–a Plan B option from the get-go, in case the return to the birth family fails. In the same document, the bureau cautions though these foster-to-adopt parents that the kids they are fostering might still “be reunited with their birth family,” and that “only when the court terminates parental rights are foster parents considered as prospective adoptive parents. . . There are no guarantees this will happen.”
Family First Prevention Services Act (FFPSA)
The most significant recent development in the child welfare policies has been a renewed emphasis on the natural family preservation, which can be summarized as a ‘keep-them-at-home’ approach. Signed into law in 2018, FFPSA has dramatically increased federal funding to states for services that partner with natural families to prevent children from entering foster care while also addressing safety concerns at home.
As explained in a Children’s Bureau-promoted guide to FFPSA, “parents or relatives caring for children who are ‘candidates for foster care’” are eligible for federally-funded prevention services to address mental health challenges, substance abuse treatment, and improvement of parenting skills. “The clock starts the day a child is identified in a ‘prevention plan’ as a candidate for foster care.”
Note the word “relatives” in the definition above. In the cases when birth parents are unable to comply with prevention service requirements, and the child is already living with a relative, the act appears to encourage long-term custody arrangement with that relative.
In another important provision, FFPSA also limited, with some exceptions, federal ‘room-and-board’ payments for children in “child-serving institutions that hold 25 or fewer children,” i.e., large group homes, to 14 days.
Increased funding for foster care prevention services in FFPSA comes in part from the cuts to spending on adoption assistance, specifically on the federal payments to the states towards post-adoption services. North American Council on Adoptable Children (NACAC) raised concern about these cuts, calling it “a step backward.” For a more detailed explanation of this new funding mechanism, please see “Re-Links Federal Title IV-E Adoption Assistance Eligibility to Birth Parent Income” in the NACAC review of the law.”
Stay Informed and Keep the Faith
Child welfare policies are always evolving, but do not let their complexity scare you. Getting certified to be foster/adoptive parents, my partner and I were often told there was a child for us out there; and despite all the challenges we met along the way later on, our parenting dreams came true.
Ultimately, the system tries to accommodate–within law–what it views to be each child’s best interests. So arm yourself with knowledge about the legal side of the process and the needs of the many parties involved in the foster/adoption process. Once you understand it well, set the limits for yourself as to what you can and cannot do. While the federal government and the states continue to favor natural family preservation and reunification, concurrent planning alternatives available today provide many opportunities for you to find a child who needs a permanent, loving home.
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Lane Igoudin, MA, PhD, is a Los Angeles-based writer, blogger, and an adoptive father of two amazing teens. He teaches English at Los Angeles City College and writes frequently on the topics related to adoptive parenting and spiritual growth. See more at Laneigoudin.com.
