GPSOLO April/May 2008
Challenges and Opportunities in Foster Care
Annually, more than 800,000 children (close to 1 percent of all children in the United States) are in foster care. On any given day, more than 500,000 are in care. Most youth are placed in foster care because of child abuse or neglect. More than 3 million reports of child abuse and neglect are investigated by the child welfare system in the United States each year. Approximately 900,000 of these children are found to have been maltreated, and 300,000 are removed from their homes and placed in foster care—either with relatives or an unrelated foster family. Therapeutic group homes or residential treatment centers are used when the child’s emotional or behavior problems are so severe that a family foster placement is infeasible.
Children from birth to one are the single largest group of children entering foster care—in some jurisdictions they represent up to 25 percent of new entrants. They need to be placed in a stable family situation with prompt efforts made to either return them home or to arrange another kind of permanent placement (e.g., adoption or guardianship with relatives or non-relatives).
Adolescents are the fastest–growing subgroup in foster care. Many enter foster care as adolescents. The large proportion of adolescents in family foster care has led to the expansion of programs addressing their needs. Although only a small fraction of adolescents grow up in foster care, nearly 25,000 exit care via emancipation at age 16 or older.
Legal and Policy Framework
Foster care practice and programs are governed by an intricate set of policies and laws at the federal, state, and local levels. Federal policies directly affecting foster family care are embedded in nine major laws enacted by the U.S. Congress during the past 40 years. Federal regulation of foster care began in 1961 with the establishment of the Aid to Families with Dependent Children (AFDC) Foster Care Program, designed to provide care for children of families receiving AFDC funds who could not remain safely in their homes. In 1978 the Indian Child Welfare Act recognized that tribal courts have jurisdiction in child welfare issues involving Native Americans and that placement with relatives should have preference. The Adoption Assistance and Child Welfare Act of 1980 specified that a child may enter foster care only after “reasonable efforts” have been made to prevent placement in care; the statute also required case and permanency planning for all children and youths in foster care and established time limits on reunification and adoption subsidies.
The Independent Living Initiative of 1986 (replaced in 1999 by the John H. Chafee Foster Care Independence Program) provided capped funding to create opportunities for young people in foster care to prepare for independent living. This initiative set the stage for more expansive and lasting reforms. The Family Preservation and Support Services Act of 1993 provided support for children in their own homes, with the goal of preserving families following investigation of abuse, reunification, or adoption. The Multiethnic Placement Act of 1994 (amended 1996) and the Interethnic Adoption Provisions of the Small Business Job Protection Act of 1996 forbade agencies receiving federal funds from making foster care and adoption placement decisions routinely on the basis of race, culture, and ethnicity. The Adoption and Safe Families Act (ASFA) of 1997 clarified and updated the Independent Living Initiative of 1986 and created for the first time in federal law a requirement that the state initiate termination of parental rights when a child has been in state care for 15 of the previous 22 months (excepted in certain circumstances). ASFA also makes explicit that the child’s safety must be paramount in any decisions about the child’s placement in care.
Through these laws, the federal government sets policy, issues regulations, provides financial assistance to the states, and monitors program operations. The states are responsible for development, administration, and operation of child welfare programs. Foster care laws, policies, processes, and procedures can vary considerably from state to state—and even from county to county. Federal and state laws help determine agency practice in a number of areas of child welfare, including the following:
- state intervention into the family;
- prevention of out–of–home placement;
- foster care reviews;
- termination of parental rights;
- adoption of children in foster care;
- roles of courts and attorneys;
- interagency collaboration; and
- rights of children, birth parents, and foster parents
Perhaps the most controversial, as well as sensitive, issue is the balancing of the rights of parents and children, especially children placed in foster care because of parental abuse or neglect. Notwithstanding the presence of numerous statutes, formal policies, and legal procedures, decision making in this area is heavily influenced by such factors as the availability of prevention and placement resources; values and biases of service providers; presence of strong advocates for the parents or children; attitudes of juvenile court judges; rigor of the screening process; ambiguities in definition of abuse, neglect, and child protection; and impossibility of predicting the future. Although it does allow for flexibility, this idiosyncratic approach can lead to negative consequences, as seen in cases where parental rights are legally terminated but the child then drifts in foster care without any permanent plan.
Two notable areas of success in child welfare are the increasing number of children placed with relatives and the number being adopted. The outcomes for these children generally have been good, with lower rates of placement disruption and positive developmental outcomes for those adopted or placed in legal guardianship. Two policies at the federal and state level have made a major impact in these areas. The federal adoption incentive payment program, created as part of ASFA in 1997, created fiscal rewards to states that increased the number of children adopted from foster care. Each state and the District of Columbia received bonus payments, and all states are required under federal law to reinvest those payments into the child welfare system and provide additional services and supports to children and families.
At the state level, funded legal guardianship programs represent a true breakthrough. These programs provide services and supports necessary for relatives or other caregivers to permanently raise children outside the formal foster care system. More than half the states have a subsidized guardianship program, and federal legislation has been introduced to create a state–federal partnership in such programs.
Attorneys play a critical role in ensuring that adoptive parents and guardians receive needed services. Increasing the strength of legal representation for children can have a positive effect. A recent revision to the Children’s Code in New Mexico requires that all children over age 14 must have a “youth attorney” appointed to represent them, rather than a guardian ad litem. These advocates ensure that federally required transition plans for youth aged 14 and older prepare for a smooth transition to adulthood and help youth access continued services and supports.
Foster care program staff and policymakers recognize that life skills development must begin much earlier for those children who remain in care for long periods or who are placed as adolescents. Many foster care alumni and others have documented the need for post–foster care medical, mental health, education, and housing support. There are modest federal financial supports available to these young adults after they leave foster care through the Chafee program. This support includes life skills training, employment services, limited housing support, education and training vouchers, and the option for states to extend Medicaid for youth aged 18 to 21. Fewer than half the states have opted to extend Medicaid. Some states allow young people between the ages of 18 and 21 to remain in the child welfare system so they can access the supports and services needed to make the transition to adulthood. However, many young people are not aware that they are entitled to these limited benefits and struggle to succeed in the real world when they are suddenly emancipated from care at age 18. It is not surprising that many young people who leave the system as legal orphans face incredible hardship. Youths who have aged out of care are more likely to experience homelessness, unmet physical and mental health needs, unemployment or underemployment, incarceration, and early pregnancy.
Congress is currently considering legislation that would allow older children to remain in foster care beyond age 18 if they cannot be reunified with birth family members or be adopted. To paraphrase Doug Nelson of the Annie E. Casey Foundation, it makes no sense to spend tens of thousands of dollars to care for young people during childhood, only to ignore their developmental needs and abandon them as young adults.
Despite the successes noted above, child welfare programs remain financed by a patchwork of government resources. These total more than $24 billion per year, not counting additional private resources. But despite this investment, reports are common about excessive caseloads, low salaries, and inadequate ancillary resources resulting in high staff turnover and uneven job performance.
Legal system challenges include large backlogs in juvenile court dockets that prevent children’s cases from being reviewed in a timely manner, overloaded children’s attorneys who do not have time to sufficiently prepare for court reviews, and a lack of collaborative efforts to help children either to be placed in foster care, to be returned to birth families, or to be adopted. Too many youth in foster care later are placed in the juvenile justice system without adequate legal representation.
We need to link good outcomes with the cost to achieve them. Until the cost data are more available, including transparent reporting of appropriately commingled funding streams, child welfare organizations are not adequately accountable for the “real” costs of obtaining good results. This makes them less likely to make a viable case for the additional resources from either public or private funders. In addition, too few practices have been implemented on a large enough scale and with sufficiently robust evaluations to determine which programs are truly the best. Finally, there have been calls for a child welfare system redesign. Some states are operating under court–ordered consent decrees because of class action lawsuits.
Opportunities for Lawyers
As a lawyer, you can make a significant difference in improving the lives of children and families in the foster care system in many ways:
- Serve as a paid or volunteer guardian ad litem for children at the point of child protective services investigation and/or consideration of placement. Your job here is to ensure that legal safeguards have been followed and that everything possible has been done to avoid child placement. You can also represent adolescents in or transitioning from care in accessing services and supports such as independent living skills, health care, housing, and post–secondary educational opportunities.
- Ensure that the proper medical, dental, vision, education, and mental health screenings have been completed once children have been placed in foster care. Juvenile court judges across the country are beginning to use a "Judicial Education Checklist" to ensure that proper educational planning is taking place (see www.ncjfcj.org/content/blogcategory/ 363/432).
- Advocate for evidence–based treatments for youth mental health conditions, including careful use of psychotropic medications.
- Use the ABA "Mythbusting" monograph (www.abanet.org/child/ education/mythbusting2.pdf) to help dispel artificial confidentiality barriers that are unnecessarily preventing the educational, mental health, medical, employment, and juvenile justice systems from collaborating effectively with child welfare staff.
- Assist birth parents, foster parents, and kinship care providers in navigating the confusing U.S. legal system with respect to juvenile and family courts, as well as advocating for access to available services.
- Ensure that provisions of the Indian Child Welfare Act are understood and being implemented.
- Advocate for placement stability—it is associated with fewer emergency room admissions while in care, fewer mental health problems, better educational outcomes, and the emergence of greater youth social support networks whose network members can provide emotional and concrete assistance to youths long after child welfare system involvement has ended.
- Encourage states to extend Medicaid coverage and other supports at least to age 21 under the provisions of the Foster Care Independence Act or up to age 25 for youths emancipating from foster care.
- Consider becoming licensed as a foster parent or adopting a child who is currently in foster care.
There are many challenges limiting the success of youth in foster care. At the same time, a national consensus is emerging around the need to improve the quality of foster care, encourage greater interagency coordination in the delivery of services, and better prepare older children in foster care for the transition out of care.
Many legislative initiatives seek to incorporate innovative ways to fund preventive family support services and specialized services such as educational, mental health, and transitional services for older youths and expand the permanency options for children in care to include placements with kin, as well as services for children after they leave care, to ensure that placements are stable. Post–permanency supports include those related to health care coverage, employment training, educational scholarships, and housing.
We need to measure program cost–effectiveness so that the best strategies are adopted. There is a growing urgency in moving this agenda; outcomes for many older youths in foster care and alumni continue to be inconsistent and too often poor. To make a difference in these young people’s lives, programs must provide them with age–appropriate life skills, more stable environments with ties to the local community, and contact with as many birth family or extended family members as possible.
U.S. Department of Health and Human Services, Administration for Children and Families, Children’s Bureau. Child Maltreatment 2005. Washington, DC: U.S. Department of Health and Human Services, 2007. ( www.acf.hhs.gov/programs/cb/pubs/cm05/index.htm)
Education and Foster Care Resources
Legal Center for Foster Care and Education website, a collaboration between Casey Family Programs and the ABA’s Center on Children and the Law, in conjunction with the Education Law Center–PA and the Juvenile Law Center. The center serves as a national clearinghouse and technical assistance center on policy and legal issues related to foster care and education. ( www.abanet.org/child/education)
Foster Care Statistics
Casey Family Programs website. ( www.casey.org)
Scarcella, Cynthia Andrews, Roseana Bess, Erica H. Zielewski, Lindsay Warner, and Rob Geen. The Cost of Protecting Vulnerable Children IV. Washington, DC: Urban Institute, 2004. ( www.urban.org/publications/411115.html)
U.S. Department of Health and Human Services, Administration for Children and Families, Children’s Bureau. The AFCARS Report No. 13: Preliminary FY 2005 Estimates as of September 2006. Washington, DC: U.S. Department of Health and Human Services, 2006. ( www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report13.htm)
Reform Issues and Class Action Lawsuits
National Center for Youth Law. Improving the Child Welfare Workforce: Lessons Learned from Class Action Litigation. Oakland, CA: National Center for Youth Law, 2007. ( www.childrensrights.org/pdfs/Ex%20Sum%20workforce.pdf)
Pecora, Peter J., and Tiffany Washington. “Providing Better Opportunities for Older Children in the Child Welfare System,” Archives of Pediatrics & Adolescent Medicine, 161 (2007):1006-1008.
Pew Commission on Children in Foster Care. Fostering the Future: Safety, Permanence and Well–Being for Children in Foster Care. Washington, DC: Pew Charitable Trusts, 2004. ( www.pewtrusts.org/our_work_ektid22752.aspx)
Peter J. Pecora, Ph.D., is senior director of research services with Casey Family Programs and a professor at the University of Washington in Seattle; he may be reached at firstname.lastname@example.org or via www.casey.org. Mark A. Pecora, J.D., is a criminal defense attorney in private practice in Milwaukee, Wisconsin; he may be reached at email@example.com.