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May 13, 2019 Feature

Replacing Foster Care with Family Care: The Family First Prevention Services Act of 2018

Caitlyn Garcia
The passage of the Family First Prevention Services Act of 2018 makes it clear that our national child and family well-being response systems . . . [cannot] fully address the well-being of children without addressing the well-being of their families and their communities.1


On February 9, 2018, the Family First Prevention Services Act (FFPSA) was enacted as part of the Bipartisan Budget Act.2 This Act allocates federal child welfare funding streams, Title IV-B and Title IV-E of the Social Security Act,3 to be used to assist families at risk of entering the child welfare system, specifically by reimbursing states for families’ mental health services, substance abuse treatment, and in-home parenting skills training.4 For the first time, federal dollars are being “redirected from foster care homes to parents”5 to address the increasing number of children in foster care related to abuse and neglect, the opioid epidemic, mass incarceration, and increased homelessness.6 This federal funding will reduce the number of children in foster care and shift the focus of our child welfare system from the removal of children to the preservation of families.

As of October 20, 2017, 437,465 children were in foster care with a median age of 7.8 years.7 Of those, 49,234 children entered foster care before their first birthday.8 While family separation should protect children from child abuse and neglect, the trauma of family separation is child abuse itself.9 Researchers have identified a link between early trauma, adversity, and toxic stress10 to mental, emotional, and behavioral disorders in children with long-lasting effects into adulthood.11 Children exposed to trauma are likely to later suffer from “physical health [conditions like] diabetes or heart disease.”12 In addition, children who spend time in traumatic settings, such as inadequate group homes,13 are more likely to find themselves “homeless, jobless[,] or in jail.”14 Discrimination continues to infect our child welfare system, where “[b]lack children are twice as likely as white children to wind up in foster care and face its devastating effects.”15 Our child welfare system must focus on assisting parents rather than removing children from broken families.16 Therefore, the FFPSA supplements foster care with family care to make these families whole.

This Article examines the current federal funding streams dedicated to child welfare and the new FFPSA as a response to the increasing number of children in foster care. Part I sets forth a brief history of federal child welfare legislation regarding funding from the 1980s to the present. Part II analyzes the scope of the FFPSA, discussing its services, duration, and target population. Part III highlights the limitations of the FFPSA, focusing on the available funding, the opioid epidemic’s effect on child welfare,17 and discrimination in access to preventative services. Finally, Part IV argues the necessity of optimizing federal funding streams to better serve the targeted populations and incentivize states to provide family care through more federal funding, earlier intervention, more inclusive services, and niche markets like daycare.

I. A Brief History of Federal Child Welfare Legislation

The Social Security Act18 governs the United States’ child welfare system, with notable legislation being the Adoption Assistance and Child Welfare Act of 1980 (AACWA)19 and the Adoption and Safe Families Act of 1997 (ASFA).20 Each law was enacted in response to timely societal issues.21 AACWA was influenced by the Louisiana Incident of the 1960s and the Civil Rights Movement, which spurred an emerging awareness of the difficulties of placing children of color in foster homes.22 ASFA was then enacted in response to the long periods of time children were remaining in foster care.23

AACWA provided federal child welfare funding to states but required states to conduct “reasonable efforts” to prevent the removal of children to foster care.24 Although states were incentivized to prioritize family preservation as a requisite for funding, AACWA also established the Title IV-E entitlement for spending on foster care placements and adoptive families.25 This tension between AACWA’s goals combined with a vague and undefined “reasonable efforts”26 standard required additional legislation to truly “hold states accountable.”27

Congress passed the ASFA in 1997 to clarify AACWA’s “reasonable efforts” standard.28 ASFA required “timely permanency planning” while focusing on the safety of children.29 Notably, ASFA also required states to file for a Termination of Parental Rights (TPR) when children had been in foster care for fifteen of the last twenty-two months.30 Further, ASFA mandated that states document their efforts to find permanent solutions.31 AFSA increased the transparency of states’ efforts but also required concurrent planning, or permanency planning that included adoption and reunification.32

In June 2016, senators and committee members33 proposed the Family First Prevention Services Act of 2016 (FFPSA of 2016) to drastically change the child welfare funding paradigm.34 This bill was met with resistance in the Senate, where a small faction argued it would “imperil the state’s effort to reduce reliance on group home care and would place undue burden on family members—who would take care of children, without any federal support.”35

II. The Extent of the Family First Prevention Services Act of 2018

The FFPSA’s scope aims to address the complex, multifaceted issues of the United States’ child welfare system. Family separation intensified with the opioid epidemic.36

A. Background and Legislative Intent

The legislature passed the FFPSA to “prevent children from entering foster care,”37 while recognizing that in fiscal year 2016, about ten percent of the children who exited foster care had been in the system for less than thirty days and preventative services could have avoided these short stays.38 The legislature envisioned a collaborative effort among communities, tribes, courts, and public and private health providers beginning with regional listening sessions to allow stakeholders to raise their concerns.39 Discussions continued at meetings such as the Clark County Citizen’s Advisory Committee’s meeting in Carson City, Nevada,40 and the North Dakota Department of Human Services’ informational meeting in Bismarck, North Dakota.41

B. The FFPSA’s Specified Services and Target Population

The FFPSA provides mental health services, substance abuse treatment, and in-home parenting skill-based programs.42 States should determine a formal “prevention plan” for foster care candidates that allows the child or children to stay at home or live with a kin caregiver.43 Services are expected to last twelve months starting from the date that the child is identified in this “prevention plan,”44 which must “specif[y] the needed services for or on behalf of the child.”45 For pregnant teenagers, a plan is developed for when the child is born.46

Services must meet the following conditions: (1) general practice requirements, including a manual that specifies its components, outcome measurements that must suggest a clear benefit, and the treatment, which must have no risk of harm; and (2) the threshold of promising practice, supported practice, or well-supported practice.47 Half of state expenditures must go to the most stringent category (well-supported practices) to encourage evidence and evaluation.48 Further, the Department of Health and Human Services “may also prioritize programs or services that have been implemented using a trauma-informed approach.”49

Federal funding for state programs is dependent on implementing the specified services.50 As evident in Iowa, Texas, and Wyoming, some states have already delayed implementation due to a lack of service providers.51 Texas delayed implementation for two years because it does not have enough accredited providers or qualified residential treatment programs and requires additional guidance.52 Iowa asked for a one-year waiver to fully address the FFPSA’s requirements and services,53 and Wyoming delayed implementation until the summer of 2019.54

Additionally, the FFPSA “eliminates the time limit for family reunification services while the child is in foster care and permits [fifteen] months of services . . . when a child returns home from foster care.”55 The target population consists of both children and families at imminent risk of involvement with the child welfare system, including parents with substance abuse disorders.56 This also includes parents or relatives caring for children at risk, pregnant youth in foster care or teenage parents, and Indian Tribal families.57 States truly have discretion to determine the criteria for “imminent risk.”58 Social science data and recidivism trends can help identify a more inclusive target population.59

C. Limits on Funding for Congregate (Group) Care

One of the most significant changes enacted by the FFPSA is the limitation on funding for group care, as inspired by the results of studies showing the grave dangers of these environments.60 For example, “[a] 2015 Post and Courier Investigation found that children in South Carolina have been exposed to neglect, sexual abuse and violence inside group homes.”61 In a class action filed in Charleston, South Carolina, Michelle H. v. Haley, plaintiff Michelle H. had moved through twelve placements in eight years, including a restrictive group facility with solitary confinement as punishment for misbehavior.62

Federal reimbursement for group homes will now only be made if the child is in the following: “(1) a qualified residential treatment program; (2) a setting specializing in providing pre-natal, post-partum, or parenting supports for youth; or (3) supervised independent living for youth over 18.”63 In Colorado, the Policy Advisory Committee recommended that foster care homes previously hosting four children increase to six to reduce the numbers of children in congregate care, describing this as a “step-down to a traditional foster care home.”64 This limit on group care appears to frustrate the purpose of the FFPSA by simply creating larger foster care homes rather than preventing foster care. However, the process of prevention will take time. This immediate change reduces the number of children in Colorado group homes from twelve to six and places children in less-restrictive, family-like settings.65 With this change, the FFPSA decreases federal spending across fiscal years 2018 to 2027 by $641 million.66

III. The Limitations of the FFPSA: A Four-Part Critique

Although broad in scope, the FFPSA’s impact on the child welfare system will be limited due to restraints on funding and timing, population restrictions, a failure to address discrimination in access to services, and a lack of proper planning for the closure of group care facilities.

A. Federal Funding Is Too Limited in Amount and Duration

The FFPSA’s funding is equivalent to at least fifty percent of the cost of preventative services, as long as the services and programs meet certain evidence-based standards.67 Starting in October 2019, states will receive fifty percent until 2026, when the federal match for time-limited services will match the federal medical assistance percentage.68

In the 2018 fiscal year, “[a]ccording to the Georgia Budget and Policy Institute, the state Division of Family and Children Services budget poured . . . $1 million for child abuse and neglect prevention services.”69 If states like Georgia dedicated $1 million to preventative services, it appears that the FFPSA’s increase might be inadequate. Similarly, states like West Virginia have already moved towards supporting families through programs such as the Safe at Home program.70 In 2017, New York State specifically dedicated $6,711,485.00 to preventative services.71 Serving a total of 44,445 children in the five boroughs alone,72 this estimate allocates approximately only $151.00 to each child in New York City.

On a national level, between 2018 and 2022, the FFPSA will allow for $330 million73 to be dedicated to foster care prevention services and programs, evidence-based kinship navigator programs, supporting and retaining of foster families for children, and the extension of child and family services programs.74 In 2016, over 687,000 children spent time in foster care,75 which would only provide $480.00 per child/family. Although this number is triple the amount New York City dedicated last year, parents and families will not see the true financial benefits of the FFPSA until 2027, when $218 million will be dedicated to families.76

Furthermore, the FFPSA’s duration limitation will not ameliorate the effect of the opioid epidemic on child welfare.77 On July 22, 2016, President Obama signed the Comprehensive Addiction and Recovery Act into law to tackle the opioid epidemic, specifically by permitting grants of up to $200,000.00 per year to federally qualified health centers, opioid treatment programs, and practitioners providing overdose treatment.78 By September 30, 2016, parental drug abuse resulted in the removal of 92,107 children from their homes and their placement in foster care.79

The FFPSA ideally supports the Comprehensive Addiction and Recovery Act to assist babies affected by parental drug use and their families80 with $1.5 billion over a decade.81 Not only are parents dying from opioid addiction, but substance abuse correlates with more severe child neglect and maltreatment.82 According to the American Society for the Positive Care of Children, in 2016 one-third of children entered foster care due in part to parental drug abuse.83 In this sense, children have become the “hidden victims” of the opioid epidemic, either suffering from behavior and attention problems from exposure to opiates in the womb84 or being removed from parents struggling with substance abuse.85 To quantify this matter, an Investigative Series by Reuters in 2015 tallied more than 27,000 diagnosed drug-dependent newborns in 2013, nearly one baby every nineteen minutes.86 These children recovered from neonatal abstinence syndrome to be discharged from hospitals, but many of those sent home later suffered from poor parenting decisions made under the influence, sometimes causing death.87

Native American communities observed a steady increase in deaths involving opioids from 2000 to 2016 among individuals between twenty-five and sixty-four.88 These statistics highlight the intergenerational nature of opioid abuse from young adults to grandparents. The FFPSA must consider extending treatment beyond twelve months to effectively address this “at risk” community.89 Moreover, the high recidivist rate of opioid addiction, at seventy percent,90 renders the FFPSA’s time limitation of twelve months of services grossly inadequate.91

Geographic disparities highlight the different effect that the opioid epidemic has had on children in urban cities and children in rural communities.92 The Rust Belt and Appalachia have especially felt the impact of the opioid epidemic.93 Indiana’s foster care system exploded from 2,500 children in care in 2014, to having 5,500 kids in care in 2017, due to the opioid crisis.94 In response to the birth of more opioid-addicted babies and children found in the back of car seats with unresponsive, overdosed parents in the front seats, Indiana’s Department of Child Services resorted to allowing children to sleep in its offices due to a lack of homes.95 Children in Kansas have similarly been sleeping in agency offices.96 Georgia, Montana, and West Virginia have experienced skyrocketing numbers of children in foster care with drug abuse as the primary reason.97 Specifically in West Virginia, “[a]bout 85 percent [of children] are in the system because of their parents’ substance use disorder,”98 and “Massachusetts declared a public health emergency in 2014.”99 Yet, other data reveal that opioids do not discriminate, and the epidemic has impacted urban communities as well.100 In Chicago, black individuals make up thirty percent of the population and nearly half of all opioid-related deaths.101

Throughout the United States, the majority of child removals are due to allegations of neglect (sixty-one percent), followed by parental drug abuse (thirty-four percent).102 Drug-related removals increased from thirty-four percent in 2016 to thirty-six percent in 2017.103 This percentage represents more than 96,700 children removed for a parental drug abuse issue.104 However, drug abuse does not only affect removal but also reunification. In New York Family Court, marijuana use continues to serve as a hindrance to reunification.105 Parents can be drug tested in court as their cases continue, and a positive test delays the return of their children.106 Substance abuse needs to be addressed both in preventing removals and in reunification efforts.

B. In-Home Training Does Not Address Homelessness, Incarceration, and Domestic Violence

In a letter from First Focus and child welfare advocates to Dr. Naomi Goldstein with comments on the FFPSA, it was noted that for “families experiencing homelessness and housing insecurity, in-home services may not be feasible.”107 Additionally, in-home parenting services would not accommodate incarcerated parents or mothers experiencing intimate partner or domestic violence.108 Proposals for amending Section 471(a)(15) of the Social Security Act109 require AACWA and ASFA’s “reasonable efforts” standard to include “the provision of housing assistance, housing vouchers, placement in a shelter, or other housing services—including, but not limited to, assistance locating housing—necessary to obviate the need for removal or to return a child to the home of the child’s parent.”110 However, currently the FFPSA does not directly assist housing insecure parents, incarcerated parents, or families experiencing domestic violence.

C. The FFPSA’s Standard Services Do Not Combat Discrimination in Access to Preventative Services

The FFPSA’s specified services do not address the discrimination parents of color and LGBTQ parents face in access to health care,111 further discriminating against these vulnerable populations. Black women are more likely to die from pregnancy-related complications, stemming from bias in health care and a lack of medical attention towards this population.112 Further, geographical differences add another barrier to health care because of the lack of medical resources for women of color in rural areas.113

LGBTQ parents face similar discrimination in the health care arena.114 Shabab Ahmed Mirza and Caitlin Rooney note the story of same-sex parents in Michigan whose “infant was turned away from a pediatrician’s office because she had same-sex parents.”115 The Center for American Progress’s survey conducted in 2017 concluded that LGBTQ individuals experience discrimination in health care, and this discourages them from seeking care.116 Although the Affordable Care Act’s Section 1557117 prohibits health care providers and insurance companies from discriminating against individuals based on their sexual orientation, states lack their own protections and providers have argued infringement of their religious freedoms to undermine Section 1557.118 The FFPSA’s standard services do not combat the discrimination in access to medical care and preventative services without directing states to create diverse, tolerant, and culturally aware facilities for providing services in a nondiscriminatory manner.

D. A Reallocation of Resources to Meet Needs of the Most Affected Populations Has Not Been Addressed by the FFPSA

In providing for less residential childcare, the FFPSA does not address the employees who will be laid off.119 The FFPSA should provide for a reallocation of resources that supports families, and most importantly children, by relocating former employees to new states or through niche markets like daycare. In North Dakota, Home on the Range, a therapeutic ranch for children’s services, recently laid off seventeen workers due to the FFPSA.120 In small communities, these detrimental layoffs could be avoided by this reallocation. Simply ending group homes without effectively planning for a reallocation of workers disservices families.

IV. Solutions: How to Optimize Federal Funding Streams for Family Care

The FFPSA should optimize federal funding streams with more funding from lottery taxes.121 Further, funding should be allocated to prenatal maternal care to assist parents earlier than when their children are “at risk” of entering the foster care system. Additionally, the FFPSA should fund family treatment centers to assist housing insecure parents122 and educational opportunities for prekindergarten youth.123 Former group care workers can provide affordable daycare to parents undergoing treatment.

A. Cover Fifty Percent of the Start-up Costs for Preventive Services to Increase the Number of Service Providers and Training Opportunities

The FFPSA should incentivize states to elect to participate by not only covering fifty percent of the cost of evaluating programs but by covering fifty percent of the start-up costs for preventative services and then the remaining fifty percent once services have reported data on the use of services, outcomes, and numbers of children in foster care. This will enable all states to participate in the Title IV-E Prevention Services Program.124 In order to obtain additional funding, the government should increase funding by raising federal lottery taxes from twenty-five percent to thirty percent.125 With the next estimated Mega Millions jackpot at $208 million,126 a thirty percent tax withholding from the winner would set aside $62,400,000.00 for families in need. With estimates that about half of Americans play the lottery,127 this funding could be substantial and has the potential to increase in the upcoming years. If the federal government cannot afford fifty percent of the start-up costs for preventative services, states can also raise their lottery taxes and dedicate this income to family care.

States need additional funding for service providers and training opportunities.128 Among the Herald-Dispatch’s readers, Necia Thomson Freeman commented, “If we have less tha[n] 500 social workers for the entire state of WV, how can they manage a caseload of over 7,000 children?”129 She raises the possibility of fast-tracking social work degrees at Marshall University to meet the growing need for professional social workers.130 While fast-tracking degrees would provide immediate assistance, it might frustrate the purpose of the FFPSA to provide quality care to parents because of the rushed, less-comprehensive training. A reallocation of group facility social workers131 could more efficiently solve the problem of a lack of workers. The FFPSA should provide guidance on interstate cooperation for the relocation of workers to states experiencing the greatest increases in foster care youth.

B. Provide Federally Funded Prenatal and Postnatal Care to Help Parents Before “Imminent Risk of Removal”

The FFPSA misses out on the opportunity to assist parents before children are at “imminent risk of removal.”132 Therefore, parenting programs should begin with federally funded prenatal care, specifically programs that focus on effective parenting skills, nutrition, safety, and respect.133 Family care must begin with care for parents.

While discussions of safety aim to legitimize the child welfare system, the reality is that ensuring the safety of children is often unpredictable.134 Therefore, the FFPSA should look to other measures for predicting who is at risk of entering the child welfare system, including generational trauma and babies born addicted to substances.135 First, with respect to generational trauma, more comprehensive research needs to take place on grandparents and extended families to capture the extent of trauma that families are facing. The generational use of opioids presents a pattern of abuse that cannot simply be addressed by treating parents.136 Grandparents and relatives need assistance as well. Society must shift to treating drugs as the problem and not those who take them.137

Second, babies born addicted to substances should be treated to overcome withdrawal symptoms, and their mothers require the intervention138 that the FFPSA should fund. This postnatal care for mothers in particular is crucial.139 Although focusing on the baby becomes the primary objective of health care providers, mothers need to be given more care. The FFPSA should expand the Affordable Care Act’s Maternal, Infant, and Early Childhood Home Visiting program, which provided nearly one million nurse home visits to advise new parents; the results were “improved newborn health, children with better school readiness, and fewer child injuries.”140 “Home visits” should take place in the community and treatment centers to more fully accommodate families.141 Additionally, with high rates of recidivism for opioid abusers, the FFPSA’s twelve-month time limit should be extended to two years.142

C. Address Poverty, Housing Insecurity, Incarceration, and Domestic Violence to Prevent Unequal Access to Prevention Services

The FFPSA’s in-home parenting services will not assist parents who find themselves homeless, housing insecure, incarcerated, or suffering from domestic violence.143 Therefore, FFPSA’s “in-home” language must be changed to “community-based” or “in-patient.” States need to be directed to establish family-friendly, in-patient treatment centers within the community, similar to those established by the Opioid Crisis Response Act.144 Children’s Rights, Inc., noted the statistically better outcomes for in-patient substance-abuse treatment over outpatient treatment.145

Building family-friendly treatment centers would address a lack of safe housing among parents. These treatment facilities should not only have physicians prescribing methadone, Subutex, or Suboxone146 but also research for new methods of combating substance abuse. Medically assisted treatment methods might incorporate yoga, mindfulness-based therapy, art, and acupuncture to redefine our notion of treatment and move away from combating drug abuse with only more drugs.147 Mental health providers can incorporate dyadic therapy148 into treatment with the goal of keeping families together and fostering parent-child relationships.

For parents of color, the FFPSA needs to address the pervasive discrimination in medical treatment as evident by the numbers of deaths among pregnant, black women149 and stereotypes about pain150 and parenting.151 Parents of color are less likely to seek medical assistance because of the way doctors have treated them in the past.152 Monique Tello, MD, MPH, described her interaction with one patient who went to the emergency room for pain and was treated “like [she] was trying to play them, like [she] was just trying to get pain meds out of them.”153 Community outreach needs to provide the comfort and reassurance that parents need to take advantage of preventative services. Traveling providers should speak at community centers, churches, and hospitals154 throughout the country to raise awareness of the significant risks women of color face when pregnant. In addition, influential black women, such as Beyoncé Knowles-Carter and Serena Williams, who both experienced life-threatening pregnancies, have joined these efforts by speaking out about their experiences, thereby using their access to media to raise awareness.155

The prevalence of single-parent households also complicates the intended effects of the FFPSA.156 For families where both parents need medical services, treatment centers would combat this issue.157 For parents with disabilities, individualized services are most paramount.158 For pregnant teenagers, treatment centers must include schooling to avoid disruptions in education and career opportunities.159 Additionally, for immigrant parents or populations at risk of collateral consequences, diverse and culturally aware health care providers fluent in multiple languages must be available.160 Providers should have specific trainings on implicit biases within the medical profession and how to serve these vulnerable populations. The FFPSA should provide more guidance and funding on how to implement these cultural sensitivity trainings.

D. Involve Extended Families and Communities by Funding Relatives, Schools, and Niche Markets Like Daycare

Family care should not only include care for parents and children but also care and funding for extended family members. Currently, “Title IV-E funds may only be used for treatment of the parent if the child is kept out of foster care.”161 This hinders the potential for care by relatives, including aunts, uncles, and grandparents. Although some of the “non-safety provisions for relative caregivers” will be relaxed,162 relatives need more funding163 and more training.164 Currently, “family members are being treated as second-class citizens and aren’t being resourced fairly.”165 The FFSPA should provide relatives with parenting classes that incorporate mental health care, the behavioral challenges of children, nutrition, and discipline to better equip them for their roles as caretakers,166 as parents undergo treatment. Under the FFPSA, the Nebraska Department of Health and Human Services received a $233,000.00 federal grant to allow grandparents and relatives to provide placement for children in need through the Kinship Navigator Program.167 Nebraska’s Kinship Navigator Program highlights the necessary inclusion of both public and private partnerships in preventative care, through the involvement of schools, community-based or faith-based organizations, childcare programs, legal assistance, and health providers.168

With respect to education, New York State’s Universal Prekindergarten Program (UPK)169 and 3-K programs170 could be implemented on a national level. UPK coordinates learning opportunities for prekindergarten-aged children,171 while 3-K for All provides “free, full-day, high-quality education to three-year-old children in New York City.”172 The FFPSA should fund UPK and 3-K programs on a national scale to provide education for children from birth to age five, while parents seek treatment and skills training. For children in need of short-term care instead of full-day programs, the FFPSA’s funds should be directed towards child daycare. Former congregate childcare employees can continue working with children in this new setting. Daycare should be either free or affordable because affordable childcare mitigates economic deprivation and parental strain.173

V. Conclusion

In order to allow the FFPSA to better serve families and children, we must first avoid the rescue mentality, the view that we need to save “poor children from their evil parents.”174 Disadvantaged parents are not bad parents; they simply need federal funding. With parenting skills training and substance abuse treatment, the FFPSA aims to keep families together,175 representing a shift after forty years of efforts to fund foster care placement and adoption services.176 The FFPSA treats the child welfare crisis like the emergency that it is.177 Amy Rickman, state director for NECCO in West Virginia, said it best when she said, “We are still in a crisis” and “Family First does not start now.”178 The full impact of the FFPSA will not be observed until at least 2027.179

For the 437,465180 in foster care, we must remember that “[e]ach number represents a child’s life.”181 The FFPSA must provide states with the start-up costs for preventative services and additional reimbursement after one year of services and progress data.182 The federal government can raise lottery taxes183 to secure this additional funding. Furthermore, states must increase accessibility to preventative services with family-friendly childcare facilities for parents, including parents of color, disabled parents, pregnant teenagers, and immigrants.184

The FFPSA must help parents before “imminent risk of removal,” and programs should begin before birth with focuses on effective parenting skills, nutrition, and safety. These programs should continue after birth, and the Affordable Care Act’s Maternal, Infant, and Early Childhood Home Visiting program should be expanded.185 Additionally, social science data about the intergenerational effects of opioid abuse and trauma186 should be used to more fully develop the FFPSA’s target population.

Lastly, the FFPSA must involve extended families and communities.187 New York State’s UPK and 3-K for All programs can serve as a model for a national prekindergarten program from birth until age five.188 The underlying, complex issues of the child welfare system require these multifaceted solutions. Family advocates recognize that “[n]ow we have new tools to help strengthen more families at risk of being torn apart.”189 In order to help children, we must first help their families.


1. Dr. William C. Bell, president and CEO of Casey Family Programs, discussed the Family First Act’s family-centered policies and how communities can “mov[e] hope forward for children and families.” Casey Family Programs, Moving Hope Forward 7 (2018),

2. Bipartisan Budget Act of 2018, Pub. L. No. 115-123, 132 Stat 64; Family First Prevention Services Act (FFPSA), Nat’l Conf. of St. Leg. (May 15, 2018), [hereinafter FFPSA].

3. 42 U.S.C.A. §§ 621, 670 (West 2019).

4. Bipartisan Budget Act of 2018; FFPSA, supra note 2; Taylor Stuck, Providers Support Foster Care Changes, Herald-Dispatch (Oct. 8, 2018), (Search “Providers Support Foster Care Changes”).

5. Ellen Ciurczak, Hattiesburg Foster Care Shelter Closes Due to New Federal Law; Served 5,721 Kids in Its History, Hattiesburg Am. (Oct. 10, 2018),​-mississippi-childrens-home-closes-sept-28/1532886002/.

6. See U.S. Dep’t of Health & Hum. Serv. et al., The AFCARS Report 2 (Children’s Bureau ed., 2017),

7. The Des Moines Register estimated “442,995 youth lived in foster care as of Sept. 20, 2017.” Lee Rood, Iowa Relies More on Family Members to Foster Kids in Need of Safe Homes, Des Moines Reg. (Nov. 9, 2018, 5:44 PM),; U.S. Dep’t of Health & Hum. Servs. et al., supra note 6, at 1.

8. See U.S. Dep’t of Health & Hum. Servs. et al., supra note 6, at 1.

9. Pediatrician Henry Dwight Chapin studied hundreds of thousands of children in orphanages and infant asylums of the newly industrialized West, finding that infant mortality exceeded 50 percent. His explanation for these rates was not a lack of medical care but rather a deprivation of love and attention from an adult. John Harlow, Pediatricians Know Why Family Separation Is Child Abuse, CNN (July 10, 2018),

10. Toxic stress is the most dangerous stress response. It “can result from strong, frequent, or prolonged activation of the body’s stress response systems in the absence of the buffering protection of a supportive, adult relationship.” Toxic stress is characterized by “the postulated disruption of brain circuitry . . . during sensitive developmental periods.” Jack A. Shonkoff, The Lifelong Effects of Early Childhood Adversity and Toxic Stress, 129 Am. Acad. Pediatrics 232, 236 (2012).

11. See Stephanie Carnes, The Trauma of Family Separation Will Haunt Children for Decades, Huffington Post (June 22, 2018), (discussing the correlation of traumatic events during one’s childhood with “increased risk of suicide attempts, drug addiction, depression, chronic obstructive pulmonary disease, heart disease and liver disease”); see also Lewis R. First & Alex R. Kemper, The Effects of Toxic Stress and Adverse Childhood Experiences at Our Southern Border: Letting the Published Evidence Speak for Itself, Am. Acad. Pediatrics News & J. Gateway (June 20, 2018),

12. Mattie Quinn, Treating Childhood Trauma Becoming a Public Policy Priority, Governing (Oct. 24, 2018),

13. See generally Lauren Sausser, Report: Number of SC Children in State Custody Increased by 1,500 Since 2012, Post & Courier (Oct. 15, 2018), (search title) (discussing the neglect and abuse of children in congregate homes).

14. Daniel Heimpel, Inside Game: How Foster Care Was Changed Forever, Am. Prospect (Apr. 12, 2018), Additionally, “[f]oster kids are less likely to graduate from high school, less likely to be employed and live in stable housing than young adults and teens who are not in foster care.” Editorial Advisory Bd., Editorial, Kansas Children in Foster Care Are Our Responsibility, Topeka-Cap. J. (Nov. 20, 2018, 5:03 PM),

15. See Kathleen B. Simon, Note, Catalyzing the Separation of Black Families: A Critique of Foster Care Placements Without Prior Judicial Review, 51 Colum. J.L. & Soc. Probs. 347, 350 (2018) (recommending more stringent emergency removal laws to reduce the number of black children in foster care); Sherry Lachman, The Opioid Plague’s Youngest Victims: Children in Foster Care, N.Y. Times (Dec. 28, 2017),

16. See Joseph J. Doyle Jr., Child Protection and Child Outcomes: Measuring the Effects of Foster Care, Am. Econ. Rev. 1583, 1584 (2007) (discussing the trauma of removal and study results revealing that children on the margin of placement do better when they remain at home).

17. See Cheryl Bratt, Top-Down or from the Ground: A Practical Perspective on Reforming the Field of Children and the Law, 127 Yale L.J. F. 917, 933 (2018) (discussing the exponential increase of children in foster care due to the opioid crisis).

18. Social Security Act of 1935, 42 U.S.C. §§ 301–1397 (2012).

19. 42 U.S.C.A. §§ 612, 627, 628, 670–676, 1320b-2, 1320b-3 (West 2019).

20. Id. §§ 673b, 678, 679b.

21. See Elisa Kawam, Revisiting the Adoption Assistance and Child Welfare Act of 1980: Analysis, Critique, and Recommendations, 1 World J. Soc. Sci. Res. 23, 24–25 (2014) (highlighting the flaws in AACWA’s framework).

22. The Louisiana Incident of the 1960s denied welfare to children whose mothers gave birth out of wedlock. See id.

23. See JBS Int’l, Inc., Adoption and Safe Families Act (ASFA), Child & Fam. Servs. Rev. Info. Portal, (last visited Dec. 4, 2018).

24. 42 U.S.C.A. § 671; see also H. Elenore Wade, Note, Preserving the Families of Homeless and Housing-Insecure Parents, 86 Geo. Wash. L. Rev. 869, 899–901 (2018) (proposing that reasonable efforts include housing assistance for homeless and housing-insecure families).

25. 42 U.S.C.A. § 671.

26. Commentators blame AACWA’s “reasonable efforts” standard for a number of high-profile child abuse cases. In turn, ASFA required “reasonable efforts” to focus on the health and safety of children. This shift moved away from family services. See Jeanne M. Kaiser, Finding a Reasonable Way to Enforce the Reasonable Efforts Requirement in Child Protection Cases, 7 Rutgers J.L. & Pub. Pol’y 100, 108–09 (2009) (discussing the scope of the reasonable efforts standard for individual families).

27. Wade, supra note 24, at 887.

28. Kaiser, supra note 26, at 108.

29. JBS Int’l, Inc., supra note 23.

30. Id.

31. Id.

32. See Wade, supra note 24, at 890.

33. See Hatch Highlights Finance Committee Legislation That Helps Kids and Families, U.S. S. Comm. on Fin. (Oct. 23, 2018),

34. Heimpel, supra note 14.

35. Id.

36. Id.

37. Testimony of Jerry Milner on Family First Prevention Services Act, Office of Legis. Affairs & Budget (July 24, 2018), [hereinafter Jerry Milner Testimony].

38. Id.

39. See ODJFS Hosting Regional Child Welfare Listening Sessions, Ohio Dep’t Job & Fam. Servs. (Oct. 4, 2018, 6:22 AM),; See also Jerry Milner Testimony, supra note 37.

40. See generally Colo. Rev. Stat. § 26-5-105.8 (2018) (discussing the child welfare services task force to continue analyzing and discussing the FFPSA); Public Notice: A Meeting of the Clark County Citizen’s Advisory Committee, Dep’t Fam. Servs. Clark Cty. (Oct. 18, 2018), (follow “View Agenda” for October 18, 2018).

41. See Children and Family Services, N.D. Dep’t Hum. Servs., (last visited Dec. 4, 2018).

42. Family First Prevention Services Act Section by Section, First Focus Campaign for Child. (Mar. 2018), [hereinafter FFPSA Section by Section].

43. Family First Prevention Services Act Bill Summary, First Focus Campaign for Child. (Mar. 2018),

44. FFPSA Section by Section, supra note 42.

45. The Family First Prevention Services Act Historic Reforms to the Child Welfare System Will Improve Outcomes for Vulnerable Children, Child. Def. Fund, (last visited Dec. 4, 2018).

46. FFPSA Section by Section, supra note 42.

47. FFPSA, supra note 2.

48. John Kelly, CliffsNotes on Family First Act, Part One: Services to Prevent Foster Care, Chron. Soc. Change (Feb. 13, 2018),

49. Decisions Related to the Development of a Clearinghouse of Evidence-Based Practices in Accordance with the Family First Prevention Services Act of 2018, Admin. for Child. & Fams., Dep’t Health & Hum. Servs. (June 22, 2018),

50. Overview of Provisions in the Family First Prevention Services Act, Alliance for Strong Fams. & Communities, (last visited Dec. 4, 2018).

51. See Ike Fredregill, Fostering Children During the Holidays Can Be Both Challenge, Reward, Laramie Boomerang (Nov. 27, 2018),; see also Rood, supra note 7; see generally Texas Delays Implementing Certain Provisions of Family First Prevention Services Act, Tex. Dep’t Fam. & Prot. Servs. (Nov. 14, 2018, 2:49 PM), (discussing a two-year delay in implementation).

52. See Texas Delays Implementing Certain Provisions of Family First Prevention Services Act, supra note 51.

53. Rood, supra note 7.

54. Fredregill, supra note 51.

55. FFPSA Section by Section, supra note 42.

56. Id.

57. Kelly, supra note 48.

58. Madeline McClure, As the Foster Care Crisis Continues, Texas Should Spend Money on Prevention, Dall. News (Nov. 18, 2018),

59. See infra Part IV.B.

60. In a Los Angeles study titled “Juvenile Delinquency in Child Welfare: Investigating Group Home Effects,” the authors matched 4,113 youth in group homes with 4,113 similar youth in foster home placements. Twenty percent of those in group homes had one arrest, compared to eight percent of those in foster homes. The authors noted the possibilities of “peer contagion” and an increased contact with police enforcement in group home settings. See Craig Chamberlain, Group Homes Appear to Double Delinquency Risk for Foster Kids, Study Says, Ill. News Bureau (Feb. 28, 2008),; see also Sausser, supra note 13 (discussing a 2015 Post and Courier study on child abuse in South Carolina).

61. Sausser, supra note 13.

62. Press Release, Child.’s Rights, Inc., Children Sue South Carolina to End Longstanding Dangers of Foster Care (Jan. 12, 2015),

63. FFPSA Section by Section, supra note 42.

64. See 12 Colo. Code Regs. § 2509-8 (2019) (proposed rulemaking on implementing the FFPSA).

65. See id.

66. Emilie Stoltzfus, Family First Prevention Services Act (FFPSA), CRS Insight (Feb. 9, 2018); see Direct Spending and Revenue Effects of Division E of Senate Amendment 1930, the Bipartisan Budget Act of 2018, Cong. Budget Office (Feb. 8, 2018), [hereinafter Division E Direct Spending].

67. Eligible services must be outlined in the state’s plan, present clear benefit, and meet a threshold standard. FFPSA Section by Section, supra note 42.

68. Id.

69. Joshua Silavent, Federal Reimbursement for Preventive Services Aims to Reduce Foster Care Numbers, The Times (Gainesville, Ga.) (Oct. 5, 2018),

70. Safe at Home provides comprehensive services to children in congregate care between twelve and seventeen years old to assist with reunification, while involving schools, courts, and behavioral health care providers. Stuck, supra note 4.

71. Dep’t of Health & Hum. Servs., Attachment D, Promoting Safe and Stable Families Program: 2017 Planned Use of Funding by State and Service Category, (last visited Dec. 4, 2018); Dep’t of Health & Hum. Servs., Attachment C, Stephanie Tubbs Jones Child Welfare Services: 2017 Planned Use of Funding by State and Service Category, (last visited Dec. 4, 2018).

72. Children Served by Child Welfare Prevention Services by Home Borough/CD, CY 2017, N.Y.C. Admin. for Child. Servs. (Jan. 16, 2018),

73. Division E Direct Spending, supra note 66.

74. Id.

75. Foster Care, Child.’s Rights, Inc., (last visited Dec. 4, 2018).

76. Division E Direct Spending, supra note 66.

77. Opioid Fact Sheet, Child.’s Rights, Inc., (last visited Dec. 4, 2018).

78. Summary of the Comprehensive Addiction and Recovery Act, Am. Soc’y of Addiction Med., (last visited Dec. 4, 2018).

79. U.S. Dep’t of Health & Hum. Servs. et al., supra note 6.

80. See Duff Wilson & John Shiffman, Newborns Die After Being Sent Home with Mothers Struggling to Kick Drug Addictions, Helpless & Hooked: A Reuters Investigation (Dec. 7, 2015),

81. Opioid Fact Sheet, supra note 77.

82. See Children in the Cross Hairs: The Opioid Epidemic and Foster Care, Child.’s Rights, Inc. (June 19, 2018),​-opioid-epidemic-and-foster-care/.

83. Child Maltreatment Statistics in the U.S., Am. Soc’y for Positive Care of Child., (last visited Dec. 4, 2018).

84. According to a National Institutes of Health 2015 study, “children exposed to opiates during pregnancy suffer from behavior and attention problems.” Id.

85. See Children in the Cross Hairs, supra note 82.

86. Wilson & Shiffman, supra note 80.

87. Id.

88. See The Opioid Crisis Impact on Native American Communities, TEC News, (last visited on Dec. 4, 2018).

89. See generally Kelly, supra note 48 (discussing the at-risk populations).

90. Scott Simon, The Foster Care System Is Flooded with Children of the Opioid Epidemic, NPR (Dec. 23, 2017, 8:11AM),​-foster-care-system-is-flooded-with-children-of-the-opioid-epidemic.

91. See Comments: SPARC on the Family First Prevention Services Act, First Focus St. Pol’y Advoc. & Reform Ctr. (Jul. 22, 2018),

92. See Opioid Fact Sheet, supra note 77.

93. Id.

94. Simon, supra note 90.

95. Id.

96. Opioid Fact Sheet, supra note 77.

97. Lachman, supra note 15.

98. Family First Act Will Help Children in Foster Care, Herald-Dispatch (Oct. 9, 2018), (search “Family First act will help children in foster care”).

99. Opioid Fact Sheet, supra note 77.

100. Eugene Scott, Some of Those Hit Hardest by the Opioid Epidemic Are Not Rural, White Americans, Wash. Post (Mar. 2, 2018),

101. Id.

102. U.S. Dep’t of Health & Hum. Servs. et al., supra note 6.

103. Press Release, Admin. for Child. & Fams., U.S. Dep’t of Health & Hum. Servs., Substance Abuse Impacts Foster Care, Adoption New “AFCARS” Data Released (Nov. 8, 2018),​-afcars-data-released.

104. Id.

105. See Larissa MacFarguhar, The Separation, New Yorker (Aug. 14, 2017),

106. See id.

107. Comments: SPARC on the Family First Prevention Services Act, supra note 91.

108. Id.

109. 42 U.S.C. § 671(a)(15)(B) (2018).

110. Wade, supra note 24, at 901.

111. See Linda Villarosa, Why America’s Black Mothers and Babies Are in a Life-or-Death Crisis, N.Y. Times (Apr. 11, 2018),; see also Shabab A. Mirza & Caitlin Rooney, Discrimination Prevents LGBTQ People from Accessing Health Care, Ctr. for Am. Progress (Jan. 18, 2018, 9:00 AM),​/01/18/445130/discrimination-prevents-lgbtq-people-accessing-health-care/.

112. Villarosa, supra note 111.

113. Am. Coll. of Obstetrics & Gynecologists, Health Disparities in Rural Women 1 (Comm. on Health Care for Underserved Women ed., 2014); see Mirza & Rooney, supra note 111.

114. Mirza & Rooney, supra note 111.

115. Id.

116. Id.

117. See 42 U.S.C.A. § 18116 (West 2019).

118. See Mirza & Rooney, supra note 111.

119. See Iain Woessner, Western ND Therapeutic Children’s Ranch Lays Off 17 Employees, Bismarck Trib. (Sept. 16, 2018), (Search title) (discussing layoffs in small communities due to the FFPSA).

120. See id.

121. See generally Liberty Vittert, Current Mega Millions Jackpot Is $1.6 Billion, But Where Do Lottery Profits Really Go?, The Conversation (Oct. 23, 2018, 11:15 PM),; see also Tallying up the Taxes of Powerball Winnings, Intuit TurboTax, (last visited Dec. 4, 2018).

122. See Wade, supra note 24, at 901.

123. See N.Y. St. Educ. Dep’t, NYS Universal Prekindergarten Program (UPK), Early Learning (May 8, 2018),

124. See Jerry Milner Testimony, supra note 37.

125. See Jackie Wattles, You Won the $1.5 Billion Powerball! Here’s Your Tax Bill, CNN Money (Jan. 12, 2016, 12:39 PM),

126. See Mega Millions, (last visited Dec. 4, 2018) (displaying an estimate of $208 million for the nighttime drawing on December 4, 2018).

127. See Vittert, supra note 121.

128. Lindsey Burton, chief judge of the Northeastern Judicial Circuit Juvenile Court, commented that more service providers are needed. Silavent, supra note 69. Iowa, Texas, and Wyoming lack the necessary service providers as well. See supra Part II. See Fredregill, supra note 51; see also Rood, supra note 7; see generally Texas Delays Implementing Certain Provisions of Family First Prevention Services Act, supra note 51.

129. Viewpoints from Readers: Days Spent at Bowling Center Recalled, Herald-Dispatch (Oct. 13, 2018),

130. Id. Instead of fast-tracking degrees in Kansas, the U.S. Department of Health and Human Services dedicated an “$8 million, five-year grant to the KU School of Social Welfare.” See Editorial Advisory Bd., supra note 14.

131. See infra Part IV.D.

132. See generally FFPSA Section by Section, supra note 42.

133. By respect, this refers to respect for the child. See Bratt, supra note 17, at 918–19 (discussing a culture change to respect children more and consider them valuable members of society).

134. The unpredictability of safety was raised in a question-and-answer session after Children’s Rights, Inc.’s panel discussion on the opioid epidemic. See Children in the Cross Hairs, supra note 82.

135. See supra Part III.A.

136. On June 19, 2018, Children’s Rights, Inc., hosted a discussion about the opioid epidemic’s impact on foster care. The panelists included experts and advocates for change. They discussed the already-overburdened foster care system, the correlation between the increase in overdose death rates with the increase in children in foster care, the multigenerational extent of the opioid epidemic, and the lack of effective treatment calling for research about alternatives. See Children in the Cross Hairs, supra note 82.

137. See id.

138. See generally Wilson & Shiffman, supra note 80.

139. Id.

140. Ted McCann & Nick Hart, Commentary, “Evidence” Is the Word of the Year, Neither Party Owns It, The Monitor (Oct. 11, 2018),

141. See supra Part III.C.

142. See Simon, supra note 90.

143. See generally Wade, supra note 24, at 901.

144. Orrin Hatch, Hatch Touts Key Finance Committee Proposals in Landmark Opioid Legislation, Orrin Hatch U.S. Sen. for Utah (Sept. 17, 2018),

145. Children’s Rights, Inc.’s panel discussion highlighted the difference in outcomes between in-patient opioid treatment (one-half of individuals were drug free in a year) versus outpatient treatment (only twenty-five to thirty-five percent). See Children in the Cross Hairs, supra note 82.

146. See How to Diagnose Opioid Addiction, Windward Way Recovery, (last visited Dec. 4, 2018).

147. See generally Using Yoga in Recovery, Am. Addiction Ctrs. (Oct. 16, 2018),; see also Children in the Cross Hairs, supra note 82.

148. See Dyadic Developmental Psychotherapy (DDP), GoodTherapy (Mar. 8, 2018),

149. Villarosa, supra note 111.

150. See Sandhya Somashekhar, The Disturbing Reason Some African American Patients May Be Undertreated for Pain, Wash. Post (Apr. 4, 2016), (search title); see also Monique Tello, Racism and Discrimination in Health Care: Providers and Patients, Harv. Health Pub. (Jan. 16, 2017),

151. Kim Brooks, Motherhood in the Age of Fear, N.Y. Times (July 27, 2018), “Child abuse crosses all socioeconomic and educational levels, religions, ethnic, and cultural groups.” However, we continue to see mainly families of color in family court, criminal court, housing court, and immigration court. Child Maltreatment Statistics in the U.S., supra note 83.

152. See Tello, supra note 150.

153. Id.

154. This Doula Is Fighting Back Against the High Infant Mortality Rate in Her Community, ShoppeBlack (Sept. 29, 2018),

155. Allyson Chiu, Beyoncé, Serena Williams Open Up About Potentially Fatal Childbirths, a Problem Especially for Black Mothers, Wash. Post (Aug. 7, 2018),

156. Single Parents Day, U.S. Census Bureau (Mar. 21, 2018),

157. See generally id.

158. See generally Rachel N. Shute, Disabling the Presumption of Unfitness: Utilizing the Americans with Disabilities Act to Equally Protect Massachusetts Parents Facing Termination of Their Parental Rights, 50 Suffolk U. L. Rev. 493, 494 (2017) (discussing the stigma surrounding mental illness and parenting in the context of custody).

159. See generally Hetchinger Report, Fewer Teen Moms But Still a Dropout Puzzle for Schools, U.S. News & World Rep. (Jan. 22, 2018),

160. See Child Welfare Info. Gateway, Helping Immigrant Families Overcome Challenges, U.S. Dep’t of Health & Hum. Servs., (last visited Dec. 5, 2018).

161. Angie Schwartz & Sean Hughes, On Child Welfare, an Insufficient Federal Response to the Opioid Epidemic, Chron. of Soc. Change (Apr. 24, 2018),

162. John Kelly, One More Week to Weigh in on National Foster Home Licensing Standards, Chron. of Soc. Change (Sept. 25, 2018),

163. See Rood, supra note 7 (discussing the limited funding provided to relatives compared to other foster parents).

164. Foster parents are often ill-equipped to handle mental health or behavior challenges without advanced training. This Note extends this argument to the realm of relatives taking on the temporary roles of caretakers. See Chuck Grassley, Grassley Op-Ed: This National Adoption Month, Congress Has More Work to Do, Chuck Grassley: U.S. Sen. for Iowa (Nov. 14, 2018),

165. Rood, supra note 7.

166. See Grassley, supra note 164.

167. News Release, Neb. Dep’t of Health & Hum. Servs., DHHS Receives Grant to Develop Kinship Navigator Program (Oct. 1, 2018), (search title).

168. Id.

169. N.Y. St. Educ. Dep’t, supra note 123.

170. 3-K, N.Y. City Dep’t of Educ., (lasted visited Dec. 2, 2018).

171. N.Y. St. Educ. Dep’t, supra note 123.

172. 3-K, supra note 170.

173. Susan Voorhees, Children Will Determine Where This Vote Goes, Topeka-Cap. J. (Oct. 2, 2018),​-where-this-vote-goes.

174. Evan Williams, Child Welfare Strained, Fort Meyers Fla. Wkly. (Sept. 19, 2018),

175. See generally Sandy Santana, Killing Drug Dealers Won’t Protect Children from the Opioid Crisis. They Need Safe Homes., USA Today (Apr. 7, 2018, 8:00 AM), (the opioid crisis requires a response focused on treatment and prevention to ultimately keep families together and protect children).

176. Daniel Heimpel discusses the decades of “perverse incentive to tear families apart,” referring to child welfare legislation like AACWA and ASFA. See Heimpel, supra note 14.

177. Stuck, supra note 4.

178. Id.

179. See Division E Direct Spending, supra note 66.

180. U.S. Dep’t of Health & Hum. Servs. et al., supra note 6.

181. Child Maltreatment Statistics in the U.S., supra note 83.

182. See supra Part IV.A.

183. See generally Wattles, supra note 125.

184. See supra Part IV.C.

185. McCann & Hart, supra note 140.

186. See Children in the Cross Hairs, supra note 82.

187. See generally Stuck, supra note 4.

188. N.Y. St. Educ. Dep’t, supra note 123.

189. Family First Act Will Help Children in Foster Care, supra note 98.

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Caitlyn Garcia

Caitlyn Garcia is a 2020 J.D. candidate at Brooklyn Law School. This Article won second place in the 2019 Howard C. Schwab Memorial Essay Contest.