The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
Adoption is meant to be permanent. The reality is adoptions sometimes don’t work out. This three-part series looks at broken adoptions. The first article (Sept. 2013) looked at a cause of broken adoptions – the death or infirmity of an older adoptive caregiver. The second and third articles explore creative approaches to curbing broken adoptions – reinstating parental rights after an adoption is finalized (Nov. 2013), and reinvesting adoption bonuses to fund postadoption and mental health services after an adoption is finalized (this month).
In child welfare, changes in policy goals and objectives to speed permanency for children in foster care have increased adoptions. Providing adoption bonuses to states for completing adoptions is one trend resulting from this policy shift.
While no federal standards govern data collection on broken adoptions, attorneys for children who practice in family court frequently see children who were previously adopted return to family court or to the foster care system in abuse/neglect, custody/guardianship, voluntary placements, persons in need of supervision (PINS), or delinquency cases.
Related factors associated with broken adoptions include: age of the child or adoptive parent; behavioral and emotional issues of the child; prior placement history; sexual abuse history; attachments to siblings; attachment to the birth parent; prenatal drug and alcohol exposure; and lack of services and resources to address these issues. They may also include organizational and institutional failures in the child welfare, mental health, education, health care, and legal communities.
Broken adoptions are a significant and unspoken issue, not only for the children whose lives are disrupted, but for the system as a whole. Identifying the characteristics of these cases is key to determining how to avoid broken adoptions. The Children’s Law Center New York (CLCNY) conducted a six-month case study on broken adoptions and the children who return to family court in guardianship cases. The results were startling.1 The greater question became, why are so many children returning? One possible reason is financial incentives.
Policy Shift: Adoption Bonuses
The Adoption and Safe Families Act (ASFA), passed in 1997, required that children be moved swiftly toward permanency, including termination of parental rights (TPR), and created new economic incentives for states to increase adoptions.2 This legislation was substantially based on the Adoption 2002 report by the Department of Health and Human Services in response to President Clinton’s executive memorandum from December 1996.3 This memorandum mandated increased adoptions and foster care goals to double the number of children adopted or permanently placed by 2002.4 As an incentive, the legislative and administrative changes included use of adoption bonuses: $4,000 for every child adopted from foster care, plus an additional $2,000 for every special needs child adopted over the Title IV-E baseline.5
In 2008, President Bush signed the Fostering Connections to Success and Increasing Adoptions Act, which doubled incentive payments for special needs adoptions to $4,000 and older child adoptions to $8,000.6 In October 2010, “38 states and Puerto Rico were rewarded” $39 million dollars for reaching the “adoption incentives set by the Department of Health and Human Services.”7 “Texas led the group, receiving $7,468,475, followed by Florida with $5,718,271, then Michigan with $3,511,033.”8
The House Ways and Means Subcommittee on Human Resources recently held a hearing on adoptions from foster care. “While tens of thousands of children are adopted from foster care each year, twice as many foster children are still waiting for a permanent home,” said subcommittee chairman Dave Reichert (R-Wash.). “Past federal efforts have increased support for adoptions and have helped states reduce the number of children in foster care each year. As we review the Adoption Incentives program…we need to make sure these measures are still working well so we can ensure all children have a permanent home as quickly as possible.” Only one witness suggested adoption incentives should be reinvested in different ways rather than through adoption bonuses to states.9 The other witnesses praised adoption bonuses as solving the problem of children lingering in foster care.
Rethinking Adoption Bonuses
Do adoption bonuses result in negative outcomes for children? Thinking of adoption in economic terms is uncomfortable and rarely discussed. However, the reality is that adoption bonuses place value on adoption for the agency above all other forms of permanency, even when adoption may not be the best option for some families. As a result, some contend that agencies should receive bonuses for all successful outcomes, including return to a parent, to balance the perception that adoption is the best outcome for children in foster care.10
In addition, by rewarding states for increasing adoption numbers, rather than better outcomes, inappropriate or poor placement decisions may result. As a result, caseworkers may ignore signs of problems in an adoptive placement and may overstate the strengths of the adoptive family. They may also overstate the child’s attachment to the preadoptive parent without analyzing if the child is properly attached and the foster parent is similarly connected, attuned to, and responsive to the child’s needs.
An interesting dichotomy of the Fostering Connections Act was that it also authorized grants to “[S]tate, local or [T]ribal child welfare agencies and private nonprofit organizations . . . for the purpose of helping children who are in, or at-risk of entering foster care, to reconnect with family members” through: kinship navigator program[s]; efforts to find biological family and reestablish relationships; family group decision-making meetings; and residential family treatment programs.”11
This recognized that ASFA’s emphasis on TPR, even before an adopting family had been found, may have enlarged the group of children with no parental ties who would not be adopted. These children effectively became “legal orphans” who grew up in foster care. For example, in 2008 there were 79,000 instances of a TPR in the nation, but only about 55,000 adoptions from foster care.12 While the children adopted would have been freed between 2002 and 2010, the difference in the number of children freed versus adopted ranged between 11,000 and 29,000.13
Logically, many children remained in foster care as “legal orphans.” Illogically, many were freed without first being placed in preadoptive homes, or were freed even though they said they would not consent to the adoption. This occurred in one CLCNY case involving 15–year-old TJ and 17-year-old BJ. Although the two youth had a strong relationship with their mother, who had been deported and was living in Jamaica, and they opposed adoption, the agency pursued TPR because the caseworker believed they should be freed “in case they change their minds.”14
Similarly, children may be freed even though the agency knows it will not clear a foster parent for adoption. In another case, T.W. was freed even though the agency said it would not support an adoption by his long-term kinship foster parent because of past shoplifting arrests. The agency planned on moving him to a nonkinship foster parent in the hope that he would be adopted.
Reinvesting Adoption Bonuses
How should adoption bonus funds be restructured and reinvested? As discussed above, agencies should receive bonuses for all successful outcomes, including return to a parent. This would balance the perception that adoption is the best outcome for children in foster care. A tested, yet underfunded, solution to achieve long-term permanency through adoptions is to provide postadoption services to adoptive families. More funding is needed for postadoption services.
Mental health services
Mental health disorders are common among children in foster care.15 One New York study estimated “that 29%–80% of children in foster care have a mental health problem serious enough to warrant treatment, yet most remain undiagnosed and untreated.”16 Moreover, even children in foster care who have a mental health diagnosis do not receive adequate or appropriate mental health services.17 Postadoption, the picture is bleaker when it comes to providing adequate and consistent mental health treatment.18
In one study, more than three quarters of adoptive families (77.3 percent) said that they needed one or more post-adoption clinical services: individual or family counseling, child guidance and mental health services, help with issues regarding a child’s prenatal exposure to drugs or alcohol, and “someone to help with crisis.”… When asked if they actually received services, there were marked discrepancies between the percentage of families who needed services and the percentage who actually received them. Almost 57 percent of the families, for example, said that they needed child guidance and mental health services, but only 26 reported actually receiving these services.19
In the post-ASFA years, “[a]s states have increased the numbers of adoptions with legislative mandates and fiscal incentives; this push for more timely permanence for children in foster care has not been accompanied by parallel mandates or incentives for states to support families once the adoption is legalized.”20 Families who access mental health treatment postadoption are generally restricted to one of many “Medicaid Mills” that process as many patients as possible.21 Assuming they are given a block of time, they frequently face practitioners who do not understand the dynamics of adoption or can offer successful treatment and interventions.22
Although research has focused on the need for quality postadoption services,23 even years after the adoption finalization, programs in New York City and across the country have little funding and are not readily accessible. This is especially true for families who may already have difficulty accessing services because of their prior dependence on agencies. At the time of the adoption, the CLCNY results showed postadoption services were only in place in a few cases. Services must be strengthened but efforts to do so have not succeeded.
In 2011, New York’s governor vetoed a legislative amendment that would have required local social services districts to compile and maintain updated resource directories of postadoption services and provide these to family courts and adoptive families at or before finalizing adoptions.24 Later, a number of one-year Requests for Proposals were funded in New York City for postadoption services, however, future funding is bleak.
The CLCNY case study shows adoption bonuses increase adoption rates. It is critical to focus on quality mental health treatment and services that support adoptive families after the adoption to maintain stable homes for the children. These supports are especially needed for families adopting older and special needs children. Reinvesting adoption bonuses to fund such efforts is one solution to make this support a reality.
Dawn J. Post, JD, is Co-Borough Director at the Children’s Law Center in Brooklyn, NY.
1. For full results of the case study, see Dawn J. Post and Brian Zimmerman. “The Revolving Doors of Family Court: Confronting Broken Adoptions." Capital University Law Review, spring 2012.
2. A Carrot among the Sticks: The Adoption Incentive Bonus, Cornerstone Consulting Group, Inc., 1, 2001. [The Adoption Incentive Bonus].
5. Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115, 2123 (codified in scattered sections of Chapter 42 of the United States Code).
6. Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. No. 110-351, 122 Stat. 3949, 3973–74 (codified in scattered sections of Chapter 42 of the United States Code); 42 U.S.C. § 673b (Supp. 2011).
7. Brooke Dunbar. “Health & Human Services Awards $39 Million to States for Reaching Adoption Goals.” Examiner.com (Sept. 19, 2010). <www.examiner.com/parenting-politics-in-national/health-human-services-awards-39-million-to-states-forreaching-adoption-goals>
9. Pat O’Brien. “There Is No Safety or Well-Being Without Permanent Parents At Exit End of the System.” You Gotta Believe, Testimony before Human Resources Subcommittee - Committee on Ways and Means Hearing on Adoption Incentives - Wednesday February 27th, 2013.
10. The Adoption Incentive Bonus, 6.
11. U.S. Dep’t of Health & Human Servs. Admin. For Children & Families. Family Connection Grants, 2011.
12. U.S. Dep’t of Health & Human Servs. Admin. For Children & Families. Trends in Foster Care and Adoption, FY 2002–2010, 2011.
14. Following extensive negotiation with the agency attorney over the next several months, TPR was not pursued.
15. See M. Schneiderman et al. “Mental Health Services for Children in Out-of-Home Care.” Child Welfare 77, 1998, 29, 29–32.
16. Citizens’ Comm. For Children of N.Y. Inc. Before It’s Too Late: Ending the Crisis in Children’s Mental Health, 1999, 488.
18. See generally North American Council on Adoptable Children.“Post-Adoption Services: Meeting the Mental Health Needs of Children Adopted from Foster Care,” July 2007, 3–5, 8.
19. Ibid., 1, 3.
20. Casey Family Servs. Casey Center for Effective Child Welfare Practice. Promising Practices in Adoption – Competent Mental Health Services, 2003, 5, 16.
21. Grand, Michael P. “Adoption through a Retrospective Lens.” In The Post Adoption Experience: Adoptive Families’ Service Needs and Service Outcomes, 2006, 45, 55, edited by Martha Morrison Dore; Lenerz, Kathleen et al. “Postadoption Services: A Study of Program Participants, Services, and Outcomes.” In The Post Adoption Experience: Adoptive Families’ Service Needs and Service Outcomes, 2006, 95, 109, edited by Martha Morrison Dore.
23. Susan Livingston Smith. “The Nature of Effective Adoption Preservation Services: A Qualitative Study.” In The Postadoption Experience: Adoptive Families’ Service Needs and Service Outcomes, 2006, 159, 181, 186–87, 193–94, edited by Martha Morrison Dore.
24. Assembly Bill No. S00247A (N.Y. 2011) (vetoed Aug. 17, 2011).