CWLA Testimony for the Hearing on the Implementation of the Adoption and Safe Families Act
CWLA Testimony for the Hearing on the Implementation of the Adoption and Safe Families Act
By: Child Welfare League of America
Date: April 8, 2003
Source: Child Welfare League of America. "The Adoption and Safe Families Act of 1997." April 8, 2003. <http://www.cwla.org/advocacy/asfatestimony-implementation.htm> (accessed May 17, 2006).
About the Author: The Child Welfare League of America (CWLA) has been in existence since 1920. Its overar-ching goal is to put the welfare, safety, and best interests of children at the forefront of the American public consciousness. The CWLA is particularly focused on eradicating both the actuality and the underlying causes of child abuse and neglect, child poverty, and lack of adequate shelter, nutrition, and health care for children. Its model is one in which individual, neighborhood, local community, provider agency, local, state, and federal government are all engaged in concert for the promotion of the best possible circumstances for the nation's children.
The initial Adoption and Safe Families Act (ASFA) was made a part of federal law on November 19, 1997. The initial purpose of the act was to facilitate a revamping of the overburdened and fragmented foster care system in the United States. The central problem of the foster care system was the long periods of time spent in the system by children who did not have adequate permanency plans in place, involving long-term goals and objectives regarding either return to family or origin, permanent placement with relatives, or termination of parental rights and clearance for adoption. Often children were in the foster care system for many years as a result of what is called foster care drift, in which children are moved from placement to placement without future plans. To address the problem of foster care drift, the ASFA placed a limit on the length of time that a child could be in foster care (out-of-home) placements before parental rights are summarily terminated. That limit is fifteen of twenty-two months (also called the 15/22 provision), meaning that the parents of children who have been in foster care placements for fifteen of the prior twenty-two months are subject to mandatory termination of their parental rights. The ASFA provides for three circumstances in which this provision is not carried out: when the child is placed with relatives (called kinship placement); when the state can show that the termination of parental rights at that time would not be in the best interests of the child; or if the state has failed to make proper and satisfactory efforts (the legal phrase is "reasonable efforts at reunification") to reunite the family by providing necessary supports and services to facilitate safe and appropriate return of the child to the family of origin.
The concept of permanency planning for children in foster care came from a series of books written by Joseph Goldstein, Anna Freud, Joseph Solnit, and Dorothy Burlingham. The first and most influential book was entitled Beyond the Best Interests of the Child. The authors expressed their strongly held beliefs that the child welfare system must place the needs of the child above all other legal considerations, and that permanent and stable placement best facilitates healthy intrapsychic, cognitive, and emotional development. They coined the term psychological parent, reflecting their hypothesis that children form early and strong bonds with their most regular, stable, and dependable caregivers. That being the case, frequent movement to new placements would be extremely damaging to the internal well-being of the child. Beyond the Best Interests of the Child also stated that a central rule for facilitating placements most likely to have positive long-term outcomes is to honor the child's need for continuity of already established relationships, such as those with siblings and other relatives (including, when possible, parents).
The Child Welfare League of America welcomes this opportunity to submit testimony on behalf of more than 1,100 public and private nonprofit child-serving agencies nationwide on the implementation of the Adoption and Safe Families Act(ASFA) (P.L. 105–89) and the use of adoption incentive payments. This hearing represents an important opportunity to review the impact of the law and to take a look at what still needs to be done to ensure that all children in this country grow up in safe, nurturing families.
Positive Outcomes and Developments Since ASFA
The primary goal of ASFA was to ensure safety and expedite permanency for children in the child welfare system. This goal has been achieved in part. Although the entries in care appear to be static, the number of children in foster care has dropped slightly, as have the number of children waiting for adoption. The most positive outcome appears to be the increase in the number of legalized adoptions. The annual number of adoptions increased by 57% since ASFA, from 37,000 in 1998 to 50,000 in 2001. These numbers are much larger than projected, however, the role ASFA played in the increase is unclear because some states had already begun renewed adoption efforts prior to ASFA.
There are other important developments related to ASFA. States have taken the ASFA timeframes seriously. They have enacted new legislation and promulgated regulations to expedite permanency, consistent with ASFA. Jurisdictions are holding permanency hearings sooner, often practicing some type of concurrent planning, and establishing a more expedited track for filing petitions to terminate parental rights when reunification is not possible or appropriate. The length of time before deciding on a permanency plan has been reduced. States are looking for tools to assist in expediting permanency, including concurrent planning, guardianship, and kinship support.
In addition to the permanency option of adoption, there appears to be a broadening of the traditional notion of permanency in some states and localities. This includes states increasingly turning to relatives as a permanency option and making relatives a part of the permanency process. States report an increase in the use of temporary and permanent relative placements over the past few years. There are a number of new state initiatives in the areas of guardianship and kinship support. Some states are working to relieve relative burdens by using mediation and financial support to address relatives' needs, including guardianship programs and kinship assistance (subsidized and unsubsidized).
Additional practice improvements have been noted in some jurisdictions. There is an increased use of family-based approaches and interventions including family group conferencing, family mediation, and Family-to-Family and other neighborhood foster care approaches. These approaches stress non-adversarial, collaborative efforts to achieve permanency for children. Similarly, there is greater use of voluntary relinquishment and open adoption, especially in conjunction with concurrent planning and foster parent adoption.
Finally, to achieve timely permanency for children, in many jurisdictions, there has been an increased and continuing focus on collaboration between public and private agencies and across systems to improve permanency for children.
Areas Where Improvement is Needed
While ASFA has had some impact on increasing the number of adoptions from the foster care system, and possibly reducing the number of children in foster care, it is clear that more needs to be done.While there has been a decrease in number of children in foster care in the last year or two, there continue to be over 500,000 children in care .
Families continue to come to the attention of the child welfare system because targeted early intervention supports are not available.
Without these services, many families will require intensive and extensive interventions. Appropriate services for families whose children are already in care and who must meet the ASFA time frame are also lacking. In many communities, there continue to be insufficient substance abuse, mental health, and other treatment resources for families, as well as sufficient housing and economic supports. All families—whether formed through reunification, adoption, kinship guardianship, or another permanent plan— need follow-up support and assistance if they are to be successful. These services are rarely offered and are greatly needed to preserve permanency and prevent re-entry into the system.
Children of color continue to be over represented in the child welfare system.
For all states, the rate of entry of African American children was higher than the rate for Caucasian children, and in 30 states it was more than 3 times higher. Forty percent of the children in foster care are black, non-Hispanic, 38% are white non-Hispanic, 15% are Hispanic, and 2% are Native American.
The lack of preventive and treatment services appears to be also particularly relevant for families of color, whose children are disproportionately represented in the child welfare system.
Preventive and treatment services need to be culturally competent and available in the family and child's language. In five states (NM, CA, AZ, CO and TX), over 30% of the children in the child welfare system are Hispanic. In both North and South Dakota, Native American children make up more than 25% of the children in foster care. Further, AFCARS tells us that minority children are primarily adopted by single parents. These parents, often relatives, need ongoing support by the agency, if they request it, so that they can best care for their children.
The age of children in foster care waiting to be adopted has increased dramatically and there has been limited success in moving older children and youth to permanency.
The average age for a child to become legally free for adoption has increased, the median age of waiting children has increased, and over half of the waiting children are over 8 years old. Concerted efforts are still needed to assist youth not only with independent living skills, but also with permanent, supportive relationships. For youth who enter the system at an older age, the use of voluntary relinquishment, open adoption, guardianship and other participatory approaches, are needed to assist youth and their families to achieve permanency.
Additionally, although the time from removal to termination of parental rights (TPR) has decreased,the time from TPR to adoption has increased , with the total time in care for waiting children remaining constant at 44 months. Adoption work is intense and time consuming if done right. Yet, child welfare caseloads for adoption workers are increasing. Just this week, the Wisconsin Department of Family Services proposed eliminating 12.5 special needs adoption workers and five offices due to a 3.2 billion state budget shortfall.
Workforce issues pose a challenge to ensuring children's safety and care.
A major challenge in reducing the number of children entering or remaining in out-of-home care or waiting for an adoptive family lies in the ability of a well-staffed and well-trained child welfare workforce. Caseworkers must assist families that are experiencing difficult and chronic family problems. They must also achieve the goals of safety and permanency and make lifetime decisions for the child within the ASFA timelines. Yet, the safety and permanency of children is hampered due to large caseloads, caseworker turnover and minimal training.
The need for foster and adoptive families continues to grow.
In fiscal year 2001, the federal government reported that foster parents adopted 59% of the children from the foster care system. Many states are instituting expedited permanency planning systems that seek to place foster children with "resource families" who will eventually become the adoptive parents. Despite this trend, the need for unrelated adoptive families has not diminished because there continue to be waiting children.
Geographic barriers continue to delay adoptive placement for some children.
ASFA mandated that barriers to inter-jurisdictional adoptive placement be eliminated.Adoption 2002, a report issued by the U.S. Department of Health and Human Services (HHS), noted the following geographic barriers to adoptive placements: lack of dissemination of information about waiting families and children; reluctance on the part of agencies to conduct home studies to place children who are outside their jurisdictions; reluctance of agencies to accept some studies conducted by agencies in other jurisdictions, difficulties in transferring Medicaid benefits; and issues with the Interstate Compact on the Placement of Children (ICPC). Although there is a national Internet Photolisting service, AdoptUsKids, and many states have Internet registries that feature waiting children and families, workers do not often search these registries for families. Many remain reluctant to list available families, or to utilize families from other jurisdictions. Yet, adoption recruitment has become increasingly national, even global, in scope, and in order to ensure that children are placed in a timely way with waiting families, these barriers need to be addressed.
ASFA also underscored the continued importance of the courts in ensuring timely permanency for children. Greater judicial involvement and oversight is required to provide added protections for foster children. To be effective, everyone must work together to streamline court processes, ensure timely and complete documentation, ensure the participation of all relevant parties, and maintain a sense of urgency for every child.Courts have been challenged to fully respond to the ASFA requirements, with limited new resources . Judicial caseloads, inadequate representation, unnecessary delays, and unprepared workers and legal counsel are but a few of the possible difficulties encountered.
For counting purposes, anchoring this measure by children substantiated makes sense, but we would also like to know about cases that were reported, not substantiated, and resulted in child deaths.
Realizing the Goals of ASFA
While some progress has been reached since the passage of ASFA, much more needs to be done to ensure that all children in this country grow up in safe, nurturing families. Several pieces of legislation have already been introduced this year, which would help advance that goal.
The Adoption and Safe Families Act stemmed in part from an emphasis on positive outcomes for children during the administration of former President Bill Clinton. The overarching goal of the act was to facilitate adoptions for children who were living for extended periods of time in foster care and who were not going to be reunited with their families of origin for permanent placement.
In 1980, the Adoption Assistance and Child Welfare Act (AACWA) was created to address the disorganized nature of state foster care systems, in which children often drifted for years, sometimes until adulthood, without benefit of permanent placement. By the end of the 1970s, more than 500,000 children were in foster care across the country, with a large percentage of that number drifting from placement to placement with no permanency plan. Central among the goals of the AACWA was decreasing the overall numbers of children in foster care, while shortening the out-of-home placements for those already in the system. The AACWA instituted programs for family oversight, training, and support in an effort to keep families together whenever possible, while creating and implementing some systems for the facilitation of adoption for children and youth for whom family reunification was not viable. Although those were considered reasonable goals, and the act was widely supported within local, state, and federal governments, it fell far short of achieving its intended goals. In fact, within just over a decade, the number of children in foster care and without permanency plans had vastly increased. From a sociodemographic perspective, a significant contributor to the increase in out-of-home placements was the upsurge in teen pregnancies, HIV and AIDS, substance abuse—specifically heroin and crack cocaine addiction—and sharp increases in the homeless population in America. The abject failure of the AACWA led to an increasingly overburdened and ineffective foster care system, increasing the already acute need for effective solutions. Hence, the need for the Adoption and Safe Families Act of 1997.
One of the ongoing challenges for the foster care system is that children of color are over-represented. This means that, relative to their overall percentage of the general population, there are more non-white children in the foster care system than one would expect based on population estimates. The Multiethnic Placement Act, signed into law in 1994, was designed to eliminate some of the institutionalized racial bias inherent in the child welfare system. It broadened the scope of possibilities for becoming licensed to provide foster care among those who were qualified to do so. Traditionally, there were far fewer foster families of color than white foster families, and children of color often spent long periods of time waiting to be placed in racially matched homes. Many of the barriers to transracial adoption also were eliminated by this act. It broadened the best-interests concept to permit discretion in the decision regarding whether interracial families could adequately provide for diverse ethnic and cultural needs within a single household, and opened the door to alternative placements, such as allowing white families to adopt black children.
Because far fewer older children and youth who are available for permanent placement are actually adopted than are babies and younger children, it was necessary to create a safety net for those who "ageout" of foster care without having obtained permanent homes. In 1986, the Independent Living Initiative was created as a means of meeting the needs of teenagers who were preparing to leave foster care. The goal of the initiative was to ensure that older adolescents in foster care or group home settings obtained adequate educational, vocational, housing, and life skills training, so that they could safely transition into adulthood and independent living. The John H. Chafee Foster Care Independence Program of 1999 broadened existing initiatives and created funding for transitional housing payments for youth aging-out of foster care. It also extended the age limits for Medicaid eligibility for those individuals, further increasing the likelihood of their safe passage to independent living.
Bottoms, Bette L., Margaret Bull Kovera, and Bradley D. McAuliff, eds.Children, Social Science, and the Law. Cambridge, U.K.: Cambridge University Press, 2002.
Goldstein, Joseph, et al.Before the Best Interests of the Child. New York: The Free Press, 1979.
Goldstein, Joseph, et al.Beyond the Best Interests of the Child. New York: The Free Press, 1973.
Goldstein, Joseph, et al.The Best Interests of the Child: The Least Detrimental Alternative. New York: The Free Press, 1996.
Goldstein, Joseph, et al.In the Best Interests of the Child. New York: The Free Press, 1986.
Laws, Rita, and Tim O'Hanlon.Adoption and Financial Assistance: Tools for Navigating the Bureaucracy. Westport, Conn.: Bergin & Garvey, 1999.
Maluccio, Anthony N., Barbara A. Pine, and Elizabeth M. Tracy.Social Work Practice with Families and Children. New York: Columbia University Press, 2002.
Petr, Christopher G.Social Work with Children and their Families: A Pragmatic Foundation. New York: Oxford University Press, 2003.
Roberts, Dorothy.Shattered Bonds: The Color of Child Welfare. Reprint edition. New York: Basic Books, 2003.
Child Welfare League of America."About CWLA: Fact Sheet." <http://www.cwla.org/whowhat/more.htm> (accessed May 17, 2006).