Safety and Stability for Foster Children

Even though federal laws have had a major
influence on foster care and child welfare
policy for more than 40 years, additional
reforms are needed to ensure safe and stable
families for children in care. This article
describes the complex array of policies that
shape federal foster care and observes:
A number of federal policies addressing
issues such as housing, health care, welfare,
social security benefits, taxes, and foster
care reimbursement to the states, form the
federal foster care policy framework.
The Adoption and Safe Families Act significantly
altered federal foster care policy by
instituting key changes such as defining
when it is reasonable to pursue family
reunification, expediting timelines for
making permanency decisions, recognizing
kinship care as a permanency option, and
providing incentives to the state for
increasing the number of adoptions.
Courts play a key and often overlooked
role in achieving safety and permanency
for children in foster care. Efforts to
improve court performance have focused
on increasing the responsiveness and
capacity of courts.
The article concludes with policy recommendations
that are needed to improve the lives
of children in foster care, such as increasing
investments in children and families, redirecting
funding incentives, addressing service
gaps, and enhancing accountability.
MaryLee Allen, M.S.W., is director of the Child
Welfare and Mental Health Division of the Children?s
Defense Fund.
Mary Bissell, J.D., is senior staff attorney of the Child
Welfare and Mental Health Division of the Children?s
Defense Fund.
49 www.futureofchildren.org
Allen and Bissell
Volume 14, Number 1 50
The national policy framework that influences
the placement, care, and protection
of children in foster care, and that helps
ensure that these children end up in safe
and stable families, continues to evolve after more than
four decades of development. The foster care policy
framework, as discussed here, includes the complex
constellation of federal and state laws, regulations and
administrative guidance, and the funding structure that
impacts how these policies are implemented. The
framework is influenced by how courts and agencies
interpret laws and regulations and how grassroots
advocates, lawyers, and other key stakeholders see
these laws and regulations fitting into larger systemic
reforms. In assessing the many pieces of the policy
framework and their impact on safe and stable homes
for children in foster care, it is especially important to
look at the interaction of these various componenets.
The purpose of this article is to describe the policy
framework that shapes foster care, its impact on key
decisions about safe and stable homes for children, and
the major policy carriers that remain to improving foster
care. The article concludes with a discussion of
what further policy reforms are needed to keep maltreated
children in safe and stable homes.
The Current Policy Framework
Federal law has had a major influence on the foster care
and child welfare policy framework for more than 40
years.1 But there was no federal foster care program
until 1961, when the Aid to Families with Dependent
Children (AFDC) Foster Care Program was established
to care for children who could not safely remain
with their families receiving AFDC.2 Nearly 20 years
then passed before Congress undertook a comprehensive
look at the general structure of federal funding for
children who were abused and neglected. Congress
was responding to both national and state reports documenting
the crisis in child welfare systems and the disincentives
in federal law to maintain or find new
permanent homes for children and to hold states
accountable for the care children received.3 Up until
that time, there had been only perfunctory case reviews
of children in care and little attention to tracking the
progress of children. But in 1980, a new framework for
foster care was created with passage of the Adoption
Assistance and Child Welfare Act (AACWA). Since
then, several pieces of legislation building on this basic
framework have been enacted?most notably, the
Adoption and Safe Families Act of 1997 (ASFA). (See
the Appendix at the end of this article for a chronology
of major child welfare legislation.)
Establishing the Principles
The federal policy framework creating foster care, as it
is known today, was established through AACWA in
1980.4 That act continued federal funding for foster
care for children from AFDC-eligible families, with
enhanced protections to help ensure that children
entered foster care only after ?reasonable efforts? to
prevent placement were made. The act also required
agencies to place foster children in the least restrictive,
most familylike setting appropriate to the child?s special
needs, to periodically review children?s care and make
?reasonable efforts? to reunify children with their families,
and to hold dispositional hearings to help move
foster children to permanent families in a timely fashion.
Children eligible for federal foster care also automatically
became eligible for federal adoption
assistance payments and for assistance under the Medicaid
program. This assistance was particularly
significant for children in foster care because it
removed fiscal disincentives for state child welfare
agencies to move children to adoption and allowed
states to continue medical and other assistance for
them.
AACWA was preceded by several other child welfare
laws, which filled in pieces of the framework. For
example, in 1974, the Child Abuse Prevention and
Treatment Act required states to mandate reporting of
suspected child abuse and neglect cases to child protective
service agencies.5 In 1978, the Indian Child
Welfare Act made it more difficult to remove an Indian
child from the birth family and place him or her in
foster care.6 Other early legislation also reinforced the
need to prevent the inappropriate institutionalization
of children and to promote less-restrictive placements.
For example, the Juvenile Justice and Delinquency
Prevention Act of 1974 prohibited the placement of
abused and neglected, dependent children and/or status
offenders (children charged with offenses that
would not be crimes if they were adults) in juvenile
Policy Context
51 The Future of Children
detention or correctional facilities.7 At or around the
same time, legislation was enacted addressing the rights
of children with disabilities. (See the Appendix at the
end of this article.)
The principles established by federal law in the mid- to
late 1970s and early 1980s still shape the protections
offered to children in foster care today. They also
encourage states to improve the quality of foster care
placements and to provide more appropriate alternatives
for children who cannot remain with their families.
After AACWA was passed, for example, most states
enacted legislation requiring case plans and periodic
reviews for children in care, specifying that reasonable
efforts had to be made to prevent placements in foster
care, and promoting reunification and other permanency
options in a timely fashion.
Building on the Past
From the mid-1980s through the 1990s, the federal
government took important steps to confront the challenges
facing children in foster care. Some of these
advances fixed problems caused by earlier policies.
Others addressed concerns that had not even been recognized
when the earlier legislation was enacted. For
example, between 1984 and 1999, child welfare legislation
built upon prior foster care policies to place
more attention on older youths, services to prevent
children from entering or remaining in care unnecessarily,
and the unique permanency challenges faced by
children of color in foster care.
Older Youths
In 1986, Congress passed the Independent Living Initiative,
which offers help to young people aging out of
foster care, a group whose needs had been barely recognized
up until that time.8 In part, congressional
attention to the specific needs of teenagers in foster
care was prompted by the passage of AACWA. The
regular agency reviews of foster care cases required by
the act highlighted the unmet needs of older youths,
finding that these youths frequently left care without
appropriate housing, education, and vocational supports
to help them transition into adulthood.
The Independent Living Initiative was gradually
expanded, until it was replaced in 1999 by the John H.
Chafee Foster Care Independence Program.9 The
Chafee program was seen as a catalyst for broader policy
reforms on behalf of these young people.10 Funding
was increased and, for the first time, a portion of the
federal independent living funds could be used for
room and board for young people ages 18 to 21 who
were leaving foster care. Young people formerly in foster
care played an important role in the enactment of
the Chafee program and continue to be involved in
getting it implemented in the states. (See the article by
Massinga and Pecora in this journal issue.)
Preventive Services
Gaps in preventive services also gained attention in the
1990s. Until that time, only limited funding had been
provided to support families before they came into
contact with the child welfare system; to offer alternatives
to placement for families in crisis, when children
could be kept safely at home; or to assist with safe
? Susie Fitzhugh
Volume 14, Number 1 52
Allen and Bissell
reunification for children who were placed in foster
care. In 1993, in response to claims that the openended
federal funding for children in foster care actually
created an incentive to place children in foster care
and keep them there, Congress created the Family
Preservation and Support Services Program.11 In addition
to offering services to help keep children safely at
home and prevent unnecessary foster care placements,
the program offered services to assist both children in
foster care and those moving to adoptive families.12
Under the program, states were required to engage the
community in a broad-based planning process to
determine the right mix of services and supports for
children and families. In an attempt to further increase
preventive services, the next year Congress authorized
the Child Welfare Waiver Demonstration Program,
which gave states the flexibility to use existing federal
funding streams for prevention.13
Race and Ethnicity
Concerns about delays in permanence for children of
color, and controversy over transracial adoptions,
resulted in passage of the Multiethnic Placement Act
(MEPA) in 1994.14 Until then, debates about national
foster care policy had paid relatively little attention to
racial discrimination (except regarding American Indian
children). MEPA codified federal court interpretations
of civil rights laws, which protected children
being served by federally assisted child welfare programs
from discrimination based on race and national
origin. MEPA prohibited agencies that receive federal
funding and are involved in foster care or adoptive
placements from discriminating in such placements. It
prohibited them from categorically denying any person
the opportunity to become an adoptive or foster parent
?solely? on the basis of race, color, or national origin,
and from delaying or denying the placement of a
child ?solely? on the basis of the race, color, or national
origin of the adoptive or foster parent, or the child,
involved. MEPA clarified that in determining a child?s
best interests, however, agencies may consider the
child?s cultural, ethnic, or racial background and the
capacity of the foster or adoptive parents to meet the
needs of a child of this background. In other words,
race, ethnicity, and culture could be a factor, but not
the sole factor, in individual placement decisions.
Subsequently, in 1996, Congress repealed several
provisions of MEPA when it enacted the Interethnic
Adoption Provisions.15 These amendments prohibited
the consideration of race, ethnicity, and culture in
determining a child?s best interests. They also subjected
states and other entities to specific fiscal penalties
if they discriminated, and they retained a MEPA
provision that allowed individuals to sue states or
agencies if they believed they were victims of discrimination.
Despite these changes, Congress maintained
MEPA?s provision requiring child welfare service programs
to diligently recruit potential foster and adoptive
families that reflected the ethnic and racial
diversity of those children needing foster and adoptive
homes (although specific funds for this purpose
have never been provided).
Adoption and Safe Families Act of 1997
Increased concerns about children languishing in foster
care without permanent families, and failed
attempts in 1995?96 to block grant federal child welfare
programs, prompted Congress to seek better ways
to comprehensively address the many problems plaguing
child welfare systems. Shortening children?s stays in
foster care and reducing the number of children waiting
to be adopted were Congress?s key concerns. The
resulting legislation, ASFA, once again highlighted the
importance of permanence for children and underscored
that foster care should be only a temporary
alternative for abused and neglected children.16 ASFA
influenced foster care in several specific ways described
further below. (See Figure 1.)
Expedited Timelines for Decision Making
ASFA emphasized that foster care is intended to provide
a safe and temporary way station while children
prepare for permanent homes. The act required permanency
hearings to be held no later than 12 months
after a child entered foster care (6 months earlier than
was required under the prior law). With certain exceptions,
it also required states, for the first time in feder-
For the first time in federal law, ASFA made explicit that a child?s
health and safety must be paramount in decision making....
Policy Context
53 The Future of Children
al law, to initiate termination of parental rights proceedings
when a child had been under state responsibility
for 15 of the previous 22 months.
The exceptions to this expedited timeline included:
1) when the child was in the care of a relative; 2) when
the state agency documented a compelling reason why
filing the petition for termination of parental rights was
not in the best interests of the child; and 3) when the
state agency had not provided to the child?s family,
consistent with the time period specified in the case
plan, the services the state deemed necessary to safely
return the child home. Subsequent ASFA regulations
emphasized that these exceptions could be invoked
only on a case-by-case basis and that the permanency
efforts had to be continued, even when such exceptions
were invoked for termination of parental rights.17
ASFA required the continued scrutiny of permanency
plans until the child was in a permanent home.
Attention to Safety
For the first time in federal law, ASFA made explicit
that a child?s health and safety must be paramount in
decision making about the initial removal of the child
from the home, his or her return home, and the care
received in foster care or in another permanent family.
Specific provisions to ensure the safety of children in
foster care included requiring states to develop standards
to protect the health and safety of children in
foster care and requiring that states check the criminal
records of both foster and adoptive parents as a condition
of federal foster care and adoption funding. The
law also required that foster parents and other caregivers
be given an opportunity to speak at any court
hearings involving children in their care. This requirement
was specified, in part, to allow caregivers to challenge
the quality of services provided by agencies to
children in care. In an attempt to comply fully with
ASFA requirements and to ensure that children in relative
foster care receive the same protection as other
children, the regulations clarified that states cannot receive
federal reimbursement for children in foster homes
until and unless those homes are fully licensed.18
Clarification of ?Reasonable Efforts?
ASFA clarified that nothing in federal law requires a
child to remain in or be returned to an unsafe home,
and the act included examples of when it might be
Figure 1
Changes in Foster Care Resulting from the Adoption and Safe Families Act of 1997
Adoption and
Safe Families Act
(ASFA)
Formally recognized
kinship care
as a permanency option
Eliminated
?long term foster care?
as a permanent placement
Provided new incentives for
adoption
Increased accountability
by requiringthe tracking of
outcome measures
Expanded services
to include reunification
and adoption promotion activities
Increased attention to the
safety
of children in foster care
Clarified what constitutes
?reasonable efforts?
on behalf of children in foster care
Expedited timelines
for decision making for children
in foster care
Volume 14, Number 1 54
Allen and Bissell
?unreasonable? to reunify children with their families.
19 ASFA also specifically required that, when a child
cannot be reunified safely with family members, reasonable
efforts must be made to place the child in a
timely manner in accordance with the child?s permanency
plan. The law also sought to expedite permanence
by clarifying that such reasonable efforts to place
a child for adoption or with a legal guardian may be
made concurrently with efforts to reunify a child with
both parents.
Elimination of Long-Term Foster Care
In ASFA, Congress eliminated the earlier statutory reference
to ?long-term foster care? as a permanency option
for a child. The act specified that appropriate
permanent options should include placements with a
fit and willing relative, a legal guardian, or in another
permanent living arrangement, in addition to safe
return home or adoption. Subsequent ASFA regulations
underscored the importance of statutory requirements
for permanency options beyond long-term
foster care.
Formal Recognition of Kinship Care
ASFA explicitly recognized placements with ?fit and
willing relatives? or legal guardians as acceptable
permanency options for children in foster care. As
mentioned earlier, it also allowed the state to exempt a
child living with a relative from the requirement for initiating
termination of parental rights proceedings. In
addition, ASFA required a report on kinship care. The
report, prepared by the secretary of the U.S. Department
of Health and Human Services (DHHS) in
consultation with a national Kinship Care Advisory
Panel, recognized the importance of relative caregivers
in caring for children in foster care and in expediting
children?s exit from foster care.20
New Incentives for Adoption
ASFA authorized funding for incentive payments to
states to increase the number of adoptions of children
in foster care. States that increase their adoptions over
an established baseline are eligible for $4,000 for each
child who is adopted from foster care and $6,000 for
each child with special needs who is adopted from foster
care, but only for adoptions above the baseline.21
More than 230,000 children were adopted from foster
care from 1998 to 2002, more than the previous two
years combined.22 To date, every state in the country
has received an incentive payment for at least one of
the years in which the adoption incentive has been
offered. Unfortunately, the dollars that Congress
appropriated for the incentive payments have not kept
up with the increases in adoptions, and as this article
goes to press, changes in the adoption incentive program,
which has to be reauthorized, are pending
before Congress.23
Expanded Services
In addition to the family support and family preservation
services states were already providing to foster and
adoptive parents, as well as birth families, ASFA and
accompanying guidance specifically required states to
expand their services to two additional categories?
time-limited reunification services and adoption promotion
activities?and to spend at least 20% of their
funds from the newly named Promoting Safe and Stable
Families Program on each of these categories.24 At
the same time, funding for the overall program was
increased only slightly. As a result, many communities
perceived the new focus on adoption to undercut the
earlier emphasis on family support and prevention,
even though funds in each of the categories could be
used for services for children in foster care. Unfortunately,
until now it has been difficult to know just how
these program funds are being used, especially given
the overlapping definitions of the four program activities.
Beginning in 2003, however, DHHS is required
to submit a biennial report that includes funding levels
and effectiveness, by program category.25
Increased Emphasis on Accountability
ASFA required DHHS to establish outcome measures
to track state performance in protecting children, to
issue an annual report on state performance, and to
develop a performance-based incentive system to provide
federal child welfare, foster care, and adoptionassistance
payments. Three annual reports on
outcomes have been issued,26 but challenges remain in
establishing outcomes that can be measured accurately
and in assessing states? progress in meeting them. For
example, some child welfare administrators and
researchers have criticized the fact that outcome performance
measures are assessed based on point-in-time
data that biases the results and could lead to solutions
with little real benefit to the children involved. They
Policy Context
55 The Future of Children
Box 1
The Child and Family Service Reviews
The Child and Family Service Reviews, mandated by Congress in
1994, provide a comprehensive look at a state?s ability to deliver
services that lead to improved outcomes for children and families
consistent with federal law. The reviews provide an opportunity to
assess state performance broadly with input from a range of
stakeholders and enhance states? ability to assist children and
families to achieve safety, permanency, and well-being outcomes.
The reviews include a statewide assessment and an in-depth
review of up to 50 cases of children in the state?s child welfare
system. The process includes reading case records and interviewing
children and families, caseworkers, foster parents, service
providers, and other key stakeholders involved with the
children and families. After both parts of the review are complete,
the U.S. Department of Health and Human Services determines
whether a state has achieved substantial conformity on a series
of outcomes and systemic factors. States that are approved will
be reviewed again in five years, unless problems are identified
earlier. States that are not operating in conformity with federal
law are given the opportunity to develop a program improvement
plan (PIP) to address the problem areas. States have up to two
years to address problems before any fiscal penalties are
imposed. States can get federally supported technical assistance
for the development and implementation of PIPs.
A number of the outcomes examined in the reviews specifically
address the status of children in foster care. For example, reviews
look at the stability of foster care placements and the frequency
of children?s reentry into foster care. They also assess the continuity
of family relationships and connections that are preserved
for children in foster care. Specific indicators include the proximity
of the foster care placement to the child?s home, placement
with siblings, visits with parents and siblings, and other ways to
preserve family and community connections and relationships.
Reviews look at the educational, physical, and mental health
needs of children in foster care. They also examine systemic factors
that impact children in foster care, such as statewide information
systems; case reviews; quality assurance; training;
services and community responsiveness; and licensing, recruitment,
and retention of foster parents.
Source: 45 CFR 1355.31-37. For more information about the Child and Family Service Reviews, visit the Children?s Bureau Web site at
http://www.acf.hhs.gov/programs/cb/cwrp/cfsr.htm.
maintain that cases must be tracked using comparable
data over time to accurately gauge progress.27 Further
attention is needed to improve both the outcomes
used and the manner for assessing them.
ASFA also prompted DHHS to move forward with
an important new initiative for reviewing states? performance:
the Child and Family Service Review. In
1994, Congress had mandated a review of states? performance
in the delivery of services to children and
families who come to the attention of the child welfare
system. Under ASFA, it was clarified that the goal
of this review process is to assess states? actual outcomes
for children and families and to determine
states? conformity with federal legal requirements
using a more comprehensive, hands-on assessment
process than was previously required (see Box 1).
The reviews are to be conducted over three years, with
32 states completed by the end of 2002 and all states
completed by March 31, 2004.28 To date, no state has
been found in conformity with all outcomes and/or
systemic factors, and all are developing program
improvement plans.29 A number of states that already
have had reviews have maintained the teams and the
processes used in the reviews in order to provide ongoing
assessments of their child welfare activities.
The Role of the Courts
In the policy framework discussed above, the courts
play an important and often overlooked role in helping
achieve safety and permanence for children in foster
care. The courts are called upon to review the
status of children in foster care, hold dispositional
hearings, and promote permanent placements. The
Volume 14, Number 1 56
Allen and Bissell
nature and quality of the hearings and legal representation
of the parties; the timelines; the thoroughness
of decisions; and court staffing, technology, and training
all profoundly influence whether existing laws are
appropriately implemented to meet the individual
needs of children and families. Often, the extent of the
services a child and family receive and how quickly a
child achieves a successful return home or placement
in another permanent setting depend most heavily on
the courts. Because of the courts? key responsibilities
in ensuring safety and permanency for children, policymakers
have increasingly recognized the importance
of increasing the capacity of child welfare courts to
carry out already-established legislative goals. Moreover,
individual court decisions and impact litigation
intended to bring about broader systemic reforms
have played a formative role in the development of
national foster care policy.
Increasing the Capacity of the Courts
AACWA envisioned a major role for the courts in reviewing
the status of children in foster care, holding dispositional
hearings, and promoting permanent placements,
but it provided no funds directly to the courts. Recognizing
the importance of enhancing the capacity of the
courts to help support both safety and permanence for
children in foster care, various initiatives followed.
After AACWA was passed, the National Council of
Juvenile and Family Court Judges established the Permanency
Planning for Children Project, which conducted
extensive training on the act and helped
establish permanency planning task forces in many
states.30 Then in 1993, for the first time, Congress provided
targeted funding for court improvements as a
set-aside in the Family Preservation and Support Services
Program, which has continued to the present.31
In the Court Improvement Program, funds are
specifically intended to help courts conduct assessments
of their effectiveness in implementing federal
child welfare statutes and improving the handling of
the cases of children involved in foster care and adoption.
Funding of $5 million was provided for the first
year and $10 million a year for subsequent years; additional
discretionary funds were subsequently provided.
32 Currently, all 50 states, the District of Columbia,
and the Commonwealth of Puerto Rico participate in
the Court Improvement Program.33
In a number of states, the funds for courts have stimulated
important activities that have made courts more
responsive to children who enter foster care and need
services and permanent placements.34 For example, in
Colorado, the Court Improvement Program has
focused on the implementation and evaluation of the
Expedited Permanency Planning Program, which requires
that permanency planning hearings for children
under six years of age be held within six months of
placement. Colorado achieved statewide implementation
in 2001 and has found that the program?s approach
toward expedited permanency has had a beneficial
effect on permanency not only for targeted children
under age six but for older children as well. In the District
of Columbia, funds from the Court Improvement
Program were used to complete a child protection
mediation program for child abuse cases. The program
has since been expanded to include neglect cases, and
courts presently assign half of all cases to mediation.
Also, in Cook County, Illinois, a Parent Education
Program was created to inform parents involved in the
dependency system about court procedures.
Other efforts to improve the courts are also underway.
For example, with funding from the Child Victims
Act, 25 model courts have been established to
improve the handling of abuse and neglect cases.35
The Strengthening Abuse and Neglect Courts Act
included provisions to strengthen courts? ability to
? Bob Wynne
Policy Context
57 The Future of Children
track cases and to address the backlogs of children in
care, although it has been a struggle to get these provisions
funded.36 Finally, the passage of ASFA reinforced
the idea that, if the goals of ASFA are to be
realized for children in foster care, courts and child
welfare agencies must collaborate more closely. ASFA
leaves to the courts the final determination of when it
is or is not reasonable to provide preventive and
reunification services to families and whether and
when termination of parental rights is in the best interest
of the child. Similarly, in order for states to qualify
for ASFA adoption incentive payments, courts must
act to finalize adoptions so that the adoptions can be
counted in a state?s consideration for ASFA?s adoption
incentive payments.
Impact of Court Decisions and Reform Litigation
Federal and state case law has helped define the boundaries
of the rights of children in foster care, as well as
those of their birth parents, foster parents, and relative
caregivers. Legal advocates have also relied upon the
courts to enumerate the specific responsibilities of the
state agencies that oversee children in foster care and,
increasingly, to maintain continuing judicial and
administrative oversight over state child welfare agencies
that have systematically failed to meet these children?s
needs. Although some of these legal challenges
have clarified roles and strengthened the obligations of
states, others have not.
Parental Rights
Recent statutory and administrative emphasis on expediting
permanence for children in foster care must be
understood in the context of a constitutional framework
that was largely designed to protect the rights of
parents. Decisions about the circumstances under
which children may be removed from their parents and
placed in state-supervised foster care raise constitu?
tional as well as policy questions. The Due Process
Clause of the Fourteenth Amendment provides that no
state shall ?deprive life, liberty, or property without
due process of law.?37 The Supreme Court has long
established that the Due Process Clause provides
?heightened protection? against government interference
with certain fundamental rights and liberty interests,
38 the oldest of which is the fundamental liberty
interest of parents ?in the care, custody, and control of
their children.?39
Parental rights are not absolute, however. The Supreme
Court has held that a state may interfere with parental
and other fundamental rights, but only when there is a
?compelling government interest? in doing so.40 The
court has defined a sufficiently compelling interest to
include state intervention to prevent serious harm to
children.41 Although the specific procedures for a
child?s removal and foster care placement have been
left largely to the states, federal law requires certain
protections for those children who are eligible for federally
funded foster care and related services.42 As the
court recently explained, ?so long as a parent adequately
cares for his or her children (i.e. is fit), there
will normally be no reason for the state to inject itself
into the private realm of the family to further question
the ability of that parent to make the best decisions
concerning the rearing of those children.?43
System Reform
Over the past 20 years, legal advocates in many states have
used litigation in the form of class-action suits and other
legal challenges against child welfare agencies to try to
bring about more systemic changes for children in foster
care. Such litigation has often resulted in highly specific
court remedies and, in some cases, ongoing judicial oversight
of the agencies administering the court orders. Classaction
litigation has challenged almost every aspect of foster
care and the child welfare system generally,44 including:
the grounds for a child?s removal and placement in
foster care,45
the state?s failure to assign workers to foster care
cases in a timely manner,46
the state?s failure to develop and implement a level-ofcare
assessment for appropriate foster care placements,47
the state?s use of race as a criteria in placement,48
the state?s failure to provide adequate services to
children and families in foster care,
the length of time children spend in care,49
visitation procedures for children in foster care,
including appropriate visitation with siblings50 and
biological parents,51 and
Volume 14, Number 1 58
Allen and Bissell
the state?s failure to address the needs of special
populations of children in care, including children
living with kin,52 children with disabilities in foster
care,53 children in institutional foster care,54 undocumented
children in foster care,55 young children in
group foster care,56 and children entering foster care
from families where there has been domestic violence.57
Most of the class-action lawsuits have ended in consent
decrees, which the attorneys for the children and/or
families must then implement together with the state
or local child welfare agency staff. It is also increasingly
common to bring in a special master or an expert
panel to assist with the reforms. While in some states
such decrees have helped generate increased resources
for reforms and prompted important progress for children,
class-action litigation is not without controversy.
Some critics argue that the often long-drawn-out legal
actions unnecessarily deplete resources for foster care
systems that are already in short supply, resulting in
even poorer service delivery to children in foster care.
They also contend that community leaders and child
welfare experts must be brought in to the litigation
process early, and that litigation must be used in concert
with other advocacy strategies (such as education
of birth and foster parents, and agency training) to
effectively achieve broader systemic reforms.58
Impact of Other Policy Areas on
Foster Care
Given the fact that the foster care system often serves
as a last resort for families struggling to meet their children?s
basic and special needs, it is not surprising that
changes in policy areas other than child welfare can
have a significant impact on foster care and the children
and families the foster care system serves. For example,
welfare policy, policies affecting immigrant children,
and policies concerning access to health care all have a
major influence on the foster care system. A reduction
in Medicaid funding could bring about changes in eligibility
or benefits that could directly result in more
children going into foster care or could impact the
services available to those in care. Other policies affecting
foster children include those concerning substance
abuse, mental health, domestic violence, housing, and
taxation.
Welfare Policy
The welfare reform legislation passed in 1996, the Personal
Responsibility and Work Opportunity Reconciliation
Act (PRWORA),59 has had a mixed effect on the
policy framework for foster care. On the positive side,
it offered the promise of new funds that could be leveraged
to keep children out of foster care. Under a new
program, Temporary Assistance for Needy Families
(TANF), federal funds can be used for any activities
consistent with the program?s broad purposes. As a
result, a number of states have reported using TANF
funds for activities traditionally considered to be child
welfare services, such as home visiting programs and
other parenting support and prevention programs
designed to keep children out of foster care. A number
of states have used TANF funds to support kinship care
families, so that the children they are raising can stay
with them and out of foster care. (See the article by
Geen in this journal issue.)
Under the new law, states also are allowed to use
TANF dollars for activities previously funded by the
Emergency Assistance program, which include foster
care as well as a range of crisis intervention services to
prevent children from entering care. Unfortunately,
some states that have used TANF funds for foster care
and other child welfare services have used the funds to
replace rather than to expand state child welfare expenditures.
This situation has raised concerns about the
impact on families and foster care should TANF funds
in these states suddenly have to be diverted to assist
with growing TANF caseloads.
At the same time changes in the welfare law increased
the flexibility of TANF funds and made them more
available for child welfare services, these changes also
intensified the fiscal pressures already on foster care. For
example, the law limited the pool of children in foster
The need to track the health status of children in foster care is
another challenge that has yet to be comprehensively addressed in
national policy efforts.
Policy Context
59 The Future of Children
care eligible for federal assistance by basing future eligibility
for the federal foster care program on the TANF
income and resource rules in place on July 16, 1996,
without adjusting for inflation or taking into account
future expansions in TANF eligibility requirements.60
This provision limits federal assistance for foster care to
children from very poor families, and states are finding
that they have to increase their own contributions to
foster care for children who would previously have
been eligible for federally reimbursed foster care.
The enactment of TANF also raised concerns that
more and more children might need foster care as
alternative supports declined and that, without TANF
available to support reunification efforts, children
would remain in foster care longer. But little is yet
known about the interaction between TANF and child
welfare. Although initial reports from the states raise
red flags, the real impact remains to be seen, as more
families lose benefits due to lifetime limits on TANF
eligibility, economic conditions worsen, and pressures
on families increase.61
Policies Affecting Immigrant Children
PRWORA also substantially restricted the access of
many immigrant families to a range of federal public
benefits, including federally funded foster care, adoption
assistance, and independent living services.62 Only
citizen and ?qualified? immigrant children (generally
those entering the country prior to August 1996,
when the legislation was passed) are now eligible for
federal foster care benefits. Although state and local
funds may still be used to cover the cost of foster care
for those immigrant children who no longer qualify for
federal assistance, there is concern that the new limitations
have had a chilling effect on immigrant children
in foster care and that parents and extended family
members may be more reluctant to approach state
agencies for help when a child?s safety is threatened.63
Also, advocates are concerned about the quality of
services available to immigrant children already in foster
care. In some instances, language barriers and cultural
differences make communication between
immigrant families and their foster care caseworkers
challenging. For example, a needs assessment of one
community?s immigrant families involved in child welfare
found that immigrant families were denied access
to translators and to basic benefits based on their
immigration status, resulting in longer stays in foster
care for immigrant children.64
Health Care Policy
The health care needs of children in foster care have
been well documented over the years.65 Children
whose foster care is federally reimbursed have been
automatically eligible for Medicaid since 1980, and
since ASFA, all children in foster care must be provided
with health insurance, either through Medicaid or
through a state-funded Medicaid replacement program.
Unfortunately, eligibility for health insurance coverage
alone is not sufficient to address the health care problems
facing children in foster care. A number of enrollment
and service barriers that impact all families
applying for health insurance under Medicaid may be
especially problematic for foster families. These barriers
include the difficulty in finding health care providers
who will accept Medicaid (due to the program?s low
payment rates, burdensome administration requirements,
and inefficient payment systems) and ensuring
continuity of care, especially when foster children are
moved frequently from one neighborhood or community
to another. A recent study in three large states
found that children in foster care had less continuous
Medicaid coverage than children receiving Supplemental
Security Income (SSI) benefits or adoption assistance.
66 Moreover, the study found that children in
foster care were more likely than other children receiving
Medicaid to have a mental health or substance
abuse condition, making their lack of access to health
care particularly detrimental.
Another significant problem for children in foster care
has been their inability to retain Medicaid when they
leave care, thus leaving their physical and mental health
needs unmet. The three-state study mentioned above
found that between one-third and one-half of children
lost Medicaid coverage when they left foster care. Most
likely they were left with no health insurance. Although
children who leave foster care to return home have no
guarantee of continuing Medicaid eligibility, federal
Medicaid regulations require that children who have
been categorically eligible for Medicaid (as are most
children in foster care) cannot be cut off until a determination
is made that they are not eligible for Medicaid
under other eligibility guidelines.67 States also have
Volume 14, Number 1 60
Allen and Bissell
the option of providing 12 months of continuous coverage
to children enrolled in Medicaid to ensure better
continuity of care. In states that choose that option,
children in foster care would be eligible for the full 12-
month period, even if they were to leave foster care
before the 12 months ran out.68 Some children who
leave care may also be eligible for the State Children?s
Health Insurance Program (SCHIP).69 In addition, the
Foster Care Independence Act of 1999 allows states to
extend Medicaid to youths ages 18 to 21 who are
transitioning from foster care.70 As of the end of 2002,
however, only eight states had taken advantage of this
option.71
The need to track the health status of children in foster
care is another challenge that has yet to be comprehensively
addressed in national policy efforts. Although
federal law does specify that a foster child?s case plan
must include the health records of the child, there is
currently no requirement that the information be
shared with foster parents or other care providers who
are responsible for the daily supervision of children in
foster care. Nevertheless, some states have developed
progressive ways to track the health care of children in
foster care (such as through the use of electronic
?health passports?), and others are making creative use
of funds from Medicaid and SCHIP to expand assistance
to vulnerable children in foster care and their
families.72
Attention to the special health and other needs of children
with disabilities in foster care also continues to be
a problem. In 1996, after Congress cut back SSI for
children and others with disabilities, the cost of care for
large numbers of foster children in some states shifted
from the federal SSI program to state foster care budgets.
There also have been court challenges to some
state laws that allow states that receive SSI for children
in foster care to reimburse themselves for the current
costs of foster care for these children. In February
2003, however, the U.S. Supreme Court ruled that a
state was allowed to use children?s SSI benefits to reimburse
itself, noting that this allowance increased the
likelihood that states would identify children as SSI eligible,
pursue SSI for them, and act as representative
payees for them when others were not available to play
that role.73
Policies on Substance Abuse,
Mental Health, and Domestic Violence
Children whose parents abuse drugs and alcohol are
almost three times more likely to be neglected than
children whose parents do not.74 An estimated 40% to
80% of children in foster care are from families with
substance abuse problems.75 It is estimated that nationally,
1 in every 10 children and adolescents suffers from
mental illness severe enough to cause some level of
impairment; yet, in any given year, only 1 in every 5
children receives mental health services.76 Studies have
demonstrated that children in foster care have higher
rates of emotional problems than children with similar
backgrounds who are not in foster care.77 Domestic
violence is also a serious problem for children in foster
care and their families. It is estimated that child maltreatment
and domestic violence co-occur in an estimated
30% to 60% of families where there is some
additional form of family violence.78
Although more attention has been paid to the problems
of substance abuse, mental health, and domestic
violence over the past several years,79 targeted legislative
initiatives have not been enacted, leaving many
states without appropriate screening and assessments,
comprehensive treatment, and training for foster care
workers and others. Without appropriate services and
treatment, children are more likely to be placed in foster
care and to stay there for longer periods. The lack
of services and treatment stalls permanency decisions in
those cases when judges are reluctant to pursue termination
of parental rights without such help being
offered first. For example, in one recent study, twothirds
of the states reported that the lack of appropriate
services provided to the parent soon after the child
entered care, particularly substance abuse treatment,
was a significant barrier to prompt permanency decisions.
80 In some situations, children are returned home
without the proper identification of substance abuse,
mental health, or domestic violence problems. When
these problems reoccur, children are often returned to
foster care.
Currently, there are no federal laws that specifically
address links between child welfare and substance abuse,
mental health, and/or domestic violence problems,
although several laws have been proposed.81 Nevertheless,
a handful of states have used the waiver authority
Policy Context
61 The Future of Children
available under the Child Welfare Demonstration Waiver
Program to respond more creatively to these problems.
82 Delaware,83 Illinois,84 and several other states
are addressing the need for substance abuse treatment.
Connecticut and Washington are using waivers to
expand treatment options and better coordinate services
for youths in foster care with mental health problems.
85 Though not using the waiver, Arizona and
Maryland have passed legislation that increases resources
for substance abuse and child welfare agencies
to jointly seek comprehensive treatment for parents
whose substance abuse is a barrier to preserving or
reunifying their families. In six communities across the
country, federally supported pilot activities designed to
strengthen the link between child welfare agencies,
domestic violence organizations, and the courts are
underway, encouraging these systems to focus together
on helping both child and adult victims of domestic
violence and child abuse when these problems co-occur.86
Housing Policy
In response to the growing recognition of the link
between housing problems and children in the child
welfare system, the Family Unification Program was
created in 1990 to provide special accommodation, on
a small scale, to meet the housing needs of children at
risk of placement in foster care due to homelessness or
other housing problems.87 Under the program, a small
number of Section 8 vouchers are set aside to allow
local housing authorities and child welfare agencies to
offer housing assistance to those families whose children
are at risk of placement in foster care or are
preparing to return to their families from foster care,
and for youths aging out of foster care.88 Unfortunately,
however, the Section 8 vouchers that are currently
set aside for the program are not nearly enough to
serve the growing numbers of families in need.89
Federal Tax Policy
Federal tax policy also impacts the foster care system,
as foster parents, relative caregivers, and adoptive parents
may be eligible for tax exemptions, deductions, or
credits that could help to stretch their incomes. For
example, some caregivers will be able to claim the children
in their care as dependents, provided their relationship
to the child, their living arrangements, and
the amount they have contributed to the child?s support
make them eligible.90 In addition, tax legislation
enacted in 2001 enables some caregivers to qualify for
the earned income tax credit (EITC), which provides
a tax refund to low-income workers, including those
who earn too little to pay income taxes.91 The 2001 tax
legislation also expanded the child tax credit?which
provides a $600 credit for each of a taxpayer?s qualifying
children, including ?eligible foster children??and
made a portion of the credit refundable for families
with incomes over $10,000.92 An additional $400
credit was added in 2003.93 Finally, the 2001 legislation
expanded the adoption tax credit to provide extra
financial support to offset certain expenses that foster
and other families may incur in adopting children.94
Recommendations for Future
Policy Reform
The impetus for the reforms in the foster care and the
child welfare policy framework has been consistent
over the years, with major policy changes being driven
by the same four concerns: children languishing in
care, child safety, the adequacy of services, and system
accountability (see Box 2). Despite improvements,
child welfare systems across the country are still in crisis,
and barriers to reform remain. Why are more than
550,000 children currently in foster care? Why has
there been so little progress in getting children and
families the help they need? What are the barriers to
real reform for these children? It is difficult to talk
about reform of foster care without addressing reform
of the broader child welfare system. Foster care is a key
piece, but just one of many pieces, in the continuum
of services and supports that must be in place as communities
work to find safe and stable families for maltreated
children.
Eliminating Child Poverty
Any serious effort to strengthen the policy framework
for child welfare and foster care first must acknowledge
the overriding importance of eliminating child poverty.
Poor children are more likely than higher-income children
to be reported as abused and neglected. Because
of the enormous stresses on their families, families?
difficulties in obtaining appropriate services such as
health care and housing, and families? increased interaction
with public systems, these children are more
likely to come to the attention of the child welfare system.
Poor children are also disproportionately children
of color, who are overrepresented in the child welfare
Volume 14, Number 1 62
Allen and Bissell
system and are more likely to stay in the child welfare
system for long periods. Advocates, providers, and policymakers
must pursue reforms that will eliminate child
poverty and provide all children the health care, early
childhood experiences, educational opportunities, and
safe homes that they need to grow and thrive. Achieving
these goals will have a major impact on the challenges
facing the child welfare system and the children
and families it serves.
With the elimination of child poverty as an overarching
goal, the driving force behind any future policy reforms
Box 2
The Impetus for Reform
Children Who Languish in Care. When the Adoptions Assistance
and Child Welfare Act (AACWA) was enacted in 1980, policymakers
made frequent reference to evidence that children
who remained in care for at least 18 months were likely to
remain there for long periods. Policymakers also noted the
harms that occur to children when they are denied the stability
and sense of permanence that they need. Similarly, as the
Adoption and Safe Families Act (ASFA) was being considered in
1997, policymakers voiced great concern about the more than
100,000 children lingering in foster care without permanent
homes and the need to expedite permanency decisions on their
behalf. At the same time, others criticized the implementation
of certain aspects of the earlier law, particularly the ?reasonable
efforts? provision, which they asserted was hampering
efforts to place children in permanent homes.
Concerns about Safety. In enacting AACWA, Congress required
that ?reasonable efforts? be made to prevent unnecessary foster
care placements and to reunify families. In emphasizing
?reasonable? efforts, the act maintained that children could
nevertheless be removed from their homes immediately?
without the prior provision of preventive services, if necessary
?to protect them from dangerous situations.
Policymakers did not want to put children in situations that
would compromise their safety. ASFA codified this policy when
it stated for the first time in federal law that a child?s health and
safety are paramount in any decision made about his or her
care and provided examples of when efforts to prevent placements
or reunify families might be ?unreasonable.?
Inadequate Services. Congress has chosen to maintain the
original federal design of the foster care system, whereby the
bulk of funds are designated for out-of-home-care (and only for
eligible poor children). But Congress has made significantly
fewer investments in services to keep children safe and to prevent
them from unnecessarily entering foster care; in giving
children and their families the help they need while children are
in foster care; or in offering post-permanency supports to children
who are returned home, adopted, or placed permanently
with kin. Similarly, there have been no significant investments
in the range of specialized services, such as substance abuse
or mental health treatment, that many families in the child welfare
system need in order to ensure safe, permanent homes for
their children.
Need for Accountability. Both AACWA and ASFA created or
maintained basic protections for children, such as requirements
that states develop individual case plans, conduct periodic
reviews of the care individual children receive, and place
children in the least restrictive, most familylike setting appropriate
to their needs. Both acts also required states to collect
the data necessary to track children in care and to maintain
some additional mechanisms for monitoring the care children
receive. In addition, Child and Family Service Reviews (see
Box 1) provide new opportunities to monitor state agency
compliance with federal legal protections for children in foster
care.
Sources: Maas, H., and Engler, R. Children in need of parents. New York: Columbia University Press, 1959; Goldstein, J., Freud, A., and Solnit, A. Before the best interest of
the child. New York: The Free Press, 1979; Congressional Record, 96th Cong., 2nd Sess., 1980. Vol. 126, pt. 2, S6942; and U.S. House of Representatives, Committee on
Ways and Means. Social Services and Child Welfare Amendments of 1979. 96th Cong., 1st Sess., 1979. H. Rep. 136.
Policy Context
63 The Future of Children
in child welfare must be to establish a policy framework
that will support a child-centered, family-focused,
community-based approach to keeping children safe
and in permanent families. Within such a framework,
several additional policy reforms in the broader child
welfare system could have a positive impact on the
future of foster care, as discussed below.
Redirecting Funding Incentives and
Increasing Funding Levels
Major alterations in current funding patterns are needed
to support important reforms such as enhanced
safety and permanence for children. Although federal
and state dollars are generally available to keep children
in foster care, the dollars often are not there to support
children safely within their own families and prevent
foster care placements, to serve children in foster care
and their families, or to move children into permanent
placements in a timely fashion. Consequently, as noted
by the Urban Institute, which regularly reviews child
welfare spending, ?The federal system is not in alignment
with the goals of protecting children and providing
stable, permanent placements.?95
The federal foster care program provides open-ended
funding for the room and board of certain eligible
children in foster care, but only very limited funding
for the development of alternative services for abused
and neglected children and their families, both before
a child must be placed in foster care or after a child
returns home following placement. As a result, out-ofhome
care is often the easiest option for workers
besieged with large caseloads and few other resources.
Moreover, because funding under the federal foster
care program is generally restricted to room and board,
it is often difficult to give even those children placed
in foster care the services and treatment they need.
According to a recent Urban Institute report, almost
three times more funds were spent on maintenance
payments and other services for children in out-ofhome
placements than were spent on other services to
children and families served by child welfare in the
home in 2000.96 At the federal level, at least $5.2 billion
was spent on out-of-home placements, whereas
only $1.8 billion was spent on preventive and other
services. State funding followed a similar pattern.
Though there is agreement about the significance of
this barrier, there has not been agreement as to how to
adequately address it. Proposals have ranged from converting
the federal foster care program to a block grant
and merging it with other federal child protection programs
to allowing open-ended federal funding for a
wide range of alternative services for vulnerable children
and families. Under the Child Welfare Demonstration
Waiver Program, Congress gave states the
opportunity to use their foster care dollars more flexibly,
and Congress expanded this flexibility even further
under ASFA. Nevertheless, states generally have not
opted for waivers for these purposes, in part because of
complex federal requirements for evaluations and a
mandate that the initiatives be cost-neutral.
Further efforts are needed to redirect the funding
incentives within foster care. The lack of sufficient funding
at both the federal and state levels for ongoing services
for children at risk of entering foster care, those in
foster care, or those preparing to leave foster care makes
it impossible for states to fully comply with the expedited
timelines required by ASFA. Changes must involve
both increased resources for states and Indian tribal
organizations and increased flexibility. Any new funding
patterns must accomplish at least three goals:
Expanded services to keep children safely at home,
to facilitate more timely decisions about reunification
or other permanent placements, and to prevent children
from returning to foster care after they are
returned to their families, adopted, or placed permanently
with kin.
Expanded permanency options for children in care
through federal support for subsidized guardianship
programs and enhanced adoption assistance payments.
Eligibility for federal foster care funding and related
services based on children?s risk of abuse or neglect
rather than their parents? financial status.
?One size fits all? is too frequently the solution, despite a policy
framework that encourages more individualized services.
Volume 14, Number 1 64
Allen and Bissell
Improving the Quality of Care for
Children and Families
In too many states, neither the child welfare agencies
nor the courts have the trained staff, skills, or resources
necessary to make decisions about the care and treatment
that is appropriate to meet the individual needs
of children and their families. A recent General Accounting
Office report on the implementation of ASFA found
that judges and other court staff were in short supply,
training was not available, and judges were somewhat
reluctant to move forward as quickly as required under
the law. In particular, the lack of appropriate substance
abuse treatment programs was identified as a barrier to
meeting the ASFA timelines for parents.97
Some of the biggest service gaps are in the areas of
treatment and services for the substance abuse, mental
health, and domestic violence problems that so often
bring children to the attention of the foster care system
and keep them there. These gaps exist because of both
the lack of funding for specialized services and the lack
of coordination among child-serving systems. They are
exacerbated by the failure of agencies to engage families
and communities as partners in their mission to
protect children. In one national survey, about onethird
of state agency administrators cited the lack of
resources as a barrier to meeting ASFA?s time frames.98
The lack of substance abuse treatment for parents and
the fact that child welfare agencies were dependent on
outside agencies for needed services were noted as particular
problems. Often, families are not asked what
they need or are not treated as partners in helping to
keep their children safe. Caseloads are overwhelming,
procedural timelines are tight, and families? needs are
complex. ?One size fits all? is too frequently the solution,
despite a policy framework that encourages more
individualized services.
Services and supports needed to find adoptive families
for children in foster care and to ensure that adoptions
are permanent are also lacking. With ASFA?s new
emphasis on termination of parental rights, there is
? Foley/FOLIO, Inc.
Policy Context
65 The Future of Children
serious concern that many more children may end up
as ?legal orphans.? For example, as of September 30,
2000, some 131,000 children in foster care were waiting
to be adopted; 75,000 of these children had had
their parental rights terminated and had waited an
average of almost two years for adoption.99 Once children
are adopted, there is continuing concern that
they will bounce back into foster care without adequate
postadoption services to ensure that their needs
are met. Although some states, such as Illinois, have
comprehensive services in place to address these barriers,
many others do not.100
Expanded opportunities are needed to improve the
quality and appropriateness of the services and the
care that children and families receive. This improvement
will require attention to the preparation and
quality of staff, as well as new approaches and resources
for getting children and families what they need.
At a minimum, specific changes to promote improvements
in this area should include the following:
Expanded eligibility for federal foster care training
dollars for staff in private child welfare agencies,
courts, and related service agencies that assist children
and families who come to the attention of the
child welfare system.
Expanded training for foster parents and other caregivers
so that they understand their roles in preparing
children for permanent families, whether they
will help children return home, care for them permanently,
or assist in finding other permanent caregivers
for them.
Fiscal incentives for states to develop and implement
successful strategies for improving the recruitment
and retention of staff.
Support for joint agency initiatives to develop and
implement screening and assessment methods and
comprehensive services and treatment for families
who come to the attention of the child welfare system
and who are struggling with substance abuse,
mental health problems, or domestic violence.
Approaches designed to engage families and
communities in partnerships with child welfare
agencies to develop support networks for children in
communities.
Increasing Accountability for Children and Families
The child welfare system has had to struggle with the
constant tension between state discretion, federal
accountability, and the need for enforcement of basic
protections for children. AACWA included numerous
protections for children, but beginning in 1989, Congress
imposed a series of moratoriums prohibiting
DHHS from imposing penalties for noncompliance
with the protections and other provisions in the law.
This followed a period of dissatisfaction on all fronts
with the quality of the reviews being conducted.
It was not until 1994 that Congress mandated the
development of a new system to review states? conformity
with the child welfare protections and other
requirements in federal law,101 but the new system was
not implemented in the states until 2001. Between
1989 and 2001, no regular program monitoring took
place to ensure that states were appropriately caring for
children. In 2001, however, the new system of Child
and Family Service Reviews, with its unique comprehensiveness,
inclusiveness, and corrective-action requirements,
got underway. This system has potential to
increase states? accountability in ensuring the safety and
permanence of children in the child welfare system, but
it is not clear that states will have the resources or broad
buy-in from the community for real change to occur.
A lack of public will continues to hamper efforts to
improve the care of these most vulnerable children and
families. Front-page headlines of horrors done to children
do little to maintain public confidence in the child
welfare system. Policymakers are hesitant to ?put
money into a black hole? or to take the political risks
that may accompany true reform. Members of the
broader public brush their hands, shake their heads,
and decide to leave the mess to child protective services
agencies. The lack of public outrage and demand for
appropriate care for these children is also likely reinforced
by the community?s broader lack of attention to
the needs of the families in the system, who are disproportionately
families of color, poor, female-headed,
and often suffering from numerous complex problems.
Even when members of the community want to step
forward, they are not clear how they can help.
Volume 14, Number 1 66
Increased accountability is needed. It should build on
the Child and Family Service Reviews and give states
incentives to increase protections for children; improve
services and supports for children and families, including
those children in foster care; and promptly provide
permanent families for children through reunification,
adoption, or permanent placements with kinship caregivers.
Specific changes should include:
Funding for Program Improvement Grants to states
that are committed to achieving the goals in their
Program Improvement Plans and are engaging parents;
foster and adoptive parents; advocates; and
representatives of the courts, multiple service agencies,
and other stakeholders in their program
improvement efforts.
A requirement that states document the steps they
are taking with increased funds to improve outcomes
for children; enhance the recruitment, retention, and
training of staff; alter their service-delivery strategies
to partner with families and engage communities in
new ways; and address the disproportionate placement
of children of color in foster care.
Incentives for states to develop improved administrative
data systems to track the movement of children
in and out of care. Such systems will help states monitor
children in care over time and know more about
who the children are, how long they are staying,
what help they are getting, and what they really need
to move on to permanent settings without returning
to foster care.
External review bodies in the states, such as foster care
review boards, child protection review committees,
and courts, to report regularly to DHHS about barriers
to safety and permanence that they see facing
children in foster care and the child welfare system and
to recommend solutions for addressing the barriers.
In its efforts to address specific concerns facing children
in the child welfare system, Congress has repeatedly
failed to fully understand the complexity of the
system and the external and internal services and supports
needed to fully realize its intended goals for children
and families. A policy framework has been
established, but significant gaps remain in services and
funding levels and in balancing fiscal incentives. As we
look forward to improving the quality of life for children
and ensuring them safe and stable families, we
must constantly assess what we are doing and what we
still need to do to overcome the barriers to reform and
to implement real change.
The authors want to thank their colleagues JooYeun
Chang and Della Hoffman at the Children?s Defense
Fund for their contributions to this article.
Allen and Bissell
67 The Future of Children
1. For a detailed discussion of early child welfare policy, see Allen, M.,
and Knitzer, J. Child welfare: Examining the policy framework. In
Child welfare: Current dilemmas, future directions. B.G. McGowan
and W. Meezan, eds. Itasca, IL: F.E. Peacock Publishers, Inc.,
1983.
2. Aid to Families with Dependent Children-Foster Care Program of
1961, Public Law 87-31, 75 Stat. 75 (1961).
3. See, for example, Knitzer, J., Allen, M., and McGowan, B. Children
without homes: An examination of public responsibility to children
in out-of-home care. Washington, DC: Children?s Defense
Fund, 1978; and Vasal, S. Foster care in five states: A synthesis and
analysis of studies from Arizona, California, Iowa, Massachusetts
and Vermont. Washington, DC: U.S. Department of Health,
Education and Welfare, Office of Human Development, 1976.
4. Adoption Assistance and Child Welfare Act, Public Law 96-272,
94 Stat. 500 (1980), codified as amended, 42 USCA ? 670 et
seq.
5. Child Abuse Prevention and Treatment Act, Public Law 93-247,
88 Stat. 4 (1974), codified as amended, 42 USCA ? 5101 et seq.
6. Indian Child Welfare Act, Public Law 95-608, 92 Stat. 3069
(1978), codified as amended, 25 USCA ? 1901 et seq.
7. Juvenile Justice and Delinquency Prevention Act, Public Law 93-
415, 88 Stat. 1109 (1974), codified as amended, 42 USCA ? 5601 note.
8. The federal Independent Living Initiative was approved as part of
the much larger Consolidated Omnibus Budget Reconciliation Act
of 1985, Public Law 99-272 ? 12307(a), 100 Stat. 82, 294
(1986), codified as amended, 42 USC 677 note.
9. Foster Care Independence Act, Public Law 106-169, 113 Stat.
1822 (1999), 42 USCA ? 677 note.
10. Allen, M., and Nixon, R. The Foster Care Independence Act and
John H. Chafee Foster Care Independence Program: New catalysts
for reform for young people aging out of foster care. Clearinghouse
Review: Journal of Poverty Law and Policy (2000)
34:197?216.
11. Family Preservation and Support Services Act, enacted as part of
the Omnibus Reconciliation Act, Public Law 103-66, 107 Stat.
312 Part I ? 13711 (1993), codified as amended, 42 USCA ? 629 et seq.
12. The program?s definition of ?family support services? included
?services to promote the safety and well-being of children and
families designed to increase the strength and stability of families
(including adoptive, foster, and extended families).? ?Family
preservation services? were defined as ?service programs designed
to help children, where safe and appropriate, return to families
from which they have been removed; or to be placed for adoption,
with a legal guardian, or, if adoption or legal guardianship is
determined not to be safe and appropriate for a child, in some
other planned, permanent living arrangement.? See note 11,
629a (a)(1), (2).
13. The Child Welfare Waiver Demonstration Program was approved
as part of the Social Security Amendments of 1994, Public Law
103-432, and was amended in 1997 to allow up to 10 states per
year to conduct programs in each of Fiscal Years 1998 to 2002 in
Public Law 105-89 codified as 42 USC ? 1320 a?g. As this article
went to press, this program was awaiting reauthorization.
14. Multiethnic Placement Act, enacted as part of the Improving America?s
Schools Act, Public Law 103-382, 108 Stat. 4056 (1994), codified
as amended, 42 USCA ? 602, 1320A-2.
15. The Inter-Ethnic Adoption Provisions were approved as part of the
Small Business Job Protection Act, Public Law 104-188 ? 1808,
110 Stat. 1904 (1996), codified as 42 USCA ? 671 (a)(18).
16. Adoption and Safe Families Act, Public Law 105-89, 111 Stat.
2115, codified as 42 USCA ? 1305 note.
17. 45 CFR ? 1356.21 (d).
18. 45 CFR ? 1356.71 (g).
19. Although it defers to the discretion of judges in individual cases,
ASFA includes specific examples of situations where it might be
?unreasonable? to reunify children with their families and encourages
states to outline additional examples in state law. The situations
specified in ASFA in which reasonable efforts are not required
(but not prohibited) include a court determining that a parent
has committed murder or voluntary manslaughter of another of
his or her children or a felony assault that resulted in serious bodily
injury to his or her child; a parent subjecting the child to
aggravated circumstances as defined in state law; and the parental
rights to a sibling of the child having been involuntarily terminated.
20. U.S. Department of Health and Human Services, Administration
for Children and Families, Children?s Bureau. The report to the
Congress on kinship foster care. Washington, DC: DHHS, June
2000. Available online at http://aspe.hhs.gov/hsp/kinr2c00/
full.pdf.
21. ASFA provides bonuses to states only for adoptions that represent
an increase over the number of adoptions achieved in a previous
established base period. The previous number used to
calculate the increase is called the baseline. DHHS calculates the
individual baseline for each state by averaging each state?s number
of finalized adoptions of children in foster care for 1995, 1996,
and 1997. The baselines calculated for states in Fiscal Year 2001
can be found at www.acf.dhhs.gov/programs/cb/dis/
adoptbase.htm.
22. Fostering Results. Nation doubles adoptions from foster care.
Press Release. Children and Family Research Center at the School
of Social Work, University of Illinois at Urbana-Champaign,
October 2003. The full study is available online at
http://cfrcwww.social.uiuc.edu/.
23. H.R. 3182, the Adoption Promotion Act of 2003, was passed in
the House of Representatives on October 8, 2003, and sent to
the Senate. S. 1686 (an identical bill) and S. 1439 have been
introduced in the Senate.
24. 45 CFR ? 1357.15 (s); U.S. Department of Health and Human
Services, Administration for Children, Youth and Families, Children?s
Bureau. Program Instruction, Log No. ACYF-PI-CB-98-
03. Washington, DC: DHHS, ACYF, Children?s Bureau. March
5, 1998. Available online at http://www.acf.hhs.gov/programs/
cb/laws/pi/pi9803.htm.
25. This provision was added in the Promoting Safe and Stable Families
Amendment of 2001, Public Law 107-133, 115 Stat. 2413
(2001), 42 USCA ? 629h (c).
26. U.S. Department of Health and Human Services, Administration
for Children and Families, Children?s Bureau. Child welfare outcomes
1998: Annual report. Washington, DC: DHHS, September
ENDNOTES
Policy Context
Volume 14, Number 1 68
2000; and U.S. Department of Health and Human Services,
Administration for Children and Families, Children?s Bureau.
Child welfare outcomes 1999: Annual report. Washington, DC:
DHHS, February 2002. The most recent report is U.S. Department
of Health and Human Services, Administration for Children,
Youth and Families, Children?s Bureau. Child welfare
outcomes 2000: Annual report. Washington, DC: DHHS, 2003.
Available online at http://www.acf.dhhs.gov/programs/cb.
27. See, for example, Courtney, M., Needell, B., and Wulczyn, F.
National standards in the child and family service reviews: Time
to improve on a good idea. Paper prepared for the Joint Center
for Poverty Research Meeting on Child Welfare Services Research
and its Policy Implications. Washington, DC. March 20?21, 2003.
28. U.S. Department of Health and Human Services, Administration
for Children, Youth and Families, Children?s Bureau. Information
Memorandum, Log No. ACYF-CB-IM-02-02. Washington, DC:
DHHS, ACYF, Children?s Bureau. May 1, 2002. Available online
at http://www.acf.dhhs.gov/programs/cb/laws/im/im0202.htm.
29. U.S. Department of Health and Human Services, Administration
for Children and Families, Children?s Bureau. Child and family
services reviews: State final reports. Washington, DC: DHHS,
2003. Available online at
http://www.acf.dhhs.gov/programs/cb/cwrp/staterpt/index.htm.
Program improvement plans may be posted on the Web sites of
the state child welfare agencies.
30. Edwards, L.P. Improving implementation of the federal Adoption
Assistance and Child Welfare Act of 1980. In Resource guidelines:
Improving court practice in child abuse and neglect cases. Reno,
NV: National Council of Juvenile and Family Court Judges,
1995, Appendix C.
31. 42 USCA ? 629h, 629f (b)(2). See note 11.
32. In 2001, additional discretionary funding for the Promoting Safe
and Stable Families Program (the renamed Family Preservation
and Support Services Program) was authorized, specifying that
3.3% of any increased funds would be set aside for the Court
Improvement Program. For Fiscal Years 2002 and 2003 combined,
this meant an additional $3.3 million for the program. See
note 25.
33. The American Bar Association?s National Child Resource Center on
Legal and Judicial Issues has prepared annual reports on the progress
of participating state courts since 1998. See Lancour, R., and
Rauber, D.B. Court improvement progress report 2002. Washington,
DC: American Bar Association Center on Children and the Law, 2002.
34. See note 33, Lancour and Rauber, pp. 92?126.
35. The U.S. Department of Justice administers the model courts
with technical assistance from the Permanency Planning Department
of the National Council of Juvenile and Family Court
Judges. See Anonymous. Status report 2002: A snapshot of the
Child Victims Act model courts project. Reno, NV: National
Council of Juvenile and Family Court Judges, Permanency Planning
for Children Department, 2003.
36. Strengthening Abuse and Neglect Courts Act of 2000, Public Law
106-314, 114 Stat. 1266. SANCA authorizes $10 million for
grants to improve data collection systems, $10 million to reduce
the backlog of children waiting to be adopted, and an additional
$5 million to expand Court Appointed Special Advocates (CASA)
programs in underserved areas. In Fiscal Year 2002, a total of $2
million was appropriated for all three activities; no funds were
appropriated for Fiscal Year 2003. The report is available online
at http://thomas.loc.gov/cgi-bin/cpquery/T?report=hr278&
dbname=cp107.
37. US Const, Amend XIV, ? 1.
38. Washington v. Glucksberg, 521 US 702 (1997); see also Reno v.
Flores, 507 US 292 (1993).
39. Meyer v. Nebraska, 262 US 390 (1923); see also Pierce v. Society
of Sisters, 268 US 510 (1925).
40. Prince v. Massachusetts, 321 US 158 (1944).
41. See note 41, Prince v. Massachusetts.
42. 42 USCA ? 622(b), 671(a).
43. Troxel v. Granville, 530 US 57 (2000).
44. Angela R. v. Clinton, 999 F2d 320 (8th Cir. 1993).
45. Ana R. v. New York Department of Social Services, 90 CIV-3863
(SD NY, filed June 7, 1990).
46. Suter v. Artist M., 503 US 347 (1992).
47. Bohler v. Anderson, 987660 (San Francisco Superior Court, filed
June 24, 1997).
48. Committee to End Racism in Michigan?s Child Care System v. Mansour,
85 CV 7438 DT (E.D. Mich., filed September 23, 1985).
49. Children A-F v. Chiles, 90-2416 CIV (SD Fla., filed October 1990).
50. Aristotle P. v. McDonald, 721 F Supp. 1002 (ND Ill. 1989).
51. Bates v. McDonald, 901 F2d 1424 (7th Cir. 1990).
52. Budreau v. Hennepin County Welfare Board, #94-15706 (Minn.
D Ct, 4th District, filed October 6, 1994).
53. E.F. v. Scaffidi, 851 F Supp. 249 (SD Miss. 1994).
54. Emily J. v. Weicker, #393CV1944 (filed October 25, 1993).
55. Jane Doe v. Towey, 94-1696-CIV-Ferguson (SD Fla. 1994).
56. Jones-Mason v. Anderson, #982959 (Cal. App. Department Superior
Court, filed December 4, 1996).
57. Nicholson v. Williams, 203 F Supp. 2d 153 (2002).
58. Borgersen, E., Shapiro, S., and Stangler, G.L. A case-study in
court-ordered child welfare reform. Journal of Dispute Resolution
(1997) 2:189?214.
59. Personal Responsibility and Work Opportunity Reconciliation Act,
Public Law 104-193, 110 Stat. 2105, codified as amended in
scattered sections of 42 USCA.
60. Most states have expanded their TANF eligibility requirements
since 1996. Some have adjusted their earnings disregards; most
have increased the TANF resource limits above what they were in
AFDC; and most also have increased their vehicle asset levels.
However, these more generous levels cannot be used to determine
eligibility for federal foster care because PRWORA (see note
59) based eligibility on AFDC rules in place on July 16, 1996.
61. For a discussion of the impact of the TANF changes on child
welfare, see Hutson, R.Q. Red flags: Research raises concerns
about the impact of ?welfare reform? on child maltreatment. Washington,
DC: Center for Law and Social Policy, 2001, and Stoltzfus,
E. Child welfare and TANF implementation: Recent findings.
Washington, DC: Congressional Research Service, 2002.
62. Fortunately, other federal programs that provide services to families,
such as service programs under Title IV-B of the Social Security
Act, are not considered benefit programs, and eligibility was
not similarly affected.
63. See Matthews, M. New guidance on immigrant foster children?s
eligibility for federal benefits. Youth Law News (January/February 1999)
Allen and Bissell
69 The Future of Children
20(1):1?3, for a discussion of the impact on immigrant children.
Available online at http://www.youthlaw.org/immfc99.pdf.
64. Earner, I., Weeks M., and Thompson, K. Invisible walls: Immigrants
in the New York City child welfare system. New York:
National Resource Center for Foster Care and Permanency Planning,
March 2001.
65. See, for example, Simms, M.D., and Halfon, N. The health care
needs of children in foster care: A research agenda. Child Welfare
(1994) 73(5):505?24.
66. See Rosenbach, M. Children in foster care: Challenges in meeting
their health care needs through Medicaid. Princeton, NJ: Mathematica
Policy Research, Inc., 2001.
67. 42 CFR 435.930.
68. 42 CFR 435.201.
69. See Healthy ties: The grandparent?s and other relative caregiver?s
guide to health insurance for children. Washington, DC: Children?s
Defense Fund, 2001, for a discussion of state Medicaid
and SCHIP eligibility requirements.
70. 42 USCA ? 1396a(a)(10)(A)(ii); ? 1396d.
71. English, A., Morreale, M.C., and Larsen, J. Access to health care
for youth leaving foster care: Medicaid and SCHIP. Journal of
Adolescent Health (2003) 32(6 Suppl):53?69.
72. Woolverton, M. Meeting the health care needs of children in the
foster care system: Strategies for implementation. Washington, DC:
Georgetown University Child Development Center, 2002;
McCarthy, J. Meeting the health care needs of children in the foster
care system: Summary of state and community efforts. Washington,
DC: Georgetown University Child Development Center, 2002.
73. Washington State Department of Social and Health Services v. Keffeler,
537 US 371 (2003).
74. Jaudes, P., and Voohis, J. Association of drug and child abuse.
Child Abuse and Neglect (1995) 19(9):1065?75.
75. Young, N.K., and Gardner, S.L. Responding to alcohol and other
drug problems in child welfare: Weaving together practice and policy.
Washington, DC: Child Welfare League of America Press, 1988.
76. U.S. Department of Health and Human Services, Office of the
Surgeon General. Report of the surgeon general?s conference on
children?s mental health: A national action agenda. Washington,
DC: DHHS, January 2001.
77. See English, A., and Grasso, K. The Foster Care Independence Act
of 1999: Enhancing youth access to health care. Clearinghouse
Review (July?August 2000) 34:218?23; and McCarthy, J. Meeting
the health care needs of children in the foster care system: Summary
of state and community efforts. Washington, DC: Georgetown
University Child Development Center, September 2002, pp. 1?2.
78. Edelson, J.L. The overlap between child maltreatment and woman
battering. Violence Against Women (February 1999) 5(2):134?35.
In addition, two states, Massachusetts and Oregon, reviewed a
sample of their child welfare caseloads and found domestic violence
present in 43% to 48% of the identified cases. See Allen,
M., and Larson, J. Healing the whole family: A look at family care
programs. Washington, DC: Children?s Defense Fund, 1998.
79. See, for example, note 76, DHHS, Office of the Surgeon General;
note 78, Allen and Larson; McCarthy, J., Meyers, J., and Jackson,
V. Exploring the opportunity for collaboration between child
mental health and child welfare service systems. Washington, DC:
National Technical Assistance Center for Children?s Mental
Health, Georgetown University Child Development Center,
2001; Christian, S., and Edwards, K. Linking child welfare and
substance abuse treatment: A guide for legislators. Washington,
DC: National Conference of State Legislatures, August 2000;
and see earlier journal issue on domestic violence and children,
The Future of Children (Winter 1999) 9(3).
80. U.S. General Accounting Office. Foster care: Recent legislation
helps states focus on finding permanent homes for children but longstanding
barriers remain. GAO Report No. 02-585. Washington,
DC: GAO, June 2002.
81. For example, the Child Protection and Alcohol Drug Partnership
Act, which has been introduced in the 106th, 107th, and 108th
Congresses, would provide funds to state child protection and
alcohol and drug treatment agencies to jointly address the comprehensive
needs of children and families that come to the attention
of the child welfare system. The proposed legislation would
allow funds to be used to increase comprehensive treatment
approaches, improve substance abuse screening and assessment,
expand after care, and enhance training. The act is S.614 in the
108th Congress.
82. See note 79, Christian and Edwards.
83. Under a three-year waiver granted in 1996, Delaware used federal
foster care dollars to bring substance abuse treatment specialists
into its child welfare agency to assure that appropriate treatment
is provided to families when children first enter care. The goal of
the effort is to reduce the duration of out-of-home placements
for children of substance-abusing parents. See note 13.
84. Illinois, using a federal waiver awarded in 1999, provides ?recovery
coaches? for parents with substance abuse problems who
have children in foster care. These coaches help parents complete
treatment, avoid relapse, and negotiate the various treatment and
service systems. See note 13.
85. See note 79, McCarthy, et al., pp. 35?36.
86. The comprehensive approach in the pilot activities was first outlined
in Effective intervention in domestic violence and child maltreatment
cases: Guidelines for policy and practice. Reno, NV:
National Council of Juvenile and Family Court Judges, 1999.
The Keeping Children and Families Safe Act of 2003, Sec.
401(C), enacted in 2003, provides for demonstration funds for
services and training for children who witness domestic violence
and those who work with them.
87. The Section 8 Family Unification Program is authorized by the U.S.
Housing Act of 1937, as amended by section 553 of the Cranston-
Gonzalez National Affordable Housing Act of 1990, Public Law
101-625, 104 Stat. 4128, codified as 42 USCA ? 1401 et seq.
88. In 2000, Congress expanded eligibility for the Family Unification
Program to include youths aging out of foster care at age 18. See
42 USCA ? 1437f(x).
89. No new Section 8 vouchers were set aside for the Family Unification
program in 2002 or 2003. However, the U.S. Conference of
Mayors, in its 2001 survey on the status of hunger and homelessness
in 27 major cities, found that about three-quarters of the
cities reported an increase in requests for shelter by homeless
families. The survey noted that requests for housing increased
overall by 22%, although more than half of the requests remained
unmet in 2001. Every city interviewed for that survey reported
that it expected the number of housing requests to grow in
2002. See U.S. Conference of Mayors. The status of hunger and
homelessness in America?s cities in 2001. Washington, DC: U.S.
Conference of Mayors, 2001.
90. The Casey Family Programs? National Center on Resource Family
Support has useful materials available to help foster parents and
other resource families better understand how they can maximize
Policy Context
Volume 14, Number 1 70
their tax benefits. See, for example, O?Connor, M.A. Federal tax
benefits for foster and adoptive parents and kinship caregivers.
Washington, DC: Casey Family Programs, National Center for
Resource Family Support, 2001. Effective 2004, these materials
can be accessed through Casey Family Programs at
http://www.casey.org.
91. In 2001, the Economic Growth and Tax Reconciliation Act
broadened eligibility for the EITC to include certain relative
caregivers and foster families caring for children placed with
them for a certain period of time by an authorized child welfare
agency. Beginning in tax year 2002, a foster child must
have lived in the family?s home for more than six months,
rather than one year as was previously required. See the Economic
Growth and Tax Reconciliation Act, Public Law 107-16,
115 Stat. 38 (2001), codified as 26 USCA ? 32(c)(3)(A) and
(B)(iii).
92. See the Economic Growth and Tax Reconciliation Act, Public
Law 107-16, 115 Stat. 38 (2001), codified as 26 USCA ? 24.
93. See the Jobs and Growth Tax Relief Reconciliation Act of 2003,
Public Law 108-27 ? 107 (May 28, 2003), to be codified at 26
USC ? 6429 (2003).
94. The law increased the adoption tax credit to $10,000 per eligible
child for children whose adoptions were finalized in 2002,
including children with special needs, and also raised the
income-eligibility limits for families. Beginning in 2003, families
who adopt children with special needs will receive an added
advantage. If they are otherwise eligible, they can benefit from
the full adoption tax credit, regardless of whether their expenses
meet the previously established definition of ?qualified expenses.?
This change should help increase the benefit of the credit
for families who have some tax liability but have had difficulty
benefitting from it in the past. See the Economic Growth and Tax
Reconciliation Act, 26 USCA ? 23.
95. Bess, R., Leos-Urbel, J., and Geen, R. The cost of protecting vulnerable
children II: What has changed since 1996? Occasional
Paper No. 46. Washington, DC: Urban Institute, 2001, p. 29.
96. Bess, R., Andrews, C., Jantz, A., et al. The costs of protecting vulnerable
children III: What factors affect states? fiscal decisions?
Occasional Paper No. 61. Washington, DC: Urban Institute, 2003.
97. Other long-standing barriers identified in the report included
difficulties in recruiting adoptive families for children with special
needs and obstacles to expediting decision making in certain
cases. U.S. General Accounting Office. Foster care: Recent legislation
helps states focus on finding permanent homes for children, but
long-standing barriers remain. GAO Report No. 02-585. Washington,
DC: GAO, June 2002, pp. 4, 36, 42.
98. U.S. Department of Health and Human Services, Administration
for Children and Families. National survey of child and adolescent
well-being. Washington, DC: DHHS, June 2001. This survey is
based on a national longitudinal study of children in the child
welfare system at risk for abuse and neglect.
99. U.S. Department of Health and Human Services, Administration for
Children and Families. AFCARS interim estimates for FY 2000 as of
August 2002. Washington, DC: DHHS, August 2002. Available online
at www.acf.hhs.gov/programs/cb/publications/afcars/report7.pdf.
100. See Barth, R., Gibbs, D., and Siebenaler, K. Assessing the field of
post-adoption service: Family needs, program models, and evaluation
issues. U.S. Department of Health and Human Services
ASPE Report. April 10, 2001. Available online at http://aspe.hhs.
gov/hsp/PASS/lit-rev-01.htm, and Freundlich, M., and Wright,
L. Post permanency services. Washington, DC: Casey Family Programs,
2003. Available online at http://www.casey.org/cnc/documents/
post_permanency_services.pdf.
101. Social Security Amendments of 1994, 42 USC ? 1122.
Allen and Bissell
71 The Future of Children
Appendix
Chronology of Major Legislation Impacting Child Welfare
Legislation Provisions Impacting Child Welfare
Social Security Act, Title IV-B, 1935 Provided federal funding to states for a broad range of preventive and protective child welfare
services for abused and neglected children. Authorized grants to states for training and for
research and demonstration programs on behalf of abused and neglected children. But the focus
was broad, and funds dedicated to achieving these general goals were very limited. (Referred to as
the Child Welfare Services Progrm, Part 1 of Title IV-B.)
Aid to Families with Dependent Established the first federal foster care program under Title IV-A of the Social Security Act, provid-
Children (AFDC)-Foster Care Program, ing federal funds to states to care for children in families receiving Aid to Families with Dependent
1961 Children (AFDC) who could no longer remain safely in their family homes. (In 1980, this program
was transferred to a new Title IV-E of the Social Security Act.)
Juvenile Delinquency and Prevention Prohibited the placement of abused and neglected children and status offenders (children charged
Act, 1974 with offenses that would not be crimes if the children were adults) in juvenile or correctional
facilities.
Child Abuse Prevention and Treatment Provided limited funding to states to prevent, identify, and treat child abuse and neglect and required
Act, 1974 states to mandate reporting of suspected abuse and neglect to child protective services agencies.
Title XX of the Social Security Act, 1975 Provided funds to the states for a wide range of social services for low-income individuals, including
child abuse and neglect prevention and treatment, and foster care and adoption services.
(Became the Social Services Block Grant in 1981.)
Developmentally Disabled Assistance Required states to establish a Protection and Advocacy System to protect the rights of develop-
Bill of Rights, 1975 mentally disabled persons, including children. Required enforcement of specific protections for
developmentally disabled persons, including access to appropriate treatment, services, and
rehabilitation in the least restrictive setting. Also required case plans and periodic reviews, as
would later be required for all foster care children under AACWA (see below).
Education for All Handicapped Children Afforded the right to a free, appropriate, public education in the least restrictive educational
Act, 1975 environment possible to all children with disabilities, including abused and neglected children in
out-of-home placements. Extended to children in foster care the right to allow surrogate parents to
advocate on their behalf in defining their individualized education plans. (Became the Individuals
with Disabilities Education Act.)
Indian Child Welfare Act, 1978 Addressed the appropriateness and quality of foster care placements and made it more difficult to
remove Indian children from their birth families and place them in foster care. Strengthened tribal
governments? role in determining the custody of Indian children by specifying that preference
should be given to placements with extended family, then to Indian foster homes. The act was
intended to eliminate the risk of Indian children being removed from their families due to cultural
biases, to increase the likelihood of placements within tribes, and to involve tribal courts, whenever
necessary, in determining an appropriate placement. Like AACWA that followed it, the act spelled
out priorities for the placement of children, requiring that a child be placed first with a member of
his or her family or extended family; second in a home approved by the tribe; third in an Indian
foster home; or fourth in an institution for children approved by the tribe or operated by an Indian
organization.
Policy Context
Volume 14, Number 1 72
Allen and Bissell
Legislation Provisions Impacting Child Welfare
Adoption Assistance and Child Welfare Established the federal Foster Care and Adoption Assistance Programs in a new Title IV-E of the
Act, 1980 (AACWA) Social Security Act. Continued federal funding for foster care for children from AFDC-eligible
families, but with enhanced protections to ensure that children entered foster care only after ?reasonable
efforts? to prevent placement were made. Provided funds to establish programs and procedural
reforms in order to serve children in their own homes, prevent out-of-home placement,
facilitate family reunification following placement, and help pay adoption expenses for children
with special needs. Required foster care placement in the least restrictive, most familylike setting
appropriate to a child?s special needs. Required periodic reviews of care, ?reasonable efforts? to
reunify children with families, and dispositional hearings to help move children to permanent families
in a timely fashion. Children eligible for federal foster care were made automatically eligible for
federal adoption assistance payments and for assistance under Medicaid. (This assistance was
particularly significant for children in foster care because it removed fiscal disincentives for state
child welfare agencies to move children to adoption.)
Independent Living Program, 1986 Established under Title IV-E of the Social Security Act to assist youths aging out of the foster care
system. Provided grants to states to fund a range of independent living services for children age 16
and older to ease the transition from foster care to living on their own.
Family Preservation and Support Established under Part 2 of Title IV-B of the Social Security Act, providing funds to the states for
Services Program, 1993 family support and planning and services to help communities build a system of services to assist
vulnerable children and families. In addition to preventing unnecessary foster care placements,
such services were intended to assist both children in foster care and those moving to adoptive
families. The new law required states to engage the community in a broad-based planning process
to determine the right mix of services and supports for children and families. Subsequently, under
ASFA, the name of the program was changed to Promoting Safe and Stable Families to reflect an
enhanced focus on permanency, primarily through adoption.
Multiethnic Placement Act, 1994 Prohibited agencies that receive federal funding and are involved in foster care or adoptive place-
(MEPA) ments from discriminating in such placements. Prohibited them from categorically denying to any
person the opportunity to become an adoptive or foster parent ?solely? on the basis of race, color,
or national origin and from delaying or denying the placement of a child ?solely? on the basis of the
race, color, or national origin of the adoptive or foster parent, or the child, involved.
Child Welfare Demonstration Waiver Permitted up to 10 states to use Title IV-B and IV-E funds to alter traditional ways of financing child
Program, 1994 welfare services to support new policy and practice approaches, provided that the new activities
were consistent with the purposes of the programs, maintained current legal protections, and did
not cost more than was projected to be spent under the traditional programs.
Inter-Ethnic Adoption Provisions, 1996 Amended MEPA to eliminate the permissible consideration of race, ethnicity, and culture in making
foster or adoptive placements and to reaffirm the prohibition against delaying or denying placement
on the basis of a child?s or prospective parent?s race, color, or national origin. Imposed new
financial penalties on public and private agencies for violations of the antidiscrimination requirement.
Personal Responsibility and Work Replaced the AFDC program with Temporary Assistance for Needy Families (TANF), a
Opportunity Reconciliation Act, 1996 state-administered block grant to provide time-limited income assistance to needy families. The
(PRWORA) law limited eligibility to Title IV-E assistance to those children who would have been eligible for
AFDC as of July 16, 1996.
Legislation Provisions Impacting Child Welfare
Adoption and Safe Families Act, 1997 Required that a child?s safety be the paramount consideration in any decision a state makes
(ASFA) regarding a child in the child welfare system. Established new timelines for moving children into
permanent homes, either by safely returning them home or by terminating parental rights and
moving them into adoptive or other permanent placements. Increased examples of situations
where ?reasonable efforts? might not be required. Reauthorized the Family Preservation and
Support Program, changing its name to the Promoting Safe and Stable Families Program.
Foster Care Independence Act, 1999 Established the John H. Chafee Foster Care Independence Program to offer new services and supports
to children aging out of foster care and to increase state accountability for their outcomes.
Included a requirement that foster parents be adequately prepared to care for the older children
placed with them. Increased funding levels for independent living activities and, for the first time in
federal law, specified that a portion of these funds could be used for room and board for young
people ages 18 to 21 who were leaving foster care. Gave states the option of providing Medicaid
coverage to young people between the ages of 18 and 21 who were in foster care on their 18th
birthdays. Increased the amount of assets a young person in foster care could have in order to
have continued eligibility for Title IV-E funding.
Policy Context