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In New York, an attorney tries to put a good face on how his agency could have forgotten a brother and sister placed in foster
care seven years ago. The two are doing well, the lawyer explains, adding: "Obviously, the foster mother took very good care
of them."
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THE PAPER TIGER
"I knew I would be here, I knew in my worst, worst moments, I knew that I would be here again," said George Miller, Chairman
of the Select Committee on Children, Youth and Families.
Ten years earlier, he had set out to help craft the legislation that was to change the child welfare and foster care systems.
"We were alarmed 10 years ago by the studies done at Stanford that indicated that in California you get 6 minutes on the
average for a court review to review 6 months of your life. Which may in some instances be half of your life, if you are an
infant," said Chairman Miller.
"We were alarmed; and now we hear there is 30 seconds spent on the periodic review. It is a clear violation of the law.
Periodic review without advocates -- clear violation of the law."[1]
The law that George Miller and the distinguished members of the Select Committee would enact would come to be know as Adoption
Assistance and Child Welfare Act, or Public Law 96-272. The Act included a provision that "reasonable efforts" be made to
prevent placement in foster care.
Ten years after he and the Committee drafted the legislation, here he was again, reminding the members of the Committee
that the stories they heard that day were no different from those they had heard a decade earlier--that little, if anything,
had changed.
Several months later, Chairman Miller would once again call the Select Committee to order by explaining to its newer members
how Public Law 96-272 came to be enacted:
The role of the government was limited; we paid the bill, often for warehousing children in institutions and inappropriate
settings, without services, without accountability, without any significant efforts to address whatever catastrophe had driven
them into this Dickensian disaster of a system.
We heard stories of children taken from their homes, shipped hundreds of miles away to other states where they were kept
for months, or even years, in unlicensed and unsuitable places. And we responded.[2] The reasonable effort requirement of P.L. 96-272 was implemented, in part, because the Congress determined that a large
number of children were being unnecessarily removed from their homes.
As a California-based Grand Jury explained: "Public Law 96-272 mandates prevention of unnecessary separation of children
from their families by providing social services to these families."[4]
Then, as now, there were no services being provided to prevent the traumatic and often needless removal of children into
state care, the Child Welfare League of America recently explained to a Senate Subcommittee:
Hence, Public Law 96-272 also included a provision that a reasonable system be developed to identify the hundreds of thousands
of children in state care.
"The goals of the Act are modest," Children's Rights Project attorney Marcia Robinson Lowry explained to the Congress.
"As a condition of federal funding, states must have a reasonable information system to identify the children in federally-funded
state custody. Under this law children come into state custody only after 'reasonable efforts' have first been made to keep
them at home with their families.
"Once children are in state custody," Lowry explained, "a permanent plan is to be made for each child with the goal of
returning them to their families, through the provision of services, or if that is not possible, that adoptive homes be sought
for them. The Act also requires that children be kept in the most family like settings possible while in foster care, and
that the children's status be reviewed periodically."[6]
The problem of "foster care drift," in which children are shuffled through multiple placements for years of time was also
a factor.
"These amendments were precipitated by studies which showed that the public child welfare system had become a holding system
for children living away from parents, rather than a system assisting parents in carrying out their roles and responsibilities
and providing for alternative permanent placement for children who cannot return to their own homes," explains the Departmental
Appeals Board of the Department of Health and Human Services. "Thus, one of the goals of Public Law 96-272 was to ensure that
children do not remain adrift in the foster care system."[7]
The Adoption Assistance and Child Welfare Act did enjoy some measure of success during the first few years following its
passage.
The number of children in foster care during the mid-1970s was reduced from its high of half a million to a low of nearly
half that number, or 262,000 in 1982.[8]
Lack of federal enforcement resulted in the subsequent doubling of the foster care population, which exceeds previous levels
today.
The reasonable efforts requirement suffered from a near-complete lack of enforcement on the federal level.
The only method of enforcement the Congress devised was that of providing incentive funds to states who complied with the
requirements of the federal law. States would "self-certify" compliance, but would be subjected to periodic audits by the
Department of Health and Human Services to ensure their compliance. In the event of failure, the state would return those
incentive funds over and above the federal contribution.[9]
These periodic audits of state compliance would come to be known as "section 427 reviews."
Over time, the states would learn that these reviews were all but meaningless, as Michael Petit, Deputy Director of the
Child Welfare League of America recently explained to the Congress:
A 1993 study determined that "the reasonable efforts requirement has not been formally defined in federal legislation or
regulation, nor has it been addressed conclusively by the courts."
The report stressed that the lack of definition in the reasonable efforts requirement "leads to confusion, burdens the
courts, and allows states and agencies to disregard it."
The report also asserted that those states, jurisdictions, and agencies which did adhere to the requirement did so without
federal guidance.[11]
Indeed, the failure of the federal government to provide effective oversight has long been an issue. In 1986, six years
after the Adoption Assistance and Child Welfare Act became law, Mark Soler, director of the National Youth Law Center explained:
There is no clear Federal voice as to what is required under Public Law 96-272.[12] "I think what has been demonstrated here is that you may have a system that, for lack of a better phrase, is simply in
contempt," said Miller. "This system has been sued and sued and orders have been issued and people have just continued on
their merry way. And HHS has just continued to look the other way. You have a system that is not only somewhat out of control;
it is also illegal at this point."
There was no expression of interest on the part of the administration in getting the child welfare system back on track,
said Miller, and as a result "what we see is that it is chewing up an increasing number of children in the process."[13]
"The reviews that are done of the States are irresponsible," said Marcia Robinson Lowry. "States are passing HHS audits
with systems in which no reasonable person could consider children are being well treated. It is virtually impossible to fail
an HHS audit."[14]
Nevertheless, several states have managed to accomplish just that.
Louisiana was among those states to accomplish the impossible, having failed its compliance audit. When asked what her
state had done about it, Sydney Olson, then Assistant Secretary in charge of child welfare has no idea what, if anything,
her agency had done, prompting the exasperated Chairman George Miller to ask: "What do you do in this department?"
Perhaps the best indication of the states contempt for federal oversight came when Congressman Thomas Downey, who was co-chairing
the hearings, read aloud from the prepared testimony of Olson's predecessor as provided at the hearings held one year earlier,
comparing it to the testimony Olson had just delivered. Word for word, the excerpts were identical.
"This reminds me of the book reports I used to do in high school," said Downey, adding that he had recycled them in the
tenth and twelfth grades. "My reports didn't change. Remarkably, apparently neither does your testimony from year to year."
Added the frustrated Chairman Miller: "What you are really engaged in is state-sponsored child abuse."[15]
In 1984, the Office of the Inspector General of HHS identified 28 states "that were having difficulties in satisfying the
program requirements."
A full decade after the implementation of the Act, between the period of March 1990 through October 1992, several states
and the District of Columbia managed to accomplish the impossible and fail their compliance audits.[16]
The Illinois Department of Children and Family Services, for example, was found ineligible to receive $5,634,432 in federal
incentive funds for fiscal year 1991. Federal reviewers determined "that Illinois was well below the 90% compliance level
required for that year."
Reviewers found "overwhelming evidence" of the state's lack of compliance. During its review, they found the first 8 out
of 12 sampled cases out of compliance. Continuing the review, they concluded that 52 of 107 sampled cases were out of compliance.[17]
In a similar action, Illinois raised a number of legal arguements, among them contending that if disallowances based on
the review methodologies "are not outright unlawful, they are clearly against stated Congressional policy and must on that
basis be deemed arbitrary and capricious."
The Appeals Board was unpersuaded by this argument, however, as Illinois had already raised it in the previous action.[18]
In 1995, the HHS Departmental Appeals Board determined that of 100 sampled payments for which the state of Pennsylvania
had filed for federal reimbursement, 25 were found to be ineligible, primarily for lack of proper judicial determinations
with respect to reasonable efforts having been rendered to prevent removal, or determinations that remaining in the home would
be contrary to the best interests of the child.[19]
The state of New York is among those to share the dubious distinction of failing an HHS compliance audit. This case merits
review at some length, as it details the extent to which the states will go to maximize federal foster care revenue.
The disallowance was based on an audit of State claims for foster care maintenance payments made by the New York City Department
of Social Services.
Federal auditors determined that the City had made errors in determining eligibility, or had failed to document eligibility,
in 186 of 257 sample cases, projecting a disallowance of $64,123,732.
Auditors also initially disallowed an additional $27,991,567 which was claimed for "administrative costs."
The 186 disallowed cases included:
In addition to all of this, 5 case folders were not found, 6 case folders were inadequately documented, 15 children were
ineligible because responsibility for their care and placement was either not imposed on New York City or was transferred
to private agencies, another 4 children were voluntarily placed into care without a signed voluntary agreement in violation
of regulations, while another 3 children were ineligible because they were not United States citizens or legal aliens.
On appeal, it was found that "the auditors were in a sense being conservative in using the percentage of payments found
in error, rather than the percentage of children for whom those payments had been made." Auditors found that 76.6% of the
children in the sample, as compared to 52.6% of the payments, were in error.[20]
True to form, the U.S. Department of Health and Human Services has continued in its efforts to undermine the few meager
protections offered to children by the Adoption Assistance and Child Welfare Act.
In August of 1994, the Department issued a report citing some of the same disallowances detailed here, including that of
New York, presenting them as examples of the "proliferation of rules" which when tied with penalties for noncompliance have
"hampered the States in their administration of the Federal Foster Care program."
Incredibly, the report argues that: "The children in need of foster care services may be deprived of Federal support because
the State's difficulty in meeting the precise statutory requirements prescribed for the use of Federal funds."
"There is no allowance for or definition of 'substantial compliance'," says the report.
Apparently, the Department of Health and Human Services is of the opinion that 76.6% of all children in a sample group
in New York; 52 of 107 sampled cases in Illinois; and 25 of 100 cases in Pennsylvania being out of compliance would constitute
"substantial compliance."
The continued efforts of the Department of Health and Human Services to derail the Act have served well to undermine confidence
in its key provisions.
As the report notes: "In recent months some of these eligibility requirements have been viewed as 'technical' in nature
by Members of Congress and State officials."
The law was destined for failure, as the Department of Health and Human Services was hostile to the law from its inception,
wrote George Miller in 1990. "Frankly, we don't know whether or not the law works because the Department of Health and Human
Services, throughout the 1980s, failed to enforce compliance.
"One of the first acts of the Reagan administration in 1981 was to try to repeal the law. When the Congress wouldn't let
that happen, the Department effectively repealed the law through its lax enforcement."
Adds Miller: "I'm asking the same questions I asked more than a dozen years ago when we developed this landmark legislation.
And still there are no answers."[21]
But the hostility toward the legislation on the part of the Federal leadership was not the only factor leading to the failure
of the Act. The real battle would be fought by a variety of special interest groups with vested interests in maintaining the
levels of children in foster care, and by a bureaucratic structure intent on ensuring its own survival. As of 1990, George Miller and the members of the Select Committee on Children, Youth and Families had counted over 45 lawsuits
which had been won by child advocates based on violations of the Adoption Assistance and Child Welfare Act.[1]
As of February of 1996, 11 such lawsuits were pending against child welfare administrations around the country.[2]
"Lawsuits have certainly increased in the last five to 10 years," says Judy Meltzer of the Center for Social Policy in
Washington. The center is the court-appointed monitor for the District of Columbia and has worked with systems in Alabama,
Missouri, Connecticut, Arkansas, Milwaukee, and Kansas City.
"The biggest challenge is coming up with remedies that are realistic, but it has to start with leadership and a culture
change in the bureaucracy," says Meltzer.[3]
The Center for Social Policy has its hands full monitoring these troubled systems.
In Arkansas, for example, the civil action asserted, among many other things, that its Division of Children and Family
Services had failed to investigate complaints of abuse and neglect, to make "reasonable efforts" to keep families together,
and to provide adequate care to children placed in foster homes.[4]
The Connecticut action was filed after the state social services commissioner likened the system to a "hospital emergency
room" and decried the "senseless, merciless destruction and devastation of our children."[5]
A 1992 study of the state of Kansas found that reasonable efforts had not been made in 54.8 per cent of cases. In 86.8
per cent of cases where a child was put in foster care, Kansas failed to make the required reasonable effort to reunite him
with his parents.[6]
Long after a settlement to a lawsuit largely based on Public Law 96-272 was reached in Kansas, reviewers in 1995 found
the state to be out of compliance with at least 23 out of 47 settlement elements. Among the many problems reveiwers identified:
Frustrated legislators finally took the measure of privatizing every aspect of the Kansas child welfare and foster care
programs, with the exception of conducting investigations. Kansas is the first state to undertake such a drastic measure,
having realized that bureaucratic and administrative barriers will forever prevent reform.[8]
"Few if any states are in compliance with the law," says Marcia Robinson Lowry.
In Louisiana, the Children's rights project found that only one-third of the children coming into foster care had received
any family services prior to placement. And, while the law required placement in the most family-like setting, about fifty
percent of those children in institutional placements were there unnecessarily, according to the state's own criteria.
In New Mexico, none of the children in state custody had plans containing elements relating to a consent decree
based on Public Law 96-272. Sixty-five percent of the children eligible for adoption had never been referred to the adoption
unit. Six month reviews did not occur as required for 25 percent of the children.
In spite of all this, New Mexico passed its federal compliance audit.
In Kentucky, children continued to languish in temporary foster homes in Louisville even when everyone thought they should
have been adopted. Only 55 percent of foster children received a case plan within the mandated six months of time.[9]
The extent to which some agencies can continue to function while being so far out of compliance with the basic provisions
of the law is often amazing.
In Guilford County, North Carolina, a 1996 audit determined that each file reviewed had "significant errors in reference
to organization, documentation, social work practice and policy compliance."
There was not a single case reviewed that would have passed the federal foster care review, auditors wrote.[10]
The state of Pennsylvania managed to consistently violate virtually every provision of the Adoption Assistance and Child
Welfare Act, including the reasonable efforts requirement, as the United States Court of Appeals for the Third Circuit explained:
The reasonable efforts requirement is barely even considered in some jurisdictions. In Illinois, for example, court reveiwers
found that "the obligation of DCFS to extend reasonable efforts to keep families together reportedly is never discussed on
the record."
One judge reports that he has resisted providing guidelines to the agency on what constitutes reasonable efforts, since
he fears it would set a minimum standard that would rarely be exceeded.[13]
Even the permanency planning provisions of the law have barely been applied.
"In Arizona the concept of permanency appears to be tantamount to adoption," reviewers wrote, adding that this indicates
a clear departure from the national consensus on children's needs for permanency.
Of 4152 cases reviewed, only 52 percent contained adequate documentation, while the standard for documenting contacts was
met in less than half of the compliance categories.[14]
Few know the child welfare system as intimately as does George Miller, former Chairman of the Select Committee on Children,
Youth and Families.
Miller explained that the child welfare system is a system that "removes children without cause; where reviews of their
status are perfunctory if not non-existent; where volunteer children do not receive such reviews; where they continue to be
moved time and time again without determining if this is for the benefit of the child."[15]
It was these conditions that the Adoption Assistance and Child Welfare Act was intended to address. Yet, the law has routinely
been disregarded by child welfare administrators, to the detriment of children and families.
The requirements of Public Law 96-272 are neither unreasonable, nor overly proscriptive. States must provide some reasonable
efforts to prevent removal by providing appropriate services as an alternative to placement. They must also document the reasons
for a child's removal from the home, and provide some measure of oversight through the courts.
Those children who cannot be reunited with their parents must be provided with permanent and stable adoptive placements.
Why haven't the modest goals of Public Law 96-272 been realized? Why do children continue to be unnecessarily removed from
their homes, only to languish in inappropriate placements for years at a time?
Part of the answer is the near complete lack of meaningful federal oversight, but the lion's share of the blame may be
lain squarely at the feet of the child welfare bureaucracy itself.
Fiscal incentives contribute to the crisis. In the more conservative post-sixties era, most federal social services dollars
were actually going to create "an expensive, punitively-inclined child protection apparatus which was to take over Departments
of Social Services," argues sociologist John Hagedorn.[16]
By the end of the 1970s, nearly three quarters of all child welfare dollars were being spent on foster care supervision
and payments.[17]
Notes Hagedorn: "The tendency within social work toward investigation and child removal has been strengthened by changes
over the past few decades in the structure of social service bureaucracies. Departments of social services have restructered
in such a manner to facilitate investigative and child placement functions."
Hence, argues Hagedorn: "Investigation of poor families and removal of children into foster care have crystalized as the
core tasks of social work, those tasks which define what line workers do on a day-to-day basis."
As Dr. Leroy Pelton, former special assistant to the director of the New Jersey Division of Youth and Family Services explains:
"An increase in the number of caseworkers would not necessarily have led to more removals were it not for the fact that foster
care was the primary resource that child welfare agencies possessed."[18]
Public Law 96-272 may have been doomed from its inception, as the spirit and intent of the legislation ran contrary to
the bureaucratic imperatives of administrative growth and expansion of the child welfare apparatus.
As Hagedorn explains:
It was against this backdrop of administrative expansion that Public Law 96-272 was passed.
Nowhere is the bureaucratic imperative for expansion more apparent than in George Miller's home state of California. Notes
the former Chairman of the Select Committee on Children, Youth and Families:
"While the fiscal and economic costs of this are enormously high, the real cost is incurred by the children who are deprived
of a healthy family by a system that puts its own welfare above theirs," the Institute concluded.[20]
The bureaucratic imperative for expansion has long been documented in California.
A Santa Clara County Grand Jury examined the funding mechanisms that drive foster care placements:
Elsewhere, Cindy Perry, Chair of the San Diego Juvenile Justice Commission writes: "The safety and well-being of the child
is not always the primary concern in the management of cases being handled by Children's Services."[22]
"It is time that we put an end to this confusion," wrote County Supervisor George. F. Bailey to the San Diego Board of
Supervisors. "More importantly, it is time that we put a stop to a system which seems to perpetuate itself without accountability
or without regard to what it is doing to children and families."[23]
The imperative for expansion and survival is not limited to any one particular state. Rather, it pervades the child welfare
system, which is itself structured as a bureaucratic civil service system.
The bureaucratic civil service model is ill-suited to serving the needs of children and families, argues a Massachusetts
Commission.
A blistering 280-page report issued by the 1993 Governor's Special Commission on Foster Care recommended abolishing the
civil service system used by the Department of Social Services in the hiring and promotion of workers, finding the agency
to be on the verge of organizational collapse, with management and leadership failures having left the department virtually
paralyzed.
As a result, the Commission said, the Department is unable to effectively serve the needs of children and families and
that many children, while in the care of the department, suffer continued and repeated abuse and neglect.
The Commission called for a complete restructuring of the agency, saying that without an overhaul, any other recommended
changes will be nearly impossible to undertake.
"This commission is asking for nothing less than a serious reformulation of the objectives of the state's child protection
and child welfare systems," said Dr. Eli Newberger, a Commission member and director of family development programs at Children's
Hospital.[24]
Says ACLU attorney Benjamin Wolf, who filed a landmark suit against the Illinois child welfare system: "Bureaucracies have
a different agenda than placing a kid with someone who loves them. The incentive for the bureaucracy is to fill a slot, find
a placement, a bed."[25]
"Child welfare's bureaucratic solidity, growing since the 1930s, had created an institution whose primary mission became
its own survival," writes Renny Golden. "Community and family needs did not, and would not, supersede the bureaucracy's existence."[26]
At the heart of the problem are the fiscal incentives for maintaining children in care.
Notes Conna Craig, of the Boston-based Institute for Children, the foster care funding system "gives child welfare bureaucracies
incentives to keep free-to-be adopted kids in state care. State social service agencies are neither rewarded for helping children
find adoptive homes nor penalized for failing to do so in a reasonable amount of time."[27]
In her home state of Massachusetts, child welfare agencies are known to defer requests for termination of parental rights
until children reach the age of seven, says Craig. At that age, children are deemed to have special needs, and child welfare
agencies can request more funds from the federal government for their care.[28]
Worse, federal grant funding is structured such that any reduction in an agency's foster care caseload results in a loss
of agency revenue by virtue of "negative grant funding."[29]
But foster care dollars are not the only available funding stream for agency expansion.
In Contra Costa County, California, a recent lawsuit alleges that the County has maintained adoptable children in foster
care for the sole purpose of misappropriating their social security funds. In one case mentioned as representative in the
suit, a child was found to have six social security numbers, not one of which was her own. The practice is alleged to have
continued for years.[30]
In Virginia, according to former Governor Douglas Wilder, "children often bounce from agency to agency, from foster to
group home to institution, and from funding stream to funding stream."
They are often defined by the system whose door they happen to enter, according to Wilder. As a result, the taxpayer foots
the bill for more children than there actually are in the system. Said the former Governor: "In Virginia, for example, we
found that of the 14,000 names of children across four agencies, they were, in fact, only 4,933 children."
During fiscal year 1989, taxpayers spent over $100 million on groups homes or institutional care for these 4,993 children,
and another $72.8 million on restrictive, out-of-community programs, according to the former Governor.[31]
Opportunities for the diversion of funds for bureaucratic expansion abound, and with precious little oversight or accountability.
As detailed elsewhere in this series, the State of New York diverted more than half of its claim for Emergency Assistance
funds, which are intended to help needy families in crisis, to offset "administrative costs" for child protective workers
in Fiscal Year 1994. The amount in question totaled over $230 million.
California amended its definition of a family unit such that the income of one child is measured against an income of $92,800
to determine eligibility for emergency aid, while Colorado set the family income requirements for emergency aid at $75,000.
Pennsylvania and Connecticut have similarly arranged their financial affairs to maximize the influx of federal revenue.
Notes the Inspector General, all of this is done to offset the costs of operating the state's respective juvenile justice,
foster care, and child welfare systems.[32]
Reducing or capping the funding has little impact, as there are so many funding streams from which to draw. And, help is
always just a phone call away.
When the Texas Comptroller of Public Accounts went looking for ways to reduce the financial impact of block granting of
the AFDC, Emergency Assistance, and the JOBS programs on Texas human services agencies, all he had to do was pick up the telephone
and consult with experts in the area of maximizing federal revenue--child welfare administrators in other states.
After conducting interviews with Teresa Kinsella and Susan Masciolic, of the Massachusetts Department of Social Services,
and Dennis Bothamley, of Andersen Consulting, Inc., he determined, among other things, that state agencies should shift their
claims from Emergency Assistance to Medicaid.
"By shifting its claims from the EA block grant to Medicaid, which offers federal matching money, the agency will receive
additional federal funds," writes the Comptroller. The Medicaid funds may in turn be used "to cover both their direct costs--such
as employee salaries--and indirect costs--such as rent and janitorial services."[33]
The disdain for the needs of families and children held by child welfare officials is nowhere more apparent than in Illinois,
where at least $1 million earmarked for the training of foster parents was authorized by former department head Sue Suter
to be diverted to cover the costs associated with temporary secretaries, bottled water, trash collection, equipment, furniture,
utility bills and office rent.
"This agency has a history of taking funds intended for foster parents and children, and, through one ruse or another,
using it to support the bureaucracy," said ACLU attorney Benjamin Wolf.[34]
The very funds intended to aid families in crisis--and to prevent unnecessary placement in foster care--are routinely used
by these agencies to promote their own bureaucratic expansion, while foster care remains the primary resource the agencies
possess.
The Adoption Assistance and Child Welfare Act suffered from the failure on the part of its designers to address the fiscal
incentives driving foster care placements, and the bureaucratic imperative for continued agency expansion.
But the growth of the child welfare system "is not merely the product of the self-interest and cynicism of those bureaucrats,
social service professionals, and foster parents who soak it financially for all it's worth," writes Dana Mack of the Institute
for American Values. "Even purged of corruption, the system would be too unwieldy to function in the public interest."
The very nature of the system invites confusion and mismanagement at all levels, writes Mack.[35]
Says Marcia Robinson Lowry,"the mismanagement in these agencies is astronomical. The misuse of resources is staggering."
"If businesses were run the way these systems are run, they would go bankrupt very quickly," she adds. "The only people
who are going bankrupt now are the kids and their families."[36
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