WRITTEN STATEMENT OF MARCIA ROBINSON LOWRY


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Marcia Robinson Lowry
Director,
Children's Rights Projpect
American Civil Liberties Union

As director of the Children's Rights Project of the
American civil Liberties Union, I am very pleased to have the
opportunity to address this joint hearing on foster care, child
welfare and adoption reforms.

The Children's Rights Project has been engaged in advocacy
and litigation on behalf of the hundreds of thousands of children
in state custody for the last fifteen years. We along with many
other children's advocates in this country, were very heartened
in 1980 when Congress recognized the very serious problems in
foster care by passage of the federal Adoption Assistance and
Child Welfare Amendments to the Social Security Act, P.L. 96-272.
The Adoption Assistance Act reflected growing concern that foster
care was little more than a long term custodial arrangement for
hundreds of thousands of children, that many children come into
foster care unnecessarily, and once there have little chance of
leaving until they are old enough to walk away on their own.

The goals of the Act are modest. 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 bean made to keep them at home with their
families. Once children are in state custody, 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 familylike
settings possible while in foster care, and that the children's
status be reviewed periodically.

If the law were working, it would substantially transform
the lives of hundreds of thousands of children who are still the
victims of child welfare systems across the country. But the law
is not working. These goals are not being achieved. The
requirements of the Act not being enforced or monitored.

In New York, Bill, the boy you heard testimony from today,
was taken from his mother when she had to be hospitalized, along
with his sister and two brothers. For four years, his mother
tried to get her children back, but was always rebuffed, told to
find a job and better housing. Bill says that whenever his
mother left him after a visit, he felt as if the whole world was
leaving. It has taken class action litigation -- and frequent
returns to court -- to get Bill and his family reunited and
necessary services provided.

In Louisiana, three other children were taken from their
mother, and placed in foster care when she had a temporary
emergency, For the next year, her repeated attempts to regain
custody were met with instructions to earn enough money to
support her family (notwithstanding the existence of public
assistance and the fact that she has not graduated from high
school) and attend parenting therapy (where the therapist
discharged her after a few sessions because she did not need that
kind of assistance). She finally got her children back --
without explanation and without services -- when she joined a
lawsuit pending in Louisiana, asserting violations of the federal
Adoption Assistance Act.

These are not isolated examples. Over the last eight years,
the children's Rights Project of the American civil Liberties
Union has been involved in litigation in Kansas City, Mo.,
Louisville, Ky., New York City, and the states of New Mexico and
Louisiana, seeking to enforce the provisions of the Adoption
Assistance Act directed toward protecting children from spending
their entire childhood in foster care. We have turned down
requests from a number of other states to institute additional
lawsuits, solely because of a lack of resources. In the course
of trying to enforce this federal legislation, we have learned
many important things, both generally and specifically.



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I. Generally
Few if any states are in compliance with the law. Although
we cannot claim to have investigated the situation in every
state, the investigations we have done and the extensive
discussions we have had with advocates nationally leads us to
that conclusion. But the federal government and the states do
not have firm evidence about how the law is being implemented.

The Department of Health and Human Resources has almost no
national data, and does not require the states to report data
that would enable the federal government to do reliable
monitoring.

Moreover, the federal government has shirked its oversight
responsibilities. Although HHS is required to audit a state's
compliance with 96-272, it is almost impossible to fail an HHS
audit. Failing more than once is almost unheard of. Advocates
know that any state that has failed an HHS audit is maintaining
an unimaginably poor foster care system. One HHS regional
director has acknowledged to the press, in response to a quoted
comment that federal audits are very perfunctory, that "the
guidelines are very generous to the states."

II. Specifically

In the states in which the ACLU has pending litigation, we
have uncovered widespread violations of federal law -- violations
that reflect serious harm to children. All of these states have
passed recent federal audits.

A. Louisiana

Louisiana failed its HHS audit in 1983. To bring itself
into compliance, the state established an administrative review
section, in which reviewers read each child's case, and attend
case staffings, and fill out checklists on 96-272 items.
However, nothing happens as a result of these checklists, even
when 96-272 requirements are not met in specific cases, nor are
these checklists ever tabulated by either the state or HHS, In
our role as plaintiffs' counsel in our Louisiana lawsuit, we
obtained and compiled the individual forms. The state's own data
shows the following clear violations of federal law.

* Federal law requires that reasonable efforts be made to
avoid the need for foster care placement and that services be
identified and provided to enable a child to be reunified with
his or her parents whenever possible.


Only about one-third of the children coming
into foster care were receiving any family
services prior to placement.

In one-quarter of the eases (in which the
children were in placement and the plan was
return home) needs were identified for
families and children where there were no
resources available.


* Federal law requires that each child have a case plan
that assures the permanent placement of the child. Children who
go into foster care in Louisiana stay in state custody for
substantial periods of time, with little effort being made to
discharge them either to their own families or into adoption,


In almost one-third of the cases (in which
the children were in placement and the plan
was adoption) court ordered services were not
being provided.

Approximately fifty per cent of the children
in foster care in Louisiana have been there
for more than twenty-four months. More than
one-third have been in foster care more than
three years.




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* The fifteen children who are plaintiffs in the lawsuit
have been in foster care for the following periods of time:


Seven years -- a brother and sister five and seven when
they entered foster care.

Nine years -- a boy five years old when he entered foster
care.

Nine years -- two sisters who were three and four when
they entered foster care. The younger child was
adopted after the lawsuit was filed.

Six years -- two sisters, two and three when they entered
foster care.

Five years -- a boy who was six when he entered foster
care.

Nine years -- a boy who was four when he entered foster
care.

Three years -- sisters who vere four and three when they
entered foster care.

One year -- four children, eleven, ten, eight and six when
they entered foster care; they were returned after their
mother joined the lawsuit.


* Federal law requires that children receive appropriate
treatment, in the most familylike setting, while in foster care.


Approximately fifty per cent of the children
in institutions are there unnecessarily,
according to the state's own criteria.

Almost one-third of the children in foster
care had not had a physical examination in
the past twelve months.

In more than one-half of the cases, the
worker did not visit the child as frequently
as required by state law.

More than ten percent of the foster homes
supervised by the state exceed the state's
own limitations on the number of children
that can be in a particular foster home.

In one-half of the cases foster care workers
did not visit children as required by state
law and the child's plan.


* Federal law requires that all children's cases be
reviewed every six months, either administratively or judicially,
and that a judicial dispositional review be held after 18 months.


one-quarter of the children have not received
the six month planning reviews required by
federal law. In urban areas the percentage
is much higher; more than half the children
in New Orleans did not receive such reviews.

In one-quarter of the cases in which a case
has been reviewed by a state court and the
court has issued orders requiring the provi-
sion of specific services or reports, those
orders have not been followed.

In one-third of the cases, no judicial dispo-
sitional hearing had been held after 18
months.



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The state's own data make out a strong enough case to show
widespread violations of federal law. However, in preparation
for trial, we are also conducting a scientific survey of a random
sample of case records, concerning 700 children, to further
document these violations and consequent harm to children. For
the children of Louisiana, P.L. 96-272 has meant very little thus
far, except to provide lawyers with rights that can be enforced
through the federal courts.

B. New Mexico

The ACLU obtained a court ordered consent decree in New
Mexico on the eve of trial in 1983, after documenting widespread
violations of federal law and constitutional rights in that
state, The decree focuses on the planning and access to adoption
provisions of P.L. 96-272, At the time the decree was entered,
49 percent of the children in New Mexico were in foster care for
24 months or longer, the highest percentage of 35 states
surveyed, The federal judge found the New Mexico foster care
system to be no more than a long term custodial care arrangement.

The consent decree mandates time periods for specific
planning events, mirroring the intent of 96-272 but providing
more detail. It also requires explicit caseload limitations,
training, and periodic internal review, as well as judicial
review and Citizen Review Board review. Nevertheless, extremely
vigorous monitoring and frequent renegotiation have been required
to try to bring the child welfare department in that state into
compliance.

Children in New Mexico have no doubt benefitted from the
consent decree, based on 96-272, but the state is a long way from
meeting the minimal standards of the law. For example:


Large numbers of workers carry caseloads in
excess of what the department itself has
agreed is reasonable.

None of the children in the state's custody
have plans that contain the elements required
by the consent decree, which is based on 96-
272.

Sixty-five per cent of the children eligible
for adoption have never been referred to the
adoption unit.

In only one-third of the cases of children
freed for adoption and not placed in adoptive
homes had adoption even been discussed with
long time foster parents.

One third of the children for whom adoption
was the plan were never referred to legal
counsel to be freed for adoption.

Six month reviews did not occur as required
for approximately one quarter of the
children.

The department does not maintain reliable
data on the occurrence of 18 month judicial
reviews.


Despite this abysmal record, New Mexico has recently passed
its HHS audit. A motion to have the department held in contempt
for substantial violations of the consent decree and to have an
administrator appointed is pending in federal court.

C. Kansas City. Mo.

Our case in Kansas City, G.L. v. Zumwalt, was filed in 1977.
It was settled in 1983 by a Consent Decree approved by the court.
The Consent Decree requirements parallel the requirements of P.L.
96-272 but they are not identical and the G.L, Decree contains
additional specificity. Last year, the parties to the G.L.
Decree, with the help of a monitoring committee of prominent
Kansas City residents, developed a system for measuring
compliance with the Decree. The first report from that new
system, representing the reading of a random sample of 25 cases
was issued in October, 1987.



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The report presents a mixed picture. Both the Decree and
P.L. 96-272 require case plans be developed every six months for
children in care. Kansas City does quite well in meeting this
requirement. 100% of the cases reviewed occurred on time. There
were some problems with the plans. For example, 40% contained no

statement of the progress the family made in the preceding six
months as required by the Decree and implicit in the requirement
of P.L. 96-272 that the plan discuss "the appropriateness of the
services that have been provided." But, most of the other
requirements of the Consent Decree and P.L. 96-272 were met at
the case reviews in Kansas City.

Much more troubling is the provision of services. Both the
Consent Decree and P.L. 96-272 require that the plan "assur[e]
that the child receives proper care and that services are
provided" that will result in the child returning home or being
adopted. For children entering foster care, appropriate
assessments, the necessary predicate for determining appropriate
services were not dona 23% of the time. For those children
whose plan was adoption, none were moving expeditiously toward
that goal.

The most troubling result of the Kansas City review was the
level of abuse, undetected or unreported, in foster homes. 25%
of the children in the sample were the subject of abuse or
inappropriate punishment. 88% of those reports were not properly
investigated. This amazing result violates the state's own
procedures, the Consent Decree, 42 U.S.C. % 671(a)(9) and 42
U.S.C. % 5103 (b) and (c).

D. Louisville, Kentucky

In Louisville, Kentucky, the Project obtained a Consent
Decree in a state court case charging the state with abuse and
neglect of children in its care for failing to obtain adoptive
homes for children who need them. Although the case is not based
on P.L. 96-272, the Consent Decree requirements that children
expeditiously receive adoptive homes closely tracks the emphasis
in federal law on achieving permanency. The most recent
statistics prepared by the Kentucky Cabinet for Human Resources
measure the time it took the state to achieve each of the 10 or
11 steps necessary to have a child adopted. Kentucky's own
statistics show that for half of the steps, the state achieved
the step less than half of the time. In other words, children in
Louisville continue to languish in temporary foster homes in
Louisville even when everyone thinks they should be adopted.

One of the steps required by the Louisville decree is
identical to the requirement of P.L. 96-272 that there be a case
plan within six months of the child's entry into care.
Kentucky's own statistics show that in 1987, only 55% of
Kentucky's foster children received the case plan on time.

From everything we have learned, it is clear that many of
the neglected, dependent and abused children who were the
intended beneficiaries of P.L. 96-272 are simply not receiving
its benefits. Although Congress intended to limit unnecessary
foster care by mandating states to make reasonable efforts to
avoid the need for foster care in the first instance, many states
are meeting their own fiscal needs by ploughing that money
straight into foster care.

The number of children in foster care is starting to move
back up after a decline in the early 80's. Foster care itself is
little better than it was when this reform legislation was
passed. Critically important planning and policy making is
severely handicapped by widespread lack of data, and unreliable
data. The most recent foster care population figures are three
years old.

HHS' efforts at enforcing this federal legislation and
providing critically necessary protection to this nation's most
vulnerable children are so negligible as to be irresponsible.



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Repeatedly, day after day, we learn about such children as
the seven year old child in New Mexico given back to a negligent
mother by an inadequately supervised foster mother, who then
burns down the family trailer: the toddler in New York returned
to an unsupervised home who is then beaten to death; the six year
old in Louisiana who asks the foster parent who will be caring
for him for only one night -- before he moves on to yet another
temporary placement -- "Is it all right if I call you Mommy
tonight?

On behalf of these children, I welcome the opportunity to
share some of this information with the Committee. And I most
vigorously urge Congress to take the necessary steps to insure
that the protections of this legislation, adopted with such high
hpoes in 1980, finally become a reality for this country's
waiting children.

My name is Boyd. I'm 12 years old and I live in New York
City. I have 4 brothers and 1 sister. For the last year or so,
I have been living with my mother and my brothers and sister.
I'm very happy to be finally living with ay family.

When I was younger, I was in foster care for a long time. I
went in and out of foster care a lot of times. I was in so many
foster homes I can't remember them all. I do remember one home
they put me in because the foster parents only spoke Spanish. I
don't speak Spanish. I didn't like foster care at all. It was
terrible to be put in lots of different homes with lots of
strangers, knowing they wouldn't let me be with my mother. I
wanted to be with my mother and my brothers and sister.

I had a lot of social workers. I had so many I can't
remember them all. They all said they wanted to help me, but I
think that was a lie. They never paid attention to me, or what I
wanted or needed. They all said my mother couldn't take good
care of me but I don't think that's true. One time I ran away
from a foster home and back to my mom, but the social workers
wouldn't let me stay. That made me feel very bad. The only help
I wanted from the social workers was to go back to my mom, but
they didn't help us with that. Because I've lived so many
different places, I've also been in lots of different schools. I
want to do well in school but all this moving around has made it
very hard for me to keep up with my class.

It's hard for me to tell you how bad foster care is. My
mother used to come to visit me a lot when I was in care and when
she left, it felt like the whole world was leaving me. It was so
hard that sometimes I almost didn't want her to visit because it
hurt so much.

I know how bad foster care is and I want other people to
know so that what happened to me won't happen to other kids. I
worry about all the other kids who are in foster care or who will
go into foster care. I don't think they ought to take kids away
from their parents and put them in foster care. If a family
needs help, they should help them, but not by using foster care.

Last updated: November 26, 2002