My name is Marcia Robinson Lowry and I am the director of the Children's Rights Project of the American Civil liberties Union. I'm very grateful for the opportunity to present testimony today to this subcommittee on this important issue.
Ever since the Adoption Assistance and Child Welfare Act. (Public Law 96-272) became law in 1980, we have been bringing lawsuits against state and county child welfare systems for violating the minimal standards that are contained in that federal legislation. We represent tens of thousands of abused and neglected children in city and state child welfare systems around the country.
Foster care systems established and funded to serve children are failing, producing only more damaged graduates who will go on to produce new generations of damaged children, who will continue to lead unspeakably tragic live and who will increasingly tax our public resources.
In 1980, Congress passed good legislation intended to protect children and to ensure that the billions of dollars spent in state child welfare systems was used as the opportunity to help and to protect these children, to intervene in their lives so they could have a decent childhood and the opportunity to grow up into healthy and productive adults.
For the most part, this legislation has been neither monitored nor enforced, and in many instances these huge amounts of federal money have not been used by the states to achieve the goals that Congress intended.
The protections included in this legislation need to be strengthened and enforced, not eliminated. The federal government certainly needs to do a far better job in its oversight of the $3.5 billion dollars in federal funds expended in 1994 for foster care services. It cannot leave these programs unmonitored.
Even with the standards contained in Public Law 96-272, the states have not done a very good job. If Congress eliminates those standards, by providing child welfare funds to the states in a block grant, and if it eliminates federal over-sight of federally-funded programs for abused, neglected and dependent children, by eliminating "427 reviews," these children are certain to be damaged even further. The consequences are truly unthinkable.
The issues being considered by this subcommittee today are critically important to the most desperate and vulnerable children in this country:
The almost 3 million children reported for abuse or neglect in 1992, a 130% increase in the last ten years.
These numbers reflect the heart-wrenching stories of countless children whose care at the hands of their government caretakers has often not met even minimal standards.
In Milwaukee, 10-year-old Alan talks matter-of-factly of his current foster family being recruited by his aunt distributing flyers in the neighborhood that say, "I'm a little boy. I like soccer. What I really need is a mom and a dad." Alan entered foster care when he was five. His mother abandoned him, and has a history of drug abuse and imprisonment. He has been in five different foster placements, and two unsuccessful returns to his mother, during at least one of which he was abused by his mother's boyfriend. He has been in at least eight different schools. His aunt, who could not care for him herself, advertised for a home for Alan after the child had remained in a temporary shelter for 11 months and her phone calls to the child welfare agency had not been returned.
In Philadelphia, a mildly retarded child who had been in foster care for his entire nine years, was taken out of the state by his fourth set of foster parents without his worker's knowledge because the worker had not visited the foster family for over a year and didn't know of their plans to move. His whereabouts were discovered in another state, after he arrived at school with observable bruises. Local police found that the foster parents were controlling his behavior by tying him to a tree.
While we must allow the states to have flexibility in designing and administering their child welfare programs, and in deciding how to meet the standards contained in federal law, we simply cannot assume the states will provide adequate protection to children in the absence of enforceable federal standards and some form of federal monitoring and oversight. This is not an issue of trust; it is an issue of verifying whether the states are, indeed, using federal money to meet certain basic and generally accepted standards. We must remember that these children are more voiceless and powerless than any group in our country, and that if Congress takes away the minimal protections provided by federal law, they will have none.
This subcommittee is addressing the questions of whether the federal reviews required by Section 427 of the Adoption Assistance Act have resulted in better services, and whether block granting federal child welfare services and foster care programs will improve services to children, since state foster care systems remain so damaging, despite the enactment of Public Law 96-272 14 years ago, it may be tempting to simply try something different. Instead, however, I urge you to make good on the promises of that law, and to take steps to ensure, for the first time, that it is actually enforced.
There are three basic points that must be made.
I. CONGRESS MUST CONTINUE TO IMPOSE MINIMAL STANDARDS NOW CONTAINED IN FEDERAL LEGISLATION FOR CHILD PROTECTION AND CHILD WELFARE SERVICES AS A CONDITION OF FEDERAL FUNDING TO THE STATES.
States are entitled to make their own choices about precisely how to care for their abused and neglected children, but the federal government must be a partner in this process if children are to be protected. Congress is both entitled and obligated to impose these minimal standards because it pays a large share of the costs. It is both necessary and appropriate for Congress to set basic standards on how this money should be spent, and on what general public policy goals it wishes to further.
A consensus exists within the child welfare community, including standard-setting organizations, public administrators, and advocates, about. minimal child welfare services and practices that should exist within every child welfare program;
In fact, these practices are currently mandated by the Adoption Assistance and Child welfare Act of 1980, which congress passed in response to concerns about children drifting for years in state foster care systems. Though the statute imposes only minimal substantive obligations on states that choose to receive substantial federal funds to support their foster-care systems, it does require that states provide planning and services to children in an effort to shorten their stay in foster care and to protect children while they remain in foster care.
The current provisions in the Adoption Assistance Act, Title IV-E of the Social Security Act, set basic standards for child welfare services without proscribing how a state should meet those standards.
For example, the law requires that each child have a written case plan that describes the reasons for the child's removal from his/her home and the appropriateness of the child's placement;
each child have a case plan for assuring proper care end the provision of services;
services be directed toward facilitating either the return of the child to his/her parents, or the child's adoption, so that if at all possible, the child be raised in a family and not in government custody;
the child's case plan assures that the child receives proper care for as long as the child remains in foster care;
that the states develop programs to try to keep children out of foster care whenever possible;
that homes or institutions in which children are placed be reasonably in accord with standards recommended by national organizations;
that the status of children in foster care be reviewed periodically in state proceedings to determine their future status.
These standards are neither overly prescriptive, nor are they utopian. Indeed, from the standpoint of protecting children, even more specific standards would be far better. No standards at all, or standards that are unenforceable, would be disastrous.
Nothing in this statute tells the states how to meet the broad standards in the statute, or what kinds of services or programs should be provided to do so. Eliminating these standards by block granting federal funds will deprive children of all protections.
The problem with the statute is not that it imposes burdens on the states or interferes with the provision of effective services, but that it is simply not being followed. But these protections must remain in place, for a number of reasons.
These protections set guidelines for the states which have some influence on state policy. The protections in federal law provide the standards on which federal oversight efforts must be based, And the protections in federal law provide a basis for advocates to hold the states accountable in the most egregious situations.
At the end of the 1970s, Title IV-A of the Social Security Act, which contained virtually no standards or protections for children, governed the provision of federal funds to state child welfare systems. There were at least 500,000 children in custody at that time, and general agreement that foster care was no more than a custodial system. The legislative history supporting the enactment of Public Law 96-272 clearly expressed Congressional concern about the lack Of federal monitoring of the use of federal child welfare funds, In passing the act in 1980, congress noted that the federal funds provided under Title IV-A had not been used by the states to "move children out of foster care and into more permanent arrangements by reunifying them with their own families when this is feasible, or by placing them in adoptive homes," and that "there were significant weaknesses in program management which had adverse effects on the types of care and services provided to foster children."
Prior to the passage of this federal statute, children in foster care often had no chance at all to ever leave government custody. Adoption was something usually reserved for infants. If it did not take place within the first several months of a child's life, the child was considered unadoptable. A few examples:
Carlos entered foster care when he was 13 months old. He lived in an institutional nursery for several years, a series of foster homes and institutions. When he expressed grief over his father's death, he was committed to a state mental hospital. When he turned 16, he was imprisoned for an altercation with a child care institution security guard. He is now 28, lives on the street, and has two children in foster care. There was nothing extraordinary about his case and nothing that happened to him violated the legal standards applicable prior to the passage of Public Law 96-272.
Susie, two, and Donnie, three, were discovered in a closet, where their mother had left them because they had misbehaved. Despite their early neglect, they were still in relatively good psychological shape. They spent their next 13 years in foster care, where Donnie listened on the other side of a closed door while Susie was repeatedly sexually abused by one of their temporary foster parents.
After Public Law 96-272 was enacted, there were some limited improvements in state systems. For example, much more serious attention was paid to developing services to families to prevent abuse and neglect, and to avoiding the need for foster care; to getting children adopted; and to moving children from large, expensive custodial institutions into more family-like settings. State agencies, many of which had previously had conducted almost no planning for children once they entered state custody, became aware of the need to develop written case plans for children and, through those plans, became increasingly aware of the need to set goals and determine the steps to accomplish those goals for children. Within the first several years of implementation, the national foster care population dropped to 270,000 children.
However, these advances were short-lived, for several reasons unrelated to the statute itself but at least partly related to its enforcement.
States soon learned that the federal enforcement mechanism provided in the statute, the 427 review as it was developed by the federal Department of Health and Human Services, was not, in fact, a rigorous, thoughtful monitoring mechanism, Very few states failed these reviews indeed, advocates quickly learned that any state that failed a federal 427 review had a system in which children's lives were in jeopardy, to say nothing of their emotional well-being. One reason for this might have been that the only sanction provided by the 427 review to process was the denial of federal funding, a draconian sanction to impose on a child welfare system already unable to provide minimally adequate services to children. And then, in 1989, Congress suspended the availability of the federal funding cut-off, providing no sanctions at all for failing a federal 427 review.
It seems very reasonable to conclude that the failure of the federal government to either conduct meaningful reviews or to enforce the requirements of the federal law made it clear to the states that there would be no consequences -- at least at the federal level -- to their failure to comply with the law,
In addition, however, other factors were at work. State systems in need of widespread reform if they ware to meet the minimal goals of the federal statute had barely had time to start developing their own approaches when circumstances changed. The number of reports of suspected abuse and neglect exploded, with a 130% increase from 1984 to present, an explosion related both to greater public awareness and better reporting procedures but also correlated closely with drug abuse, homelessness, and other serious social dislocations that have devastating consequences for children and their families. Second, children began entering foster care at a younger age, staying longer and manifesting increasingly serious problems .-- related in part to increased drug abuse by women -- problems that make it that much more challenging to treat these children and find them permanent homes. Finally, there have been substantial reductions in state and local support for social-service systems, reductions that have robbed child- welfare agencies of critically needed staff and service resources.
Given these forces, and the lack of federal effort to ensure implementation and enforcement, it should be no surprise that foster care systems are failing. However, it would be wrong to conclude that the Adoption Assistance Act has contributed to that failure. Rather, these systems are failing despite the statute's protections and despite the considerable federal resources that the statute provides.
A consensus exists in the child advocacy community about the importance of legally enforceable protections for children in foster care. This consensus is based on a number of factors:
In light of these considerations, it is absolutely essential that Congress assure that children in foster care have minimum protections that are legally enforceable. And given the consensus within the child-welfare community, it is clear that those legally enforceable protections should at least include the standards currently contained in federal law, which could be eliminated if foster care funds were block-granted.
It is impossible to say whether child welfare systems now operate in a way that is more harmful to children than the systems that Public Law 96-272 was designed to improve. It is fair to say that many are not meeting even the minimal goals contained in that law. It is also fair to say that we are squandering the opportunity to ensure that the very large amounts of federal and state money spent on child welfare services be used to benefit, rather than harm, our country's poorest and most vulnerable children.
The solution is not to eliminate the minimal protections we have. The solution is to make these protections more effective.
This subcommittee is concerned with the question of whether the 427 reviews have, thus far, served to improve the lives of children. For the most part. the answer to that question is no. However. that does not mean that another form of federal oversight would not bring about a different answer. Congress was concerned about the lack of federal oversight in 1980; it should be equally concerned today. While we are critical of the Section 427 reviews that have taken place thus far. we very strongly endorse the need for meaningful, effective oversight. which can and should be provided under Section 427 of the statute. That is not to say that section 427 could not be improved. But even as presently enacted, that section 427 provides a basis for adequate monitoring. if the procedures that are developed under the statute -- about which HHS has broad discretion -- are well-planned and meaningful. The procedures that have been utilized in the past were not.
Section 427 of Public Law 96-272 provides that states must meet certain criteria related to the broad goals in the Adoption Assistance Act in order to qualify for additional federal payments. It does not specify how the federal government should make the determination of whether those criteria have been met.
In the past, the Department of Health and Human Services chose to comply with this provision of the law by conducting what this subcommittee is referring to as the "427 reviews." It would be hard to find many people who believe the reviews, as previously conducted by HHS, tell anybody anything about whether states are protecting children, or meeting the broad goal of trying to ensure that children grow up in families -- either their own, or adoptive -- whenever possible.
As originally enacted, section 427 of the Adoption Assistance Act required states to provide minimal services and have certain systems in place in order to receive child-welfare funds under the statute. In an effort to assess whether states were complying with these minimal mandates. the Department developed a process that involved an overview of state systems as well as a review of a very small number of case records of children in the state's foster-care program. Based on this review. the Department, would then declare whether the state was or was not complying with the mandates of section 427. Those states that were out. of compliance were to be declared ineligible for federal reimbursement for the fiscal year to which the finding of noncompliance applied.
As an initial matter, the review methodology was hopelessly inadequate. For instance, under that methodology, the Department could look at as few as 25 cases. regardless of how many tens of thousands of children were in a state's foster care system, in concluding that the state was complying with the statute. The shortcomings of the methodology were best demonstrated in 1989, when the Department declared that the District of Columbia had passed its 427 review shortly before a federal judge described the DC system as a "travesty" and found the whole system to be operated illegally in violation of the Adoption Assistance Act as well as the federal Constitution and statutory law of the District of Columbia.
New, in addition to the fact that Congress suspended the funding sanction for states that failed 427 reviews, HHS has also suspended the reviews themselves. It is my understanding that HHS has been working on new procedures to provide more effective and meaningful reviews, Whether this new version of the 427 reviews will indeed. be better, remains to be seen. But it is clear that effective and efficient federal reviews can be designed to determine whether children are being protected and whether the minimal goals of 96-272 are being met,
However, it is absolutely essential that the federal government not shirk from its oversight responsibilities on behalf of children who are in state custody. or at risk of entering custody, and for whose benefit large amounts of federal money have been appropriated, Section 427 imposes no constraints on HHS' development of an effective and meaningful monitoring process, does not dictate either the scope or the extent of the reviews, and provides wide flexibility to develop reviews that are not unduly burdensome but which nevertheless allow the federal government to protect these children.
Congress went a step further in ensuring the potential effectiveness of 427 reviews by its passage of H.R. 5252 in the 103rd Congress. This bill provides for a far more constructive and far less intrusive new review process. Under this new bill, states substantially complying with the broad goals of the federal law will be reviewed less frequently. States which "fail" the new 427 review will have the opportunity to implement their own corrective action plan, with the provision of technical assistance. The bill still makes federal sanctions available, but provides far more opportunity for non-complying states to bring themselves into compliance with the federal standards, without being penalized by the loss of federal funds while trying to do so.
While the "427 reviews" utilized over the last 14 years have not demonstrably improved the lives of children. they were very deeply flawed. That does not in any way eliminate the need for adequate 427 reviews, Congressional oversight and protection for these children. Without impugning the concerns of many at the state level for their state's neglected and abused children, the inescapable fact is that too many states have a demonstrated record of failing to protect the children in their custody.
In the absence of specific, enforceable federal standards, such as currently exist in the federal Adoption Assistance Act, the half-million children in government custody have few rights against their state custodians. If these custodians fail to meet the minimal standards and provide basic protections to them,
Although the states are entitled to discretion to determine the best way to meet the federal standards and to provide proper care for children, what programs are most effective 1n trying to ensure permanence for children, and how best to provide services to these children. However, the states should not have the flexibility to take millions of dollars in federal funds and not even make efforts to meet these very broad goals, or to operate their child welfare system in such a way that makes the achievement of these goals impossible.
For example, to take some real-life illustrations, state child welfare systems in which the telephone lines set up to receive abuse reports often go unanswered are not making efforts to protect children. States which leave children in unlicensed and unsupervised foster homes are not experimenting with new program designs. States which determine that abandoned three-year-old children are unadoptable -- without trying to recruit adoptive parents for them -- are not trying to find permanent homes for children. States which fail to provide any treatment at all for sexually abused children are not providing services to meet children's needs. Nevertheless, and regrettably, these situations exist in too many of our cities and states -- all of which operate federally-funded children welfare systems.
The standards currently contained in federal law do not permit advocates to challenge a state for violating federal law based on the view that one approach to children's services may be batter than another. It does permit advocates to seek protection for children, however, when a state does not even develop its own reasonable approach. without such standards, and the right to enforce these standards, children are entirely without protection.
Increasingly, and in some measure because the federal government has not itself ensured meaningful implementation of the law, the standards in federal law have been used as the basis for lawsuits on behalf of abused and neglected children. For example:
In addition to being extraordinarily damaging to children, the Washington, D.C., foster care system wasted extraordinary amounts of money. Children were kept in the most expensive but unsuitable kinds of care, and left in foster care when they could have been discharged either to their parents or to adoptive parents. The computer system was so outdated that over a million dollars was being paid to foster parents who no longer cared for children but whose names had never been taken off the rolls.
After a successful lawsuit was brought, problems remain but a great deal has already changed: training was instituted for all workers; the number of workers tripled; foster homes are now being visited and supervised; hundreds of children are being adopted; special units have been created to help children stay out of foster care by providing short-term help to their parents; and the response to child abuse and neglect reports has become more timely.
Now, because of continuing difficulties, outside experts have been brought in by the federal court to help the District solve some of its problems that continue to put children at risk.
LaShawn had spent her entire six years in foster care when the case went to trial, and was matched with adoptive parents because of the lawsuit. Her adoptive father said that when she came to live with his family, she didn't even know how to jump rope, tie her shoes, or play with other children. "This was a little girl who didn't know what a hug was. She didn't know what love was," he has said.
Although the problems in the District of Columbia are well known, the problems in its child welfare system are not, unfortunately, unique to this city.
Other systems have had similar problems,and lawsuits there have produced similar results.
A lawsuit filed in 1989 resulted in a consent decree approved 13 months later. Since then the state has been moving forward with implementation, sometimes unevenly, but with the clear goal of improving services for children in the state. Among the many achievements: a 50% reduction in caseload, so workers can provide better services to children; the creation of a training academy; the development of statewide policies; and an increase in payments to foster parents to meet minimal government standards for the care of a child.
In New Mexico, an adoption system was created where none existed, and where one-third of the foster care population was characterized by a state report as being "in limbo," after a lawsuit based on federal law was filed.
In Kansas, a lawsuit, based in part on federal law and relying on the results of a state auditing agency that concluded that protective service investigations were not taking place as required by law, that children were not receiving case plans and were being placed in dangerous foster homes, and that few efforts were being made to have children adapted when they could not be returned to their parents, resulted in a consent decree that incorporates a statewide reform plan.
It would have been difficult to have produced these benefits for children without being able to rely on the specific standards contained in federal law, and which Congress is considering eliminating through block granting.
It is an extraordinary fact that for many children in federally- funded state foster care, their time in government custody will be more damaging than the abuse or neglect they suffered originally. It is extraordinary that this is taking place at the expense of the federal taxpayers. For the most part, states have not complied with the existing minimal protections afforded to children in existing federal law. Nor is there any evidence at all to suggest that the existence of the law or of the 427 reviews were in any way responsible for the deplorable state of child welfare services nationally, Eliminating rather than strengthening these protections, and the possibility of effective federal oversight, by block-granting federal child welfare services and foster care programs to the states will surely not provide any benefits to children. It will only leave them more vulnerable and unprotected than they already are.