Lifting the Veil
The Reasonable Efforts Requirement - Part II



RESISTANCE TO CHANGE

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:

  • the Department didn't properly assess and screen abuse or neglect reports it received

  • Risk assessments weren't conducted as required

  • Family-based assessments weren't completed

  • Family service plans weren't completed

  • The Department didn't request ex parte orders or removal by law enforcement appropriately

  • Confirmed reports of abuse and neglect by foster care providers weren't entered into the Central Registry, as required.

  • Reviewers found the Department didn't even have a written policy manual.[7]

    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 first cause of action involves the alleged violations of rights conferred by the Adoption Assistance and Child Welfare Act of 1980, including the right to reasonable efforts to keep the children in their home or to enable them to return home; the right to timely written case plans; the right to placement in foster homes that meet nationally recommended standards; the right to appropriate services; the right to placement in the least restrictive, most family-like setting; the right to proper care while in custody; the right to a plan and to services that will assure permanent placement; the right to dispositional hearings within eighteen months of entering custody and periodically thereafter; and the right to receive services in a child welfare system with an adequate information system.[11]
    So, too, did the court in the District of Columbia determine that the agency had:

    consistently failed to provide services or otherwise use "reasonable efforts" to prevent placement. The result has been an increased risk of arbitrary or inappropriate placements as well as an increased cost to the District.
    Based on the case records of children in foster care as of December 1989 whose goal was return home and who had entered into care through voluntary placement, the Court found the agency "had failed to provide services in 77 percent of their cases."[12]

    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.


    DESTINED FOR FAILURE

    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:

    The expansion of "social services" in the 1970s had little correlation to improved services for children and families. Rather the chief beneficiaries of increased social service spending have been urban social service bureaucracies, who have used the funds to adapt to a punative climate, expanding their capacity to investigate poor families and remove children from their homes.

    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:

    In California, we are finding overloading of the system with children never intended for foster care, for the single purpose of reducing state costs by qualifying otherwise ineligible children for Federal reimbursements.[19]
    A recent study conducted by the conservative Pacific Research Institute would bear this out. The Institute found that "the child welfare system has squandered the resources it has been given and effectively worsened the problems it set out to solve." After 15 years and $10 billion, the plight of California's children has worsened:

    Despite the emphasis placed on permanency, the California child welfare system continues to fail the children it was intended to help. In the last decade, it has grown into an enormous, self-perpetuating bureaucracy that exacerbates the very problems it is supposed to solve.
    The problems are attributable to "structural aspects of the child welfare system that reward both county agencies and child caregivers for keeping children in the system," the Institute found.

    "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:

    The Grand Jury heard from staff members of the DFCS and others outside the department that the department puts too much money into "back-end services," i.e., therapists and attorneys, and not enough money into "front-end" or basic services. The county does not receive as much in federal funds for "front-end" services, which could help solve the problems causing family inadequacies, as it receives for out-of-home placements or foster care services. In other words, the Agency benefits, financially, from placing children in foster homes.
    The report ominously concludes: "The Grand Jury did not see clear and convincing evidence that the foster care system operates with the best interest of the child in mind. It did find that the interest of the child often took a back seat to the interest of others."[21]

    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 BUREAUCRATIC IMPERATIVE

    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]


    Copyright 1997 - 2002 Rick Thoma


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    Last Updated June 3, 1998