FEDERALLY FUNDED CHILD WELFARE, FOSTER CARE, AND ADOPTION
HEARING BEFORE THE SUBCOMMITTEE ON HUMAN RESOURCES OF
THE COMMITTEE ON WAYS AND MEANS
ONE HUNDRED FIRST CONGRESS SECOND EDITION
APRIL 4 AND 5, 1990
PREPARED STATEMENT OF ROBERT G. SCHWARTZ, EXECUTIVE
DIRECTOR, JUVENILE LAW CENTER, PHILADELPHIA, PA.
Chairman and members of the Subcommittee. I am grateful for the
opportunity to testify before you today as you consider what federal
policies will most effectively serve children and families in the next
decade and beyond. I have been with the Juvenile Law Center for 15
years, during which time my office has represented children in child
abuse and neglect proceedings in individual juvenile court proceedings
in Pennsylvania, litigated to enforce children's rights, helped to draft
state law designed to implement P.L. 96-272, trained child welfare
workers and attorneys across Pennsylvania, and published numerous
materials on federal and state law for judges and others working in the
The Juvenile Law center has been deeply involved in
efforts to implement the Adoption Assistance and Child Welfare Act in
Pennsylvania for the past ten years. We were present when P.L.
96-272 became operative, and we have spent the last ten years
striving to ensure its effective implementation in Pennsylvania. It
has not been easy.
My testimony will focus on problems in the local
courts. I would be remiss, however, if I didn't mention an area of
special interest to ay office, i.e., protection of children in their own
homes. We have now had a decade's worth of experience with a variety
of family preservation programs. We know that we have the ability to
prevent unnecessary placement of children, to strengthen families, to
reduce the trauma of separation, and to ensure that scarce foster homes
are available for children who must have substitute care. It is
time for Congress to provide incentives to states to institutionalize
family preservation programs.
In our representation of
individual children at the Juvenile Law Center, we have seen P.L. 96-272
work for children and families. We have worked to ensure that families
actually benefited from the "reasonable efforts" requirement in the law.
The law has helped us ensure that children who must enter care are
placed in the least restrictive setting appropriate to their special
needs. We have obtained case plans for children, seen to it that they
were periodically reviewed, and helped move children to permanent
substitute care when appropriate. We have seen the importance of the
critical protections of P.L. 96-272. In our view, the legal framework in
the law remains sound.
But we have also seen through the lives of
individual children that the law's critical procedural protections are
not a substitute for the resources and support necessary to preserve
families where possible and to care adequately for the special needs
of children who must be placed in out-of-home care. If we are serious
about more effectively serving families and children we must find ways
to support families before crises erupt and to preserve families when
children who are at risk of placement can appropriately be protected at
home. We believe that it is critical that the federal government provide
targeted funding for family preservation services on an open-ended
entitlement basis. This would be similar to the funding entitlement for
out-of-home care. Such funding is critical to ensure full implementation
of the reasonable efforts requirement.
There are other issues
that I do not have time to address today. I understand that the
Subcommittee has already heard testimony about a package of proposals
that is being developed by a coalition of national child welfare, mental
health and juvenile justice groups. I hope that you will give them your
The thrust of my testimony this morning
is on the role of state courts in enforcing P.L. 96-272. I support the
ABA proposal for federal assistance to improve the quality of court
proceedings in these cases. While I support the proposal as a whole,
I am particularly intrigued by the requirement that state court systems
be required to study thoroughly how their courts are implementing P.L.
Those of us working every day in the field take for granted the
many problems that plague our court systems. We cry for timely,
informed, thorough judicial oversight that works in concert with P.L.
96-272. We incorrectly assume that key players know of our experience.
Child welfare cases, however, rarely reach the attention of our states'
highest courts. The juvenile court system is too often the subject of
benign neglect. I am excited by the prospect that chief justices around
the country will have to learn about these systems as a prerequisite to
funding under P.L. 96-272.
This is what any chief justice is
likely to find.
scaffolding of the juvenile court system is too weak to support the
weight of a cumulative caseload. Almost by design, the number of cases
to be heard will increase every year. This was happening before the
explosion of crack. The caseload is cumulative because more cases enter
the court system every year than leave it.
This is how it works.
Juvenile courts supervise children in foster care for the entire time
that children are in care. Judges (or Masters or referees) have case
reviews every six months. So if 500 children enter foster care in a
hypothetical jurisdiction in a given year, there will be 1,000 review
hearings in the year after the adjudication and disposition. Some of
those children will be returned home or adopted. Assuming that the
number of new cases stayed the same, and that half of the first year's
children left the court's jurisdiction by the start of the second year,
the court would still have to hold 500 review hearings for the first
year's children in addition to the 1,000 hearings for children newly
placed in foster care. Thus, even it the number of new referrals
remained constant, the number of court hearings would increase each
year. The number is diminished only by the number of children aging out
of the system, freed for adoption, or returned home.
problem that a study will find, then, is that a cumulative caseload is
inimical to judicial implementation of 96- 272. The caseload impairs the
ability of everyone in court to do our jobs properly. Attorneys fail to
ensure that case plans are carefully reviewed. Petitioning attorneys for
child welfare agencies fail to build complete records in a timely
fashion. Courts fail to insist that the options for children and
families be fully explored, and that case plans be related to children's
needs, and that they be implemented effectively.
Any state's study is likely to make additional findings.
The cumulative caseload has a number of consequences. The judicial
system as a whole has too few resources to handle these cases properly.
States do not routinely add new judges to handle the additional load of
child welfare cases. In Philadelphia, for example, where we have over 40
judges hearing criminal cases every day, as the city tries to reduce
prison overcrowding, we have two judges and one attorney/master hearing
hundreds of dependency cases and case reviews every day. All of us in
the city compete for extra judges.
Shortage of Attorneys for
There are too few attorneys to represent children who
are the subject of dependency proceedings. In Philadelphia, we had
to bring suit last year to ensure that all children were
represented. The court system had not worked to build the capacity
of qualified attorneys necessary to represent thousands of new children
in the system.
"Reasonable Efforts" Requirement Ignored
perspective of those of us who think in terms of changing the behavior
of systems, the "reasonable efforts" finding by judges is one of the
most important components of P.L. 96-272. In many jurisdictions,
however, juvenile court judges routinely find that child welfare
agencies have made "reasonable efforts" to prevent placement or reunite
families. Although "reasonable efforts" findings are crucial to
successful implementation of the law, those findings are seen by judges
as extraneous to the cases before them. They believe that they do
not have the time to worry about "reasonable efforts" when they have
a primary mission of protecting children. The "reasonable efforts"
finding is often seen as an annoying procedural requirement--one more
burden on the scaffold--rather than as a crucial method of changing the
way caseworkers behave, and of expanding a creative array of services
for children and families.
A study will also find that "reasonable
efforts" findings are routinely made because many judges are unwilling
to cut off federal funds to their child welfare agencies. Funds are
scarce enough--if a child is safe, then many judges are reluctant to
make what they see as an additional finding that an agency acted
unreasonably, especially when such a finding may reduce needed
funding. State supreme court justices can help create a culture in
which "reasonable efforts" findings are important, are valued by the
Ideally, judicial review permits examination of the
case plan that is the blueprint for services to children and families.
The court will have the plan in hand and will hear testimony on
whether the plan has been complied with, and whether there has been
progress in implementing its goals. In many ways the case plan is the
most important element of successful intervention. Through the plan the
court will understand the dynamic of service delivery in the individual
case. The court will also learn what services may be unavailable in the
local system to meet the needs of children and families. Unfortunately,
when courts have overloaded dockets they are unable to perform the
necessary review. Attorneys shy from insisting on adequate case review.
The pressures of the system lead all of the participants to postpone
the day of reckoning for yet another six months, when the case plan will
once again be ignored.
Need for Local Court Rules
There are additional problems. Many jurisdictions lack local
court rules that will ensure that P.L. 96-272 is obeyed. There are
difficulties in coordinating the work of those courts that handle cases
of children in foster care with those that handle adoptions. Judicial
turnover is great, so there is a constant need for training new judges
who hear these cases.
panelists are correct when they note the core function of the courts in
the permanency planning process. To date, however, the salutary
requirements of federal law have had the unintended consequence of
burdening the local judiciary without providing meaningful assistance to
those courts. It is time for limited, well-placed amendments to P.L.
96-272 to provide incentives to states to introduce meaningful reforms.
The proposals of the ABA are an excellent starting point. In
addition to the proposed studies and state judicial plans, federal
financial participation might also be linked to such proposals as
adoption of local rules that ensure compliance with federal law; it
might also he linked to limitations on judicial caseloads. We hope that
the Subcommittee shares our view that carefully targeted federal dollars
will enable state courts to improve their role in the handling of these