FEDERALLY FUNDED CHILD WELFARE, FOSTER
    CARE, AND ADOPTION ASSISTANCE PROGRAMS


    HEARING
    BEFORE THE
    SUBCOMMITTEE ON HUMAN RESOURCES
    OF THE
    COMMITTEE ON WAYS AND MEANS

    HOUSE OF REPRESENTATIVES
    ONE HUNDRED FIRST CONGRESS
    SECOND EDITION

    APRIL 4 AND 5, 1990



    268

      PREPARED STATEMENT OF ROBERT G. SCHWARTZ, EXECUTIVE DIRECTOR, JUVENILE LAW CENTER, PHILADELPHIA, PA.

      Mr. 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
      field.

      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 serious
      consideration.

      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. 96-272.


    269

      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.

      Cumulative Caseload

      First, the 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.

      The first 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.

      Shortage of Judges

      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 Children

      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.


    270

      "Reasonable Efforts" Requirement Ignored

      From the 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 lower judiciary.

      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.

      Congressional Action

      My fellow 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 cases.