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
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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 musthave 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.
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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.
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"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 additionalfinding 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.