on paper but ignored in foster care may dramatically decrease a child's chances of leaving the system,10 it is essential that everything possible be done in the early stages of placement to guarantee that a child not drift in the system when alernative resolutions could still be effectuated.11 CONDITIONS OF PLACEMENT We wholeheartedly support those provisions of H.R. 7200 and the Adminis tration's proposal that require that a child must be placed in the least restrictive setting most approximating a family and as close as possible to his natural home. Institutional placements are severely traumatic for children and such placements can be avoided if one of the articulated goals of a child protection system is to eliminate them.12 Furthermore, there is evidence that children placed in institutions are more likely to be subjected to multiple placements 13 and they are in reality less likely to be adopted if return home proves impossible, since there is no opportunity for them to develop relationships with prospective adoptive families. Therefore, we believe that institutional placements should be used only as a last resort if a foster family home cannot be found and we heartily endorse the Administration's proposal to limit federal matching funds for institutional placements to 80% of the otherwise applicable matching percentage as a disincentive to such placements. We further support retention of the provision in H.R. 7200 that a child must be placed in close proximity to the home of his natural family. Many children in foster care are placed outside of their home communities, or even their home states, thus making visiting by the natural parents impossible; if a parent fails to visit the child, the social work agency is unlikely to recommend that the child go home, so failure to visit may significantly decrease the likelihood of eventual return of the child to the natural home.14 PROCEDURAL PROTECTIONS AND DUE PROCESS To a great extent, procedural due process protections for the child, the natural family and the foster family are at the very core of any foster care reform effort if it is to be effective. We believe that it is absolutely essential that the states be required by this legislation to establish mechanisms for review of agency action, at every stage of the placement process-by any of the parties who might be aggrieved by that action-and for a built-in procedural incentive to early decision-making with respect to the ultimate fate of the child. This type of protection would in part be provided by the initial judicial determinations and the case plan reviews discussed above, but these alone would not be sufficient. The two other primary procedural protections which we believe to be necessary are a mandatory dispositional hearing within a specified time and a grievance procedure through which children, parents and foster parents may seek review of agency action. 10 The New York longitudinal study found that 32% of the children leaving foster care left within the first six month period after entry, 25% left within the second six month period, 17% in the third, and only 8% in the fourth. Fanshel, "The Exit of Children from Foster Care," supra, note 7, p. 67. 11 The case of Dennis Smith described at the beginning of this statement is a perfect illustration of this type of problem. This boy could have been adopted if steps had been taken to that end early enough. No case plan was ever made for him, however, and his situation was never reviewed by any court or independent body outside the agency until he was 14 years old. This absence of accountability on the part of the agency is the primary factor to which Dennis Smith's 17 years in limbo may be attributed. 12 A demonstration project was conducted in Metropolitan Nashville and Davidson County, Tennessee, to improve the care of neglected and abused children. In addition to case planning and prevention of unnecessary removal of children from their homes, one of the primary goals of the program was to reduce the number of institutional placements. In the first year of the program, the number of institutional placements was reduced to 22 from 247 in the previous year. M. Burt and R. Balyeat, "A New System for Improving the Care of Neglected and Abused Children," 53 Child Welfare 167, p. 172 (1974). 13 In the New York 5-year longitudinal study, it was found that children who were placed initially in congregate shelter care experienced more placements. Fanshel, "Status Changes of Children in Foster Care," supra, note 7, p. 168. 14 In a Rhode Island study of 413 children in foster care who had been in care for less than 3 years and who had natural parents in the community, it was found that "children whose mothers visited them frequently in foster care were more likely to return home than those who had infrequent visits." E. Sherman, R. Neuman, and A. Shyne, Children Adrift in Foster Care: A Study of Alternative Approaches, p. 77 (1973). The dispositional hearing is necessary in order to establish a timetable with a deadline by which a decision must be reached concerning a child's future.15 There is substantial evidence to suggest that if such a determination is not made, concerning whether the child is to return home or be adopted, by the time a child has been in care for a year and a half, there is a strong likelihood that he will remain in care indefinitely. 16 The knowledge that a decision must be made at a definite point may also act as a catalyst to social service agencies to make greater efforts during the one and a half year period to discharge the child from the system through provision of services to natural families than is currently the common practice. The necessity for a hearing procedure for grievances is twofold: first, agencies frequently take actions concerning visitation, placement, removal and services which may not be in the best interest of the child but for which there is no available mechanism for review, either judicial or administrative; second, states often fail to comply with federal laws and HEW has been markedly unsuccessful in enforcing them.17 The existence of a grievance procedure would to a great extent enable individual parents, foster parents and children to assume some responsibility for insuring that federal and state requirements were complied with, at least in their own cases. Thus, the system could, to some degree, become self-enforcing. Very often agencies and their employees take actions which are arbitrary and unwarranted or fail to provide to children or families services to which they are by law entitled. Under the present system, in most states, there are no avenues by which aggrieved parties can seek review of their complaints, even through the court system, since the courts are often unwilling to "second-guess" agency discretion in the absence of specific provisions for review. The final due process protection which we urge the Committee to include in this legislation is a provision for court-appointed counsel, to represent those parties who are unable to afford retained counsel, at each stage of the process in which judicial action is called for. We endorse the provision in H.R. 7200 for court-appointed counsel at the 18 month dispositional hearing and we also would recommend inclusion of the right to counsel for the initial judicial determination concerning the necessity for foster placement. Many states' laws do not provide for counsel for either the child or the natural parents and it is unrealistic to assume that poor families-children and parents alike— will be able effectively to resist the powers of the state or to avail themselves of their legal rights to services without the assistance of a competent legal advocate. Merely to provide that the parties are entitled to the representation of their choice in any of the judicial or administrative reveiew proceedings would discriminate against the large proportion of children and families involved in the foster care system who are poor and unable to afford to retain counsel. Provision of counsel would protect the integrity of the fact-finding process at the earliest possible stage-in which maintenance of the natural family and avoidance of the costs of unnecessary foster care placements may best be accomplished. ADOPTION SUBSIDIES We heartily endorse the provisions of the Administration's proposal with respect to adoption subsidies for children who are deemed to have special needs and would therefore be hard to place in adoptive homes. The proposals to permit such children to retain their Medi-Cal eligibility following adoption are particularly desirable from the perspective of encouraging the adoption of 15 In a 10-year follow-up study of 422 children in foster care throughout the country, it was found that more than half (52%) of the children remained in care for 6 years or longer and nearly a third (31%) for 10 years or longer. Maas, "Children in Long Term Foster Care," supra, note 7, p. 323. The Joint Legislative Audit Committee of the Callfornia Legislature reported in 1973 that of children over age 5 in foster care, one-third have been in foster care continuously for five years or more. Joint Legislative Audit Committee Report on Children in Foster Care (June, 1973). Thus, if decisions are not made at an early point, the child may not leave the system for a very long time, if at all. 16 The New York 5-year longitudinal study demonstrated that of the children who were discharged from care within 3 and 2 years. only 8% left during the fourth-six month period, and insignificant percentages thereafter. Fanshel, "The Exit of Children from Foster Care," supra, note 7, p. 67. 17 This has been recognized and documented in a Report to the Congress by Comptroller General of the United States, "Children in Foster Care-Steps Government Can Take to Improve their Care," February 1977. 94-698-77 -35 children with physical handicaps or serious medical problems. The financial burden of adopting a child with severe health problems and extensive medical needs makes the adoption of such children all but impossible. We would also endorse the Administration's proposal that maintenance subsidies be continued until the child reaches the age of majority or, in the case of a mentally or physically handicapped child, is emancipated. The provisions of H.R. 7200 limiting adoption subsidies to one year or the length of time the child was in foster care are unduly restrictive and would not enable a poor family to adopt an eligible child. We recommend inclusion of a provision for waiver of the means test for prospective adoptive families in special circumstances such as the existence of a strong relationship between a child and a foster family desirous of adopting him. In reality, particularly for older, handicapped or minority children, the only family likely to adopt is a family with whom the child has been placed and with whom the child has developed a relationship. Although such a family might fail the means test, it also might, because of responsibilities to its own children or other financial circmstances, be financially unable to adopt a child without the assistance of a subsidy. To deprive the child of its only chance for permanence and stability for such a reason would be highly unfortunate. We therefore urge the Committee to act favorably on the foster care and adoptions proposals which are currently before it. DUTCHESS COUNTY CHILD DEVELOPMENT COMMITTEE, Poughkeepsie, N. Y., July 19, 1977. STATEMENT FOR THE RECORD OF THE SUBCOMMITTEE ON PUBLIC ASSISTANCE OF THE SENATE FINANCE COMMITTEE The Dutchess County Child Development Committee, an advisory committee of the County Legislature with representatives from 25 county agencies and organizations, at its monthly meeting today expressed its support for full funding of Title IV-B child welfare services as projected in HR 7200, passed by the House of Representatives on June 14, 1977. We also express support for the bill's increased funding of child welfare services to prevent foster care and to aid the return of children to their own homes, including funding of child day care to meet the needs of the child. But we urge that the Senate prevent the merger of such Title IV-B funds with Title XX funding, so that they cannot be absorbed to cover local and state administrative budgets with no funding of direct services for children, as has occurred with the P.L. 94-401 child day care monies. (See attached clipping.) DOROTHY O. LASDAY, Chairman. [From the Poughkeepsie Journal, May 29, 1977] DAY CARE FALTERING (By Louis Peck, Journal staff writer) Almost eight months after Dutchess County ended day care funding for so-called "income eligible" children, almost half the children originally involved in the program have been dropped from local day care centers. And the centers, while trying to maintain day care for the remaining children through alternate funding sources find themselves in a financial crunch. There was additional federal funding approved late last summer for day care-but this money has been stalled in Albany due to disputes over who should get it. "We run from day to day," said Ruth Delorey, director of the Community Day Care Center in Poughkeepsie. "If we can pay our bills, the children can stay." Day care funding for "income eligible children" involved providing of day care services to about 60 children whose families were not on welfare but who made less than 80 per cent of the state median income. Of the 60 children, about 50 were concentrated in three centers in Poughkeepsie, including Mrs. Delorey's. Now, only about 25 of these remain due to Social Services Commissioner W. Joseph Eagen's controversial decision to end the program. What this cutback has meant is a point of dispute between day care advocates and Eagen. Those close to the day care situation in the county say that some working mothers have been forced back onto welfare due to the cuts, while other children now lack proper supervision. Both Mrs. DeLorey and Dorothy Lasday, chairman of the county's Child Development Committee, cited cases where mothers have been forced to turn complete custody of the child over to relatives in order to continue working. Eagen, however, challenged contentions that the cuts had had a significantly negative impact. "Some have made their own plans (for child care)," he said. "This is what we recommended anyway. It's a lot cheaper than $50 a week for day care." He said he knows of only one case where a family had gone back on welfare, "and they should have been on welfare to begin with." The dispute dates back to last July, when Eagen presented a plan for services for the year beginning Oct. 1, 1976. The plan, required under the so-called federal Title 20 program, eliminated a $150,000 item for purchase of day care for income eligible families. Eagen contended that decreasing federal reimbursement under the Title 20 program had forced his move. Others questioned why he had zeroed in on day care as a target for cuts. The County Legislature subsequently sought to force Eagen to reinstate day care, but the measure was vetoed by County Executive Edward C. Schueler. Finally, a resolution was passed to enable the county to take advantage of new federal funding for day care-the same funding that, eight months later, remains stalled in Albany. At the heart of the controversy are differing philosophical viewpoints of the day care concept itself. "To start with, I'm against day care," Eagen said last week. "I think it's detrimental to kids. My position is that 95 per cent of the kids in Dutchess County are cared for in their own home. I don't see why we have to take income eligible children and put them in a plush day care situation." Day care officials counter that the children involved in "income eligible" day care come largely from families headed by the mother, and feel it is important the mother be able to work rather than going back on welfare. "The whole thrust is trying to get mothers back to work-this is what we're trying to do," said Alexander Pokrey, director of Poughkeepsie's Family Development and Day Care Center. Pokrey's center had 28 of the original 60 children in the income eligible program; his center has only been ablt to keep 12 to 13 of them due to the funding curtailment. "Most of these cases involve one parent families where the mother is the sole breadwinner," Pokrey said. "Now, with the cuts, these kids are not getting proper supervision. We see some of these children running the streets." Pokrey said his center is not only able to provide supervision and nutritional meals for the children, but is open all summer as well-providing an outlet for school age children without other activities. "It's a preventive thing," he said. “So much money is spent after a youngster gets into trouble. Our thrust is in preventing that trouble." Pokrey said his center has determined which of the income eligible children will be kept "based on the most need." Those children are being supported by city Community Development (CD) funds, he said. Part of their funding has also come from scholarship money available to Family Development and Day Care Center. This, in turn, has reduced the scholarship funds available to families just above the income eligible level of 80 per cent of the state median income ($12,135 for a family of four). Mrs. DeLorey said the Community Day Care Center has been able to keep about seven of an original 13 income eligible children. "We've been hit even harder because we have some children from out in the county," she explained, noting they aren't eligible for CD funding. Mr. DeLorey said the center in is an "extreme deficit situation" and has been kept going due to the aid of the First Baptist Church and small donations supplementing United Way contributions. "It amounts to poor people trying to raise money for poor people," she said. The third center which had a large number of income eligible childrenPoughkeepsie Day Nursery-has seen that number shrink from nine to a current four because of funding cutbacks. All three centers had received about 25 to 30 per cent of their funding through the income eligible day care program. With many counties across the country eliminating day care from the Title 20 program, Congress late last summer passed a $200 million appropriation directed at such day care programming. Just over $17 million was directed at New York State. According to Child Development Committee Chairman Lasday, about $85.000 of this will come to Dutchess County if past formulas are followed-still short of the $150,000 spent in the past years for income eligible day care. The money has been stalled because of the state's desire to keep the $17 million for administrative expenses, Mrs. Lasday said. "The state claims it's in great fiscal straits, and needs the money," she said. However, state legislative committee prevented such a move-and a bill is now in the Assembly which would force the state to release the money to the various counties. If the bill passes, how much Dutchess County gets would be up to the formula worked out by the State Department of Social Services. STATEMENT OF ROBERT H. MNOOKIN, PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA (BERKELEY), AND JESSICA S. PERS, RESEARCH ASSOCIATE, CHILDOOD AND GOVERNMENT PROJECT, UNIVERSITY OF CALIFORNIA (BERKELEY) Most American parents raise their children free of intrusive legal constraints or major governmental interference. Although compulsory education and child labor laws place conspicuous legal limitations on parents, the family, not the state, has primary responsibility for child rearing. Despite this predominant pattern, there are about 300,000 children under 18 among the nation's nearly 70 million for whom the state has assumed primary parenting responsibility. These children live in state sponsored foster care, a term used to include foster family homes, group homes, and children's institutions. For some of these children, usually called "dependent" or "neglected," the state has assumed responsibility because no one else is available: some children are orphans; others have been voluntarily given up by a family no longer willing or able to care for them. A significant number of children, however, are placed in foster care because the state, through juvenile court, has intervened, found parents to be unfit or inadequate and coercively removed the child from parental custory. The discussion and recommendations that follows are designed to revise and improve foster care for dependent and neglected children who are voluntarily placed by their parents or coercively removed by the state, particularly children who enter the system when they are quite young. Different policy consideration underlie the use of foster care for older children or delinquents, where it sometimes serves as an alternative to incarceration.3 Three levels of government-local, state and federal-share responsibility for foster care. This article will focus on the present federal role and will suggest reforms at the federal level that could solve some problems and limitations of the existing system. We believe that the care of dependent and neglected children should remain primarily a state and local responsibility, but that federal policy should be structured to encourage certain needed reforms at the state and local levels. THE PRESENT FEDERAL ROLE Currently, state governments, sometimes with local involvement, organize and administer foster care programs, and the federal government's imput is almost entirely financial. In California, for example, the counties, which first established the system of care for dependent and neglected children in the 1800's, still have primary operating responsibility for foster care. County governments set the payment rate for the foster parents and institutions in that county, approve the facilities for placement and determine how responsibility should be shared between the probation and social welfare departments. These 1 See, generally, Mnookin, Foster Care-In Whose Best Interest? 43 Harvard Education Review 599, at 600, n. 1 (November 1973). See, e.g., Cal. Welf. & Inst. Code §300 (West Supp. 1977), formerly Cal. Welf. & Inst. Code $600. 3 For example, in California, children adjudged wards of the court under Cal. Welf. & Inst. Code §602 (West 1972), may also be placed in foster homes. J. Pers, Government as Parent: Administering Foster Care in California, at 12 (1976) (hereinafter cited as Pers). |