National Coalition for Child Protection Reform / 53 Skyhill
Road (Suite 202) / Alexandria, Va., 22314 / info@nccpr.org / www.nccpr.org
FAMILY PRESERVATION AND ADOPTION
Critics
of family preservation claim that it makes it harder to free children for
adoption. Once again, they are wrong.
Not
only does family preservation not impede adoption, family preservation can
speed the process of terminating parental rights when necessary.
The
federal law that effectively abolished the reasonable efforts requirement, the
so-called Adoption and Safe Families Act (ASFA), also requires states to seek
termination of parental rights for many children in foster care for 15 of the
most recent 22 months. Yet in many jurisdictions it can take at least 12 months
for a judge to decide if the initial placement was justified in the first
place.
Thus,
while some children in foster care do indeed need to be adopted, ASFA
encourages the indiscriminate adoption of children without regard to whether
they could have remained safely in their own, loving homes.
And
this influx of new termination cases comes despite increasing evidence that the
system can't cope with the thousands of children legally free for adoption
right now.
After
three years of modest increases in the raw number of annual adoptions, the
number has remained stagnant at about 50,000 per year.[1]
This is all states can manage, even though the federal government offers them a huge financial incentive – bounties of $4,000 to $12,000 or more for every adoption over a baseline number -- and political and media pressure for adoption is enormous. In contrast, since 1983 the foster care population has more than doubled. The real message from the so-called surge in adoptions is that the problems of foster care can never be solved through adoption alone.
Furthermore,
the figures include only finalized adoptions, not the number of cases in which
parental rights were terminated, but no adoptive home was found.
In
the early 1990s, NCCPR’s President, Prof. Martin Guggenheim of New York
University Law School, examined two states which expedited termination
proceedings. He found that as the number of children freed for adoption soared,
the number of actual adoptions increased far more slowly. The result: A
generation of legal orphans, who have no ties whatsoever to their birth
parents, but aren't being placed for adoption either. Guggenheim found that,
contrary to the unsupported rhetoric of critics of family preservation, the one
reform taken most seriously since the 1970s has been termination of parental rights.[2] The study was prescient. Nationwide, every year since ASFA was passed,
terminations have far outrun adoptions.[3]
As a result, the number of children aging out of foster care with no
permanent home has soared by 41 percent.[4]
Furthermore,
although abuse in adoptive homes is rare – like abuse in birth parent homes –
ASFA’s encouragement of quick-and-dirty, slipshod placements increases the risk
of abuse. Even Children’s Rights, Inc., a group which favors ASFA and has been
hostile to family preservation, says “… Congress should realize that far too
many states … when they do, for example, raise their adoption numbers,
are doing so by including many clearly inadequate families … along with the
genuinely committed, loving families who want to make a home for these
children, just to ‘succeed’ by boosting their numbers.” .[5]
Even
if all the children now awaiting adoption could be placed, that doesn't mean
the placements will last. Current efforts to plunge headlong into adoption are
being undertaken in the absence of any reliable data about how often placements
"disrupt" when parents who adopt a child - especially a "special
needs" child - change their minds. But the evidence we do have is
alarming. Even before the effects of the new law were felt, it was estimated
that 10 to 25 percent of so-called “forever families” don’t turn out to be
forever after all – the adoptive parents change their minds. [5] That number is only
likely to increase as workers feel pressure to cash in on the bounties for
adoptive placements handed out under ASFA - bounties which are paid whether the
adoption actually lasts or not.
As adoptions level off, the pressure to increase them again – and cash in on the bounties – is likely to have another pernicious effect. It is likely to prompt agencies to target the children most in demand by prospective adoptive parents: healthy infants from poor families. Agencies will rationalize that the parents really are “unfit” even as they continue to turn their child welfare systems into the ultimate middle-class entitlement: Step right up, and take a poor person’s child for your very own.
For
an example of such targeting, see The Pittsburgh Post-Gazette series,
“When The Bough Breaks,” available online at http://www.post-gazette.com/newslinks/1999boughbreaks.asp
and the burgeoning scandal in Kentucky where even an organization which once
zealously supported a take-the-child-and-run approach has reversed itself and
condemned what it calls “quick trigger adoptions.” [6]
Says
the former head of Los Angeles County’s child welfare system: “What you have
now is an incentive to initially remove the child, and an incentive to adopt
them out. I think when you put those two together, there is a problem.” [7]
Family
preservation not only does not impede adoption, it can expedite the process of
termination of parental rights by allowing workers to find out more quickly
when a family can’t be preserved – and giving judges the confidence to make a
termination decision knowing that the agency really did try to keep the family
together.
The
argument that there are children trapped in foster care who should be adopted
and the argument that there are children trapped in foster care who should be
in their own homes are not mutually exclusive. There are children in foster
care who should be exiting in both directions.
But
the claim that family preservation impedes adoption is nonsense. So is the
claim that it was extremely difficult to terminate parental rights before the
law was changed. All that is needed is minimal competence on the part of child
protective workers.
This
was demonstrated by an American Bar Association project in Upstate New York.
The ABA's National Center for Children and the Law taught lawyers and workers
how to present a decent case in court. Without offering one iota of additional
help to families before moving to terminate, the termination rate soared. [8]
We
have always believed there is a place for efforts to increase the number of
adoptions as part of child welfare reform. But long as the rush to cash in on
adoption bounties causes a further neglect of efforts to keep families in their
own homes, it will only make things worse.
Contrary
to critics' claims, most people in child protection work are almost obsessed
with a substitute care fantasy, in which children are rescued from their
"evil" birth parents and placed in substitute settings, which, in the
imagination of the workers, are always ideal. For most workers and most
agencies, termination of parental rights is the dessert in the child welfare
meal, family preservation is the broccoli. ASFA gives workers and agencies all
the dessert they want without ensuring that they eat their broccoli first.
Updated
November 23, 2008
1. Between 1997 and 2000 adoptions of foster children
increased from 31,030 to 51,000. They’ve
stayed at about 50,000 per year ever since.
(1997 to 2003: U.S. Department of Health and Human Services, Adoptions
of Children with Public Child Welfare Agency Involvement By State FY 1995-FY
2003, available online at http://www.acf.hhs.gov/programs/cb/stats_research/afcars/
adoptchild03b.htm, 2004 to 2007: U.S. Dept. of Health and Human
Services, Trends in Foster Care and Adoption, chart available online at http://www.acf.hhs.gov/programs/cb/stats_research/afcars/trends.htm)
2. Martin
Guggenheim, "The Effects of Recent Trends to Accelerate the Termination of
parental Rights of Children in Foster Care - An Empirical Analysis in Two
States," Family Law Quarterly, p.139. Back to
Text.
3.
Trends, note 1, supra.
4.
Jim Casey Youth Opportunities, Time for Reform: Aging Out and On Their Own, May,
2007, available online at http://www.kidsarewaiting.org/tools/reports/files/0006.pdf
5.
Statement of Marcia Robinson Lowry, Executive Director, Children's Rights,
Testimony Before the Subcommittee on Human Resources of the House Committee on
Ways and Means, November 06, 2003. Back to Text.
6.
National Adoption Information Clearinghouse Disruption and Dissolution, http://naic.acf.hhs.gov/pubs/s_disrup.cfm
Back to Text.
7. Valarie
Honeycutt Spears, “Report: State unjustly terminates parental rights for
federal money,” Lexington Herald-Leader, April 16, 2006, and numerous
other stories.
8. Troy
Anderson, “Government Bonuses Accelerate Adoptions,” Daily News of Los
Angeles, December 8, 2003.
9. Debra
Ratterman of the ABA's National Legal Resource Center for Child Advocacy and
Protection described the project at the 1991 Annual Conference of the New York
State Citizens Coalition for Children. Back to Text.
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