Throughout the years the United States child welfare system has grown and changed to address unforeseen issues left unaddressed by prior Federal legislation. (See, E.g., Rhonda McMillion, Kids' Stuff: Prospects Brighten for Improvements in Foster Care System, 79 A.B.A.J. 104 (1993).) For example, the Adoption and Safe Families Act (“ASFA”) explicitly calls for a shifting of emphasis away from the traditional approach of attempting to keep children with their birth parents,( See Kathrine L. Shelly, NY Times, Clinton to Approve Sweeping Shift in Adoption, available at http://www.nytimes. com/1997/11/17/us/clinton-to-approve-sweeping-shift-in-adoption.html.) and towards placement in their best interest. (ASFA, PUBLIC LAW 105-89.) Even in light of attempts to reconcile apparent faults, the child welfare system in the United States, in its current state, is far from perfect. (See John Gibeaut, Nobody's Child: The Way Americans Go About Caring for Abused and Neglected Kids is a Mess, 83 A.B.A.J. 44 (1997).) Therefore, it is imperative to continue tweaking and amending legislation in order to nurture the system to become more effective at addressing the needs of the most vulnerable members of society.( Id.).
Two of the more pressing issues which need to be addressed by further Federal legislation are the: (1) problems faced by older children in foster care; and (2) interrelationship between domestic violence and child abuse/neglect. Accordingly, this blog post will: (1) discuss briefly the two previously stated issues; (2) suggest amendments to the current Federal law pertaining to such issues; (3) explain how the amendments take into account the balancing of competing interests (i.e. the rights of parents, the protection of children, and the role of the state); (4) analyze the collateral impact of the amendments on the role of the attorney for the child in child welfare cases; and (5) address the funding issues involved with such amendments.
Approximately 26,000 young people age out of foster care each year, and many are not prepared to live independently – many youth are discharged from care without attaining basic education goals, many become unemployed, homeless, and dependent on public assistance. (See U.S. Department of Health and Human Services, Title-IV-E Independent Living Programs: A Decade in Review (U.S.Government Printing Office, 1999); U.S. Department of Health and Human Services, Foster Care: Effectiveness of Independent Living Services Unknown (GAO/HEHS-00-13) (U.S. General Accounting Office, November 1999); R. Cook, A National Evaluation of Title-IV-Foster Care Independent Living Programs For Youth: Phase 2 (Westat, Inc., Contract No. OHDS 105-87-1608, U.S. Department of Health and Human Services, 1991). All available at http://agingoutinstitute.com/.) Regarding the interrelationship between domestic violence and child abuse/neglect, even if children are mere witnesses to acts of violence and not the intended targets, they can be affected in the same way as children who are physically abused. (See Goodman, G. and Rosenberg, M. “The Child Witness to Family Violence; Clinical and Legal Considerations.” In Sonkin, D., Ed. Domestic Violence on Trial; Psychological and Legal Dimensions of Family Violence. New York: Springer, 1987.)
Both issues covered in the prior paragraph need to be addressed with amendments to the current Federal law. This blog post will discuss potential amendments related to older children in care first. The current Federal law does not provide any support for children past the age of twenty-one. ( The Fostering Connections to Success and Increasing Adoptions Act of 2008 provides supports and services to promote permanency and improved well-being of older youth in foster care. These include a state option to continue providing Title IV-E reimbursable foster care, adoption, or guardianship assistance payments to children after the age of 18; a requirement that personal transition plans for youth aging out are developed within 90 days prior to youth exiting foster care; extending eligibility for Independent Living Program services to children adopted or placed in kinship guardianship at age 16 or older; and extending eligibility for education and training vouchers to children who exit foster care to kinship guardianship at age 16 or older. Fostering Connections, About the Law. Available at http://www.fosteringconnections.org/about_the_law?id=0001.) It appears that this age restriction is arbitrary. ( See Susan Vivian Mangold, Extending Non-exclusive Parenting and the Right to Protection for Older Foster Children: Creating Third Options in Permanency Planning, 48 BUF. L. R. 835 (2000).) That is, there is no valuable reason that support should be terminated when an individual in foster care turns twenty-one. Cutting-off financial, educational, emotional, and vocational support to individuals who are in foster care after they reach the age of twenty-one seems contrary to the primary purpose of the child welfare system. Basically, the child welfare system is in place to provide services for children that do not receive such services from their biological/adopted parents. See U.S. Dep’t of Health and Human Services, Admin. For Children and Families. (2011) How the Child Welfare System Works. Available at http://www.childwelfare.gov/pubs/factsheets/cpswork.cfm.) These needs will still exist after the foster child reaches a certain age; in fact; these needs will more than likely be heightened.
Therefore, any amendment to the existing Federal law needs to abolish arbitrary age restrictions in the foster care system. That being said, the Federal government needs to continue to provide funding after a child begins to move into adulthood. In the current political climate the continuance of funding may not be embraced; however, statistics show that such funding and support in early adulthood will actually save money in the long-term since the individuals receiving the funding will be better able to establish viable employment, “stay out of trouble”, and will likely not rely on public assistance in the future. (See Melinda Atkinson, Aging Out of Foster Care: Towards a Universal Safety Net for Former Foster Care Youth. 43 HARV. C.R.-C.L. L. REV. 183 (1998).)
Older foster children need to learn important life skills in order to flourish in society. (See Allison Henig, Employment Help for Youth Aging Out of Foster Care, 47 FAM. CT. REV. 570 (2009)) The Foster Care Independence Act (“FCIA”) should be amended to not only provide subsidies to Independent Living Programs (Foster Care Independence Act , PUB.L. 106-169 (enacted December 14, 1999).) for eighteen to twenty-one year old foster children, but for all foster care children regardless of age. Also, this Amendment will call for greater funding, which will be addressed later in this blog post.
Since this Amendment to FCIA seems to destroy the endpoint for the issuance of public funds to foster children, a new one must be established. The Amendment should provide that Independent Living Programs receiving Federal funding must maintain panels of review. These panels should be mandated to review a resident’s situation on a month-by-month basis. When, in the opinion of the panel, the resident is ready to exit the program, they should be discharged from foster care. All panel decisions to terminate foster care will need to be affirmed by an administrative body. Furthermore, if the administrative body affirms the panel’s decision and the resident takes issue, the resident can appeal to the Family Court.
The Independent Living Programs implicated in this Amendment will have to maintain certain standards in order to receive Federal funding. First, the facilities will only be allowed to charge residents rent up to ten percent of their monthly income (if monthly income is available). Second, the Programs must provide career counseling, which includes: (1) helping young adults apply for jobs, draft resumes and cover letters; and (2) helping to complete college and vocational school applications. Third, the Programs shall teach residences life skills, which include: (1) managing finances; and (2) domestic work (i.e. cooking, cleaning, laundry). Finally, the Programs must provide mentors for each resident.
In regards to the interrelationship between domestic violence and child abuse/neglect, another amendment must be made to the current Federal legislation. For many years, social scientists and mental health practitioners have recognized and studied the interrelationship between child abuse/neglect and domestic violence. (See University of New Mexico. (2006) Child Abuse and Domestic Violence. Available at http://hsc.unm.edu/emer med/ped/physicians/residents/articles/child%20abuse%20and%20domestic%20viol ence.pdf.) However, the Federal government has failed to address this problem head-on. At the current time, there is no Federal legislation that explicitly deals with this interrelationship.
The Adoption and Safe Families Act (“ASFA”) should be amended to provide greater protection and more resources for children that are caught-up in households/relationships where domestic violence is existent. This Amendment’s primary goal should be to protect the child from any of the consequences of domestic violence. Another goal should be to provide resources to address and adjudicate domestic violence matters while remaining in the purview of child welfare system.
In light of these goals, ASFA should be amended to mandate States to establish Integrated Domestic Violence and Child Welfare Courts. These courts will have jurisdiction over any matter involving domestic violence where a child is implicated. Therefore, these courts will be able to address the totality of the incident and not have to suffer from the problems associated with two separate justice systems. (“Although child and adult victims [of domestic violence] are often found in the same families, child welfare and domestic violence programs traditionally respond separately to victims. Because each system was focused primarily on the safety and protection of one victim, conflicts often arise.” U.S. Dep’t of Health and Human Services, Admin. For Children and Families. (2011) Domestic Violence and the Child Welfare System. Available at http://www.childwelfare.gov/pubs/factsheets/domestic_violence/domesticviolence.pdf.)
Additionally, this Amendment should establish both Child Advocacy Centers as well as Family Justice Centers. At the present time, these types of centers have been very successful in dealing with the interrelationship between domestic violence and child abuse/neglect. Therefore, providing Federal funding for such programs will obviously increase their prevalence, which will in turn provide greater support for children as well as victims of domestic violence.
Moreover, since domestic violence has been proven to have adverse effects on children even when they are not the targets of such abuse, the Child Abuse Prevention and Treatment Act’s (“CAPTA”) definition of child abuse/neglect should be amended to include recurrent incidences of domestic violence in the presence of a child. (However, the definition should include a rebuttable presumption that if the victim can show a sincere and substantiated fear of the perpetrator, or that they were under the control of the perpetrator, abuse has not occurred.)
Interests, rights, and privileges are shifted every time legislation is passed or amended. (See generally Gabriela Shalev, Interpretation in Law: Chief Justice Barak's Theory, 36 ISR. L. REV. 123 (2002).) For example, in most cases when a child welfare law is passed, children are granted greater protections while parents lose some rights, and the State takes on more responsibilities. Since each actor has a large stake, it is important to attempt to balance all interests. ( See generally Ann Laquer Estin, Federalism and Child Support, 5 VA. J. SOC. POL'Y & L. 541 (1998).)
If the current Amendments are passed the rights of parents will surely be affected. The rights of parents will be diminished if the definition of abuse/neglect is modified to include reoccurring incidences of domestic violence. That is, greater restrictions will be placed on parents involved in relationships where domestic violence is present – there will be more child placements outside of their traditional home.
Parents’ rights will also be affected by the proposed Amendment that establishes Independent Living Programs. Many times when an older child ages out of foster care they are forced to turn to their biological parents for support. (Alice Bussiere, Adoption and Foster Care: Permanence for Older Foster Youth, 44 FAM. CT. REV. 231 (2006).) However, if the child has a third party support system the need for reunification with their parents is weak, if not nonexistent. (Id.) Moreover, the Amendment that establishes Family Justice Centers will provide parents that have been victims of domestic violence greater rights; in that, they will have the necessary support to escape their abusers. (Casey Gwinn, The Family Justice Center Collaborative Model, 27 ST. LOUIS U. PUB. L. REV. 79 (2007).)
The protection of children will also be changed if the proposed Amendments are passed. For example, older children and young adults will be protected by a consistent place to live, guidance regarding critical life decisions, and a network of emotional and financial support. Younger children will also have greater protections. The Amendments related to the interrelationship between domestic violence and child abuse/neglect will provide children with a level of protection that they have never had in the past in situations of domestic violence. Children will have places to go and address all of the problems caused by domestic violence. Also, if the domestic violence reaches a certain level, and the victim is unwilling to discontinue their relationship with the perpetrator, the children will be rescued from the home and placed in a better position.
The states will have an increased role and more responsibilities regarding the welfare of children if these Amendments are passed. Each state will have to provide more: (1) funding; (2) man power; (3) administrative cost; and (4) judicial oversight, if these Amendments are passed. Even though these Amendments may be costly in many areas, the long-term effect should be beneficial to Nebraska. Furthermore, the Amendments do not place too much stress on the States resources, nor do they give the States too many powers – the Amendments will not violate parents or children’s fundamental rights.
Since the proposed Amendments alter Federal law, many states that mandate an attorney for the child, such as New York, will be affected. For example, case loads for these attorneys will be increased because they will be serving a broader population of older children in care and more parental termination proceedings based on the new definition of abuse/neglect. Additionally, these attorneys will have greater resources in domestic violence/child welfare cases due to the establishment of Child Advocacy and Family Justice Centers. Other than that, the role of an attorney for the child will not be materially changed.
Funding is always one of the greatest obstacles in the way of change. A child welfare system is not possible without money, and in this trying economic time, money is difficult to come by. The Amendments proposed will be expensive to enact. However, they will save money in the long-term. The cycle of domestic violence will be broken and older foster children will become valuable/productive members of society. That being said, there is a major problem with the current way that Federal funds are allotted to State-run child welfare system – too much money is spent on administrative costs and does not help its intended targets. (Susan Vivian Mangold, Poor Enough to Be Eligible? Child Abuse, Neglect, and the Poverty Requirement, 81 STJLR 575 (2007).) The Federal government only provides funds to those children that have family’s making below an archaic base-line of income. This is a separate problem that will eventually call for another Amendment to Federal child welfare legislation.
The United States child welfare system, in its current state, will not withstand the tests of time. Therefore, it is critical to continue amending such legislation. The Amendments in this Memorandum are but an example of the problem-solving approach the government needs to take to improve the child welfare system.