Currently, about 440,000 American children live in the custody of the state. The median amount of time a child spends in foster care is 14.7 months; more than a quarter stay for over two years. While foster care is almost always safer than the homes from which these kids are removed—in 2014, the median rate of reported maltreatment of children in foster care was 0.27 percent, much lower than the 1 percent rate in the general population—foster care is not meant to be a long-term solution. Keeping a child in physical and emotional limbo can be devastating.
But now, amid the pandemic, some advocates want to stretch it out longer. A bill introduced last month by Democratic congresswoman Gwen Moore of Wisconsin would have the Department of Health and Human Services “pause” the timeline for foster care. The 1997 Adoption and Safe Families Act (ASFA) mandates that states move to terminate parental rights if children have been in foster care for 15 of the past 22 months. But Moore argues that “COVID-19 has created great uncertainty for many, causing millions to face housing, health, food, and job insecurity. It has also hindered parents from being able to utilize the services now unavailable in the COVID closedown that would normally help them reunify with their children.”
In a June letter to state child welfare agencies, Jerry Milner, associate commissioner of the Children’s Bureau, urged agency heads to “consider whether it is appropriate to terminate a parent’s rights pursuant to the 15/22 requirement” during the pandemic. He noted that “additional consideration is particularly important when a parent’s access to services that are necessary to work toward reunification . . . have been compromised as a result of the pandemic.”
Who could fail to sympathize with parents unable to regain custody of their children because they are poor and simply need more access to necessities? Yet these are not the typical cases of children in foster care. Many children—it’s true—are removed due to neglect rather than abuse. But neglect is not simply the result of poverty. “Neglect” also includes leaving children in the hands of known abusers, giving them illegal drugs, subjecting them to corporal punishment, and failing to provide them with medical care. In 2017, substance abuse was listed in 36 percent of the cases as a reason for a child’s removal to foster care. Another 5 percent listed alcohol abuse. And 14 percent cited a caretaker’s “inability to cope,” which is often code for substance abuse, mental-health issues, or both.
It’s true that these parents could use what are broadly referred to as reunification “services,” including drug rehab, parenting classes, and instruction on anger management. Unfortunately, few of these services guarantee that the situation for children will change. In a 2018 presentation at the Brookings Institution, Ron Haskins noted that only 7 percent of the services listed by the California Evidence-Based
Clearinghouse for Child Welfare proved effective. Addiction to substances is difficult to overcome in the best of circumstances, and there is no guarantee that social-services intervention will lead to sobriety.
Caseworkers and family court judges continue to hold out hope for addicted parents who relapse or go off medication to combat severe mental illness. And the timelines of ASFA are already flouted routinely. States are not required to collect data on agencies’ use of the “15 of 22” provision, but the federal government does collect some information on how this rule is applied. As part of the federal Child and Family Services Review, the Children’s Bureau reviews a minimum of 65 foster care cases per state. According to Sarah Ann Font of Pennsylvania State University, between 2015 and 2017 “states filed for termination of parental rights in just over half—52 percent—of applicable cases they reviewed. In 26 percent of applicable cases where termination of parental rights was not filed, no reason was given regarding why an exemption was made.” Moreover, the Department of Health and Human Services reported that in 2013, of the children who had been in the foster care system for at least 15 of the past 22 months, only 14.3 percent became “legally free for adoption,” meaning that their parents’ rights were terminated.
Several reasons explain these delays, including how overworked family courts are. But judges regularly tell child-welfare agencies to give parents another chance. Andrew C. Brown of the Texas Public Policy Foundation supports Moore’s legislation, saying that “the clock continues to run on arbitrary case timelines governing termination of parental rights, robbing them of precious time.” But the clock continues to run for children, too, whose interests the child-welfare system is meant to serve.
“Children have a very different sense of time than adults,” the National Council of Juvenile and Family Court Judges declared in guidelines published in 2016. “Short periods of time for adults seem interminable for children, and extended periods of uncertainty exacerbate childhood anxiety.” That’s even truer when children are regularly transferred between foster care and biological family homes, or among different foster homes and group home settings.
Former Louisiana senator Mary Landrieu was instrumental in passing the ASFA and pushing for tighter timelines in the law. In an interview earlier this summer, she told me that when she came to Washington, foster care “was like a life sentence. I mean, the foster care system was supposed to be a temporary healing place for children. . . . [but] the data showed that . . . once you got into the foster system, you never really got out.” A quarter of a century later, the pandemic is being used as an excuse to go back to that failed model.
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