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Improving Implementation of the Federal Adoption Assistance and Child Welfare Act of 1980 by Judge Leonard P

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Improving Implementation of the Federal Adoption Assistance and Child Welfare Act of 1980 by Judge Leonard P Improving Implementation of the Federal Adoption Assistance and Child Welfare Act of 1980 By Judge Leonard P. Edwards1 Introduction The Adoption Assistance and Child a child from a parent's or guardian's Welfare Act of 1980' ("Act") significantly custody. changed child welfare law in the United This monitoring is a significant re- States. Of particular importance, the sponsibility for judges. Juvenile court Act created responsibilities for juvenile judges are already the gatekeepers for court judges, making them an integral the nation's child welfare system. State part of the operation of the law. Al- law requires them to decide the pr-opri- though the Act has been in effect for ety of social service agency removal of well over a decade, it is still misunder- a child from parental custody. The fed- stood and often ignored. eral statute and state implementing stat- This article examines the implemen- utesqave designated juvenile court tation of the Act and the reasons why it judges as the monitors of social service is not working as well as it might. It of- delivery to these same parents. fers technical assistance to judges, court Through child welfare court hearings, administrators, social service agencies, the juvenile court must determine attorneys and other interested persons whether the social service agency has regarding the Act's implementation. It made "reasonable efforts" to prevent focuses upon the judicial oversight of foster care placement or to rehabilitate abused and neglected children when and safely reunite families of children they are removed from parental cus- already in pla~ement.~ tody. The premises of this paper are that In these court proceedings, the stakes many social service agencies do not ef- are high by both human and fiscal mea- fectively deliver preventive and reuni- sures. Child abuse reports have risen fication services to families, that juve- dramatically in the past ten years.'; The nile court oversight of social service impact upon juvenile courts and the fos- delivery has been ineffective or nonex- ter care system has been significant.' istent, and that many juvenile courts do The number of juvenile court depen- not ensure that children in out-of-home dency cases has increased substantially, care attain a permanent home in a and more than 460,000 children are cur- timely fashion. As a result, many state rently in out-of-home care at a cost of child welfare systems do not serve chil- hundreds of millions of dollars annu- dren and families well, and most states ally." risk losing federal funding for social Judges are periodically called upon to services. This paper concludes with rec- engage in substantial oversight of ommendations on how a strong judi- agency decision making, but not with ciary and specialized training can im- the consequences described in the Act. prove implementation of the Act and If a judge finds that the state social ser- ensure that it operates as Congress in- vice agency has not adequately deliv- tended. ered services to a family from whom a child has been removed, that finding Overview may serve as the basis for reducing fed- Nowhere else in the law must judges eral aid to the agen~y.~A negative judi- play such an important role as in juve- cial decision may thus reduce financial nile dependency cases. The Act and support for the agency and make it even state laws based upon it" require the ju- more difficult to provide services to venile court judge to monitor the activi- families whose children may be or have ties of the social service agency before, been removed. during and after the state has removed The Act's drafters placed juvenile children and families. It describes the courts in the crucial position of moni- juvenile court judge's critical role in toring social service compliance with its implementing the Act and in oversee- terms. Unfortunately, a number of ing the entire juvenile dependency pro- implementation problems have im- cess; it also describes the juvenile court paired the effectiveness of judicial over- judge's relationship to the social service sight. Seven problems stand out: First, agency and the art of the "reasonable many people disagree with the law. At efforts" finding. one extreme, some argue that preserv- ing families is dangerous for children I. The Act and that abusive and neglectful families The Adoption Assistance and Child should not be given an opportunity to Welfare Act of 198016 governs juvenile change, rehabilitate, and be reunited dependency law in the United States. with their children.1° At the other ex- Enacted in response to widespread criti- treme, people claim that the state is too cisms of the country's child welfare sys- intrusive into family life, that fewer chil- tem, this federal legislation balances the dren should be removed from parental need to protect children with the policy custody, and that, once removed, chil- of preserving families. After lengthy dren should not be adopted, but should hearings, Congress concluded that wait until their parents are ready to have abused and neglected children too of- them returned." ten were unnecessarily removed from Second, some social service agencies their parents," that insufficient re- have not delivered the services as prom- sources were devoted to preserving and ised in their state plans.12 Third, some reuniting families,I8 and that children judges misunderstand or remain un- not able to return to their parents often aware of their duty to monitor social driftedlgin foster care without a perma- service delivery. Fourth, in many courts nent home.20Congress concluded that the "reasonable efforts" issue is not liti- children need permanent homes, pref- gated by the parties. With no one rais- erably with their own parents, but, if ing the issue, courts understandably do that is not possible within a reasonable not address it. Fifth, some judges un- time, with another permanent family.21 derstand their responsibility but are Permanent families provide children unwilling to exercise their power and better care than the state and help en- rule on social service failures.I3 Sixth, sure that they will grow into emotion- some judges understand their respon- ally stable, productive adults." sibility and are willing to exercise their power, but they record their findings Congress's response, the Adop- incorrectly. Seventh, in many jurisdic- tion Assistance and Child Welfare tions court structure impedes imple- Act of 1980, was based upon three mentation of the Act.I4 Often a state's important principles: constitution or state laws create barri- ers to implementation.I5 (1)preventing unnecessary foster The Act can and must be better imple- care placements; mented. The first of the following four (2) timely and safe reunification of sections examines the federal law, its children in foster care with their purpose and what it requires ofjuvenile biological parents when possible; court judges. The second section re- and views the Act's implementation, exam- (3) expeditious adoption of children ines recent trial and appellate decisions, unable to return home. The Act and provides information on judicial seeks to achieve these goals, in training and trial court practice. The part, by providing state social third section suggests ways in which service systems with "incentives implementation can be improved and to encourage a more active and features techniques proven effective in systematic monitoring of children several jurisdictions. The fourth section in the foster care system."23 outlines some specific steps jurisdic- tions should take to improve compliance with the Act and thereby better serve The major tenets of the Act and of case plan, and the progress the state implementing legislation which has been made toward are as follows: alleviating or mitigating the causes necessitating placement 1. To qualify for federal funding, the in foster care. The court or state must prepare a state plan administrative body must also describing the services it will project a likely date by which provide to prevent children's the child may be returned home removal from parental custody or placed for adoption or legal and to reunite child and parents guardian~hip.~~ after removal.24 The plan must 8. The juvenile court must hold a include a provision that the social hearing no later than 18 months service agency will make foster after the original out-of-home care maintenance payments in placement to determine a accordance with section 472 of permanent plan for the child. the Act. The court must determine 2. The social service agency must whether the child should be provide services to prevent re- returned to the parent, should moval of a child from parental continue in foster care, should custody and to reunite a removed be placed for adoption, or child with a parent or guardian.25 should (because of the child's 3. Where a child is involuntarily special needs or circumstances) removed from parental custody, be continued in foster care on a the juvenile court must make a permanent or long term basis.31 finding that continued placement 9. The juvenile court must also of a child with the parent or assure that these judicial deter- guardian would be contrary to minations are made in a timely the child's welfare.26 fashion. The involuntary 4. The juvenile court must make removal of a child must be "reasonable efforts" findings in reviewed, usually within 48 or each removal case, indicating 72 hours. Thereafter, the status whether the state, in fact, pro- of the child must be reviewed at vided services to eliminate the least every six months. The need for removing the child from child must be returned home or the parent.27 have a permanent plan (adop- 5. The juvenile court must also tion, guardianship or long term determine whether the state has care) in place within 18 months made "reasonable efforts" to of the removal.32 enable the child to be reunited 10.The juvenile court must approve with his family.28 any voluntary, non-judicial 6.
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