Sunday, January 31, 2010
Ind. Law - More on "Grandparents testify in Indy to establish visitation rights"
Updating this ILB entry from Jan. 19, 2010, about SB 59 (which passed third reading in the Senate Jan. 25th with a vote of Yeas 44 and Nays 6), here is a letter published in the Jan. 30th Terre Haute Trib-Star, headlined "Intrusive expansion of visitation litigation", written by Karen A. Wyle, a Bloomington attorney:
Most Hoosiers have no idea that in Indiana, widowed, divorced and single parents can be sued for grandparent visitation. If such parents make the difficult decision that contact with a grandparent is bad for their child or even dangerous, a trial judge can overrule this decision. Now, bills are racing through the Indiana House and Senate that would undermine the parental authority of parents in intact families and subject them to the same litigation.
Grandparent visitation litigation is almost always a tragic and counterproductive mistake, with the child the principal victim. Litigation generally puts an end to any possibility of future improvement in relations between parent and grandparent. By so doing, it further reduces the chances of a healthy and beneficial relationship between grandparent and grandchild. If the grandparent wins visitation, the child will be in an ongoing emotional crossfire. The litigation itself places enormous emotional stress on the custodial family, and consumes financial resources that would otherwise have benefitted, even fed and clothed, the child at its center.
The proponents of these bills, HB 1055 and SB 59, express concern about grandparents and great-grandparents who step in to care for their grandchildren when the parents are unable to do so, only to be kept away from the children when the parents take up their role again. These concerns can be addressed through guardianship proceedings or statutes concerning de facto parenthood, or, where the parents are arguably unfit, via Child Protective Services. These bills reach far further.
The U.S. Supreme Court case of Troxel v. Granville, repeatedly recognized by the Indiana Court of Appeals, held that a parent’s fundamental constitutional right to raise his or her child includes the right to make decisions about contact between children and their grandparents (or other nonparents). Courts must, in any grandparent visitation dispute, start out by presuming that the parent’s decision to deny grandparent visitation was in the child’s best interests. Only if that presumption is decisively rebutted, by specific facts rather than generalizations about grandparental affection, may the court override the parent’s decision.
Our current grandparent visitation statute, I.C. 31-17-5, unfortunately makes no mention of these binding constitutional principles. The proposed bills not only would not correct this situation, but would greatly expand the scope of nonparent visitation litigation. Intact families who have not in any way involved the judicial system in their family lives could be thrust into the purgatory of visitation litigation.
The situations most often thought to require such intervention — where a single, divorced or widowed parent is unwilling to let the child continue a relationship with the parents of the noncustodial parent — would no longer be a prerequisite for a family’s being dragged into court.
Please — call or e-mail your state representative and senator immediately and tell them to oppose these bills. Contact Gov. Daniels and urge him to veto the bills if he receives them. Please do what you can to stop this well-intentioned, but harmful and intrusive expansion of nonparent visitation litigation.
Note that HB 1055 paased the House on Jan. 28, with a vote of 63-33.
Here are a number of other ILB entries mentioning grandparents visitation.
Posted by Marcia Oddi on January 31, 2010 08:17 AM
Posted to Indiana Law
http://indianalawblog.com/archives/2010/01/ind_law_more_on_233.html
Isabella Brooke Knightly and Austin Gamez-Knightly
In Memory of my Loving Husband, William F. Knightly Jr. Murdered by ILLEGAL Palliative Care at a Nashua, NH Hospital
Sunday, January 31, 2010
United States Supreme Court Parental Rights CaseLaw
United States Supreme Court Parental Rights CaseLaw
Author Yvonne Mason
In the early 1920s, the United States Supreme Court first reviewed the rights, liberties and obligations of parents to direct the upbringing of their children. Two important decisions, Meyer v. Nebraska and Pierce v. Society of Sisters, established a legacy which was followed by a series of decisions holding that parenting is a fundamental constitutional right, and among “the basic civil rights of man.”Choices about marriage, family life, and the upbringing of children are among those rights the Court has ranked as “of basic importance in our society,” and as sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect.
Assembled here are a majority of those cases defining or reaffirming these fundamental rights. Links are provided to each case on the FindLaw Internet Legal Resources service. Each is in hypertext format, with links to related opinions of the court contained in the ruling.
--------------------------------------------------------------------------------
M. L. B. v. S. L. J.
___ US ___, 117 S. Ct. 555 (1996)
Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as “of basic importance in our society,” rights sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect. This case, involving the State’s authority to sever permanently a parent-child bond, demanded the close consideration the Court has long required when a family association so undeniably important was at stake.
Santosky v Kramer
455 US 745 (1982)
The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the 14th Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. A parental rights termination proceeding interferes with that fundamental liberty interest. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
Lassiter v Department of Social Services
452 US 18 (1981)
The Court’s decisions have by now made plain that a parent’s desire for and right to “the companionship, care, custody, and management of his or her children” is an important interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.” A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.
Quilloin v Walcott
434 US 246 (1978)
We have little doubt that the Due Process Clause would be offended “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the “best interests of the child.”
Smith v Organization of Foster Care Families
431 US 816 (1977)
In this action, individual foster parents and a foster parents organization, sought declaratory and injunctive relief against New York State and New York City officials, alleging that the statutory and regulatory procedures for removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the 14th Amendment. The ruling contains an analysis of the rights of natural parents as balanced against the rights of foster parents, as well as a comprehensive discussion of foster care conditions.
Moore v East Cleveland
431 US 494 (1977)
The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. A host of cases, tracing their lineage to Meyer v. Nebraska and Pierce v. Society of Sisters have consistently acknowledged a “private realm of family life which the state cannot enter.” When the government intrudes on choices concerning family living arrangements, the Court must examine carefully the importance of the governmental interests advanced.
Cleveland Board of Education v La Fleur
414 US 632 (1974)
The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. There is a right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Stanley v Illinois
405 US 645 (1972)
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and protection. The integrity of the family unit has found protection in the Due Process Clause of the 14th Amendment, the Equal Protection Clause of the 14th Amendment, and the 9th Amendment.
Wisconsin v Yoder
406 US 205 (1972)
In this case involving the rights of Amish parents to provide for private schooling of their children, the Court held: “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”
Loving v Virginia
388 US 1 (1967)
In this case involving interracial marriage, the Court reaffirmed the principles set forth in Pierce and Meyers, finding that marriage is one of the basic civil rights of man, fundamental to our very existence and survival. “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Griswold v Connecticut
381 US 479 (1965)
The 4th and 5th Amendments were described as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” The Court referred to the 4th Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” Reaffirming the principles set forth in Pierce v. Society of Sisters and Meyers v Nebraska.
Prince v Massachusetts
321 US 158 (1944)
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
Skinner v Oklahoma
316 US 535 (1942)
“We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”
Pierce v Society of Sisters
268 US 510 (1925)
The liberty of parents and guardians to direct the upbringing and education of children was abridged by a proposed statute to compell public education. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Meyer v Nebraska
262 US 390 (1923)
“No state … shall deprive any person of life, liberty or property without due process of law.”"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
http://protectingourchildrenfrombeingsold.wordpress.com/about/united-states-supreme-court-parental-rights-caselaw/
Author Yvonne Mason
In the early 1920s, the United States Supreme Court first reviewed the rights, liberties and obligations of parents to direct the upbringing of their children. Two important decisions, Meyer v. Nebraska and Pierce v. Society of Sisters, established a legacy which was followed by a series of decisions holding that parenting is a fundamental constitutional right, and among “the basic civil rights of man.”Choices about marriage, family life, and the upbringing of children are among those rights the Court has ranked as “of basic importance in our society,” and as sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect.
Assembled here are a majority of those cases defining or reaffirming these fundamental rights. Links are provided to each case on the FindLaw Internet Legal Resources service. Each is in hypertext format, with links to related opinions of the court contained in the ruling.
--------------------------------------------------------------------------------
M. L. B. v. S. L. J.
___ US ___, 117 S. Ct. 555 (1996)
Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as “of basic importance in our society,” rights sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect. This case, involving the State’s authority to sever permanently a parent-child bond, demanded the close consideration the Court has long required when a family association so undeniably important was at stake.
Santosky v Kramer
455 US 745 (1982)
The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the 14th Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. A parental rights termination proceeding interferes with that fundamental liberty interest. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
Lassiter v Department of Social Services
452 US 18 (1981)
The Court’s decisions have by now made plain that a parent’s desire for and right to “the companionship, care, custody, and management of his or her children” is an important interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.” A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.
Quilloin v Walcott
434 US 246 (1978)
We have little doubt that the Due Process Clause would be offended “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the “best interests of the child.”
Smith v Organization of Foster Care Families
431 US 816 (1977)
In this action, individual foster parents and a foster parents organization, sought declaratory and injunctive relief against New York State and New York City officials, alleging that the statutory and regulatory procedures for removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the 14th Amendment. The ruling contains an analysis of the rights of natural parents as balanced against the rights of foster parents, as well as a comprehensive discussion of foster care conditions.
Moore v East Cleveland
431 US 494 (1977)
The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. A host of cases, tracing their lineage to Meyer v. Nebraska and Pierce v. Society of Sisters have consistently acknowledged a “private realm of family life which the state cannot enter.” When the government intrudes on choices concerning family living arrangements, the Court must examine carefully the importance of the governmental interests advanced.
Cleveland Board of Education v La Fleur
414 US 632 (1974)
The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. There is a right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Stanley v Illinois
405 US 645 (1972)
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and protection. The integrity of the family unit has found protection in the Due Process Clause of the 14th Amendment, the Equal Protection Clause of the 14th Amendment, and the 9th Amendment.
Wisconsin v Yoder
406 US 205 (1972)
In this case involving the rights of Amish parents to provide for private schooling of their children, the Court held: “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”
Loving v Virginia
388 US 1 (1967)
In this case involving interracial marriage, the Court reaffirmed the principles set forth in Pierce and Meyers, finding that marriage is one of the basic civil rights of man, fundamental to our very existence and survival. “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Griswold v Connecticut
381 US 479 (1965)
The 4th and 5th Amendments were described as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” The Court referred to the 4th Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” Reaffirming the principles set forth in Pierce v. Society of Sisters and Meyers v Nebraska.
Prince v Massachusetts
321 US 158 (1944)
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
Skinner v Oklahoma
316 US 535 (1942)
“We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”
Pierce v Society of Sisters
268 US 510 (1925)
The liberty of parents and guardians to direct the upbringing and education of children was abridged by a proposed statute to compell public education. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Meyer v Nebraska
262 US 390 (1923)
“No state … shall deprive any person of life, liberty or property without due process of law.”"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
http://protectingourchildrenfrombeingsold.wordpress.com/about/united-states-supreme-court-parental-rights-caselaw/
The New World Order Wants Your Children
January 31, 2010 yvonnemason
The New World Order Wants Your Children
Posted by innerpeace5 on Saturday, January 30, 2010 5:58:26 PM
The Children’s Defense Fund (CDF), the chief vehicle for those who want government to take over the raising of children, has a new goal under the Clinton Administration. Having failed to get Congress to pass the costly ABC Child Care bill, the CDF is now pushing to get a United Nations treaty on children signed and adopted so that child-advocacy lawyers can assert “children’s rights” against their parents. Since Hillary Clinton was chair of CDF’s board of directors from 1986 to 1991, and since she was succeeded as CDF chair in 1991 by Donna Shalala (now Secretary of HHS), and since CDF’s CEO, Marian Wright Edelman, is Hillary’s close friend, we can anticipate an aggressive effort by the Clinton Administration on behalf of this treaty.
The treaty is called the United Nations Convention on the Rights of the Child. It was unanimously adopted by the U.N. General Assembly on November 20, 1989 and signed by more than 100 foreign governments. President George Bush did not sign the Treaty or send it to the Senate for ratification. There are dozens of excellent reasons to reject it.
If the text of the U.N. Treaty were proposed as new federal legislation, the bill would never pass. It would be unacceptable to the American people because it would give the Federal Government too broad a grant of power over our children, families and schools, and it would be unconstitutional because of both vagueness and federal interference with states’ rights.
But the treaty has been blessed by the United Nations and layered with lofty goals and high-sounding words. Its salesmen are peddling it with pathetic stories of the mistreatment of children, such as outrageous murders in Bolivia. CDF and 150 liberal advocacy groups in the United States have made it a “cause” and are even using it as a litmus test to try to label Congressmen as “pro-children” or “anti-children.”
It is always important to scrutinize proposed treaties even more carefully than ordinary legislation, first, because treaties can be ratified at any time by two-thirds of U.S. Senators present and voting (e.g., with two Senators voting aye and one Senator voting no), and second, because of the preferential status which treaties enjoy in the American system of government. Once ratified, they become part of the “supreme law of the land,” along with the U.S. Constitution and federal laws.
Any time a treaty is proposed, we should study the language, as well as the intent, and consider a worst case scenario of how the treaty’s provisions – in the hands of international bodies (over which we have no control) – could imperil American sovereignty and the rights of American citizens.
The American philosophy of government, as spelled out in the Declaration of Independence and the United States Constitution, is that the individual’s inalienable rights to life, liberty and property come to each of us from our Creator and may not be impaired without due process of law, and that the prime purpose of government is to guarantee those rights. Americans do not believe that individual rights originate with the government, the United Nations, kings, rulers, or even society.
The United States Constitution lists several rights that Americans can assert against our government; then the Ninth Amendment adds, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The U.N. Convention on the Rights of the Child, on the other hand, purports to be a comprehensive listing of all rights of the child, and is based on the concept that a child’s rights originate with the U.N. Treaty itself or with the government. The logical conclusion is that a child would have no rights except those in the Treaty, and what government gives, government also can take away.
If this U.N. Treaty is ever written into American law – a treaty which assumes that government is the source of the listed “rights” – this can only diminish the status of existing American rights. Since U.N. treaties, courts, and bureaucracies do not respect our American philosophy of individual rights, it would badly curtail our liberty to submit ourselves to a U.N. document interpreted by foreign lawyers.
Who Will Enforce the Rights?
The next problem with the U.N. Convention on the Rights of the Child is, who is to be the enforcer of the Treaty’s rights – and against whom are they to be enforced? In American constitutional law, the right of free speech, for example, is a right which the individual can assert against government encroachment. This U.N. Treaty doesn’t say who is to enforce the child’s rights against whom, but it is reasonable to infer that many of these rights are to be enforced against the parents, probably with the help of government.
The Treaty purports to give the child the right to express his own views freely in all matters (Article 12), to receive information of all kinds through “media of the child’s choice” (Article 13), to freedom of religion (Article 14), to be protected from interference with his correspondence (Article 16), to have access to information from national and international sources in the media (Article 17), to use his “own language” (Article 30), and to have the right to “rest and leisure” (Article 31).
What do all these rights mean, how will they be enforced, and against whom? Does this mean that the child can refuse to do his homework and household chores because they interfere with his “right” to rest and leisure? And can he demand a government-paid lawyer to file a lawsuit against his parents?
Does this mean that a child has the right to use his native language in school and cannot be required to speak English? Does it mean that a child can demand the right to watch television in order to receive media reports from national and international sources?
Does this mean that a child can assert his right to say anything he wants to his parents at the dinner table? Does this mean that the government will assist the child to join a cult or select a different church from the one his parents attend? The U.N. Treaty does not provide answers to these questions.
These are just a few of the literally dozens of brand new “rights of the child” scattered throughout the 54 Articles of the U.N. Treaty, which is longer than the entire U.S. Constitution. Despite a vague reference to undefined “rights and duties of parents,” the Treaty does not recognize any specific parental right to make decisions for their minor children.
The Grab for Power Over Education
Suppose Congress were to consider legislation to set up a procedure for the Federal Government (or the U.S. Department of Education) to define the content of the education of every child. Imagine the howls that would go up as parents and concerned citizens protest that Congress has no business prescribing school curriculum. From all sides, we would hear citizens reassert their dedication to local control of education. Private schools would express fear that they would become an endangered species.
The U.N. Convention on the Rights of the Child prescribes the content of what must be taught to all children in several sensitive areas. Article 28 prescribes that “the education of the child shall be directed to” such things as “the principles enshrined in the Charter of the United Nations”; respect for “the national values of the country … from which he or she may originate, and for civilizations different from his or her own” (that means adopting the controversial curricular approach known as “global education” or “multiculturalism”); “equality of sexes” (that means promoting the Equal Rights Amendment which was rejected by the American people in 1982); and “the development of respect for the natural environment” (certainly one of the most politically-charged issues in the United States).
The U.N. Treaty recognizes that private schools may exist, but only so long as they teach the above subjects and otherwise conform to government standards.
The American people would not permit Congress to prescribe what all our children must learn on these sensitive issues, so we certainly don’t want the United Nations to lay down the law. But, if this U.N. Treaty is ratified, dictatorial control over all school curriculum will become part of the supreme law of the land.
The Treaty’s Expensive Obligations
In several sections, the U.N. Treaty imposes on the government the obligation to “strive to ensure,” to “render appropriate assistance,” and to “take all appropriate measures” so that children may enjoy certain economic benefits. Article 4 states that the government “shall undertake all appropriate legislative, administrative, and other measures” to implement “economic, social and cultural rights.” Furthermore, the government “shall undertake such measures to the maximum extent of their available resources.”
These expensive responsibilities include “health care services” (Article 24), social security (Article 26), and an “adequate” standard of living, nutrition, clothing and housing (Article 27).
What does this language really mean? The big-spending liberals will surely argue that the Treaty will require our government to impose new taxes – or go further into debt – to carry out these obligations.
The Treaty’s Daycare Obligations
The U.N. Treaty would probably require us to set up a national system of daycare. Article 18 says that the government “shall ensure the development of institutions, facilities and services for the care of children . . . of working parents.” The Treaty gives the children the right to benefit from these services and facilities.
What does the U.N. Treaty mean when it requires universal legal standards for the care and protection of children against neglect, exploitation, and abuse? Is it “neglect” not to establish government daycare centers? Or is it “neglect” to put children in daycare centers where they are exposed to more illnesses? Shall we leave this up to United Nations judges or “experts” to decide?
The Treaty even obligates the government to ensure “standards” for child care institutions, services and facilities. National daycare standards were part of the ABC Child Care bill and were a major reason why, after lengthy debate, Congress specifically rejected this approach in its 1990 legislation. Are we now to have Congress overridden by a United Nations mandate?
The U.N. Treaty grants the child the right to be protected against neglect or negligent treatment (Article 19). Could homeschoolers be charged with “neglect” for not sending their children to an institutional school? Or for not sending children to school until age seven or eight?
Opening Up New Litigation
Unlike our U.S. Constitution, which only mentions rights that can be enforced against the government, the U.N. Treaty declares “rights of the child” against parents, the family, private institutions, and society as a whole. Since the Treaty is a legal document which, if ratified, would become part of the “supreme law of the land,” we can expect ACLU lawyers to bring a series of test cases to see how far the courts will extend its provisions. The Convention would open up a Pandora’s box of litigation, either in some international court or in U.S. courts, or both. It’s hard to say which venue would be worse.
International courts are frequently biased against Americans. Several years ago when the World Court treated the United States unfairly, the Reagan Administration simply thumbed its nose at the Court. Another administration might have acquiesced in the unfair treatment. Every day, U.S. courts hand down decisions which become law in our country, and it is not in the interests of American citizens to have those decisions grounded in United Nations treaties rather than in U.S. constitutional law.
Americans will be in for a shock if judges around the country start applying this U.N. Treaty as the supreme law of our land. It is full of vague requirements which are susceptible to different and even contradictory interpretations.
For example, Article 24(3) requires the government to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.” What kind of standard is that? The practice doesn’t have to be harmful or even negligent, but merely “prejudicial,” and this new “standard” would be defined by unelected judges.
What will it mean to enforce Article 28, which makes “primary education compulsory and available free to all”? Will that make it compulsory to give subsidies to private or religious schools – and if so, will they be required to modify their religious practices? Or, will Article 28 ban private and religious schools altogether? Either outcome would override existing Supreme Court decisions. Do we want United Nations courts to answer these questions?
A New International Bureaucracy
Of course, all these grandiose U.N. Treaty goals would not be complete without the establishment of a new international bureaucracy and mechanism of control. The U.N. Convention on the Rights of the Child would set up a Committee on the Rights of the Child consisting of ten “experts” chosen by secret ballot from a list of nominees submitted by the governments that sign the Treaty. Of course, there is no assurance that any American will be on this committee of experts, not even any assurance that even one “expert” will be friendly to American institutions and traditions. (Articles 43 and 44)
The Secretary-General of the United Nations will provide “the necessary staff and facilities” which will assist the committee of experts in monitoring and reporting on “the degree of fulfillment of the obligations” established under the Treaty. We cannot assume that this would be merely an expensive exercise in international busybodyism, because this is not merely a treaty of generalized hopes; it is full of mandatory words such as “rights” and “obligations.”
Contradictory Abortion Provisions
The U.N. Convention on the Rights of the Child is vague, misleading and contradictory on the fundamental issue of whether or not an unborn child is accorded any rights. Whatever the American people ultimately decide about this issue, the decision-making power should not rest with a United Nations treaty. Some argue that this Treaty probably creates an across- the-board right to abortion that would override U.S. law and Supreme Court decisions. Others argue that the Treaty may give the same rights to the unborn child and to the born child. Five provisions deal with this issue.
Language in the Preamble asserts the child’s right to “appropriate legal protection, before as well as after birth.” However, it can be argued that the Preamble would have no legal effect. The language is so vague that it also could be argued that such rights would inure only if the child were subsequently born alive.
Article 6 states that every child has a “right to life.” However, whenever the “right to life” has been challenged by a “right to privacy,” U.S. courts have come down on the side of abortion rather than respecting the life of the unborn child.
Article 16 purports to establish the child’s right to “privacy.” Under U.S. Supreme Court decisions, “privacy” is the operative word which has created the right to abortion. We can be sure that lawyers will argue that the Treaty creates a federal statutory right to “privacy” which can subsequently be used by the courts to include abortion.
Article 24(f) grants the right to “family planning education and services.” This language is generally used as a legal rationale for abortion services.
Article 2 prohibits discrimination on the basis of sex. Several U.S. courts have held that, where a private or government employer provides health care or insurance coverage for other types of medical services, such language creates a right to paid abortions. The rationale is that, because only women can have abortions, denying funding for abortions discriminates against women on account of their sex.
When the Senate on September 11, 1990 considered passage of a resolution calling on the President to send the Convention on the Rights of the Child to the Senate, Senator Jesse Helms offered an amendment to ensure that the treaty would not interfere with the rights of unborn children. The Helms amendment was defeated, creating the legislative inference that the Senate was not willing to go on record as stating that the Convention would not impact the abortion issue.
A Congressman’s Warning
Congressman Thomas J. Bliley Jr. is one of the few Congressmen who have taken the time to study the U.N. Convention on the Rights of the Child. He has issued a strong warning against its dangers, saying: “Ostensibly, it would create new national and international roles for governments to secure a child’s right to such fundamental necessities as nutrition, health care, housing and education.” But, he points out, laudable as these goals are, the U.N. Treaty creates just as many “confusing expectations.”
For example, he asks, what will it really mean if the United States must comply with Article 28(2), which states that the government “shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with” the Treaty? Are we willing to give an international committee the authority to monitor such a “protection”? Do these “rights” have real meaning, or are they just a “slick public-relations campaign” by those trying to make political capital out of pretending to support children?
Congressman Bliley warns: “The Convention represents a potential threat to our form of government. As written, it places government in a superior position to its citizens by granting these rights to children. What is so bad about that? Such an interpretation is antithetical to our limitations on government. Many of these ‘rights’ are not presently found in our Constitution, but rather, are considered to be among our inalienable rights endowed by our Creator.”
“More practically speaking,” Congressman Bliley continues, “the Ninth and Tenth Amendments to the Constitution, reserving rights to the states and to the people, will simply be swept away in deference to Article VI of the U.S. Constitution which provides that ‘all Treaties made … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. “‘
So, according to Congressman Bliley: “Hundreds of judges will be left to interpret the Convention as they please and will possess all power to supersede state laws” in order to carry out the vague goals of the treaty, such as “appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and … the development of institutions, facilities and services for the care of children.”
Congressman Bliley concludes: “It finally becomes clear: Ratification is not about children; it is about power. … It is a potential threat to some of our most precious freedoms, civil liberties, and our form of government.”
The U.N. Treaty on the Rights of the Child is a bad deal for Americans on every count. It should never be signed by our President or ratified by our Senate.
http://protectingourchildrenfrombeingsold.wordpress.com/2010/01/31/the-new-world-order-wants-your-children/
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The New World Order Wants Your Children
Posted by innerpeace5 on Saturday, January 30, 2010 5:58:26 PM
The Children’s Defense Fund (CDF), the chief vehicle for those who want government to take over the raising of children, has a new goal under the Clinton Administration. Having failed to get Congress to pass the costly ABC Child Care bill, the CDF is now pushing to get a United Nations treaty on children signed and adopted so that child-advocacy lawyers can assert “children’s rights” against their parents. Since Hillary Clinton was chair of CDF’s board of directors from 1986 to 1991, and since she was succeeded as CDF chair in 1991 by Donna Shalala (now Secretary of HHS), and since CDF’s CEO, Marian Wright Edelman, is Hillary’s close friend, we can anticipate an aggressive effort by the Clinton Administration on behalf of this treaty.
The treaty is called the United Nations Convention on the Rights of the Child. It was unanimously adopted by the U.N. General Assembly on November 20, 1989 and signed by more than 100 foreign governments. President George Bush did not sign the Treaty or send it to the Senate for ratification. There are dozens of excellent reasons to reject it.
If the text of the U.N. Treaty were proposed as new federal legislation, the bill would never pass. It would be unacceptable to the American people because it would give the Federal Government too broad a grant of power over our children, families and schools, and it would be unconstitutional because of both vagueness and federal interference with states’ rights.
But the treaty has been blessed by the United Nations and layered with lofty goals and high-sounding words. Its salesmen are peddling it with pathetic stories of the mistreatment of children, such as outrageous murders in Bolivia. CDF and 150 liberal advocacy groups in the United States have made it a “cause” and are even using it as a litmus test to try to label Congressmen as “pro-children” or “anti-children.”
It is always important to scrutinize proposed treaties even more carefully than ordinary legislation, first, because treaties can be ratified at any time by two-thirds of U.S. Senators present and voting (e.g., with two Senators voting aye and one Senator voting no), and second, because of the preferential status which treaties enjoy in the American system of government. Once ratified, they become part of the “supreme law of the land,” along with the U.S. Constitution and federal laws.
Any time a treaty is proposed, we should study the language, as well as the intent, and consider a worst case scenario of how the treaty’s provisions – in the hands of international bodies (over which we have no control) – could imperil American sovereignty and the rights of American citizens.
The American philosophy of government, as spelled out in the Declaration of Independence and the United States Constitution, is that the individual’s inalienable rights to life, liberty and property come to each of us from our Creator and may not be impaired without due process of law, and that the prime purpose of government is to guarantee those rights. Americans do not believe that individual rights originate with the government, the United Nations, kings, rulers, or even society.
The United States Constitution lists several rights that Americans can assert against our government; then the Ninth Amendment adds, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The U.N. Convention on the Rights of the Child, on the other hand, purports to be a comprehensive listing of all rights of the child, and is based on the concept that a child’s rights originate with the U.N. Treaty itself or with the government. The logical conclusion is that a child would have no rights except those in the Treaty, and what government gives, government also can take away.
If this U.N. Treaty is ever written into American law – a treaty which assumes that government is the source of the listed “rights” – this can only diminish the status of existing American rights. Since U.N. treaties, courts, and bureaucracies do not respect our American philosophy of individual rights, it would badly curtail our liberty to submit ourselves to a U.N. document interpreted by foreign lawyers.
Who Will Enforce the Rights?
The next problem with the U.N. Convention on the Rights of the Child is, who is to be the enforcer of the Treaty’s rights – and against whom are they to be enforced? In American constitutional law, the right of free speech, for example, is a right which the individual can assert against government encroachment. This U.N. Treaty doesn’t say who is to enforce the child’s rights against whom, but it is reasonable to infer that many of these rights are to be enforced against the parents, probably with the help of government.
The Treaty purports to give the child the right to express his own views freely in all matters (Article 12), to receive information of all kinds through “media of the child’s choice” (Article 13), to freedom of religion (Article 14), to be protected from interference with his correspondence (Article 16), to have access to information from national and international sources in the media (Article 17), to use his “own language” (Article 30), and to have the right to “rest and leisure” (Article 31).
What do all these rights mean, how will they be enforced, and against whom? Does this mean that the child can refuse to do his homework and household chores because they interfere with his “right” to rest and leisure? And can he demand a government-paid lawyer to file a lawsuit against his parents?
Does this mean that a child has the right to use his native language in school and cannot be required to speak English? Does it mean that a child can demand the right to watch television in order to receive media reports from national and international sources?
Does this mean that a child can assert his right to say anything he wants to his parents at the dinner table? Does this mean that the government will assist the child to join a cult or select a different church from the one his parents attend? The U.N. Treaty does not provide answers to these questions.
These are just a few of the literally dozens of brand new “rights of the child” scattered throughout the 54 Articles of the U.N. Treaty, which is longer than the entire U.S. Constitution. Despite a vague reference to undefined “rights and duties of parents,” the Treaty does not recognize any specific parental right to make decisions for their minor children.
The Grab for Power Over Education
Suppose Congress were to consider legislation to set up a procedure for the Federal Government (or the U.S. Department of Education) to define the content of the education of every child. Imagine the howls that would go up as parents and concerned citizens protest that Congress has no business prescribing school curriculum. From all sides, we would hear citizens reassert their dedication to local control of education. Private schools would express fear that they would become an endangered species.
The U.N. Convention on the Rights of the Child prescribes the content of what must be taught to all children in several sensitive areas. Article 28 prescribes that “the education of the child shall be directed to” such things as “the principles enshrined in the Charter of the United Nations”; respect for “the national values of the country … from which he or she may originate, and for civilizations different from his or her own” (that means adopting the controversial curricular approach known as “global education” or “multiculturalism”); “equality of sexes” (that means promoting the Equal Rights Amendment which was rejected by the American people in 1982); and “the development of respect for the natural environment” (certainly one of the most politically-charged issues in the United States).
The U.N. Treaty recognizes that private schools may exist, but only so long as they teach the above subjects and otherwise conform to government standards.
The American people would not permit Congress to prescribe what all our children must learn on these sensitive issues, so we certainly don’t want the United Nations to lay down the law. But, if this U.N. Treaty is ratified, dictatorial control over all school curriculum will become part of the supreme law of the land.
The Treaty’s Expensive Obligations
In several sections, the U.N. Treaty imposes on the government the obligation to “strive to ensure,” to “render appropriate assistance,” and to “take all appropriate measures” so that children may enjoy certain economic benefits. Article 4 states that the government “shall undertake all appropriate legislative, administrative, and other measures” to implement “economic, social and cultural rights.” Furthermore, the government “shall undertake such measures to the maximum extent of their available resources.”
These expensive responsibilities include “health care services” (Article 24), social security (Article 26), and an “adequate” standard of living, nutrition, clothing and housing (Article 27).
What does this language really mean? The big-spending liberals will surely argue that the Treaty will require our government to impose new taxes – or go further into debt – to carry out these obligations.
The Treaty’s Daycare Obligations
The U.N. Treaty would probably require us to set up a national system of daycare. Article 18 says that the government “shall ensure the development of institutions, facilities and services for the care of children . . . of working parents.” The Treaty gives the children the right to benefit from these services and facilities.
What does the U.N. Treaty mean when it requires universal legal standards for the care and protection of children against neglect, exploitation, and abuse? Is it “neglect” not to establish government daycare centers? Or is it “neglect” to put children in daycare centers where they are exposed to more illnesses? Shall we leave this up to United Nations judges or “experts” to decide?
The Treaty even obligates the government to ensure “standards” for child care institutions, services and facilities. National daycare standards were part of the ABC Child Care bill and were a major reason why, after lengthy debate, Congress specifically rejected this approach in its 1990 legislation. Are we now to have Congress overridden by a United Nations mandate?
The U.N. Treaty grants the child the right to be protected against neglect or negligent treatment (Article 19). Could homeschoolers be charged with “neglect” for not sending their children to an institutional school? Or for not sending children to school until age seven or eight?
Opening Up New Litigation
Unlike our U.S. Constitution, which only mentions rights that can be enforced against the government, the U.N. Treaty declares “rights of the child” against parents, the family, private institutions, and society as a whole. Since the Treaty is a legal document which, if ratified, would become part of the “supreme law of the land,” we can expect ACLU lawyers to bring a series of test cases to see how far the courts will extend its provisions. The Convention would open up a Pandora’s box of litigation, either in some international court or in U.S. courts, or both. It’s hard to say which venue would be worse.
International courts are frequently biased against Americans. Several years ago when the World Court treated the United States unfairly, the Reagan Administration simply thumbed its nose at the Court. Another administration might have acquiesced in the unfair treatment. Every day, U.S. courts hand down decisions which become law in our country, and it is not in the interests of American citizens to have those decisions grounded in United Nations treaties rather than in U.S. constitutional law.
Americans will be in for a shock if judges around the country start applying this U.N. Treaty as the supreme law of our land. It is full of vague requirements which are susceptible to different and even contradictory interpretations.
For example, Article 24(3) requires the government to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.” What kind of standard is that? The practice doesn’t have to be harmful or even negligent, but merely “prejudicial,” and this new “standard” would be defined by unelected judges.
What will it mean to enforce Article 28, which makes “primary education compulsory and available free to all”? Will that make it compulsory to give subsidies to private or religious schools – and if so, will they be required to modify their religious practices? Or, will Article 28 ban private and religious schools altogether? Either outcome would override existing Supreme Court decisions. Do we want United Nations courts to answer these questions?
A New International Bureaucracy
Of course, all these grandiose U.N. Treaty goals would not be complete without the establishment of a new international bureaucracy and mechanism of control. The U.N. Convention on the Rights of the Child would set up a Committee on the Rights of the Child consisting of ten “experts” chosen by secret ballot from a list of nominees submitted by the governments that sign the Treaty. Of course, there is no assurance that any American will be on this committee of experts, not even any assurance that even one “expert” will be friendly to American institutions and traditions. (Articles 43 and 44)
The Secretary-General of the United Nations will provide “the necessary staff and facilities” which will assist the committee of experts in monitoring and reporting on “the degree of fulfillment of the obligations” established under the Treaty. We cannot assume that this would be merely an expensive exercise in international busybodyism, because this is not merely a treaty of generalized hopes; it is full of mandatory words such as “rights” and “obligations.”
Contradictory Abortion Provisions
The U.N. Convention on the Rights of the Child is vague, misleading and contradictory on the fundamental issue of whether or not an unborn child is accorded any rights. Whatever the American people ultimately decide about this issue, the decision-making power should not rest with a United Nations treaty. Some argue that this Treaty probably creates an across- the-board right to abortion that would override U.S. law and Supreme Court decisions. Others argue that the Treaty may give the same rights to the unborn child and to the born child. Five provisions deal with this issue.
Language in the Preamble asserts the child’s right to “appropriate legal protection, before as well as after birth.” However, it can be argued that the Preamble would have no legal effect. The language is so vague that it also could be argued that such rights would inure only if the child were subsequently born alive.
Article 6 states that every child has a “right to life.” However, whenever the “right to life” has been challenged by a “right to privacy,” U.S. courts have come down on the side of abortion rather than respecting the life of the unborn child.
Article 16 purports to establish the child’s right to “privacy.” Under U.S. Supreme Court decisions, “privacy” is the operative word which has created the right to abortion. We can be sure that lawyers will argue that the Treaty creates a federal statutory right to “privacy” which can subsequently be used by the courts to include abortion.
Article 24(f) grants the right to “family planning education and services.” This language is generally used as a legal rationale for abortion services.
Article 2 prohibits discrimination on the basis of sex. Several U.S. courts have held that, where a private or government employer provides health care or insurance coverage for other types of medical services, such language creates a right to paid abortions. The rationale is that, because only women can have abortions, denying funding for abortions discriminates against women on account of their sex.
When the Senate on September 11, 1990 considered passage of a resolution calling on the President to send the Convention on the Rights of the Child to the Senate, Senator Jesse Helms offered an amendment to ensure that the treaty would not interfere with the rights of unborn children. The Helms amendment was defeated, creating the legislative inference that the Senate was not willing to go on record as stating that the Convention would not impact the abortion issue.
A Congressman’s Warning
Congressman Thomas J. Bliley Jr. is one of the few Congressmen who have taken the time to study the U.N. Convention on the Rights of the Child. He has issued a strong warning against its dangers, saying: “Ostensibly, it would create new national and international roles for governments to secure a child’s right to such fundamental necessities as nutrition, health care, housing and education.” But, he points out, laudable as these goals are, the U.N. Treaty creates just as many “confusing expectations.”
For example, he asks, what will it really mean if the United States must comply with Article 28(2), which states that the government “shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with” the Treaty? Are we willing to give an international committee the authority to monitor such a “protection”? Do these “rights” have real meaning, or are they just a “slick public-relations campaign” by those trying to make political capital out of pretending to support children?
Congressman Bliley warns: “The Convention represents a potential threat to our form of government. As written, it places government in a superior position to its citizens by granting these rights to children. What is so bad about that? Such an interpretation is antithetical to our limitations on government. Many of these ‘rights’ are not presently found in our Constitution, but rather, are considered to be among our inalienable rights endowed by our Creator.”
“More practically speaking,” Congressman Bliley continues, “the Ninth and Tenth Amendments to the Constitution, reserving rights to the states and to the people, will simply be swept away in deference to Article VI of the U.S. Constitution which provides that ‘all Treaties made … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. “‘
So, according to Congressman Bliley: “Hundreds of judges will be left to interpret the Convention as they please and will possess all power to supersede state laws” in order to carry out the vague goals of the treaty, such as “appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and … the development of institutions, facilities and services for the care of children.”
Congressman Bliley concludes: “It finally becomes clear: Ratification is not about children; it is about power. … It is a potential threat to some of our most precious freedoms, civil liberties, and our form of government.”
The U.N. Treaty on the Rights of the Child is a bad deal for Americans on every count. It should never be signed by our President or ratified by our Senate.
http://protectingourchildrenfrombeingsold.wordpress.com/2010/01/31/the-new-world-order-wants-your-children/
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Alamo parents plan to appeal. Severed rights affect 13 youths.
1/31/10 – ADG: Alamo parents plan to appeal. Severed rights affect 13 youths.
Arkansas Democrat Gazette
January 31, 2010
BY ANDY DAVIS
Alamo parents plan to appeal
Severed rights affect 13 youths
An advocate for members of the Tony Alamo Christian Ministries called a judge’s decision to sever the parental rights of several of those members a “tragedy” and said Saturday that the parents plan to appeal.
“The way to deal with a perpetrator like Tony Alamo is to go after the perpetrator,” said Cheryl Barnes, litigation specialist for the parent advocacy group CPS Watch Legal Team, which assisted the parents with their cases in Miller County Circuit Court. “After that was done, there really wasn’t a need to take all these kids away from their parents.”
Mary Coker, founder of the anti-Alamo group Partnered Against Cult Activity, countered that severing the parents’ rights could give the children a chance at a “normal life.” She noted that authorities have said that even behind bars, Alamo is likely to have influence over the church’s members.
The parents have “shown that they’re going to follow his teachings, and his teachings are what got them into this,” Coker said.
The decision by Miller County Circuit Judge Joe Griffin to sever the parents’ rights came after a three-day hearing at the Juvenile Court Center in Texarkana. Officials with the Arkansas Department of Human Services had recommended that the rights be severed, saying the parents had made no progress in complying with orders that they move off ministry property and find jobs outside the ministry.
The rulings affected 13 children, ages 2-14, from four families. The parents were the first, as a result of an investigation into physical and sexual abuse within the ministry, to lose their legal rights with respect to their children.
Severing the parents’ rights clears the children to be put up for adoption. But Julie Munsell, a spokesman for the Human Services Department, said the department typically wouldn’t make a child available for adoption until any pending appeals are resolved. An exception is when the child is in the care of a relative, who can then choose a “high-risk” adoption, with the understanding that the adoption could be dissolved if the appeal is successful.
Children ages 10 and up must give their consent to be adopted, but a judge can overrule the children’s wishes, Munsell said.
After the hearings in Texarkana ended, shortly after 9 p.m. Friday, the parents hurried away from the court building, declining to comment. One mother, Miriam Krantz, sobbed, clutching her husband’s arm as he led her away.
The proceedings were closed to the public, and Griffin has issued a gag order barring parents, attorneys and others from speaking with reporters about the case.
A sheriff’s deputy said Friday night that Griffin would have no comment on his ruling. A man who answered the door at the ministry complex in Fouke, about 15 miles south of Texarkana, said members of the church also would have no comment.
The children were taken into custody in Fouke and Texarkana in September and November 2008 amid an investigation into allegations of physical and sexual abuse.
Alamo, the ministry’s 75-year-old leader, was sentenced to 175 years in prison in November 2009 after being convicted of taking five underage girls across state lines for sex.
Alamo hasn’t been formally accused of abusing any of the children who are now in foster care, but authorities say some of the girls had been living with him at his house in Fouke along with women Alamo had taken as “wives.”
Authorities also say Alamo ordered some of the children now in foster care to be beaten or put on fasts for violating church rules. Other children were deemed to be at risk because of the ministry’s practices, including allowing girls as young as 12 to marry. Most of the parents weren’t accused of abusing their children but were found to have failed to adequately protect and supervise them.
Judges in Miller County ruled in 2008 and 2009 that the parents could eventually be reunited with their children but only if the parents moved off church property and found jobs outside the ministry.
The parents whose rights were terminated Friday are:
Bert and Miriam Krantz, whose six children range in ages from 2-13.
Greg Seago and Gina Howard. Seago is a ministry member, but Howard left the church in 1999. Griffin terminated the parental rights of Seago and Howard with respect to their two sons, ages 10 and 14. Seago and Howard also have a 15-year-old daughter who was removed from Alamo’s house during the September 2008 raid. The Human Services Department has recommended that she remain in foster care and receive help with her educational expenses and establishing independence.
Alphonso Reid. Griffin terminated Reid’s parental rights with respect to his 11-year old daughter. Reid also has a son, age 17, in foster care, and a daughter who turned 18 last year while in foster care. The children’s mother left the church in 2004. It was unknown whether she attended the hearings or whether her rights were severed.
Carlos and Sophia Parrish, whose four children in foster care range in ages from 2-8. Sophia Parrish gave birth to another child, a boy, last June. Fearing that the Human Services Department would take the baby into foster care, the Parrishes skipped court hearings in October and weren’t in court for their termination of parental rights hearing last week.
In a petition asking Griffin to terminate the Parrishes’ parental rights, the Human Services Department said the Parrishes “apparently abandoned [their children in foster care] in that they have had no contact with them for three months and their whereabouts are currently unknown.”
The children who were the subject of last week’s hearings are among 36 removed from the ministry and placed in foster care.
While some parents have complied with the orders requiring them to establish financial independence with the ministry, others say the orders infringe on their religious freedoms.
In November 2009, the Arkansas Court of Appeals upheld the removal of five of the children, all girls. However, the court did not rule on the parents’ constitutional argument because it said the parents didn’t raise the issue at the trial level.
Several other appeals are pending, and the ministry has challenged the removals in a lawsuit in federal court. The Human Services Department has asked for the lawsuit to be dismissed.
In last week’s hearing, the Human Services Department also asked Griffin to terminate the rights of another couple, Jim and Bethany Myers, but Griffin gave the Myerses additional time to comply with his orders, Barnes said.
The ministry members have been allowed weekly visits with their children in foster care. Once a parent’s rights are terminated, however, the parent does [not] have visitation rights, and the department typically doesn’t recommend that any contact be allowed, Munsell said.
Barnes said the parents were told that if their rights were severed, they would have a final “goodbye visit” with their children and then wouldn’t be allowed any further contact.
Barnes said Griffin could have fashioned a less-severe remedy to protect the children. For instance, she said, he could have assigned guardianship to a relative, an option that would have allowed the parents to visit their children and eventually petition for custody.
If the ministry is truly a cult, Barnes said, “it’s unreasonable to expect the parents to break away from that in 12 months’ time.”
But Munsell said that after a child has been in foster care for more than a year, it’s important to establish a permanent living situation and give the child a new family. Contact with parents who have been abusive or neglectful can often be detrimental, she said.
“You want the child to be able to heal from what’s occurred to them, then move on,” Munsell said.
If a child is adopted by someone outside the family, she said, the biological parent would typically not have any information about the children’s whereabouts. On the other hand, a relative could also petition for custody or to adopt the child. In that case, it would be up to the relative whether to allow contact with the biological parent, Munsell said.
“Some kids always want to return home, even if they were being abused and neglected,” Munsell said. Others, she said, want “a fresh start, because there’s been so much trauma in the past.”
http://www.tonyalamonews.com/3235/13110-adg-alamo-parents-plan-to-appeal-severed-rights-affect-13-youths.php
Arkansas Democrat Gazette
January 31, 2010
BY ANDY DAVIS
Alamo parents plan to appeal
Severed rights affect 13 youths
An advocate for members of the Tony Alamo Christian Ministries called a judge’s decision to sever the parental rights of several of those members a “tragedy” and said Saturday that the parents plan to appeal.
“The way to deal with a perpetrator like Tony Alamo is to go after the perpetrator,” said Cheryl Barnes, litigation specialist for the parent advocacy group CPS Watch Legal Team, which assisted the parents with their cases in Miller County Circuit Court. “After that was done, there really wasn’t a need to take all these kids away from their parents.”
Mary Coker, founder of the anti-Alamo group Partnered Against Cult Activity, countered that severing the parents’ rights could give the children a chance at a “normal life.” She noted that authorities have said that even behind bars, Alamo is likely to have influence over the church’s members.
The parents have “shown that they’re going to follow his teachings, and his teachings are what got them into this,” Coker said.
The decision by Miller County Circuit Judge Joe Griffin to sever the parents’ rights came after a three-day hearing at the Juvenile Court Center in Texarkana. Officials with the Arkansas Department of Human Services had recommended that the rights be severed, saying the parents had made no progress in complying with orders that they move off ministry property and find jobs outside the ministry.
The rulings affected 13 children, ages 2-14, from four families. The parents were the first, as a result of an investigation into physical and sexual abuse within the ministry, to lose their legal rights with respect to their children.
Severing the parents’ rights clears the children to be put up for adoption. But Julie Munsell, a spokesman for the Human Services Department, said the department typically wouldn’t make a child available for adoption until any pending appeals are resolved. An exception is when the child is in the care of a relative, who can then choose a “high-risk” adoption, with the understanding that the adoption could be dissolved if the appeal is successful.
Children ages 10 and up must give their consent to be adopted, but a judge can overrule the children’s wishes, Munsell said.
After the hearings in Texarkana ended, shortly after 9 p.m. Friday, the parents hurried away from the court building, declining to comment. One mother, Miriam Krantz, sobbed, clutching her husband’s arm as he led her away.
The proceedings were closed to the public, and Griffin has issued a gag order barring parents, attorneys and others from speaking with reporters about the case.
A sheriff’s deputy said Friday night that Griffin would have no comment on his ruling. A man who answered the door at the ministry complex in Fouke, about 15 miles south of Texarkana, said members of the church also would have no comment.
The children were taken into custody in Fouke and Texarkana in September and November 2008 amid an investigation into allegations of physical and sexual abuse.
Alamo, the ministry’s 75-year-old leader, was sentenced to 175 years in prison in November 2009 after being convicted of taking five underage girls across state lines for sex.
Alamo hasn’t been formally accused of abusing any of the children who are now in foster care, but authorities say some of the girls had been living with him at his house in Fouke along with women Alamo had taken as “wives.”
Authorities also say Alamo ordered some of the children now in foster care to be beaten or put on fasts for violating church rules. Other children were deemed to be at risk because of the ministry’s practices, including allowing girls as young as 12 to marry. Most of the parents weren’t accused of abusing their children but were found to have failed to adequately protect and supervise them.
Judges in Miller County ruled in 2008 and 2009 that the parents could eventually be reunited with their children but only if the parents moved off church property and found jobs outside the ministry.
The parents whose rights were terminated Friday are:
Bert and Miriam Krantz, whose six children range in ages from 2-13.
Greg Seago and Gina Howard. Seago is a ministry member, but Howard left the church in 1999. Griffin terminated the parental rights of Seago and Howard with respect to their two sons, ages 10 and 14. Seago and Howard also have a 15-year-old daughter who was removed from Alamo’s house during the September 2008 raid. The Human Services Department has recommended that she remain in foster care and receive help with her educational expenses and establishing independence.
Alphonso Reid. Griffin terminated Reid’s parental rights with respect to his 11-year old daughter. Reid also has a son, age 17, in foster care, and a daughter who turned 18 last year while in foster care. The children’s mother left the church in 2004. It was unknown whether she attended the hearings or whether her rights were severed.
Carlos and Sophia Parrish, whose four children in foster care range in ages from 2-8. Sophia Parrish gave birth to another child, a boy, last June. Fearing that the Human Services Department would take the baby into foster care, the Parrishes skipped court hearings in October and weren’t in court for their termination of parental rights hearing last week.
In a petition asking Griffin to terminate the Parrishes’ parental rights, the Human Services Department said the Parrishes “apparently abandoned [their children in foster care] in that they have had no contact with them for three months and their whereabouts are currently unknown.”
The children who were the subject of last week’s hearings are among 36 removed from the ministry and placed in foster care.
While some parents have complied with the orders requiring them to establish financial independence with the ministry, others say the orders infringe on their religious freedoms.
In November 2009, the Arkansas Court of Appeals upheld the removal of five of the children, all girls. However, the court did not rule on the parents’ constitutional argument because it said the parents didn’t raise the issue at the trial level.
Several other appeals are pending, and the ministry has challenged the removals in a lawsuit in federal court. The Human Services Department has asked for the lawsuit to be dismissed.
In last week’s hearing, the Human Services Department also asked Griffin to terminate the rights of another couple, Jim and Bethany Myers, but Griffin gave the Myerses additional time to comply with his orders, Barnes said.
The ministry members have been allowed weekly visits with their children in foster care. Once a parent’s rights are terminated, however, the parent does [not] have visitation rights, and the department typically doesn’t recommend that any contact be allowed, Munsell said.
Barnes said the parents were told that if their rights were severed, they would have a final “goodbye visit” with their children and then wouldn’t be allowed any further contact.
Barnes said Griffin could have fashioned a less-severe remedy to protect the children. For instance, she said, he could have assigned guardianship to a relative, an option that would have allowed the parents to visit their children and eventually petition for custody.
If the ministry is truly a cult, Barnes said, “it’s unreasonable to expect the parents to break away from that in 12 months’ time.”
But Munsell said that after a child has been in foster care for more than a year, it’s important to establish a permanent living situation and give the child a new family. Contact with parents who have been abusive or neglectful can often be detrimental, she said.
“You want the child to be able to heal from what’s occurred to them, then move on,” Munsell said.
If a child is adopted by someone outside the family, she said, the biological parent would typically not have any information about the children’s whereabouts. On the other hand, a relative could also petition for custody or to adopt the child. In that case, it would be up to the relative whether to allow contact with the biological parent, Munsell said.
“Some kids always want to return home, even if they were being abused and neglected,” Munsell said. Others, she said, want “a fresh start, because there’s been so much trauma in the past.”
http://www.tonyalamonews.com/3235/13110-adg-alamo-parents-plan-to-appeal-severed-rights-affect-13-youths.php
Parental rights of six Alamo church members terminated
Home / News / Arkansas / Parental rights of six Alamo church members terminated
By Andrew Davis
A judge on Thursday terminated the parental rights of six members of the Tony Alamo Christian Ministries, clearing the way for the members’ children to be put up for adoption.
The rulings by Miller County Circuit Judge Joe Griffin followed the recommendation of the Arkansas Department of Human Services, which said the parents had failed to comply with orders that they move off of church property and find jobs outside the ministry.
The rulings, which came after three days of testimony in Miller County Circuit Court in Texarkana, affected the parents of 13 children from four families.
After the hearings ended, shortly after 9 p.m. Friday, the parents hurried away from the courtroom, declining to comment as they left. One mother, Mirriam Krantz, sobbed uncontrollably, clutching her husband’s arm as he led her to a sport-utility vehicle.
Cheryl Barnes, litigation specialist for the parent advocacy group CPS Watch Legal Team, called the rulings unnecessarily harsh. She noted that Tony Alamo, the ministry’s leader, is expected to spend the rest of his life in prison. She said the parents will appeal the termination of their parental rights.
“The chances of these kids being exposed to Tony Alamo are slim to none now, and it’s just a tragedy that these families have been destroyed,” Barnes said.
A sheriff’s deputy said Griffin would have no comment on his ruling.
The proceedings were closed to the public, and Griffin has issued a gag order barring parents, attorneys and others from speaking with reporters about the case.
Julie Munsell, a spokesman for the Arkansas Department of Human Services, said children whose parents’ legal rights over them are terminated would typically not put up for adoption until the appeals are resolved. She said she couldn’t comment on the ministry children’s cases because of the gag order and laws requiring child welfare proceedings to be kept confidential.
The children were taken into custody in Fouke and Texarkana in September and November 2008 amid an investigation into allegations of physical and sexual abuse.
Tony Alamo, the ministry’s 75-year-old leader, was sentenced to 175 years in prison in November after being convicted of taking five underage girls across state lines for sex.
Last year, judges in Miller County ruled that the parents could be eventually reunited with their children, but only if the parents moved off of church property and found jobs outside the ministry. While some parents have complied with the orders and have been reunited with their children, others say the orders infringe on their religious freedoms.
In November 2009, the Arkansas Court of Appeals upheld the removal of five of the children, all girls. However, the court did not rule on the parents’ constitutional argument because the court said the parents did not raise the issue at the trial level.
Several other appeals are pending, and the ministry has also challenged the removals in a lawsuit in federal court. The Human Services Department has asked for the lawsuit to be dismissed.
Thank you for coming to the Web site of the Arkansas Democrat-Gazette. We're working to keep you informed with the latest breaking news.
This article was published January 29, 2010
http://www.arkansasonline.com/news/2010/jan/29/parental-rights-six-alamo-church-members-terminate/
By Andrew Davis
A judge on Thursday terminated the parental rights of six members of the Tony Alamo Christian Ministries, clearing the way for the members’ children to be put up for adoption.
The rulings by Miller County Circuit Judge Joe Griffin followed the recommendation of the Arkansas Department of Human Services, which said the parents had failed to comply with orders that they move off of church property and find jobs outside the ministry.
The rulings, which came after three days of testimony in Miller County Circuit Court in Texarkana, affected the parents of 13 children from four families.
After the hearings ended, shortly after 9 p.m. Friday, the parents hurried away from the courtroom, declining to comment as they left. One mother, Mirriam Krantz, sobbed uncontrollably, clutching her husband’s arm as he led her to a sport-utility vehicle.
Cheryl Barnes, litigation specialist for the parent advocacy group CPS Watch Legal Team, called the rulings unnecessarily harsh. She noted that Tony Alamo, the ministry’s leader, is expected to spend the rest of his life in prison. She said the parents will appeal the termination of their parental rights.
“The chances of these kids being exposed to Tony Alamo are slim to none now, and it’s just a tragedy that these families have been destroyed,” Barnes said.
A sheriff’s deputy said Griffin would have no comment on his ruling.
The proceedings were closed to the public, and Griffin has issued a gag order barring parents, attorneys and others from speaking with reporters about the case.
Julie Munsell, a spokesman for the Arkansas Department of Human Services, said children whose parents’ legal rights over them are terminated would typically not put up for adoption until the appeals are resolved. She said she couldn’t comment on the ministry children’s cases because of the gag order and laws requiring child welfare proceedings to be kept confidential.
The children were taken into custody in Fouke and Texarkana in September and November 2008 amid an investigation into allegations of physical and sexual abuse.
Tony Alamo, the ministry’s 75-year-old leader, was sentenced to 175 years in prison in November after being convicted of taking five underage girls across state lines for sex.
Last year, judges in Miller County ruled that the parents could be eventually reunited with their children, but only if the parents moved off of church property and found jobs outside the ministry. While some parents have complied with the orders and have been reunited with their children, others say the orders infringe on their religious freedoms.
In November 2009, the Arkansas Court of Appeals upheld the removal of five of the children, all girls. However, the court did not rule on the parents’ constitutional argument because the court said the parents did not raise the issue at the trial level.
Several other appeals are pending, and the ministry has also challenged the removals in a lawsuit in federal court. The Human Services Department has asked for the lawsuit to be dismissed.
Thank you for coming to the Web site of the Arkansas Democrat-Gazette. We're working to keep you informed with the latest breaking news.
This article was published January 29, 2010
http://www.arkansasonline.com/news/2010/jan/29/parental-rights-six-alamo-church-members-terminate/
Saturday, January 30, 2010
Unnecessary, Overburdened - an Article on the Removal of Children from Their Families
Unnecessary, overburdened
Published online 1/26/2010 9:55 PM
Although officials in Reno County claim to be mystified at the obscenely high rate at which children are torn from their families in the county, there is a clue to why it's happening right in your excellent story "Review of SRS status is ongoing," Jan. 17. Tearing "ungovernable" children from their families and parking them in an institution with other "ungovernable" children for a couple of weeks may have been "cutting edge" in the 19th century. Now, it's widely recognized as barbaric.
It doesn't matter how kind the staff may be or how pretty the building, it's still an institution and it's still inherently harmful. And the foolishness of placing a bunch of children with behavior problems together right at the age when they are most vulnerable to peer pressure should be obvious. There are far better answers in such cases, such as wraparound programs, in which intensive help is brought right into the home - 24/7 if necessary - and it still costs less than institutionalizing children.
When a rate of removal is as sky high as Reno County's, odds are a lot of children are being torn from everyone they know and love when family poverty is confused with "neglect." In other cases, families may have real problems, but the right kinds of help could keep them safely together rather than subjecting the children to the enormous inherent trauma of foster care. One major study of 15,000 typical cases found that children left in their own homes fared better in later life even than comparably maltreated children placed in foster care. Other studies have found abuse in at least one in three foster homes. The record of group homes and institutions is worse.
And it's not just the children wrongfully removed who suffer. The more that SRS caseworkers are overloaded with children who don't need to be in foster care, the less time they have to find children in real danger - so more such cases are missed.
The problem is even worse than the official figures show. Unlike every other state, Kansas simply refuses to count a child as removed if he is sent home before the first court hearing. Add in those children and there is a good chance Kansas as a whole is the child-removal capital of America - and Reno County is, of course, far worse than the average for Kansas.
None of this means no child ever should be taken from her or his parents. But it does mean that foster care is an extremely toxic intervention that should be used sparingly and in small doses. Unfortunately, Kansas in general and Reno County in particular have been prescribing mega-doses of foster care, and the county's children are suffering enormously for it. Kansas needs to learn from places that have rebuilt their systems to improve child safety by emphasizing family preservation.
RICHARD WEXLER Executive Director Reform
Alexandria, Va.
http://www.hutchnews.com/Westernfront/wf-Wexler--Richard-1-25--1
Published online 1/26/2010 9:55 PM
Although officials in Reno County claim to be mystified at the obscenely high rate at which children are torn from their families in the county, there is a clue to why it's happening right in your excellent story "Review of SRS status is ongoing," Jan. 17. Tearing "ungovernable" children from their families and parking them in an institution with other "ungovernable" children for a couple of weeks may have been "cutting edge" in the 19th century. Now, it's widely recognized as barbaric.
It doesn't matter how kind the staff may be or how pretty the building, it's still an institution and it's still inherently harmful. And the foolishness of placing a bunch of children with behavior problems together right at the age when they are most vulnerable to peer pressure should be obvious. There are far better answers in such cases, such as wraparound programs, in which intensive help is brought right into the home - 24/7 if necessary - and it still costs less than institutionalizing children.
When a rate of removal is as sky high as Reno County's, odds are a lot of children are being torn from everyone they know and love when family poverty is confused with "neglect." In other cases, families may have real problems, but the right kinds of help could keep them safely together rather than subjecting the children to the enormous inherent trauma of foster care. One major study of 15,000 typical cases found that children left in their own homes fared better in later life even than comparably maltreated children placed in foster care. Other studies have found abuse in at least one in three foster homes. The record of group homes and institutions is worse.
And it's not just the children wrongfully removed who suffer. The more that SRS caseworkers are overloaded with children who don't need to be in foster care, the less time they have to find children in real danger - so more such cases are missed.
The problem is even worse than the official figures show. Unlike every other state, Kansas simply refuses to count a child as removed if he is sent home before the first court hearing. Add in those children and there is a good chance Kansas as a whole is the child-removal capital of America - and Reno County is, of course, far worse than the average for Kansas.
None of this means no child ever should be taken from her or his parents. But it does mean that foster care is an extremely toxic intervention that should be used sparingly and in small doses. Unfortunately, Kansas in general and Reno County in particular have been prescribing mega-doses of foster care, and the county's children are suffering enormously for it. Kansas needs to learn from places that have rebuilt their systems to improve child safety by emphasizing family preservation.
RICHARD WEXLER Executive Director Reform
Alexandria, Va.
http://www.hutchnews.com/Westernfront/wf-Wexler--Richard-1-25--1
Legal Immunity for CPS Workers who Lie?
Legal Immunity for CPS Workers who Lie?
By James R. Marsh on August 5, 2009 12:33 PM
The critics and plaintiffs’ attorneys are out there. They seethe with frustration in their assertion that there are child protection workers who are as dysfunctional and flawed as some of the abusive and neglectful parents they investigate. They feel mistreated, ambushed, without recourse to a neutral oversight authority, and fume that the courts will believe the word of child protection workers over their clients. And yet, when there is a credible allegation that a child protection worker has knowingly made misleading or false statements which resulted in the wrongful removal of a child, their criticism and anger seem justified. Such misrepresentations may involve highly contested issues of material fact that more properly should be examined by an agency supervisor or in court on the merits. The supervisor or court, inadvertently giving credence to the worker’s misrepresentation, may thereby be swayed in favor of the worker’s recommendations.
Guest Feature Article by Daniel Pollack, MSW, JD Legal Aspects of Immunity for Government Social Workers
It is an accepted principle that a parent has a constitutionally protected interest in the custody and care of his or her child. This interest does have exceptions, especially when the child may be in immediate or apparent danger. This is when child protection services gets involved. Crucial to every child protection investigation is to establish the facts and circumstances of the case. When these are presented to the court at a dependency hearing, the evidence may become proof.
The best professional judgment of child protection workers may, in hindsight, be wrong. For this and other reasons, child protection workers usually have some level of immunity from prosecution. [1] When individual government officials are sued for monetary damages they generally are granted either absolute or qualified immunity. The United States Supreme Court has stated that qualified immunity is the norm, absolute immunity is the exception. [2]
Should that immunity disappear when, in their official capacities as child protection workers, they make knowingly inaccurate or false statements which result in the wrongful removal of a child? California law provides for public employee immunity from liability for an injury caused by the employee instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if he or she acts maliciously and without probable cause. [3] However, a public employee has no such immunity if he or she acted with malice in committing perjury, fabricating evidence, failing to disclose exculpatory evidence or obtaining evidence by duress.
Generally, whether an employee is acting within the scope of his or her employment is ordinarily a question of fact to be determined in light of the evidence of the particular case. Some courts hold that immunity for child protective workers exists as long as they act responsibly in the performance of their duties. The immunity applies even where a complaint alleges caseworker misconduct or intentional wrongdoing. [4] Others hold that the worker must be involved in a function critical to the judicial process itself. In either case, the more outrageous the employee's alleged tortuous conduct, the less likely it could be described as foreseeable, and the less likely the social service agency could be required to assume responsibility for the act as a general risk of doing business.
Recent Cases
In Doe v. Lebbos, [5] the Ninth Circuit held that a social worker was entitled to absolute immunity for allegedly failing to investigate adequately the allegations of abuse and neglect against a father and in allegedly fabricating evidence in a child dependency petition because those actions had the "requisite connection to the judicial process' to be protected by absolute immunity (at 826)." In Van Emrik v. Chemung County Dep't of Soc. Servs., [6] the court found that child protective caseworkers were entitled to qualified immunity in connection with the removal of a child from the custody of her parents during a child abuse investigation. In the Sixth Circuit and the District of Columbia Circuit the type of immunity depends on the particular task the worker is doing. In Gray v. Poole, [7] the court held that qualified immunity covers social workers acting as investigators, while social workers testifying as witnesses are protected by absolute immunity. In Rippy ex rel. Rippy v. Hattaway, [8] the court ruled that absolute immunity protects social workers who initiate proceedings on behalf of a child. In Austin v. Borel, [9] the court ruled that child protection workers were not entitled to absolute immunity when they filed an "allegedly false verified complaint seeking the removal of two children" from the family home (at 1363).
Ethical Considerations
There is, of course, a difference between misrepresentation of a piece of physical or verbal evidence and the actual creation of false evidence. Misrepresentation involves the willful giving of a misleading representation of the facts. Creation of false evidence involves the act of improperly causing a ‘fact’ to exist. More often, critics and attorneys accuse workers of a willingness to misrepresent, selectively quote, and misconstrue information to support their claims and therefore to present an entirely misleading case. Rather than sticking to agency protocols and training the workers sensationalize their documentation and findings in a misleading fashion.
To what extent are such allegations true? Do workers consciously or unconsciously misrepresent evidence, and selectively engage in systematic distortion? How often do they may make deliberate efforts to mislead, deceive, or confuse their own supervisor or the court in order to promote their own personal or ideological objectives? How frequently are workers omitting or concealing material facts? Under the guise of vigilance, are there child protection workers whose adherence to rules and procedures is purposely excessive?
From a social work, legal, or judicial perspective, making a knowing misrepresentation in a child protection case is a serious ethical breach. The NASW Code of Ethics, 4.01(c), notes that: “Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.” At 4.04 the Code goes on to state: “Social workers should not participate in, condone, or be associated with dishonesty, fraud, or deception.” Dishonesty, shading the truth, or a lack of candor cannot be tolerated in child protection services, a field of endeavor built upon trust and respect for the law. Whether or not child protection workers deserve immunity from prosecution when they misrepresent or fabricate evidence is a question each states’ courts are dealing with. Similarly, each court must decide whether such misconduct warrants setting aside the decision to remove the child from his or her home. In the final analysis, the question might soon find itself before the U.S. Supreme Court.
A worker’s misrepresentation or fabrication of evidence is particularly pernicious because it puts the whole field of child protection in a negative light. Whether or not immunity is granted, there is simply no excuse for this kind of willful and egregious conduct.
Endnotes
[1] See, e.g., Abdouch v. Burger, 426 F.3d 982 (8th Cir. 2005) and Babcock v. Tyler (884 F.2d 497 (9th Cir. 1989) (absolute immunity shields social workers to the extent that their role is functionally equivalent to that of a prosecutor); but see Burton v. Richmond, 276 F.3d 973 (2002) (when a state department of human services affirmatively places children in an abusive foster care setting, the state may be liable for damages); Gray v. Poole, 275 F.3d 1113, (D.C. Cir. 2002) (qualified immunity covers social service workers acting as investigators, but when testifying as witnesses they are protected by absolute immunity). Qualified immunity is often afforded if the social work is involved in a “discretionary function” unless his or her conduct is clearly a violation of a statute or constitutional principle (Snell v. Tunnell, 698 F. Supp. 1542 (W.D. Okla. 1988).
[2] Harlow v. Fitzgerald, 457 U.S. 800 (1982) (absolute immunity is appropriate in limited circumstances -- judicial, prosecutorial, and legislative functions-- whereas executive officials usually receive qualified immunity).
[3] Cal. Gov't Code § 821.6
[4] Cunningham v. Wenatchee, 214 F. Supp. 2d 1103 (E.D. Wash. 2002).
[5] 348 F.3d 820 (9th Cir. 2003).
[6] 911 F.2d 863, (2d Cir. 1990).
[7] 275 F.3d 1113 (D.C. Cir 2002).
[8] 270 F.3d 416 (6th Cir. 2001).
[9] 830 F.2d 1356, 1363 (5th Cir. 1987).
--------------------------------------------------------------------------------
This article originally appeared in the APSAC Advisor: Do child protection workers deserve immunity when they misrepresent or fabricate evidence?, American Professional Society on the Abuse of Children Advisor, 21(2), 18-19.
Daniel Pollack, MSW, JD is full professor at Yeshiva University School of Social Work in New York City and is a frequent expert witness and contributer to this blog.
Categories:Child Welfare News
Tags:Foster Care
http://www.childlaw.us/2009/08/legal-immunity-for-cps-workers.html#more
By James R. Marsh on August 5, 2009 12:33 PM
The critics and plaintiffs’ attorneys are out there. They seethe with frustration in their assertion that there are child protection workers who are as dysfunctional and flawed as some of the abusive and neglectful parents they investigate. They feel mistreated, ambushed, without recourse to a neutral oversight authority, and fume that the courts will believe the word of child protection workers over their clients. And yet, when there is a credible allegation that a child protection worker has knowingly made misleading or false statements which resulted in the wrongful removal of a child, their criticism and anger seem justified. Such misrepresentations may involve highly contested issues of material fact that more properly should be examined by an agency supervisor or in court on the merits. The supervisor or court, inadvertently giving credence to the worker’s misrepresentation, may thereby be swayed in favor of the worker’s recommendations.
Guest Feature Article by Daniel Pollack, MSW, JD Legal Aspects of Immunity for Government Social Workers
It is an accepted principle that a parent has a constitutionally protected interest in the custody and care of his or her child. This interest does have exceptions, especially when the child may be in immediate or apparent danger. This is when child protection services gets involved. Crucial to every child protection investigation is to establish the facts and circumstances of the case. When these are presented to the court at a dependency hearing, the evidence may become proof.
The best professional judgment of child protection workers may, in hindsight, be wrong. For this and other reasons, child protection workers usually have some level of immunity from prosecution. [1] When individual government officials are sued for monetary damages they generally are granted either absolute or qualified immunity. The United States Supreme Court has stated that qualified immunity is the norm, absolute immunity is the exception. [2]
Should that immunity disappear when, in their official capacities as child protection workers, they make knowingly inaccurate or false statements which result in the wrongful removal of a child? California law provides for public employee immunity from liability for an injury caused by the employee instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if he or she acts maliciously and without probable cause. [3] However, a public employee has no such immunity if he or she acted with malice in committing perjury, fabricating evidence, failing to disclose exculpatory evidence or obtaining evidence by duress.
Generally, whether an employee is acting within the scope of his or her employment is ordinarily a question of fact to be determined in light of the evidence of the particular case. Some courts hold that immunity for child protective workers exists as long as they act responsibly in the performance of their duties. The immunity applies even where a complaint alleges caseworker misconduct or intentional wrongdoing. [4] Others hold that the worker must be involved in a function critical to the judicial process itself. In either case, the more outrageous the employee's alleged tortuous conduct, the less likely it could be described as foreseeable, and the less likely the social service agency could be required to assume responsibility for the act as a general risk of doing business.
Recent Cases
In Doe v. Lebbos, [5] the Ninth Circuit held that a social worker was entitled to absolute immunity for allegedly failing to investigate adequately the allegations of abuse and neglect against a father and in allegedly fabricating evidence in a child dependency petition because those actions had the "requisite connection to the judicial process' to be protected by absolute immunity (at 826)." In Van Emrik v. Chemung County Dep't of Soc. Servs., [6] the court found that child protective caseworkers were entitled to qualified immunity in connection with the removal of a child from the custody of her parents during a child abuse investigation. In the Sixth Circuit and the District of Columbia Circuit the type of immunity depends on the particular task the worker is doing. In Gray v. Poole, [7] the court held that qualified immunity covers social workers acting as investigators, while social workers testifying as witnesses are protected by absolute immunity. In Rippy ex rel. Rippy v. Hattaway, [8] the court ruled that absolute immunity protects social workers who initiate proceedings on behalf of a child. In Austin v. Borel, [9] the court ruled that child protection workers were not entitled to absolute immunity when they filed an "allegedly false verified complaint seeking the removal of two children" from the family home (at 1363).
Ethical Considerations
There is, of course, a difference between misrepresentation of a piece of physical or verbal evidence and the actual creation of false evidence. Misrepresentation involves the willful giving of a misleading representation of the facts. Creation of false evidence involves the act of improperly causing a ‘fact’ to exist. More often, critics and attorneys accuse workers of a willingness to misrepresent, selectively quote, and misconstrue information to support their claims and therefore to present an entirely misleading case. Rather than sticking to agency protocols and training the workers sensationalize their documentation and findings in a misleading fashion.
To what extent are such allegations true? Do workers consciously or unconsciously misrepresent evidence, and selectively engage in systematic distortion? How often do they may make deliberate efforts to mislead, deceive, or confuse their own supervisor or the court in order to promote their own personal or ideological objectives? How frequently are workers omitting or concealing material facts? Under the guise of vigilance, are there child protection workers whose adherence to rules and procedures is purposely excessive?
From a social work, legal, or judicial perspective, making a knowing misrepresentation in a child protection case is a serious ethical breach. The NASW Code of Ethics, 4.01(c), notes that: “Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.” At 4.04 the Code goes on to state: “Social workers should not participate in, condone, or be associated with dishonesty, fraud, or deception.” Dishonesty, shading the truth, or a lack of candor cannot be tolerated in child protection services, a field of endeavor built upon trust and respect for the law. Whether or not child protection workers deserve immunity from prosecution when they misrepresent or fabricate evidence is a question each states’ courts are dealing with. Similarly, each court must decide whether such misconduct warrants setting aside the decision to remove the child from his or her home. In the final analysis, the question might soon find itself before the U.S. Supreme Court.
A worker’s misrepresentation or fabrication of evidence is particularly pernicious because it puts the whole field of child protection in a negative light. Whether or not immunity is granted, there is simply no excuse for this kind of willful and egregious conduct.
Endnotes
[1] See, e.g., Abdouch v. Burger, 426 F.3d 982 (8th Cir. 2005) and Babcock v. Tyler (884 F.2d 497 (9th Cir. 1989) (absolute immunity shields social workers to the extent that their role is functionally equivalent to that of a prosecutor); but see Burton v. Richmond, 276 F.3d 973 (2002) (when a state department of human services affirmatively places children in an abusive foster care setting, the state may be liable for damages); Gray v. Poole, 275 F.3d 1113, (D.C. Cir. 2002) (qualified immunity covers social service workers acting as investigators, but when testifying as witnesses they are protected by absolute immunity). Qualified immunity is often afforded if the social work is involved in a “discretionary function” unless his or her conduct is clearly a violation of a statute or constitutional principle (Snell v. Tunnell, 698 F. Supp. 1542 (W.D. Okla. 1988).
[2] Harlow v. Fitzgerald, 457 U.S. 800 (1982) (absolute immunity is appropriate in limited circumstances -- judicial, prosecutorial, and legislative functions-- whereas executive officials usually receive qualified immunity).
[3] Cal. Gov't Code § 821.6
[4] Cunningham v. Wenatchee, 214 F. Supp. 2d 1103 (E.D. Wash. 2002).
[5] 348 F.3d 820 (9th Cir. 2003).
[6] 911 F.2d 863, (2d Cir. 1990).
[7] 275 F.3d 1113 (D.C. Cir 2002).
[8] 270 F.3d 416 (6th Cir. 2001).
[9] 830 F.2d 1356, 1363 (5th Cir. 1987).
--------------------------------------------------------------------------------
This article originally appeared in the APSAC Advisor: Do child protection workers deserve immunity when they misrepresent or fabricate evidence?, American Professional Society on the Abuse of Children Advisor, 21(2), 18-19.
Daniel Pollack, MSW, JD is full professor at Yeshiva University School of Social Work in New York City and is a frequent expert witness and contributer to this blog.
Categories:Child Welfare News
Tags:Foster Care
http://www.childlaw.us/2009/08/legal-immunity-for-cps-workers.html#more
FEDERAL FOSTER CARE FINANCING:
ASPE ISSUE BRIEF(*)
FEDERAL FOSTER CARE FINANCING:
How and Why the Current Funding Structure Fails to Meet the Needs of the Child Welfare Field
U.S. Department of Health and Human Services
Office of the Assistant Secretary for Planning and Evaluation
Updated August 2005(1) This Issue Brief provides an overview of the title IV-E federal foster care program's funding structure and documents several key weaknesses.
This Issue Brief is available on the Internet at:
http://aspe.hhs.gov/hsp/05/fc-financing-ib/
Printer Friendly (PDF) Version
How to Obtain a Printed Copy
Contents
Executive Summary
Introduction
Background and History of Title IV-E Foster Care
Documenting Eligibility and Claiming Foster Care Funds is Burdensome
Differing Claiming Practices Result in Wide Variations in Funding Among States
The Current Funding Structure Has Not Resulted in High Quality Services
States' Title IV-E Claiming Bears Little Relationship to Service Quality or Outcomes
The Current Funding Structure is Inflexible, Emphasizing Foster Care
The Financing Structure Has Not Kept Pace with a Changing Child Welfare Field
Proposed Child Welfare Program Option Described
Benefits of the Proposed Child Welfare Program Option
References
Note on Data Sources:
Executive Summary
The federal foster care program pays a portion of States' costs to provide care for children removed from welfare-eligible homes because of maltreatment. Authorized under title IV-E of the Social Security Act, the program's funding (approximately $5 billion per year) is structured as an uncapped entitlement, so any qualifying State expenditure will be partially reimbursed, or “matched,” without limit. This paper provides an overview of the program's funding structure and documents several key weaknesses. It concludes with a discussion of the Administration's legislative proposal to establish a more flexible financing system.
The program's documentation requirements are burdensome. There are four categories of expenditures for which States may claim federal funds, each matched at a different rate. In addition, there are several statutory eligibility rules that must be met in order to justify the title IV-E claims made on a child's behalf. Some of these apply at the time a child enters foster care, while others must be documented on an ongoing basis. The time and costs involved in documenting and justifying claims is significant.
Differing claiming practices result in wide variations in funding among States. The average annual amount of federal foster care funds received by States ranges from $4,155 to $33,091 per eligible child, based on three year average claims from FY2001 through FY2003. It is unlikely these disparities are the result of actual differences in the cost of operating foster care programs or reflect differential needs among foster children.
The current funding structure has not resulted in high quality services. Strengths and weaknesses of States' child welfare programs are identified through federal monitoring visits called Child and Family Services Reviews. States reviewed have ranged from meeting standards in 1 to 9 of the 14 outcomes and systemic factors examined (the median was 6). Significant weaknesses are evident in programs across the nation, but many of the improvements needed cannot be funded through title IV-E.
States' title IV-E claiming bears little relationship to service quality or outcomes. There are States with both high and low levels of federal title IV-E claims at each level of performance on Child and Family Services Reviews. In addition, there is no relationship between the amounts States claim in title IV-E funds and the proportion of children for whom timely permanency is achieved.
The current funding structure is inflexible, emphasizing foster care. Title IV-E funds foster care on an unlimited basis without providing for services that would either prevent the child's removal from the home or speed permanency. Foster care funding represents 65% of federal funds dedicated to child welfare purposes, and adoption assistance makes up another 22%. Funding sources that may be used for preventive and reunification services represent only 11% of federal child welfare program funds.
The financing structure has not kept pace with a changing child welfare field. The structure of the title IV-E program has continued without major revision since it was created in 1961, despite major changes in child welfare practice. The result is a funding stream seriously mismatched to current program needs. It is driven towards process rather than outcomes and constrains agencies' efforts to achieve improved results for children.
The proposed Child Welfare Program Option offers substantial benefits. The Child Welfare Program Option, first proposed in HHS's Fiscal Year 2004 budget request and currently included in the President's Fiscal Year 2006 budget request, would allow States a choice between the current title IV-E program and a five-year capped, flexible allocation of funds equivalent to anticipated title IV-E program levels. It would allow innovative State and local child welfare agencies to eliminate eligibility determination and claiming functions and redirect funds toward services and activities that more directly achieve safety, permanency and well-being for children and families.
The combination of detailed eligibility requirements and complex but narrow definitions of allowable costs within the federal title IV-E foster care program force a focus on procedure rather than outcomes for children and families. The Administration's proposed Child Welfare Program Option is intended to introduce flexibility while maintaining a focus on outcomes, retaining existing child protections, and providing a financial safety net for states in the form of access to the TANF Contingency Fund during unanticipated and unavoidable crises. The result will be a stronger and more responsive child welfare system that achieves better results for vulnerable children and families.
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Introduction
The federal government currently spends approximately $5 billion per year to reimburse States for a portion of their annual foster care expenditures. Foster care services are intended to provide temporary, safe alternative homes for children who have been abused or neglected until such time as they are able to return to their parents' care safely or can be placed in other permanent homes. Federal foster care funds, authorized under title IV-E of the Social Security Act, are paid to States on an uncapped, “entitlement” basis, meaning any qualifying expenditure by a State will be partially reimbursed, or “matched,” without limit. Definitions of which expenses qualify for reimbursement are laid out in regulations and policy interpretations which have developed, layer upon layer, over the course of many years. Each may have made sense individually, but cumulatively they represent a level of complexity and burden that fails to support the program's basic goals of safety, permanency and child well-being.
This paper provides an overview of the current funding structure, and documents several key weaknesses. In essence, the paper shows that: (1) The current financing structure is connected to the old Aid to Families with Dependent Children program (AFDC) for historical, rather than programmatic reasons; (2) the administrative paperwork for claiming federal funds under Title IV-E is burdensome; (3) current funding is highly variable across States; (4) child welfare systems claiming higher amounts of federal funds per child do not perform substantially better or achieve better outcomes for children than those claiming less funding; (5) the current funding structure is inflexible and emphasizes foster care payments over preventive services; and (6) the financing structure has not kept pace with a changing child welfare field. The paper concludes with a discussion of the Administration's proposal to establish a Child Welfare Program Option, allowing States to receive their foster care funds in a fixed, flexible allocation as an alternative to the current mode of financing.
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Background and History of Title IV-E Foster Care
The federal government has, since 1961, shared the cost of foster care services with States. Prior to this time foster care was entirely a State responsibility. Since its very first days foster care funding was intimately linked to federal welfare benefits, then known as the Aid to Dependent Children Program, or ADC. In fact, the federal foster care program was created to settle a dispute with the States over welfare payments to single-parent households. At the time, some States routinely denied welfare payments to families with children born outside of marriage. These States had declared such homes to be morally “unsuitable” to receive welfare benefits. Following a particularly extreme incident in which 23,000 Louisiana children were expelled from ADC, the federal Department of Health Education and Welfare (HEW), in what came to be known as the Flemming Rule after then-secretary Arthur Flemming, directed States to cease enforcement of the discriminatory suitable homes criteria unless households were actually unsafe for children. If homes were unsafe, States were required to pay families ADC while making efforts to improve home conditions, or place children in foster care. When States protested the added costs of protecting children in unsafe homes, Congress reacted by creating federal foster care funding. In this way, the federal government ensured States would not be disadvantaged financially by protecting children (Frame 1999; Committee on Ways and Means 1992).
From 1961 until 1980, federal foster care funding was part of the federal welfare program, Aid to Families with Dependent Children (AFDC). Since 1980, however, foster care funds have been authorized separately, under title IV-E of the Social Security Act. From 1980 through 1996, States could claim reimbursement for a portion of foster care expenditures on behalf of children removed from homes that were eligible for the pre-welfare reform AFDC program, so long as their placements in foster care met several procedural safeguards. While the underlying AFDC program was abolished in 1996 in favor of the Temporary Assistance for Needy Families Program (TANF), income eligibility criteria for title IV-E foster care continues to follow the old AFDC criteria as they existed just before welfare reform was enacted. States are reimbursed on an unlimited basis for the federal share of all eligible expenses.
It should be noted that while title IV-E eligibility is often discussed as if it represents an entitlement of a particular child to particular benefits or services, it does not. Instead, a child's title IV-E eligibility entitles a State to federal reimbursement for a portion of the costs expended for that child's care.
Title IV-E remained little changed from its inception in 1980 until the passage of the Adoption and Safe Families Act in 1997 (ASFA). With ASFA, Congress responded to concerns that children were too often left in unsafe situations while excessive and inappropriate rehabilitative efforts were made with the family. It also addressed what was at least a perceived reluctance on the part of child welfare agencies and judges to seek terminations of parental rights and adoption in a timely fashion when reunification efforts were unsuccessful. ASFA clarified the central importance of safety to child welfare decision making and emphasized to States the need for prompt and continuous efforts to find permanent homes for children. These permanent homes might be with their birth families if that could be accomplished safely, or with adoptive families or permanent legal guardians if it could not. ASFA, together with related activity to improve adoption processes in many States, is widely credited with the rapid increases in adoptions from foster care in the years since the law was passed.
ASFA's emphasis on permanency planning has contributed to increasing exits from foster care in recent years, both to adoptive placements and to other destinations including reunifications with parents and guardianships with relatives. Combined with relatively flat numbers of foster care entries, the number of children in foster care has begun to decline, the first sustained decrease since the program was established.
State claims under the title IV-E foster care program have always grown more quickly than the population of children served. But the recent declines in the number of children in foster care have substantially curbed the tremendous growth the program experienced during the 1980s and 1990s. The number of children in foster care began declining slowly in 1999 after more than doubling in the preceding decade. Federal foster care program expenditures grew an average of 17 percent per year in the 16 years between the program's establishment and the passage of the Adoption and Safe Families Act (ASFA) in 1997. During that period, in only 3 years did growth dip below 10 percent. However, in the five years since ASFA was enacted, program growth has averaged only 4 percent per year. While some of the growth through 1997 paralleled an increasing population of children in foster care, spending growth far outpaced growth in the number of children served. Improvements in States' ability to claim reimbursement and expanded definitions of administrative expenses in the program also contributed to funding growth. Figure 1 displays the growth in foster care expenditures and the number of children in foster care funded by title IV-E.
Figure 1.
Federal Claims and Caseload History for Title IV-E Foster Care
The major appeal of the title IV-E program has always been that, as an entitlement, funding levels were supposed to adjust automatically to respond to changes in “need,” as represented by State claims. Annual discretionary appropriations were unnecessary to accommodate changing circumstances such as a larger population of children in foster care. The automatic adjustment features of the entitlement structure remain a strength, however, only so long as they respond appropriately and equitably to factors that reflect true changes in need and that promote the well-being of the children and families served. There is little reason to assume this is true at present. Figure 1 shows that funding levels and caseloads have not closely tracked one another for over a decade, and indeed since 1998 have been moving in opposite directions.
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Documenting Eligibility and Claiming Foster Care Funds is Burdensome
In order to receive federal foster care funds, States are required to determine a child's eligibility, and must document expenditures made on behalf of eligible children. This documentation becomes the basis for expenditure reports which are filed quarterly with the federal government. The federal share of eligible expenditures may then be “drawn down” (i.e. withdrawn from federal accounts) by States. While good estimates of the time and costs involved in documenting and justifying claims are not available, such costs can be significant.
As laid out in law and regulations, there are four categories of expenditures for which States may claim federal funds. Each of these is matched at a particular rate that varies from category to category. In addition, the match rate for foster care maintenance payments varies from State to State and may be adjusted from year to year. These categories are:
foster care maintenance payments for eligible children (matched at the Medicaid rate which varies by State and by year, but currently ranges from 50 to 80%)
short- and long-term training for State and local agency staff who administer the title IV-E program, including those preparing for employment by the state agency, as well as for foster parents and staff of licensed child care institutions in which title IV-E eligible children reside (75% federal match)
administrative expenditures necessary for the proper and efficient administration of the program (50% federal match)
costs of required data collection systems (50% federal match)
With so many different categories of expenses, each matched at a different rate, States must accurately track spending in each of these categories and attribute how much of their efforts in each category are being made on behalf of eligible children. States report that doing so is cumbersome, prone to dispute, and does not accomplish program goals. Adding an additional layer of complexity, costs must be allocated to those programs which benefit from the expenditures, a standard practice in federal programs. A State's cost allocation plan is approved by the federal government and distributes expenses that relate to multiple programs and functions.
The categories of administrative and training expenses are typically the most difficult to document and the most often disputed. Federal regulations (45 CFR 1356.60) provide the following examples of allowable administrative expenses:
eligibility determination and re-determination, plus related fair hearings and appeals
referral to services
preparation for and participation in judicial determinations
placement of the child
development of the case plan
case reviews
case management and supervision
recruitment and licensing of foster homes and institutions
rate setting
a proportionate share of agency overhead
costs of data collection systems
There is an ambiguous dividing line between an administrative expense such as case management and ineligible service costs, such as counseling. Such activities may be performed by the same staff and sometimes in the same session with a client. This makes accurate claiming difficult and gives rise to frequent disputes about allowable expenditures. For this reason, administrative costs are much more frequently the subject of disallowances than are other funding categories.
The ability of States to claim title IV-E funds spent on training activities is confounded by statutory and regulatory provisions that are mismatched with how State agencies currently operate their programs. For instance, while many States now contract with private service providers for administrative functions such as those listed above, they receive lower rates of federal reimbursement of their costs for training these workers to perform these functions. Only costs incurred by the State in the training of State and local agency workers and those preparing for employment with the state agency can be reimbursed under title IV-E at the enhanced, 75 percent match rate (rather than the 50 percent match rate for administrative expenses). Furthermore, only public funds or expenditures can be used to match title IV-E training funds. It is common practice to consider the staff time and other resources of a state university as match for federal funds when training child welfare agency employees. However, this practice disadvantages States that utilize private colleges and universities for training and limits the training resources available, particularly in rural States where the number of State universities and colleges are limited and at great distances from those people requiring the training.
Just as claiming rules are complex, requirements for children's title IV-E eligibility are also cumbersome. Several eligibility requirements must be met in order to justify the title IV-E claims made on a child's behalf. These are described in the text box below. Some of these apply at the time a child enters foster care, while others must be documented on an ongoing basis. Most of these are procedural requirements intended to protect children from potential harm caused by inattentive agencies and systems. It is unclear, however, that they function reliably as eligibility criteria. For example, the fact that judicial determinations routinely include “reasonable efforts” and “contrary to the welfare” determinations may represent a judge's careful consideration of these issues, or may simply appear because prescribed language has been automatically inserted into removal orders. These process requirements were essential when federal oversight was limited to assuring the accuracy of eligibility determinations. However, now that the Child and Family Review process (discussed in some detail in a later section) provides comprehensive assessments of States' child welfare programs, some of what are currently individual eligibility criteria could be addressed more effectively as part of the systemic assessment process.
The eligibility criterion that is most routinely criticized by States and child welfare advocates is the financial need criteria as was in effect under the now-defunct AFDC program. As noted above, this requirement relates to the historical origins of the foster care program as part of the welfare system. However, there is no policy reason that the federal government should “care” (in monetary terms) more about children in imminent danger of maltreatment by parents who are poor than it does about children whose parents have higher incomes. The requirement is particularly peculiar because the AFDC program was eliminated in favor of Temporary Assistance for Needy Families in 1996. Therefore the means test used for title IV-E no longer parallels the income and asset limits for existing welfare programs. And since this so-called “look back” provision did not index the 1996 income and asset limits for inflation, over time their value will be further eroded. Fewer children will be eligible for title IV-E in the future as income limits for the program remain static while inflation raises both incomes and the poverty line.
Eligibility Requirements for Title IV-E Foster Care
Contrary to the welfare determination. A child's removal from the home must be the result of a judicial determination to the effect that continuation in the home would be contrary to the child's welfare, or that placement in foster care would be in the best interest of the child. Children in foster care as a result of a voluntary placement agreement are not subject to this requirement.
Reasonable efforts determination. The State agency must obtain a judicial determination within 60 days of a child's removal from the home that it has made reasonable efforts to maintain the family unit and prevent the unnecessary removal of a child from home, as long as the child's safety is ensured. In addition, there must be ongoing documentation that the State is making reasonable efforts to establish and finalize a permanency plan in a timely manner (every 12 months).
State agency placement and care responsibility. The State child welfare agency must have responsibility for placement and care of the child. Usually this means the child is in the State's custody. A tribal agency or other public agency may have responsibility for the child's placement and care if there is a written agreement to that effect with the child welfare agency.
Pre-welfare reform AFDC eligibility. The State must document that the child was financially needy and deprived of parental support at the time of the child's removal from home, using criteria in effect in its July 16, 1996 State plan for the Aid to Families with Dependent Children program. Income eligibility and deprivation must be redetermined annually.
Licensed Foster Family Home or Child Care Institution. The child must be placed in a home or facility that meets the standards for full licensure or approval that are established by the State.
Criminal background checks or safety checks. The State must provide documentation that criminal records checks have been conducted with respect to prospective foster and adoptive parents and safety checks have been made regarding staff of child care institutions.
Special Requirements in the Case of Voluntary Placements. If a child is placed in foster care under a voluntary placement agreement, title IV-E eligibility rules apply slightly differently. Determinations that remaining in the home is contrary to the child's welfare and that reasonable efforts have been made to prevent placement are not required in these cases. However, if the child is to remain in care beyond 180 days, a judicial determination is required by that time indicating that continued voluntary placement is in the child's best interests.
That each child's eligibility depends on so many factors, some of which may change from time to time, makes title IV-E a potentially error-prone program to which there is recurrent pressure for accuracy, close procedural scrutiny, and the taking of disallowances. On the other hand, the potentially large sums involved mean that disallowances are met with procedural disputes, appeals, and protests from agency directors, legislators, and governors. Yet it is not at all clear that the time and effort spent tracking eligibility criteria results in better outcomes for children. For all the complexity of the eligibility process, the number of States out of compliance is actually quite low.
Compliance with eligibility rules is monitored through Title IV-E Eligibility Reviews that have been conducted since 2000. Fifteen of the forty-four States reviewed by the end of 2003, plus the District of Columbia and Puerto Rico, were found not to be in substantial compliance with IV-E eligibility rules. The remainder had minimal errors in their eligibility processes and were generally operating within program eligibility rules. Even among the States required to implement corrective action plans, several are not far from compliance levels.
Of those States not in substantial compliance, the pattern of errors varied. The most widespread problems relate to reasonable efforts to make and finalize permanency plans. Ten states had large numbers of errors in this category and 44% of all errors involved reasonable efforts violations. In most cases these are cases with late or absent permanency hearings, that is States were not operating within the time frames laid out by the Adoption and Safe Families Act. Four States had frequent licensing problems, usually that children were placed in unlicensed foster homes (23% of all errors). Three States had significant errors related to the application of pre-welfare reform AFDC eligibility criteria (11% of all errors). Two States had quite a few missing criminal background checks on foster parents (8% of all errors). There were very few errors with respect to “contrary to the welfare” determinations, placement and care responsibility, or extended voluntary placements. A full listing of errors documented in eligibility reviews through Fiscal Year 2003 appears in Table 1.
Table 1.
Distribution of Errors Among States Found Not in Substantial Compliance with Title IV-E Eligibility Rules State Found Not in Compliance Number Cases Found Ineligible Licensing Problems Lacking Criminal Background Checks Reasonable Efforts Violations Missing Contrary to the Welfare Determinations Child Welfare Agency Lacks Placement and Care Responsibility Extended Voluntary Placement without Court Approval 1996 AFDC Criteria Not Met Disallowance Amount
New Jersey 2000 Initial Primary 44 33 0 14 0 4 3 3 $269,903
Kansas 2000 IP 16 6 0 6 7 0 0 10 $74,265
Maine 2001 1P 24 22 0 3 0 2 0 3 $182,737
Hawaii 2001 IP 25 0 18 1 0 2 1 3 $238,432
Iowa 2001 IP 22 0 3 6 6 0 0 15 $156,915
Vermont 2002 IP 26 2 0 4 7 4 0 14 $312,918
Maryland 2002 IP 37 3 1 36 1 0 0 1 $601,820
Wisconsin 2002 IP 23 3 0 13 4 2 2 1 $206,833
New York 2003 IP 31 0 0 26 7 4 2 5 $806,811
New Jersey 2003 Secondary 56 27 4 36 5 6 7 1 $6,220,853
District of Columbia 2003 IP 54 39 24 19 4 7 1 2 $1,416,169
Puerto Rico 2003 IP 70 17 7 98 7 0 0 26 $271,056
Montana 2003 Primary 22 1 0 28 2 1 1 0 $317,752
West Virginia 2003 P 25 4 0 20 0 0 1 0 $451,305
Alabama 2003 P 23 2 2 19 1 0 1 1 $174,856
Mississippi 2003 IP 10 9 0 3 1 0 0 0 $8,133
Arkansas 2003 IP 10 6 3 0 0 0 0 1 $67,067
Total Cases with Errors 518 $11,777,825
TOTAL ERRORS 757 174 62 332 52 32 19 86
Percent of all errors 23% 8% 44% 7% 4% 3% 11%
Notes:
During 2000 to 2003, 50 states plus the District of Columbia & Puerto Rico were reviewed; of these 35 were found to be in substantial compliance and 17 not in substantial compliance.
Six states (PA, MA, FL, TN, MN, & MI) have not been reviewed.
Six states (KS, NJ, WV, AL, TX, & MT) have had an initial primary plus a primary or secondary review.
Substantial compliance is defined as less than 8 errors for an initial primary review or 4 errors in a primary review. In secondary reviews substantial compliance is calculated as a percentage of cases and/or dollars.
Ineligible cases may have more than one error reason.
Licensing errors were usually children placed in unlicensed homes. In Maine, most errors were foster homes that lacked a fire inspection. Most reasonable efforts violations were late/absent permanency hearings.
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Differing Claiming Practices Result in Wide Variations in Funding Among States
States vary widely in their approaches to claiming federal funds under title IV-E. Some are quite conservative in their claims, counting only children in clearly eligible placements and defining administrative costs narrowly. Other States have become more skilled in the administrative processes necessary to justify more extensive title IV-E claims. Further, not all States have the financial means or budgetary inclination to invest in the full array of foster care related services for which federal financial participation might be available. The result of these different approaches is a complex pattern of title IV-E claims covering a great range of funding levels. However, the disparities in title IV-E claiming are so wide and so lacking in pattern as to undermine the rationale for the complex claiming rules.
Figure 2 shows the average amount of funds each State claimed from the federal government for title IV-E foster care during FY2001 through FY2003, shown as dollars per title IV-E eligible child so as to make the figures comparable across States. That is, for each State the three year average annual federal share in each spending category is divided by the three year average monthly number of title IV-E eligible children in foster care, to give an average, annualized cost per child. Three year averages are used to smooth out claiming anomalies that may occur in a single year because of extraordinary claims or disallowances.
There is a wide range in the amounts claimed as well as in the division of claims between maintenance payments and the category that includes both child placement services and administration. These are the two principal claiming categories. The remaining categories, training and demonstrations, were relatively small in most States. Spending on State Automated Child Welfare Information Systems (SACWIS) has been excluded since these system development costs can vary substantially from year to year in ways unrelated (at least in the short term) to services for children.
Figure 2.
States’ Foster Care Claims — Federal Funds
(excluding SACWIS) per IV-E Child (average of fiscal years 2001 to 2003)
Total federal claims per title IV-E child (averaged across three years), excluding funds for the development of State Automated Child Welfare Information Systems (SACWIS), ranged from $4,155 to $33,091. The median value was $15,914. The range in maintenance claims was $2,829 to $20,539 per title IV-E child, with a median of $6,546. Claims for child placement services and administration ranged from $1,190 to $23,724 per title IV-E child, with a median value of $6,840. These per-child amounts reflect only the federal share of title IV-E costs, which vary according to the match rates used for different categories of expenses. If one were to include the State share in such calculations, the expenditure figures would be substantially higher. This discussion has been framed in terms of the variation in federal share so as to best illustrate and isolate issues related to the federal funding rules.
As shown in figure 3, the balance between maintenance and administrative claims also varies considerably among the States. Claims for child placement and administration vary from 10 cents per dollar claimed of maintenance to $4.34. Six States claim less than 50 cents in administration for every maintenance dollar claimed, while 9 States claim more than $2 in administration for every dollar of maintenance. These differences reflect the extent to which States use a wide or narrow definition of child placement and administrative costs. In addition, some States claim administrative expenses for non-IV-E children as “title IV-E candidates” over extended periods of time, even if those children or the placement settings they reside in never qualify under eligibility rules. In such States this drives up administrative costs as a proportion of total title IV-E payments. A Notice of Proposed Rulemaking published by HHS January 31, 2005 proposes to prohibit this practice except under limited circumstances.
Figure 3.
Administrative Dollars Claimed per Dollar of Foster Care Maintenance Varies Widely
(calculated on the basis of average claims FY2001 through FY2003)
Below, factors such as the quality of child welfare services are examined in relation to the funding differences across States. Here it is simply observed that the spread of claims is far wider than one would expect to see based on any funding formula one might rationally construct. It is unlikely that differences this large are the result of actual differences either in the cost of operating a foster care program or reflect actual differential needs among foster children across States.
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The Current Funding Structure Has Not Resulted in High Quality Services
If State and local child welfare systems were generally functioning well, most of those concerned might take the view that the approximately $5 billion in federal funds, and even more in State and local funds, was mostly well spent. In fact, however, knowledgeable observers are hard-pressed to name systems that are functioning well overall. Typically one aspect of an agency's efforts may be lauded, while serious weaknesses are acknowledged in other areas. Even so, good evidence of system performance has, until recently, been hard to come by.
After several years of development and pilot testing, the Children's Bureau in 2000 began conducting Child and Family Services Reviews (CFSRs) in each State. These reviews, which include a data-driven Statewide Assessment and an onsite review visit by federal and State staff, are intended to identify systematically the strengths and weaknesses in State child welfare system performance. Once areas of weakness are identified, States are required to develop and implement Program Improvement Plans (PIPs) designed to address shortcomings. During onsite
reviews, teams examine a sample of case files of children with open child welfare cases and interview families, caseworkers and others involved with these cases to determine whether federal standards have been met. System stakeholders such as child advocates and judges are also interviewed. In addition to examining practice in specific cases, the reviews also examine systemic factors such as whether the States' case review system, training, and service array are adequate to meet families' needs. Overall, 47 specific factors are rated and then aggregated to assess whether or not “substantial conformity” with federal requirements is achieved in seven child outcomes and seven systemic factors (shown in the text box below).
Outcomes and Systemic Factors Examined
in Child and Family Services Reviews
Outcomes
Children are first and foremost, protected from abuse and neglect.
Children are safely maintained in their homes whenever possible and appropriate.
Children have permanency and stability in their living situations.
The continuity of family relationships and connections is preserved for children.
Families have enhanced capacity to provide for their children's needs.
Children receive appropriate services to meet their educational needs.
Children receive adequate services to meet their physical and mental health needs.
Systemic Factors
Statewide Information System
Case Review System
Quality Assurance System
Training
Service Array
Agency Responsiveness to the Community
Foster and Adoptive Parenting Licensing, Recruitment and Retention
As described above, there are 14 areas in which a State might be determined in or out of substantial compliance during its Child and Family Services Review. Figure 4 shows the distribution of State performance on initial reviews among all 50 States and the District of Columbia. Median State performance was to be in substantial compliance in 6 of 14 areas. States reviewed to date have ranged from meeting standards in 1 area to 9 areas. While simply counting the areas of compliance presents a very general, simplified and broad-brush approach to evaluating child welfare system quality, the purpose here is not to analyze system performance in any detailed fashion. It is simply to recognize that most States achieved substantial compliance in fewer than half of areas examined, and that all systems reviewed have been in need of significant improvement. Indeed, in the area of permanency and stability in their living situations, an area of crucial importance to children in foster care, no State has yet met federal standards in this area, although a few approach them. Clearly the current federal funding structure has not, to date, resulted in a child welfare system that achieves outcomes with which we may be satisfied.
Figure 4.
Summary of Results for Child and Family Services Reviews
(for 50 states plus DC)
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States' Title IV-E Claiming Bears Little Relationship to Service Quality or Outcomes
Even if not achieving high quality overall, one might expect and hope that spending variations among States might relate to the overall quality of child welfare systems as revealed in results of the Child and Family Services Reviews. Analyses presented below relate the variations in claiming patterns among States described above to child welfare system performance.
Figure 5 shows per child claims plotted against the number of areas measured in the CFSR in which the State was found to be in substantial compliance. The three states with the highest claims per child were in compliance with 3, 5, and 7areas respectively of the 14 possible areas of compliance in their first Child and Family Services Review. Average per-child claims did not differ appreciably between the highest and lowest performing states. The eight states that were in compliance in the fewest areas (1, 2 or 3 of 14) averaged $19,293 in federal funds per title IV-E child, while the 12 highest performing states (in compliance with 8 or 9 of the 14 areas) averaged claims of $19,824 per child. There are States with relatively high- and low-federal claims at each level of CFSR performance.
Figure 5.
Child and Family Services Review Compliance Is
Only Weakly Related to Levels of Title IV-E Foster Care Funds
Claimed Per Eligible Child
(data shown for 50 states plus DC)
Claiming levels similarly bear little relationship to States' performance in achieving permanency for children in foster care. Figure 6 plots each State's federal claims for the title IV-E foster care program per title IV-E eligible child against the percentage of children in foster care for whom permanency is achieved. Permanency data, from the States' Child and Family Services Reviews, shows that States' success in either reunifying children with parents within one year or finalizing an adoption within two years of foster care entry varies widely. Six States achieve permanency within these time frames for under one-third of children in foster care, while five either approach or exceed the national standard of 90 percent. Most perform somewhere in between. The wide disparities among States' performance on what is a key child welfare function seem unconnected to the amount of federal funds claimed from the major source of federal child welfare funding, the title IV-E foster care program.
Figure 6.
Permanency Outcomes Are Unrelated to Levels of State Title IV-E Foster Care Claims
(data shown for 50 states plus DC)
If claims levels are not strongly related to child welfare system quality or outcomes, what other factors might be involved in determining spending? Variation among States in the actual foster care rates paid to families caring for children bears only a weak relationship to per-child foster care claims levels (Figure 7). As an example, four of six States with basic maintenance payments in 2000 of less than $300 per month for a young child had higher than median levels of claims per child. These four States also had higher federal claims per child than did four of seven States which in 2000 paid basic maintenance rates of higher than $500 per month for young children. Patterns of residential care use among States are similarly unrelated to claiming disparities.
Figure 7.
Foster Care Maintenance Rates Are Weakly Related to Foster Care Claims
Wide disparities in federal claims might be viewed as positive if States were achieving better outcomes with higher spending. This argument does not hold up to scrutiny, however, in the face of Child and Family Services Review results. The findings of these reviews are disappointing even in States with relatively high costs. Of course, because title IV-E is the focus here, this analysis only includes foster care costs. States' spending on other child welfare services may contribute to performance. The wide variety of these other potential funding sources and their variability among the States, however, makes it quite difficult to examine them in a consistent fashion.
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The Current Funding Structure is Inflexible, Emphasizing Foster Care
Title IV-E has long been criticized because it funds foster care on an unlimited basis without providing for services that would either prevent the child's removal from the home or speed permanency (see, for example, The Pew Commission on Children in Foster Care, 2004 and McDonald, Salyers and Shaver 2004). Funding sources for preventive and reunification services, primarily the Child Welfare Services Program and the Promoting Safe and Stable Families Program funded under title IV-B of the Social Security Act, are quite small in comparison with those dedicated to foster care and adoption. As shown in Figure 8, foster care funding under title IV-E made up nearly two-thirds (65%) of federal funding dedicated to child welfare purposes in Fiscal Year 2004. Adoption Assistance funding (also authorized under title IV-E) represents another 22%. Funding sources that may be used for preventive services (but which also fund some foster care and adoption related services), including funds from the title IV-B programs and the discretionary programs funded from authorizations in the Child Abuse Prevention and Treatment Act, represent 11% of federal child welfare program funds.
Figure 8.
Federal Child Welfare Funding, FY2004
Other federal social services programs such as the Social Services Block Grant (SSBG) and Temporary Assistance for Needy Families (TANF) also fund some services for families experiencing or at risk of child welfare involvement, as can Medicaid. These funding streams are not intended primarily for these purposes, however, and, with the exception of SSBG, available program data does not break out spending on child welfare related purposes. (The Fiscal Year 2002 annual expenditure report for the SSBG program (HHS, 2004) shows that states spent a total of $634 million in SSBG funds for child welfare services that year.) Surveys and analysis conducted by private research organizations indicate these funding sources provide considerable funding for child welfare services, though much of that is still concentrated on out-of-home care. Studies conducted by the Urban Institute found that in State Fiscal Year 2002 these “non-traditional” federal child welfare funding sources (primarily SSBG, TANF and Medicaid) paid for just over $5 billion in child welfare services. Of this total, $2.1 billion was spent on out-of-home placements, $1.3 billion paid for other services including prevention and treatment, $419 million went to administrative activities, and $98 million funded adoption services. States were unable to categorize purposes on which the remainder of funds were spent, nearly $700 million (Scarcella, Bess, Zielewski, Warner and Geen, 2004).
Some have argued that because foster care is an entitlement for eligible children while service funds are limited, title IV-E encourages foster care placement. However, it seems unlikely that caseworkers make placement decisions on the basis of children's title IV-E eligibility, nor is it likely that judges use title IV-E status as a significant factor in their placement rulings. Indeed, caseworkers and judges are often unaware of children's eligibility status. A lack of available family services, however, could plausibly tip caseworkers' decisions toward placement or delay a child's discharge. Quantifying such effects is difficult, however.
Many in the child welfare field believe that with more flexibility in funding States would devote additional resources to preventive and reunification services, and that better outcomes for children and families could be achieved. Since 1996, Child Welfare Demonstration Projects in 17 States have generated evidence about the effects of allowing State and local agencies to use federal foster care funds more flexibly, either for children not normally eligible for title IV-E or for services title IV-E would could not otherwise cover. While most of the States tested a single, specific alternative use for foster care funds, such as guardianship subsidies or improved interventions for parents with substance abuse problems or children with serious mental health conditions, four States are testing broader systems of flexible funding that resemble the Administration's proposal for a Child Welfare Program Option. These demonstrations are operating in Indiana, North Carolina, Ohio, and Oregon. In each case, the State provides counties a fixed allotment of title IV-E funds which then may be used to pay for services to prevent foster care placement, facilitate reunification, or otherwise ensure safe, permanent outcomes for children.
Evaluation results to date are encouraging. While the demonstrations did not always achieve their goals, in no case did outcomes for children deteriorate as a result of increased flexibility. North Carolina found flexible funding contributed to declines in the probability of out-of-home placement following a substantiated child abuse or neglect report. Demonstration counties in Ohio expressed increased support for prevention activities and were more likely than traditionally funded counties to create new or expanded prevention services. And in Oregon, the combination of demonstration funds and the State's System of Care Initiative dramatically improved the likelihood that at-risk children could remain safely in their homes rather than being placed in foster care. It should be noted that demonstration projects did not provide any more title IV-E funds than the State would have received in the absence of a demonstration. The projects were cost-neutral. States were granted only the flexibility to spend funds in broader ways than is normally allowed.
Flexible spending alone will not address the weaknesses in child welfare systems around the country. But such flexibility can allow strong local leaders to implement practice improvements more easily and thereby generate improved outcomes. Among the types of practice changes implemented in flexible funding demonstrations are strengthened family assessments; enhanced visitation; intensive family reunification services; family decision meetings; and improved access to substance abuse and mental health treatment. That nearly half of States have implemented waiver demonstrations indicates widespread interest in more flexible funding for State child welfare programs. Interest in flexible funding has grown now that many States have successfully implemented new service models while enhancing, or at least not compromising, safety, permanency and child well-being.
In recognition that flexibility can produce best results when accompanied by enhanced funding, the Bush Administration has consistently supported funding increases for child welfare. In particular, HHS budgets from FY2002 through FY2005 each included substantial proposed increases for the Promoting Safe and Stable Families Program, in the amount of $1 billion over five years. However, Congress each year appropriated substantially less than the requested amount. For FY2005, the Administration also proposed substantial increases for several key child abuse prevention efforts authorized under the Child Abuse Prevention and Treatment Act which again were not funded by Congress.
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The Financing Structure Has Not Kept Pace with a Changing Child Welfare Field
A great deal has changed in the world of child welfare since the federal foster care program was established. The program initially created in 1961, however, has continued without major revision to its financing structure. The result is a funding stream seriously mismatched to current program needs. The goals of the child welfare system are to improve the safety, permanency and well-being of children and families served. By requiring that the great majority of federal funding for child welfare services be spent only on foster care, the financing system undermines the accomplishment of these goals.
Title IV-E funding was designed with the intention that the program funding would adjust automatically to changes in social need. However, it is difficult to conclude from claims levels that social need has been the driving force behind spending patterns that vary wildly from State to State. Service practices seem to have adjusted to the funding, rather than vice versa. Throughout the program's history, growth far outpaced changes in the population of children being served. And while current growth has slowed considerably, declines in the number of children in foster care have not yet translated into lower program claims. The recent stabilization of the program's funding, however, makes this a good time to re-examine the structure of title IV-E and whether that funding structure continues to meet the needs of the child welfare field. Since the number of children in foster care is expected to be flat or declining for the foreseeable future, there is less short-term risk in potential financing system changes than is the case when needs are rapidly escalating.
Improved preventive and family support services for children and families at risk of foster care placement, therapeutic care and remediation of problems for families with children in foster care, and post-discharge services for families after children leave out of home care, are each essential to the achievement of the child welfare system's goals. Yet these are precisely the services that title IV-E is least able to support. The result has been child welfare systems unable to achieve positive outcomes for children. This weak performance has been documented by Child and Family Services Reviews conducted across the nation. But as States develop and implement Program Improvement Plans, title IV-E funds are largely unavailable to address the challenges.
From complex eligibility criteria based in part on a program that no longer exists, to intricate claiming rules that demand caseworkers' every action be documented and characterized, title IV-E is a funding stream driven toward process rather than outcomes. With the advent of the Child and Family Services Reviews, and systemic improvements initiated in response to the Adoption and Safe Families Act, Congress and the Department of Health and Human Services have made significant strides toward re-orienting child welfare programs to be outcomes focused. Until the funding is structured to support these outcomes, however, improvements may be constrained.
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Proposed Child Welfare Program Option Described
The President's FY2006 budget once again proposes to create a Child Welfare Program Option which would allow States a choice between the current title IV-E program and a five year capped, flexible allocation of funds equivalent to anticipated title IV-E program levels. This concept was first proposed by the President for FY 2004. While the last Congress did not complete work on child welfare financing, the Administration continues to call for consideration of financing reform. The President's proposal has a number of distinct advantages over both current law as well as in contrast to more traditional block grants that have been considered in the past.
The Child Welfare Program Option would allow States to use title IV-E funds for foster care payments, prevention activities, training and other service-related child welfare activities B a far broader range of uses than allowed under current law. Increased flexibility will empower States to develop child welfare systems that support a continuum of services for families in crisis and children at risk while being relieved of the administrative burden created by current federal requirements, including the need to determine the child's eligibility for AFDC.
Child safety protections under current law would continue under the President's proposal. These include requirements for conducting criminal background checks and licensing foster care providers, obtaining judicial oversight of decisions related to a child's removal and permanency, meeting permanency time lines, developing case plans for all children in foster care, and prohibiting race-based discrimination in foster and adoptive placements.
In contrast to some previous flexible funding proposals, the President's Child Welfare Program Option would be an optional alternative to the current financing system. States desiring the flexibility it would afford could opt in during the initial program year for a five year period. State allocations would be based on historic expenditure levels and would be calculated to be cost-neutral to the federal government over a five year period. A State could choose to receive accelerated, up-front funding in the early years of the program in order to make investments in services that are likely to result in cost savings in later years. The proposal includes a maintenance of effort requirement to ensure that those States selecting the new option maintain their existing level of investment in the program. But those States unwilling to accept the risk and the promise of flexibility could choose to continue operating under current program rules.
To address fears that some future social crisis might create unexpected and unforeseeable child welfare needs, the President has also proposed to allow participating States access to the TANF Contingency Fund if unanticipated emergencies result in funding shortfalls. Specific criteria would govern the circumstances under which States could withdraw funds from this source. This feature, too, responds to concerns expressed in past child welfare financing discussions.
The proposal includes two set asides within the Child Welfare Program Option. The first would provide some Tribes direct access to title IV-E funds. Under current law Tribes may only receive title IV-E funds through agreements with States. Through a proposed $30 million set aside in the CWPO, however, tribes demonstrating the capacity to operate foster care programs could receive direct funding to do so and would be subject to similar program requirements as States.
A second set aside would dedicate a relatively small amount of funds to facilitate program monitoring, technical assistance to support the efforts of State and tribal child welfare programs, and to conduct important child welfare research. These funds will ensure that sufficient resources are available to understand how the new option affects child welfare services and outcomes for children and families, and to support States in their efforts to reconfigure programs to achieve better results.
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Benefits of the Proposed Child Welfare Program Option
The Child Welfare Program Option would allow innovative State and local child welfare agencies to eliminate eligibility determination and drastically reduce the time now spent to document federal claims. This effort could then be redirected toward services and activities that more directly achieve safety, permanency and well-being for children and families. Investments in preventive services and improved case planning could also reduce foster care needs. States taking child welfare funds through the Option would be held accountable for their programs through Child and Family Services Reviews and standard audit requirements. But these States would no longer be required to document expenditures in the level of detail now required to justify federal matching funds. The flexibility afforded by the Option would allow agencies to direct funds to those activities most closely addressing families' needs. HHS could then focus more fully on partnerships with States to achieve positive outcomes for children and families.
The proposed Child Welfare Program Option (CWPO):
Creates Structural Incentives for Better Outcomes. The CWPO provides incentives for child welfare system improvement because it is through better outcomes that a State would “win” under the program. With a fixed funding level, States would be better off financially if children either stay at home safely, return home quickly, or are placed in adoptive homes (since Adoption Assistance would remain an entitlement). Since these are also the preferred outcomes for children, the program creates structural incentives that are in line with program goals.
Facilitates Quality Improvement. The CWPO would encourage States to fund service improvements, particularly those called for in their Program Improvement Plans (PIPs) by allowing federal funds to be used for the full range of activities contemplated under the PIPs. In contrast with current law, States operating under the CWPO that are successful in reducing the need for foster care will be able to reinvest their title IV-E funds in other child welfare services rather than losing them to diminished foster care claims.
Reduces Burden. Under the CWPO, the level of documentation required of States in order to receive federal child welfare funds would be reduced dramatically. While States would still be required to spend funds on child welfare services, they would no longer need to justify to the federal government for funding purposes precisely which services were delivered to which children. State and local funding decisions could in turn be made more in line with the needs of children and families without respect to whether the specific activity were reimbursable under title IV-E.
Increases Flexibility. The restrictions in current law regarding which child welfare services may be provided with federal funds constrain State and local decision making regarding service offerings. The increased flexibility afforded by the CWPO will provide officials closest to child welfare cases with additional funding options, potentially leading to a more comprehensive service array for children and families.
Promotes Ongoing Programmatic Adaptation and Innovation. The current system for claiming federal funds encourages status quo programming through its documentation requirements and close scrutiny of categories in which funding levels change significantly from year to year. States risk disallowances if they change how they claim or the services for which they claim federal funds. Alternatively, under current law innovation may be implemented without federal financial participation, a relatively costly option. The CWPO, on the other hand, would enable states to innovate using their federal foster care funds. Funds could be shifted among child welfare functions without concern for artificial expenditure categories or differential matching rates. The result is likely to be increased attention to outcomes for children and an improved ability to focus funding on strategies most likely to result in improved performance.
This paper has described the funding structure of the title IV-E foster care program and documented a number of its key weaknesses. In particular, the combination of detailed eligibility requirements and complex but narrow definitions of allowable costs force a focus on procedure rather than outcomes for children and families. Rules which have built up over the years cumulatively fail to support the program's goals of safety, permanency and child well-being. In addition, the restrictiveness of the federal foster care program prevents States from using these funds, by far the largest source of federal funding dedicated to child welfare activities, to implement many important elements in their Program Improvement Plans. These plans have been required of all States to address weaknesses in their programs detected during Child and Family Services Reviews. The Administration's proposed Child Welfare Program Option is intended to introduce flexibility while maintaining a focus on outcomes, retaining existing child protections, and providing a financial safety net for states in the form of access to the TANF Contingency Fund during unanticipated and unavoidable crises. The result will be a stronger and more responsive child welfare system that achieves better results for vulnerable children and families.
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References
Scarcella, Cynthia Andrews, Bess, Roseana, Zielewski, Erica Hecht, Warner, Lindsay, and Geen, Rob (2004). The Cost of Protecting Vulnerable Children IV. Washington, DC: The Urban Institute. Available online at: http://www.urban.org/Template.cfm?Section=ByAuthor&NavMenuID=63&template=/TaggedContent/ViewPublication.cfm&PublicationID=9128.
Committee on Ways and Means, U.S. House of Representatives (1992). 1992 Green Book. Washington, DC: U.S. Government Printing Office.
Committee on Ways and Means, U.S. House of Representatives (2004). 2004 Green Book. Washington, DC: U.S. Government Printing Office. Available online at: http://waysandmeans.house.gov/Documents.asp?section=813.
Frame, Laura (1999). “Suitable homes revisited: An historical look at child protection and welfare reform.” In Children and Youth Services Review, Vol 21, Nos. 9/10, pp. 719-754.
McDonald, Jess, Salyers, Nancy, and Shaver, Michael (2004). The Foster Care Straightjacket: Innovation, Federal Financing and Accountability in State Foster Care Reform. Urbana-Champaign: Child and Family Research Center, School of Social Work, University of Illinois. Available online at http://www.fosteringresults.org/
The Pew Commission on Children in Foster Care (2004). Fostering the Future: Safety, Permanence and Well-Being for Children in Foster Care. Washington, CC: The Pew Commission on Children in Foster Care.
U.S. Department of Health and Human Services (2005). Budget in Brief FY2006. Washington, DC: U.S. Government Printing Office. Available online at: http://www.hhs.gov/budget/docbudget.htm.
U.S. Department of Health and Human Services (2004). SSBG 2002: Helping States Serve the Needs of America's Families, Adults and Children. Washington, DC: Administration for Children and Families. Available online at: http://www.acf.hhs.gov/programs/ocs/ssbg/index.htm
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Note on Data Sources:
Data presented in this report are derived primarily from HHS information sources. Most are publicly available as follows:
Data on title IV-E funding and caseload history (figure 1) are from the “2004 Green Book” published by the U.S. House of Representatives Committee on Ways and Means (tables 11-2 and 11-3). Years not included in the 2004 Green Book may be found in the equivalent table from previous editions. The 2004 Green Book is online at: http://waysandmeans.house.gov/Documents.asp?section=813.
Data for 2002 federal foster care claims is available in 2004 Green Book, table 11-8. Other years used in this report are unpublished HHS data. These data are used in figures 2, 3, 5, 6 and 7.
Final Reports for Child and Family Services Reviews (which contain data used in figures 4, 5 and 6) and Title IV-E Eligibility Reviews (containing data used in table 1) are available online from the Children's Bureau within HHS's Administration for Children and Families at: http://www.acf.dhhs.gov/programs/cb/cwrp/index.htm.
State foster care maintenance rates shown in figure 7 are those reported by the Child Welfare League of America. They are included in the 2004 Green Book, table 11-9.
Data on child welfare funding in figure 8 are derived from 2004 actual figures shown in HHS's FY2006 Budget. Available online at http://www.hhs.gov/budget/docbudget.htm.
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Endnote
1. The August 2005 version contains updates to calculations that incorporate revised Title IV-E foster care caseload data submitted by Ohio. Subsequent to the report’s initial publication, officials in Ohio realized that the number of Title IV-E foster children reported on its program claims forms, which ASPE relied on for the analysis, had been incorrect. This had implications for the claims-per-child calculated in figure 2 and used in figures 5, 6 and 7. The change is most noticeable on figure 2, in which the per-child claims for Ohio have moved down in the rankings. The underlying thesis of the analysis is unaffected by the update.
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* About This Issue Brief
This ASPE Issue Brief on “How and Why the Current Funding Structure Fails to Meet the Needs of the Child Welfare Field” was written by Laura Radel with assistance from staff in the Administration for Children and Families.
The Issue Brief provides an overview of the financing of the federal foster care program, documenting and explaining several key weaknesses in the current funding structure. It also discusses the Administration’s alternative financing proposal, the creation of a Child Welfare Program Option, which would allow States to choose between financing options.
Office of Human Services Policy
Office of the Assistant Secretary for Planning and Evaluation (ASPE)
U.S. Department of Health and Human Services
Washington, DC 20201
Michael J. O'Grady, Ph.D.
Assistant Secretary
Barbara B. Broman
Acting Deputy Assistant Secretary for Human Services Policy
How to Obtain a Printed Copy
To obtain a printed copy of this report, send the title and your mailing information to:
Human Services Policy, Room 404E
Assistant Secretary for Planning and Evaluation
U.S. Department of Health and Human Services
200 Independence Av, SW
Washington, DC 20201
Fax: (202) 690-6562
Or, you can print the PDF version.
Home Pages:
Human Services Policy (HSP)
Assistant Secretary for Planning and Evaluation ASPE)
U.S. Department of Health and Human Services (HHS)
Last revised: 09/07/05
http://aspe.hhs.gov/hsp/05/fc-financing-ib/index.htm
FEDERAL FOSTER CARE FINANCING:
How and Why the Current Funding Structure Fails to Meet the Needs of the Child Welfare Field
U.S. Department of Health and Human Services
Office of the Assistant Secretary for Planning and Evaluation
Updated August 2005(1) This Issue Brief provides an overview of the title IV-E federal foster care program's funding structure and documents several key weaknesses.
This Issue Brief is available on the Internet at:
http://aspe.hhs.gov/hsp/05/fc-financing-ib/
Printer Friendly (PDF) Version
How to Obtain a Printed Copy
Contents
Executive Summary
Introduction
Background and History of Title IV-E Foster Care
Documenting Eligibility and Claiming Foster Care Funds is Burdensome
Differing Claiming Practices Result in Wide Variations in Funding Among States
The Current Funding Structure Has Not Resulted in High Quality Services
States' Title IV-E Claiming Bears Little Relationship to Service Quality or Outcomes
The Current Funding Structure is Inflexible, Emphasizing Foster Care
The Financing Structure Has Not Kept Pace with a Changing Child Welfare Field
Proposed Child Welfare Program Option Described
Benefits of the Proposed Child Welfare Program Option
References
Note on Data Sources:
Executive Summary
The federal foster care program pays a portion of States' costs to provide care for children removed from welfare-eligible homes because of maltreatment. Authorized under title IV-E of the Social Security Act, the program's funding (approximately $5 billion per year) is structured as an uncapped entitlement, so any qualifying State expenditure will be partially reimbursed, or “matched,” without limit. This paper provides an overview of the program's funding structure and documents several key weaknesses. It concludes with a discussion of the Administration's legislative proposal to establish a more flexible financing system.
The program's documentation requirements are burdensome. There are four categories of expenditures for which States may claim federal funds, each matched at a different rate. In addition, there are several statutory eligibility rules that must be met in order to justify the title IV-E claims made on a child's behalf. Some of these apply at the time a child enters foster care, while others must be documented on an ongoing basis. The time and costs involved in documenting and justifying claims is significant.
Differing claiming practices result in wide variations in funding among States. The average annual amount of federal foster care funds received by States ranges from $4,155 to $33,091 per eligible child, based on three year average claims from FY2001 through FY2003. It is unlikely these disparities are the result of actual differences in the cost of operating foster care programs or reflect differential needs among foster children.
The current funding structure has not resulted in high quality services. Strengths and weaknesses of States' child welfare programs are identified through federal monitoring visits called Child and Family Services Reviews. States reviewed have ranged from meeting standards in 1 to 9 of the 14 outcomes and systemic factors examined (the median was 6). Significant weaknesses are evident in programs across the nation, but many of the improvements needed cannot be funded through title IV-E.
States' title IV-E claiming bears little relationship to service quality or outcomes. There are States with both high and low levels of federal title IV-E claims at each level of performance on Child and Family Services Reviews. In addition, there is no relationship between the amounts States claim in title IV-E funds and the proportion of children for whom timely permanency is achieved.
The current funding structure is inflexible, emphasizing foster care. Title IV-E funds foster care on an unlimited basis without providing for services that would either prevent the child's removal from the home or speed permanency. Foster care funding represents 65% of federal funds dedicated to child welfare purposes, and adoption assistance makes up another 22%. Funding sources that may be used for preventive and reunification services represent only 11% of federal child welfare program funds.
The financing structure has not kept pace with a changing child welfare field. The structure of the title IV-E program has continued without major revision since it was created in 1961, despite major changes in child welfare practice. The result is a funding stream seriously mismatched to current program needs. It is driven towards process rather than outcomes and constrains agencies' efforts to achieve improved results for children.
The proposed Child Welfare Program Option offers substantial benefits. The Child Welfare Program Option, first proposed in HHS's Fiscal Year 2004 budget request and currently included in the President's Fiscal Year 2006 budget request, would allow States a choice between the current title IV-E program and a five-year capped, flexible allocation of funds equivalent to anticipated title IV-E program levels. It would allow innovative State and local child welfare agencies to eliminate eligibility determination and claiming functions and redirect funds toward services and activities that more directly achieve safety, permanency and well-being for children and families.
The combination of detailed eligibility requirements and complex but narrow definitions of allowable costs within the federal title IV-E foster care program force a focus on procedure rather than outcomes for children and families. The Administration's proposed Child Welfare Program Option is intended to introduce flexibility while maintaining a focus on outcomes, retaining existing child protections, and providing a financial safety net for states in the form of access to the TANF Contingency Fund during unanticipated and unavoidable crises. The result will be a stronger and more responsive child welfare system that achieves better results for vulnerable children and families.
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Introduction
The federal government currently spends approximately $5 billion per year to reimburse States for a portion of their annual foster care expenditures. Foster care services are intended to provide temporary, safe alternative homes for children who have been abused or neglected until such time as they are able to return to their parents' care safely or can be placed in other permanent homes. Federal foster care funds, authorized under title IV-E of the Social Security Act, are paid to States on an uncapped, “entitlement” basis, meaning any qualifying expenditure by a State will be partially reimbursed, or “matched,” without limit. Definitions of which expenses qualify for reimbursement are laid out in regulations and policy interpretations which have developed, layer upon layer, over the course of many years. Each may have made sense individually, but cumulatively they represent a level of complexity and burden that fails to support the program's basic goals of safety, permanency and child well-being.
This paper provides an overview of the current funding structure, and documents several key weaknesses. In essence, the paper shows that: (1) The current financing structure is connected to the old Aid to Families with Dependent Children program (AFDC) for historical, rather than programmatic reasons; (2) the administrative paperwork for claiming federal funds under Title IV-E is burdensome; (3) current funding is highly variable across States; (4) child welfare systems claiming higher amounts of federal funds per child do not perform substantially better or achieve better outcomes for children than those claiming less funding; (5) the current funding structure is inflexible and emphasizes foster care payments over preventive services; and (6) the financing structure has not kept pace with a changing child welfare field. The paper concludes with a discussion of the Administration's proposal to establish a Child Welfare Program Option, allowing States to receive their foster care funds in a fixed, flexible allocation as an alternative to the current mode of financing.
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Background and History of Title IV-E Foster Care
The federal government has, since 1961, shared the cost of foster care services with States. Prior to this time foster care was entirely a State responsibility. Since its very first days foster care funding was intimately linked to federal welfare benefits, then known as the Aid to Dependent Children Program, or ADC. In fact, the federal foster care program was created to settle a dispute with the States over welfare payments to single-parent households. At the time, some States routinely denied welfare payments to families with children born outside of marriage. These States had declared such homes to be morally “unsuitable” to receive welfare benefits. Following a particularly extreme incident in which 23,000 Louisiana children were expelled from ADC, the federal Department of Health Education and Welfare (HEW), in what came to be known as the Flemming Rule after then-secretary Arthur Flemming, directed States to cease enforcement of the discriminatory suitable homes criteria unless households were actually unsafe for children. If homes were unsafe, States were required to pay families ADC while making efforts to improve home conditions, or place children in foster care. When States protested the added costs of protecting children in unsafe homes, Congress reacted by creating federal foster care funding. In this way, the federal government ensured States would not be disadvantaged financially by protecting children (Frame 1999; Committee on Ways and Means 1992).
From 1961 until 1980, federal foster care funding was part of the federal welfare program, Aid to Families with Dependent Children (AFDC). Since 1980, however, foster care funds have been authorized separately, under title IV-E of the Social Security Act. From 1980 through 1996, States could claim reimbursement for a portion of foster care expenditures on behalf of children removed from homes that were eligible for the pre-welfare reform AFDC program, so long as their placements in foster care met several procedural safeguards. While the underlying AFDC program was abolished in 1996 in favor of the Temporary Assistance for Needy Families Program (TANF), income eligibility criteria for title IV-E foster care continues to follow the old AFDC criteria as they existed just before welfare reform was enacted. States are reimbursed on an unlimited basis for the federal share of all eligible expenses.
It should be noted that while title IV-E eligibility is often discussed as if it represents an entitlement of a particular child to particular benefits or services, it does not. Instead, a child's title IV-E eligibility entitles a State to federal reimbursement for a portion of the costs expended for that child's care.
Title IV-E remained little changed from its inception in 1980 until the passage of the Adoption and Safe Families Act in 1997 (ASFA). With ASFA, Congress responded to concerns that children were too often left in unsafe situations while excessive and inappropriate rehabilitative efforts were made with the family. It also addressed what was at least a perceived reluctance on the part of child welfare agencies and judges to seek terminations of parental rights and adoption in a timely fashion when reunification efforts were unsuccessful. ASFA clarified the central importance of safety to child welfare decision making and emphasized to States the need for prompt and continuous efforts to find permanent homes for children. These permanent homes might be with their birth families if that could be accomplished safely, or with adoptive families or permanent legal guardians if it could not. ASFA, together with related activity to improve adoption processes in many States, is widely credited with the rapid increases in adoptions from foster care in the years since the law was passed.
ASFA's emphasis on permanency planning has contributed to increasing exits from foster care in recent years, both to adoptive placements and to other destinations including reunifications with parents and guardianships with relatives. Combined with relatively flat numbers of foster care entries, the number of children in foster care has begun to decline, the first sustained decrease since the program was established.
State claims under the title IV-E foster care program have always grown more quickly than the population of children served. But the recent declines in the number of children in foster care have substantially curbed the tremendous growth the program experienced during the 1980s and 1990s. The number of children in foster care began declining slowly in 1999 after more than doubling in the preceding decade. Federal foster care program expenditures grew an average of 17 percent per year in the 16 years between the program's establishment and the passage of the Adoption and Safe Families Act (ASFA) in 1997. During that period, in only 3 years did growth dip below 10 percent. However, in the five years since ASFA was enacted, program growth has averaged only 4 percent per year. While some of the growth through 1997 paralleled an increasing population of children in foster care, spending growth far outpaced growth in the number of children served. Improvements in States' ability to claim reimbursement and expanded definitions of administrative expenses in the program also contributed to funding growth. Figure 1 displays the growth in foster care expenditures and the number of children in foster care funded by title IV-E.
Figure 1.
Federal Claims and Caseload History for Title IV-E Foster Care
The major appeal of the title IV-E program has always been that, as an entitlement, funding levels were supposed to adjust automatically to respond to changes in “need,” as represented by State claims. Annual discretionary appropriations were unnecessary to accommodate changing circumstances such as a larger population of children in foster care. The automatic adjustment features of the entitlement structure remain a strength, however, only so long as they respond appropriately and equitably to factors that reflect true changes in need and that promote the well-being of the children and families served. There is little reason to assume this is true at present. Figure 1 shows that funding levels and caseloads have not closely tracked one another for over a decade, and indeed since 1998 have been moving in opposite directions.
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Documenting Eligibility and Claiming Foster Care Funds is Burdensome
In order to receive federal foster care funds, States are required to determine a child's eligibility, and must document expenditures made on behalf of eligible children. This documentation becomes the basis for expenditure reports which are filed quarterly with the federal government. The federal share of eligible expenditures may then be “drawn down” (i.e. withdrawn from federal accounts) by States. While good estimates of the time and costs involved in documenting and justifying claims are not available, such costs can be significant.
As laid out in law and regulations, there are four categories of expenditures for which States may claim federal funds. Each of these is matched at a particular rate that varies from category to category. In addition, the match rate for foster care maintenance payments varies from State to State and may be adjusted from year to year. These categories are:
foster care maintenance payments for eligible children (matched at the Medicaid rate which varies by State and by year, but currently ranges from 50 to 80%)
short- and long-term training for State and local agency staff who administer the title IV-E program, including those preparing for employment by the state agency, as well as for foster parents and staff of licensed child care institutions in which title IV-E eligible children reside (75% federal match)
administrative expenditures necessary for the proper and efficient administration of the program (50% federal match)
costs of required data collection systems (50% federal match)
With so many different categories of expenses, each matched at a different rate, States must accurately track spending in each of these categories and attribute how much of their efforts in each category are being made on behalf of eligible children. States report that doing so is cumbersome, prone to dispute, and does not accomplish program goals. Adding an additional layer of complexity, costs must be allocated to those programs which benefit from the expenditures, a standard practice in federal programs. A State's cost allocation plan is approved by the federal government and distributes expenses that relate to multiple programs and functions.
The categories of administrative and training expenses are typically the most difficult to document and the most often disputed. Federal regulations (45 CFR 1356.60) provide the following examples of allowable administrative expenses:
eligibility determination and re-determination, plus related fair hearings and appeals
referral to services
preparation for and participation in judicial determinations
placement of the child
development of the case plan
case reviews
case management and supervision
recruitment and licensing of foster homes and institutions
rate setting
a proportionate share of agency overhead
costs of data collection systems
There is an ambiguous dividing line between an administrative expense such as case management and ineligible service costs, such as counseling. Such activities may be performed by the same staff and sometimes in the same session with a client. This makes accurate claiming difficult and gives rise to frequent disputes about allowable expenditures. For this reason, administrative costs are much more frequently the subject of disallowances than are other funding categories.
The ability of States to claim title IV-E funds spent on training activities is confounded by statutory and regulatory provisions that are mismatched with how State agencies currently operate their programs. For instance, while many States now contract with private service providers for administrative functions such as those listed above, they receive lower rates of federal reimbursement of their costs for training these workers to perform these functions. Only costs incurred by the State in the training of State and local agency workers and those preparing for employment with the state agency can be reimbursed under title IV-E at the enhanced, 75 percent match rate (rather than the 50 percent match rate for administrative expenses). Furthermore, only public funds or expenditures can be used to match title IV-E training funds. It is common practice to consider the staff time and other resources of a state university as match for federal funds when training child welfare agency employees. However, this practice disadvantages States that utilize private colleges and universities for training and limits the training resources available, particularly in rural States where the number of State universities and colleges are limited and at great distances from those people requiring the training.
Just as claiming rules are complex, requirements for children's title IV-E eligibility are also cumbersome. Several eligibility requirements must be met in order to justify the title IV-E claims made on a child's behalf. These are described in the text box below. Some of these apply at the time a child enters foster care, while others must be documented on an ongoing basis. Most of these are procedural requirements intended to protect children from potential harm caused by inattentive agencies and systems. It is unclear, however, that they function reliably as eligibility criteria. For example, the fact that judicial determinations routinely include “reasonable efforts” and “contrary to the welfare” determinations may represent a judge's careful consideration of these issues, or may simply appear because prescribed language has been automatically inserted into removal orders. These process requirements were essential when federal oversight was limited to assuring the accuracy of eligibility determinations. However, now that the Child and Family Review process (discussed in some detail in a later section) provides comprehensive assessments of States' child welfare programs, some of what are currently individual eligibility criteria could be addressed more effectively as part of the systemic assessment process.
The eligibility criterion that is most routinely criticized by States and child welfare advocates is the financial need criteria as was in effect under the now-defunct AFDC program. As noted above, this requirement relates to the historical origins of the foster care program as part of the welfare system. However, there is no policy reason that the federal government should “care” (in monetary terms) more about children in imminent danger of maltreatment by parents who are poor than it does about children whose parents have higher incomes. The requirement is particularly peculiar because the AFDC program was eliminated in favor of Temporary Assistance for Needy Families in 1996. Therefore the means test used for title IV-E no longer parallels the income and asset limits for existing welfare programs. And since this so-called “look back” provision did not index the 1996 income and asset limits for inflation, over time their value will be further eroded. Fewer children will be eligible for title IV-E in the future as income limits for the program remain static while inflation raises both incomes and the poverty line.
Eligibility Requirements for Title IV-E Foster Care
Contrary to the welfare determination. A child's removal from the home must be the result of a judicial determination to the effect that continuation in the home would be contrary to the child's welfare, or that placement in foster care would be in the best interest of the child. Children in foster care as a result of a voluntary placement agreement are not subject to this requirement.
Reasonable efforts determination. The State agency must obtain a judicial determination within 60 days of a child's removal from the home that it has made reasonable efforts to maintain the family unit and prevent the unnecessary removal of a child from home, as long as the child's safety is ensured. In addition, there must be ongoing documentation that the State is making reasonable efforts to establish and finalize a permanency plan in a timely manner (every 12 months).
State agency placement and care responsibility. The State child welfare agency must have responsibility for placement and care of the child. Usually this means the child is in the State's custody. A tribal agency or other public agency may have responsibility for the child's placement and care if there is a written agreement to that effect with the child welfare agency.
Pre-welfare reform AFDC eligibility. The State must document that the child was financially needy and deprived of parental support at the time of the child's removal from home, using criteria in effect in its July 16, 1996 State plan for the Aid to Families with Dependent Children program. Income eligibility and deprivation must be redetermined annually.
Licensed Foster Family Home or Child Care Institution. The child must be placed in a home or facility that meets the standards for full licensure or approval that are established by the State.
Criminal background checks or safety checks. The State must provide documentation that criminal records checks have been conducted with respect to prospective foster and adoptive parents and safety checks have been made regarding staff of child care institutions.
Special Requirements in the Case of Voluntary Placements. If a child is placed in foster care under a voluntary placement agreement, title IV-E eligibility rules apply slightly differently. Determinations that remaining in the home is contrary to the child's welfare and that reasonable efforts have been made to prevent placement are not required in these cases. However, if the child is to remain in care beyond 180 days, a judicial determination is required by that time indicating that continued voluntary placement is in the child's best interests.
That each child's eligibility depends on so many factors, some of which may change from time to time, makes title IV-E a potentially error-prone program to which there is recurrent pressure for accuracy, close procedural scrutiny, and the taking of disallowances. On the other hand, the potentially large sums involved mean that disallowances are met with procedural disputes, appeals, and protests from agency directors, legislators, and governors. Yet it is not at all clear that the time and effort spent tracking eligibility criteria results in better outcomes for children. For all the complexity of the eligibility process, the number of States out of compliance is actually quite low.
Compliance with eligibility rules is monitored through Title IV-E Eligibility Reviews that have been conducted since 2000. Fifteen of the forty-four States reviewed by the end of 2003, plus the District of Columbia and Puerto Rico, were found not to be in substantial compliance with IV-E eligibility rules. The remainder had minimal errors in their eligibility processes and were generally operating within program eligibility rules. Even among the States required to implement corrective action plans, several are not far from compliance levels.
Of those States not in substantial compliance, the pattern of errors varied. The most widespread problems relate to reasonable efforts to make and finalize permanency plans. Ten states had large numbers of errors in this category and 44% of all errors involved reasonable efforts violations. In most cases these are cases with late or absent permanency hearings, that is States were not operating within the time frames laid out by the Adoption and Safe Families Act. Four States had frequent licensing problems, usually that children were placed in unlicensed foster homes (23% of all errors). Three States had significant errors related to the application of pre-welfare reform AFDC eligibility criteria (11% of all errors). Two States had quite a few missing criminal background checks on foster parents (8% of all errors). There were very few errors with respect to “contrary to the welfare” determinations, placement and care responsibility, or extended voluntary placements. A full listing of errors documented in eligibility reviews through Fiscal Year 2003 appears in Table 1.
Table 1.
Distribution of Errors Among States Found Not in Substantial Compliance with Title IV-E Eligibility Rules State Found Not in Compliance Number Cases Found Ineligible Licensing Problems Lacking Criminal Background Checks Reasonable Efforts Violations Missing Contrary to the Welfare Determinations Child Welfare Agency Lacks Placement and Care Responsibility Extended Voluntary Placement without Court Approval 1996 AFDC Criteria Not Met Disallowance Amount
New Jersey 2000 Initial Primary 44 33 0 14 0 4 3 3 $269,903
Kansas 2000 IP 16 6 0 6 7 0 0 10 $74,265
Maine 2001 1P 24 22 0 3 0 2 0 3 $182,737
Hawaii 2001 IP 25 0 18 1 0 2 1 3 $238,432
Iowa 2001 IP 22 0 3 6 6 0 0 15 $156,915
Vermont 2002 IP 26 2 0 4 7 4 0 14 $312,918
Maryland 2002 IP 37 3 1 36 1 0 0 1 $601,820
Wisconsin 2002 IP 23 3 0 13 4 2 2 1 $206,833
New York 2003 IP 31 0 0 26 7 4 2 5 $806,811
New Jersey 2003 Secondary 56 27 4 36 5 6 7 1 $6,220,853
District of Columbia 2003 IP 54 39 24 19 4 7 1 2 $1,416,169
Puerto Rico 2003 IP 70 17 7 98 7 0 0 26 $271,056
Montana 2003 Primary 22 1 0 28 2 1 1 0 $317,752
West Virginia 2003 P 25 4 0 20 0 0 1 0 $451,305
Alabama 2003 P 23 2 2 19 1 0 1 1 $174,856
Mississippi 2003 IP 10 9 0 3 1 0 0 0 $8,133
Arkansas 2003 IP 10 6 3 0 0 0 0 1 $67,067
Total Cases with Errors 518 $11,777,825
TOTAL ERRORS 757 174 62 332 52 32 19 86
Percent of all errors 23% 8% 44% 7% 4% 3% 11%
Notes:
During 2000 to 2003, 50 states plus the District of Columbia & Puerto Rico were reviewed; of these 35 were found to be in substantial compliance and 17 not in substantial compliance.
Six states (PA, MA, FL, TN, MN, & MI) have not been reviewed.
Six states (KS, NJ, WV, AL, TX, & MT) have had an initial primary plus a primary or secondary review.
Substantial compliance is defined as less than 8 errors for an initial primary review or 4 errors in a primary review. In secondary reviews substantial compliance is calculated as a percentage of cases and/or dollars.
Ineligible cases may have more than one error reason.
Licensing errors were usually children placed in unlicensed homes. In Maine, most errors were foster homes that lacked a fire inspection. Most reasonable efforts violations were late/absent permanency hearings.
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Differing Claiming Practices Result in Wide Variations in Funding Among States
States vary widely in their approaches to claiming federal funds under title IV-E. Some are quite conservative in their claims, counting only children in clearly eligible placements and defining administrative costs narrowly. Other States have become more skilled in the administrative processes necessary to justify more extensive title IV-E claims. Further, not all States have the financial means or budgetary inclination to invest in the full array of foster care related services for which federal financial participation might be available. The result of these different approaches is a complex pattern of title IV-E claims covering a great range of funding levels. However, the disparities in title IV-E claiming are so wide and so lacking in pattern as to undermine the rationale for the complex claiming rules.
Figure 2 shows the average amount of funds each State claimed from the federal government for title IV-E foster care during FY2001 through FY2003, shown as dollars per title IV-E eligible child so as to make the figures comparable across States. That is, for each State the three year average annual federal share in each spending category is divided by the three year average monthly number of title IV-E eligible children in foster care, to give an average, annualized cost per child. Three year averages are used to smooth out claiming anomalies that may occur in a single year because of extraordinary claims or disallowances.
There is a wide range in the amounts claimed as well as in the division of claims between maintenance payments and the category that includes both child placement services and administration. These are the two principal claiming categories. The remaining categories, training and demonstrations, were relatively small in most States. Spending on State Automated Child Welfare Information Systems (SACWIS) has been excluded since these system development costs can vary substantially from year to year in ways unrelated (at least in the short term) to services for children.
Figure 2.
States’ Foster Care Claims — Federal Funds
(excluding SACWIS) per IV-E Child (average of fiscal years 2001 to 2003)
Total federal claims per title IV-E child (averaged across three years), excluding funds for the development of State Automated Child Welfare Information Systems (SACWIS), ranged from $4,155 to $33,091. The median value was $15,914. The range in maintenance claims was $2,829 to $20,539 per title IV-E child, with a median of $6,546. Claims for child placement services and administration ranged from $1,190 to $23,724 per title IV-E child, with a median value of $6,840. These per-child amounts reflect only the federal share of title IV-E costs, which vary according to the match rates used for different categories of expenses. If one were to include the State share in such calculations, the expenditure figures would be substantially higher. This discussion has been framed in terms of the variation in federal share so as to best illustrate and isolate issues related to the federal funding rules.
As shown in figure 3, the balance between maintenance and administrative claims also varies considerably among the States. Claims for child placement and administration vary from 10 cents per dollar claimed of maintenance to $4.34. Six States claim less than 50 cents in administration for every maintenance dollar claimed, while 9 States claim more than $2 in administration for every dollar of maintenance. These differences reflect the extent to which States use a wide or narrow definition of child placement and administrative costs. In addition, some States claim administrative expenses for non-IV-E children as “title IV-E candidates” over extended periods of time, even if those children or the placement settings they reside in never qualify under eligibility rules. In such States this drives up administrative costs as a proportion of total title IV-E payments. A Notice of Proposed Rulemaking published by HHS January 31, 2005 proposes to prohibit this practice except under limited circumstances.
Figure 3.
Administrative Dollars Claimed per Dollar of Foster Care Maintenance Varies Widely
(calculated on the basis of average claims FY2001 through FY2003)
Below, factors such as the quality of child welfare services are examined in relation to the funding differences across States. Here it is simply observed that the spread of claims is far wider than one would expect to see based on any funding formula one might rationally construct. It is unlikely that differences this large are the result of actual differences either in the cost of operating a foster care program or reflect actual differential needs among foster children across States.
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The Current Funding Structure Has Not Resulted in High Quality Services
If State and local child welfare systems were generally functioning well, most of those concerned might take the view that the approximately $5 billion in federal funds, and even more in State and local funds, was mostly well spent. In fact, however, knowledgeable observers are hard-pressed to name systems that are functioning well overall. Typically one aspect of an agency's efforts may be lauded, while serious weaknesses are acknowledged in other areas. Even so, good evidence of system performance has, until recently, been hard to come by.
After several years of development and pilot testing, the Children's Bureau in 2000 began conducting Child and Family Services Reviews (CFSRs) in each State. These reviews, which include a data-driven Statewide Assessment and an onsite review visit by federal and State staff, are intended to identify systematically the strengths and weaknesses in State child welfare system performance. Once areas of weakness are identified, States are required to develop and implement Program Improvement Plans (PIPs) designed to address shortcomings. During onsite
reviews, teams examine a sample of case files of children with open child welfare cases and interview families, caseworkers and others involved with these cases to determine whether federal standards have been met. System stakeholders such as child advocates and judges are also interviewed. In addition to examining practice in specific cases, the reviews also examine systemic factors such as whether the States' case review system, training, and service array are adequate to meet families' needs. Overall, 47 specific factors are rated and then aggregated to assess whether or not “substantial conformity” with federal requirements is achieved in seven child outcomes and seven systemic factors (shown in the text box below).
Outcomes and Systemic Factors Examined
in Child and Family Services Reviews
Outcomes
Children are first and foremost, protected from abuse and neglect.
Children are safely maintained in their homes whenever possible and appropriate.
Children have permanency and stability in their living situations.
The continuity of family relationships and connections is preserved for children.
Families have enhanced capacity to provide for their children's needs.
Children receive appropriate services to meet their educational needs.
Children receive adequate services to meet their physical and mental health needs.
Systemic Factors
Statewide Information System
Case Review System
Quality Assurance System
Training
Service Array
Agency Responsiveness to the Community
Foster and Adoptive Parenting Licensing, Recruitment and Retention
As described above, there are 14 areas in which a State might be determined in or out of substantial compliance during its Child and Family Services Review. Figure 4 shows the distribution of State performance on initial reviews among all 50 States and the District of Columbia. Median State performance was to be in substantial compliance in 6 of 14 areas. States reviewed to date have ranged from meeting standards in 1 area to 9 areas. While simply counting the areas of compliance presents a very general, simplified and broad-brush approach to evaluating child welfare system quality, the purpose here is not to analyze system performance in any detailed fashion. It is simply to recognize that most States achieved substantial compliance in fewer than half of areas examined, and that all systems reviewed have been in need of significant improvement. Indeed, in the area of permanency and stability in their living situations, an area of crucial importance to children in foster care, no State has yet met federal standards in this area, although a few approach them. Clearly the current federal funding structure has not, to date, resulted in a child welfare system that achieves outcomes with which we may be satisfied.
Figure 4.
Summary of Results for Child and Family Services Reviews
(for 50 states plus DC)
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States' Title IV-E Claiming Bears Little Relationship to Service Quality or Outcomes
Even if not achieving high quality overall, one might expect and hope that spending variations among States might relate to the overall quality of child welfare systems as revealed in results of the Child and Family Services Reviews. Analyses presented below relate the variations in claiming patterns among States described above to child welfare system performance.
Figure 5 shows per child claims plotted against the number of areas measured in the CFSR in which the State was found to be in substantial compliance. The three states with the highest claims per child were in compliance with 3, 5, and 7areas respectively of the 14 possible areas of compliance in their first Child and Family Services Review. Average per-child claims did not differ appreciably between the highest and lowest performing states. The eight states that were in compliance in the fewest areas (1, 2 or 3 of 14) averaged $19,293 in federal funds per title IV-E child, while the 12 highest performing states (in compliance with 8 or 9 of the 14 areas) averaged claims of $19,824 per child. There are States with relatively high- and low-federal claims at each level of CFSR performance.
Figure 5.
Child and Family Services Review Compliance Is
Only Weakly Related to Levels of Title IV-E Foster Care Funds
Claimed Per Eligible Child
(data shown for 50 states plus DC)
Claiming levels similarly bear little relationship to States' performance in achieving permanency for children in foster care. Figure 6 plots each State's federal claims for the title IV-E foster care program per title IV-E eligible child against the percentage of children in foster care for whom permanency is achieved. Permanency data, from the States' Child and Family Services Reviews, shows that States' success in either reunifying children with parents within one year or finalizing an adoption within two years of foster care entry varies widely. Six States achieve permanency within these time frames for under one-third of children in foster care, while five either approach or exceed the national standard of 90 percent. Most perform somewhere in between. The wide disparities among States' performance on what is a key child welfare function seem unconnected to the amount of federal funds claimed from the major source of federal child welfare funding, the title IV-E foster care program.
Figure 6.
Permanency Outcomes Are Unrelated to Levels of State Title IV-E Foster Care Claims
(data shown for 50 states plus DC)
If claims levels are not strongly related to child welfare system quality or outcomes, what other factors might be involved in determining spending? Variation among States in the actual foster care rates paid to families caring for children bears only a weak relationship to per-child foster care claims levels (Figure 7). As an example, four of six States with basic maintenance payments in 2000 of less than $300 per month for a young child had higher than median levels of claims per child. These four States also had higher federal claims per child than did four of seven States which in 2000 paid basic maintenance rates of higher than $500 per month for young children. Patterns of residential care use among States are similarly unrelated to claiming disparities.
Figure 7.
Foster Care Maintenance Rates Are Weakly Related to Foster Care Claims
Wide disparities in federal claims might be viewed as positive if States were achieving better outcomes with higher spending. This argument does not hold up to scrutiny, however, in the face of Child and Family Services Review results. The findings of these reviews are disappointing even in States with relatively high costs. Of course, because title IV-E is the focus here, this analysis only includes foster care costs. States' spending on other child welfare services may contribute to performance. The wide variety of these other potential funding sources and their variability among the States, however, makes it quite difficult to examine them in a consistent fashion.
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The Current Funding Structure is Inflexible, Emphasizing Foster Care
Title IV-E has long been criticized because it funds foster care on an unlimited basis without providing for services that would either prevent the child's removal from the home or speed permanency (see, for example, The Pew Commission on Children in Foster Care, 2004 and McDonald, Salyers and Shaver 2004). Funding sources for preventive and reunification services, primarily the Child Welfare Services Program and the Promoting Safe and Stable Families Program funded under title IV-B of the Social Security Act, are quite small in comparison with those dedicated to foster care and adoption. As shown in Figure 8, foster care funding under title IV-E made up nearly two-thirds (65%) of federal funding dedicated to child welfare purposes in Fiscal Year 2004. Adoption Assistance funding (also authorized under title IV-E) represents another 22%. Funding sources that may be used for preventive services (but which also fund some foster care and adoption related services), including funds from the title IV-B programs and the discretionary programs funded from authorizations in the Child Abuse Prevention and Treatment Act, represent 11% of federal child welfare program funds.
Figure 8.
Federal Child Welfare Funding, FY2004
Other federal social services programs such as the Social Services Block Grant (SSBG) and Temporary Assistance for Needy Families (TANF) also fund some services for families experiencing or at risk of child welfare involvement, as can Medicaid. These funding streams are not intended primarily for these purposes, however, and, with the exception of SSBG, available program data does not break out spending on child welfare related purposes. (The Fiscal Year 2002 annual expenditure report for the SSBG program (HHS, 2004) shows that states spent a total of $634 million in SSBG funds for child welfare services that year.) Surveys and analysis conducted by private research organizations indicate these funding sources provide considerable funding for child welfare services, though much of that is still concentrated on out-of-home care. Studies conducted by the Urban Institute found that in State Fiscal Year 2002 these “non-traditional” federal child welfare funding sources (primarily SSBG, TANF and Medicaid) paid for just over $5 billion in child welfare services. Of this total, $2.1 billion was spent on out-of-home placements, $1.3 billion paid for other services including prevention and treatment, $419 million went to administrative activities, and $98 million funded adoption services. States were unable to categorize purposes on which the remainder of funds were spent, nearly $700 million (Scarcella, Bess, Zielewski, Warner and Geen, 2004).
Some have argued that because foster care is an entitlement for eligible children while service funds are limited, title IV-E encourages foster care placement. However, it seems unlikely that caseworkers make placement decisions on the basis of children's title IV-E eligibility, nor is it likely that judges use title IV-E status as a significant factor in their placement rulings. Indeed, caseworkers and judges are often unaware of children's eligibility status. A lack of available family services, however, could plausibly tip caseworkers' decisions toward placement or delay a child's discharge. Quantifying such effects is difficult, however.
Many in the child welfare field believe that with more flexibility in funding States would devote additional resources to preventive and reunification services, and that better outcomes for children and families could be achieved. Since 1996, Child Welfare Demonstration Projects in 17 States have generated evidence about the effects of allowing State and local agencies to use federal foster care funds more flexibly, either for children not normally eligible for title IV-E or for services title IV-E would could not otherwise cover. While most of the States tested a single, specific alternative use for foster care funds, such as guardianship subsidies or improved interventions for parents with substance abuse problems or children with serious mental health conditions, four States are testing broader systems of flexible funding that resemble the Administration's proposal for a Child Welfare Program Option. These demonstrations are operating in Indiana, North Carolina, Ohio, and Oregon. In each case, the State provides counties a fixed allotment of title IV-E funds which then may be used to pay for services to prevent foster care placement, facilitate reunification, or otherwise ensure safe, permanent outcomes for children.
Evaluation results to date are encouraging. While the demonstrations did not always achieve their goals, in no case did outcomes for children deteriorate as a result of increased flexibility. North Carolina found flexible funding contributed to declines in the probability of out-of-home placement following a substantiated child abuse or neglect report. Demonstration counties in Ohio expressed increased support for prevention activities and were more likely than traditionally funded counties to create new or expanded prevention services. And in Oregon, the combination of demonstration funds and the State's System of Care Initiative dramatically improved the likelihood that at-risk children could remain safely in their homes rather than being placed in foster care. It should be noted that demonstration projects did not provide any more title IV-E funds than the State would have received in the absence of a demonstration. The projects were cost-neutral. States were granted only the flexibility to spend funds in broader ways than is normally allowed.
Flexible spending alone will not address the weaknesses in child welfare systems around the country. But such flexibility can allow strong local leaders to implement practice improvements more easily and thereby generate improved outcomes. Among the types of practice changes implemented in flexible funding demonstrations are strengthened family assessments; enhanced visitation; intensive family reunification services; family decision meetings; and improved access to substance abuse and mental health treatment. That nearly half of States have implemented waiver demonstrations indicates widespread interest in more flexible funding for State child welfare programs. Interest in flexible funding has grown now that many States have successfully implemented new service models while enhancing, or at least not compromising, safety, permanency and child well-being.
In recognition that flexibility can produce best results when accompanied by enhanced funding, the Bush Administration has consistently supported funding increases for child welfare. In particular, HHS budgets from FY2002 through FY2005 each included substantial proposed increases for the Promoting Safe and Stable Families Program, in the amount of $1 billion over five years. However, Congress each year appropriated substantially less than the requested amount. For FY2005, the Administration also proposed substantial increases for several key child abuse prevention efforts authorized under the Child Abuse Prevention and Treatment Act which again were not funded by Congress.
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The Financing Structure Has Not Kept Pace with a Changing Child Welfare Field
A great deal has changed in the world of child welfare since the federal foster care program was established. The program initially created in 1961, however, has continued without major revision to its financing structure. The result is a funding stream seriously mismatched to current program needs. The goals of the child welfare system are to improve the safety, permanency and well-being of children and families served. By requiring that the great majority of federal funding for child welfare services be spent only on foster care, the financing system undermines the accomplishment of these goals.
Title IV-E funding was designed with the intention that the program funding would adjust automatically to changes in social need. However, it is difficult to conclude from claims levels that social need has been the driving force behind spending patterns that vary wildly from State to State. Service practices seem to have adjusted to the funding, rather than vice versa. Throughout the program's history, growth far outpaced changes in the population of children being served. And while current growth has slowed considerably, declines in the number of children in foster care have not yet translated into lower program claims. The recent stabilization of the program's funding, however, makes this a good time to re-examine the structure of title IV-E and whether that funding structure continues to meet the needs of the child welfare field. Since the number of children in foster care is expected to be flat or declining for the foreseeable future, there is less short-term risk in potential financing system changes than is the case when needs are rapidly escalating.
Improved preventive and family support services for children and families at risk of foster care placement, therapeutic care and remediation of problems for families with children in foster care, and post-discharge services for families after children leave out of home care, are each essential to the achievement of the child welfare system's goals. Yet these are precisely the services that title IV-E is least able to support. The result has been child welfare systems unable to achieve positive outcomes for children. This weak performance has been documented by Child and Family Services Reviews conducted across the nation. But as States develop and implement Program Improvement Plans, title IV-E funds are largely unavailable to address the challenges.
From complex eligibility criteria based in part on a program that no longer exists, to intricate claiming rules that demand caseworkers' every action be documented and characterized, title IV-E is a funding stream driven toward process rather than outcomes. With the advent of the Child and Family Services Reviews, and systemic improvements initiated in response to the Adoption and Safe Families Act, Congress and the Department of Health and Human Services have made significant strides toward re-orienting child welfare programs to be outcomes focused. Until the funding is structured to support these outcomes, however, improvements may be constrained.
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Proposed Child Welfare Program Option Described
The President's FY2006 budget once again proposes to create a Child Welfare Program Option which would allow States a choice between the current title IV-E program and a five year capped, flexible allocation of funds equivalent to anticipated title IV-E program levels. This concept was first proposed by the President for FY 2004. While the last Congress did not complete work on child welfare financing, the Administration continues to call for consideration of financing reform. The President's proposal has a number of distinct advantages over both current law as well as in contrast to more traditional block grants that have been considered in the past.
The Child Welfare Program Option would allow States to use title IV-E funds for foster care payments, prevention activities, training and other service-related child welfare activities B a far broader range of uses than allowed under current law. Increased flexibility will empower States to develop child welfare systems that support a continuum of services for families in crisis and children at risk while being relieved of the administrative burden created by current federal requirements, including the need to determine the child's eligibility for AFDC.
Child safety protections under current law would continue under the President's proposal. These include requirements for conducting criminal background checks and licensing foster care providers, obtaining judicial oversight of decisions related to a child's removal and permanency, meeting permanency time lines, developing case plans for all children in foster care, and prohibiting race-based discrimination in foster and adoptive placements.
In contrast to some previous flexible funding proposals, the President's Child Welfare Program Option would be an optional alternative to the current financing system. States desiring the flexibility it would afford could opt in during the initial program year for a five year period. State allocations would be based on historic expenditure levels and would be calculated to be cost-neutral to the federal government over a five year period. A State could choose to receive accelerated, up-front funding in the early years of the program in order to make investments in services that are likely to result in cost savings in later years. The proposal includes a maintenance of effort requirement to ensure that those States selecting the new option maintain their existing level of investment in the program. But those States unwilling to accept the risk and the promise of flexibility could choose to continue operating under current program rules.
To address fears that some future social crisis might create unexpected and unforeseeable child welfare needs, the President has also proposed to allow participating States access to the TANF Contingency Fund if unanticipated emergencies result in funding shortfalls. Specific criteria would govern the circumstances under which States could withdraw funds from this source. This feature, too, responds to concerns expressed in past child welfare financing discussions.
The proposal includes two set asides within the Child Welfare Program Option. The first would provide some Tribes direct access to title IV-E funds. Under current law Tribes may only receive title IV-E funds through agreements with States. Through a proposed $30 million set aside in the CWPO, however, tribes demonstrating the capacity to operate foster care programs could receive direct funding to do so and would be subject to similar program requirements as States.
A second set aside would dedicate a relatively small amount of funds to facilitate program monitoring, technical assistance to support the efforts of State and tribal child welfare programs, and to conduct important child welfare research. These funds will ensure that sufficient resources are available to understand how the new option affects child welfare services and outcomes for children and families, and to support States in their efforts to reconfigure programs to achieve better results.
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Benefits of the Proposed Child Welfare Program Option
The Child Welfare Program Option would allow innovative State and local child welfare agencies to eliminate eligibility determination and drastically reduce the time now spent to document federal claims. This effort could then be redirected toward services and activities that more directly achieve safety, permanency and well-being for children and families. Investments in preventive services and improved case planning could also reduce foster care needs. States taking child welfare funds through the Option would be held accountable for their programs through Child and Family Services Reviews and standard audit requirements. But these States would no longer be required to document expenditures in the level of detail now required to justify federal matching funds. The flexibility afforded by the Option would allow agencies to direct funds to those activities most closely addressing families' needs. HHS could then focus more fully on partnerships with States to achieve positive outcomes for children and families.
The proposed Child Welfare Program Option (CWPO):
Creates Structural Incentives for Better Outcomes. The CWPO provides incentives for child welfare system improvement because it is through better outcomes that a State would “win” under the program. With a fixed funding level, States would be better off financially if children either stay at home safely, return home quickly, or are placed in adoptive homes (since Adoption Assistance would remain an entitlement). Since these are also the preferred outcomes for children, the program creates structural incentives that are in line with program goals.
Facilitates Quality Improvement. The CWPO would encourage States to fund service improvements, particularly those called for in their Program Improvement Plans (PIPs) by allowing federal funds to be used for the full range of activities contemplated under the PIPs. In contrast with current law, States operating under the CWPO that are successful in reducing the need for foster care will be able to reinvest their title IV-E funds in other child welfare services rather than losing them to diminished foster care claims.
Reduces Burden. Under the CWPO, the level of documentation required of States in order to receive federal child welfare funds would be reduced dramatically. While States would still be required to spend funds on child welfare services, they would no longer need to justify to the federal government for funding purposes precisely which services were delivered to which children. State and local funding decisions could in turn be made more in line with the needs of children and families without respect to whether the specific activity were reimbursable under title IV-E.
Increases Flexibility. The restrictions in current law regarding which child welfare services may be provided with federal funds constrain State and local decision making regarding service offerings. The increased flexibility afforded by the CWPO will provide officials closest to child welfare cases with additional funding options, potentially leading to a more comprehensive service array for children and families.
Promotes Ongoing Programmatic Adaptation and Innovation. The current system for claiming federal funds encourages status quo programming through its documentation requirements and close scrutiny of categories in which funding levels change significantly from year to year. States risk disallowances if they change how they claim or the services for which they claim federal funds. Alternatively, under current law innovation may be implemented without federal financial participation, a relatively costly option. The CWPO, on the other hand, would enable states to innovate using their federal foster care funds. Funds could be shifted among child welfare functions without concern for artificial expenditure categories or differential matching rates. The result is likely to be increased attention to outcomes for children and an improved ability to focus funding on strategies most likely to result in improved performance.
This paper has described the funding structure of the title IV-E foster care program and documented a number of its key weaknesses. In particular, the combination of detailed eligibility requirements and complex but narrow definitions of allowable costs force a focus on procedure rather than outcomes for children and families. Rules which have built up over the years cumulatively fail to support the program's goals of safety, permanency and child well-being. In addition, the restrictiveness of the federal foster care program prevents States from using these funds, by far the largest source of federal funding dedicated to child welfare activities, to implement many important elements in their Program Improvement Plans. These plans have been required of all States to address weaknesses in their programs detected during Child and Family Services Reviews. The Administration's proposed Child Welfare Program Option is intended to introduce flexibility while maintaining a focus on outcomes, retaining existing child protections, and providing a financial safety net for states in the form of access to the TANF Contingency Fund during unanticipated and unavoidable crises. The result will be a stronger and more responsive child welfare system that achieves better results for vulnerable children and families.
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References
Scarcella, Cynthia Andrews, Bess, Roseana, Zielewski, Erica Hecht, Warner, Lindsay, and Geen, Rob (2004). The Cost of Protecting Vulnerable Children IV. Washington, DC: The Urban Institute. Available online at: http://www.urban.org/Template.cfm?Section=ByAuthor&NavMenuID=63&template=/TaggedContent/ViewPublication.cfm&PublicationID=9128.
Committee on Ways and Means, U.S. House of Representatives (1992). 1992 Green Book. Washington, DC: U.S. Government Printing Office.
Committee on Ways and Means, U.S. House of Representatives (2004). 2004 Green Book. Washington, DC: U.S. Government Printing Office. Available online at: http://waysandmeans.house.gov/Documents.asp?section=813.
Frame, Laura (1999). “Suitable homes revisited: An historical look at child protection and welfare reform.” In Children and Youth Services Review, Vol 21, Nos. 9/10, pp. 719-754.
McDonald, Jess, Salyers, Nancy, and Shaver, Michael (2004). The Foster Care Straightjacket: Innovation, Federal Financing and Accountability in State Foster Care Reform. Urbana-Champaign: Child and Family Research Center, School of Social Work, University of Illinois. Available online at http://www.fosteringresults.org/
The Pew Commission on Children in Foster Care (2004). Fostering the Future: Safety, Permanence and Well-Being for Children in Foster Care. Washington, CC: The Pew Commission on Children in Foster Care.
U.S. Department of Health and Human Services (2005). Budget in Brief FY2006. Washington, DC: U.S. Government Printing Office. Available online at: http://www.hhs.gov/budget/docbudget.htm.
U.S. Department of Health and Human Services (2004). SSBG 2002: Helping States Serve the Needs of America's Families, Adults and Children. Washington, DC: Administration for Children and Families. Available online at: http://www.acf.hhs.gov/programs/ocs/ssbg/index.htm
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Note on Data Sources:
Data presented in this report are derived primarily from HHS information sources. Most are publicly available as follows:
Data on title IV-E funding and caseload history (figure 1) are from the “2004 Green Book” published by the U.S. House of Representatives Committee on Ways and Means (tables 11-2 and 11-3). Years not included in the 2004 Green Book may be found in the equivalent table from previous editions. The 2004 Green Book is online at: http://waysandmeans.house.gov/Documents.asp?section=813.
Data for 2002 federal foster care claims is available in 2004 Green Book, table 11-8. Other years used in this report are unpublished HHS data. These data are used in figures 2, 3, 5, 6 and 7.
Final Reports for Child and Family Services Reviews (which contain data used in figures 4, 5 and 6) and Title IV-E Eligibility Reviews (containing data used in table 1) are available online from the Children's Bureau within HHS's Administration for Children and Families at: http://www.acf.dhhs.gov/programs/cb/cwrp/index.htm.
State foster care maintenance rates shown in figure 7 are those reported by the Child Welfare League of America. They are included in the 2004 Green Book, table 11-9.
Data on child welfare funding in figure 8 are derived from 2004 actual figures shown in HHS's FY2006 Budget. Available online at http://www.hhs.gov/budget/docbudget.htm.
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Endnote
1. The August 2005 version contains updates to calculations that incorporate revised Title IV-E foster care caseload data submitted by Ohio. Subsequent to the report’s initial publication, officials in Ohio realized that the number of Title IV-E foster children reported on its program claims forms, which ASPE relied on for the analysis, had been incorrect. This had implications for the claims-per-child calculated in figure 2 and used in figures 5, 6 and 7. The change is most noticeable on figure 2, in which the per-child claims for Ohio have moved down in the rankings. The underlying thesis of the analysis is unaffected by the update.
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* About This Issue Brief
This ASPE Issue Brief on “How and Why the Current Funding Structure Fails to Meet the Needs of the Child Welfare Field” was written by Laura Radel with assistance from staff in the Administration for Children and Families.
The Issue Brief provides an overview of the financing of the federal foster care program, documenting and explaining several key weaknesses in the current funding structure. It also discusses the Administration’s alternative financing proposal, the creation of a Child Welfare Program Option, which would allow States to choose between financing options.
Office of Human Services Policy
Office of the Assistant Secretary for Planning and Evaluation (ASPE)
U.S. Department of Health and Human Services
Washington, DC 20201
Michael J. O'Grady, Ph.D.
Assistant Secretary
Barbara B. Broman
Acting Deputy Assistant Secretary for Human Services Policy
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To obtain a printed copy of this report, send the title and your mailing information to:
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Last revised: 09/07/05
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