Is the Foster Care System Worth Fostering?

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Scholars explore the efficacy of the existing American foster care system.

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Ample research over the past 50 years suggests that children’s health, development, and emotional well-being evolve best in the context of permanent family environments. But despite myriad prevention programs aimed at providing community and social supports to families so that children may remain safely in their homes, hundreds of thousands of children enter foster care each year. In 2021 alone, child welfare agencies removed 206,812 youth from their homes, raising the national foster care population significantly.

Although federal laws and regulations establish overarching standards for child welfare, each state maintains its own set of policies pertaining to child welfare and foster care. Federal Title IV-E of the Social Security Act appropriates annual funding to states, territories, and tribal lands for the placement of children in foster care. This funding is contingent upon specific eligibility requirements such as foster provider licensing and judicial input in child removal.

Generally, state and federal child welfare policies aim to keep children in their parents’ custody by equipping local agencies with the resources to implement prevention programs addressing child neglect and abuse, parent training, and child development. For example, the U.S. Administration for Children and Families’ Permanency Innovations Initiative develops evidence-based intervention strategies for improving the home lives of children at risk of imminent removal, and the 2018 Family First Prevention Services Act supports prevention services and kinship caregivers.

In spite of these preventative measures, one-fifth of children involved in child welfare investigations for neglect or abuse enter foster care, and national data indicates that Black and American Indian children are overrepresented in this population. Consequently, child welfare advocates and professionals worry about discrimination and racial inequity pervading the existing system. More than half of Black children are the subject of a welfare investigation before the age of 18. In addition, welfare agencies have a significant presence in impoverished neighborhoods, where inhabitants largely represent racial minorities and the lack of basic supports to ameliorate economic challenges can impede family stability in the law.

In this week’s Saturday Seminar, scholars discuss the state of foster care regulation in the United States and provide recommendations for change.

  • In her symposium keynote published in the Columbia Journal of Race and Law, Dorothy Roberts of the University of Pennsylvania Carey Law School argues in favor of abolishing the current foster care system. She contends that child protection systems are fundamentally flawed because they operate on logic centered around threatening marginalized families. According to Roberts, the systems’ over-policing of families—specifically Black and Native families—derives from the historical, systematic oppression of minority communities. Roberts maintains that child protection is a multi-billion-dollar apparatus that weaponizes removal threats “to impose surveillance and regulation.” Diverting more money to these agencies would result in greater state intrusion into Black communities, she submits. Rather than trying to reform the status quo, she argues, the U.S. should abandon its carceral systems and focus on developing a common vision for meeting community needs, preventing violence, and caring for children.
  • In an article published in the Stanford Law Review, Josh Gupta-Kagan of Columbia Law School argues that informal custody changes constitute a “hidden foster care system” that evades regulation. Gupta-Kagan explains that informal custody changes occur when child protection agencies facilitate the transfer of physical custody from parents to kinship caregivers without reporting to the government, seeking family court action, or attempting agency custody. He argues that this hidden foster care system often results in long-lasting or permanent changes in child custody, without court oversight or continued agency supervision to ensure the child’s safety. Gupta-Kagan does not advocate prohibition of hidden foster care, but rather increased legislative and executive regulation. Furthermore, he suggests the use of court-imposed reforms to avoid agency coercion and ensure due process.
  • In a forthcoming article in the California Law Review, Sarah H. Lorr of Brooklyn Law School analyzes how family courts have failed to apply the American with Disabilities Act (ADA) and protect children from being unjustly separated from parents with mental disabilities and placed in foster care. Children of parents with disabilities are often removed from their homes and placed in foster care in an effort to “save” them, Lorr explains. She contends that removing children under the guise of protecting them, however, is actually motivated by a societal distrust of disabled people. Lorr explains that the ADA, which aims to prevent discrimination against individuals with disabilities, is often not applied to these cases because many family courts “found that the law did not apply to, and could not be raised in, family court proceedings.” Thus, she discusses, parents with disabilities are often unable to seek justice by bringing claims under the ADA. Rather than reforming the ADA’s legal framework, Lorr argues in favor of altering the family regulation system by changing its focus to developing support systems for Black, Brown, low-income, and disabled communities.
  • According to Alan J. Dettlaff the University of Houston Graduate College of Social Work and co-authors from the Center for the Study of Social Policy, over-surveillance and over-involvement by child welfare agencies disproportionately harm Black children and families. This harm, they explain, contributes to the adverse outcomes spurred by structural and institutional racism such as homelessness, economic hardship, teen childbirth, and low educational attainment. In an article for the Journal of Public Child Welfare, the authors argue that these disparities will only end when removal is no longer seen as an acceptable form of intervention. They advocate abolishing the child welfare system and replacing it with expansive social and community supports such as universal childcare allowances and better developed housing policies to prevent homelessness, which delays family reunification.
  • In a forthcoming article in the Family Court Review, Shanta Trivedi of the University of Baltimore School of Law examines previous attempts to reform the Adoption and Safe Families Act (ASFA). Trivedi explains that Congress ostensibly passed ASFA to encourage adoption within the child foster care system by creating strict timelines for terminating parental rights. She argues, however, that the legislation was enacted out of contempt towards Black families and had the effect of separating Black children from their parents. Trivedi analyzes attempts to reform ASFA, such as the Family First Prevention Services Act, which reallocated federal funds to in-home mental health and substance abuse services, and the Children and Families Act, which modified the timeline for terminating parental rights. Such legislation, however, has only increased the surveillance of Black and low-income families, Trivedi contends. Given that ASFA was the product of racist backlash towards Black families, Trivedi argues, ASFA must be repealed rather than “wasting energy and more resources trying to fix something that is inherently toxic.”
  • In an article published in the Marquette Law Review, Vivek Sankaran of the University of Michigan Law School, Christopher Church of the University of South Carolina School of Law, and Monique Mitchell of the Dougy Center explain that state agencies must make reasonable efforts to prevent removing children from their parents’ custody and report any removals to the federal government. They claim, however, that a lack of uniformity in state agency reporting procedures provides minimal data as to what efforts are being made by officials, and why. They argue that this lack of data and oversight greatly increases the likelihood of needless removal. Sankaran, Church, and Mitchell recommend that child welfare systems implement reforms prohibiting removal by government officials and juvenile courts if there is not a showing that no other option exists to ensure child safety. They also suggest more precise federal data fields to capture specific details about the reasons for removal and all prevention efforts made.
  • In response to recent equal protection challenges to the Indian Child Welfare Act of 1978 (ICWA) and longstanding issues with states’ treatment of Native American children, Ann Laquer Estin of the University of Iowa College of Law contends that citizens of tribal lands must enjoy greater freedom to bring family welfare cases to court. In a recent paper, Estin explains that the ICWA—which grants tribal governments exclusive jurisdiction over child custody proceedings affecting Native American children—applies to foster care placement, termination of parental rights, and adoptive placement but does not extend to other family law proceedings that impact child welfare, such as custody disputes. Although the ICWA requires active efforts be made to prevent breaking up families before a state court may order a foster care placement, she explains, the legislation does not hold the authority to enforce state compliance. With Title IV-E funds slow to reach tribal families, she submits, Native children are at greater risk of entering foster care than their non-Native peers.

The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.