Child Protective Services
In the United States, methods for protecting abused and neglected children have progressed over the years. During the colonial era, the policy was to house pauper children in poorhouses or assign them to apprenticeships, while in the early nineteenth century the preference was to place these children in orphanages and industrial schools run by private societies. During the late nineteenth century and the twentieth century, state child-dependency statutory schemes became prominent, based upon the state's jurisdiction, through parens patriae ("father of the country," used in law to denote the government's power to protect its citizens), to intervene in family affairs for the protection of at-risk children. Contemporary children's services are characterized by a shift in power from state to federal policy control, with a resultant structural uniformity among state child-protection models.
Federal child-protection policy has historically favored family preservation over the institutionalization of dependent minors. As early as 1909, through the White House Conference on the Care of Dependent Children, the federal government identified the importance of the home as the central forum for child development. Until recently, the history of child protection in America has reflected this presumption of family preservation being preferable to moving an at-risk child to a possibly better or safer environment. However, it was not until 1980 that Congress passed the first comprehensive federal child protective services act, the Adoption Assistance and Child Welfare Act (Pub. L. 96-272), which focused on state economic incentives to substantially decrease the length and number of foster care placements. This law also required specific family reunification services, reflecting the goals of the 1909 White House Conference.
In 1997, however, in order to cure many of the defects in the 1980 act, Congress passed the Adoption and Safe Families Act, which shifted the focus from family reunification to the best interests of children in expeditious permanency, which aims to rapidly finalize a permanent custodial home for minors rather than placing them temporarily in a series of different foster homes. Unlike the lengthy reunification services under the 1980 act, which often resulted in the termination of parental rights after two or three years of juvenile court intervention, the 1997 act required states to engage in "concurrent planning" at case intake. The federal goal of child protection had substantially shifted toward the child's individual needs, rather than primarily attempting family reunification through state services. In fact, in cases involving allegations of serious abuse, the 1997 act deleted the prior requirement of state reunification services and permitted states to immediately seek to sever parental rights and place children into the new preferred placement, adoption. The 1997 act created adoption subsidies and incentives to states. This federal adoption preference soon resulted in unprecedented increases in the number of dependent children being adopted.
Problems with the 1997 Act
Even though the 1997 act reduced the time within which dependent children placed outside the home would remain in temporary placements and increased the number of adoptions, it has also created new problems. First, the federal adoption subsidy program has convinced many potential foster parents to become adoptive parents, thus reducing the number of temporary placements for abused children. The adoption subsidy has also driven social service agencies toward decisions to sever parental rights in close cases, rather than continuing family reunification and temporary foster placements.
The greatest impact of this new rush to permanent adoption has been on sibling relationships. Most state statutory schemes do not recognize that significant sibling bonds are a sufficient reason to continue temporary placements, rather than splitting siblings into different adoptive homes. Child welfare theorists argue that the speedy adoption permanency requirement of the 1997 act is having a significant deleterious cultural impact on poor and minority families. "Black families, who dominate foster care caseloads, are the main casualties of this shift away from a service provision toward coercive state intervention, which includes the requirement to relinquish custody of children as a condition of financial assistance" (Roberts, pp. 1641–1642).
Prior to the 1997 act, dependent children often lived with many different foster families in different neighborhoods, and they therefore lacked any continuity in their formal education, either with teachers or with curricula. For instance, in 1993 California foster children "attend[ed] an average of 9 different schools by the age of 18 … [and] demonstrate[d] significantly lower achievement and lower performance in school" (Kelly, pp. 759–760).
This educational discontinuity results in a continuing introduction and departure of new and different friends and teachers, inadequate transfer of educational records, and lost academic credit. Even though "60% of children in foster care have measurable behavior or mental health problems … [and][a]pproximately 35–45% … have developmental problems," most do not receive appropriate diagnosis for special education classes or psychological treatment (Practicing Law Institute, p. 115). It is clear that children with disabilities trapped in this legal maelstrom are not receiving the education promised by the Individuals with Disabilities Education Act, which established legal means "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living."
The Decline in Child Dependency Cases
Child neglect and abuse reports increased an average of 6 percent annually from 1985 to 1991, when the number of reports reached 2.9 million. However, since 1991 there has been a continual decrease in the number sexual abuse reports, with a 26 percent decline from 1991 to 1998 in the number of reports and an average decline for all states of 37 percent in substantiated cases. In Los Angeles County, which has more foster children than any other county in America, the number of foster care children dropped from 18.7 per thousand in 1997 to 13.1 per thousand in 2001, and the number of reported child abuse cases dropped from 71.2 reports per thousand in 1996 to 53.1 per thousand in 2000.
In 1990 the United States Advisory Board on Child Abuse and Neglect determined that the most significant factor in failing to provide dependent children with adequate services was the overload of cases. If the decline in the number of reported child abuse cases continues, and if social services agencies do not respond by a corresponding reduction of current staff, it may become possible to provide dependent children the social services and educational services commensurate with their needs.
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Individuals with Disabilities Education Act Amendments of 1997. U.S. Public Law 105-17. U.S. Code. Vol. 20, secs. 1400 et seq.
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RIVERA, CARLA. 2001. "State's Children Facing Fewer Risks, Study Says." Los Angeles Times November 28:3.
ROBERTS, DOROTHY E. 2001. "Kinship Care and the Price of State Support for Children." Chicago-Kent Law Review 76:1619–1641.
SANDERS, DEBORAH. 2001. "Toward a Policy of Permanence for America's Disposable Children: A Survey of the Evolution of Federal Funding Statutes for Foster Care from 1961 to Present." In Advocacy for Children and Families: Moving from Sympathy to Empathy. Denver, CO: National Association of Counsel for Children.
TANENHAUS, DAVID S. 2001. "Growing Up Dependent: Family Preservation In Early Twentieth-Century Chicago." Law and History Review 19:547–582.
THOMAS, MASON P. 1972. "Child Abuse and Neglect, Part I: Historical Overview, Legal Matrix, and Social Perspectives." North Carolina Law Review 50:293–349.
WILLIAM WESLEY PATTON