Vol. 4, No. 3
June 1999

Review of Recent Federal Laws and How They Affect the Way We Recruit Foster and Adoptive Parents

Federal child welfare laws have changed significantly in the past decade. In this article we will explore the reasons for these laws and their impact on child welfare practice, paying particular attention to how they affect recruitment and retention of foster and adoptive parents.

Two of the most important pieces of recent legislation are the Adoption and Safe Families Act (ASFA) of 1997 and the Multiethnic Placement Act (MEPA) of 1994. Both of these laws, and several others we will discuss, alter the practices that had been mandated by the Adoption Assistance and Child Welfare Act (AACWA) of 1980, practices that have become second nature to child welfare workers.

In fact, many of the concepts that guide our practice, such as making "reasonable efforts" to reunite foster kids with their biological families and taking race and ethnicity into consideration when facilitating adoption, are derived from the 1980 law (Gelles; D'Agostino). Old habits die hard, and some agencies in North Carolina and across the nation have yet to come into compliance with the new legislation. But in order to maintain funding, meet ethical and legal requirements, and, most importantly, successfully address the needs of children, child welfare agencies must quickly learn and enact the new policies.

Reasons for New Laws

Historically, children have languished in foster care for years before being either adopted or placed back with their biological families (Gelles; Spake). In 1980, Congress passed AACWA, which demanded that states receiving federal funds make "reasonable efforts" to reunify kids with their birth parents (Gelles).

But what is reasonable to one social worker, foster parent, or judge is not necessarily reasonable to another. For more than 15 years, AACWA tied up the adoption process in endless red tape. Of the 500,000 children in foster care in a given year, only 27,000 were adopted (D'Agostino). Terminating a birth parent's rights was extremely difficult, even in cases where the parent had seriously harmed the child in question or even killed that child's siblings. Under AACWA, the safety and emotional stability of children was no more important to the courts than the due process rights of parents (D'Agostino; Gelles).

As cases of deaths by abuse and the number of children waiting for adoption grew, child welfare advocates convinced President Clinton to take action. In 1997 he asked Congress to pass legislation that would double the number of public adoptions by 2002 and grant foster children "what should be their fundamental right—a chance at a decent, safe home" (Clinton). The result was a series of laws designed to achieve this goal. Amendments to the Child Abuse Prevention and Treatment Act made convictions for homicide, manslaughter, or seriously injuring a child grounds for the termination of parental rights.

Adoption and Safe Families Act of 1997

Since ASFA, child welfare agencies can override the "reasonable efforts" requirement with concerns about children's safety, which must be the "paramount concern." This is a real victory for child welfare advocates, because it represents the recognition that kids are not the property of their parents, but individuals with rights and needs independent of any biological ties (Gelles; D'Agostino; Spake).

Before 1997, terminating parental rights required that states show with "clear and convincing evidence" that parents had "substantially and consistently" failed to maintain contact with their child (Gelles). This process was extremely burdensome and often left kids in dangerous or unstable situations (D'Agostino; Spake). Now, states must initiate a petition to terminate parental rights when:

a child has been in foster care for 15 of the previous 22 months
a court deems the child an abandoned infant
the parent attempts to murder one of his or her children
the parent commits voluntary manslaughter of a child
the parent commits felonious assault resulting in serious injury to a child (CQWR; Gelles; D'Agostino).

Terminating parental rights does not require that one of these conditions is met, but if one is, the state must petition to terminate parental rights.

ASFA has begun to make the adoption process faster and more focused on the safety of children. On the other hand, some child welfare advocates have criticized the law, saying the timetables are too short and inflexible, and that they prevent agencies from helping biological parents improve their parenting skills (Spake). The balance between parental rights, preserving families, and the welfare, safety, and stability of the child may not yet have been found. But the government is listening more to practitioners, which is good news.

ASFA also provides financial incentives for an efficient adoption system. Before ASFA, more than 80 percent of federal money went to the child welfare bureaucracy, with under a fifth of federal money actually finding its way to caretaker families. Now, if a state finds adoptive homes for more foster children than it did the preceding year, Washington awards the state $4,000 for each of these "additional" children ($6,000 for children with special needs). The new legislation therefore speeds up the adoption process in several ways. There have always been timetables for how long children can stay in foster care, but now those guidelines are more responsive to the needs of the kids (CQWR; Gelles).

MEPA and Its 1996 Amendment

The 1994 Multiethnic Placement Act was also designed to speed up adoptions and to respond to critics of race-based adoption, which has long been a contentious issue. MEPA barred the practice of "categorically deny[ing] to any person the opportunity to become an adoptive or foster parent solely on the basis of race" but allowed "cultural, ethnic, or racial" considerations to be "one of the factors used to determine the best interests of the child."

This flexible position was changed by the "Removal of Barriers to Interethnic Adoption" provision of the 1996 Small Business Job Protection Act. Current law prohibits the denial or delay of adoption or foster placement based on race. This means, for example, that white parents interested in adopting black children have as much a legal right to do so as black parents (Spake).

This presents a difficult dilemma for child welfare workers. Many people believe that black children will lose their cultural identity if placed with white families (Spake). In a nation already struggling to honor its citizens of color, this concerns and disturbs many Americans. However, for children who may be difficult to place, the amendment to MEPA removes one barrier to adoption. There is simply no consensus on this controversial issue. We can all expect laws regarding foster care and adoption, especially with respect to race and parental rights, to change times during our careers.

It does seem that the safety of the child will, however, remain the most important consideration (Mason). Since we who work in child protection agencies have long considered this our priority, convincing lawmakers to model legislation in this way is a major accomplishment. It is also a step towards better retaining the services of foster families who may have otherwise grown dissatisfied and frustrated with the adoption process (Spake).

Another boon to foster and adoptive family retention is the Safe Adoptions and Family Environments (SAFE) act, which is still being considered by Congress. SAFE would allow many adoptive families to receive financial assistance even if the adopted child did not qualify for federal aid as an individual. SAFE would also allow Social Security Income to follow adopted children to new families if their caretakers died or the adoption was dissolved for any reason (NACAC).

Other legislation currently before Congress would require states to review the status of foster children every six months, rather than once a year as current law demands (NACAC). Practice Notes will keep its readers up to date on legislative developments in this area.

References

Clinton, W. J. (1997). Remarks on the signing of the Adoption and Safe Families Act of 1997. Weekly Compilation of Presidential Documents, 33:47.

Congressional Quarterly Weekly Report. (1997). Foster care adoption bill signed into law, 55(46), 2917.

D'Agostino, J. (1997). Congress removes perverse incentives against adoption. Human Events, 53:46.

Gelles, R. (1998). The Adoption and safe Families Act of 1997 rightly places child safety first. Brown University Child and Adolescent Behavior Letter, 14: 4.

Mason, J. (1996). Reporting child abuse and neglect in North Carolina. Chapel Hill, NC: Institute of Government of the University of North Carolina at Chapel Hill.

North American Council on Adoptable Children. (1998). Federal adoption initiatives move forward. In Foster Parent Community [Online]. <http://www.fosterparents.com/index85nacac.html>.

Spake, A. (1998). Adoption gridlock. U.S. News & World Report, 124:24.