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Home > Advocacy > Advocacy Archives > The Adoption and Safe Families Act of 1997 (P.L. 105-89)

 
 

CWLA Testimony on the PASS Act (S. 1195) Senate Finance Committee Hearing

October 8, 1997

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The Child Welfare League of America (CWLA) welcomes this opportunity to submit testimony on S. 1195, the P.A.S.S. (Promotion of Adoption, Safety, and Support for Abused and Neglected Children) Act. We commend the efforts of the bill's bipartisan group of sponsors to make improvements in ensuring child safety and permanency.

CWLA's 900-member public and private agencies across the country work everyday to improve conditions for children and families at risk and in crisis. Serving over 2.5 million children and their families each year, CWLA member agencies provide a wide array of services including child protective services, family preservation, family support, adoption, family foster care, treatment foster care, residential group care, adolescent pregnancy prevention, child day care, emergency shelter care, independent living, and youth development.

We agree with the important goals of the legislation: to ensure child safety, improve timely decision-making and move children to permanent homes. Today we offer comments and recommendations on S. 1195. We strongly endorse the legislation's commitment of significant resources for adoption subsidies for all children with special needs and for the continuation of investments to strengthening and support families at the community level. We are, however, disappointed that the bill lacks additional resources for appropriate reunification services at the same time it moves more quickly and broadly to end a child's ties with his or her family.

NEED FOR ACTION

The need for child protection and family support has increased dramatically.
  • In 1996, over 3.1 million children were reported to child protective services as alleged victims of child maltreatment. Of those reports, nearly one million children were confirmed victims of child maltreatment and 1,046 died as a result. From 1987 to 1996, the total number of children reported abused or neglected increased 45 percent.

  • Five hundred and two thousand children live in out-of-home care(family foster care, kinship care, or residential care(because they cannot be safely be cared for at home. The number of children in out-of-home care increased by 74 percent in the 10 years from 1986 to 1995. Between 1990 and 1995 alone, the total number of children in out-of-home care increased 21 percent. Four states had increases in excess of 100 percent during that time period.

  • Nearly one-half of all children in out-of-home care are in family foster care. Almost a quarter of the total (23 percent) are in kinship care(the placement of children with a relative. The use of kinship care placements has increased dramatically, rising 29 percent between 1990 and 1995. In certain parts of the country, the increase in kinship care has been much greater. Other children receive care in group care settings, essential for some children whose needs are great. A small percentage of youths in care are in independent living.

  • Most children in out-of-care return home. In 1990, over 60 percent of all children living in out-of-home care returned home.

  • In 1996, 47 state child welfare agencies reported the legalization of 27,115 adoptions (CWLA, 1996). At the end of 1995, 74,954 children in 41 states were in out-of-home care with a goal of adoption, and 32,238 children were legally free for adoption. Nearly half (44 percent) of the children legally free for adoption and awaiting adoptive homes were African American. Ninety-seven percent of the children awaiting adoption were older than one year of age.
COMMENTS ON PROVISIONS OF S. 1195

We strongly endorse the provisions of the bill that will support needed services to achieve better decisionmaking and permanency for children. These provisions help to address a significant barrier to reunify families safely or to move children into other permanent homes.


EXTENSION OF FEDERAL ADOPTION ASSISTANCE TO ALL CHILDREN WITH SPECIAL NEEDS

What issue does this provision address?
Under current law, children with special needs from families that would have been eligible for the former Aid to Families with Dependent Children (AFDC) program (given the income and resource standards in place in each state on June 16, 1996) or who are eligible for Supplemental Security Income (SSI) are eligible for federal adoption assistance. Children with special needs from families that do not meet this poverty standard are not eligible for federal adoption assistance, even though all of the child's ties to this family have been legally severed and the child is free for adoption.

Special needs, as defined by individual states, include physical, mental, emotional or other special needs categories such age, race or sibling relationship. Currently, 65 percent of the children with special needs receiving adoption assistance are eligible for federal adoption assistance while 35 percent receive only state adoption assistance. State subsidies are frequently much lower than the federal subsidy level. Also, some children with special needs fall between the cracks and are not currently eligible for either federal or state subsidies since states frequently define which children are eligible for state subsidy more restrictively then the federal criteria. This greatly reduces the likelihood of their being adopted. Many potential adoptive families who could offer nurturing and permanent homes to these children simply cannot afford to take on full financial responsibility for these children.

In addition, under current law, adopted children lose their adoption subsidy when an adoptive parent dies or if the child's adoption dissolves. Many times, this will mean that a child, after having suffered the death of an adoptive parent, must be placed back into foster care without the possibility of being again adopted with a federal subsidy.

How will this provision help children?
The P.A.S.S. Act would remove AFDC and SSI eligibility as a criterion for Title IV-E Adoption Assistance. By severing the link between a child's AFDC eligibility and the child's later eligibility for federal adoption assistance payments and basing eligibility solely on a child's special needs, all children with special needs waiting for adoptive families will be eligible for federal adoption assistance on an equal basis. Children would remain eligible for federal adoption assistance if the child's adoptive parent dies or the child's adoption dissolves.

With this change, all adopted children with special needs would be eligible for Medicaid. This is important in states where health coverage is not now extended to all children with special needs adopted with state assistance. It would also allow adoptive families to move out of their state without the risk of losing their child's health care coverage.

The elimination of administratively burdensome and costly eligibility requirements will expedite the adoption of children with special needs. The current requirement that states look back to AFDC eligibility standards from the past in determining eligibility for the federal adoption assistance program greatly increases the administrative complexity of administering the program.

S. 1995 also requires states to spend an amount equal to any savings resulting from this provision to provide services to children and families, including post-adoption services, that are allowable under Title IV-B and IV-E. This will result in the states redeploying their own resources to expand services to at-risk families.


CONTINUATION OF INVESTMENTS TO STRENGTHEN AND SUPPORT FAMILIES

What issue does this provision address?
This provision reauthorizes the Family Preservation and Support Services Program (FPSSP), a capped entitlement under Title IV-B, Subpart 2. FPSSP responds to the nationwide consensus that services to children and families should be more preventive, comprehensive and community based. FPSSP has provided states with the opportunity to begin fundamental reform of their child and family systems by providing funds for:
  • initiating broad-based and ongoing planning to identify needs, resources, and capacities in the state and in communities, and to recommend improvements in overall service delivery;

  • investing in community-based services designed to prevent child abuse and neglect and assist families in crisis.
While FPSSP does not provide the resources to address all the problems that plague children and families(for example, to treat substance abuse, homelessness, or severe mental illness, or to alleviate poverty among families raising children(it is intended to serve as a catalyst for improving the way services are delivered.

The goals of the Family Preservation and Support Services Program are to:
  • Protect children
  • Strengthen families' ability to promote their children's healthy development
  • Contribute to the development of a more responsive, collaborative, child and family service system
Unless Congress takes action, this program will sunset at the end of FY 1998.

How will this provision help children?
S. 1195 would reauthorize FPSSP through 2002 at the following levels: $275 million in FY 1999; $295 million in FY 2000; $315 million in FY 2001; $335 million in FY 2002 and $355 million in FY 2003.

After just a few years with the FPSSP, states are reporting that the funds have, indeed, served as a catalyst for improving their child and family services systems. States took the planning directives of the Program seriously, inviting communities to join in the process of identifying needs and resources and recommending service improvements. This has resulted in greater community ownership of child protection and family support.

In Michigan, for example, FPSSP funds have assisted the state in moving to a much more community-based service delivery approach. Community providers, ordinary citizens, and consumers are playing a much larger role, as members of area networks, in determining what services are needed and how they will be delivered. As the postmistress in Empire, Michigan, put it, "Strong Families, Safe Children (Michigan's Family Support Initiative) is the best thing we've had."

FPSSP funds have enabled states to develop locally sponsored programs that strengthen families' ability to promote their children's healthy development. Prior to this program, state funded programs designed to support families and prevent abuse and neglect were extremely limited. Family support centers, home visiting programs, and other proven means of reaching at-risk families were far and few between. In addition, while more states provided family preservation services to respond to families in crisis, in no state were these services available to all families that needed them.

In Pennsylvania, FPSSP funds enabled them to move forward quickly to establish a statewide system of community-based family centers that serve as a central place for families to learn about parenting, to link to additional resources such as child care, and to join with other parents in their efforts to promote the healthy development of all children in their community.

Outcomes for children and families have shown improvement. While it is too early to tie FPSSP directly to improved outcomes, a number of states that have combined FPSSP efforts with foundation and state-funded initiatives to reform their child and family service systems are reporting important early results. State data on child safety and well-being suggest that outcomes for children are improving in several areas, including:
  • Improved safety for children
  • Reductions in out-of-home care and length of stay in care
  • An increase in the numbers of expedited adoptions
  • Improved permanency for children in kinship care
Continuation of the Family Preservation and Family Support Services Program will enable states to strengthen and build upon the important community partnerships that have developed during the first four years of the program, enabling many more communities to build the capacity to truly protect children and strengthen families.

CWLA recommends deleting the provision in S. 1195 that requires states to devote at least 25 percent of their expenditures to each of three categories of services: community-based family support; family preservation; and one-year time limited family reunification. This change is recommended because current law for the Family Preservation and Support Services Program already includes family reunification services and activities that can help reunify families in the definitions of both "family preservation services" and "family support services." The 25 percent earmark and specific definition of family reunification services are not necessary and limit states flexibility in crafting their services to the needs of children and families served.

CWLA also recommends the continuation of the State Court Assessment Project as part of the reauthorization. The continuation of this program is particularly essential given the new demands that will be imposed upon the court by P.A.S.S. The court will have more permanency planning hearings and actions on petitions to terminate parental rights more frequently. P.A.S.S., however, does not include the additional resources proposed in previous bills to train judges, court staff, and staff of other agencies who are central to keeping children safe and moving them to permanence.

ESTABLISHMENT OF STANDARDS BY STATES TO ENSURE THAT CHILDREN IN OUT-OF-HOME CARE SETTINGS RECEIVE SAFE, QUALITY CARE

What issue does this provision address?
States vary widely in their performance and capacities. CWLA, the principal national organization responsible developing "best practice" standards and goals, strongly endorses encouraging states to develop and require that agencies serving abused, neglected, or otherwise vulnerable children meet acceptable standards of practice by a nationally recognized standard-setting or accrediting organizations that a state chooses. CWLA believes that quality care and good outcomes are the aim and goal of public and private agencies that serve abused and neglected children. Therefore, we urge that the provision apply to all agencies(public and private(that provide these services.

How will this provision help children?
The development and adherence to standards of quality care are key to making good initial assessments, monitoring progress, and judging and improving outcomes. This provision will help assure the quality of services, the safety and outcomes for children in care, and accountability of providers.

We support a number of additional features of the P.A.S.S. Act that will improve child safety and permanence, including the provisions to:
  • clarify that child safety is paramount in decision-making; require reasonable efforts to move children towards adoption or another permanent home;

  • require dispositional hearing within 12 months rather than the current 18 months;

  • establish priority for substance abuse treatment for parents with children who are clients of child welfare agencies;

  • increase treatment options for families by allowing Title IV-E dollars to be used for the care of a child (who would otherwise be placed in out-of-home care) with a parent in a residential program when the goal is reunification;

  • require state and local death review teams;

  • require criminal background checks for all prospective foster and adoptive parents and employees of residential facilities;

  • expand the number of states that may have child welfare waivers from 10 to 15;

  • provide bonuses for states that increase the number of foster children who are adopted;

  • require that foster parents and relatives caregivers receive notice of reviews and hearings and have opportunity to be heard; and

  • require the U.S. Department of Health and Human Services to create an advisory panel and make recommendations on kinship care.
AREAS OF CONCERN AND RECOMMENDATIONS FOR IMPROVEMENTS

While we applaud these provisions, we have several major concerns about the P.A.S.S. Act and suggestions for improvements.

One area of concern is the phrase "when possible" added to the reasonable efforts requirement in Section 101. While we strongly agree that reasonable efforts should not occur when a child's safety would be jeopardized, the current language in Section 101 is confusing and could well lead, especially given other requirements in P.A.S.S., to substantial misinterpretation and the denial of reasonable efforts when they are appropriate. CWLA recommends the deletion of the phase "when possible" which will leave the leave intact the clear exception to the reasonable efforts requirements but clarify that efforts towards reunification should not be undermined when they can be made safely.

CWLA also has concerns about the provisions in S. 1195 that require states to initiate or join proceedings to terminate parental rights of a child who has been in care for 12 of the most recent 18 months, or for a lifetime total of 24 months. Notably, the bill does provides two very important exceptions to this requirement: (1) at the state's option, if a child is being cared for by a relative; or (2) if a state court or state agency has documented a compelling reason for determining that filing the petition would not be in the best interests of the child. Even so, by requiring filing of a termination petition, the bill limits the state's options in pursuing permanency for each child. In fact, permanency can be achieved by a number of means. When reunification is not possible or desirable, parents can be helped to arrive at permanency for their child by relinquishing their parental rights or consenting to guardianship. Both of these options avoid the costly and painful court process required in terminating parental rights.

Our concerns also stem from the required initiation of termination of parental rights proceedings without offering any new resources for services to ensure that children are not moved back home or into adoptive families without appropriate services. The procedural change mandated in S. 1195 will not promote adoption unless it is accompanied by increased resources to address problems that bring children to the door of the child protection system. Changing timeframes without also intensifying services, sends the message that government is abandoning its responsibility to help troubled families solve the problems that lead to child abuse and neglect. This could be interpreted by states as a signal for a retreat in the area of prevention and reunification for those children for whom these outcomes are appropriate.

If additional services were made available(and we urge the Committee and the Senate to provide greater support(it is much more likely that a timely permanency decision can be made within one year. If a family had access to services from the day the child enters care, caseworkers and judges would have a more realistic sense of the best permanency plan for the child. Many children would be able to return home safely; others will move to adoption quickly.

The proposal in S. 1195 to shorten the time limits could jeopardize the well-being of children by putting them at risk of being returned home prematurely or moved to adoptive homes inappropriately. As states try to comply with the new requirements in P.A.S.S., children could be rushed home or pushed to adoption without the services and supports they need to prevent them from moving in and out of care; or they will continue to linger in care because services to address their most pressing problems are not provided.

We also recognize that S. 1195 imposes new demands on the court without providing any additional support. As a result, court resources will be diverted to comply with the new termination requirements, court backlogs will grow and children will continue to wait for permanent, loving homes.

CWLA recommends that additional funding opportunities for permanency services and training be added to S. 1195, similar to those proposed in S. 511, the SAFE Act. Provisions in that bill allow states to be reimbursed for providing permanency services for a child and his/her family for up to one year from the day the child enters foster care. This will allow decisions about reunification or adoption to be made quickly and appropriately. S. 511 also provides funding for court staff and other agency training and retention so that staff are prepared to make prompt decisions. Well trained, experienced and well supervised workers with manageable caseloads are the best equipped to make good and prompt decisions about child safety, family capacity and permanence.

At the least, CWLA recommends eliminating the requirement that a termination of parental rights petition be filed when a child is in care 24 months during the child's lifetime. The lifetime of a child encompasses a great amount of time in which the circumstances under which the child might come into care could differ enormously. For example, a teenage mother could have placed her infant child in foster care voluntarily and that child could require care again as a teenager when his mother was battered. This provision would also be impossible to enforce. Although some states are making progress in tracking the re-entry of children in care in a single state, there is not a mechanism in place for doing so across state lines.

CWLA also recommends that Section 204 of S. 1195 be amended to make it clear that the provision about geographic barriers applies only to adoptive placements. Geography is very relevant in deciding an appropriate foster care placement for a child. This change eliminates any suggestion that it intends to alter the requirement in current law (Section 474(5) of the Social Security Act) that children be placed in foster care in the least restrictive and most appropriate setting available and in close proximity to the parent's home, consistent with the best interest and special needs of the child.

CWLA is also concerned about the Section 401 of S. 1195 which states that "Nothing in this Act...to prohibit the use of reasonable methods of parental discipline." While we share the concern about unwarranted investigations and inappropriate interventions in suspected cases of child abuse and neglect, we believe that this phrase would have the negative effect of deterring the reporting of suspected child maltreatment and creating a shield for child abusers. There is no disagreement about the rights of parents to discipline their children. However, when harm and injury is done to children in the name of "parental discipline," investigations under state law are warranted. We are concerned about any language in federal law that would discourage appropriate investigations of such reports. If that happens, children's safety would be threatened in direct contradiction to the intent of the P.A.S.S. Act.

In sum, we again applaud the efforts of the senators who worked diligently in developing this measure which we believe can and should move forward with improvements. And we commend this Committee for continuing to tackle these difficult and complex issues. We look forward to continuing to work with you to help children stay safe in loving, permanent homes.


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