Democrats and Republicans are engaged in important debates about how the federal government can best serve families in these challenging economic times. There are no simple answers, but as we enter the holiday season, there is one thing on which we can all agree: Family is essential for achieving the best in our lives and our society. Unfortunately, federal child welfare law often serves to undermine this shared principle and weaken our nation’s families. It is time for Congress to reform and modernize decades-old laws governing child welfare practice in the United States.
There are two primary laws that influence how our nation’s child welfare system operates: the Child Abuse Prevention and Treatment Act , enacted in 1974, and the Adoption and Safe Families Act , enacted in 1997. Many of their provisions are outdated now that we have improved our understanding of the various factors placing families at risk , the trauma of family separation , and innovations aimed at strengthening families. Worse, provisions of these laws routinely make children legal orphans, permanently separating them from their families without connecting them with new ones.
One example of misdirected federal policy is a financial incentive that rewards states for increasing the number of children adopted from their state foster care system. When that policy was enacted 24 years ago, a record high number of children were living in the nation’s foster care system. The incentive payments were intended to address the problem of children lingering too long in foster care, and they did lead to increased numbers of adoptions from foster care.
But the situation today is different from 1997, and enough time has passed for us to see the unintended harm caused by these policies. While the number of children in foster care has decreased over the last two decades, the number waiting for adoption has steadily increased. According to the most recent federal data , over 122,000 children are waiting for adoption, but only about half will be adopted. Many of those left behind will spend the rest of their childhoods in the custody of the state — an outcome no one could want.
Part of the problem is the unintended perverse incentive these payments create. The payment structure only rewards states for increasing adoptions out of foster care — there is no corresponding incentive for successfully reunifying families or giving children stability through other means, such as guardianship with relatives. Thus, the rational economic choice for states is to focus the majority of their time and resources on severing family ties and placing children for adoption.
Federal policy should recognize that every family is unique and there is no one-size-fits-all solution for children. For most children in foster care, returning home to their families will best serve their emotional and developmental needs. For some, adoption or a guardianship with relatives may be the best option. Congress should rework the foster care incentive payments to reward states for increasing the number of children who successfully achieve the outcome that is best for each individual child.
In addition to modernizing our approach to permanency for children in foster care, we must also reform our approach toward parents to be supportive rather than punitive. No one should lose their children because of a substance use disorder or mental health issue that they are treating or because they made a mistake for which they were incarcerated and have paid their dues. No child should suffer the unnecessary loss of their parents and extended family when other options are available. Yet these are the outcomes federal law promotes through arbitrary timelines for terminating parental rights and other policies that make it difficult, if not near impossible, for even the most loving and dedicated parent to do what is required for them to get their children back.
The COVID-19 pandemic taught us all valuable lessons. Those of us in the child welfare community were confronted with the reality of the many ways in which our system does harm to those it is intended to help. It also affirmed that the most important safety net, especially during times of social and economic hardship, is not government intervention but family ties and community support.
It’s time to put these lessons into action through commonsense approaches to correcting the damaging course federal child welfare law has taken as it has prioritized family separation and speeding to adoption over preserving family bonds. The newly proposed 21st Century Children and Families Act takes some steps in the right direction. This proposal would decrease federal financial pressure to end family ties too soon or when parents are actively engaged in treating the issues that landed their children in temporary foster care. And it would require that a state agency determine it is in a child’s best interests to terminate parental rights before doing so.
The 21st Century Children and Families Act is a good start, but it’s not enough . As child welfare practitioners on opposite ends of the political spectrum, we each have different views on some of its particular provisions, but we agree that the legislation is a solid jumping-off point for what could be a significant bipartisan effort to strengthen families.
Study after study has documented that children do better when they remain with family, except in the limited percentage of cases in which true safety issues are present. However deep our political divisions, as we gather with our own families, we should commit to coming together to ensure that federal policy prioritizes keeping children with their own safe, loving families whenever possible.
Chris Gottlieb is the co-director of the NYU School of Law Family Defense Clinic. Andrew C. Brown is a distinguished senior fellow of child and family policy at the Texas Public Policy Foundation. Both are members of United Family Advocates .