To the End of June : The Intimate Life of American Foster Care (9780547999531) (8 page)

We didn't have much time to talk through this scenario; Allen came bounding up the steps, clutching both candy and a temporary Spider-Man tattoo. He wanted Tom to help him stick it on. Tom told him to go inside and get a sponge. When Allen came back out, he had a picture to show me: it was a photograph of him, Tom, Bruce, and Allyson together in the living room. As Tom pressed Spider-Man onto his forearm, I asked Allen to identify the people.

“It's Allen!” he said. “And Mommy.”

“AJ, who's that?” Tom asked, pointing to himself.

“Daddy,” Allen answered.

“And who's that?” I asked, pointing at Bruce. I felt a little mean, asking the question right in front of Tom, and wondered how he'd react. But Tom just sat there, beaming at his son. Allen, though, seemed unsure. He glanced quickly at Tom, and then down at his new tattoo.

“Daddy,” he said quietly. Allen had two daddies.

 

If Tom had lived in different times or different places, his chances of regaining his parental rights would have varied tremendously. In the sixties, for instance, they may never have been taken away. In the eighties, he may have been assigned all kinds of in-home services and been allowed to keep Allen with him, under some supervision. In the early nineties, Allen may have been removed, but Tom would have had a lot more time to make the rounds of promises and mistakes. Now, there's a deadline looming over Tom's head: under federal rules, a child cannot stay in foster care for more than fifteen out of twenty-two months; he must be either formally adopted or returned to his biological home. The day we talked on the porch, when Tom was in recovery from his latest relapse, Allen was nearing that deadline.

This legislation is called the Adoption and Safe Families Act (ASFA), which had bipartisan support and was signed into law in 1997 by President Bill Clinton. ASFA was developed to counter what's called foster care “drift”—the years-long delay that children in foster homes had been suffering, waiting for the courts to determine whether their parents were fit enough to take them back. So ASFA mandated that the parents could no longer stall: if they weren't stabilized and ready for parenthood again after fifteen months, the courts would terminate parental rights, and the child would be put up for adoption.

The results of ASFA are difficult to ascertain, largely because several states already had pro-adoption legislation on the books, and ASFA didn't adequately fund studies to tease out what, specifically, its mandates had accomplished. Still, a reliable national foster care count showed the number of adoptions from foster care growing from 25,693 in 1995 to 52,468 in 2004.
(Growth has leveled off since then.)

But this doesn't mean that
all
kids who are in foster care will be adopted—and because ASFA encourages terminating parental rights so quickly, it means that more children are left without
anyone
—essentially orphans, with living parents. In the last few years, there have been about seventy thousand cases of parental termination annually, but only fifty thousand adoptions.
ASFA critics hit this one hard; while ASFA's timeline makes some parents scurry to improve their situations, it allows less responsible parents to get off too easily. Overall, only about a quarter of the kids who entered the system in the nineties or after ASFA was passed will be adopted eventually.

Fifteen months is just too short for many parents, critics claim, especially if they're struggling with drug addiction. Numbers are hard to gauge, but two-thirds of the nine hundred thousand cases of child abuse or neglect are reportedly affected by substance abuse.
(This number may well be too low, as a large national survey showed that child welfare workers missed 61 percent of documented substance abuse among investigated parents.
) While ASFA was being debated, some members of Congress talked about the need for services for substance-affected parents, but they largely dropped the topic, asking instead for more research.
Still, one of ASFA's three allowable exceptions for terminating parental rights is this: that the parents haven't been offered adequate services. (The other two exceptions are when the child is being cared for by a relative, and when termination wouldn't be in the best interests of the child.) Many times, caseworkers argue that the parents should stay connected to their children simply because these caseworkers haven't found any treatment for the parents. This can be both good and bad: children of drug-addicted parents may not become “orphans”—but then they may endure the foster care drift.

Because ASFA mandates what's called “concurrency planning,” which means social workers must find kids a permanent adoptive family while also working on biological family reunification, a war can be played out directly through the child. Foster parents willing to adopt are the logical placement choice, should parental rights indeed be cut; this was likely the reason Allen was placed with the Greens. If Tom can't prove to the courts that he's able to parent his son, Allen can just stay forever with Allyson and Bruce and avoid yet another big adjustment to another adoptive family. But in a different kind of home—say, one like Steve and Erin's—foster parents can have a vested interest in undermining any biological family preservation efforts. And preserving the biological family is precisely what foster care was meant to accomplish from the start.

ASFA was, in large part, a conservative reaction to more liberal legislation that had passed in 1980, which was itself in reaction to a more conservative trend before that. The pendulum seems to swing every several years—from a family-based model that says we should make every effort to keep the biological family together to a model of child safety. It's a matter of values and emphasis: one side says kids are better off with their parents and the state's job is to provide and regulate security; the other side says kids are better off safe and the state's job is to provide and regulate a new family. (The terms
conservative
and
liberal
and
left
and
right
are somewhat strange and ill-fitting, as lawmakers on both sides of the aisle vote for both types of child welfare legislation. But the more progressive child welfare activists and strategists tend to favor keeping kids with their biological families—hence the terms
left
and
liberal
for the family-leaning policies.)

The early years of state-mandated reporting and child removals were grim; new laws passed in the late sixties and early seventies directed states to remove children, so state authorities squared their shoulders, steeled their jaws, and started marching in. The pendulum already swung left as the decade progressed. Maybe children didn't need to be removed from their parents quite so often, the thinking went, especially if they didn't have somewhere safer to go. In 1980, Congress passed the Adoption Assistance and Child Welfare Act (AACWA), which forced states to exchange their costly foster care replacements for preventive and family reunification programs.
It was a paradigm shift fueled by thinkers like Anna Freud and Joseph Goldstein, who believed that kids are injured by uncertainty and disruption; that they are, except in the most extreme cases, better off coming home. Funding moved toward child abuse prevention, parenting skills training, and familial support. Programs called “intensive family preservation services” became popular, wherein caseworkers with lighter caseloads would work daily with at-risk families, to build their skills and their bonds.

But not all kids could stay at home; the eighties ushered in something nobody had predicted that infinitely swelled the foster care rolls, despite AACWA's mandates: crack cocaine. Between 1986 and 1989, the number of New York's foster children almost doubled.
But because of AACWA, these kids were, by and large, neither going home nor landing in a permanent placement. Nationally, hundreds of thousands of children ended up hovering in a purgatory state: their biological homes weren't safe enough to return to, but they weren't eligible for adoption either, because AACWA mandated that parental rights be terminated as a last resort. So kids waited for years and years and years for their parents to get better—to pass drug tests or violence management classes, or to get out of jail, or to simply meet the backlogged bureaucratic requirements from an agency that had too many cases to handle.

So that's when the pendulum swung right again, and much of AACWA was essentially reversed in 1997—with ASFA. Clinton's goal with ASFA was to double the number of foster children adopted annually to fifty-four thousand within five years.
To do this, states would receive financial incentives: $4,000 for each so-called normal foster adoption, and $6,000 for each “special needs” adoption.
Even within this landscape of changing legislation, not everyone sees a pendulum swing, with pro-adoption folks on one side and pro-biological families on the other. The laws do change every several years, but the changes are influenced by everything from scientific discoveries to psychological trends to surges or dips in the child welfare rolls. And many key stakeholders in foster care don't lobby for dramatic sea changes, but rather improvisational tweaks. For instance, with ASFA, some feel the adoption incentives unfairly disadvantage the biological families and argue that the same money should be awarded to agencies that successfully reunify families.
Others have lobbied for more intense, but shorter, in-home support services for all but the direst (seriously violent or sexually abusive) family situations. If circumstances don't improve within a matter of months, they say,
then
the child should be removed, providing further motivation for parental progress.
Many people in child welfare say we break up too many families, many say the kids stay too long in care, many advocate putting more money or emphasis into this program or that, but nobody's suggesting we ditch the system altogether, abandoning it for something entirely new.

 

Marcia Robinson Lowry, a lawyer who fought a famous battle for the rights of foster children, the Shirley Wilder case in New York,
thinks the basic tenets of foster care laws have remained decent through all the shifts in public policy. Lowry says child welfare's spotty report card has to do with a simple lack of incentive. People at all levels of the system, she claims, will do as little work as they can do because there's no
reason
to do better. Because there's no real cultural value placed on the lives of foster children or their families, the people hired to work for their benefit don't strive to provide much value. So Lowry has built her life around making sure people in child welfare at least follow the laws as they're written.

After heading up the Children's Rights project of the American Civil Liberties Union (ACLU), where she fought for Shirley Wilder, Lowry went on to found a separate organization by the same name in 1995, and to launch lawsuits against
entire states
that were performing poorly—where high numbers of kids were dying in care and living in substandard conditions. She and her team have successfully sued the states of Mississippi, New Jersey, Tennessee, and others, as well as the District of Columbia; Fulton and DeKalb Counties in Georgia; and Milwaukee, Wisconsin. After a case is settled, Children's Rights sticks around to ensure that officials follow their mandates to appropriate more money to programs, audit agencies, hire more employees, and so on.

In her corner office on Fifth Avenue and 28th Street in Manhattan, Lowry told me there are good laws in place that tell us when to remand a child, and when not to. Everybody knows, she said, that it's best for a child to stay with his parents when at all possible. Everybody knows that a teenager should be with a family rather than in an institution. Everybody knows that providing good, old-fashioned social work services, like educational or financial resources to a mother, is preferable to taking away her kid. The law shows a clear preference for these things no matter what era we're in. The trouble is, these carefully crafted services take more time and effort for the system to provide than simply sticking a child into any old foster home or a teenager into an institution and getting his case file off your desk.

“The basic tenets of foster care are good,” Lowry said. She's distinguished-looking, with a silver bob and a direct expression that indicates she's very busy, but she'll take all the time she needs to express precisely what she intends. “It's the implementation that isn't working—and that's what causes the slow destruction of a person, a kid, as he goes through the system.”

For Lowry, what child welfare needs overall is more oversight—to make sure everyone is just following the rules. “There are no magic bullets,” she said, answering a question I'd asked about some innovative new programs I'd read about. Her office walls are a sunny yellow, and all around are oversize black-and-white photos of the kids her organization has served—some smiling, some desperately grave. “There are nuances to programs and so on, but really we just need to implement the basic modes of social work: providing services, making individual decisions, following a case through.”

For Lowry, a situation like Allen and Tom's would require a good social worker, doing what she's paid to do: provide Tom with rehabilitative services and then, if he relapses, do the extra legwork to find out where Allen was previously placed. But Tom and Allyson had been through their slice of the system too, and they didn't trust it. Tom listened to Allyson's fears, she said, about his potential relapse. He worried that Allen could get placed with some random family instead of the Greens. So by the end of that year, Tom became the generous parent in the King Solomon story. He decided to sacrifice the baby to a safer circumstance, rather than risk sacrificing him altogether.

“Tom came to his senses,” Allyson told me over the phone several months after we all met on the porch. Her relief was palpable. “Tom has had this trust issue; he hasn't trusted people, but he started to trust us.” While Allyson was watching Tom, she said, Tom was watching the family. “He's seen how we've been with Charles, that we adopted him but he still sees his mom, and that he could still see Allen if he was with us. He knows that the best thing is for Allen to stay with us. He's already talked to the court.” Tom had agreed to sign over his rights and do an open adoption.