Evidence in Action

A quarterly research brief from the Center on Trauma and Children

Volume 3, Issue 2  
April 2015  

The Center on Trauma and Children (CTAC) is dedicated to the enhancement of the health and well-being of children and their families through research, service and dissemination of information about child abuse and trauma.

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www.uky.edu/CTAC

 

  

 

 

 

 

Evidence in Action- Policy Edition

This edition of Evidence in Action provides a brief synopsis of an article from the Center on Trauma and Children that is currently in press: 
Whitt-Woosley, A., & Sprang, G. (2015). When rights collide: A critique of the Adoption and Safe Families Act from a justice perspective. Child Welfare, publication pending. 

     The institution of the Adoption and Safe Families Act of 1997 (ASFA) was a major revision of existing child welfare policies established by the earlier Adoption Assistance and Child Welfare Act of 1980, representing the shift from a focus on the preservation and reunification of the biological family to an emphasis on the health and safety of children and accelerated permanent placements (Child Welfare Information Gateway, 2012; P.L. 96-272, 1980; P.L. 105-89, 1997). The two primary groups of children most negatively affected by the former policy's focus on family preservation were those returned to unsafe environments and the growing number of children languishing in foster care while prolonged efforts were made to rehabilitate their biological families (Barth, Wulczyn & Crea, 2005).

The three primary goals of ASFA were to:
  • clarify the reasonable efforts standard regarding reunification of families and delineate high risk situations when reasonable efforts to reunify could be waived  
  • to reduce lengths of stays in foster care
  • to promote adoptions (Gordon, 1998)

     At the time of its passage, the number of children in foster care had skyrocketed, there were decreasing numbers of available foster homes and the average length of stay in foster care was well over 2 years (Moye & Rinker, 2002). There was hope that ASFA could improve the lives of children in care, which represented some new thinking about the importance of children and children's rights.

     While ASFA was designed to address these potential threats to child well-being, implementation of this policy and the inherent tension between child and parental rights highlights disparities and a seeming disadvantage to the extremely poor and other marginalized groups in society, thus increasing the likelihood of new injustices for parents and consequently the family unit including the very children it aims to protect. The parents most often affected by this policy are more likely to struggle to meet their family's basic needs due to a lack of resources and income, to have mental health and health difficulties that impair parenting abilities, to more frequently interface with the system in a manner that would increase likelihood of outside scrutiny, and to be less likely to have familial supports to either help prevent child maltreatment from occurring or prevent the need for foster care via provision of relative placement (Wilkinson-Hagen, 2004).

         This edition of Evidence in Action summarizes an analysis of ASFA using an application of Rawls' theory of justice or justice as fairness (1999) with specific regard to the policy's shift from family reunification to an emphasis on child health and safety, accelerated permanency and the promotion of adoptions, and whether this is a just framework given the inequalities experienced by the families involved in the child welfare system. Additionally, the dilemma of whether justice can be served for children in this capacity if the effects are unjust for their parents is also discussed.

 Justice as Fairness & ASFA  

      Rawls' theory of justice addresses society's obligation to work cooperatively to create just institutions and fairly distribute resources (Rawls, 1999; Scanlon, 1989). Rawls assumes all rational beings are viewed as morally equal and deserving of fair treatment, and our ethical principles should be guided by what is rational to make universal for everyone including ourselves (Rawls, 1999; Wakefield, 1988). Therefore, policies designed to serve the greatest collective good do not meet this standard of justice since they often sacrifice the good of the minority to serve the needs of others. Rawls outlines two alternative principles inherent to the creation of just institutions or policies. 

 

Analysis of ASFA According to Justice as Fairness- First Principle

     The first principle states that, "each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others" (p. 53). ASFA is, of course, a policy constructed to address situations when the basic liberties or rights of children, to health and safety, are in opposition to the basic rights of parents, to parenthood and a family life free from state intrusion.   ASFA brought specific changes for child welfare policy. For example, 1) the addition of language meant to emphasize the health and safety of children as a priority as opposed to the former emphasis on family reunification, 2) the clarification of the reasonable efforts standard and 3) financial incentives for adoption.  

 

The following information summarizes ASFA's performance regarding these issues:

  • ASFA's enforced timelines and emphasis on child well-being vs. reunification seem warranted given difficulties achieving successful reunifications, i.e. approximately 1/3 return to out of home care yet reunification remains the most likely outcome for children in the system (Wulczyn, 2004). Unfortunately, ASFA fails to adequately fund reunification or family preservation services to make this a safer and more viable option for children and their families.
  • ASFA's clarification of the reasonable efforts standard and conditions of aggravated circumstances when efforts may be waived achieves justice by ensuring equal rights for one group as long as those rights are compatible with a similar scheme of rights for others. ASFA enforces that the parental scheme of liberties is not compatible with that of the child in question under these aggravated circumstances.
  • ASFA provides financial incentives to states for increasing the numbers of foster child, older child and special needs adoptions. This was meant to address the problem of the increasing ages of children in foster care, length of time spent in foster care without permanency and the statistics showing poor outcomes for children who age out of the foster care system without being adopted. ASFA has been successful regarding these issues and significantly increasing foster adoptions, but does not provide similar incentives for increasing the numbers of successful reunifications of families, a measure that would suggest a more fair emphasis on promoting the interests of both children and parents and their collective or shared rights and needs.

 

Analysis of ASFA According to Justice as Fairness- Second Principle

     Rawls' (1999) second principle addresses the inevitability that there will be inequalities in society. However, this principle asserts that such "social and economic inequalities are to be arranged so that they are to the greatest expected benefit to the least advantaged... under conditions of fair equality of opportunity" (p. 72). One key element of ASFA particularly highlights the justice issues addressed by the second principle, which is the institution of time limits for permanency. The time limits under ASFA (1997) require that permanency hearings must be held within 12 months of a child coming into care, and a decision will be made regarding whether the goal for the case is to remain family reunification (always the original goal) or termination of parental rights. Under ASFA, termination of parental rights should occur once the child has spent 15 out of 22 months in out of home care. This was meant to reflect the child's sense of time and needs for permanency (Adler, 2001). However, there are many factors that ASFA does not address that render such timelines for successful reunification of most families in the system nearly impossible, thus placing children at risk of either unsafe reunification or potentially unnecessary adoption.  

 

Core issues resulting from ASFA that present justice challenges include the following:

  • Common problems among parents in the child welfare population include poverty, mental health and substance abuse issues, which are complex, often resistant to intervention and may require a significant period of time in which to achieve and demonstrate recovery. There is a lack of services designed to specifically address the needs of maltreated children and their maltreating parents in an integrated manner.
  • Adults in the child welfare system have difficulties securing and initiating adequate services in a timely manner.
  • Health care coverage and related access issues present a challenge. Low income parents have traditionally comprised approximately 25 percent of the uninsured in the U.S. (Rosenbaum & Whittington, 2007).
  • ASFA's timelines do not allow sufficient flexibility to reflect the varying needs of individuals in the system. At minimum, if these timelines are meant to reflect the child's sense of time, then they must at least be flexible enough to represent the different ages and developmental stages of children, rather than treating them as a homogenous group.

Future Directions

     It can be argued that the goals of ASFA and Congressional aims to improve the lives of children in the child welfare system were well intended to address legitimate concerns regarding the mistreatment of children, yet this policy has struggled to achieve those goals or an adequate degree of justice for either the affected children or their parents. Perhaps its greatest failure lies in the separation of the interests of children and parents, as our understandings of child and human development support that these interests are best preserved when we achieve positive outcomes in an integrated and targeted manner for both.

    Perhaps using Rawls' concept of the "veil of ignorance" where one does not know what role or position one holds in society is the best way to create a just social policy to achieve the child welfare goals addressed by ASFA. What would child welfare policy look like if created without any knowledge of whether you would be entering into the inherent contract as a maltreated child, a maltreating parent, a foster parent, a judge, a child protection worker or any other member of society who stands to benefit or suffer the costs of individuals being harmed and treated unjustly? It seems logical that if one could truly undertake the thick veil of ignorance described by Rawls and suspend the false notion that child maltreatment only concerns an undesirable segment of society, then we would all favor heavier investment in primary and secondary prevention services to eliminate many of these justice dilemmas.   

  

Recommendations   

  

   ENHANCING SOCIAL CAPITAL

       -addressing community norms

       -supporting informal networks

                     -solution-focus vs. deficit-orientation   

 

   DEVELOPING SPECIALIZED SERVICES                IMPROVING HEALTHCARE ACCESS

   -integrating mental health, parenting,             -utilizing and monitoring benefits
    & substance abuse interventions for              of the Affordable Care Act &  

    child welfare                                                          Mental Health Parity & Addiction

                                                                                      Equity Act                                       

References

  

Adler, L.S. (2001). The meanings of permanence: A critical analysis of the Adoption and Safe Families Act of 1997. Harvard Journal on Legislation, 38(1), 1-36. 

 

Barth, R.P., Wulczyn, F., & Crea, T. (2005). From anticipation to evidence: Research

on the Adoption and Safe Families Act. Virginia Journal of Social Policy & the Law, 12(3), 371-399. 

 

Child Welfare Information Gateway. (2012). Major federal legislation concerned with child protection, child welfare, and adoption. Accessed online 

http://www.childwelfare.gov/pubs/otherpubs/majorfedlegis.cfm.  

 

Gordon, R.M. (1998). Drifting through Byzantium: The promise and failure of the Adoption and Safe Families Act of 1997. Minnesota Law Review, 88, 637-685. 

 

Moye, J., & Rinker, R. (2002). It's a hard knock life: Does the Adoption and Safe Families Act of 1997 adequately address problems in the child welfare system? 

Harvard Journal on Legislation, 39, 375-394. 

  

Rawls, J. (1999). Theory of justice. 2nd ed. Boston: Harvard University Press.

 

Rosenbaum, S., & Whittington, R. P. T. (2007). Parental health insurance coverage as child health policy: Evidence from the literature. Washington, D.C.: Department of Health Policy, School of Public Health and Health Services, The George Washington University.

 

Scanlon, T.M. (1989). Rawl's theory of justice. In N. Daniels (Ed.), Reading Rawls: Critical studies on Rawls' A Theory of Justice. Stanford, CA: Stanford University.

 

Wakefield, J.C. (1988). Psychotherapy, distributive justice, and social work: Part 1: Distributive justice as a conceptual framework for social work. Social Service Review, 62(2), 187-210. 

      

Wilkinson-Hagen, A. (2004). The Adoption and Safe Families Act of 1997: A collision of Parens Patriae and parents' constitutional rights. Georgetown Journal on Poverty Law & Policy, 1, 137-168.  

    

Wulczyn, F. (2004). Family reunification. The Future of Children, 14(1), 94-113.