Fostering Uncertainty?: A Critique of Concurrent Planning in the Child Welfare System

• Author: Carolyn Lipp (2018)
• Position: Third place, 2018 Howard C. Schwab Memorial Essay Contest; Yale Law School, J.D. 2018; staff attorney at the Brooklyn Defender Services' Family Defense Practice.
• Pages: 221-243

221

Fostering Uncertainty?: A Critique

of Concurrent Planning in the Child

Welfare System

CAROLYN LIPP*

The reckless destruction of American families in pursuit of the

goal of protecting children is as serious a problem as the failure

to protect children . . . destroying the parent-child relationship is

among the highest forms of state violence. It should be cabined and

guarded like a nuclear weapon. You use it when you must.1

—Martin Guggenheim

Co-Director

Family Defense Clinic

New York University School of Law

[C]oncurrent planning can be dened as the process of working

toward family reunication while at the same time establishing an

alternative plan . . . The practice goal is early permanency rather

than family reunication, an important shift in emphasis.2

—Linda Katz

Program Director

Lutheran Social Services

of Washington and Idaho

1. Larissa MacFarquhar, When Should a Child Be Taken from His Parents?, new yorker

(Aug. 14, 2017), https://www.newyorker.com/magazine/2017/08/07/when-should-a-child-be-taken

-from-his-parents (quoting Martin Guggenheim, co-director, Fam. Defense Clinic, N.Y.U. Sch. L.).

2. Linda Katz, Permanency Action Through Concurrent Planning, 20 adoption &

FosterinG 8, 10 (Summer 1996).

* Third place, 2018 Howard C. Schwab Memorial Essay Contest; Yale Law School, J.D.

2018; staff attorney at the Brooklyn Defender Services’ Family Defense Practice.

Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

222 Family Law Quarterly, Volume 52, Number 1, Spring 2018

Introduction

Each year, around 270,000 children are removed from their families’

homes and placed into the foster care system.3 Once children are placed

in care, federal law requires that child welfare agencies make “reasonable

efforts” to both reunify children with their families4 and nd children

alternative permanent homes,5 which can be done simultaneously or

sequentially.6 Concurrent planning is “the process of working toward

family reunication while at the same time establishing an alternative

plan,” which is typically adoption by a foster family or relative.7 In this

model, foster parents8 are expected to support reunication efforts while

also standing ready to adopt the children in their care should reunication

efforts fail.9 Concurrent planning is typically contrasted with sequential

planning, in which the possibility of reunication is rst exhausted before

exploring an alternative permanency option.10 Although the elements of

concurrent planning vary widely across child welfare agencies, the majority

of state statutes now authorize concurrent planning and the majority of

child welfare agencies implement concurrent planning in some form.11

This Article urges states to balance the twin goals of achieving

permanency quickly and protecting family reunication by limiting

concurrent planning to children who are deemed unlikely to reunify with

their families and by clearly differentiating between those tasked with

supporting reunication and those seeking an alternative permanency

3. U.s. dep’t oF health & hUm. servs., Foster Care statistiCs 2015, Child Welfare

Information Gateway (Mar. 2017), https://www.childwelfare.gov/pubs/factsheets/foster/

(“During FY 2015, 269,509 children entered foster care.”).

4. 42 U.S.C. § 671(a)(15)(B) (2015) (requiring that “reasonable efforts . . . be made to

preserve and reunify families—(i) prior to the placement of a child in foster care, to prevent or

eliminate the need for removing the child from the child’s home; and (ii) to make it possible for

a child to safely return to the child’s home”).

5. Id.§ 671(a)(15)(C) (“if continuation of reasonable efforts of the type described in

subparagraph (B) is determined to be inconsistent with the permanency plan for the child,

reasonable efforts shall be made to place the child in a timely manner in accordance with the

permanency plan”).

6. Id.§ 671(a)(15)(F) (“reasonable efforts to place a child for adoption or with a legal

guardian . . . may be made concurrently with reasonable efforts of the type described in

subparagraph (B)”).

7. Katz, supra note 2, at 10.

8. Others use terms like “fost-adopt parents,” “preadoptive parents,” “alternative permanent

caregivers,” and “permanent planning families.”

9.

U.s. dep’t oF health & hUm. servs., ConCUrrent planninG: what the evidenCe

shows 3 (2012) [hereinafter ConCUrrent planninG: what the evidenCe shows].

10. See Sarah Gerstenzang & Madelyn Freundlich, A Critical Assessment of Concurrent

Planning in N.Y. State, 8 adoption Q. 2 (2005).

11. See Part III.A, infra.

Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.