Follow the Money: Federal, State, and Local Funding Strategies for Child Welfare Services and the Impact of Local Levies on Adoptions in Ohio

• Author: Susan Vivian Mangold - Catherine Cerulli
• Position: Professor of Law at the University at Buffalo Law School, State University of New York - Director of the Laboratory of Interpersonal Violence and Victimization and Assistant Professor, Department of Psychiatry, School of Medicine and Dentistry, University of Rochester
• Pages: 349-384

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DFOLLOW THE MONEY: FEDERAL, STATE, AND LOCAL FUNDING STRATEGIES FOR CHILD WELFARE SERVICES AND THE IMPACT OF LOCAL LEVIES ON

ADOPTIONS IN OHIO

SUSAN VIVIAN MANGOLD AND CATHERINE CERULLI^*

I. INTRODUCTION

Since 1961, the federal government has been an actor in the locally delivered child welfare system, addressing the needs of abused and neglected children by creating both mandated policies and fiscal support for child welfare systems.¹At the federal level, policies have been enacted, reformed, and amended repeatedly to rectify new problems, sometimes created by their prior reform.²Before the Obama Administration even took office, advocacy organizations were developing policy agendas to urge the new administration to continue to reform the child welfare system,³and scholars were recommending new models for legal accountability in the welfare state.⁴Concurrently, states and local governments are facing severe budget shortages causing freezes and cuts in

Copyright© 2009, Susan Vivian Mangold and Catherine Cerulli

* Professor Mangold is a Professor of Law at the University at Buffalo Law School, State University of New York. Thanks to the Baldy Center for Law and Social Policy for support in researching this article. Thanks also to my Fall 2008 Child Welfare class for their research and debate on state funding for child welfare services. Professor Cerulli is Director of the Laboratory of Interpersonal Violence and Victimization and Assistant Professor, Department of Psychiatry, School of Medicine and Dentistry, University of Rochester.

¹Title IV of the Social Security Act, Pub. L. No. 87-31, § 407–08, 75 Stat. 75, 75–78 (1961).

²See ASSISTANT SEC’Y FOR PLANNING & EVALUATION, U.S. DEP’T OF HEALTH &

HUMAN SERVS., A BRIEF HISTORY OF THE AFDC PROGRAM 4–8 (1998), available at

http://aspe.hhs. gov/hsp/AFDC/baseline/1history.pdf.

³See CENTER FOR LAW AND SOCIAL POLICY, CLASP FEDERAL POLICY

RECOMMENDATIONS FOR 2009 AND BEYOND: AN OVERVIEW (Oct. 16, 2008), available at

http://www.clasp.org/admin/site/publications/files/0436.pdf.

⁴Kathleen G. Noonan, Charles F. Sabel & William H. Simon, Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform, L. & SOC. INQUIRY

(forthcoming 2009) available at http://ssrn.com/abstract=1088020.

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a range of child welfare services.⁵Undoubtedly, these budgetary constraints will have an impact on children’s wellbeing.

This article draws attention beyond the policies to the fiscal strategies at the federal, state, and local levels that impact the service delivery, sometimes perversely altering the policy initiatives. All who watch the child welfare system are repeatedly flummoxed by the unintended consequences that flow from each new policy initiative. Examining the fiscal policies underlying the mandates can help explain these nagging problems, while illuminating the gross inefficiencies in the system. In particular, we consider the use of dedicated tax levies by approximately half of the eighty-eight counties in Ohio. Using ten years of data provided by the Public Children Services Association of Ohio (PCSAO), we examine whether the use of levies correlates with an increasing or decreasing number of children in care over time, as well as the number of adoptions and the mean number of days children await adoption.

The child protection and child welfare systems balance the rights and responsibilities of parents and the state when a child is reported as abused or neglected.⁶Once the state intervenes and assumes some or all of the parental rights, the private arrangements and exchange of rights between biological parents are no longer sufficient to understand the legal arrangements in that family. This tripartite relationship between the parent-child-state has been the central focus of constitutional jurisprudence, scholarly writing, and bureaucratic decision-making. In private family law or domestic relations, the rights of biological parents govern the custody of the child.⁷In public family law, state and federal laws govern the limits and character of state intervention.⁸

When should the state intervene into families? When do children’s rights to state protection overcome the parental right to raise their children as they see fit? When does a child’s independent right to empowerment or

⁵ Erik Eckholm, States Slashing Social Programs for Vulnerable, N.Y. TIMES, Apr. 12,

2009, at A1.

⁶See, e.g., OHIO REV. CODE ANN. § 2151.01 (2000); MINN. STAT. § 626.556 (2004); GA. CODE ANN. § 19-7-5 (2004); N.J. STAT. ANN. § 30:4C-1(a) (West 2005).

⁷See, e.g., OHIO REV. CODE ANN. § 3109.03 (2005); OHIO REV. CODE ANN. § 3109.401 (2009).

⁸The phrase public family law is used to highlight the role of the state and federal government in the lives of children identified by the child protective services system. See Susan Vivian Mangold, Challenging the Parent, Child, State Triangle in Public Family Law: The Importance of Private Providers in the Dependency System, 47 BUFF. L. REV.

1397, 1397 (1999).

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autonomy emerge? How does the state best exercise the parens patriae power to help abused and neglected children grow into healthy adults? These are all questions that play out in the one-dimensional triangle of the parent, child, and state. For a generation, federal mandates implemented at a state level have addressed these questions. These mandates have brought about a new set of questions concerning state autonomy and creativity in addressing family matters that traditionally have been left to private individuals or local officials.⁹We consider this the substantive dimension of child welfare law.

Since 1961, with the advent of federal funding for foster care, a second triangle has emerged that is less noted by the courts and commentators, but is often determinative in the bureaucratic realm of child welfare.¹⁰That is

the sharing of fiscal responsibility between the federal, state, and local governments to pay for child welfare services.¹¹We consider this the fiscal dimension of child welfare law.¹²Here, questions regarding the proper distribution of the fiscal responsibility emerge. The federal mandates are imposed in exchange for federal dollars in the form of grants or open-ended entitlements, but the fiscal incentives are sometimes contrary to the substantive goals of the legislation.¹³Further, these funding incentives may be lost as state and local governments grapple with eligibility criteria and alternative sources of funding.

⁹See generally Anne C. Dailey, Federalism and Families, 143 U. PA. L. REV. 1787 (1995) (advocating localism, a theory which supports continued state sovereignty over familial relations due to the normative character of family law and its close ties to a “communitarian model of state authority under the Federal constitution”); Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 U.C.L.A. L. REV. 1297 (1998)

(discussing the history of the roles of all levels of government in family law).

¹⁰See Laura Radel, How and Why the Current Funding Structure Fails to Meet the Needs of the Child Welfare Field, ASPE ISSUE BRIEF (August 2005), http://aspe.hhs.gov/

hsp/05/fc-financing-ib/ib.pdf (providing an overview of federal child welfare funding programs).

¹¹ Id.

¹²See generally David A. Super, Rethinking Fiscal Federalism, 118 HARV. L. REV.

2546 (2005) (providing an overview of Fiscal Federalism and a discussion of federal-state funding for programs for low-income people). Debates about federalism are increasingly about public finance (i.e., which level of government should pay for what). See, e.g., Richard Briffault, Public Finance in the American Federal System: Basic Patterns and Current Issues, 2 COLUM. J. EUR. L. 533 (1997); Kenneth J. Drexler, The Four Causes of

the State and Local Budget Crisis and Proposed Solutions, 26 URB. LAW. 563 (1994).
¹³See Radel, supra note 10, at 2.

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States’ interests in maximizing the federal dollars flowing into the state may move them away from the model policies enshrined in the federal mandates. Foster care and adoption assistance are open-ended entitlements under Title IV-E of the Social Security Act.¹⁴An unlimited federal match is available to states for eligible children.¹⁵For foster care, approximately half of children can be certified as eligible,¹⁶so other funding sources with very different substantive goals may be substituted to provide key child welfare services. The law changed in 2008 to eliminate income eligibility for adoption assistance.¹⁷The impact of this fiscal change will be important to follow in future research to assess the interrelationship between policy, fiscal incentives, and actual service delivery.

Taken together, the substantive and fiscal considerations create a three-dimensional analysis with a dynamic relationship that not only impacts the delivery of child welfare entitlement services, but also impacts other human services programs. Although it may seem obvious that fiscal considerations will guide service delivery, or that service needs will drive fiscal appropriations, the dynamic is more complicated. The complication arises because the substantive and fiscal dimensions are played out in fifty-one different states (counting Washington, D.C. as a state for these purposes). Many states supplement Title IV-E funding with Social Security Block Grants, Medicaid, or Temporary Assistance for Needy Families (TANF) funds to pay for entitlement services such as foster care, adoption assistance, and independent living because they can garner more federal funds through these funding streams than would be available to them through Title IV-E.¹⁸When states make these fiscal choices...