New Directions For Foster Care Reform

• Author: Michael S. Wald
• Date: 01 March 2017
• DOI: http://doi.org/10.1111/jfcj.12083
• Published date: 01 March 2017

New Directions For Foster Care Reform

By Michael S. Wald

ABSTRACT

Since the 1970s, legislatures and courts have adopted a variety of approaches to

address foster care’s overuse, instability, and lack of permanence. Most reforms

focused on rules and procedures. It appears that there has been progress with respect

to each of these issues, but the foster care system still has many deficiencies. It is unli-

kely that further changes in legal standards will significantly improve the system;

the core issues relate to implementation of good practices. The foster care system

now responds to three types of problems: protecting children from parental maltreat-

ment; helping children who exhibit severe behavioral problems; and dealing with

families experiencing high levels of parent-child conflict. Services should be rede-

signed to reflect differences in the issues presented by the three populations.

Key words: foster care, rules, standards, outcomes, safety, mental health, family conflict.

I. INTRODUCTION

Since at least the 1970’s, there has been a consensus that the basic purpose of the

child welfare system (CWS) is to protect children from significant harms related to the

quality of parental care.

1

Given this focus, once it has been determined that a parent has

Michael S. Wald has been a Professor of Law at Stanford University since 1967. His teaching and

research focuses on children and public policy. Professor Wald has held a number of non-academic positions

related to child welfare. He was Director of the San Francisco Human Services Agency, Deputy General

Counsel of the US Department of Health and Human Services, a member of the US Advisory Committee on

Child Abuse and Neglect, chair of the California State Advisory Committee on Child Abuse, and a member

of the Carnegie Foundation Commission on Children 0-3.

*I am grateful to Richard Barth, Jill Duerr Berrick, Leonard Edwards, Mark Testa, Christopher

Wildeman and Dee Wilson for their comments on earlier drafts and Abigail Barnes for her research assis-

tance.

1

Prior to 1970s the goals and standards in dependency system were generally vague. During the

1970s, most states moved towards “a harm standard. See, Michael S. Wald, “State Intervention on Behalf of

“Neglected” Children: A Search for Realistic,” 27 Stanford Law Review 985 (1975); “State Intervention on

Behalf of “Neglected” Children: Standards for Removal of Children from Their Homes, Monitoring the Sta-

tus of Children in Foster Care, and Termination of Parental Rights,” 28 Stanford Law Review 623 (1976). In

recent years, there has been more focus on promoting children’s well being after intervention, but the

grounds for intervention in most states still focus on harm.

Juvenile and Family Court Journal 68, No. 1

©2017 National Council of Juvenile and Family Court Judges

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acted in a manner that has caused, or creates a high risk of leading to, significant harm to

a child as defined by state child abuse and neglect statutes, it must be decided how best

to protect the child from future harm. Both state and federal law reflect a general prefer-

ence for keeping children with their parents if this can be done in a manner consistent

with protecting the child’s safety.

2

This preference reflects a number of factors, including

evidence that removal can be traumatic for many children,

3

and that foster placement

too often does not provide children with adequate care.

Concerns over the quality of foster care have been a driving force in reform efforts

regarding the child welfare system since the 1960s. Most of the focus has been on three

problems: instability, impermanence, and the uneven quality of care. Historically, many

children experience multiple placements, which can be very harmful to their emotional

wellbeing and development. In addition, foster placements often last for prolonged peri-

ods and fail to provide children a permanent family. Third, the quality of placements too

often is poor. There also has been an on-going concern about possible overuse of foster

care, given the preference for family preservation.

4

Each of these factors impacts children

directly. Moreover, when judges and child protection caseworkers have concerns regard-

ing the quality of foster care, they are more predisposed to leave children in marginal

homes because the alternative is seen as worse.

The past forty years have seen numerous efforts to reform the foster care system,

through legislation, administrative policies and practices, and litigation. Yet, as reflected

in this conference, widespread concerns remain that the foster care system is not func-

tioning well. In this article, I present data that provide a picture of how the current sys-

tem is working and of the changes over time with respect to achieving the desired

outcomes of stability, permanence, and quality foster care.

The data appear to reflect progress in reducing the numbers of children in care and

increasing stability and permanency of placements. But, substantial evidence indicates

that many child welfare systems still are facing major challenges in providing children

with safe, stable, high quality care–at home as well as in foster care. Congress once again

has legislation pending that attempts to address ongoing issues;

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governors and

2

See, e.g., the recently introduced Family First Prevention Services Act of 2016, H.R. 5456, that,

according to one of its sponsors, House Ways and Means Chairman Kevin Brady, “does exactly what the title

suggests —it puts families first. The bill focuses on addressing problems in the home by delivering par-

ents much-needed support, rather than sending a child straight into foster care. PressFromWays&Means@

mail.house.gov June 10, 2016.

3

Legal policy regarding the importance of continuity of parental care has been heavily influenced by

Joseph Goldstein, Anna Freud, and Albert Solnit, Beyond The Best Interests of the Child (1973); see also,

Joseph Doyle, “Causal effects of foster care: An instrumental-variables approach,” 35 Children and Youth Ser-

vices Review 1143 (2013) for data supporting the preference. CF., Elizabeth Bartholet, “ Creating a Child-

Friendly Child Welfare System: Effective Intervention to Prevent Maltreatment and Protect Victimized

Children,” 60 Buffalo Law Rev. 1323 (2012) that argues for more placement.

4

There is some evidence that, at least at the margin, children are better off at home. See Joseph

Doyle, “Child Protection and Child Outcomes: Measuring the Effects of Foster Care,” 97 Amer. Econ. Rev.

1583 (2007), Doyle supra note 3; E.C. Lloyd and Richard Barth, “Developmental outcomes after five years

for foster children returned home, remaining in care, or adopted,” 33 Children and Youth Services Review

1383 (2011), but the evidence is mixed, see Christopher Wildeman and Jane Waldfogel, “Somebody’s Chil-

dren or Nobody’s Children? How the Sociological Perspective Could Enliven Research on Foster Care,” 40

Annu. Rev. Sociol 599 (2014).

5

Family First Prevention Services Act supra note 2.

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