Re-examining and Re-defining Permanency from a Youth's Perspective

• Author: Randi Mandelbaum
• Position: Clinical Professor of Law, Annamay Sheppard Clinical Scholar, and Director, Child Advocacy Clinic, Rutgers-Newark School of Law. This Article is dedicated to the many foster youth who have touched me in so many ways and who have framed my perspective on what family means and should mean. Your resilience and perspective is both awe-inspiring and...
• Pages: 259-305

RE-EXAMINING AND RE-DEFINING PERMANENCY

FROM A YOUTH’S PERSPECTIVE

RANDI MANDELBAUM*

Why do you guys keep asking me if I want to be adopted? You know

it’s not going to happen . . . . And I already have a Mama . . . . Why don’t

you guys ever talk about her?1

I. INTRODUCTION

Child welfare and judicial systems, while well-intentioned, are failing

our older foster children—defined as children twelve years of age and

older.2 Federal and state laws mandate that efforts be made to find

Copyright © 2015, Randi Mandelbaum.

* Clinical Professor of Law, Annamay Sheppard Clinical Scholar, and Director, Child

Advocacy Clinic, Rutgers-Newark School of Law. This Article is dedicated to the many

foster youth who have touched me in so many ways and who have framed my perspective on

what family means and should mean. Your resilience and perspective is both awe-inspiring

and, at times, heart-wrenching. I am also eternally grateful to Rutgers-Newark law student,

Sarah Fletcher, for her phenomenal and invaluab le research assistance. This Article would

not have been possible without her assistance. And finally, a special thank you to the

organizers of the 10th Annual Wells Conference on Adoption Law for permitting me to

present my ideas for this Article and to the attendees for providing me with such insightful

feedback.

1 This is a quote from a former client. In her case, “Mama” was a former staff person

from a congregate care facility, where she had once resided, with whom she maintained a

relationship even after my former client and “M ama” were no longer involved with the

facility. In many other situations, however, “Mama” is actually the youth’s biological

mother, regardless of whether parental rights have been terminated .

2 While this Article defines “older” children or you th as children aged twelve and above,

it is important to acknowledge three points. First, all children develop at their own unique

pace and, consequently, have different needs at varying ti mes. See Laura Cohen & Randi

Mandelbaum, Kids Will Be Kids: Creating a Framework for Interviewing and Counseling

Adolescent Clients, 79 TEMP. L. REV. 357, 361–68 (2006). Second, some policies and

legislative mandates may define “older” children or youth differently. See id. Where this is

the case, it will be noted. And finally, it is important to acknowledge the comprehensive

body of literature from the fields of social work, psychology, and medicine (neuroscience)

indicating youth develop their emotional functioning, ability to reason, and maturity of

judgment well into their twenties. See id. Thus, while most child welfare systems end their

assistance somewhere between the ages of eighteen an d twenty-one, most youth continue to

need additional support both financially and emotionally. Some have termed this lengthened

process of transitioning to adulthood as “emerging adulthood.” See JEFFREY JENSEN ARNETT,

260 CAPITAL UNIVERSITY LAW REVIEW [43:259

permanent families for all children placed in foster care, first, by reunifying

them with their birth families or, when this is not possible, by securing

alternate families through adoption or guardianship.3 Yet, for children older

than age twelve in the foster care systems, there is less than a 50% chance

this goal will be accomplished.4

While calls to better recruit and secure lasting and legally binding

families for these youth must be heeded, a realistic approach that recognizes

the systems are broken and the need for a drastic re-focusing is necessary.

The current unrealistic expectations cause youth to feel rejected. Worse yet,

ADOLESCENCE AND EMERGING ADULTHOOD: A CULTURAL APPROACH xii (5th ed. 2012). See

also JEANNE HOWARD & STEPHANIE BERZIN, NEVER TOO OLD: ACHIEVING PERMANENCY AND

SUSTAINING CONNECTIONS FOR OLDER YOUTH IN FOSTER CARE 1, 15–16 (Susan Smith &

Adam Pertman eds., 2011); Rosemary J. Avery, An Examination of Theory and Promising

Practice for Achieving Permanency for Teens Bef ore They Age Out of Foster Care, 32 CHILD.

& YOUTH SERVICES REV. 399, 400 (2010); EMILY BUSS ET AL., FROM FOSTER CARE T O

ADULTHOOD: UNIVERSITY OF CHICAGO LAW SCHOOL FOSTER CARE PROJECT’S PROTOCOL FOR

REFORM 11 (2008).

3 See Preventing Sex Trafficking and Strengthening Families Act, Pub. L. No. 113–183,

§ 475A, 128 Stat. 1919 (2014).

4 See Christine Diedrick Mochel, Redefining “Child” and Redefining Lives: The Possible

Beneficial Impact The Fostering Connections to Success Act and Court Involvement Could

Have on Older Foster Care Youth, 40 CAP. U. L. REV. 517, 518 (2012) (“About 50% of youth

in foster care are between the ages of nine and twent y, but over 70% of the children adopted

are under the age of nine.”). In response to the low number of older youth being adopted,

numerous specialized and creative programs have been developed around the country to

identify, recruit, and make concerted and special efforts to match youth with caring and

committed adults. Enhancing Permanency for Youth in Out-of-Home Care, CHILD WELFARE

INFO. GATEWAY 10 (May 2013), https://www.childwelfare.gov/pubs/

focus/enhancing/enhancing.pdf [hereinafter Enhancing Permanency]. One such program is

“You Gotta Believe” (YGB) in New York City, which has been touted as being highly

successful, but which still only has a success rate of approximately 50%. Id. (“In one 4-year

federally funded study, 98 of the 199 youth referred to YGB achieved permanency.”). “You

Gotta Believe is one of a precious few organizations in the U.S[.] and the only organization

in the New York City Metro area that limits its practice to finding permanent parents and

families for young adults, teens, and pre-teens in the foster care system.” Mission &

Philosophy, YOU GOTTA BELIEVE, http://yougottabelieve.org/about-us/mission-philosophy/

(last visited July 4, 2014). Likewise, permanency roundtables, initiated by Casey Family

Programs in Georgia, had a success rate of 34% for teens at the 24-month follow-up mark.

Enhancing Permanency, supra, at 13. “Permanency Roundtable [is a] process designed to

help youth who had been in foster care the longest achieve p ermanency and to help staff learn

new ways of addressing permanency barriers.” Id.

2015] RE-EXAMINING AND RE-DEFINING PERMANENCY 261

the lack of focus on stability and committed adult connections causes too

many youth and young adults to leave foster care homeless, without having

graduated from high school, and without the necessary emotional and

financial foundations to make it on their own.5 These negative outcomes

will continue unless a serious re-evaluation of the overall objectives for

older foster youth is undertaken and different, creative suggestions are made

for this population.

This Article takes a critical look at the mandate of “permanency.” In

Part I, the “numbers” are examined to clarify from the outset how many

youth are waiting to be adopted; how many youth actually achieve

“permanency” through adoption or guardianship; and how many have

alternate “permanency” goals.6 Then, in Part II, several studies and surveys

are reviewed; these studies and surveys document how youth who “age out”

of foster care are faring.7

With these outcomes in mind, Parts III and IV take a closer look at the

term “permanency”: how it is defined in law and policy; how youth view the

term; what youth are stating they need; and the often destructive effects on

youth when permanency is not achieved.8 In doing so, a broader and more

contextualized understanding of permanency is explored. Part V then

concludes with some specific recommendations. It calls for a re-framing of

objectives for older foster youth with less emphasis on the goal of legally

binding ties and an increased focus on stability, particularly with regard to a

youth’s living situation, emotional support, and need to remain connected

with biological family members. In fact, it is proposed that for older foster

youth the term “achieving permanency” should be replaced with the term

“achieving stability and connections.” Part V highlights the need for

statutory reform and offers guidance to courts to help make these goals a

reality and improve the long term prospects for older foster youth.9

5 GINA MIRANDA SAMUELS, A REASON, A SEASON, OR A LIFETIME: RELATIONAL

PERMANENCE AMONG YOUNG ADULTS WITH FOSTER CARE BACKGROUNDS 2 (2008), available

at http://www.chapinhall.org/sites/default/files/old_reports/415.pdf.

6 See discussion infra Part II.

7 See discussion infra Part III.

8 See discussion infra Parts IV & V.

9 See discussion infra P art VI.