Swimming Upstream Against the Great Adoption Tide: Making the Case for "Impermanence"

• Author: Sacha Coupet
• Position: Assistant Professor of Law and Director of Research, Civitas Child Law Center, Loyola University Chicago School of Law
• Pages: 405-458

Page 405

Introduction

This Essay explores the following question: if adoption is a recognized good, particularly in the parlance of stated child welfare goals that prioritize permanency, does it follow that more adoptions are necessarily good? Asked another way, is there a case to be made, especially for a certain segment of the population, for opposing adoption in favor of a more "impermanent" alternative? A cursory review of federal and state child welfare policy would tend to suggest that the simple answer is "yes" to the first query and "no" to the second. Indeed, clearly articulated child welfare policy reveals distinct pro-adoption rhetoric that continues to laud adoption as the singularly ideal "happy ending" in the sad tale of foster care in the United States.¹ Like the townspeople gathered at the riverbank in Professor Martin Guggenheim's parable,² rescue has come to reflect onePage 406 dominant narrative: "waiting"³ children without natural parents are magnanimously plucked from the river of foster care and delivered to new, presumably fitter, "forever" families. Through the force of mixed motives-incentivized behavior conditioned by financial gain and perhaps deeply ingrained notions about the fungibility of mostly poor, minority parents-adoption has come to be viewed as the optimal, and perhaps too often, the only permanent solution for children who cannot be returned to their biological parents once they have been removed by the state. Simply put, adoption has become synonymous with permanence and has virtually crowded out all other competing alternatives. As the Assistant Secretary of Children and Families, Dr. Wade Horn, noted in championing the current federal effort to promote adoption, '"President Bush has worked hard to increase the number of adoptions so [that] more children can grow up in safe, stable and loving homes . . . [and] so no child will be left behind.'"⁴

Many seem to prefer adoption precisely because it leaves nothing behind. Only adoption, cast as the river rescue in the parable, offers the promise of "rebirth," wiping the slate clean and permitting innocent and wounded children to start anew with healthier, untainted families. Once a new and improved parent-child dyad is constructed, the system is redeemed and the status quo is reinstated. That is exactly the problem. The varied profile and widely differing circumstances faced by these waiting children and the families from which they hail should prompt us to focus more intently on the second question posed above. The answer, I suggest, depends on which children are waiting, what types of out-of-homePage 407 caregiving arrangements exist, and whether the impermanent alternatives really serve the same ultimate aim.⁵

State child welfare systems, taking guidance from federal legislation, have successfully broadened their scope of interventions to include, among other measures, an affirmative effort to increase the number of adoptions from foster care, in addition to enhanced child protection. These interventions serve as a means of both reducing the overall number of children in care and achieving permanency for children believed to need it most.⁶ The last major piece of federal child welfare legislation, the Adoption and Safe Families Act of 1997 (ASFA),⁷ represents the most comprehensive legislative scheme to assist states in achieving these aims. ASFA's primary intent was to limit the time children spent in out-of-home care by establishing expedited timelines for the termination of parental rights, which included eliminating the requirement on states to make "reasonable efforts" at reunification in a broader range of circumstances,⁸ and offering adoption incentive payments to states that increase their adoptions of foster children above a baseline measure.⁹ ASFA stepped up previously initiated adoption promotion efforts reflected in the Adoption Assistance and Child Welfare Act of 1980,¹⁰ the first piece of legislation to provide federal adoption subsidies.¹¹ Unlike the legislation that preceded it, ASFA placed an unambiguous priority on moving children from foster care and into adoptive homes by creating a hierarchy of preferred permanency goals. Although the priority is not evident in the language ofPage 408 the Act in which permanency goals are defined,¹² it is inherent in the creation of the accompanying adoption incentives.¹³ Consequently, adoption has come to dominate child welfare discourse. While family reunification retains currency as a concurrent goal around which case planning is, at least in theory, supposed to revolve, adoption continues to occupy a prominent place in the discussions concerning optimal permanency options for children in state custody, particularly once reunification with their biological parents is no longer an option.

Increased financial incentives under ASFA, and most recently under the Adoption Promotion Act of 2003,¹⁴ have achieved what policy initiatives alone could not. Under the incentives program, states were offered "up to $6,000 for every adoption out of the foster care system [that] they could accomplish in excess of the number they [achieved] the year before."¹⁵ Recent legislation has added an additional $4,000 bonus for adoptions of older children.¹⁶ "States across the country, often in response to [these attractive] cash incentives offered by the federal government, have been under intense pressure in recent years to move children through their foster care systems and into permanent homes."¹⁷ Indeed, states are continuing to direct a substantial amount of manpower and money to meet the challenge issued by President Clinton and then-First Lady Hillary Clinton at the signing of ASFA: to "speed up and increase the numbers of adoptions" nationwide.¹⁸ This legislation, and the financial incentives it created, has resulted in an increase in the number of children being adopted out of foster care and into presumably loving, and most importantly,Page 409 permanent homes.¹⁹ In the five years following ASFA's implementation, the percentages of children leaving foster care to either adoption or guardianship increased, while exits due to reunification declined.²⁰ Consistent with President Clinton's challenge and his accompanying Adoption 2002 initiative, adoptions in the four-year period following 1997 increased by 62%.²¹ Since this time, additional money continues to be poured into the promotion of adoption under the Bush administration's "revised and strengthened" Adoption Incentives Program, which in October 2004 rewarded thirty-one states and Puerto Rico with $17,896,000 for having successfully increased the number of adoptions from foster care over the 2002 level.²²

In contrast to Professor Guggenheim, who noted at the Wells Conference that child advocates committed to making meaningful improvements in the lives of at risk children should strongly temper their support of adoption,²³ I would argue that these pro-adoption policies andPage 410 the corresponding statistics that reflect their overwhelming success are not, in and of themselves, necessarily bad. For the many foster children who are, as of today, waiting for adoption, adoption by caring adults is unquestionably better than being shuttled between foster homes until emancipation at age eighteen. But the problem with touting adoption as the best long-term solution is that child welfare policy ends up being merely pulled along by a "downstream" adoption-focused force, one that compels us to shift our attention away from both earlier opportunities to intervene and perhaps more appropriately tailored interventions. Moreover, with our gaze fixed downstream, we are tempted to overlook the state's failure to provide meaningful preventive services to avoid out-of-home placement, while celebrating the reconstituted adoptive nuclear family.²⁴

This is not surprising, considering that our entire framework for understanding, defining, and regulating families revolves around a nuclear family ideal. As it does in traditional family law, a definition of families based on a parent-child dyadic form, rather than the assumption of the "parenting" function, is still the prevailing paradigm in child welfare policy and practice. There is, moreover, a certain appeal to the idea of a fresh start that adoption is believed to offer children whose early lives have been so shaped by trauma and loss. Focusing on adoption as the last chapter of state involvement for foster children also allows us to avoid dealing with the enormously complex root causes of child neglect and abuse which, as is often remarked, would require a herculean effort backed, of course, by equally generous spending. In short, it is easier, but by no means easy, to tackle the problem at the point of least resistance-along a downstream current, so to speak-as opposed to swimming upstream. Consequently, in most states, by the time adoption is a realistic possibility for waiting children, there are few, if any, better remaining alternatives, not because they never existed, but perhaps because they were...