Assessing the Context of Permanency and Reunification in the Foster Care System. 1.1 The New Legislative Framework and Its Implementation


The legislation of 1997 not only shifted emphasis back toward the safety of the child, it also placed restrictions on the practice of child welfare workers by limiting the time for decisions, requiring concurrent planning, and limiting the exercise of discretion. Legislative requirements of this kind are always blunt instruments for the achievement of policy objectives. No universal prescription can possibly fit all of the familial circumstances of children in foster care. Fully individualized plans for families are no longer possible.

The requirement that proceedings for termination of parental rights begin if the child has been in state custody for 15 of the most recent 22 months has undoubtedly benefited many children who would otherwise have remained in foster care for a long time. But there are cases in which the legislative timetable may not be appropriate (as is acknowledged by the fact that exceptions are permitted with the concurrence of a judge). Time has different meanings at different ages, and the urgency to act quickly may not be as great for older children as for infants and toddlers. Furthermore, termination of parental rights may not be as appropriate for teenagers in placement who may not wish to sever parental ties and who may be content to live out their childhood in foster care, sometimes with a relative. The requirement for termination may also not be appropriate for some younger children in relative foster care where there are comfortable, or at least adequate, relationships among the natural parents, the foster parents, and the child. This is one of the motivations for the development of the status of guardianship.

One can imagine a number of side effects of the new timetables for decisions. We cite two here. As many children are more quickly discharged from care, whether to their parents, relatives, or adoption, that those remaining in care (1) will be those with problems that are more difficult to resolve such as older children,or special needs children; and (2) will have been in care longer. Hence, the lengths of time in care for the group in care at any one time may be expected to increase (this appears to be happening in some places).

In considering the legislation, one must remember that no policy choice can eliminate all risk of harm to children. Decisions entail predictions and prediction is not perfect. As long as any children are returned home, at least a few will be subsequently harmed. And some children in other permanency arrangements, whether adopted, in homes of relatives, or in long term foster care, will also suffer from maltreatment. And, these arrangements may not turn out to be permanent. As more children enter these alternative arrangements, the rate of their disruption can be expected to increase.3

3.  It is to be expected that as more alternative arrangements are used, more of them will experience difficulties. But the rate of difficulty is also likely to go up, since thresholds for deciding to use a particular alternative arrangement will go down. That is, use will be made of relative's homes and adoptive homes that might not have been used previously.