Assessing the Context of Permanency and Reunification in the Foster Care System. 1.2 Federal Legislation


It is important to put federal legislation into a proper perspective in the history of the child welfare system in the United States. Legislation largely followed trends that were already underway, rather than creating those trends, so it is a mistake to trace history solely in terms of legislation. Furthermore, child welfare is a state responsibility (often delegated to counties), so in fact there are more than fifty separate child welfare systems in this country. Child welfare laws, customary ways of dealing with family problems, characteristics of caseloads, and salience of various social problems all vary considerably from one jurisdiction to another. All of the innovations in the child welfare system in the past century began in the states, some were later embraced by the federal government. Nonetheless, federal legislation confirmed trends and contributed to them, so a complete picture of the history of child welfare must include it.

The Social Security Act. The Social Security act of 1935 included, in Title IV-B, grants to the states for child welfare services. Most of these funds were initially used for foster care but more recently they have been used for other services. In 1961, as part of the Aid to Dependent Children program, under Title IV-A of the Act, funds were provided to the states for costs of foster care for children eligible for assistance under ADC in an attempt to address barriers to placing children in foster care when their own homes were unsafe. Funding is open ended, provided under a matching grant formula. In 1980 the program was transferred to Title IV-E of the Act.

Funding for foster care under these provisions has constituted, and continues to constitute, the major contribution of the federal government to the child welfare system in this country. The openendedness of the funding has been thought by many to be a significant disincentive to reforms that might de-emphasize foster care, whether through family preservation or alternatives to foster care such as adoption.6

The Child Abuse Prevention and Treatment Act (CAPTA, PL 93-247). CAPTA was enacted in 1974, as a result of the heightened awareness of child abuse in the 1960s. Although states had already begun to pass mandatory reporting laws, CAPTA encouraged such laws, provided for the development of standards for responding to reports, and required maintaining records of reports. CAPTA established the National Center on Child Abuse and Neglect and provided funds to the states that adhere to the Act's provisions. The Act contributed to the development of the state child protective agencies that now constitute the core of the child welfare system.

The Adoption Assistance and Child Welfare Act (PL 96-272). Passed in 1980, this Act was a triumph of the advocates of family preservation. It required that states (as a condition of receiving federal funds for foster care expenses) exercise "reasonable efforts" to prevent the placement of children whenever possible and to encourage the return home of children removed from their parents. The Act represented an unusual melding of interests: both those concerned with the burgeoning costs of foster care to federal and state governments and those interested in affirming the importance of family life supported it. Following its passage, states continued to develop family preservation programs and the family preservation philosophy of not removing children unless absolutely necessary took hold. However, it is generally accepted that the Act was never fully implemented. The Act did not include funding for family preservation or reunification programs (there were no carrots in the Act, only the stick of reduced funding if federal guidelines were not followed) and the vague term "reasonable efforts" was never adequately defined so that it was unclear whether the intent of the Act was being followed in individual cases.

The Family Preservation and Support Provisions of the 1993 Omnibus Budget Reconciliation Act. This Act provided funds to the states for family preservation and family support (child maltreatment prevention) programs.7 This enactment finally put federal funds behind the requirements of PL 96-272. States were required to use at least some of the funds for each of the subcategories of programs, family preservation and family support. However, there is evidence that most of the funds were allocated to family support. The Act came at the time the family preservation movement was beginning to wane.

The Adoption and Safe Families Act (ASFA). ASFA was enacted in 1997, with the waning of family preservation now well under way. It shifted federal guidance away from family preservation to again emphasize the safety of the child, a trend already evident in many jurisdictions. The Act reauthorized funding for family preservation and family support but added reunification and adoption services to the list of activities that could be supported by the funds. Other provisions of the Act limited the length of time most children could be in foster care before an alternative other than return home was pursued, encouraged "concurrent planning" (planning for both return home and other alternatives at the same time), and encouraged states to increase the number of adoptions. The Act confirmed the swing of the pendulum back to emphasis on the safety of the child.

Income Support Programs. Welfare programs have long had substantial effects on child welfare and indirectly on the child welfare system. Aid to Dependent Children (later Aid to Families of Dependent Children), enacted as part of the original Social Security Act, provided financial support for destitute children and is thought to have prevented the involvement of the child welfare system in many families. The welfare reform of 1996 (PL 104-193) eliminated AFDC, replacing it with Temporary Assistance to Needy Families. In the process, the federal entitlement to welfare assistance was replaced by block grants to states. Adults who receive assistance must engage in activities that will lead to work and the length of time on welfare is limited in most cases to a lifetime total of five years.

6.  States have used some funds from the Social Services Block Grant (Title XX of the Social Security Act, passed in 1975) for child welfare, including prevention and family preservation programs.

7.  Despite the intention of the Act, most family support programs do not explicitly include maltreatment and prevention/reduction among their goals and do not target children at significant risk of maltreatment.