Drifting through byzantium: The promise and failure of the Adoption and Safe Families Act of 1997

Minnesota Law Review

Volumn 83, Issue 3, 1999, Pages 637-700

  Gordon, Robert M ^a  

^a United States Court of Appeals Second Circuit ^*  (United States)

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EID: 0347450472     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (392)

1. Pub. L. No. 105-89, 111 Stat. 2115 (1997).
2. See 143 CONG. REC. S12,668 (daily ed. Nov. 13, 1997) (statement of Sen. Craig). In the House, the lead sponsors were Representatives Dave Camp (R-Mich.) and Barbara Kennelly (D-Conn.). See id. at S12,669 (daily ed. Nov. 13, 1997) (statement of Rep. DeWine).
3. See id. at H2022 (daily ed. April 30, 1997) (statement of Rep. Kennelly).
4. See id. at H10.776 (daily ed. Nov. 13, 1997).
5. See id. at S12,198 (daily ed. Nov. 8, 1997).
6. Id. at S12,526 (daily ed. Nov. 13, 1997) (statement of Sen. Chafee) (stating that the law "will put the safety and health of the child first" and reject "the current system of always putting the needs and rights of the biological parents first"); id. at S12,673 (statement of Sen. Craig) ("While the reforms in the bill respect the rights of others - such as birth parents, relatives, foster families, and adoptive parents - it makes clear that the focus must always be on the child's health and safety"); see also H.R. REP. NO. 105-77, at 8 (1997), reprinted in 1997 U.S.C.C.A.N. 2739, 2740 ("[T]here seems to be a growing belief that Federal statutes, the social work profession, and the courts sometimes err on the side of protecting the rights of parents."); 143 CONG. REC. S3947 (daily ed. May 5, 1997) (statement of Sen. DeWine) ("[W]e have to start worrying about the children's rights and less about the rights of the natural parents."); id. at H2021 (daily ed. Apr. 30, 1997) (statement of Rep. Hoyer) ("Our child welfare system too often protects parents' rights rather than children's rights.").
7. Remarks on Signing the Adoption and Safe Families Act of 1997, 33 WEEKLY COMP. PRES. Doc. 1863, 1864 (Nov. 19, 1997).
8. R. Bruce Dold, Giving Kids a Little More 'Wiggle Room', CHI. TRIB., Dec. 12, 1997, at 27.
9. Jeff Katz, Finally the Law Puts These Kids' Interests First, MILWAUKEE J. SENTINEL, Dec. 28, 1997, at 1.
10. Improving the Well-Being of Abused and Neglected Children: Hearing Before the Senate Comm. on Labor & Human Resources, 104th Cong. 9 (1996) [hereinafter Improving the Well-Being of Abused and Neglected Children] (testimony of Dr. Richard J. Gelles);
11. see also 143 CONG. REC. S12,672 (daily ed. Nov. 13, 1997) (statement of Sen. Grassley) (stating that the system is in "crisis"); id. at S9652 (daily ed. Sept. 18, 1997) (statement of Sen. Rockefeller) (same); Child Welfare Waiver Demonstrations, 60 Fed. Reg. 31,478, 31,478 (1995) (same);
12. GENERAL ACCOUNTING OFFICE, CHILD PROTECTIVE SERVICES: COMPLEX NEEDS REQUIRE NEW STRATEGIES 2 (1997) (same).
13. See infra Parts I.A-B.
14. NATIONAL COMMISSION ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN AGENDA FOR CHILDREN AND FAMILIES 293 (1991).
15. See 143 CONG. REC. S12,670 (daily ed. Nov. 13, 1997) (statement of Sen. DeWine) (stating that ASFA would "save lives"); id. at S12,673 (statement of Sen. Craig) (same). For a definition and discussion of "reasonable efforts," see infra Parts I.A., II.A.
16. See 143 CONG. REC. H10,787 (daily ed. Nov. 13, 1997) (statement of Rep. Kennelly) ("This legislation we can all agree on is putting children on a fast track from foster care to safe and loving and permanent homes."); id. at H10,788 (statement of Rep. Camp) ("This bill will ensure that a permanent, loving home is within the reach of every child."); id. at S12,671 (statement of Sen. Rockefeller) (saying that the bill would "move children out of foster care and into adoptive and other permanent homes more quickly and more safely than ever before").
17. See id. at S12,670 (statement of Sen. DeWine) (stating that the bill will "increase adoptions"); id. at S12,673 (statement of Sen. Craig) (same).
18. Id. at S12,670 (statement of Sen. DeWine).
19. See infra notes 90-92 and accompanying text (discussing the limits of current data collection and analysis).
20. Members of Congress on the left and right acknowledged this during the debate over ASFA. See 143 CONG. REC. S12,673 (daily ed. Nov. 13, 1997) (statement of Sen. Grassley); id. at S5808 (daily ed. June 17, 1997) (statement of Sen. Wyden).
21. For the most part, I approach these issues in the spirit of Joseph Goldstein and his coauthors in their seminal work. They state as a premise their belief that the interests of children are paramount, but they do not mount a theoretical defense of that position. See JOSEPH GOLDSTEIN ET AL., THE BEST INTERESTS OF THE CHILD: THE LEAST DETRIMENTAL ALTERNATIVE 7, 81-82, 250 n.14 (1996).
22. The preference for children's interests is widely shared in American society. See Jon Elster, Solomonic Judgments: Against the Best Interest of the Child, 54 CHI. L. REV. 1, 5 (1987);
23. Robert Pear, Greasy Kid Stuff: Washington Kidnaps Dick and Jane, N.Y. TIMES, June 15, 1997, § 4 (Week in Review), at 1. Defending that preference is a philosophical project beyond the scope of this Article, although Part V infra does offer a brief analysis of ASFA from the perspective of parents.
24. See STAFF OF HOUSE COMM. ON WAYS & MEANS, 104TH CONG., 1996 GREEN BOOK 692 (Comm. Print 1996) [hereinafter 1996 GREEN BOOK];
25. ROB GEEN & SHELLEY WATERS, THE IMPACT OF WELFARE REFORM ON CHILD WELFARE FINANCING 1 (1997).
26. Many scholars argue that the residual approach is doomed to fail absent vast new investments in anti-poverty programs. See MARK E. COURTNEY, THE FOSTER CARE CRISIS 16 (1994);
27. DUNCAN LINDSEY, THE WELFARE OF CHILDREN 4-5 (1994);
28. LEROY H. PELTON, FOR REASONS OF POVERTY: A CRITICAL ANALYSIS OF THE PUBLIC CHILD WELFARE SYSTEM IN THE UNITED STATES (1989). Whether or not this is correct, vast new investments in fighting poverty are not now forthcoming.
29. See Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, 110 Stat. 2105 (1996) (cutting $55 billion over 6 years from federal spending on the poor). As long as the choice is between better and worse residual approaches, and especially as long as the inferior approaches are so poor, the perfect should not become the enemy of the barely adequate.
30. Pub. L. No. 96-272, 94 Stat. 500 (1980) (amending sections 420-27 and 471-79(a) of the Social Security Act) (codified as amended in scattered sections of 42 U.S.C.).
31. See Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-07 (1994).
32. See LEROY ASHBY, ENDANGERED CHILDREN: DEPENDENCY, NEGLECT AND ABUSE IN AMERICAN HISTORY 101-24 (1997);
33. LELA B. COSTIN ET AL., THE POLITICS OF CHILD ABUSE IN AMERICA 82, 97-99 (1996).
34. See ASHBY, supra note 24, at 117; COSTIN ET AL., supra note 24, at 108.
35. See Social Security Act § 521, Pub. L. No. 74-271, 49 Stat. 620, 633 (1935); COSTIN ET AL., supra note 24, at 108.
36. See Social Security Act Amendments, Pub. L. No. 87-31, §§ 2-7, 75 Stat. 75, 76-78 (1961); COSTIN ET AL., supra note 24, at 110.
37. See 1996 GREEN BOOK, supra note 20, at 688-89.
38. These funds were eventually consolidated in Title XX of the Social Security Act, which became the Social Services Block Grant in 1981. See id. at 679; Omnibus Budget Reconciliation Act, Pub. L. No. 97-35, 95 Stat. 357, 511-19 (1981).
39. Because Title XX is a fairly unrestricted block grant whose uses states need not report, limited information is available about the proportion of funds spent on child welfare. See 1996 GREEN BOOK, supra note 20, at 684.
40. According to a 1990 federal survey, however, approximately 29% of program funds are used for protective services for children, preventive services for children and their families, or substitute care and placement services for children. See id. at 686. In addition, 15 to 25% of funds were used for homemaker services or counseling, both of which may be geared in large part to the at-risk populations served by child welfare programs. See id. 29. See H.R. REP. NO. 96-136, at 20-36 (1979), reprinted in 1980 U.S.C.C.A.N. 1448, 1469-85; MaryLee Allen et al., A Guide to the Adoption Assistance and Child Welfare Act of 1980, in FOSTER CHILDREN IN THE COURTS 575, 576-77 (Mark Hardin ed., 1983).
41. See David J. Herring, Inclusion of the Reasonable Efforts Requirement in Termination of Parental Rights Statutes: Punishing the Child for the Failures of the State Child Welfare System, 54 U. PITT. L. REV. 139, 158-59 (1992);
42. Edith Fein & Anthony N. Maluccio, Permanency Planning: Another Remedy in Jeopardy, 66 SOC. SERV. REV. 335, 337 (1992).
43. See S. REP. No. 96-336, at 10, 11 (1980), reprinted in 1980 U.S.C.C.A.N. 1459, 1460. The 500,000 figure included all children in substitute care, including institutions and emergency shelters. See id.; ASHBY, supra note 24, at 216 n.40. Like other numbers in the field, this figure should be viewed with considerable caution. See infra note 91.
44. See S. REP. NO. 96-336, at 10, 11 (1980), reprinted in 1980 U.S.C.C.A.N. 1459, 1460 (citing study showing that two-and-one-half years was the median length of time all children in foster care had spent in care); COSTIN ET AL., supra note 24, at 122-23 (citing studies from late 1970s and early 1980s showing that 70% of children in foster care had been there for longer than a year, that 34% had been there for four years or more, and that 53% had had multiple placements).
45. Walter F. Mondale, Foreword to THE ADOPTION ASSISTANCE AND CHILD WELFARE ACT OF 1980: THE FIRST TEN YEARS 3-4 (N. Am. Council on Adoptable Children ed., 1990) [hereinafter THE FIRST TEN YEARS]; see also S. REP. NO. 96-336, at 10 (1980), reprinted in 1980 U.S.C.C.A.N. 1459, 1459 (agreeing with the view that the law should "move children out of foster care and into more permanent arrangements by reuniting them with their own families when this is feasible, or by placing them in adoptive homes").
46. See Child Welfare Act § 101, 42 U.S.C. §§ 671(a)(15), 672(a)(1) (1994). The "reasonable efforts" requirement applies only to children whose foster care payments are federally reimbursed, i.e., children who would have been eligible for Aid to Families with Dependent Children. See id. § 622.
47. 126 CONG. REC. S6942 (daily ed. June 13, 1980) (statement of Sen. Cranston).
48. See 42 U.S.C. § 675(1).
49. See id. §§ 671(a)(16), 675(1).
50. See H.R. REP. NO. 96-136, at 50 (1979), reprinted in 1980 U.S.C.C.A.N. 1460, 1467.
51. See id.
52. Compare id. (noting that as of 1980, appropriation for Title IV-B had never exceeded $56.5 million and calling for increased funding) with STAFF OF HOUSE COMM. ON WAYS & MEANS, 101ST CONG., 1993 GREEN BOOK 886 (Comm. Print 1993) (showing that appropriation for Title IV-B was $163.5 million in 1981).
53. See H.R. REP. NO. 96-136, at 11 (1979).
54. See Child Welfare Act § 103, 42 U.S.C. § 622 (1994).
55. See id. § 101, 42 U.S.C. §§ 673-74.
56. See id. § 674(a)(3).
57. See Toshio Tatara, The Recent Rise in the U.S. Child Substitute Care Population: An Analysis of National Child Substitute Care Flow Data, in 1 CHILD WELFARE RES. REV. 126, 130 tbl.6.1 (Richard P. Barth et al. eds., 1994) (showing that the foster care population increased from 273,000 at the beginning of fiscal year 1986 to 429,000 at the end of fiscal year 1991).
58. See COURTNEY, supra note 21, at 8 (noting that in real terms, federal foster care spending grew by more than 400% between 1981 and 1993, while Title IV-B services spending grew by only 14% and funds available under the Title XX Social Services Block Grant declined); see also GENERAL ACCOUNTING OFFICE, CHILD WELFARE: STATES' PROGRESS IN IMPLEMENTING FAMILY PRESERVATION AND SUPPORT SERVICES 3 (1997) ("By the early 1990s, over half the [child services] programs we surveyed reported that they were not able to serve all families who needed services primarily due to the lack of funds and staff.").
59. See COSTIN ET AL., supra note 24, at 119-22, 126-29; Paul Adams, Marketing Social Change: The Case of Family Preservation, 16 CHILD. & YOUTH SERVS. REV. 417, 423-37 (1994).
60. Minor modifications of the federal legislative structure include the Social Security Act Amendments, Pub. L. No. 103-432, §§ 201-10, 108 Stat. 4398, 4453-60 (1994),
61. and the Omnibus Budget Reconciliation Act, Pub. L. No. 101-508, § 5052, 104 Stat. 1388, 1388 (1990).
62. See Omnibus Budget Reconciliation Act § 13711, 42 U.S.C. §§ 629-29(e) (1994).
63. See id.
64. Both the Clinton Administration and the President were involved in the development of ASFA. In late 1996, the President announced his goal of doubling the number of adoptions from foster care by 2002 and assuring for every child a "strong and stable home." President's Radio Address, 32 WEEKLY COMP. PRES. DOC. 2512, 2512 (Dec. 14, 1996). At his direction, the U.S. Department of Health and Human Services issued a report recommending many of the measures later incorporated in ASFA. See U.S. DEP'T OF HEALTH & HUMAN SERVS., ADOPTION 2002: A RESPONSE TO THE PRESIDENTIAL EXECUTIVE MEMORANDUM ON ADOPTION ISSUED DECEMBER 14, 1996, at 1 (1997) [hereinafter ADOPTION 2002].
65. For their parts, the House and Senate held several hearings on aspects of the child welfare system between 1995 and 1997. See, e.g., Adoption and Support of Abused Children: Hearing Before the Senate Comm. on Fin., 105th Cong. (1997) [hereinafter Adoption and Support of Abused Children];
66. Child Welfare Revision: Hearing Before the Subcomm. on Soc. Sec. and Family Policy of the Senate Fin. Comm., 104th Cong. 43-44, 47-49, 68-74, 82-91 (1997) [hereinafter Child Welfare Revision];
67. Barriers to Adoption: Hearing Before the Subcomm. on Human Resources of the House Comm. on Ways & Means, 104th Cong. 2-64 (1996) [hereinafter Barriers to Adoption];
68. Improving the Well-Being of Abused and Neglected Children, supra note 10;
69. Federal Adoption Policy: Hearing Before the Subcomm. on Human Resources of the House Comm. on Ways & Means, 104th Cong. 1-3 (1995) [hereinafter Federal Adoption Policy];
70. Streamlining Child Welfare Programs: Hearing Before the Subcomm. on Oversight of the House Comm. on Ways & Means, 104th Cong. 2-96 (1995).
71. 143 CONG. REC. S12,669 (daily ed. Nov. 13, 1997) (statement of Sen. DeWine); see also id. at H10,788 (statement of Rep. Kennelly) (charging that reasonable efforts had become "every effort, [effectively] putting a child at risk").
72. See Improving the Well-Being of Abused and Neglected Children, supra note 10, at 10 (statement of the Child Welfare League of America) ("A great deal of confusion and lack of clarity have occurred because the U.S. Department of Health and Human Services has never issued formal regulations and guidance.");
73. ADOPTION 2002, supra note 51, at 20 ("The Federal 'reasonable efforts' [requirement] has been . . . criticized for being unclear and a barrier to child safety and permanence.").
74. See Barriers to Adoption, supra note 51, at 32 (statement of Connie Binsfield, Lieutenant Governor of Michigan) ("Children are entering foster care more damaged because they are left in their abusive homes while workers attempt to prove the unprovable to the federal government - that the undefined, nebulous 'reasonable efforts' have been made to prevent the removal of the children from their home[s].");
75. Improving the Well-Being of Abused and Neglected Children, supra note 10, at 11-12 (statement of Dr. Richard Gelles) (describing professionals who believed they could not remove a child from an abusive home "because we had to make reasonable efforts to reunify [him] with his [abusive] mother");
76. see also Alice C. Shotton, Making Reasonable Efforts in Child Abuse and Neglect Cases: Ten Years Later, 26 CAL. W. L. REV. 223, 225 (1990).
77. See Improving the Well-Being of Abused and Neglected Children, supra note 10, at 11 (statement of Dr. Richard Gelles) (describing the case of "David," a slightly fictionalized boy whom the state left with a mother who killed him after having broken his sister's skull, ribs, arms, and legs).
78. See Douglas J. Besharov, When Home Is Hell: We Are Too Reluctant to Take Children From Bad Parents, WASH. POST, Dec. 1, 1996, at C1 (describing a caseworker's efforts to return a child to a parent who "had repeatedly beaten [her children] so badly that they had been hospitalized a number of times for their injuries").
79. See Mary McGrory, Adopt a Sense of Outrage, WASH. POST, May 12, 1996, at C1 (describing the District of Columbia's efforts to reunite a girl with the mother who had tried to smother her to death with a pillow).
80. See Rita Kramer, In Foster Care, Children Come Last, CITY J., Autumn 1994, at 63 (noting that in New York City in 1992, 21 children were killed by a parent or mother's boyfriend after the child welfare agency had intervened).
81. Two authorities stated that among children who died in circumstances suggestive of abuse, "about half . . . died after the family was reported to a child protective agency." Besharov, supra note 56; see also Improving the Well-Being of Abused and Neglected Children, supra note 10, at 10 (statement of Dr. Richard Gelles) (same statistic).
82. See, e.g., RICHARD J. GELLES, THE BOOK OF DAVID: HOW PRESERVING FAMILIES CAN COST CHILDREN'S LIVES 115-43 (1996) (chapter-length indictment of family preservation). Gelles assisted Republican leaders in drafting ASFA. See McGrory, supra note 57, at C1.
83. See, e.g., PATRICK T. MURPHY, WASTED: THE PLIGHT OF AMERICA'S UNWANTED CHILDREN 73 (1997) ("The child welfare system has failed children because it refuses to distinguish between parents who are ill-equipped to raise their children adequately without help, and parents who are too immature or thuggish to raise children even with help.");
84. Improving the Well-Being of Abused and Neglected Children, supra note 10, at 5 (prepared statement of Olivia A. Golden, Acting Assistant Secretary for Children and Families, Department of Health and Human Services) ("[Reunification] services are clearly not appropriate when children cannot be safe in their own homes."); id. at 26 (statement of Peter Digre, Director of Los Angeles Department of Child and Youth Services) (identifying circumstances in which "it is futile and unreasonable to endanger children [by making] efforts to preserve or reunify their families"); Besharov, supra note 56 (calling on the public to accept that "many severely abused and neglected children need a permanent place to live away from their parents").
85. See Dale Rusakoff, One Child's Chaotic Bounce in Mother Government's Lap, WASH. POST, Jan. 18, 1998, at A1. But see infra note 92 (discussing limitations of such data).
86. See Dale Rusakoff, 1997 Law Redefines Child-Protection Policies in Place Since 1980, WASH. POST, Jan. 18, 1998, at A23.
87. See 1996 GREEN BOOK, supra note 20, at 751 (showing that the share of foster children experiencing multiple placements had risen from 43% in 1982 to 57% in 1990).
88. See Richard P. Barth & Barbara Needell, Using Performance Indicators with Child Welfare Policy Makers and Managers 7 (1997) (unpublished manuscript, on file with the Minnesota Law Review).
89. For citation in Congress of different but equally disturbing data, see Improving the Well-Being of Abused and Neglected Children, supra note 10, at 54 (prepared statement of Peter Digre) ("[Eighty-three percent] of toddlers (ages 1-2 years) entering nonrelative foster care had a change in foster parents within six years, and 62% had three or more foster homes . . . . Almost one out of three had five or more foster homes.").
90. See Impact of Substance Abuse on Families Receiving Welfare: Hearing Before the Subcomm. on Human Resources of the House Ways & Means Comm., 105th Cong. 1-3 (1997) [hereinafter Substance Abuse in Welfare Families] (testimony of Richard P. Barth);
91. Improving the Well-Being of Abused and Neglected Children, supra note 10, at 44 (testimony of the Child Welfare League of America);
92. see also Mark F. Testa, Conditions for Risk for Substitute Care, 14 CHILD. & YOUTH SERVS. REV. 27, 35 (1992) (identifying five "risk factors" for caseload growth: single and teen parenting, child poverty, child abuse, substance abuse, and AIDS).
93. See Adoption and Support of Abused Children, supra note 51 (testimony of Rep. Camp);
94. see also ADOPTION 2002, supra note 51, at 5-6 (noting the harmful impact of delays throughout the child welfare system on permanency planning).
95. See 143 CONG. REC. S12,673 (daily ed. Nov. 13, 1997) (statement of Sen. Craig) (criticizing "the culture of foster care" in the system for causing foster care drift).
96. See ADOPTION 2002, supra note 51, at 5;
97. GENERAL ACCOUNTING OFFICE, FOSTER CARE: STATE EFFORTS TO IMPROVE THE PERMANENCY PLANNING PROCESS SHOW SOME PROMISE 15 (1997).
98. See 143 CONG. REC. H10,788 (daily ed. Nov. 13, 1997) (statement of Rep. Kennelly); Improving the Well-Being of Abused and Neglected Children, supra note 10, at 53-54 (testimony of Peter Digre, Dir., Los Angeles Dep't of Child and Youth Servs.);
99. Promoting Adoption: Hearing Before the Subcomm. on Human Resources of the House Comm. on Ways and Means, 105th Cong. (Apr. 6, 1997) [hereinafter Promoting Adoption] (testimony of MaryLee Allen, Children's Defense Fund).
100. See Small Business Job Protection Act, Pub. L. No. 104-88, §§ 1807-08, 110 Stat. 1755 (1996).
101. See President's Radio Address, 32 WEEKLY COMP. PRES. DOC. 2512 (Dec. 14, 1996); ADOPTION 2002, supra note 51, at 2.
102. See Richard Willing, Foster Care Adoptions Up Sharply, USA TODAY, Oct. 8, 1997, at 1A.
103. In 1984, there were 276,000 children in foster care and 20,000 adoptions. See 1996 GREEN BOOK, supra note 20, at 754 tbl.12-28.
104. In 1996, there were 502,000 in foster care, see Rusakoff, supra note 61, at A1, and 27,000 adoptions, see ADOPTION 2002, supra note 51, at 1.
105. 42 U.S.C. § 671(a)(15)(A) (1994).
106. See id. § 671(a)(15)(D). These crimes are murder, voluntary manslaughter, attempted murder or manslaughter, or felony assault resulting in serious bodily harm. See id.
107. Id. While leaving definition of these circumstances to states, ASFA provides "abandonment, torture, chronic abuse, and sexual abuse" as examples. Id.
108. See H.R. REP. NO. 105-77, at 13 (1997), reprinted in 1997 U.S.C.C.A.N. 2739, 2745-46; ADOPTION 2002, supra note 51, at 18.
109. 42 U.S.C. § 671(a)(15)(E).
110. Id. § 675(5)(C).
111. Id. § 671(a)(15)(F).
112. See H.R. REP. NO. 105-77, at 13.
113. See 42 U.S.C. § 675(5)(E). Besides the 15-month rule, ASFA also requires termination, subject to the exceptions, if the child is an abandoned infant or the parent has committed the same violent crimes that justify denial of reasonable efforts. See id.; supra note 75.
114. Adoption and Support of Abused Children, supra note 51 (statement of Rep. Camp).
115. See 42 U.S.C. § 675(1)(E).
116. Id. § 675(5)(E).
117. See id. §§ 622(b), 674(e).
118. See id. §§ 673b(d)(1)(A)-(B).
119. See id.
120. JOSEPH GOLDSTEIN ET AL., IN THE BEST INTERESTS OF THE CHILD (1986);
121. JOSEPH GOLDSTEIN ET AL., BEFORE THE BEST INTERESTS OF THE CHILD (1979);
122. JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD (1973). Recently, the trilogy reappeared in one revised, updated volume.
123. See GOLDSTEIN ET AL., supra note 19. For a discussion and critique of these works' great influence, see generally Peggy C. Davis, 'There Is A Book Out . . .': An Analysis of Judicial Absorption of Legislative Facts, 100 HARV. L. REV. 1539 (1987).
124. See, e.g., Marsha Garrison, Child Welfare Decisionmaking: In Search of the Least Drastic Alternative, 75 GEO. L.J. 1745, 1762 (1987).
125. SEE RICHARD P. BARTH ET AL., FROM CHILD ABUSE TO PERMANENCY PLANNING: CHILD WELFARE SERVICES PATHWAYS AND PLACEMENTS 9-11, 13-14 (1994).
126. The most widely cited studies of child welfare come largely from two sources: the Child Welfare Research Center at the University of California at Berkeley and the Chapin Hall Center for Children at the University of Chicago. See, e.g., BARTH ET AL., supra; ROBERT M. GOERGE ET AL., A REPORT FROM THE MULTISTATE FOSTER CARE DATA ARCHIVE 1983-1992 (1994).
127. Researchers and advocates involved with both child welfare policy and welfare policy caution that they know much less about the former than the latter. Interview with Jill Duerr Berrick, Director, Child Welfare Research Center, School of Social Welfare, University of California at Berkeley (Apr. 27, 1998). Based on these limitations and the conflicts among certain studies, some have concluded that the data offer no meaningful guidance for policy. See James Donald Moorehead, Of Family Values and Child Welfare: What Is in the "Best" Interests of the Child?, 79 MARQ. L. REV. 517 (1996).
128. But the researchers themselves believe that cautious conclusions can be drawn with help from the data. See, e.g., BARTH ET AL., supra, at 255-74; Fred H. Wulczyn & Robert M. Goerge, Foster Care in New York and Illinois: The Challenge of Rapid Change, 66 SOC. SERV. REV. 278, 291-93 (1992). In any event, as the need for child welfare policy will remain whether or not the data are decisive, the policymaker finally must choose between taking some cues from the research and relying on supposition and anecdote alone.
129. States now report aggregate data on child "abuse" and "neglect," but comparative use of these data is limited by the fact that different states define these terms very differently. See DEP'T OF HEALTH AND HUMAN SERVS., NAT'L CTR. ON CHILD ABUSE AND NEGLECT, CHILD MALTREATMENT 1995: REPORTS FROM THE STATES TO THE NAT'L CHILD ABUSE AND NEGLECT DATA SYSTEM 2-1 (1997).
130. In theory, aggregate-level data for foster care caseloads by state are also now available, but many states do not contribute data, and those that do again report very different things. See, e.g., Dep't of Health and Human Servs., Current Placement Setting of Children Entering Foster Care 1-3 (visited Apr. 2, 1998) 〈http://www.acf.dhhs.gov/programs/stats/afcars/cpsed 96b.html〉 (showing latest data on foster care placements for children in only 22 states, and describing data anomalies in 11 of those states).
131. See GOLDSTEIN ET AL., supra note 19, at 19-20.
132. See, e.g., JOHN BOWLBY, ATTACHMENT AND LOSS (1969) (describing harms of separation from perspective of attachment theory);
133. Robert M. Goerge, The Reunification Process in Substitute Care, 64 SOC. SERV. REV. 422, 424 (1990) (describing theoretical bases for opposing separation).
134. See, e.g., Michael S. Wald, State Intervention on Behalf of "Neglected" Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 STAN. L. REV. 623, 669-72 (1976) (and sources cited therein).
135. See, e.g., MICHAEL S. WALD ET AL., PROTECTING ABUSED AND NEGLECTED CHILDREN 185 (1988) (finding that children in foster care fared slightly better than children left at home in controlled study over two-year period); Garrison, supra note 90, at 1777-87 (discussing other studies and concluding that foster care benefits many children).
136. See Douglas J. Besharov, The Misuse of Foster Care: When the Desire to Help Children Outruns the Ability to Improve Parental Functioning, in PROTECTING CHILDREN FROM ABUSE AND NEGLECT: POLICY AND PRACTICE 185, 192 (Douglas J. Besharov ed., 1988) ("Research shows positive results in foster care because, for many children, foster care is an extremely beneficial experience. But for a large subset (generally children who cannot be quickly returned home or freed for adoption), foster care is very harmful."); see also WALD ET AL., supra note 96, at 185-90 (1988) (finding that children in foster care fared relatively well, but only over two-year period of stable placement). For data on the likelihood of long-term placement, see supra notes 61-62 and accompanying text.
137. See infra notes 105-12 and accompanying text.
138. See Michael B. Mushlin, Unsafe Havens: The Case for Constitutional Protection of Foster Children from Abuse and Neglect, 23 HARV. C.R.-C.L. L. REV. 199, 208-12 (1988);
139. Rachel L. Swarns, Judge Approves City's Foster Care Efforts, N.Y. TIMES, May 12, 1998, at B3 (describing how city "bed shortage" left 2,000 foster children sleeping in municipal offices).
140. See, e.g., JENNIFER TOTH, ORPHANS OF THE LIVING: STORIES OF AMERICA'S CHILDREN IN FOSTER CARE 17 (1997) (stating that up to 30 or 40% of the shelter population in major American cities has passed through foster care);
141. Richard P. Barth & Marianne Berry, Implications of Research on the Welfare of Children Under Permanency Planning, in 1 CHILD WELFARE RES. REV. 323, 345-46 (Richard P. Barth et al. eds., 1994) (showing that among children leaving foster care between 1980 and 1988, almost one-third had periods of homelessness or weekly movement among homes, and one-third used drugs or had four alcoholic drinks each day);
142. Fred Bayles & Sharon Cohen, Chaos Often the Only Parent for Abused and Neglected Children, L.A. TIMES, Apr. 30, 1995, at 1 (stating that 75% of youths in Connecticut's criminal justice system were once in foster care).
143. In addition, reasonable efforts may also gather support from a variety of perspectives besides the child's welfare, including family autonomy, parental rights, social diversity, and distrust of state power. See WALD ET AL., supra note 96, at 190.
144. See GOLDSTEIN ET AL., supra note 19, at 5.
145. See id. at 112.
146. See Federal Adoption Policy, supra note 51, at 98 (testimony of Dr. Albert J. Solnit) (rejecting efforts at family preservation "if the child is not wanted, is abandoned, or is severely abused to the point where the child's life is endangered or the child may be permanently injured"); Wald, supra note 95, at 694-95 (advocating immediate termination if parents are "untreatable").
147. GOLDSTEIN ET AL., supra note 19, at 41-42.
148. See generally Barth & Needell, supra note 64, at 6 (noting that long-term foster care is not per se destructive).
149. See JUDITH S. MODELL, KINSHIP WITH STRANGERS: ADOPTION AND INTERPRETATIONS OF KINSHIP IN AMERICAN CULTURE 46 (1994);
150. see also Michael Bohman & Soren Sigvardsson, Outcome in Adoption: Lessons from Longitudinal Studies, in THE PSYCHOLOGY OF ADOPTION 93 (David M. Brodzinsky & Marshall D. Schechter eds., 1990) (finding that children in foster care have greater psychological difficulties than children with adoptive or biological parents, and recommending that "any unnecessary prolongation of the socially, legally, and psychologically insecure limbo-situation of foster care should be avoided");
151. John Triseliotis & Malcolm Hill, Contrasting Adoption, Foster Care, and Residential Rearing, in THE PSYCHOLOGY OF ADOPTION 107, 113 ("Foster children are left largely in limbo searching for ways to cement their attachments to those who care for them.").
152. See supra notes 63-64 and accompanying text.
153. Robert Goerge et al., A Foster Care Research Agenda for the '90s, 73 CHILD WELFARE 525, 537 (1994); see also Barth & Needell, supra note 64, at 7 (describing the harm caused by multiple placement as "self-explanatory").
154. See Mark E. Courtney, Factors Associated with the Reunification of Foster Children with Their Families, 68 SOC. SERV. REV. 81, 91 (1994); Goerge, supra note 94, at 439-40.
155. See Richard P. Barth, Effects of Age and Race on the Odds of Adoption Versus Remaining in Long-Term Out-of-Home Care, 76 CHILD WELFARE 285, 296 (1997);
156. Ada Schmidt-Tieszen & Thomas P. McDonald, Children Who Wait: Long Term Foster Care or Adoption, 20 CHILD. & YOUTH SERVS. REV. 13, 20 (1998).
157. SEE GENERAL ACCOUNTING OFFICE, FOSTER CARE OVERVIEW, COMPLEX NEEDS STRAIN CAPACITY TO PROVIDE SERVICES 14-15 (1995).
158. A study conducted 2.5 to 4 years after youths left foster care found that 46% had not completed high school, 38% had not held a job for more than 1 year, 25% had been homeless for at least one night, and 60% of young women had given birth to a child. [Forty percent] had been on public assistance, incarcerated, or a cost to the community in some other way. Foster Care Overview, Complex Needs Strain Capacity to Provide Services 14-15 (1995). Id.;
159. see also Barriers to Adoption, supra note 51, at 79 (statement of Peter Digre) (citing studies showing that 45% of 18-year-olds "emancipated" from foster care are homeless at some point in the next year)
160. See GOLDSTEIN ET AL., supra note 19, at 90-91.
161. See id.
162. See Federal Adoption Policy, supra note 51, at 103 (statement of Dr. Nicholas Zill) (describing research comparing the well-being of children in adoptive homes, two-parent homes, single-parent, and grandparent-homes, and stating that the impact of adoption on children is "overwhelmingly a positive one");
163. Richard P. Barth, Adoption Research: Building Blocks for the Next Decade, 73 CHILD WELFARE 625, 630 (1994) (noting the "remarkable . . . degree of consistency in favorable outcome in widely differing types of adoption") (citation omitted); Barth & Berry, supra note 100, at 342-45 (summarizing studies showing benefits of adoption for children).
164. GOLDSTEIN ET AL., supra note 19, at 81.
165. See 42 U.S.C. § 671(a)(15)(B) (1994).
166. See supra notes 93-101, 105-12.
167. See 42 U.S.C. § 675(5)(E).
168. See id. § 671(a)(15)(D).
169. See, e.g., 18 U.S.C. § 3592(c) (1994) (aggravating factors in federal death penalty law); Zant v. Stephens, 462 U.S. 862, 878 (1983) (requiring a court to find at least one "aggravating factor" in order to sentence a defendant to death).
170. See supra notes 54-60 and accompanying text.
171. 42 U.S.C. § 675(E)(i).
172. See MICHAEL R. PETIT & PATRICK A. CURTIS, CHILD ABUSE AND NEGLECT: A LOOK AT THE STATES 77 (1997) (stating that 23% of children in out-of-home care are now in kinship care, up 29% from 1990).
173. See BARTH ET AL., supra note 91, at 214.
174. See Charlene Ingram, Kinship Care: From Last Resort to First Choice, 75 CHILD WELFARE 550, 552 (1996).
175. See BARTH ET AL., supra note 91, at 216; Howard Dubowitz et al., A Profile of Kinship Care, 72 CHILD WELFARE 153, 154 (1993).
176. See BARTH ET AL., supra note 91, at 209.
177. See id. at 213; Jesse L. Thornton, Permanency Planning for Children in Kinship Foster Homes, 70 CHILD WELFARE 593, 597 (1991).
178. See James P. Gleeson et al., Understanding the Complexity of Practice in Kinship Foster Care, 76 CHILD WELFARE 801, 812 (1997); Interview with Jill Duerr Berrick, supra note 91.
179. Cf. Thornton, supra note 129, at 597-98 (showing that kinship caregivers may decline to adopt because they believe that adoption would harm their children).
180. Cf. Dubowitz et al., supra note 127, at 165-66 (discussing "tensions and hostilities that placement of a child might generate").
181. See 42 U.S.C. § 675(5)(E)(ii) (allowing states not to pursue terminations that are not in the child's best interests).
182. See, e.g., NATIONAL ASS'N OF BLACK SOCIAL WORKERS, PRESERVING AFRICAN AMERICAN FAMILIES: RESEARCH AND ACTION BEYOND THE RHETORIC (1991) (supporting kinship placements as a means to preserve African-American cultural heritage); Dubowitz et al., supra note 127, at 154 (discussing the view that "blood is thicker than water").
183. Some defenses of kinship care draw on the notions of cultural self-determination that also support a preference for race-matching in adoption. See Elizabeth Bartholet, Where Do Black Children Belong?: The Politics of Race Matching in Adoption, 139 U. PA. L. REV. 1163, 1179-81 (1991). Congress has decisively rejected these ideas through the Multi-Ethnic Placement Act. See 42 U.S.C. §§ 671(a)(18), 1996(b).
184. See 42 U.S.C. § 475(5)(E)(iii).
185. H.R. REP. NO. 105-77, at 12 (1997), reprinted in 1997 U.S.C.C.A.N. 2740, 2744.
186. As a textual matter, the proper interpretation of the provision depends upon the meaning of the requirement that "the State shall" file a termination petition "unless" the State has not made reasonable efforts. 42 U.S.C. § 675(E). The law does not say what happens if the "unless" condition holds and the State has not made reasonable efforts; there is no "in which case" provision. The narrowest reading is that the mandatory termination provision simply does not apply. But this would mean that a state could, on its own, negate the federal provision by enacting a statute categorically requiring termination even in the absence of reasonable efforts. This would defy the congressional statement of intent.
187. See, e.g., ARIZ. REV. STAT. ANN. § 8-533 (West 1998); CAL. CIV. CODE § 232 (repealed 1992) (West 1998); FLA. STAT. ANN. § 39.464 (West 1998); N.Y. SOC. SERV. LAW § 384-b(8) (McKinney 1998).
188. See infra note 145 and accompanying text.
189. See Courtney, supra note 110, at 90-98 (showing that the likelihood of reunification after one to three years in foster care is less than 15%); id. at 91-92 & 108 n.20 (documenting other studies with similar findings); Goerge, supra note 94, at 452 (noting that the probability of reunification drops below 50% after about 10 weeks in foster care).
190. See infra notes 150-57 and accompanying text (discussing the role of social services in fostering reunification).
191. See RUTH HUBBELL, FOSTER CARE AND FAMILIES: CONFLICTING VALUES AND POLICIES 104-06 (1981);
192. Inger P. Davis et al., Parental Visiting and Foster Care Reunification, 18 CHILD. & YOUTH SERVS. REV. 363, 363 (1996).
193. See Goerge, supra note 94, at 452.
194. OFFICE OF THE INSPECTOR GENERAL, DEP'T OF HEALTH AND HUMAN SERVS., BARRIERS TO FREEING CHILDREN FOR ADOPTION 11 (1991);
195. cf. Jennifer Ayres Hand, Note, Preventing Undue Terminations: A Critical Evaluation of the Length-Of-Time-Out-Of-Custody Ground for Termination of Parental Rights, 71 N.Y.U. L. REV. 1251, 1280-81 (1996).
196. See MURPHY, supra note 60, at 76-77 (describing how states "often fail to provide what courts interpret as 'adequate services' for the parent" and how as a result "kids stay in the system, floating amongst foster homes, ultimately becoming unadoptable"); Herring, supra note 30, at 181-94 (citing examples of drift due to reasonable efforts requirement). Herring's article reaches conclusions parallel to those here.
197. See Talk of the Nation: Adoption for Abused and Neglected Children (NPR radio broadcast, Nov. 18, 1997) (available at 1997 WL 15382360) (comment of David Liederman, Exec. Dir., Child Welfare League of America) (describing reasonable efforts provision as saying "don't come to us with a TPR petition unless you've really figured out what the heck is really going on, and you're ready and prepared to introduce a termination of parental rights petition").
198. See 42 U.S.C. § 675(5)(E)(ii).
199. This argument is fully developed infra Part III.B.1.
200. In fact, because ASFA does not define "reasonable efforts," officials can retrospectively identify the services that should have been provided, and thereby avoid pursuing termination. See 42 U.S.C. § 675(5)(E)(iii) (stating that termination need not be pursued when parents have not received "such services as the State deems necessary for the safe return of the child to the child's home").
201. See SELECT COMM. ON CHILDREN, YOUTH, AND FAMILIES, NO PLACE TO CALL HOME: DISCARDED CHILDREN IN AMERICA, H.R. DOC NO. 101-395, at 45-48 (1990) [hereinafter NO PLACE TO CALL HOME]; GENERAL ACCOUNTING OFFICE, supra note 46, at 5; OFFICE OF THE INSPECTOR GENERAL, supra note 144, at 11.
202. See, e.g., Barth & Berry, supra note 100, at 325 ("[F]amily preservation services are still not available for the vast majority of families in need."); Courtney, supra note 110, at 88 (noting that in sample of children entering foster care between 1988 and 1991, 70% received only "emergency response" services, 20% received no services, and only 10% received extensive services); Fein & Maluccio, supra note 30, at 339 (noting that funding to implement permanency planning "has been insufficient," and stating that as a result "solutions remain short-term, crisis-oriented, and stopgap and lack ongoing support for families").
203. See PETIT & CURTIS, supra note 124, at 184 (noting that the 25,000 families in 21 states receiving intensive preservation efforts were "but a fraction of the families needing [them]"); see also COURTNEY, supra note 21, at 16 (describing impact of additional funding as a "drop in the bucket"); Goerge et al., supra note 109, at 533 ("The pool of money is not particularly large relative to the magnitude of the problems . . . ."); Telephone Interview with Anthony N. Maluccio, Professor, Boston College School of Social Work (Apr. 27, 1998).
204. See, e.g., Barth & Berry, supra note 100, at 336 (reporting various studies showing that between 20% and 32% of children returned to foster care after reunification); Mark E. Courtney, Reentry to Foster Care of Children Returned to Their Families, 70 SOC. SERV. REV. 226, 233 (1995) (finding that 19% of reunified children returned to care within three years).
205. See, e.g., Mark W. Fraser et al., An Experiment in Family Reunification: Correlates of Outcomes At One-Year Follow-Up, 18 CHILD. & YOUTH SERVS. REV. 335, 336 (1996) (noting that "few agencies have clearly articulated reunification services for children in out-of-home care"); Fein & Maluccio, supra note 30, at 339 ("The lack of family maintenance programs is an unfortunate correlate of the increasing number of children reentering foster care each year.");
206. see also Promoting Adoption: Hearing Before the Subcomm. on Human Resources of the House Comm. on Ways and Means, 105th Cong. (1997) (statement of Dr. Fred C. Wulczyn, Chapin Hall Center for Children) ("[M]ost child welfare providers will acknowledge that the services used to support families prior to and just after reunification are probably the weakest link in the continuum of child welfare services.") [hereinafter Promoting Adoption]; Tatara, supra note 45, at 140 (arguing that emphasis on family preservation in the 1980s led to underdevelopment of family reunification programs). Unlike family preservation, reunification efforts received no additional federal funding from the 1993 budget agreement. See supra notes 49-50.
207. See Stephen Magura & Alexandre B. Laudet, Parental Substance Abuse and Child Maltreatment: Review and Implications for Intervention, 18 CHILD. & YOUTH SERVS. REV. 193, 194 (1996) ("Illicit drug abuse, particularly the introduction of crack cocaine in urban areas since 1985, has contributed to increases in both the incidence and severity of child abuse and neglect.").
208. See Substance Abuse in Welfare Families, supra note 65, at 23 (testimony of Richard P. Barth) (describing underdevelopment and scarcity of drug treatment programs for women); Magura & Laudet, supra note 155, at 202 (citing numerous sources describing the "shortage of drug treatment programs for pregnant women and women with infants" as a "serious national problem"). Most drug treatment programs were developed for men and now serve them. See id. at 205.
209. See Douglas J. Besharov, Looking Beyond 30, 60, and 90 Days, 16 CHILD & YOUTH SERVICES REV. 445, 448 (1994) (noting that programs for "long-term family supervision" have "shrunk considerably" and "homemaker services . . . [have] all but withered away"); see also Barth & Berry, supra note 100, at 354 ("Available data suggests that preplacement services are often inappropriately brief . . . .").
210. See supra note 53 and accompanying text.
211. OFFICE OF THE INSPECTOR GENERAL, supra note 144, at 12; see also MURPHY, supra note 60, at 76-77 (noting arbitrariness of court definitions of "reasonable efforts").
212. See Herring, supra note 30, at 180.
213. See 45 C.F.R. § 1356.60(c) (1997) (listing reimbursable expenditures under Title IV-E and including matters such as "case reviews" and "case management," but not preventive services); Foster Care Maintenance Assistance, 47 Fed. Reg. 30,922, 30,923 (1982) ("[F]unds for treatment-oriented services [are] inconsistent with the statutory concept of maintenance expenditures").
214. See 1996 GREEN BOOK, supra note 20, at 695 tbl.12-2.
215. See generally GENERAL ACCOUNTING OFFICE, supra note 112, at 5-7 (stating that "family support" programs have received most funding under the 1993 Act).
216. See 42 U.S.C. § 629(b) (1994) (authorizing a 20% increase in funding from 1998 to 2001).
217. See id. § 629(a). Adoption groups are exhorting their members to seek set-asides of this money for post-adoption services from state governments. See Joe Kroll, Adoption and Safe Families Act of 1997 Signed into Law, ADOPTALK (Minneapolis), Winter 1998, at 4.
218. The Personal Responsibility and Work Opportunity Reconciliation Act reduced SSBG funding by 15%, or $420 million per year. See Peter T. Kilborn, Little-Noticed Cut Imperils Safety Net for the Poor, N.Y. TIMES, Sept. 22, 1996, at Al. By comparison, ASFA increases the authorization for family support and preservation by $10 million to $20 million per year. See ASFA §§ 305, 430(b) (codified at 42 U.S.C. § 629(b)).
219. See Safe Adoptions and Family Environments Act of 1997, S. 511, 105th Cong. § 202 (1997) (giving priority in drug treatment in federally funded programs to persons referred by child protection agencies); see id. § 304 (reimbursing under Title IV-E program one year of reunification services).
220. See Adoption and Support of Abused Children, supra note 51 (statement of Rep. Camp).
221. See Julia H. Littell & John R. Schuerman, A Synthesis of Research on Family Preservation and Family Reunification Programs (visited Dec. 1, 1998) 〈http://aspe.os.dhhs.gov/hsp/cyp/fplitrev.htm〉.
222. See Kristine E. Nelson, Family Preservation - What Is It?, 19 CHILD. & YOUTH SERVS. REV. 101, 107-11 (1997).
223. See Littell & Schuerman, supra note 171, at 15.
224. See Fraser et al., supra note 154, at 345-50 (showing that in experimental study, 97% of children receiving reunification services returned home within 90 days, compared to only 32% of children in control group; at the end of one year, 70% of children receiving reunification services were living at home, compared to only 47% of the control group); Brian Thomlison et al., Protecting Children by Preserving Their Families: A Selective Research Perspective on Family Reunification, 2 INT'L J. CHILD & FAM. WELFARE 127, 129-30 (1996) (finding that intensive and brief family services positively affect reunification rates).
225. See Magura & Laudet, supra note 155, at 210 (showing, in programs combining drug treatment and services for substance-abusing mothers, that cases
226. See Besharov, supra note 157, at 445-50.
227. See supra notes 120-22 and accompanying text (discussing "aggravating factors").
228. Of course, the content of abuse may vary by age, but its blameworthiness does not.
229. See BARTH ET AL., supra note 91, at 131.
230. See GOLDSTEIN ET AL., supra note 19, at 41, 105-06 (theory); Wald, supra note 95, at 695 (empirical support).
231. See GOLDSTEIN ET AL., supra note 19, at 41; Wald, supra note 95, at 695.
232. See Barth, supra note 111, at 290 fig.1.
233. See id. at 297; Bartholet, supra note 134, at 1203.
234. The fifteen-month delay will often be seventeen months in practice. See infra notes 195-97 and accompanying text.
235. Cf. Charlotte B. McCullough, The Child Welfare Response, 1 FUTURE OF CHILDREN 61, 69 (1991) (noting as "barrier to adoption" the fact that during the lengthy period in which termination occurs, "[t]he infants become toddlers or older and the prospective parents become frustrated").
236. See Malcolm Bush & A.C. Gordon, The Case for Involving Children in Child Welfare Decisions, 27 SOC. WORK 309, 309-10 (1982) (finding that half of 111 foster children over age nine judged unlikely to return home did not want to be adopted because it would signal an end to ties with family of origin); see also GOLDSTEIN ET AL., supra note 19, at 106 ("Some older children may hold on to emotional attachments to absent parents fiercely and possessively; their early, long-standing psychological ties may interfere with the formation of new psychological attachments . . . .").
237. See Susan Livingston Smith & Jeanne A. Howard, A Comparative Study of Successful and Disrupted Adoptions, 65 SOC. SERV. REV. 248, 250, 255 (1991).
238. See PETIT & CURTIS, supra note 124, at 135 fig.4.6. In the California study, among children placed in non-kinship care between the ages of three and five, only 8% were adopted within 6 years. See Barth, supra note 111, at 291 fig.1.
239. See Martin Guggenheim, The Effects of Recent Trends to Accelerate the Termination of Parental Rights of Children in Foster Care - An Empirical Analysis in Two States, 29 FAM. L.Q. 121, 132 (1995);
240. Elizabeth Bartholet, In Foster-Care Limbo, BOSTON GLOBE, Mar. 17, 1992, at 17.
241. See Barth & Berry, supra note 100, at 348; Guggenheim, supra note 189, at 135.
242. See OFFICE OF THE INSPECTOR GENERAL, supra note 144, at 16; Barth, supra note 115, at 632. States determine adoptability based on a variety of factors, including age, special-needs matters, and presence of a potential adoptive parent in a child's life. Because older children are more often labeled "not adoptable," the parental rights of their parents often may not be terminated in spite of the timeline.
243. Compare Promoting Adoption, supra note 69 (statement of Mark Hardin, American Bar Association) (stating that "emergency removal hearings, foster care review hearings, and other pertinent court reviews [often] last no longer than 5 or 10 minutes"),
244. John Gibeaut, Nobody's Child, A.B.A. J., Dec. 1997, at 2 (visited Feb. 19, 1998) 〈http://www.abanet.org/journal/dec97/12FCHILD.HTML〉 (noting the "cattle call" nature of such hearings, many of which last just five minutes), with OFFICE OF THE INSPECTOR GENERAL, supra note 144, at 8 (stating that the median period for termination of parental rights is seven-and-a-half months), and Herring, supra note 30, at 180 (describing the difficulty of obtaining termination of parental rights).
245. See Promoting Adoption, supra note 69 (statements of Kathi T. Grasso and Mark Hardin, American Bar Association); Gibeaut, supra note 192, at 2.
246. See Courtney, supra note 110, at 90 fig.1.
247. 42 U.S.C. § 675(5)(F).
248. See, e.g., Pamela B. v. Ment, 709 A.2d 1089, 1095 (Conn. 1998) (denying a motion to dismiss in a class action suit alleging that Connecticut regularly fails to hold an evidentiary hearing on an order of temporary custody within the legally mandated ten-day period).
249. Prior to a finding of neglect, a judge's only decision is often ex parte and temporary. See id. at 1095.
250. The original version of the bill passed by the House did distinguish older and younger children, applying the mandatory termination provision only to children under age 10. See H.R. REP. No. 105-77, at 12 (1997), reprinted in 1997 U.S.C.C.A.N. 2739, 2744; see also Adoption Promotion Act of 1997, S. 827, 105th Cong. § 3 (1997) (same provision). Other versions of the proposed legislation set a deadline of 12 months, rather than 15.
251. See Promotion of Adoption, Safety, and Support for Abused and Neglected Children (PASS) Act, S. 1195, 105th Cong. § 302 (1997).
252. See, e.g., Conna Craig, "What I Need Is a Mom": The Welfare State Denies Homes to Thousands of Foster Children, 73 POL'Y REV. 41 (1995).
253. See id.; Charmaine Crouse Yoest, "No Child Is Unadaptable", 75 POL'Y REV. 13 (1997).
254. Interview with Richard P. Barth, Professor, University of California at Berkeley School of Social Work (Apr. 20, 1997).
255. Cf. Bartholet, supra note 134, at 1203. For a description of MEPA, see supra note 70 and accompanying text (describing the passage of MEPA which sought to ban delays of adoption resulting from race-matching efforts).
256. See R. Richard Banks, The Color of Desire: Fulfilling Adoptive Parents' Racial Preferences Through Discriminatory State Action, 107 YALE L.J. 875, 881 n.20 (1998) ("The overwhelming majority of adults seeking to adopt are white and few of these adults would consider adopting a black child.").
257. But see Elizabeth Bartholet, Private Race Preferences in Family Formation, 107 YALE L.J. 2351, 2356 (1998).
258. Barth, supra note 111, at 296.
259. See ADOPTION 2002, supra note 51, at 1.
260. See Conna Craig & Derek Herbert, The State of the Children: An Examination of Government-Run Foster Care (visited Apr. 20, 1998) 〈http:// www.public-policy.org/ncpa/studies/s210/s210.html〉.
261. At the end of 1996, 500,000 children were in foster care. See Rusakoff, supra note 61, at A22. The median stay of children in foster care in 1996 was two years. See Rusakoff, supra note 62, at A23. It is difficult to estimate the number of children in care more than 15 months because of the biases of cross-sectional data like the median figure. See BARTH ET AL., supra note 91, at 81-82.
262. See Barth & Berry, supra note 100, at 338-39.
263. See 45 C.F.R. § 1356.60(c) (1997).
264. See 42 U.S.C. § 629(a)(8) (1994).
265. See infra Part III.B.1.
266. See infra Part III.B.2.
267. See infra Part III.B.3.
268. 42 U.S.C. § 671(a)(15)(D) (emphasis added).
269. See id. § 671(a)(15)(E). There is even an argument that if agencies can offer reasonable efforts and bypass the expedited hearing on a case-by-case basis, courts can also order agencies to make such efforts. On this interpretation, reasonable efforts "shall not be required" only as a matter of state law, not as a matter of court order.
270. See id. § 675(E)(iii).
271. Id. § 675(E)(ii).
272. Id. For evidence that even a mandatory finding process can become a rote exercise, see infra note 229 and accompanying text.
273. 42 U.S.C. § 675(5)(C).
274. See id. (requiring "permanency plan . . . that includes whether, and if applicable when" permanent disposition will occur).
275. Id.
276. Id.
277. See id.
278. See GENERAL ACCOUNTING OFFICE, supra note 68, at 10, 22-23; Congressional Budget Office, Pay-As-You-Go Estimate: H.R. 867, Adoption & Safe Families Act of 1997 (visited Nov. 24, 1997) 〈http://www.cbo.gov/showdoc.cfm? index=340&from=2&sequence=0〉.
279. See supra note 192 and accompanying text.
280. See supra notes 183-87 and accompanying text.
281. See 42 U.S.C. § 672(a)(1); Allen et al., supra note 29, at 585. Because the Child Welfare Act did not envision terminations of parental rights for all children in federally subsidized foster care, see supra notes 34-39 and accompanying text, the Act necessarily contemplated that the "judicial determination" concerning reasonable efforts would be made at a hearing prior to termination.
282. See NO PLACE TO CALL HOME, supra note 150, at 55;
283. Mark Hardin, Ten Years Later: Implementation of Public Law 96-272 by the Courts, in THE FIRST TEN YEARS, supra note 33, at 51, 54; Shotton, supra note 54, at 227. It is important to emphasize that the rote review occurs in custody, neglect, and permanency hearings prior to the termination proceeding. At that proceeding - but only at that proceeding - courts do take the reasonable efforts requirement seriously. See supra notes 117-20 and accompanying text. This behavior is the expression of a family reunification ideology trapped inside a system without resources to support serious efforts to reunify families. See infra Part III.B.1.
284. See supra text accompanying note 38.
285. See Hardin, supra note 229, at 56; Improving the Well-Being of Abused and Neglected Children, supra note 10, at 29.
286. See H.R. REP. No. 96-136, at 47 (1979), reprinted in 1997 U.S.C.C.A.N. 1448 ("[The Committee recognizes that the preventive services requirement would be inappropriate in certain specific circumstances. This would be the case where the home situation presents a substantial and immediate danger to a child which would not be mitigated by the provision of preventive services."). The earliest comprehensive analysis of the Child Welfare Act, by a family advocate, did not neglect this point. See Allen et al., supra note 29, at 589-90; see also Shotton, supra note 54, at 227-28.
287. 45 C.F.R. 1355.25(a) (1997); see also Foster Care Maintenance Payments, 61 Fed. Reg. 58,632, 58,636 (1996) ("[W] e reiterate that 'family preservation' does NOT mean that the family must stay together or 'be preserved' under all circumstances, or at the expense of the safety and well-being of the child.");
288. Family Preservation and Support Services Program: Proposed Rule, 59 Fed. Reg. 50,646, 50,647 (1994) ("If a child cannot be protected from harm without placement, family preservation services are not appropriate.").
289. See supra notes 55-60 and accompanying text.
290. See 42 U.S.C. §§ 675(1)(A)-(B) (1994) (elaborating requirements for "case plan" and nowhere requiring that plans be pursued only sequentially).
291. See GENERAL ACCOUNTING OFFICE, supra note 68, at 10; GENERAL ACCOUNTING OFFICE, supra note 46, at 23 n.14.
292. See, e.g., BARTH ET AL., supra note 91, at 263 ("[S]ocial workers and judges have never really believed in sufficient numbers that having a lifetime family was really important. . . . [They] find a hundred excuses for denying children adoptive homes."); OFFICE OF THE INSPECTOR GENERAL, supra note 144, at 16 (stating that "judicial biases" against termination of parental rights "often result in delays"); GENERAL ACCOUNTING OFFICE, supra note 68, at 15 (noting that caseworkers "viewed terminating parental rights as a failure on their part because they were not able to reunify the family"); Herring, supra note 30, at 181-82 (noting social workers' "aversion to the conflict involved in a termination proceeding" and the "natural leaning of juvenile court judges to give the parents 'one more chance'"); Wald, supra note 95, at 693 ("Many judges, and child care workers, appear to be unwilling, on emotional grounds, to permanently sever parental ties, even when it is clear that reunion will not occur.").
293. See Louise A. Leduc, Note, No-Fault Termination of Parental Rights in Connecticut: A Substantive Due Process Analysis, 28 CONN. L. REV. 1195, 1195-97 (1996) (discussing changes in Connecticut);
294. Jill Sheldon, Note, 50,000 Children Are Waiting: Permanency, Planning, and Termination of Parental Rights Under the Adoption Assistance and Child Welfare Act of 1980, 17 B.C. THIRD WORLD L.J. 73, 85-88 (1997) (discussing trend nationwide).
295. SEE ELIZABETH BARTHOLET, FAMILY BONDS: ADOPTION AND THE POLITICS OF PARENTING 71 (1993).
296. See id. at 70-81.
297. See PETIT & CURTIS, supra note 124, at 172-74 tbls. 5.7 & 5.8.
298. See GENERAL ACCOUNTING OFFICE, supra note 112, at 19.
299. See supra note 192 and accompanying text.
300. See Gibeaut, supra note 192, at 2.
301. See MARK HARDIN, JUDICIAL IMPLEMENTATION OF PERMANENCY PLANNING REFORM: ONE COURT THAT WORKS 9-10 (1992).
302. Cf. Herring, supra note 30, at 179-81 (describing social workers' deep involvement in court proceedings).
303. See, e.g., 42 U.S.C. 675(1) (1994) (requiring "case plan" for each child and setting forth extensive list of required components of such plans).
304. Cf. JOHN M. HAGEDORN, FORSAKING OUR CHILDREN: BUREAUCRACY AND REFORM IN THE CHILD WELFARE SYSTEM 25-31 (1995) (describing extent to which "paperwork and courtwork" dominate social workers' routines and prevent innovative service delivery).
305. See 42 U.S.C. § 675(5)(C). Other new mandates in ASFA include criminal records checks for adoptive and foster parents, see id. § 671(a)(20), and new standards for the health and safety of foster placements. See id. § 671(a)(22).
306. When exceptions do not apply, the state still has discretion not to provide reasonable efforts to serve the child's health and safety. See 42 U.S.C. § 678 ("Nothing in this part shall be construed as precluding State courts from exercising their discretion to protect the health and safety of children in individual cases, including cases other than those described in [the exceptions]."). But given the requirement that exceptions to the reasonable efforts requirement be made pursuant to a determination by a "court of competent jurisdiction," see id. § 675(a)(15)(D), a parent can demand that a court ultimately endorse a decision not to provide services.
307. See id. § 671(a)(E)(i).
308. The requirement of reasonable efforts to find an adoptive placement is new, see 42 U.S.C. § 671(a)(15), and the services needed to make those efforts are relatively underdeveloped. See supra notes 208-10 and accompanying text.
309. See supra note 192 and accompanying text.
310. See supra notes 158-60 and accompanying text.
311. See supra Part III.A.
312. See Letter from Nancy Miller, Court Improvement Grant Administrator, State of Oregon, to Robert M. Gordon (Apr. 21, 1998) (stating, in response to the claim that ASFA will save money, that "[w]e are always VERY hesitant to use the term 'savings' because . . . we always see our docket time back fill with something immediately when something else clears") (on file with author).
313. The disparity between foster care and adoption costs should not be overemphasized. Many foster adoptions are subsidized, and the costs of home studies and termination hearings prior to adoption are substantial. See BARTH ET AL., supra note 91, at 263.
314. See Promoting Adoption, supra note 154, at 68 (statement of Dr. Fred C. Wulczyn).
315. See infra notes 271-76 and accompanying text. The reimbursement rate for foster care administrative expenses is 50%; for foster care maintenance payments it is the Medicaid matching rate. See 42 U.S.C. § 674(a) (1994). The latter rate ranges from 50% in most large states to 77% in a few states. See 62 Fed. Reg. 62,613, 62,614 (1997).
316. Telephone Interview with Rob Geen, Policy Analyst, the Urban Institute (May 5, 1998).
317. See DEP'T OF HEALTH AND HUMAN SERVS., CHILD WELFARE DEMONSTRATION PROJECTS app. III, at 1 (1998) (listing only five states that capitate payments). As Part IV.A infra discusses in detail, capitation means payment per child, rather than payment per service. Because adoption and reunification are less costly per child than foster care, capitation encourages long-term placements. It also has serious pitfalls, especially the promotion of low-cost, dangerous treatment of children.
318. See GEEN & WATERS, supra note 20. For data from one state bearing out this view, see Fred H. Wulczyn, Child Welfare Reform, Managed Care, and Community Reinvestment, in CHILDREN AND THEIR FAMILIES IN BIG CITIES: STRATEGIES FOR SERVICE REFORM 199, 211 (Alfred J. Kahn & Sheila B. Kamerman eds., 1996) (showing that "[t]he disparity in spending on foster care versus in-home services found in New York reflects the same approximate spending pattern found in the way the federal government finances child welfare services").
319. State budgets for child welfare services seriously suffered during the budgetary crises of the early 1990s. See Douglas J. Besharov, Epilogue to WHEN DRUG ADDICTS HAVE CHILDREN, REORIENTING CHILD WELFARE'S RESPONSE 249, 249-50 (Douglas J. Besharov ed., 1994) (reporting that more than 30 states had frozen child welfare spending, and that cuts of 20 and 30% were common).
320. See Promoting Adoption, supra note 154 (statements of Dr. Fred C. Wulczyn and Maureen K. Hogan).
321. See 42 U.S.C. § 673b(h) (1994).
322. See GELLES, supra note 59, at 131.
323. Calculation from PETIT & CURTIS, supra note 124, at 160-61.
324. See id.
325. But see Toby Eckert & Don Meinert, LaHood: Adoption Law Infringes on States, ST. J. REG., Jan. 2, 1998, at 13 (quoting Rep. Ray LaHood, one of seven House members to vote against the adoption act, as saying "I do not believe in federalizing the adoption system").
326. But see 143 CONG. REC. H2023 (daily ed. Apr. 30, 1997) (statement of Rep. Mink) (opposing the Act because it makes "poverty and lack of work . . . the sole basis for the termination of parental rights").
327. GOLDSTEIN ET AL., supra note 19, at 218.
328. See H.R. REP. No. 96-136, at 1 (1980), reprinted in 1997 U.S.C.C.A.N. 1448, 1450 (stating, in first sentence describing purpose of Child Welfare Act, that "the incentive structure of present law is modified to lessen the emphasis on foster care placement").
329. See Child Welfare Act of 1980 § 101, 42 U.S.C. § 674(b)(4)(B) (Supp. 1981)).
330. See id. § 674(b)(2)(A).
331. See 1996 GREEN BOOK, supra note 20, at 699 tbl.12-5.
332. See Social Security Act Amendments, Pub L. 103-432, § 207, 108 Stat. 4398, 4457 (1994).
333. The discussion that follows assumes Congress would keep overall child welfare funding at its currently projected levels.
334. See Jerry L. Mashaw & Dylan S. Calsyn, Block Grants, Entitlements, and Federalism: A Conceptual Map of Contested Terrain, 14 YALE J. ON REG. 297, 301-04 (1996);
335. William A. Morrill, Getting Beyond the Micro "Gee Whiz": Can Innovative Service Change the Service System?, in CHILDREN AND THEIR FAMILIES IN BIG CITIES, supra note 262, at 185, 195.
336. See GENERAL ACCOUNTING OFFICE, supra note 112, at 23.
337. See Mashaw & Calsyn, supra note 277, at 299. Maintenance-of-effort provisions can force states to spend their money within the block grant framework, but these provisions typically do not require states to maintain all of their current spending levels or to keep up with inflation. See Steven D. Gold, Issues Raised by the New Federalism, 49 NAT'L TAX J. 273, 275 (1996). If the maintenance-of-effort provisions are stringent, then the program in effect becomes a capped entitlement with matching. That more appealing prospect is discussed below.
338. See generally Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, 110 Stat. 2105 (1996); Morrill, supra note 277, at 195.
339. See Audrey Burnam & Elan Melamid, Child Protection and Welfare Reform (visited Apr. 20, 1998) 〈http://www.rand.org/publications/CF/CF123/ burnam/index.html〉 (noting that under H.R. 4, funding for child protection was not likely "to keep pace with growth in demand for child protective services if the trends of the last decade continue"); S. REP. NO. 96-336, at 155-56 (1980), reprinted in 1980 U.S.C.C.A.N. 1448, 1559-61 (additional views of Sens. Heinz and Danforth) (criticizing proposed cap because, among other things "a 'cap' on foster care is simply not flexible enough to take into account increased costs in food, heating, and clothing due to inflation; additional numbers eligible for AFDC because of voluntary placements . . . and increased demand resulting from success in locating and helping abused children").
340. Even when abuse or neglect is substantiated, the state may not provide services because the problem is too small or already resolved. Such judgments are products of conditions and policies that vary greatly among states. See Jeanne Giovannoni & William Meezan, Rethinking Supply and Demand in Child Welfare, 17 CHILD. & YOUTH SERVS. REV. 465, 465-67 (1995);
341. Sheila B. Kamerman & Alfred J. Kahn, If CPS Is Driving Child Wel" fare - Where Do We Go From Here?, 48 PUB. WELFARE 9, 9-11 (1990).
342. See supra note 92 and accompanying text.
343. See Vicky Albert, Explaining the Growing Number of Child Abuse and Neglect Reports and the Growing Foster Care Caseload, in 1 CHILD WELFARE RESEARCH REVIEW, supra note 45, at 218, 235-38.
344. See id.
345. It is inconceivable that Congress would give a state more money because its citizens had more babies or more drug problems. Moreover, correct prediction of caseloads depends on complex mathematical formulas. See id. at 233. On inclusion of variables such as the number of female-headed families and number of births to persons of color, see id. at 235-36. These factors do not add to the plausibility of using such data as a basis for forecasting.
346. See 42 U.S.C. § 629c(c) (1994).
347. See id.; Tatara, supra note 45, at 139-42.
348. See COURTNEY, supra note 21, at 17 (noting that children whose parents are "unable or unwilling to find work" are likely to end up in foster family care or group care").
349. See Giovannoni & Meezan, supra note 282, at 467 (discussing how states already often leave children in homes not regarded as safe by community members).
350. See Burnam & Melamid, supra note 281, at 18 (predicting that as a result of combined welfare and child welfare reforms, "the ability of the child protective system to prevent out-of-home placement, triage children into least-restrictive settings, and arrange for permanent placements will decline").
351. See DEPT OF HEALTH AND HUMAN SERVS., supra note 261, app. III.
352. See id.
353. See supra notes 93-101, 105-12 and accompanying text.
354. See supra note 171 and accompanying text.
355. See supra notes 262-63 and accompanying text.
356. For a description of some early moves in this direction, see Promoting Adoption, supra note 154 (testimony of Dr. Fred Wulczyn) (describing success of Home ReBuilder program in New York City in increasing discharge rates);
357. Promoting Adoption, id. (testimony of Teresa Markowitz, Kansas Department of Social and Rehabilitation Services) (showing the early success of a similar program in Kansas at achieving high reunification and low recidivism rates);
358. Promoting Adoption, id. (statement of Richard E. Hoekstra, Michigan Family Independence Agency) (describing a similar program in Michigan).
359. These are generally children with severe emotional problems on whom the state now spends large amounts of money for "specialized foster care" or, where that is not available, group care. See BARTH ET AL., supra note 91, at 179-92; Ramona L. Foley, The Insufficiency of Statutory Protections, in WHEN DRUG ADDICTS HAVE CHILDREN, supra note 262, at 157-60.
360. See supra notes 125-28 and accompanying text.
361. See supra note 119 and accompanying text.
362. See Meryl Schwartz, Reinventing Guardianship: Subsidized Guardianship, Foster Care, and Child Welfare, 22 N.Y.U. REV. L. & SOC. CHANGE 441, 457-59 (1996);
363. Carol W. Williams, Legal Guardianship, in WHEN DRUG ADDICTS HAVE CHILDREN, supra note 262, at 229, 231, 233-36.
364. See Schwartz, supra note 301, at 463.
365. See BARTH ET AL., supra note 91, at 265; Williams, supra note 301, at 237. It is worth noting, though, that as a practical matter most kinship caregivers do not receive many services either. See BARTH ET AL., supra note 91, at 210-11.
366. See Williams, supra note 301, at 237. It would also require an additional change in federal law, since guardianship is not now federally reimbursed. See Schwartz, supra note 301, at 456.
367. See, e.g., Barth & Berry, supra note 100, at 337; infra note 320.
368. Cf. 42 U.S.C. § 675(5)(E) (Supp. 1998) (requiring a state to file a petition for termination of parental rights if a child spends 15 out of 22 months in foster care).
369. See Giovannoni & Meezan, supra note 282, at 465-67; Kamerman & Kahn, supra note 282, at 9-10.
370. See 42 U.S.C. §§ 621-629 (1991 & Supp. 1998) (child welfare services and payment to states).
371. See supra note 171 and accompanying text.
372. See supra note 161 and accompanying text.
373. See COSTIN ET AL., supra note 24, at 149-51.
374. See 42 U.S.C. § 629c(c)(2) (Supp. 1998).
375. See id. § 621(b) (1991).
376. For discussion of the current rule, see supra notes 195-97 and accompanying text.
377. See GOLDSTEIN ET AL., supra note 19, at 105-06; Wald, supra note 95, at 689-92. This discussion is generally indebted to these authors, especially Wald.
378. See OFFICE OF THE INSPECTOR GENERAL, supra note 144, at 7 fig.3 (showing that the time from entry to care until adoption ranges from 30 to 108 months, and that the time from the identification of adoption as the permanency plan to adoption ranges from 24 to 54 months).
379. See BARTH ET AL., supra note 91, at 159-60 tbls.7.1-7.2.
380. See GOLDSTEIN ET AL., supra note 19, at 105; Wald, supra note 95, at 689-92.
381. See Courtney, supra note 110, at 90 fig.1.
382. Many studies, but not all, show that three months is both a minimum safe period in foster care and the maximum period needed to minimize the risk of recidivism. See Courtney, supra note 110, at 236 (showing that children who had stays in care less than three months had higher rates of reentry than other children, but that after a few months in care, additional time had no effect on recidivism); Fred Wulczyn, Caseload Dynamics and Foster Care Reentry, 65 SOC. SERV. REV. 133, 147 (1991) (showing a similarly high recidivism rate among children returned home after less than 90 days and much lower rates for children returned home in any period later). But see Barth & Berry, supra note 100, at 337 (showing higher recidivism rates for children returned home after 3-to-6 months than among those returned after 6 to 12 months). Although troubling, the difference in the last study was a 29% recidivism rate for the faster group and 19% for the slower group, and as there was no dis aggregation of the groups by months in care, the actual difference in rates between the groups with nine- and twelve-month stays may have been quite small. See id. The studies show no increase in safety from more than a year in foster care. See id. 321. See also infra note 323 (discussing possibility of one-time extension for parents of infants).
383. The debate over an "adoptability" criterion is a good example of an issue both too contested and too complex for federal law to handle. Even advocates who join in favoring adoption disagree about its merits. Compare Wald, supra note 95, at 699 (advocating adoptability criterion in order to avoid needless terminations) with Barth, supra note 111, at 304 (arguing that the risk of creating "legal orphans" through terminations absent an adoptability criterion is outweighed by the risk of creating "de facto orphans" by refusing to terminate parental rights. Adoptability inquiries can also be structured in very different ways. See OFFICE OF THE INSPECTOR GENERAL, supra note 144, at 16-17. For example, some states grant terminations of parental rights that are conditional upon the finding of an adoptive placement. See id. at 16. Along similar lines, a mandatory filing system could require states to demonstrate that they have vigorously sought to identify an adoptive home prior to the decision not to terminate parental rights. The law would need to specify the elements of the vigorous search and the minimum time period in which they must occur, and the proof of such search would have to be reviewable by the child's advocate and by the court. To assure that states did engage in such search efforts in advance through "concurrent planning," the statute would have to require that states failing to make such efforts prior to the deadline proceed with a termination petition while those efforts occur, and that the adoptability determination be made later on. As these reflections suggest, the issue is too complex to be handled in a one-size-fits-all fashion by federal law.
384. See Wald, supra note 95, at 696-99 (listing as criteria for avoiding mandatory timetable strength of parent-child relationship, placement with kin who do not wish to adopt, children's need for special treatment, child's desires, and availability of adoptive parent). To this list should be added placement with a permanent guardian and, in view of the short period proposed for services prior to termination, in the case of infants a strong likelihood that reunification can occur within a fixed period of approximately sixty days (with an extension to be available only once).
385. 42 U.S.C. § 675(5)(E)(ii) (Supp. 1998).
386. See supra notes 219, 221, 231 and accompanying text.
387. See Gerstein v. Pugh, 420 U.S. 103, 126 (1975) (requiring a prompt "determination of probable cause as a prerequisite to [pretrial] detention" following a warrantless arrest).
388. A large literature questions the utility of this distinction. See, e.g., RENNY GOLDEN, DISPOSABLE CHILDREN: AMERICA'S CHILD WELFARE SYSTEM 153 (1997);
389. Anthony N. Maluccio et al., Protecting Children by Preserving Their Families, 16 CHILD. & YOUTH SERVS. REV. 295 (1994). As the following paragraphs show, these perspectives in my view exaggerate the overlap between parents' and children's needs, at least in the cases that enter the child welfare system. For a balanced approach, see GOLDSTEIN ET AL., supra note 19, at 87-88.
390. See supra note 21 and sources cited therein (discussing limits of residual approach).
391. See supra note 19 and accompanying text.
392. See supra note 19 and accompanying text.