When welfare ends: Removing children from the home for poverty alone

Temple Law Review

Volumn 70, Issue 2, 1997, Pages 447-470

  Braveman, Daan ^a   Ramsey, Sarah ^a  

^a National Institute of Disability Rehabilitation and Research   (United States)

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EID: 4444247369     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (177)

1. On August 22, 1996, President Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which replaced the AFDC program with TANF, and made numerous other changes in the nation's welfare programs. Pub. L. No. 104-193, 110 Stat. 2105 (1996). For summaries of the Act, see MARK GREENBERG, CENTER FOR LAW AND SOCIAL POLICY, SUMMARY OF KEY CHILDCARE PROVISIONS OF H.R. 3734 [http://epn.org/clasp/ clkccp.html] (1996); CHILDREN'S DEFENSE FUND, SUMMARY OF WELFARE BILL [http:// www.tmn.com/cdf/welfarelaw] (1996) [hereinafter CDF SUMMARY].
2. On August 22, 1996, President Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which replaced the AFDC program with TANF, and made numerous other changes in the nation's welfare programs. Pub. L. No. 104-193, 110 Stat. 2105 (1996). For summaries of the Act, see MARK GREENBERG, CENTER FOR LAW AND SOCIAL POLICY, SUMMARY OF KEY CHILDCARE PROVISIONS OF H.R. 3734 [http://epn.org/clasp/ clkccp.html] (1996); CHILDREN'S DEFENSE FUND, SUMMARY OF WELFARE BILL [http:// www.tmn.com/cdf/welfarelaw] (1996) [hereinafter CDF SUMMARY].
3. The old law provided federal funds to states on an open-ended entitlement basis and did not set a time limit on eligibility. In addition, the old law required the states to provide aid to recipients who met the eligibility criteria. The new law provides a set amount of money for the states and allows federal funds to be used for a total of five years in a lifetime for a family (the state can give hardship exemptions for 20% of its caseload). Further, the new law provides that there is no entitlement to aid. There is no requirement that the state use vouchers to provide aid to children once a family has exceeded its time limit See infra note 11 and accompanying text for a discussion of the decision to make vouchers optional under the new law. The new law requires aid recipients to participate in work activities within two years of receiving aid, and in community service within two months (although the state can opt out of the community service requirement). See CDF SUMMARY, supra note 1.
4. See Wendell Primus, Welfare Reform: What Happened and What Happens Next, presented at the Maxwell School of Citizenship and Public Affairs, Syracuse University (Oct. 1, 1996) (on file with the authors).
5. Lee Rainwater & Timothy M. Smeeding, Doing Poorly: The Real Income of American Children in a Comparative Perspective, Working Paper No. 127, Maxwell School of Citizenship and Public Affairs, Syracuse University (Aug. 1995) (on file with the authors). This study defined poverty as the "percent of children living in families with adjusted disposable incomes less than 50 percent of adjusted median income for all persons." Income included government transfers and tax benefits. Id.
6. Lee Rainwater & Timothy M. Smeeding, Doing Poorly: The Real Income of American Children in a Comparative Perspective, Working Paper No. 127, Maxwell School of Citizenship and Public Affairs, Syracuse University (Aug. 1995) (on file with the authors). This study defined poverty as the "percent of children living in families with adjusted disposable incomes less than 50 percent of adjusted median income for all persons." Income included government transfers and tax benefits. Id.
7. See Mary Jo Bane, Welfare as We May Know It, THE AMERICAN PROSPECT 47-53 (Jan./ Feb. 1997).
8. See Charles Murray, The Coming White Underclass, WALL ST, J., Oct. 29, 1993, at A14.
9. Id.
10. CONTRACT WITH AMERICA (Ed Gillespie & Bob Schellhas eds., 1994).
11. For example, Senator Lieberman remarked that "[a]Ithough the American public supports tough welfare measures, they are reluctant to cut people off and leave defenseless children without some means of basic support. Welfare reform, therefore, must balance cutbacks with programs that create training and employment opportunities." 142 CONG. REC. S38336-01, S8368 (daily ed. July 19, 1996) (statement of Sen. Lieberman).
12. Pub. L. No. 104-193, 110 Stat. 2105 (1996).
13. See, e.g., 142 CONG. REC. S8091 (daily ed. July 18, 1996) (statement of Sen. Mikulski) (vouchers required); 142 CONG. REC. H9421 (daily ed. July 31, 1996) (Statement of Rep. Poshard) (vouchers not required). In fact, vouchers are optional. See Pub. L. No. 104-193, §§ 408(a)(7)(E), (F), 110 Stat. 2105, 2137 (1996).
14. See generally Sarah Ramsey & Daan Braveman, "Let Them Starve": Government's Obligation to Children in Poverty, 68 TEMP. L. REV. 1607 (1995).
15. Pub. L. No. 96-272, 94 Stat. 500 (1980) (codified as amended in scattered sections of 42 U.S.C. (1995)). In the United States, domestic relations law is typically a matter of state, rather than federal regulation. Like many federal laws in the domestic relations area, the Child Welfare Act avoids this problem by conditioning the receipt of federal funds upon a state submitting a plan that meets the Act's requirements. 42 U.S.C. § 671(b) (1995).
16. Parens patriae refers to the traditional role assumed by the state as the "sovereign and guardian of persons under legal disability, such as juveniles . . . ." BLACK'S LAW DICTIONARY 1114 (6th ed. 1990).
17. See generally MURRAY LEVINE & ADELINE LEVINE, HELPING CHILDREN: A SOCIAL HISTORY (1992); Judith Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role in Child Abuse and Neglect Cases, 63 GEO. L.J. 887 (1975).
18. See generally MURRAY LEVINE & ADELINE LEVINE, HELPING CHILDREN: A SOCIAL HISTORY (1992); Judith Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role in Child Abuse and Neglect Cases, 63 GEO. L.J. 887 (1975).
19. See, e.g., GA. CODE ANN. 19-14-2(4) (1994) ("'Neglect' means harm to the child's health or welfare by a person responsible for the child's health or welfare which occurs through negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care."); OHIO REV. CODE ANN. § 2151.03 (A)(2) (Banks-Baldwin 1993) ("'Neglected child' includes any child. . . who lacks proper parental care because of the faults or habits of his parents, guardian, or custodian . . . .").
20. E.g., N.Y. FAM. Cr. ACT §1052(a)(ii) (McKinney 1983).
21. E.g., id. § 1052(c).
22. See 42 U.S.C § 671.
23. Child advocates might be able to present a stronger case under the statutes and constitution of a particular state. See generally Ramsey & Braveman, supra note 12. Here, we offer an analysis under federal law because the issues apply in each state and the states cannot repeal the federal law.
24. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Cleveland Bd. of Educ. v. La-Fleur, 414 U.S. 632, 639-40 (1974).
25. Moore v. City of E. Cleveland, 431 U.S. 494, 506 (1977).
26. Zablocki v. Redhail, 434 U.S. 374, 390-91 (1978).
27. Carey v. Population Servs. Int'l, 431 U.S. 678, 699 (1977).
28. Planned Parenthood v. Casey, 505 U.S. 833, 869 (1992); Roe v. Wade, 410 U.S. 113, 164 (1973).
29. Franz v. United States, 707 F.2d 582, 595 (D.C Cir. 1983); see also Quilloin v. Walcott, 434 U.S. 246, 255-56 (1978) (explaining that no meaningful constitutional distinctions exist between married or unmarried parents); Wisconsin v. Yoder, 406 U.S. 205, 233 (1972) (holding that child is not "mere creature of the state" and reasoning that parents have right to prepare child to meet societal obligations) (quoting Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (explaining that parent has primary responsibility to care for and nurture child).
30. 321 U.S. 158 (1944).
31. Id. at 166.
32. M.L.B. v. S.L.J., 117 S. Ct. 555, 564 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971)).
33. See Areen, supra note 15, at 893; Marsha Garrison, Child Welfare Decisionmaking: In Search of the Least Drastic Alternative, 75 GEO. L.J. 1745, 1769-74 (1987) [hereinafter Garrison, Child Welfare].
34. The Court has observed that the primary role of parents in the upbringing of their chil-dren is "now established beyond debate as an enduring American tradition." Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).
35. Moore v. City of E. Cleveland, 431 U.S. 494, 503-04 (1977).
36. Pierce v. Society of Sisters, 268 U.S 510, 535 (1925); Areen, supra note 15, at 893.
37. Smith v. Organization of Foster Families, 431 U.S. 816, 844 (1977); Areen, supra note 15, at 893. For the proposition that empirical research does not entirely support the Supreme Court's position, however, see studies cited in Marsha Garrison, Why Terminate Parental Rights?, 35 STAN. L. REV. 423 (1983).
38. See Santosky v. Kramer, 455 U.S. 745, 759 (1982) (reasoning that "[w]hen the state initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it"); Parham v. J.R., 442 U.S. 584, 603 (1979) (concluding that "a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized").
39. See Areen, supra note 15.
40. Franz v. United States, 707 F.2d 582, 602 (D.C. Cir. 1982); Roe v. Conn, 417 F. Supp. 769, 779 (M.D. Ala. 1976); see generally. Developments in the Law - The Constitution and the Family, 93 HARV. L. REV. 1156, 1231-42 (1980) (explaining that state's compelling interest for intervention must use narrowly tailored and least-intrusive means).
41. 417 F. Supp. 769 (M.D. Ala. 1976).
42. Id at 779. For a discussion and critique of the least intrusive approach, see Garrison, Child Welfare, supra note 30.
43. This was the premise behind the Adoption Assistance and Child Welfare Act of 1980 and the experimental legislation in California that changed the basis for intervention in the counties studied by Michael Wald and his colleagues. See MICHAEL S. WALD ET AL., PROTECTING ABUSED AND NEGLECTED CHILDREN 2 (1988).
44. For a summary of the research, and arguments for and against foster care, see id. at 10-15.
45. For a general description of the Act, see Mary Lee Allen et al., A Guide to the Adoption Assistance and Child Welfare Act of 1980, in FOSTER CHILDREN IN THE COURTS 575, 575-79 (Mark Hardin ed., 1983).
46. S. REP. No. 96-336, at 10 (1979), reprinted in 1980 U.S.C.C.A.N. 1448, 1459.
47. Id. at 11.
48. See Allen et al., supra note 42, at 577.
49. S. REP. No. 96-336, at 12 (1979). reprinted in 1980 U.S.C.C.A.N. 1450, 1461.
50. Id.; 42 U.S.C. § 625(a)(1)(E) (1994).
51. 42 U.S.C. § 672.
52. 42 U.S.C. § 671(a)(15).
53. Proposals Related to Social and Child Welfare Services, Adoption Assistance, and Foster Care, 1979: Hearing on H.R. 3434 Before the Subcomm. on Pub. Assistance of the Senate Comm. on Fin., 96th Cong., 1st Sess. 260 (1979) (testimony submitted by the Association for the Children of New Jersey).
54. 45 C.F.R. § 1357.15(e)(2) (1995). The services may include: Twenty-four hour emergency caretaker, and homemaker services; day care; crisis counseling; individual and family counseling; emergency shelters; procedures and arrangements for access to available emergency financial assistance; arrangements for the provision of temporary child care to provide respite to the family for a brief period, as part of a plan for preventing children's removal from home; other services which the agency identifies as necessary and appropriate such as home-based family services, self-help groups, services to unmarried parents, provision of, or arrangements for, mental health, drug and alcohol abuse counseling, vocational counseling or vocational rehabilitation; and post adoption services. Id.; see also, 45 C.F.R. § 1356.21(d)(4) (requiring description of services offered and provided to prevent removal).
55. Senator Cranston's statement when the Act was passed would seem to place fairly extensive affirmative responsibilities on the states: [T]hese sections are aimed at making it clear that States must make reasonable efforts to prevent the removal of children from their homes. In the past, foster care has often been the first option selected when a family is in trouble; the new provisions will require States to examine alternatives and provide, wherever feasible, home-based services that will help keep families together, or help reunite families. Of course, State child protective agencies will continue to have authority to remove immediately children from dangerous situations, but where removal can be prevented through the provision of home-based services, these agencies will be required to provide such services before removing the child and turning to foster care. These provisions, I believe, are among the most important aspects of this legislation. Far too many children and families have been broken apart when they could have been preserved with a little effort. Foster care ought to be a last resort rather than the first. 126 CONG. REC. 14,767.
56. Alice C. Shotten, Making Reasonable Efforts in Child Abuse and Neglect Cases: Ten Years Later, 26 CAL. W. L. REV. 223, 225 (1990).
57. See id. at 234 (describing Minnesota statutory scheme as model legislation). See infra notes 68-69 and accompanying text for a discussion of Minnesota's approach.
58. MINN. STAT. ANN. § 260.012 (West 1992) (emphasis added).
59. Foster Care, Child Welfare, and Adoption Reforms, 1988: Joint Hearings Before the Subcomm. on Pub. Assistance and Unemployment Compensation of the House of Representatives Comm. on Ways and Means and the Select Comm. on Children, Youth, and Families, 100th Cong., 2d Sess. 252 (1988) (testimony of Select Comm. Chr. Hon. George Miller) [hereinafter Joint Hearings].
60. See Shotton, supra note 53, at 237 (analyzing "reasonable efforts" in termination of parental rights cases).
61. See, e.g., Winston v. Children and Youth Servs. of Del. County, 948 K2d 1380, 1390 (3d Cir. 1991); In re Burns, 519 A.2d 638, 648 (Del. 1986).
62. Burns, 519 A.2d at 640.
63. Id. at 648.
64. Id.
65. 948 F.2d 1380 (3d Cir. 1991).
66. Id. at 1389-90.
67. Id. at 1390.
68. Id. at 1392. The Third Circuit declined to rule on the issue whether a visitation policy that did not provide any visitation could survive a statutory challenge. Id. at 1389.
69. For a discussion of these states, see Shotton, supra note 53, at 234.
70. Id.
71. Id. at 235.
72. MINN. STAT. ANN. § 260.012(c).
73. Shotton, supra note 53, at 226.
74. See supra note 51 for a description of services outlined in 45 C.F.R. § 1357.15(e)(2) (1995).
75. See generally Carol R. Golubuck, Cash Assistance to Families: An Essential Component of Reasonable Efforts to Prevent and Eliminate Foster Care Placement of Their Children, 19 CLEARINGHOUSE REV. 1393 (1986).
76. Id. at 1394.
77. 45 C.F.R. § 1357.15(e)(2).
78. Joint Hearings, supra note 56, at 231.
79. Id.
80. Id. at 252 (testimony of Select Comm. Chr. Hon. George Miller).
81. Id. at 251.
82. For a discussion of cases and criticism of the Artist M. decision, see Barbara L. Atwell, "A Lost Generation": The Battle for Private Enforcement of the Adoption Assistance and Child Welfare Act of 1980, 60 U. CIN. L. REV. 593 (1992). For an extensive discussion of Norman v. Johnson, which was partially reversed in Artist M., see Elizabeth A. Sammann, Note, The Reality of Family Preservation Under Norman v. Johnson, 42 DEPAUL L. REV. 675 (1992).
83. For a discussion of cases and criticism of the Artist M. decision, see Barbara L. Atwell, "A Lost Generation": The Battle for Private Enforcement of the Adoption Assistance and Child Welfare Act of 1980, 60 U. CIN. L. REV. 593 (1992). For an extensive discussion of Norman v. Johnson, which was partially reversed in Artist M., see Elizabeth A. Sammann, Note, The Reality of Family Preservation Under Norman v. Johnson, 42 DEPAUL L. REV. 675 (1992).
84. 503 U.S. 347 (1992).
85. Id. at 363-64. Section 1983 provides in pertinent part that "[e]very person who, under color of any statute . . . subjects any citizen of the United States . . . to the deprivation of any rights . . . secured by . . . laws shall be liable to the party injured in an action at law . . . ." 42 U.S.C. § 1983 (1994).
86. 42 U.S.C. §§ 1320a-2, 1320a-10.
87. Norman v. McDonald, 930 F. Supp. 1219, 1228 (N.D. III. 1996). The consent order was entered after Norman v. Johnson, 739 F. Supp. 182 (N.D. 111. 1990). Parts of the consent order were based on other provisions of the Child Welfare Act. Other cases have held that these other provisions do not support a private right of action. See, e.g., E.F. v. Scafidi, 851F. Supp. 249, 254 (S.D. Miss. 1994) (holding that § 1983 confers no private right of action); Baby Neal v. Casey, 821 F. Supp. 320, 328 (E.D. Pa. 1993) (holding that Child Welfare Act does not provide individuals with private right of enforcement).
88. Norman, 930 F. Supp. at 1220.
89. Id. at 1221.
90. Id. at 1221-22.
91. Id. at 1222.
92. Id. at 1221.
93. People v. Turner, 619 N.E.2d 781,783 (III. App. Ct. 1993).
94. Id.
95. Id. at 788 (Inglis, J., dissenting).
96. Id.
97. CHILDREN'S DEFENSE FUND, THE STATE OF AMERICA'S CHILDREN YEARBOOK: 1996, 68 (1996) [hereinafter CHILDREN'S DEFENSE FUND].
98. NATIONAL CENTER ON CHILD ABUSE AND NEGLECT, CHILD MALTREATMENT 1993: REPORTS FROM THE STATES TO THE NATIONAL CENTER ON CHILD ABUSE AND NEGLECT 2-1, 2-2 (1995).
99. See, e.g., LaShawn A. v. Barry, 69 F.3d 556 (D.C Cir. 1995) (examining District of Columbia's foster care system); Norman v. McDonald, 930 F. Supp. 1219, 1228 (N.D. Ill. 1996) (extending period of consent order decree following settlement of class action suit against Illi-nois Dep't of Children & Family Servs.); Jeanine B. v. Thompson, 877 F. Supp. 1268 (E.D. Wis. 1995) (examining Wisconsin's foster care system).
100. Congressional Testimony Before the House Comm. on Ways and Means, 1996 WL 10829094 (June 27, 1996) (Statement of Select Comm. Chr. Hon. George Miller).
101. Personal Responsibility Act, H.R. 4, 104th Cong., 1st Sess. tit. I (1995); see CONTRACT WITH AMERICA, supra note 8. Block grants can be used as a subtle, indirect way to eliminate program requirements such as those contained in the Child Welfare Act that condition state compliance upon the receipt of federal funds. In addition, block grants provide a set funding-level rather than open-ended funding typical of entitlement programs.
102. 142 CONG. REC. H9418 (daily ed. July 31, 1996) (statement of Rep. Orton).
103. Id.
104. Id.
105. 142 CONG, REC. E1453 (daily ed. Aug. 1, 1996) (statement of Sen. Morella).
106. 142 CONG, REC. H9422 (daily ed. July 31, 1996) (statement of Rep. Poshard).
107. 142 CONG, REC. S9371 (daily ed. Aug. 1, 1996) (statement of Sen. Chafee).
108. 142 CONG, REC. S8091 (daily ed. July 18, 1996) (statement of Sen. Mikulski).
109. In Onondaga County, New York, preventive services cost $3,000 to $5,000 per child per year and foster care cost about $14,000. See Legislative Team Report, Policy Council Meeting, Onondaga County, Success by Six, Mar. 13, 1995.
110. See Legislative Team Report, Policy Council Meeting, Onondaga County, Success by Six, Oct. 7, 1996.
111. See supra note 1 and accompanying text.
112. See infra note 114-18 and accompanying text.
113. These poverty measures are based on those developed by Mollie Orshansky for the Social Security Administration. They assume that families spend approximately one-third of their income on food and use Department of Agriculture estimates of the cost of minimally adequate food budgets with variations for family size and other factors. Although even at the time they were developed there were concerns about their accuracy in measuring what would be needed for a subsistence budget, they have been the basis for official poverty measures since the 1960s. See PATRICIA RUGGLES, DRAWING THE LINE: ALTERNATIVE POVERTY MEASURES AND THEIR IMPLICATIONS FOR PUBLIC POLICY 4-5 (1990). The poverty thresholds are used by the census bureau for calculating estimates of the number of persons in poverty. The poverty guidelines are a simplified version of the poverty thresholds and are used for determining eligibility for various federal programs. The thresholds are published annually in the Federal Register by the Department of Health and Human Services. For 1996, the poverty line for a family of two was $ 10,360 and for a family of four was $15,600, except for Alaska and Hawaii which have a higher threshold. See 61 Fed. Reg. 8286-88 (1996).
114. These poverty measures are based on those developed by Mollie Orshansky for the Social Security Administration. They assume that families spend approximately one-third of their income on food and use Department of Agriculture estimates of the cost of minimally adequate food budgets with variations for family size and other factors. Although even at the time they were developed there were concerns about their accuracy in measuring what would be needed for a subsistence budget, they have been the basis for official poverty measures since the 1960s. See PATRICIA RUGGLES, DRAWING THE LINE: ALTERNATIVE POVERTY MEASURES AND THEIR IMPLICATIONS FOR PUBLIC POLICY 4-5 (1990). The poverty thresholds are used by the census bureau for calculating estimates of the number of persons in poverty. The poverty guidelines are a simplified version of the poverty thresholds and are used for determining eligibility for various federal programs. The thresholds are published annually in the Federal Register by the Department of Health and Human Services. For 1996, the poverty line for a family of two was $ 10,360 and for a family of four was $15,600, except for Alaska and Hawaii which have a higher threshold. See 61 Fed. Reg. 8286-88 (1996).
115. This measure of poverty has been extensively criticized and more sophisticated ap-proaches have been proposed. See RUGGLES, supra note 109; MEASURING POVERTY: A NEW APPROACH (Constance F. Citro & Robert T. Michael eds., 1995).
116. For a short description of the AFDC program, see Mark Greenberg, Federal Welfare Reform in Light of the California Experience: Early Lessons for State Implementation of the Program, 17 REV. LAW & Soc. CHANGE 419 (1989/1990).
117. CHILDREN'S DEFENSE FUND, supra note 93, at 85 tbl. B3. Alabama had the lowest benefit level, with the AFDC benefit being only 15% of the poverty line.
118. See infra Part H.A.
119. Stephen Wizner, Do the Poor Have a Right to Family Integrity?, in CHILD, PARENT & STATE 299, 301 (S. Randall Humm et al. eds., 1994).
120. Richard J. Gelles, Child Abuse and Violence in Single-Parent Families: Parent Absence and Economic Deprivation, 59 AM. J. ORTHOPSYCHIATRY 492, 498-99 (1989).
121. NATIONAL CENTER ON CHILD ABUSE AND NEGLECT, STUDY FINDINGS: STUDY OF NATIONAL INCIDENCE OF CHILD ABUSE AND NEGLECT: 1988, 5-25 to 5-29 (1988) (noting that children from families with incomes under $15,000 were reported as maltreated at 5 times the rate of other children).
122. U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNTIED STATES: 1989, at 172, tbl. 291 (1976-1985).
123. A study of child abuse and neglect reporting by hospitals found that reports were less likely when families were white or were middle- or upper-income, either because doctors do not suspect abuse or feel that they can be more effective in working directly with the parents. "Families with annual incomes of $25,000 or more had better than a two-to-one chance of having their recognized child maltreatment go unreported." Robert L. Hampton & Eli H. Newberger, Child Abuse Incidence and Reporting by Hospitals: Significance of Severity, Class and Race, in COPINO WITH FAMILY VIOLENCE: RESEARCH AND POLICY PERSPECTIVES 212, 215 (Gerald Hotaling et al. eds., 1988).
124. Dandridge v. Williams, 397 U.S. 471 (1970).
125. David Herring, Exploring the Political Roles of the Family: Justifications for Permanency Planning for Children, 26 LOY. U. CHI. L.J. 183, 195 (1995).
126. CHILDREN'S DEFENSE FUND, supra note 93, at 84, tbl. B.2.
127. As Marsha Garrison observed, child welfare agencies often have failed to "differentiate between families in which the child requires protection from his parent, and those in which the child requires protection from inadequate resources." Garrison, Child Welfare, supra note 30, at 1812.
128. Lavine v. Milne, 424 U.S. 577, 584 n.9 (1976).
129. See supra notes 14-15 and accompanying text.
130. 489 U.S. 189 (1989).
131. Id. at 195.
132. Id. at 201 n.9.
133. See, e.g., Youngberg v. Romeo, 457 U.S. 307 (1982); Estelle v. Gamble, 429 U.S. 97 (1976).
134. The level of assistance would be at least the same as the amount that would be spent on foster care.
135. See MARILYN I. HOLT, THE ORPHAN TRAINS (1992).
136. See generally Ramsey & Braveman, supra note 12, at 1605-16.
137. Lipscomb v. Simmons, 962 F.2d 1374, 1384 (9th Cir. 1992) (en bane) (affirming district court ruling that statute was rationally related to state's interest because it "allocated its limited resources in the best possible way in order to accomplish the goals of its foster care program") ("Lipscomb II").
138. Id. at 1377.
139. Id. at 1378.
140. Lipscomb v. Simmons, 884 F.2d 1242, 1250 (9th Cir. 1989) (holding that statute denying funds for foster care placements with relatives, while providing funds for non-relative placements, violates Due Process Clause), rev'd, 962 F.2d 1374 (9th Cir. 1992).
141. Id. at 1246. See, e.g., L.J. ex rel. Darr v. Massinga, 838 F.2d 118 (4th Cir. 1988); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir.1987); see also Amy Sinden, In Search of Affirmative Duties Toward Children Under a Post-DeShaney Constitution, 139 U. PA. L. REV. 227 (1990).
142. Lipscomb II, 962 F.2d at 1384.
143. Id. at 1379.
144. 929 F. Supp. 662 (S.D.N.Y. 1996).
145. Id. at 674.
146. Id. at 677.
147. Id.
148. Id.
149. See, e.g., IOWA CODE ANN, § 232.68(1)(d) (West 1994) ("Child abuse . . . means . . . the failure on the part of a person responsible for the care of a child to provide for the adequate food, shelter, clothing or other care necessary for the child's health and welfare when financially able to do so or when offered financial or other reasonable means to do so.").
150. See JOEL F. HANDLER, THE POVERTY OF WELFARE REFORM 23 (1995).
151. Joint Hearings, supra note 56, at 158 (testimony of the Ass'n for Children of New Jersey).
152. Id.
153. LaShawn v. Dixon, 762 F. Supp. 959, 970 (D.C. Cir. 1991) (finding that District of Columbia admitted that it could not afford reasonable efforts), aff'd, 990 F.2d 1319 (1993).
154. New York, for example, specifically allowed the Department of Social Services to provide cash assistance if inadequate housing would result in foster care placement. The assistance may not exceed $300 per month for three years, however. N.Y. Soc. SERV. § 409-a(5)(c) (McKinney Supp. 1997).
155. 461 N.W.2d 478 (Iowa Ct. App. 1990).
156. Id. at 479-80.
157. Id. at 480.
158. Id. at 482.
159. Id. at 483 (Sackett, J., dissenting).
160. In re Nicole G., 577 A.2d 248, 249 (R.I. 1990).
161. Id. at 250.
162. Id.
163. Families may not receive TANF for more than 60 months, and vouchers are optional. See supra note 2.
164. Id.; Joint Hearings, supra note 56, at 258 (testimony of Mark Hardin).
165. Shotton, supra note 53, at 230.
166. Id. at 227.
167. Santosky v. Kramer, 455 U.S. 745 (1982).
168. However, this would not be an option if state law prohibited it. New York, for example, has a constitutional requirement that the state provide for the needy. See Ramsey & Braveman, supra note 12, at 1624-27 (discussing Article XVII of New York Constitution and case law interpreting and applying it).
169. If states rely on removal, they will soon regret the new welfare policies because they will have to bear the financial burden of providing expensive foster care for children who are ineligible for assistance within the home. See supra notes 50, 105 and accompanying text for examples.
170. See Ramsey & Braveman, supra note 12, at 1608-16.
171. There are numerous proposals for how this could be done. See, e.g., DAVID T. ELLWOOD, POOR SUPPORT: POVERTY IN THE AMERICAN FAMILY (1988); IRWIN GARFINKEL, ASSURING CHILD SUPPORT: AN EXTENSION OF SOCIAL SECURITY (1992); NATIONAL COMMISSION ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN AGENDA FOR CHILDREN AND FAMILIES (1991); Stephen Sugarman, Financial Support of Children and the End of Welfare as We Know It, 81 VA. L. RBV. 2523 (1995). Although ending child poverty would be expensive, this cost should be weighed against the costs of child poverty. See generally LISBETH B. SCHORR & DANIEL SCHORR, WITHIN OUR REACH: BREAKING THE CYCLE OF DISADVANTAGE (1989). In addition to the immediate harm caused by poverty, the negative effects of childhood poverty continue into adulthood. See AROLOC SHERMAN, CHILDREN'S DEFENSE FUND, WASTING AMERICA'S FUTURE (1994); Martha S. Hill & Jodi R. Sandfort, Effects of Childhood Poverty on Productivity Later in Life: Implications for Public Policy, 17 CHILDREN YOUTH SERVS. REV. 91 (1995).
172. There are numerous proposals for how this could be done. See, e.g., DAVID T. ELLWOOD, POOR SUPPORT: POVERTY IN THE AMERICAN FAMILY (1988); IRWIN GARFINKEL, ASSURING CHILD SUPPORT: AN EXTENSION OF SOCIAL SECURITY (1992); NATIONAL COMMISSION ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN AGENDA FOR CHILDREN AND FAMILIES (1991); Stephen Sugarman, Financial Support of Children and the End of Welfare as We Know It, 81 VA. L. RBV. 2523 (1995). Although ending child poverty would be expensive, this cost should be weighed against the costs of child poverty. See generally LISBETH B. SCHORR & DANIEL SCHORR, WITHIN OUR REACH: BREAKING THE CYCLE OF DISADVANTAGE (1989). In addition to the immediate harm caused by poverty, the negative effects of childhood poverty continue into adulthood. See AROLOC SHERMAN, CHILDREN'S DEFENSE FUND, WASTING AMERICA'S FUTURE (1994); Martha S. Hill & Jodi R. Sandfort, Effects of Childhood Poverty on Productivity Later in Life: Implications for Public Policy, 17 CHILDREN YOUTH SERVS. REV. 91 (1995).
173. There are numerous proposals for how this could be done. See, e.g., DAVID T. ELLWOOD, POOR SUPPORT: POVERTY IN THE AMERICAN FAMILY (1988); IRWIN GARFINKEL, ASSURING CHILD SUPPORT: AN EXTENSION OF SOCIAL SECURITY (1992); NATIONAL COMMISSION ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN AGENDA FOR CHILDREN AND FAMILIES (1991); Stephen Sugarman, Financial Support of Children and the End of Welfare as We Know It, 81 VA. L. RBV. 2523 (1995). Although ending child poverty would be expensive, this cost should be weighed against the costs of child poverty. See generally LISBETH B. SCHORR & DANIEL SCHORR, WITHIN OUR REACH: BREAKING THE CYCLE OF DISADVANTAGE (1989). In addition to the immediate harm caused by poverty, the negative effects of childhood poverty continue into adulthood. See AROLOC SHERMAN, CHILDREN'S DEFENSE FUND, WASTING AMERICA'S FUTURE (1994); Martha S. Hill & Jodi R. Sandfort, Effects of Childhood Poverty on Productivity Later in Life: Implications for Public Policy, 17 CHILDREN YOUTH SERVS. REV. 91 (1995).
174. There are numerous proposals for how this could be done. See, e.g., DAVID T. ELLWOOD, POOR SUPPORT: POVERTY IN THE AMERICAN FAMILY (1988); IRWIN GARFINKEL, ASSURING CHILD SUPPORT: AN EXTENSION OF SOCIAL SECURITY (1992); NATIONAL COMMISSION ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN AGENDA FOR CHILDREN AND FAMILIES (1991); Stephen Sugarman, Financial Support of Children and the End of Welfare as We Know It, 81 VA. L. RBV. 2523 (1995). Although ending child poverty would be expensive, this cost should be weighed against the costs of child poverty. See generally LISBETH B. SCHORR & DANIEL SCHORR, WITHIN OUR REACH: BREAKING THE CYCLE OF DISADVANTAGE (1989). In addition to the immediate harm caused by poverty, the negative effects of childhood poverty continue into adulthood. See AROLOC SHERMAN, CHILDREN'S DEFENSE FUND, WASTING AMERICA'S FUTURE (1994); Martha S. Hill & Jodi R. Sandfort, Effects of Childhood Poverty on Productivity Later in Life: Implications for Public Policy, 17 CHILDREN YOUTH SERVS. REV. 91 (1995).
175. There are numerous proposals for how this could be done. See, e.g., DAVID T. ELLWOOD, POOR SUPPORT: POVERTY IN THE AMERICAN FAMILY (1988); IRWIN GARFINKEL, ASSURING CHILD SUPPORT: AN EXTENSION OF SOCIAL SECURITY (1992); NATIONAL COMMISSION ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN AGENDA FOR CHILDREN AND FAMILIES (1991); Stephen Sugarman, Financial Support of Children and the End of Welfare as We Know It, 81 VA. L. RBV. 2523 (1995). Although ending child poverty would be expensive, this cost should be weighed against the costs of child poverty. See generally LISBETH B. SCHORR & DANIEL SCHORR, WITHIN OUR REACH: BREAKING THE CYCLE OF DISADVANTAGE (1989). In addition to the immediate harm caused by poverty, the negative effects of childhood poverty continue into adulthood. See AROLOC SHERMAN, CHILDREN'S DEFENSE FUND, WASTING AMERICA'S FUTURE (1994); Martha S. Hill & Jodi R. Sandfort, Effects of Childhood Poverty on Productivity Later in Life: Implications for Public Policy, 17 CHILDREN YOUTH SERVS. REV. 91 (1995).
176. There are numerous proposals for how this could be done. See, e.g., DAVID T. ELLWOOD, POOR SUPPORT: POVERTY IN THE AMERICAN FAMILY (1988); IRWIN GARFINKEL, ASSURING CHILD SUPPORT: AN EXTENSION OF SOCIAL SECURITY (1992); NATIONAL COMMISSION ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN AGENDA FOR CHILDREN AND FAMILIES (1991); Stephen Sugarman, Financial Support of Children and the End of Welfare as We Know It, 81 VA. L. RBV. 2523 (1995). Although ending child poverty would be expensive, this cost should be weighed against the costs of child poverty. See generally LISBETH B. SCHORR & DANIEL SCHORR, WITHIN OUR REACH: BREAKING THE CYCLE OF DISADVANTAGE (1989). In addition to the immediate harm caused by poverty, the negative effects of childhood poverty continue into adulthood. See AROLOC SHERMAN, CHILDREN'S DEFENSE FUND, WASTING AMERICA'S FUTURE (1994); Martha S. Hill & Jodi R. Sandfort, Effects of Childhood Poverty on Productivity Later in Life: Implications for Public Policy, 17 CHILDREN YOUTH SERVS. REV. 91 (1995).
177. There are numerous proposals for how this could be done. See, e.g., DAVID T. ELLWOOD, POOR SUPPORT: POVERTY IN THE AMERICAN FAMILY (1988); IRWIN GARFINKEL, ASSURING CHILD SUPPORT: AN EXTENSION OF SOCIAL SECURITY (1992); NATIONAL COMMISSION ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN AGENDA FOR CHILDREN AND FAMILIES (1991); Stephen Sugarman, Financial Support of Children and the End of Welfare as We Know It, 81 VA. L. RBV. 2523 (1995). Although ending child poverty would be expensive, this cost should be weighed against the costs of child poverty. See generally LISBETH B. SCHORR & DANIEL SCHORR, WITHIN OUR REACH: BREAKING THE CYCLE OF DISADVANTAGE (1989). In addition to the immediate harm caused by poverty, the negative effects of childhood poverty continue into adulthood. See AROLOC SHERMAN, CHILDREN'S DEFENSE FUND, WASTING AMERICA'S FUTURE (1994); Martha S. Hill & Jodi R. Sandfort, Effects of Childhood Poverty on Productivity Later in Life: Implications for Public Policy, 17 CHILDREN YOUTH SERVS. REV. 91 (1995).