Scandalous Politics : Child Welfare Policy in the States [1 ed.] 9781589016156, 9781589017078

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Scandalous Politics

SELECTED TITLES from the American Governance and Public Policy Series Series Editors: Gerard W. Boychuk, Karen Mossberger, and Mark C. Rom After Disaster: Agenda Setting, Public Policy, and Focusing Events Thomas Birkland Branching Out, Digging In: Environmental Advocacy and Agenda Setting Sarah Pralle Brussels Versus the Beltway: Advocacy in the United States and the European Union Christine Mahoney Collaborative Public Management: New Strategies for Local Governments Robert Agranoff and Michael McGuire Custodians of Place: Governing the Growth and Development of Cities Paul G. Lewis and Max Neiman The Education Mayor: Improving America’s Schools Kenneth K. Wong, Francis X. Shen, Dorothea Anagnostopoulos, and Stacey Rutledge Fenced Off: The Suburbanization of American Politics Juliet F. Gainsborough Globalization and the Politics of Pay: Policy Choices in the American States Susan B. Hansen Healthy Voices, Unhealthy Silence: Advocacy and Health Policy for the Poor Colleen M. Grogan and Michael K. Gusmano Investing in the Disadvantaged: Assessing the Benefits and Costs of Social Policies David L. Weimer and Aidan R. Vining, Editors Lessons of Disaster: Policy Change after Catastrophic Events Thomas Birkland Making Policy, Making Law: An Interbranch Perspective Mark C. Miller and Jeb Barnes, Editors National Health Insurance in the United States and Canada: Race, Territory, and the Roots of Difference Gerard W. Boychuk The Politics of Unfunded Mandates: Whither Federalism? Paul L. Posner Power, Knowledge, and Politics: Policy Analysis in the States John A. Hird School’s In: Federalism and the National Education Agenda Paul Manna The Shadowlands of Conduct: Ethics and State Politics Beth A. Rosenson Ten Thousand Democracies: Politics and Public Opinion in America’s School Districts Michael B. Berkman and Eric Plutzer Terra Incognita: Vacant Land and Urban Strategies Ann O’M. Bowman and Michael A. Pagano Virtual Inequality: Beyond the Digital Divide Karen Mossberger, Caroline J. Tolbert, and Mary Stansbury

Scandalous Politics Child Welfare Policy in the States Juliet F. Gainsborough

Georgetown University Press Washington, D.C.

Georgetown University Press, Washington, D.C. www.press.georgetown.edu © 2010 by Georgetown University Press. All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage and retrieval system, without permission in writing from the publisher.

Library of Congress Cataloging-in-Publication Data Gainsborough, Juliet F. Scandalous politics : child welfare policy in the States / Juliet F. Gainsborough    p.  cm. — (American governance and public policy series) Includes biographical references and index. ISBN 978-1-58901-707-8 (pbk. : alk. paper) 1. Child welfare—United States. 2. United States—Social policy. I. Title. HV741.G35 2010 362.7—dc22    2010004909

This book is printed on acid-free paper meeting the requirements of the American National Standard for Permanence in Paper for Printed Library Materials. 15  14  13  12  11  10    9  8  7  6  5  4  3  2 First printing Printed in the United States of America

To Tom

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Contents



List of Illustrations

ix



Preface

xi



List of Abbreviations

1

Introduction: Child Welfare and the Politics of Scandal

2

The Swinging Pendulum: Child Welfare Policy at the National Level

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3

States, Scandals, and Child Welfare Policy

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4

Florida: Scandal, Electoral Politics, and Leadership Change

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5

Colorado: Investigative Journalism, Local Control, and Minor Reform

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6

New Jersey: Scandals, Courts, and Ongoing Reform

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7

Conclusion: Scandalous Politics

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Appendix 1: Testimony at Congressional Hearings on Child Welfare

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Appendix 2: Data Sources and Descriptive Statistics for Chapter 3

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References

177



Selected Interviews

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Index

195

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Illustrations

Figures 1.1 Child Maltreatment

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1.2 The Child Welfare System

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2.1 Foster Care and IV-E Foster Care Populations, 1962–2001

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3.1 Total Federal, State, and Local Spending on Child Welfare, 1996–2004

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3.2 Federal, State, and Local Child Welfare Spending per Child by State, 2004

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Tables 2.1 Federal Funding for Child Welfare Services and Foster Care Under Title IV-B and IV-E of the Social Security Act, 1981–2002.

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3.1 Classification of Child Welfare Legislation Enacted by States 2002–4 (with examples of specific pieces of legislation in each category)

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3.2 State and Local Spending per Child on Child Welfare 2002–4

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3.3 Passage of Child Welfare Legislation 2002–4

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4.1 Percentage Change in Child Welfare Spending Levels

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4.2 Children in Out-of-Home Care

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5.1 Child Welfare Legislation Recommended by Foster Care Interim Committee

106

5.2 Percentage Change in Child Welfare Spending Levels

108

5.3 Children in Out-of-Home Care

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6.1 Percentage Change in Child Welfare Spending Levels

131

6.2 Number of Children in Out-of-Home Care

133

7.1 Categories of State Responses to Child Welfare Scandals

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Preface

The idea for this book came from my experience as a volunteer on a MiamiDade County Citizen Review Panel in Florida, which heard the cases of children in the foster system in lieu of a judge. The 2002 Rilya Wilson scandal occurred while I served on the panel; and as a political scientist and as someone who cared about the child welfare system, I was struck by several features of the scandal’s aftermath. First, the sudden intense public interest in the child welfare system contrasted with its relative obscurity before and after the scandal. I wondered whether attention paid to the particulars of Rilya Wilson’s case was likely to help children in foster care more generally—like those I learned about during each month’s day of service on the panel. Second, in the immediate aftermath of the discovery of Rilya’s disappearance, it seemed clear that child welfare was going to be an issue in the upcoming gubernatorial campaign, yet ultimately it seemed to matter very little, if at all. Consequently, I wondered about the politics of child welfare scandals: when, if ever, do they have a lasting impact on policy? This book was born from the desire to answer these questions. While my interest in the subject began in Florida, it was not until I moved to Massachusetts that I actually began to research and write on the politics of child welfare. Along the way I incurred numerous debts and benefited from the wise counsel of many colleagues and friends. At Bentley University I have been lucky to receive tangible support in the form of a course release that provided time to write and travel money that enabled me to conduct interviews for the state case studies. In addition to the support of colleagues at Bentley I have also benefited from my geographical proximity to Claudine Gay and Anya Bernstein, friends from graduate school, who kindly read and commented on portions of the project. I have presented various pieces of the book at conferences, including the Midwest Political Science Association Meeting, the American Political Science Association Meeting, and the State Politics and Policy Conference, and my work has also benefited from discussions at these meetings. As the discussant on one of these conference panels, Bill Gormley provided particularly helpful suggestions at an early stage in my research. A version of the data analysis in chapter 3 (and some of the discussion of hypotheses in chapter 1) appeared as an article in State Politics

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and Policy Quarterly vol. 9, no. 3, and I am appreciative of the comments from three anonymous reviewers and from Dick Winters, all of whom helped strengthen the quantitative analysis. The series and acquisitions editors at Georgetown University Press have been wonderful to work with. In particular Gerry Boychuk and Gail Grella’s early enthusiasm for the project was much appreciated. Don Jacobs, who took over from Gail Grella, has also been extremely helpful as the book has moved to completion. Thomas Birkland and two anonymous reviewers for the press provided thoughtful comments that significantly improved the project. Finally, I owe a huge debt to the respondents in Florida, Colorado, and New Jersey, who took time out of their busy schedules to talk to me about child welfare policy and politics in their state.1 During the course of researching and writing the book, my children, Abigail and James, arrived as sources of great joy and improved perspective. As every working parent knows, the successful combination of roles requires a supportive cast, and I’ve been unbelievably lucky in that regard. Sandra Shea’s creative and loving childcare made it possible for me to focus on writing. The willingness of grandparents, Jenni and John Gainsborough and Sharon and Matt Sloan, to fly across the country to play games, cook dinners, and give baths made research trips feasible. Most of all, none of the good things would be possible without Tom—best father, best husband, and best friend. He is my sounding board, my cheerleader, and my proofreader, and I dedicate this book to him.

Note 1. Many of my interviewees felt that they could offer a more candid assessment of child welfare politics in their state if they were not identified as sources for specific arguments or observations. Consequently, information gleaned from interviews is simply cited as “Interviews.” In general, key observations cited in this manner were shared by several interviewees. When given permission I have included the names and affiliations of those I interviewed in the bibliography.

Abbreviations

AACWA ACNJ AFDC AFDC-FC ASFA CAFCA CASA CBC CDF CFSR CPA CSSP CWA CWLA DCF DHS DYFS FCF HEW NCANDS NCSL TABOR TANF

Adoption Assistance and Child Welfare Act of 1980 Association for the Children of New Jersey Aid to Families with Dependent Children Aid to Families with Dependent Children–Foster Care Program Adoption and Safe Families Act of 1997 Colorado Association of Family and Children’s Agencies Court Appointed Special Advocates community-based care Children’s Defense Fund Child and Family Services Review child placement agency Center for the Study of Social Policy Communications Workers of America Child Welfare League of America (Florida) Department of Children and Families (Colorado) Department of Human Services (New Jersey) Division of Youth and Family Services Florida’s Children First Department of Health, Education, and Welfare (Carter Administration) National Child Abuse and Neglect Data System National Conference of State Legislatures Taxpayer’s Bill of Rights Temporary Assistance for Needy Families



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Chapter One

Introduction: Child Welfare and the Politics of Scandal

After one-year-old Ayveionse died in the care of her father’s girlfriend, state officials announced that they were taking a close look at investigative procedures employed by child welfare agencies around the state. Ayveionse’s grandmother said that she had reported earlier abuse to the Department of Children and Youth Services and charged that by failing to protect her granddaughter, “child services is just as responsible for her death.” —(“State Probes Child Welfare Safeguards; ‘Something in the System Is Broken,’ a Department of Public Welfare Spokeswoman Said after the Death of a Harrisburg Toddler,” Harrisburg [PA] Patriot News, May 16, 2009)

A state senator called for the state to audit the Department of Children and Families and the Milwaukee Bureau of Child Welfare after the death of 13-month Christopher Thomas at the hands of his aunt, into whose care he had been given by the child welfare agency. His two-year-old sister was also found to have been tortured over many months. The abuse occurred “despite repeated visits” from child welfare workers. —(“The Death of Christopher Thomas; Darling Calls for Audit of Agencies. Legislator Questions ‘Why Children Are Dying?’”, Milwaukee Journal Sentinel, January 6, 2009)

The Fulton County Office of the Division of Family and Children’s Services [DFCS] came under scrutiny when 16-month-old Amiya Brown died of blunt force trauma to the face and head while in the care of her mother’s boyfriend. DFCS had opened a case on the child nine days earlier after she was taken to the hospital with broken arms and legs. Amiya was allowed to return home with her mother, and at the time of her death, a follow-up visit from the agency had yet to occur. —(“Injuries Noticed before Death; Suspicions at Hospital Didn’t Keep DFCS from Sending Baby Home,” Atlanta Journal-Constitution, May 31, 2008)







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As these synopses of articles illustrate, state child welfare policy is frequently characterized by scandal. When a child is removed from his or her parents only to be abused in foster care, or when a child remains with, or is returned to, his or her biological parents only to be harmed again, the child welfare system can become the object of not only state scrutiny but sometimes national scrutiny. Because of the high visibility of these incidents, observers of child welfare policy commonly make the argument that policymaking is largely reactive—that “child welfare policy is set by a pendulum that swings from crisis to crisis” (Orr 1999, 4). Views on whether this responsiveness to crisis is good or bad vary. Some activists argue that these high-profile cases provide opportunities to introduce badly needed reform. However, some child welfare experts argue that these cases divert attention from the more common problem of child neglect in favor of the much rarer cases of severe abuse. In both instances, however, the assumption is that child welfare systems do respond to scandal. Legal scholars have written extensively on the shift in federal policy away from an emphasis on family preservation toward an emphasis on faster adoptions. These scholars credit much of this shift to the power of crisis to set the policy agenda (Wilkinson-Hagen 2004). They point out that congressional debate over the Adoption and Safe Families Act of 1997 highlighted horrible stories of children who were abused by members of their own family after a social services agency had made the decision to return or not remove the child (Bailie 1998; Brooks 2001; Roberts 1999a). At the state level some observers similarly suggest that child welfare crises result in substantive policy change. Describing high levels of volatility in state expenditures on child welfare programs, an Urban Institute report hypothesizes that this volatility is due in part to the fact that spending levels change in reaction to “media or political pressure following a child’s death from abuse or neglect” (Bess, LeosUrbel, and Geen 2001, 5). Finally, some anecdotal evidence also suggests that policy implementation at the street level is shaped by crisis. In another Urban Institute study that looked at the relationship between welfare reform and child welfare services, caseworkers, the street-level bureaucrats of the child welfare system, reported that “highly publicized child death cases” affected their day-to-day decision making (Geen and Tumlin 1999, 9). Despite the prevalence of this conventional wisdom, however, little work has been done to systematically analyze the mechanisms by which scandal in the child welfare system might shape policy. Certainly, compelling stories that command media and public attention and highlight the vulnerability of the target population may provide child welfare advocates with agenda-setting opportunities that do not exist in other social policy domains. That said, although compelling stories may offer agenda-setting opportunities, these opportunities do not necessarily result in a particular policy response. This book addresses this question: When and how do attention-grabbing stories





Introduction: Child Welfare and the Politics of Scandal

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shape child welfare policymaking? To understand the role of scandal I analyze both quantitative and qualitative data (fifty-state quantitative analysis complemented by three in-depth, qualitative case studies) and examine the response at multiple levels of government (federal, state, and local). This work increases our understanding of the politics of a policy area that has a critical impact on some of the most vulnerable children in the country and that has received relatively scant attention from political scientists. A study of the politics of child welfare policy can also provide additional theoretical insights about the relationship between focusing events, agenda setting, and policymaking. Scholars of the policy process agree that external events can be a catalyst for policy change by breaking up a policy monopoly (Baumgartner and Jones 1993), changing beliefs and redistributing resources (Sabatier and Jenkins-Smith 1993), or helping open a policy window (Kingdon 1995). Less agreement exists about how to make a priori judgments regarding when a particular event is likely to be focal and about how to explain variation in the extent to which external events influence the policy process (Birkland 1997; Nohrstedt 2008; Weible, Sabatier, and McQueen 2009). One way to address these issues is to explore variations in the impact of focusing events across policy domains (Birkland 1997, 2006). Child welfare policy and its associated scandals provide an interesting and under-studied policy domain in which to explore these issues. Existing studies of the impact of focusing events have often focused on natural and man-made disasters that are relatively rare and directly affect significant numbers of people.1 In fact Birkland’s (1997) definition of focusing events includes precisely these elements: A focusing event is “an event that is sudden, relatively rare, can be reasonably defined as harmful or revealing the possibility of potentially greater future harms, inflicts harms or suggests potential harms that are or could be concentrated on a definable geographical area or community of interest, and that is known to policymakers and the public virtually simultaneously” (22). Child welfare scandals fit this definition of focusing events in some ways but not in others. Most notably, child welfare scandals may be a more regular feature of the policy environment than this definition suggests. In addition the catalyst for a child welfare scandal is generally harm to one child rather than to a community, although the aftermath of the scandal often includes a discussion about the extent to which the particular harm suggests that other children could be similarly harmed. Finally, child welfare scandals occur in the context of a social policy domain with a politically weak constituency, which may also shape the effect of focusing events. In addition to varying across policy domains, the impact of focusing events may vary depending on institutional setting and political environment. This variation will not be apparent in studies of policymaking that focus exclusively on the federal level. Although the national government imposes significant requirements on how child welfare systems operate (as discussed in

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greater detail in chapter 2), child welfare policy is still primarily the responsibility of state government and, in some states, local government. Comparing responses to child welfare scandals across states allows me to consider the ways in which variations in the political and institutional environment affect outcomes while holding the policy domain, child welfare, constant. In addition I analyze national as well as state-level policymaking, contrasting the impact that focusing events have on different levels of government as well as across the same level of government. Finally, the literature on policymaking has made the point that implementation is an important arena in which policy is shaped. Policy can change when new legislation is enacted, but it can also change when the way existing policies are implemented changes. At the same time, discussion of the agenda-setting function of focusing events has not often been linked to issues of implementation. I explore a dimension of this issue by considering the way in which focusing events may affect not only legislative behavior but also bureaucratic behavior. This chapter provides a brief overview of the scope of child welfare policy in the United States, draws on theories of agenda setting and the policy process to develop hypotheses about how and when scandal shapes child welfare policy, and provides an overview of the book’s structure and methodology.

Child Welfare Policy Child welfare policy regulates all stages of a child’s contact with state agencies, from an initial charge of abuse and/or neglect to decisions about what forms of intervention are needed to protect the child.

Child Abuse and Neglect A child’s involvement with the child welfare system usually begins when the state receives a report of suspected abuse. Since the mid-1960s every state has had a mandatory child abuse reporting law.2 In 1974 Congress enacted the Child Abuse Prevention and Treatment Act, which requires states to institute specific procedures for reporting and investigating child abuse and neglect before they can be eligible for federal grants for prevention services. Since then state reporting laws have expanded over time in two ways (Best 1990, 70). First, the categories of individuals who are required to report suspected abuse have grown to include not only medical professionals—the original target of the model reporting laws on which many states based their own law—but also teachers, clergy, police officers, and, in some states, any member of the public who suspects abuse (Lindsey 2004, 122; U.S. Department of Health and Human Services, Administration on Children, Youth, and





Introduction: Child Welfare and the Politics of Scandal

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Families, Children’s Bureau, Child Welfare Information Gateway 2008). Second, the definition of what constitutes abuse has also expanded to include not only physical abuse but also abandonment, neglect, emotional abuse, sexual abuse, and, in some states, parental substance abuse (Lindsey 2004, 143; U.S. Department of Health and Human Services, Administration on Children, Youth, and Families, Children’s Bureau, Child Welfare Information Gateway 2007). Not surprisingly given these changes, reports of child abuse have increased significantly since the 1970s. Experts agree that some proportion of this increase reflects these expanded reporting requirements and a growing awareness of the problem, rather than an increase in the actual rate of abuse. Supporting this position is the fact that the rate at which reports of abuse are substantiated has declined over time, from 65 percent of cases substantiated in 1976 to 27.5 percent in 2001 (U.S. Congress, House, Committee on Ways and Means 2004, 11–76). At the same time, changes in the rate at which abuse and neglect reports are substantiated may also reflect changes in how reports are treated by child welfare agencies, rather than changes in the degree to which reports of abuse correspond to the real level of abuse and neglect.3 Since 1990, child maltreatment rates in the United States have ranged from a low of 10.8 per 1,000 in 2003 and 2007 to a high of 15.3 per 1,000 in 1993 (see figure 1.1). In 2007 child welfare agencies received 3.2 million referrals for the abuse and neglect of an estimated 5.8 million children.4 From these referrals an estimated 794,000 children were determined to be victims of abuse and/or neglect. Neglect was the most common form of maltreatment, experienced by 60 percent of child victims. Approximately one-fifth of the children who were determined to be victims were removed from their home as a result of the maltreatment. In fiscal year 2006, 303,000 children entered foster care, and another 289,000 children exited foster care. At the end of fiscal year 2006, 510,000 children were in foster care nationwide (U.S. Department of Health and Human Services, Administration on Children, Youth, and Families, Children’s Bureau, Child Welfare Information Gateway 2009b). During the same time period an estimated 1,760 children died of abuse and neglect. Most of these children were not previously known to the child welfare system; but 12 percent were from families that had received child welfare services in the previous five years, and 2.6 percent had previously been in foster care (U.S. Department of Health and Human Services, Administration on Children, Youth, and Families, Children’s Bureau, Child Welfare Information Gateway 2009a).

Investigation and Intervention As the numbers of reported cases of abuse have increased over time, so has the investigation and intervention role of child welfare agencies. According to

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Chapter One

18
 16
 14
 12
 10
 8
 6
 4
 2
 0
 1990
 1991
 1991
 1993
 1994
 1995
 1996
 1997
 1998
 1999
 2000
 2001
 2002
 2003
 2004
 2005
 2006
 2007


Figure 1.1 Child maltreatment per 1,000 children in the U.S. population. (1990–2006 data from Child Welfare League of America’s National Data Analysis System, www.ndas.cwla .org. 2007 data from U.S. Department of Health and Human Services, Administration on Children, Youth, and Families, Children’s Bureau, Child Welfare Information Gateway [2009a].)

Lindsey (2004, 126), “Child welfare resources were, as a result of mandatory reporting laws, redirected. . . . toward investigating and intervening in the increasing number of child abuse reports.” Today investigation and intervention are the primary functions of state child welfare systems. An initial report of abuse begins what can be a lengthy process of involvement with the child welfare system (see figure 1.2). In almost every state, child abuse reports are initially screened to determine whether a full investigation is warranted (Tumlin and Geen 2000). “Screened-in” cases are then investigated by child welfare workers, who find either that the case is unfounded (and can be closed) or that the case is substantiated. These investigations can involve home and school visits as well as interviews with the child, other family members, neighbors, and teachers. For substantiated cases workers must decide whether the child can remain safely in the home, whether the family should receive services to prevent future abuse, or whether the child needs to be removed from the home. If the child welfare agency wants to remove a child, a court hearing is held to determine placement. If the court agrees with the agency’s recommendation, the child is placed in a foster home, in a group home, or sometimes with relatives in kinship care, where he or she remains under the supervision of the child welfare system. A case plan is developed that specifies what steps parents need to take in order for the child to be returned home, as well as specifying

Abuse ororneglect reported, Abuse neglect isis reported, agency investigates andand thetheagency investigates

Unfounded: case is closed

Substantiated Substantiated

Unfounded: Case is closed

Agency sends Agency sends childchild home supervision or homewith with supervision support services or support services

Agency Agencyrecommends recommends removalfrom from home removal home

Agency sends childchild home Agency sends services homewithout without services

Courtcase hearsand case and Court hears determines determines initial placement initial placement

Court sends child child home Court sends home without services without services

Court sends child Court sends childhome home with supervision or with supervision or support services support services

Court orders child to be to be removed removed fromfrom home home

Child placed inin foster Child placed foster family home family home

Child placed group Child placed iningroup home,shelter, shelter, or or home, residential facility residential facility

Court orders child

Child placed the home Child placed in inthe home of a relative of a relative

Court-approved case plan Court-approved case plan in in place. Court reviews progress everyevery place; court reviews progress 6 months and holds permanency six months and holds permanency hearing after 12 months. hearing after twelve months

Birth family completes Birth family completes reunification plan: child reunification plan: child returns home returns home

Birth family does Birth family doesnot not comcomplete reunification plan: plete reunification plan: parental rights terminated parental rights terminated

Child permaChildplaced placed in in permanent home (adoptive, nent home (adoptive, relative, or guardian) relative, or guardian)

Child remains in foster Child remains in foster care until "aged“aged out" (at age 18 (at care until out” or 21, depending on state) age eighteen or twentyone, depending on state)

Figure 1.2 The child welfare system. (Adapted from Pew Commission on Children in Foster Care, “A Child’s Journey through the Child Welfare System.”)

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an alternative future for the child, such as adoption, if the parents do not regain custody. Regular court hearings are held to determine what progress is being made in the child’s case, whether the child can be returned home safely, or whether the child’s parental rights should be terminated, which frees the child for adoption or some other type of permanent arrangement.5 Child welfare systems then also manage the adoption process. The ability to both protect children and preserve families depends on the successful functioning of this system. Furthermore, the quality and consistency of care that children in the child welfare system receive affect their ability to become independent and self-supporting adults. Consequently, understanding how state and national politics interact with scandals to affect the design and implementation of child welfare policy is important in terms of both practice and theory.

Child Welfare and the Politics of Poverty To the extent that political scientists mention child welfare policy, they tend to group it with welfare policy more generally. However, child welfare policy has a complicated relationship to Aid to Families with Dependent Children (AFDC) and Temporary Assistance for Needy Families (TANF) policy in particular, and to the politics of poverty more generally. Child welfare advocates have at times sought explicitly to delink child welfare programs from antipoverty programs. When child abuse appeared as an issue on the national agenda in the 1960s, supporters of programs to respond to child abuse deliberately sought to frame the issue as one without reference to class status and worked to avoid associating programs to address child abuse with politically unpopular poverty programs (Nelson 1984). Both liberals and conservatives had a stake in defining the issue in this way. Liberals saw it as a way to build more popular support for programs aimed at curbing child abuse and protecting children and as a way to avoid further stigmatizing poor people. Conservatives, however, saw it as a way to lay the blame for child abuse squarely on the shoulders of deviant individuals, rather than looking for structural or social roots to the problem. Although defining beneficiaries of social programs as middle-class is often seen as a way to strengthen programs politically, contemporary critics of child welfare policy see the success of the “myth of classlessness” as “hurting poor families because it supports ineffective remedies for child abuse and neglect that focus on psychological treatments rather than eliminating hazards stemming from poverty or implementing antipoverty policies. . . . [and] may also lead to unfair judgments about the moral culpability of abusive parents” (Roberts 2002, 30–31; see also Nelson 1984, 18; Costin, Karger, and Stoesz





Introduction: Child Welfare and the Politics of Scandal

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1996, chapter 1; Bernstein 2002, xiii; Lindsey 2004, 23–28). The tendency to focus on psychological causes of abuse may be reinforced by media focus on sensational cases of severe physical abuse that ignore the more common reason that children enter the child welfare system: neglect. One prominent child welfare researcher, for example, argues that the entire child welfare system is currently oriented toward the wrong set of problems: “The mission of the child welfare system should not be limited to protecting children from criminal assault by loved ones. Rather the goal should be to aid impoverished children. The child welfare system must shift responsibility for protecting criminally abused children back to the police and the courts, where it is best handled. Only then can the child welfare system concentrate on providing an infrastructure of social programs that will ensure the economic security and well-being of disadvantaged and impoverished children” (Lindsey 2004, 198). This critique of the myth of classlessness underscores the potentially complicated politics of child welfare policy. Some advocates believe that defining child welfare solely in terms of child abuse, and then defining child abuse as a problem that is not related to poverty, may focus policymakers on the wrong set of issues. However, social programs with a clear focus on helping lowincome individuals tend to be the least generous and the most politically vulnerable. In addition linking child welfare policy with antipoverty policy does not necessarily resolve the argument between those who focus on individual wrongdoing as the root of child abuse and those who focus on systemic contributors to abuse and neglect. Antipoverty policy debates feature a similar argument between those who identify individual behavior as the root cause of poverty and those who focus on structural explanations of poverty. The myth of classlessness may encourage a policy focus on individual pathology rather than on social structure or institutions, but critics of the current child welfare system also suggest that the reality that those involved with the child welfare system are disproportionately poor and African American shapes the politics of child welfare. Similarly, research on AFDC and TANF finds that welfare policy is shaped by the politics of race, in which the perception that welfare is primarily for African Americans reduces support for the program (Hero 1998; Gilens 1999; Roberts 1999b). We might expect the politics of child welfare and AFDC/TANF to differ because the target population of child welfare policy, abused children, is one that evokes considerable public sympathy. However, to the extent that child welfare policy, like welfare policy, is also focused on the behavior of parents, the two policy areas may experience similar political realities. Dorothy Roberts (2002), for example, argues that child welfare policy, just like welfare reform, is shaped by “strong and deeply embedded stereotypes about Black family dysfunction” and “stereotypes of Black maternal unfitness” (60). These negative views of poor families

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in general, and African American families in particular, encourage policies that facilitate the removal of children from families and their placement in state care. Although only 15 percent of U.S. children are African American, more than one-third of the foster care population is African American (Hill 2006). According to Roberts (2002), “if the rate of white children entering foster care began to approach the present rate of Blacks, we would certainly see more moral outrage over the level of state interference in families” (92). In fact “outrage over the level of state interference in families” has meant that liberals and conservatives have sometimes agreed on child welfare issues. As discussed in greater detail in chapter 2, liberals and conservatives have sometimes found common ground in the idea that the child welfare system should focus on family preservation rather than child removal. Some liberals have viewed child removal with suspicion because of the belief that all types of families should be valued and that families in crisis can be helped with the appropriate support services. They share Roberts’s (2002) view that the willingness to break up biological families is, at least in part, rooted in racist and classist judgments about what kinds of families are worth preserving. At the same time, some conservatives have also viewed child removal with suspicion because of a belief in the sanctity of parental authority within the parent-child relationship, as well as a belief in the inappropriateness of state interference in the private sphere of the family (Nelson 1984, 90–91). Despite debate over the extent to which child welfare policy can and should be treated separately from the issue of poverty, the two are inextricably linked in practice, if not always in theory. To the extent that unsafe housing, lack of food, and inadequate supervision can result in neglect charges, the protective custody provisions of child abuse statutes “reestablished the possibility of removing a child from his or her home for reasons of poverty” (Nelson 1984, 90). Although in principle poverty is not equivalent to neglect, child welfare workers acknowledge that in practice there is sometimes a thin line between the two (Geen et al. 2001).6 And, in fact, children involved with the child welfare system disproportionately come from poor families. As many as 50 percent of families who are reported for child abuse and neglect are receiving welfare (Geen et al. 2001). Approximately 50 percent of foster children come from families that are welfare eligible (Geen et al. 2001; U.S. Congress, House, Committee on Ways and Means 2004). In addition to the fact that poverty may be confused with neglect, researchers have suggested several other explanations for the relationship between poverty and involvement with the child welfare system. First, the stresses of poverty may result in a greater likelihood of maltreatment in these families than is found in families that do not experience these stresses. For example, in a review of recent research on maltreatment Hill (2006) concludes that “while poverty does not cause maltreatment, the effects of poverty appear to





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interact with other risk factors (such as depression, isolation, teenage pregnancy, unemployment, substance abuse, and domestic violence) to increase the likelihood of maltreatment” (17). Second, the poor, particularly those receiving welfare, are more subject generally to state scrutiny and therefore are more likely to be observed mistreating their children than their middle-class counterparts (Geen et al. 2001; Mezey 2000, 20). Third, some studies suggest that class and racial bias result in a greater likelihood that poor families will be reported for abuse. For example, medical professionals may be more likely to accept that injuries to a child are accidental when the family is white and middle-class (Hill 2006, 17–19). All of these possible explanations further complicate the politics of child welfare policy. Advocacy groups do not want to be seen as suggesting that low-income families are likely to abuse their children. Yet many child welfare advocates believe that more governmental assistance for low-income families would help reduce the incidence of child abuse and neglect, and they believe that limiting assistance to low-income families may increase the number of children entering the child welfare system. This connection was highlighted during the debate over welfare reform in the mid-1990s as opponents of the Personal Responsibility and Work Opportunity Reconciliation Act suggested that one result of reforms could be an increase in the number of children entering the child welfare system as their parents lost benefits (Geen and Tumlin 1999).7 One observer of child welfare policy suggests that child welfare problems “seem so intractable” precisely because of “the unacknowledged contradictions between policies that punish the undeserving poor and pledges to help all needy children” (Bernstein 2002, xii).

Child Welfare Scandals as Focusing Events Given this complicated relationship to antipoverty policy, child welfare scandals may serve a particularly pivotal role in shaping child welfare policymaking by focusing attention on the sympathetic target population—abused children. Compelling and tragic stories like those described in the opening of the chapter highlight the vulnerable nature of the children and their need for state protection. In the context of TANF, for example, attention-grabbing stories are both much less common and, to the extent that they are reported, may be less likely to be the kinds of stories that generate sympathy for the target of the policy (Gilens 1999). Child welfare scandals typically involve a child whose family is already known to the child welfare system. After an abuse or neglect investigation, the decision may have been made to let the child stay with the family, or perhaps the child was removed for a time but then returned home. When the child subsequently dies or is severely injured at the

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hands of the family, the child welfare system comes under fire for allowing the child to remain in the home. Alternatively, these incidents may involve a child who was removed from home and then was killed or harmed while in foster care. In these cases the child welfare system may again face criticism for inadequate oversight of foster care providers.

Focusing Events and Causal Stories The view that child welfare policymaking is highly reactive to these kinds of scandals is essentially an argument that such a scandal serves as a focusing event, “a crisis or disaster” that has the potential to elevate a problem to the government agenda (Kingdon 1995, 94). Two key features of these scandals define their potential as focusing events. First, the severe maltreatment of an innocent child is the kind of story that easily garners media and public attention. The “sympathetic victim” and “hateful culprit” make a compelling human interest story that fits with the media’s “tendency to personalize the news” (Bennett 2008, 41). In addition, as Nelson describes (1984, 27), “child abuse elicits a single strong, fairly uniform emotional response”—the public is horrified by accounts of harm to children. However, the fact that these kinds of stories are likely to receive media and public attention does not necessarily mean that they will affect the policy agenda. Some kinds of stories of child abuse receive plenty of attention without elevating the issue of abuse onto the governmental agenda. For example, the case of Louise Woodward, the eighteen-year-old British au pair accused of shaking her host family’s baby to death, garnered widespread national and international attention but was not seen as having clear policy implications. A second feature of these child welfare scandals is key to their agendasetting potential: A public agency is implicated in the harm to the child. The child’s family was “known” to the system, meaning that the public agency charged with protecting children had some prior warning that the child might be in danger; or in the case of a child harmed in foster care, the child was harmed while actually in the custody of the public agency. The fact that a public agency has failed to protect the child increases the likelihood that these incidents will elevate child welfare onto the governmental agenda. Questions are raised about whether the state agency acted appropriately, whether existing policy is adequate, and how the child welfare system can prevent this from happening again. Not every case of harm to a child who is already known to the child welfare agency constitutes a scandal. These cases become scandals when the actions, or in many cases lack of actions, of the child welfare agency are widely viewed as being at fault in the failure to protect. This second feature of these focusing events, then, is that they come attached to a plausible causal story: The child welfare agency failed to protect the child. Stone (1989)





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points out that for an event to propel an issue onto the policy agenda, it must be attached to a causal story that moves it from the realm of “accident, fate, or nature” to the public realm where it is seen as a problem “amenable to human control” (299). By assigning responsibility for a problem, causal stories “create a burden of reform” (299). This burden of reform may be felt particularly strongly when the causal story assigns responsibility to a public agency. Even if child welfare scandals come with a plausible causal story attached— failure of the child welfare agency—disagreement still arises over where in the causal chain to assign blame: “Any bad situation offers multiple candidates for the role of ‘cause.’ . . . In the word of policy there is always choice about which causal factors in the lineage to address, and different choices locate the responsibility and burden of reform differently” (Stone 1989, 296). In the aftermath of child welfare scandals alternative versions of the causal story place blame differently with different policy implications. In one version the injury or death of the child primarily reflects problems within the child’s family; society might wish that the public agency had been able to intercede successfully, but the real blame lies with the perpetrator of the abuse. In another version the harm to the child reflects the fact that particular child welfare workers failed to perform their job well (or even adequately). In a third version the harm reflects deficiencies within the broader child welfare system—deficiencies that suggest that other children are also at risk. A child welfare scandal may propel the issue of child welfare onto the policy agenda, but the nature of the governmental response to the event will depend on which version of the causal story is accepted as accurate. For example, Butler and Drakeford (2003) look at the relationship between scandal and social welfare policy in the British context and find that policy change in response to scandal is quite rare. They suggest that although “scandal can accelerate a rising policy tide, it cannot, of itself, originate a change in policy direction, or alter the course of a policy which is already well-established” (224). Their explanation for the weak policy effects of scandal is that the effects tend to be accompanied by an official “discourse in which scandals are treated as flaws in an essentially sound system, crises which will pass. . . . Individual wrongdoing and minor policy adjustments attract the attention which might otherwise have been directed towards structural causes and thus minimize the need for extensive social change” (224).8 This explanation suggests that the nature of the causal story that succeeds politically in a scandal’s aftermath will shape the type of governmental response to the crisis. The nature of the causal story in the aftermath of a child welfare focusing event may also shape the policy response through its role in the social construction of target populations (Schneider and Ingram 1993, 1997). Schneider and Ingram (1993) argue that for “dependent groups, such as children . . . officials want to be aligned with their interests; but their lack of political power

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makes it difficult to direct resources toward them. Symbolic policies permit elected leaders to show great concern but relieve them of the need to allocate resources. Policies in this area tend to be left to lower levels of government or to the private sector” (338). This desire to respond to the needs of children but at the same time to avoid spending money on them will shape the policy response to scandal. For example, this dynamic may help explain the attractiveness of privatization as a policy solution for problems in the child welfare system. Privatization of child welfare services offers a clear policy response to perceived problems but at the same time does not necessarily commit the government to expending additional resources. In fact the suggestion is often that privatization can both solve problems and save money. The nature of the causal story in the aftermath of child welfare focusing events suggests another way in which the construction of target populations may shape policymaking in a particular policy area. Schneider and Ingram (1993) highlight the need to pay attention to the way in which target populations are constructed “through public discourse . . . hortatory and symbolic language” because a target population’s construction as positive or negative, weak or strong, will shape the policy agenda and influence policy content (346). The politics of child welfare policy suggests that it is not only the social construction of a particular target population that shapes policy outcomes; the choice of which socially constructed population to target also shapes outcomes. One function of the causal story in the aftermath of a child welfare focusing event may be to shift attention to the child welfare agency as the negatively constructed target of policymaking, away from the positively constructed target of abused children. To the extent that the policy target becomes the child welfare agency, the policy response may focus on reshaping the agency that has failed (through reorganization or privatization, for example) rather than focusing on increasing resources. Replacing a “deserving” policy target with an “undeserving” one changes the politics of the policy process.

Role of the Media Research on the media suggests both that the public’s “causal beliefs are quite sensitive to the way . . . news coverage portrays problems” (Stone 1989, 293) and that media will tend to emphasize particular types of causal stories over others (Iyengar 1991; Bennett 2008). In the realm of child welfare crises this finding suggests that media coverage will more readily reflect the version of the causal story that assigns blame to individuals rather than to structural or systemic causes. Media coverage tends to be episodic rather than thematic, encouraging a focus on individuals in conflict rather than on “the origins of problems and the larger social, economic, or political contexts in which the





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immediate news story has developed” (Bennett 2008, 39; see Iyengar 1991). One consequence of episodic stories is that they encourage a focus on individual responsibility, which discourages a search for general lessons and diffuses pressure for a public solution (Iyengar 1991, 16). Similarly, in their research on the impact of investigative journalism on policymakers, Protess et al. (1991) describe a “logic of particularism” in which reporters pick the “most vivid cases that fit the story line. . . . In the effort to appeal to readers or viewers, cases are emphasized over classes, and the most compelling cases are chosen over undramatic ones” (224–25). One factor, then, that may affect whether a child welfare scandal results in policy change may be the extent to which media portrayals of the story engage an episodic or thematic approach: Is the harm to the child connected to broader issues in the child welfare system, or is the emphasis on particular characteristics of the focusing event? Downs’s (1972) “issue-attention cycle” also suggests a further limitation to the likelihood that a compelling focusing event like the death of a child will result in policy change. He describes a common feature of many policy problems: “Each of these problems suddenly leaps into prominence, remains there for a short time, and then—though still largely unresolved—gradually fades from the center of public attention” (38). Downs argues that this issueattention cycle is particularly likely to apply when (1) “the majority of persons are not suffering from the problem” because then the public is not reminded of the problem by its own suffering; (2) “solving the problem requires sustained attention and effort, plus fundamental changes in social institutions”; and (3) the problem no longer has “intrinsically exciting qualities,” and consequently “the media’s sustained focus on this problem soon bores a majority of the public” (41–42). This cycle suggests that although the story of victimized child, abusive parent, and incompetent caseworker may initially garner attention and calls for government to do something, media attention and public interest may fade before longer-standing issues that pertain to systemic failures can be addressed. However, Nelson (1984) finds that attention to the issue of child abuse does not reflect the issue-attention cycle in quite the way envisioned by Downs. During the period Nelson examines, media coverage of child abuse seemed to increase over time as interest grew in different types of child abuse and as child abuse was aggregated with other kinds of domestic abuse. In addition the media’s use of professional journals for soft news story ideas and the increasing prominence of human interest stories contributed to a prolonged period of issue attention (56–58). In the case of child welfare scandals, however, child abuse itself is only the initial focus of the story; the broader subject is the operation of the child welfare system. Once the coverage moves from a focus on a particular compelling case to a more general discussion about failures in the operation of that system—and arguments over how to

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correct those failings—interest in the issue may more closely reflect Downs’s issue-attention cycle. This also suggests that one factor shaping the nature of the policy response to child welfare scandals will be the extent to which the media covers the scandal’s aftermath. Are there features of the scandal or the political environment that make it more or less likely that the issue will receive coverage beyond the initial burst of interest? This role of the media may be particularly important in the domain of child welfare because, unlike with some other kinds of focusing events, such as natural disasters, the only way most people know about the issue is through media coverage.

Scandals and Policy Change The above discussion suggests that the political and policy impacts of child welfare scandals may depend in part on the causal story that is successfully attached to the focusing event and that in turn may depend in part on the extent and nature of the media coverage of the crisis. In addition other features of the political environment are expected to shape the governmental response to scandal: policy entrepreneurs, the courts and litigation, and intergovernmental systems.

Policy Entrepreneurs Certainly, state and sometimes national coverage of stories about children who have been killed generate large public outcry and focus state actors on the child welfare system. However, the fact that a well-publicized scandal has the potential to shape the state’s policy agenda does not necessarily mean that policy actually does change. In Kingdon’s (2002) terms the well-publicized failure of the child welfare agency to protect a child may open a policy window, but this policy window can close again in the absence of other factors to push policy through the open window. In After Disaster, Birkland (1997) expands on Kingdon’s work on agenda setting to consider the way in which natural disasters like hurricanes and earthquakes work as focusing events. Both kinds of disasters, hurricanes and earthquakes, have agenda-setting potential, but Birkland finds that earthquakes seem to result in more significant policy action than hurricanes. He argues that this is because earthquakes involve a more cohesive and organized scientific community ready to take advantage of an open policy window, whereas hurricanes do not. This finding similarly suggests that state response to child welfare crises will depend in part on whether organized policy entrepreneurs stand ready to push policy through the open window (Schneider and Teske 1995). Without policy entrepreneurs available to take advantage





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of a focusing event, state officials may feel the need to respond, but this response could be largely symbolic or rhetorical (Edelman 1964; Schneider and Ingram 1997, 109, 123–24). Although focusing events always offer an important opportunity for policy entrepreneurs, these events may be particularly important in policy domains where the target of a policy tends to be politically weak. Because they command media and public attention, these events can be a way for generally less powerful groups to be able to seize the political agenda. By allowing the previously politically weak advocates of change to capture public attention, focusing events can lead to the breakdown of a policy monopoly (Birkland 1997, 34; Baumgartner and Jones 1993) and pave the way for policy change. In the case of child welfare policy, focusing events may be less important for shifting power from one advocacy coalition to another and more important for simply providing an opportunity for any advocacy to occur on behalf of a generally politically weak constituency. Discussing the way in which the social construction of target populations shapes policymaking, Schneider and Ingram (1997) argue that those constructed as “dependents”—such as children, who are “usually viewed as loving, sweet, blameless, helpless, and needing the care of others” (108)—“offer few political opportunities and tend to be largely ignored. . . . Many of the problems and issues that dependents need to have addressed will be labeled as outside the purview of government” (129). Child welfare scandals offer policy entrepreneurs an opportunity to overcome these barriers to government action: The state is already involved with the child, so the problem is already inside the purview of government, and its high-profile nature may make it difficult for policymakers to ignore the event. Given the unwillingness to spend money on dependents, focusing events may be particularly useful in this type of policy domain as an opportunity to argue for increased resources, not necessarily to advocate for an entirely different policy solution. However, as discussed earlier, to the extent that the policy focus centers on bureaucratic failure, arguments in favor of additional regulations or even privatization may gain more traction that calls for increased resources.

Courts and Litigation Another factor that may affect the link between scandal and policy is the role of courts. Rather than prompting a direct policy response, scandals can lead to lawsuits and court-ordered change to child welfare systems. Lawsuits have become an increasingly popular strategy for pushing states to reform their child welfare systems. Indeed it makes sense to expect that court rulings against departments of social services will force states to change policy or increase spending to address the court’s concerns. The Urban Institute argues

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that “lawsuits have played an important role in shaping child welfare policy” (Geen and Tumlin 1999, 11). In response to litigation “states have signed settlement agreements or consent decrees that require them to increase child welfare funding for agencies, provide more staff, reduce caseloads, change individual policies or practices, provide additional services, and increase oversight and quality assurance” (Geen and Tumlin 1999, 11). Looking at child welfare litigation in Illinois, Mezey (2000) views media attention to flaws in the child welfare system as an important stimulus to legal action and makes the case that lawsuits do affect policy outcomes. Although not everything agreed to in the legal settlements is achieved, Mezey finds evidence of significant policy change as a result of the litigation. In particular she finds that in the years after legal action, the child welfare services budget in Illinois increased, whereas in previous years the budget was always in trouble (159). One possible effect of litigation, then, may be that the budget for child welfare programs increases even when other areas of the state budget are being cut—the agreements mandate a certain amount of spending to reach specific goals. However, some scholars have argued that courts are generally a poor mechanism for achieving social policy reform and that those interested in social reforms would do better to focus their energy on legislatures (Rosenberg 1991). In response Mezey (2000) argues that critics of the role of courts in achieving social policy change focus only on the Supreme Court and do not consider the way in which legal action is an iterative process: “By encouraging legal advocates and mobilizing public support, institutional reform litigation can ultimately spur policy change” (169). In some instances she finds that even the threat of litigation may be enough to spur changes in the practices of social service agencies (161). Researchers with the Urban Institute have similarly suggested that fear of litigation, along with increasing national publicity for problems in child welfare systems, has states running scared (Geen and Tumlin 1999). Litigation may therefore shape child welfare policy not simply because it involves a court, but because it increases the likelihood that other factors shaping the governmental response to focusing events will be in place: for example, sustained rather than short-lived attention to the issue, pressure to respond substantively rather than symbolically, and mobilized policy advocates.

Intergovernmental System The link between scandal and policy must also be understood in the context of the intergovernmental system in which child welfare policy operates. State child welfare systems are significantly shaped by changes in federal policy. Scandals and crises may temporarily focus public attention on an otherwise





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largely invisible policy area, but federal requirements may be as or more important in terms of producing substantive policy responses from states. As chapter 2 will discuss in greater detail, the federal government has passed a number of important pieces of legislation that provide incentives for states to adopt particular approaches to child protection, foster care, and adoption. The most significant are the 1980 Adoption Assistance and Child Welfare Act (AACWA) and the 1997 Adoption and Safe Families Act (ASFA). AACWA focused on encouraging states to move children more quickly out of foster care, with an emphasis on family reunification as the preferred alternative. Receiving federal funds for child welfare was made contingent on the state’s demonstration that the state agency was making what AACWA called “reasonable efforts” to reunite children in foster care with their biological families (Wilkinson-Hagen 2004, 143). The policy pendulum swung in the other direction with the 1997 passage of ASFA. Although the stated purpose of ASFA was similar, in terms of emphasizing the importance of ending “foster care drift,” the focus was now on finding permanent adoptive homes for foster children rather than on family reunification. The timeline for parents to establish their fitness to have their children returned was shortened, and social service agencies were instructed to engage in concurrent planning— that is, developing plans to prepare such children for adoption while their parents’ attempt at reunification is ongoing. Receipt of federal incentives was now tied to the state’s success at increasing the number of adoptions of foster care children—no additional financial reward was attached to the return of a child to his or her biological family. By requiring states to meet changing federal standards and attaching financial incentives to compliance, these pieces of legislation can be expected to significantly shape state policy. Furthermore, some observers of child welfare policymaking at the federal level suggest that national legislation is also shaped by scandal. In addition to the effect of national policy on state behavior, another dimension to consider in a federal system is the relationship between state action and local government. One of the ways in which child welfare systems differ across states is the degree to which local government, generally at the county level, plays a key role in the administration and funding of programs. Some states are strongly centralized with little role for local government, whereas other states require significant financial contributions from counties or allow significant administrative discretion at the local level. It seems reasonable to expect that policymaking at the state level might differ depending on which kind of system is in effect—perhaps state legislators in states with decentralized systems are less engaged with this policy area than are state legislators in states that have state-administered systems. Consequently, the effects of scandal may vary depending upon whether the state’s child welfare system is administered at the county or state level.

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Plan of the Book In this final section of the chapter I describe the methodologies that the book utilizes to understand the relationship between scandal and child welfare policy making. I also provide a preview of the remaining chapters.

Methodology As the above discussion suggests, well-publicized deaths or injuries to children known to the child welfare system are expected to operate as focusing events, with the potential to place child welfare on the policy agenda. State politicians feel pressure to offer a policy response to perceived state failure to protect children. At the same time, the nature and scope of these responses may be shaped by factors that vary from state to state and crisis to crisis: the role of the media, the presence of policy entrepreneurs, the involvement of the courts, and the administrative structure of the child welfare system. To explore these hypotheses this book employs both quantitative and qualitative analyses of the politics of child welfare, specifically the impact of child welfare scandals. I consider how variation across scandals and across political environments shapes the politics of scandal, while holding constant the policy domain, child welfare.9 For the quantitative analysis I collected data on the U.S. states and used regression analysis to identify the relationship between scandals and policy outcomes (defined initially as enactment of legislation and changes in funding levels), controlling for other factors that might explain the policy outcomes. The quantitative analysis allows me to look for patterns across states. However, it cannot answer a number of important questions about the way in which scandals shape child welfare policy. First, although a scandal may increase the likelihood that the state enacts legislation, the content of this legislation can vary considerably, from bills that fundamentally alter how the system operates to bills that make relatively minor changes. Are there particular characteristics of a scandal that make it more or less likely to spark major, as opposed to minor, reform? Second, although spending and legislation are clearly important policy outcomes, scandals could change the operation of the child welfare system in other important ways not captured by these two variables. Heads of agencies may announce new rules and procedures in response to a scandal—changing the operation of the system without involving the legislature—or else caseworkers, the street-level bureaucrats of the system, may alter the way they work in ways that fundamentally change how the system operates (Lipsky 1983). Even if formal policy does not change in the face of scandal, the implementation of that policy can change in ways that alter the meaning of the policy in practical terms—for example, making





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it more likely that children will be removed from their home after an abuse report and less likely that they will be returned. To explore these possibilities I also use qualitative analysis to examine how scandals affected child welfare policymaking in three states: Florida, Colorado, and New Jersey. These state-specific case studies are based on analysis of media coverage of scandals and their aftermath, analysis of reports compiled by state agencies and watchdog groups, and interviews with politicians, advocates, bureaucrats, and reporters in each state. These states were chosen because each faced a significant child welfare scandal during roughly the same time period (1999–2003). In addition they vary on several key dimensions, allowing me to explore the way in which scandals may operate differently in different institutional and political settings. Florida, in the South, has a professionalized legislature. However, legislators are term-limited, and the session runs only sixty days, although the governor can call the legislature into special session outside the sixty-day limit. The child welfare system is state-administered, but the state has been in the process of privatizing significant components of the system. Colorado is a western state with a hybrid legislature: That is, it has features of both professionalized and citizen legislatures. The child welfare system is state-supervised but county-administered. New Jersey, on the East Coast, has the most professionalized legislature of the three states, with sessions of unlimited length and legislators who are not term-limited. At the same time, it also has one of the institutionally strongest governorships in the country. The child welfare system is state-administered. Analysis of three states alone does not permit definitive conclusions about the impact of scandal, but the combination of quantitative and qualitative analysis broadens and deepens the conclusions that could be drawn from each approach on its own. In addition, with the case studies, I also consider the way in which responses to current scandals are shaped by the legacy of previous reforms. Scandals are a frequent feature of the child welfare policy landscape. Although the case studies use a specific scandal in each state as their starting point, the analysis moves forward and backward in time to demonstrate the way in which the response to the specific scandal was shaped by previous scandals and reform efforts. This approach generates some withinstate variation in response to scandals that complements the between-state analysis.

Structure Although much of the book is focused on state-level politics, I begin in chapter 2 with a discussion of federal child welfare policy. This is important for two reasons. First, federal incentives and requirements shape state policy behavior in important ways. As chapter 2 demonstrates, the federal role

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in child welfare policy has expanded over time. Second, critics of the politics surrounding child welfare have suggested that federal policymaking is also highly responsive to high-profile child deaths and injuries. Exploring child welfare policymaking at the national level provides another venue for teasing out the effects of scandal and examining how the effects vary across institutional and political settings. Chapters 3 through 6 focus on state-level politics. Chapter 3 explores the link between child welfare scandals, passage of legislation, and public spending across the U.S. states. Subsequent chapters explore in greater detail the politics of scandal in each of the three case study states. Chapter 4 focuses on Florida and the aftermath of the 2002 Rilya Wilson scandal. This scandal made national news when it was reported that five-year-old Rilya Wilson had been missing from her foster home for at least fifteen months without attracting the notice of anyone associated with Florida’s Department of Children and Families. Chapter 5 focuses on Colorado and the aftermath of a week in 1999 when four unrelated children died after contact with the child welfare system. Two babies, a three-month-old and a three-week-old, died while in the care of their mothers; a fourteen-month-old girl was killed by her mother’s boyfriend; and a two-and-a-half-year-old foster child was killed by his foster father. Chapter 6 focuses on New Jersey and the aftermath of two high-profile cases in 2003. The year began with the discovery of two severely abused boys locked in a basement with the decomposing body of their brother. The mother of the boys had been in many previous contacts with the child welfare system. Later in the year the New Jersey Division of Youth and Family Services came under renewed scrutiny when a couple was arrested for starving four of their adopted children, even while the agency had placed another foster child with the family and was moving forward with adoption plans. Finally, chapter 7 draws conclusions from the state comparisons and discusses the implications of the findings: both for the politics of child welfare policymaking and for theories of agenda setting more broadly.

Notes 1. Rosenson (2005) does explicitly consider the role of scandal in shaping policy outcomes. She finds that ethics scandals are a frequent precursor to state ethics reform. 2. See Nelson (1984) for a detailed discussion of how child abuse emerged during the 1960s as a problem requiring governmental response. She traces the evolution in the way the issue was understood, beginning with the early history of the Children’s Bureau, and links this to the adoption of legislation at the state and national level that governs child abuse: mandatory reporting laws at the state level, and the Child Abuse Prevention and Treatment Act at the national level. 3. The rate at which child abuse referrals are substantiated varies considerably from state to state. For example, Alaska, which has the highest substantiated abuse rate of any state (82.6





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per 1,000 children), substantiates almost 87 percent of reports. In contrast, Missouri, with a much lower substantiated abuse rate (6.5 per 1,000 children), only substantiates 12 percent of reports (U.S. Congress, House, Committee on Ways and Means 2004, 75–76). The high level of variation raises questions about the extent to which these numbers reflect real differences in rates of abuse versus differences in the way states investigate and treat abuse reports (Lindsey 2004, 146–47). 4. These statistics are based on the most recent analysis of the National Child Abuse and Neglect Data System (NCANDS), which collects data from all states on a voluntary basis. Since 1996 some data items have been required as a condition of receiving federal grants under the Child Abuse Prevention and Treatment Act. 5. For a more detailed account of each part of the child welfare system, see the Pew Commission on Children in Foster Care’s (2003) report “A Child’s Journey through the Child Welfare System.” For a fascinating and in-depth account of the inner workings of the child welfare system in a northern California county, see Jennifer A. Reich’s (2005) Fixing Families: Parents, Power, and the Child Welfare System. 6. Lindsey (2004) argues that “child welfare workers can only use the intervention services available to them. Increasingly, they are limited to foster care as the only available method of intervention. If social workers could provide preventive or income support services to families, the number of children placed in foster care would likely decline” (169). 7. Subsequent research by the Urban Institute (for example, Geen et al. 2001) has not found any evidence that passage of the Personal Responsibility and Work Opportunity Reconciliation Act resulted in increased numbers of children entering the child welfare system. 8. This finding is interestingly at odds with some anecdotal reports of the link between child welfare scandals and more significant policy shifts in the United States. However, while disagreeing about whether a link exists, both Butler and Drakeford (2003) and the observers of child welfare policy in the United States are dissatisfied with the results of scandal. Butler and Drakeford are concerned that by focusing on individual acts of wrongdoing in the aftermath of scandal, the larger institutional failures that contribute to the problem are ignored. In contrast critics of the process in the United States complain of too much willingness on the part of national and state policymakers to introduce sweeping institutional reforms on the basis of one compelling, but not necessarily representative, story. 9. This approach contrasts with, for example, Birkland’s (1997) analysis of policymaking in the aftermath of disaster, in which he explores how differences between policy domains (earthquakes versus hurricanes) explain differences in response to natural disasters.

Chapter Two

The Swinging Pendulum: Child Welfare Policy at the National Level

Discussions of child welfare policy often invoke the metaphor of a pendulum, arguing that child welfare policy swings back and forth from an emphasis on family preservation and reunification to an emphasis on child removal and termination of parental rights. According to this view, the scandal-driven nature of child welfare policy means that when a scandal in which children are harmed by their parents captures headlines, policymakers push for legislation that promotes faster removal of children. Alternatively, when headlines focus on children who are languishing in foster care or children who have been harmed by a foster parent, policymakers push for greater efforts to keep families together. Subsequent chapters will focus on the link between scandal and child welfare policy at the state level, but this chapter focuses on national policy. Analysis of the national politics around child welfare provides additional insight into the connections between scandal and policymaking. In addition child welfare policy at the state level is powerfully shaped by federal rules attached to receipt of child welfare funds. For these reasons understanding state child welfare policy requires also understanding federal child welfare policy. Over time the role of the federal government has expanded in the area of child welfare. Consequently, policy debates at the national level have reflected not only debates about the importance of family preservation versus child removal but also debates about the appropriate role of the federal government in shaping state policy choices. In addition policy debates at the national level reflect changing views about families and about the appropriate extent of government intervention in family life. To illustrate these shifts over time this chapter traces the history of national child welfare policymaking, focusing in particular on two key pieces of federal legislation: the 1980 Adoption Assistance and Child Welfare Act (AACWA) and the 1997 Adoption and Safe Families Act (ASFA).1 AACWA focused on encouraging states to move children more quickly out of foster care, with an emphasis on family reunification as the preferred alternative (Wilkinson-Hagen 2004, 143). The policy 24



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pendulum then swung in the other direction with the passage of ASFA, which amended the AACWA. Although the stated purpose of ASFA was similar to that of AACWA in terms of emphasizing the importance of ending “foster care drift,” ASFA focused on finding permanent adoptive homes for foster children rather than reunifying families. This chapter explores the way in which highprofile child welfare scandals and changing views about government’s obligation to assist troubled families have shaped these policy shifts over time.

Child Welfare as National Policy Before the federal government’s enactment of AACWA in 1980, child abuse itself had to first be recognized as a public problem appropriately addressed by government. Then, once child abuse was established as an issue on the public agenda, the federal government turned its attention to what happens to abused children once they enter state child welfare systems.

Child Abuse as a Policy Issue The initial recognition of child abuse as a public problem is usually traced to the 1874 New York case of Mary Ellen Wilson. Mary Ellen lived with her stepmother, who was ultimately imprisoned for mistreating her through both neglect (“ill-clothed in bad weather”) and abuse (“chained to her bed and whipped daily with a rawhide cord”) (Nelson 1984, 7–8, 54). The Mary Ellen case received extensive media coverage and resulted in the formation of the first Society for the Prevention of Cruelty to Children, modeled after the American Society for the Prevention of Cruelty to Animals (Nelson 1984). However, after the 1870s the issue of child abuse largely fell from public view. In the modern era child abuse only reemerged to be seen as a problem requiring a governmental response in the 1960s after publication of an influential article in the American Medical Association Journal that described “Battered-Child Syndrome” (Kempe et al. 1962).2 In a five-year period after publication of the article (from 1963 to 1967) every state passed a child abuse reporting law (Nelson 1984). Nelson (1984) explains the rapid diffusion of these laws as resulting from “the symbolic and valence qualities of the issue, and the absence of monetary or political costs” (80). Requiring certain individuals to report suspected child abuse received widespread acceptance in state governments in part because of the universal condemnation of child abuse and in part because it does not, at least initially, involve state spending. However, these reporting laws, once in place, created significant pressure on policymakers to supply resources and services for child welfare. This trend was strengthened by the federal government’s enactment of the Child Abuse

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Prevention and Treatment Act in 1974, which made federal funds available for state child abuse prevention programs but required that states adopt specific child abuse reporting and investigation procedures, including the creation of a central state registry to keep track of cases (Dorne 2002, 113–15; Nelson 1984; Murray and Gesiriech 2008). Passage of the Child Abuse Prevention and Treatment Act was relatively noncontroversial, although the Nixon administration did initially oppose it because of its general resistance to singleissue social legislation (Nelson 1984).3 With the increased child abuse reporting requirements in states, state child welfare systems were transformed into child protective systems, with a significant proportion of child welfare funds being directed toward investigation of abuse reports (Kamerman and Kahn 1990; Lindsey 2004). More and more children began to be removed from their homes and placed in foster care (see figure 2.1) (Murray and Gesiriech 2008). Concerns about the rapid expansion of foster care populations and about the length of time some children were spending in foster care began to dominate discussion of child welfare policy in the 1970s (Shotton 1989–90, 224). In hearings before Congress witnesses testified about large numbers of children who spent most of their childhoods lost in the foster care system (Shotton 1989–90, 224). The National Study of Social Services to Children and their Families, conducted in 1977 for the Department of Health, Education, and Welfare (HEW), provided data on the numbers of children entering the foster care system and their average lengths of stay (U.S. Congress, Senate 1980). Reports by the National Commission on Children in Need of Parents (Persico 1979) and the Children’s Defense Fund (Allen 1978) described inadequate state monitoring of children once they entered the child welfare system. The concern about the length of time many children were spending in supposedly temporary foster care was buttressed by the popularizing of the “psychological parent” theory, which argues that children are emotionally damaged by disruption of their relationship with a biological parent and then are damaged further by disruption of their relationship with successive foster parents (Guggenheim 1995; Herring 1992). At the same time, child welfare professionals were developing the concept of permanency planning as a way to reduce the length of time that children spend in foster care. Several federally funded demonstration programs were able to reduce the number of children entering foster care, shorten the length of time children spent in foster care, and increase the number of adoptions from foster care through changes in case management practice. In some instances these measures meant appropriately identifying cases in which out-of-home placement could be avoided. In cases where children were appropriately placed in foster care these measures meant that, rather than allowing placement in foster care to continue indefinitely, “case workers trained in systematic case management procedures had to take decisive action either



The Swinging Pendulum: Child Welfare Policy at the National Level

Title: Figure 2.1 Foster Care and IV-E Foster Care Populations 1962-2001

27

Source: U.S. House 600,000
of Representatives. 2004. Committee on Ways and Means. “Background Material and Data on Programs within the Jurisdiction of th

500,000


Number
of
Children


400,000


300,000


Total Foster Care Population

200,000


100,000


0


Figure 2.1

Total Foster Care Population IV-E Foster Care Population Figure
2.1.
Foster
care
and
Title
IV‐E
foster
care
populations
1962–2001.
 (Data
from
U.S.
House,
Committee
on
Ways
and
Means
2004,
11–86
and
11–87.)


Foster care and Title IV-E foster care populations 1962–2001. (Data from U.S. House, Committee on Ways and Means 2004, 11–86 and 11–87.) to restore the children to their biological family or to find an appropriate permanent alternative” (Lindsey 2004, 81). This concern with the problem of foster care drift, along with the sense that permanency planning was a viable policy solution, then helped fuel the call for an expanded federal role in child welfare, which culminated in the 1980 passage of AACWA. “As a movement, permanency planning . . . served as a philosophy and goal around which child advocates coalesced . . . and provided a positive force for political activism and legislative action” (Pine 1986, 343–44).

The 1980 Adoption Assistance and Child Welfare Act (AACWA) Prior to passage of AACWA, federal funds for child welfare were primarily available through Title IV-B of the Social Security Act and through the AFDC–Foster Care Program (AFDC-FC). Title IV-B provided a small amount of federal money for states to spend on child welfare services on the basis

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of annual appropriations. AFDC-FC—which was authorized by 1961 amendments to the Social Security Act and later became a required component of state AFDC programs—made matching federal funds available on an entitlement basis for foster care maintenance for children who would have been eligible for AFDC if they had remained at home (U.S. Congress, House, Committee on Ways and Means 1987). Some additional federal money could also be spent on child welfare, at state discretion, from the 1974 Title XX funds for social services (U.S. Congress, House, Committee on Ways and Means 1987). As Congress began to consider child welfare legislation in the late 1970s, proponents of reform argued that the current nature of federal funding—that is, unlimited entitlement spending for foster care but limited appropriations for prevention and reunification services—exacerbated the problem of foster care drift. For example, Senator Alan Cranston (D-CA), a key proponent of child welfare legislation in the Senate, described “Federal fiscal incentives that have helped condemn multitudes, literally multitudes of helpless children, throughout this country to the uncertainties and the traumas of indefinite long-term foster care placement” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 55). He faulted the federal government: first, for “not clearly articulating in federal statutes . . . the intention that foster care be a ‘temporary’ placement for a child”; and second, for “perpetuating a federal financial assistance program that provides fiscal incentives to keep children in long-term foster care placements without any corresponding fiscal commitment to providing the kinds of services and support necessary to free children from the foster-care limbo—either by returning them to their original homes or freeing them for adoption” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 56). AACWA ultimately passed with broad bipartisan support, but the debate that preceded passage was not without controversy. For the most part concerns did not center on the legislative focus on prevention and reunification; rather the arguments focused on how best to structure federal spending to encourage desired change in state-run child welfare programs. In most instances those who objected to the legislation because of funding mechanisms were at the same time careful to state their support of the larger intent of the legislation: to reduce the amount of time children spend in foster care. In particular the idea of adoption subsidies for families adopting children with special needs received widespread support. In the House the key issue was whether the Title IV-B funds that were created to fund prevention and reunification services in the states should be an entitlement program (like the Title IV-E funds for foster care maintenance) or be subject to the annual appropriations process. The version of the bill reported out of the House Ways and Means Committee changed Title IV-B into



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an entitlement, and proponents argued that this was necessary so that states could “be as confident of receiving Federal financial support for the services they provide aimed at preventing or eliminating the need for foster care as they are of receiving Federal matching funds for foster care maintenance payments” (U.S. Congress 1979, H 22109). Under existing law, argued its critics, states had a financial incentive to keep children in foster care, where they were eligible for unlimited federal support, rather than to utilize limited federal dollars for programs designed to keep (or reunify) children with their families. House opponents of the entitlement proposal expressed support for the view of Representative Robert H. Michel (R-IL), the minority whip, who suggested that “the real reason the Ways and Means Committee is turning this into an entitlement program is apparently a dissatisfaction with the funding levels provided through the appropriations process. . . . Instead, we are going to have a higher level of funding imposed upon us through the back door” (U.S. Congress 1979, H 22107). The level of funding received through the appropriations process was clearly an issue: Speaker after speaker in congressional hearings noted that, despite an authorization level of $266 million, Title IV-B had never been appropriated more than $56.5 million (U.S. Congress, House, Committee on Ways and Means, Subcommittee on Public Assistance 1979). The final version of the House bill, which passed by a vote of 401-2, removed the entitlement provision but provided for additional Title IV-B funds, if appropriated, on the condition that states meet new procedural requirements for children in the child welfare system (U.S. Congress, House 1980, 1576). These new procedural requirements included the provision of pre-placement preventive services as well as services to help reunify families; placements in the least restrictive setting and within reasonable distance of the home; a case plan for each child in foster care, with a review every six months and an eighteen-month dispositional hearing; an inventory and report for HEW on all children who have been in care for more than six months; and a process for providing HEW with an annual report on children in foster care (U.S. Congress, House 1980, 1576). The Senate began its consideration of the child welfare bill shortly after passage in the House. In hearings before the Finance Committee’s Subcommittee on Public Assistance, almost every organization that testified urged the Senate to reinstate the provision making Title IV-B an entitlement program. For example, the National Council of State Public Welfare Administrators testified that IV-B funds needed to be “an entitlement program whose funding level could be planned for and relied upon by the states” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 111). Similarly, the Child Welfare League of America (CWLA) testified that,

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although the legislation included procedural changes in child welfare practice long advocated by CWLA, “we cannot advocate for Federally mandated reforms of the child welfare system, which are not accompanied by Federally guaranteed funds to implement the reforms” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 153). In the view of CWLA, “Child welfare services, financed by the Federal government on a shared basis with the States, should be a program which is considered a legal entitlement. Children cannot compete with the numerous special interests for the limited piece of the Appropriations pie” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 152). Similarly, the Children’s Defense Fund (CDF) pointed to the findings in its recent report titled “Children without Homes” to argue that “children are unnecessarily removed from their families because there are not alternative services . . . to reduce stress on families and prevent the need for placement” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 181). Consequently, to achieve the aims of reform—namely, reduction in the number of children adrift in the foster care system—CDF argued that Title IV-B must be converted to a capped entitlement so “that Congress will provide a specified level of targeted funding for alternatives to out-of-home care, just as it ensures funding for the maintenance of children in out-of-home care through the AFDC-FC Program” (190). In addition to urging reinstatement of the capped entitlement for Title IV-B funds, those testifying before the Senate subcommittee also urged the Senate to continue to fund AFDC-FC (slated to become part of the new Title IV-E) as an uncapped entitlement. In contrast to the House version, the Senate version of the bill capped the AFDC-FC entitlement funds. The proponents of the cap in the Senate argued that the cap was a loose one and that it was a necessary component of the new incentive structure that they sought to create for states: more funds for foster care alternatives like prevention, reunification, and adoption; and no longer unlimited funds for foster care. The cap was supported by the Carter administration’s Department of Health, Education, and Welfare for this reason: “Federal funds for AFDC-foster care are currently open ended. We believe that continuation of the present system of financing would exacerbate perverse incentives and continue inappropriate foster care placements rather than creating a program for working with children in their own home environments” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 10). In contrast Senate opponents of the cap argued that however much states focus on prevention, reunification, and adoption, significant foster care spending would still be necessary, and the “‘cap’ would signify nothing more than the abandonment of millions of homeless children and loving foster parents” (U.S. Congress 1979, S 29523). With the exception of HEW, those



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31

testifying during the Senate’s subcommittee hearings were uniformly against the cap on foster care funds (U.S. Congress, Senate 1980, 1561). For example, the National Council of State Public Welfare Administrators suggested that a cap would be “precipitous and unsound” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 112). CDF noted that the cap would be put in place before ensuring that states had made progress on implementing alternatives to foster care and before states had benefitted from federal adoption subsidies intended to encourage movement of children out of foster care and into permanent adoptive homes. CDF testified, “To place an arbitrary limit on the number of these children who can be served in foster care would mean subjecting the left-over children to serious risk that violates the most fundamental principles of public responsibility for children” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 193–94). In a written statement to the subcommittee the National Governor’s Association argued that a cap on AFDC-FC would be “tragically detrimental to the best interests of the children who are deprived of the kind of human treatment or of any kind of family which most of us take for granted” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 304). Linking the two main issues of contention, the association concluded that “while either not transforming IV-B to an entitlement or placing a cap on IV-A foster care expenditures would be substantially damaging, both would be devastating to state governments and to the children and families they seek to serve. A bill of this nature is unacceptable to state governments” (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 305). Despite these concerns the version of the bill that was reported out of the subcommittee, and ultimately was passed by the Senate, did not convert Title IV-B to an entitlement program and did place a cap on AFDC-FC (now part of Title IV-E) (U.S. Congress, Senate 1980). As in committee, debate on the Senate floor largely focused on these same two issues: whether to convert Title IV-B to an entitlement and whether to cap Title IV-E. An additional funding argument in the Senate focused on the idea that the federal government needed to move away from creating more categorical spending problems and instead create broad block grant programs for the states. Given the desire of the supporters of the legislation to steer states away from their focus on foster care maintenance toward a focus on prevention, reunification, and adoption, the arguments in favor of block grants (which necessarily limit the ability of the federal government to steer) gained little support (U.S. Congress 1979, S 29533).4 Ultimately, the bill passed the Senate by voice vote. A key difference between the House and Senate versions of the bill was the cap on AFDC-FC funds. In conference committee the House agreed to the Senate’s ceiling on foster care matching funds. However, the cap was only

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approved for four years and was tied to appropriation levels of Title IV-B funds. If Title IV-B appropriations fell below a specified level in each of those four years—a level well above current appropriations at the time—then the ceiling would not be effective (U.S. Congress, House 1980, 1567–68).5 States, however, were also authorized to cap their Title IV-E (previously AFDC-FC) spending and to transfer any unused federal IV-E funds to Title IV-B programs. In contrast Title IV-B funds over the existing annual appropriation of $56.5 million could not be spent on foster care but had to be used for prevention and reunification services (Mezey 1996, 103).6 The final version of the bill also tied receipt of additional Title IV-B funds to implementation of reasonable efforts around prevention and reunification and to the eighteenmonth dispositional hearing. The House and Senate agreed to the conference report on June 13, 1980, and the Adoption Assistance and Child Welfare Act was signed into law by President Carter on June 17. AACWA set in place “the first federal procedural rules governing child welfare case management,” detailing for the states the types of planning in which they needed to engage for each foster child and requiring judicial reviews of each case every six months and a dispositional hearing after eighteen months in care (Murray and Gesiriech 2008, 3). In addition AACWA required states to develop and submit plans “detailing how child welfare services will be delivered” (Murray and Gesiriech 2008, 3). Increased funds (Title IV-B) were made available to states to assist with prevention services (to keep families together) and reunification services (to facilitate the return of foster children to their biological families). These services were part of the reasonable efforts that AACWA required states to make to keep families together. Receipt of these additional funds was also tied to states’ implementation of the case management practices outlined above. Under the legislation AFDC-FC became part of the newly created Title IV-E of the Social Security Act. Finally, the legislation also created an adoption assistance program to fund incentive payments for parents who were willing to adopt hard-to-place children from the foster system (Murray and Gesiriech 2008; see also Stein 2006).

Family Preservation as National Policy Enacted at the end of the Carter administration, AACWA faced opposition almost immediately from the incoming Reagan administration, which proposed folding all child welfare programs into the Social Services Block Grant, effectively dismantling AACWA only a year after its passage (Mezey 1996, 104; Kamerman and Kahn 1990, 17). These proposals, coupled with the Department of Health and Human Services’ slowness in issuing regulations to implement sections of the law, generated uncertainty about AACWA’s future during the first few years after enactment (Kamerman and Kahn 1990;



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33

English 1983, 613; Cole 1982, 33). Although child welfare programs were not in the end block-granted, funding levels did not match the levels anticipated in the legislation (Kamerman and Kahn 1990). The 1981 appropriation for Title IV-B increased funding significantly from $56.5 million to $163.5 million, but funding levels dropped slightly in the following two years and did not begin to rise again until the mid-1980s (see table 2.1). In addition Title XX funding was cut significantly during the early 1980s, which also affected child welfare programs because approximately 20 percent of the funds were used by states for child welfare services (U.S. Congress, House, Committee on Ways and Means 1987). Table 2.1 Federal funding for child welfare services and foster care under Title IV-B and IV-E of the Social Security Act, 1981–2002 Title IV-B Child Fiscal Year Welfare Services

1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002

163 156 156 165 200 198 222 239 247 253 274 274 295 295 292 277 292 291 292 292 292 292

Title IV-B Family Preservation and Supporta

Title IV-E Foster Careb

N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A 60 150 225 240 255 275 295 305 375

309 374 391 450 546 605 793 891 1,153 1,473 1,819 2,233 2,547 2,606 3,066 3,098 3,692 3,704 4,012 4,256 4,382 4,519

Name changed to “Promoting Safe and Stable Families” in 1997. Formerly AFDC–FC. Not included are Title IV-E funds that cover independent living programs and adoption assistance. Sources: U.S. House, Committee on Ways and Means 2004, 11-5; U.S. House, Committee on Ways and Means 1996, 695; U.S. House, Committee on Ways and Means 1987, 559. a

b

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Although initially the numbers of children in state foster care systems did decline after passage of AACWA, foster care caseloads began to increase sharply again beginning in the mid-1980s (see figure 2.1). “For example, between 1986 and 1995, the number of children in foster care increased from 280,000 to nearly 500,000, a 76 percent increase” (Murray and Gesiriech 2008, 4). As happened at the end of the 1970s, concern again grew that too many children were spending too long in foster care. In addition concerns about the impact of AIDS and crack cocaine use also fueled the view that the child welfare system was facing unprecedented challenges (Reich 2005, 43–47; Rovner 1991). During hearings in 1991, Wade F. Horn, the commissioner of the Department of Health and Human Services Administration for Children, Youth, and Families, declared that “the child welfare system is in crisis,” and CWLA charged that the current child welfare system was “serving 1990s children in an 1860s model” (Rovner 1991, 795; U.S. Congress, House, Committee on Ways and Means, Subcommittee on Human Resources 1991b; Mezey 1996). Criticism of the child welfare system again focused on the idea that federal funding created perverse incentives because funds to support children in foster care were an unlimited entitlement, whereas funds to support family preservation or reunification were dependent on the annual appropriations process (Rovner 1991; Katz 1993, 1029). In the face of these concerns Congress once again turned to the idea that Title IV-B funds should be a capped entitlement. This time, hearings on the need to expand and guarantee Title IV-B funds focused on the success of family preservation programs that aimed to divert children from the foster care system through the provision of intensive services to families in crisis. For example, Homebuilders, one of the best-known family preservation programs, had “developed an approach that allowed for intensive case management services provided by a professional caseworker with a limited case load—usually no more than five active cases at a time. In addition services were provided within 24 hours and at the convenience of the family being served. Services were viewed as crisis intervention and were concentrated within a time frame of four to six weeks” (Lindsey 2004, 54). David Haapala, the co-founder of Homebuilders, which had started in the state of Washington, testified before congressional committees about the program, as did representatives of other states that had adopted similar family preservation programs (U.S. Congress, House, Committee on Ways and Means, Subcommittee on Human Resources 1991a; see appendix 1). In the same way that AACWA was shaped by the ascendency of the permanency planning movement, legislative efforts in the early 1990s were shaped by enthusiasm for family preservation, which “was at the apex of its popularity” (Lindsey 2004, 83). Part of the popularity of family preservation has been attributed to the fact that the theory behind it—that intensive services provided



The Swinging Pendulum: Child Welfare Policy at the National Level

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to a family in crisis could prevent child removal—had appeal for both liberals and conservatives. For liberals the approach signaled a belief that with the appropriate resources abusive parents could be rehabilitated; it also generated an argument for additional federal spending on social programs (Dorne 2002; Costin, Karger, and Stoesz 1996; Gelles 1996). For conservatives the approach fit with a pro-family ideology that distrusted the power of the state to take children from their parents and also promised an ultimate reduction in government spending on social programs as more children were diverted from costly foster care (Dorne 2002; Costin, Karger, and Stoesz 1996). Although several bills were introduced in the House and Senate in the early 1990s to turn Title IV-B into an entitlement program and fund additional family preservation services, the bills failed to win approval in the face of spending concerns (Mezey 1996, 105–6). The George H. W. Bush administration was particularly opposed to turning Title IV-B into an entitlement program (Rovner 1991). In 1992 a version of the plans that had been under consideration in the House and Senate was included in the urban aid bill that was passed in the aftermath of the 1992 Los Angeles riots but was ultimately vetoed by President Bush (Mezey 1996, 106). With the 1993 arrival of the Democratic Clinton administration and First Lady Hillary Clinton’s strong interest in children’s issues and close ties to the Children’s Defense Fund, supporters of increased funding for family preservation and reunification services were finally able to secure additional Title IV-B funds (Lindsey 2004, 83). Enacted in 1993, the Family Preservation and Support Act added a new subpart to Title IV-B: a capped entitlement totaling $930 million over five years (Mezey 1996, 106). The funds available in this new subpart were to be spent on “family preservation services and community-based family support services” (U.S. Congress, House, Committee on Ways and Means 2004, 11-12).

Scandal and the Turn against Family Preservation Shortly after passage of the 1993 Family Preservation and Support Act, public criticism of the family preservation concept began to increase. This criticism was in part fueled by researchers who argued that the data did not support the claims of family preservation advocates (Lindsey 2004). Richard Gelles, then director of the University of Rhode Island’s Family Violence Research Program, was a particularly prominent critic. His book The Book of David: How Preserving Families Can Cost Children’s Lives (1996) used the troubling details of a particular case to argue that family preservation had been oversold, that some families could not and should not be preserved, and that the child welfare system needed to be reinvented “so that it places children first” (143). Gelles and The Book of David were widely cited in discussions of

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child welfare policy in the mainstream media, and Gelles testified at several congressional hearings between 1994 and the passage of child welfare reform in 1997. In April 1994 Newsweek published an article titled “Why Leave Children with Bad Parents?”, which examined the concept of family preservation in the context of several high-profile cases of abuse and neglect in Illinois (Ingrassia and McCormick 1994). In February of that year, Chicago police officers who were investigating drug selling had found nineteen children living together in a house filled with roaches and rat droppings and bereft of food or a functioning stove. Although the children were removed to foster homes, the Illinois Department of Children and Family Services was, according to the article, pursuing reunification with the six mothers involved. The Newsweek article detailed other recent cases: One year earlier, three-year-old Joseph Wallace was hung by his mentally ill mother, from whose care he had been previously removed three times; two years earlier, two-and-a-half-yearold Saonnia Bolden was beaten and scalded to death shortly after her family had received intensive family preservation services over a hundred-day period and just as her case was recommended for closure. In explaining why child welfare agencies reunified children with abusive parents, the Newsweek article pointed to the 1980 Adoption Assistance and Child Welfare Act: “It’s not simply social custom that keeps families together, it’s the law” (Ingrassia and McCormick 1994). Several high-profile cases in New York also helped fuel further criticism of family preservation. In May 1995 five-year-old Marisol was discovered by a New York City housing inspector: locked, naked and starving, inside a closet in her mother’s house. She had been removed from her mother at birth and then was returned to her fifteen months before she was found, after spending three and one-half years with the same foster mother. This case was the basis for a 1996 lawsuit against the New York City child welfare system, Marisol A. v. Giuliani, that highlighted additional failures of the child welfare agency to prevent severe abuse: “Children were returned to abusive parents, were not provided medically appropriate care or needed services while in foster care, were born to known abusers who were not investigated, were placed in inadequate foster homes where they were abused or neglected, or were wanted by a biological parent who was not given appropriate training on caring for them” (Reich 2005, 48). A few months later, in December 1995, Time magazine ran a cover story detailing the tragic history of six-year-old Elisa Izquierdo, who died after her mother smashed her against a concrete wall (Van Biema and Epperson 1995). Elisa had clearly been severely abused on an ongoing basis throughout many years of contact with the child welfare agency, and at least five reports of suspected abuse had been made during the final months of her life. As negative publicity surrounding the concept of family preservation increased, the national political environment also began to change. Much has



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37

been written about the way in which the Republican takeover of Congress in 1994 shaped welfare reform, but the switch in party control also changed the prospects for child welfare policy (Stein 2003). The overhaul of welfare proposed in the Republican Contract with America included provisions to repeal both the 1980 AACWA and the family preservation law and turn them into block grants, resurrecting a proposal from the Reagan administration. Although this part of welfare reform was not enacted, rhetoric in discussions about welfare reform increasingly linked welfare programs for low-income families with child welfare policy. Critics of the concept of limiting poor women’s eligibility for welfare predicted that the policy would cause more children to enter foster care as their families were denied the necessary financial support to look after them. In fact welfare reform legislation that was debated in Congress included provisions allowing states to use federal funds for orphanages in place of support to young single mothers (DeParle 1994). Republican Speaker of the House Newt Gingrich (R-GA) made high-profile and controversial arguments in favor of orphanages, invoking the movie Boys Town about a Nebraska orphanage and asserting that “in a city like Washington, where babies are abandoned in dumpsters,” orphanages might be a preferred alternative to family preservation or foster care (quoted in Wines 1994, 7). Echoing language from the debate over welfare, individuals testifying at 1995 hearings on adoption pointed out the high rates of single parents among those involved with the child welfare system. For example, Carol Statuto Bevan, the vice president of the National Council on Adoption, testified that “the ideology that keeps children in foster care for years while exhaustive efforts are made to ‘fix’ the family is consistent with the belief that all family forms are equally effective in nurturing and raising healthy, productive children. . . . It has been suggested that an important ideological effect of family preservation is to legitimate illegitimacy” (quoted in Stein 2003, 671).

When Is Reasonable Unreasonable? The 1997 Adoption and Safe Families Act (ASFA) In 1997, the year after the passage of welfare reform (the Personal Responsibility and Work Opportunity Reconciliation Act), Congress enacted ASFA to address concerns about the number of children in foster care, the focus on family preservation, and the need to increase adoptions. The 1980 AACWA had similarly focused on the need to reduce the number of children in foster care and the amount of time they spent there; however, the proponents of ASFA made a clear distinction between their approach to ending foster care drift and the AACWA approach. In their view AACWA had focused states too much on efforts to reunify families. Instead ASFA was designed to speed up the process of terminating parental rights by placing time limits on the efforts to reunify families, by delineating instances in which states need not make

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reasonable efforts to reunify families, and by allowing states to make concurrent plans for termination of parental rights while efforts to reunify the family were in progress. In addition the legislation created financial incentives for states to increase the number of adoptions and established “a state accountability system, whereby states face financial penalties for failure to demonstrate improvements in child outcomes” (Murray and Gesiriech 2008, 5; see also Stein 2006). The legislation passed easily through the House and Senate with almost no opposition (Carney 1997, 1024). As the congressional debate illustrated, a clear and widely accepted narrative had developed around explaining the flaws of AACWA. A key issue in the ASFA discussion was the concept of “reasonable efforts” to keep families together that had been a requirement under AACWA. Sponsors and supporters of the new legislation argued that what constituted reasonable efforts was not clearly defined in the 1980 law and that, as a consequence, states and child welfare workers were making what actually amounted to unreasonable efforts to reunify families and thereby were endangering children. This assessment was largely backed up by anecdote rather than hard data, but it went relatively unchallenged. In the debate on the House floor supporters of ASFA were unanimous in their assessment that the 1980 AACWA was responsible for the fact that too many children were languishing in foster care for years at a time. In his introductory remarks Representative E. Clay Shaw Jr. (R-FL), who was chairman of the Committee on Ways and Means Subcommittee on Human Resources, which had reported the bill out, explained that “Federal statutes now put too much emphasis on providing all kinds of services to rehabilitate troubled families. . . . If families will not or cannot change within a reasonable period of time, we must, in the interest of the children, be willing to terminate parental rights and move expeditiously toward adoption. So the big thing this bill does is to push the pendulum of government concern back in the direction of the children” (U.S. Congress 1997, H 2015–16). Similarly, Representative Earl Pomeroy (D-ND) argued that “the 1980 Child Welfare Act clearly made the priority reunification of families. . . . I think that the overriding priority has to be the best interest of the child . . . and I think sometimes under the 1980 legislation that has been relegated to a secondary status” (U.S. Congress 1997, H 2020). Speaking in support of the bill, Representative Ron Packard (RCA) stated that “our children in foster care are being reunited with abusive families. Our current broken system places more importance on returning children to the natural parents, despite circumstances such as abandonment and chronic physical or sexual abuse, over placing these children in strong, loving families. This is not right” (U.S. Congress 1997, H 2023). Representative Tim Roemer (D-IN) seemed to go even further in his assessment of the effects of current federal law: “Because of the 1980 law, oftentimes, and



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this has been documented over and over and over and over in a compelling series by the Chicago Tribune on children, . . . we would reunite our children with their families only to find catastrophe to happen later that week or that month when that child was abused again or hung in a bathroom and killed, and because of that 1980 law, reunification became something that was done in too many terrible instances resulting in catastrophic consequences for that child” (U.S. Congress 1997, H 2018). In critiquing the impact of the 1980 law, supporters painted a picture of social workers who, although well meaning, were adhering too rigidly to the reasonable efforts standard contained in the law. Representative Barbara B. Kennelly (D-CT), co-author of ASFA, framed the need for a new law in this context: “Early on in the 1980s we wrote legislation in this body and in the other body saying every reasonable effort should be made to return a child to the family. And in the States, those who were working very hard to bring this about did not know where to end that. It was not clear. In short, we are clarifying that reunifying a family is not reasonable when it presents a clear and undeniable danger to a child” (U.S. Congress 1997, H 2017). Representative Pomeroy described “social workers [who] patiently try to work with parents who just have not been able to grow up and deal responsibly with their parental responsibilities,” leading to the “unacceptable circumstances of children languishing in foster homes, or maybe a series of foster homes” (U.S. Congress 1997, H 2020). Reflecting these concerns, ASFA shortened the time frame for requiring a permanency hearing for children in foster care from eighteen months to twelve months. At least in theory this meant that parents working toward reunification with their children would have less time to demonstrate that they were able to parent appropriately before the child welfare agency petitioned for termination of parental rights and pursued an alternative permanency plan for the children. In addition, although ASFA still did not define exactly what constitutes reasonable efforts, the law specified conditions under which reasonable efforts were not required to prevent removal of a child or to reunify families after a child has been removed: If the “parent has subjected a child to aggravated circumstances as defined in state law, which may include abandonment, torture, and extreme forms of physical or sexual abuse”; if the “parent is criminally responsible for the death of another of his or her children”; and if the “parent’s rights concerning a sibling have been involuntarily terminated” (Stein 2006, 74). Despite the backlash against the concept of family preservation, ASFA did include reauthorization of the Family Preservation and Support Act of 1993. However, it changed the name to the Promoting Safe and Stable Families Act and added two additional categories of spending to the program. In addition to family preservation services and community-based family support services,

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funds could also now be spent on (1) time-limited family reunification services and (2) adoption promotion and support services. States are expected to distribute their spending across all four categories (U.S. Congress, House, Committee on Ways and Means 2004).

Whose Children? Views of the Family and Child Welfare Policy The portrait of AACWA that emerged during the 1997 legislative debate— that it had a single-minded focus on reunifying families at all costs—largely ignored the extent to which supporters of the 1980 legislation considered alternatives to reunification. Certainly, supporters of AACWA did make clear that keeping biological families together was an important goal. For example, Representative James C. Corman (D-CA), one of the main sponsors in the House, pointed to the need to equalize “the financial incentives for States to engage in activities aimed at preventing the need for foster care versus placing children in foster care. . . . The Federal Government should be as supportive of services aimed at preventing the need for foster care as it is of providing necessary shelter for homeless, neglected or abused children” (U.S. Congress 1979, H 22110). Representative Pete Stark (D-CA) argued in favor of the legislation with the observation that “in recent years it has become clear that changes in the welfare system are needed if children and families are to be protected against the unwarranted removal of children from their homes, and against inappropriate and unnecessarily prolonged foster care” (U.S. Congress 1979, H 22114). Yet adoption was also frequently mentioned as a desirable alternative to long-term foster care. In the Senate, for example, Senator Daniel Patrick Moynihan (D-NY) described the changing incentive structure that the new legislation would create for states: “The Legislation before us, through a mixture of incentives, disincentives, and new procedures . . . makes it easier to pay for the services that might keep a child in his home or restore him to his parents, easier to have him adopted and easier to keep him in his adopted home, and less attractive fiscally. . . . to maintain children in foster care” (U.S. Congress 1979, S 29504). Similarly, Senator Gillis William Long (D-LA) argued that the legislation “substantially revises the incentive structure of the Federal program. . . . The overall purpose of these changes is to redirect the emphasis of the program toward increased efforts to find permanent homes for these children—either by restoring them to their own families or, if that is not possible, finding them adoptive homes” (U.S. Congress 1979, S 29505). A key provision in AACWA that was invoked repeatedly in the debate was the creation of an adoption subsidy program to encourage the adoption of “hardto-place” children.



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Debate surrounding the 1980 AACWA was similar to that surrounding the 1997 ASFA, in that both times the debate focused on the idea that too many children spend too long in foster care and that adoption should be encouraged in cases where children are not going to be returned to their biological families. However, key differences between the debates can be seen with regard to the issue of family preservation and reunification, and these differences can be traced in part to the different views about the nature of family and the type of parents involved in the child welfare system. In the legislative debate around the 1980 AACWA, the argument in favor of making reasonable efforts to keep families together was framed in terms of the child’s interest. For example, Representative William M. Brodhead (DMI) criticized the foster care system not because it harms parents but because it “has resulted in harm to some children. All children from troubled homes do not need to be in foster care. . . . We know when that family is kept together it is a better environment for the children” (U.S. Congress 1979, H 22113). Representative Shirley Chisholm (D-NY) argued that the “decision to remove a child from his or her home . . . cannot be undertaken lightly,” not because of parental rights but because “no matter how unfortunate the family situation may have been, it must be kept in mind that the child has established some roots. The family unit still has meaning to a child” (U.S. Congress 1979, H 22115).7 As these examples illustrate, the debate around AACWA consistently described efforts to keep the biological family together as serving the best interests of the child. In contrast, in the debate around the 1997 ASFA, it was not the preservation of biological families but rather the speedier termination of parental rights to free children for adoption that was portrayed as a “pro-family” policy. For example, speaking of support of the legislation, Representative Deborah Pryce (R-OH) noted that “it takes a family to build a stronger America” (U.S. Congress 1997, H 2015). Representative Anne Northrup (R-KY) stated that “it is really wonderful to take a day and talk about building families” and confessed that “it makes me very emotional to think of the special blessings that will come to so many families because of this bill” (U.S. Congress 1997, H 2020). Representative Ron Packard (R-CA), in his remarks in support of the bill, argued, “The strength of our Nation is based on strong families. . . . [And] by streamlining the adoption process and cutting Washington bureaucracy, we will take the first steps toward increasing the number of happy and healthy children with good families” (U.S. Congress 1997, H 2023). Senator Larry Craig (R-ID) described the effect of ASFA as “bring[ing] more children home—to safe, permanent homes—and it will bring them home faster” (U.S. Congress 1997, S 12671). In part these different views about what is best for children in terms of family reflect differences between the two legislative debates in terms of the

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understanding of the kinds of parents whose children are placed in foster care. These differences in turn relate to views about poor families. As mentioned above, ASFA was being debated in 1997 in the aftermath of the most significant overhaul of the welfare program since at least the 1960s. During the testimony and debate immediately preceding the passage of ASFA, only a few explicit links were made between the bill under consideration and welfare reform (or poverty more generally). Representative Pryce suggested an analogy between the two pieces of legislation, because welfare reform meant that “low income mothers and their families would not be trapped in the never-ending cycle of dependency,” whereas passage of ASFA would mean that innocent children would not be “trapped in a broken system that too often places their young lives in danger of repeated neglect and abuse” (U.S. Congress 1997, H 2014). The only other mention of welfare reform during the congressional debate came from one of only a few opponents of the legislation: Representative Patsy Mink (D-HI). She explained that her opposition was directly related to welfare reform, which she argued was likely to have the effect of making it extremely difficult for some low-income women to care for their children. In her view passage of ASFA could lead to a situation in which “poverty and lack of work, could . . . become the sole basis for termination of parental rights.” Consequently, she concluded, “I cannot vote for a bill that takes welfare reform one step closer to the final penalty of poverty: The loss of one’s children by edict of the Government” (U.S. Congress 1997, H 2023). Representative Mink, however, was the only participant in the congressional debate over ASFA to suggest that poverty might be linked in any way to removal of children from their families. In the discussion of the need to clarify “reasonable efforts” and fast-track some children for adoption, the vision of unfit parents that emerged from the ASFA debate was one of individuals who, despite being given every opportunity to improve, are for some reason unable or unwilling to care adequately for their children. This understanding of such parents as being constrained by individual pathology rather than structural or systemic barriers resonated with the debate over welfare reform and its view of poverty as an individual failing that can be corrected by a changed incentive system. In this perspective, if poor parents are more likely than middle-class ones to have their children taken into foster care, then perhaps this is just further evidence of their individual failings, rather than a reflection of the systemic problems faced by poor parents. In addition the belief that biological parents of children in foster care are beyond help was also developing as the racial makeup of the foster care population was changing. In 1977 African American children made up approximately one-quarter of the foster care population. By these debates in the mid-1990s African Americans constituted almost one-half of the foster care population (U.S. Department of Health and Human Services, Administration for Children and Families 1997, chapter 4; Reich 2005, 47; Roberts 2002, 8).



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Although the 1979 debate around AACWA had similarly portrayed parents of children in foster care as exhibiting individual pathology, the understanding of their problems and of the possibilities for rehabilitation was much more benign. For example, Senator Cranston invoked the example of a constituent whose young relative had lost her children to the foster care system “because their mother was a poor housekeeper and the house was dirty and the children poorly fed, although they seemed to get plenty of love and were happy at home. . . . The mother loved her kids and apparently wanted to make a home for them but was overwhelmed by her problems” (U.S. Congress 1979, S 29505). The senator’s example implied that with adequate assistance from the state, the family could easily be preserved. Describing the kinds of families that could be helped by federal legislation that would provide more money to states to deliver prevention and reunification services, Representative Brodhead included families “troubled because of unemployment, because of alcoholism or because of an illness in the family” (U.S. Congress 1979, H 22113). This is a very different view of families than the one presented in the debate around ASFA, where legislators tended to portray the parents in question as those who inflict extreme physical or sexual abuse on their children. That this shift in thinking about the families who are involved with the child welfare system was a relatively recent one in relation to ASFA is evidenced by the fact that the more benign view of parents and the possibility of rehabilitation was still at the heart of the debate over the 1993 Family Preservation and Support Services Program Act, only six years earlier. For example, during congressional hearings on the Family Preservation and Support Services Program Act, families with drug-addicted parents were described in ways that suggested a lack of culpability: as being “under attack from substance abuse” and in need of help “before they are overwhelmed and consumed by this enemy” (U.S. Congress, House, Committee on Ways and Means, Subcommittee on Human Resources 1991a). Representative George Miller (D-CA), who had been instrumental in passage of the 1980 AACWA, suggested that any family experiencing the stresses of poverty might respond by being abusive: Of course, it is poverty that puts the stress on these families. We have seen good, white, middle-class, upper middle-class families that have gone into this spiral 30 and 60 days after learning they have lost their jobs, families that never believed they would engage in abusive behavior, either toward themselves or toward members of their family. . . . If you live your life in poverty, I am sure we wouldn’t expect much different. In fact, we don’t see any different behavior. That is what happens to the stalwarts of the American family picture. The working middle-class family just flies apart. (U.S. Congress, House, Committee on Ways and Means, Subcommittee on Human Resources 1991b)

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In other words, if abusive or neglectful parents are stressed or under attack, this means that they could change their behavior with the appropriate assistance. This view that abusive parents can be rehabilitated was most clearly on display with invited testimony about research on rhesus monkeys, which identified ways to prevent female monkeys that had been raised in laboratories from mistreating their young (U.S. Congress, House, Committee on Ways and Means, Subcommittee on Human Resources 1991a). In striking contrast to the legislative debate that would occur a few years later for ASFA, the debate surrounding the 1993 Family Preservation and Support Services Program Act depicted abusive parents as responding in understandable, if reprehensible, ways to their environment. Well-designed programs could then intercede in families and prevent abuse. In the congressional debates surrounding these various pieces of legislation, these different views of families and of their potential for rehabilitation were also reflected in the discussion about what services should be and are offered to families whose children have entered the foster care system. During the 1979 debate on AACWA, the relatively undisputed view was that the states were not doing enough to prevent the removal of children, or to reunify children with their families after removal. The explicit intention of AACWA was to increase available funds for the provision of services that would lead to prevention or reunification and thereby to reduce the size of the foster care population. During the debate in the early 1990s over the Family Preservation Act, the consensus view was that the states were still not providing sufficient services to allow families to stay together and that, despite the intentions of the 1980 AACWA, states were spending most of their federal money on foster care maintenance rather than on services to families. However, by the time of the 1997 debate on ASFA, only four years after the passage of the Family Preservation and Support Services Program Act, the consensus view was that state governments have offered too many services to families. The sense that government is putting “too much emphasis on providing all kinds of services to rehabilitate troubled families” (U.S. Congress 1997, H 2015–16), and that the option to take advantage of these services before losing permanent custody of children needs to be time limited, also resonated with the welfare debate and arguments in favor of time limits on benefits. During the congressional debate on ASFA no one questioned the assumption that adequate services are made available to birth parents—the key focus was the idea that too much has been done to help birth parents, to the detriment of the children. In contrast to the debate on the floor of Congress, child welfare advocacy groups testifying at committee hearings about the 1997 ASFA, although supportive of many elements of the bill, argued that the adequacy of services offered to birth parents was still a problem. For example, the American Public Welfare Association expressed agreement with the goal of moving children to



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permanent homes more quickly, but it also made the case that simply mandating shorter time frames and concurrent planning would not necessarily achieve this objective. In particular it suggested a different interpretation of why children stay in foster care for so long. The interpretation at the heart of ASFA was that foster care drift occurred because child welfare workers tried too hard to reunite families that were never going to be functional. The American Public Welfare Association’s contrasting interpretation was that much of the delay could be attributed to an overburdened court system that could not hear cases expeditiously and to a lack of services available to parents, which increased the reluctance of judges to terminate parental rights (U.S. Congress, House, Committee on Ways and Means, Subcommittee on Human Resources 1997; U.S. Congress, Senate, Committee on Finance, Subcommittee on Social Security and Family Policy 1997). Testimony from CDF also made this point about the need to ensure that services are provided if the timeline for termination of parental rights is to be sped up; CDF argued for the particular need to improve access to substance abuse services (U.S. Congress, House, Committee on Ways and Means, Subcommittee on Human Resources 1997). Similarly, CWLA testified that they “agree[d] with the important goals of the legislation” but worried that “changing timeframes without also intensifying services, sends the message that government is abandoning its responsibility to help troubled families solve the problems that lead to child abuse and neglect” (U.S. Congress, Senate, Committee on Finance 1997). These testimonies illustrate the role played by the major child welfare advocacy organizations across all three pieces of national child welfare policy discussed here: AACWA, the Family Preservation Act, and ASFA. Despite differences in approach emphasized by each piece of legislation, the advocacy groups have generally been supportive of the reform efforts, embracing additional federal resources in a particular area of child welfare (such as adoption subsidies and prevention services), even as they sometimes argue that all areas of the child welfare system have a critical need for resources.

Conclusions In some ways the swinging pendulum metaphor is a useful way to describe changes in federal child welfare policy. The 1980 AACWA was enacted in response to the idea that states were unnecessarily removing children from their families and leaving them to languish in foster care. Although AACWA endorsed adoption for children who could not be returned to their biological families, it emphasized prevention and reunification. As its name suggests, the 1993 Family Preservation and Support Act represented the swing of the pendulum even farther in the direction of prevention and reunification. In

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contrast the pendulum swung in the other direction with the passage of the 1997 ASFA, with its greater skepticism that abusive or neglectful parents should regain custody of their children and its emphasis on faster termination of parental rights. In other ways, however, the pendulum metaphor is misleading, in that it implies smooth and regular shifts in policy. In fact policy lurches from one approach to another, while earlier approaches are not completely abandoned.8 The critique of existing federal policy offered during debate over the 1993 Family Preservation and Support Act was very similar to the previous critique offered during passage of the 1980 AACWA: States were focusing too much on maintaining children in foster care and not enough on preventing the breakup of the biological family. Furthermore, as suggested in the two debates, this misplaced focus was being encouraged by federal funding that guaranteed money for foster care but offered relatively limited funds for prevention and reunification services. However, the critique of federal policy offered only a few years later during debate on the 1997 ASFA was markedly different: States were focusing too much on preserving dysfunctional and abusive families, to the detriment of children. This misplaced focus, according to this critique, was being encouraged by federal policy that seemed to require herculean efforts to reunify even the most abusive parents with their children. Even though the congressional debates over AACWA and ASFA differed, national advocacy organizations testifying at hearings in 1980 and 1997 offered a high degree of consistency in their remarks. They focused less on shifts in emphasis from family preservation to child safety and more on the opportunities that congressional attention offers for making additional resources available for different elements of state child welfare systems: maintaining Title IV-E as an entitlement, converting Title IV-B to an entitlement, increasing funds for adoption subsidies, and increasing funds for prevention and reunification services.9

The Role of Symbols and Scandals In part the move in 1997 to focus on faster termination of parental rights reflected shifts in how families were being viewed by policymakers. Earlier emphasis on family preservation had been buoyed by a distrust of state intervention in the family, a distrust that crossed ideological lines. Liberals worried that child removal was spurred more by disapproval of particular families than the need to protect children from imminent danger. Conservatives worried that child removal undermined familial privacy and parental authority. In 1997, however, child welfare policy was powerfully shaped by the politics of welfare reform from a year before. Skepticism about the likelihood that



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governmental assistance can produce positive social outcomes also fueled a critique of child welfare policy: that it had previously focused too much on helping parents who were beyond help and, in so doing, had further harmed abused children (see, for example, MacDonald 1994). As illustrated in the above discussion, the debates around child welfare legislation in 1979–80 and 1997 did seem to invoke very different views of families. In 1979 the parents of children who enter foster care were largely described as exhibiting problems that should be amenable to treatment or training—poor housekeeping or alcoholism, for example. In addition even homes that may fall considerably short of offering ideal parenting were portrayed as potentially valuable to children, and the parents in these homes were depicted as potentially loving. At one point in the 1979 debate the head of a New Jersey pediatric association was quoted as saying that “he had seen homes you would never think proper for a child and the child flourishes there because he knows that is where he belongs. He has a sense of security. If he is also loved, little more is needed” (U.S. Congress 1979, H 22113). The picture of biological families that emerged during the 1997 debate was very different. The focus turned to the most severe forms of abuse and the pointlessness of attempting to train or treat such parents. In language that mirrored the welfare reform debate of the same time period, the child welfare system was portrayed as one that has exhibited far too much patience with parents who are unwilling to solve their own problems, to the detriment of children. Helping fuel this critique of child welfare policy were high-profile scandals invoked to demonstrate the misplaced emphasis on family preservation. In the debates over the 1997 ASFA, scandal functioned as synecdoche—a specific example presented by proponents of a particular legislative approach to a problem as representative of the whole (Stone 2001), namely, that children were being harmed by the states’ insistence on keeping dysfunctional families together. Several people testifying before the Subcommittee on Human Resources of the Committee on Ways and Means invoked the previously mentioned example of the “Keystone” children in Chicago in 1994—nineteen children who were found living with their six mothers in one filthy apartment without beds or functioning toilets and surrounded by rotting food and soiled diapers. The congressional debate over ASFA also frequently invoked newspaper coverage of specific cases of children harmed by their biological families to illustrate the need for the legislation. According to Representative Kennelly, “Everyone of us in this body can turn to and refer to headlines in their papers, the terrible heartbreaking case with little Emily in Michigan, other cases across the United States, headlines telling us the very worst can happen” (U.S. Congress 1997, H 2017). Representative Carl Levin (D-MI) referenced “a compelling series by the Chicago Tribune on children” who had been harmed because of the insistence on reunification of families (U.S.

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Congress 1997, H 2018). Representative Steny Hoyer (D-MD) summarized a Washington Post article about Dooney Waters, a five-year-old boy living with his father in a crack house who was not removed from the home despite an investigation by the social services agency (U.S. Congress 1997, H 2021). Representative Todd Tiahrt (R-KS) mentioned the example of “Halie, who was 2 years old, who refused to eat her dinner and her parents tied her to an electric heater; and . . . they went through every different family service available, and she did not get out of foster care until she was 18 years old” (U.S. Congress 1997, H 2028). In the Senate, Senator Moynihan ended the debate on ASFA with the story “of another tragic death, that of little Sabrina Green. . . . nine years old, lived in the Bronx. After both her mother and her latest foster mother died, Sabrina went to live with her oldest sister, Yvette Green. After what appears to have been months of abuse—such as burning Sabrina’s hand over a stove as punishment for taking food out of the refrigerator—she was found beaten to death. Her sister and her sister’s boyfriend have been accused of this crime” (U.S. Congress 1997, S 12675). To some extent in 1979 and to a greater degree in 1997, well-publicized examples of harm to children were invoked in this way to illustrate larger arguments about child welfare policy.10 Even so, the national policymaking process does not seem to respond directly to specific scandals. The policy pendulum may be swinging; but rather than swinging from crisis to crisis, policymakers use crises selectively to make the case for which direction the pendulum should swing. What the comparison of the legislative debates in 1979 and 1997 also demonstrates is that changing views about government’s obligation to assist troubled families, and about the likelihood that troubled parents can be rehabilitated, can powerfully determine the swing of the child welfare policy pendulum in each era. These views are in turn shaped by the politics of welfare and the changing racial composition of the foster care population. Finally, child welfare policymaking at the federal level has also reflected the ascendency of particular ideas about best practices within child welfare policy circles: for example, permanency planning at the end of the 1970s and family preservation at the end of the 1980s.

Federalism, Scandals, and Child Welfare Policy The scandals invoked during the 1997 ASFA debate had in many cases already influenced policymaking at the state level. Prior to the passage of ASFA a number of states had already moved to speed up termination of parental rights (Sheldon 1997, 85–88; Lowe 1996). Consequently, ASFA federalized rules that were either in place or under discussion in many states. This fact suggests that scandal can have both a direct effect on federal policymaking and an indirect effect via state policy, and it illustrates another way in which



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the child welfare policy pendulum swings. Federal legislation shapes state action in important ways, but state policy shifts also influence national policymakers. An early advocate of national child welfare policy reform during the 1970s was Representative George Miller of California, who was influenced in part by earlier child welfare legislation that had passed in the California legislature (Taylor 1981, 33; Pine 1986). In the mid-1990s states were already enacting legislation in response to the backlash against the family preservation movement, as Congress began debating its own legislative changes to child welfare policy. In a policy area with a significant state role, state actors are an important source of new policy ideas at the national level, even as they are in turn influenced by national policy. To the extent that child welfare scandals shape state policymaking, therefore, they also indirectly influence national policymaking through the passage of state legislation that serves as a national model and through the regular testimony of state actors at congressional hearings (see appendix 1). In the next chapter I turn to a discussion of state policymaking, exploring how scandals and other factors shape state behavior. In recognition of the importance of the intergovernmental framework within which states make child welfare policy, I continue to consider the way in which federal policy influences states. In response to provisions in ASFA that call for increased accountability of state child welfare systems, the Department of Health and Human Services adopted new regulations in 2000 designed to improve federal oversight. The federal government now collects annual performance data on the child welfare systems in each state and assesses each state’s performance on seven dimensions, including child safety. In response to these Child and Family Services Reviews (CFSRs) states are required to adopt program improvement plans and demonstrate progress on improving the operation of their child welfare systems. States face financial penalties if they fail to comply. During the first round of these reviews, no state managed to receive a passing grade on more than two dimensions, and fifteen states did not receive a passing grade on any dimension. As these reviews become an increasingly significant feature of the state policy environment for child welfare, states may become more similar in terms of how they operate their child welfare systems—a de facto federalizing of the system. The policy pendulum continues to swing, not only between family preservation and child removal but between more and less federal control over state policy.

Notes 1. This chapter focuses on these two major pieces of child welfare legislation because they represent the most significant and comprehensive federal efforts to address broad child welfare issues and shape state child welfare systems. This chapter does not discuss several other

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significant, but more narrowly tailored, pieces of federal legislation, including the 1999 Chafee Foster Care Independence Program, the 1994 Multiethnic Placement Act, or the 1978 Indian Child Welfare Act. 2. The early involvement of the medical community in defining the problem of child abuse meant that it was defined as an issue of individual “sickness” (Nelson 1984). 3. Reauthorization in 1981 was much more controversial—the legislation was almost not reauthorized in the new political environment. In part opposition stemmed from conservative dislike of social programs. In addition the legislation was portrayed by some as governmental interference with families: “For conservatives, the sheltered, private nature of the family supercedes the public protection concerns which underpinned earlier governmental actions” (Nelson 1984, 124). 4. A final point of contention in the Senate was the inclusion of several provisions amending parts of the current AFDC system. 5. The current appropriation for Title IV-B had never exceeded $56.5 million, despite an authorization for up to $266 million annually. The foster care matching payments cap was tied to much higher levels of appropriations: $163.5 million in 1981, $220 million in 1982, and $266 million in 1983 and 1984 (U.S. Congress, House 1980, 1568). After 1981 these higher appropriation levels were not reached. 6. Prior to the 1980 passage of the AACWA, the Department of Health, Education, and Welfare reported that states spent much of Title IV-B funding on foster care maintenance costs for foster care children who were not eligible for federal funds under AFDC-FC, rather than on services to prevent family breakup or to reunify families after a child’s removal (U.S. Congress, Senate, Committee on Finance, Subcommittee on Public Assistance 1979, 93). 7. The only explicit mention of parental rights came in a statement by Representative John M. Ashbrook (R-OH), in opposition to AACWA, in which he described the legislation as part of an effort to “pry open the citadel of the family and allow social engineers and radical theoreticians to begin regulating this last bastion of freedom from big brother” (U.S. Congress, Congressional Record 1979, H 22126). 8. Reich (2005) similarly argues that “the intrinsic limitation of the pendulum metaphor is that it invokes a vision of policy preferences that swing laterally between two poles. In the case of child welfare, policy swings sometimes move back and forth, and often in dizzying circles” (54). 9. Federal legislation enacted in October 2008—the Fostering Connections to Success and Increasing Adoptions Act—was widely supported by child welfare advocacy organizations and intergovernmental organizations. The legislation focuses on two key issues for children who are not going to be reunified or adopted: States are now authorized to use federal funds for payments to relative guardians (that is, federal support for kinship care) and to use federal funds for foster care maintenance through age twenty-one (rather than age eighteen). 10. The examples referenced during the ASFA debate were much more plentiful than during the 1979 discussion. In part this may be because the problem being defined in 1997 was more conducive to using synecdoche than the problem being addressed in 1979. Stories of children languishing in foster care may be less likely to grab headlines than stories of children killed by abusive parents. During the 1979 debate around the passage of the AACWA, the scandal that was invoked several times was the Jonestown Massacre, which had occurred only the year before and involved the murder of a member of Congress as well as the murdersuicide of more than nine hundred men, women, and children. The suggestion behind the mention of the Jonestown Massacre was that at least some of the children who had died were actually foster children who had been taken to the People’s Temple in Guyana by their foster parents. The example was supposed to illustrate the potential for foster care to be worse for children than their biological families, but clearly the tragedy at Jonestown did not spark the legislative effort.

Chapter Three

States, Scandals, and Child Welfare Policy

In 2000 the Connecticut Department of Children and Families was criticized when a three-year-old was killed by his out-of-state foster parent. The agency had sent the child to live with a pre-adoptive foster family in Florida without following established procedures, including completion of a background check on the prospective parents. The boy, who suffered from cerebral palsy, died of suffocation when his foster father wrapped him tightly in a blanket and left him in a bed to punish him for soiling his pants. He had only been in the foster home for a week. In 2001 in Wisconsin, the child welfare system came under scrutiny when a four-year-old girl was severely beaten by her foster parent. The child had previously been removed from the foster home when the foster mother lost her license after striking a five-year-old boy in the head in the presence of state workers. The mother’s license had been reinstated, however, and the girl returned to her care. The state and the county traded charges over who was to blame for the incident. In 2003 the Georgia Department of Children and Family Services came under fire when a two-year-old boy was beaten to death by his stepfather. During the two months prior to his death the toddler and his older brother had been removed twice from the home because of suspected abuse and later were returned home. The case was closed after the mother, a private in the Army, promised to bring the children to live with their grandmother while she returned to her base in South Carolina. The Department of Children and Family Services did not follow up on that promise, and the children were left with their stepfather, who killed the two-year-old a month later. In 2004 the state of Washington’s Child Protective Services faced significant criticism when two babies, one six weeks old and another sixteen months old, were found dead of starvation and dehydration next to their passed-out alcoholic mother. Their two-and-a-half-year-old brother was found alive but seriously malnourished. Child Protective Services had received more than five previous complaints of child neglect against the mother that were either not investigated or only minimally investigated.







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Between 1999 and 2004 thirty-one states experienced at least one child welfare scandal, and ten states experienced three or more scandals.1 As discussed in chapter 1, anecdotal evidence suggests that scandals like these shape child welfare policy. At the same time, the literature on policymaking suggests there are limits on the extent to which a potential focusing event, like a child welfare scandal, results in observable policy outcomes. This chapter systematically analyzes the link between scandal and policymaking across the United States, controlling for other factors that might affect state behavior.2 I consider two different measures of state policy activity that might be shaped by scandal: spending and passage of legislation. The next two sections of the chapter describe these measures in greater detail. I then develop two statistical models to explore whether scandals are related to changes in child welfare spending and passage of child welfare legislation. These models include other state characteristics that might also be expected to affect spending and legislating. For example, has the state recently entered into a consent agreement in response to a lawsuit involving its child welfare system? Is there a strong administrative role for county government in the state’s child welfare system? Has the state’s child welfare system been recently reviewed by the federal government? What political party controls state government? How liberal is the state population? What is the median income in the state? What percentage of the state population is African American? How professionalized is the state legislature? By including these characteristics of states and their child welfare systems, I am able to look at the impact of scandals, while taking into account other ways in which the state environment might shape policy outcomes. After a detailed discussion of the regression analysis, the final section of the chapter discusses the results of the analysis in terms of their broad implications for understanding when and how scandals might shape child welfare policymaking in the states.

Spending on Child Welfare One possible outcome of child welfare scandals is that spending on child welfare programs increases. Collecting this information is not straightforward, because states use different definitions of child welfare programs. For example, some states include spending on juvenile justice as part of their child welfare budgets. Data collected for even-numbered years between 1996 and 2004 by the Urban Institute addresses this problem of different definitions. The Urban Institute developed a list of programs and services that constitute a uniform definition of child welfare policy and asked states to report on the amount of






2000 10.9 8.4 2.4 21.8

States, Scandals, and Child Welfare Policy

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federal, state, and local dollars devoted to these programs. The definition of child welfare expenditures that the organization employs includes “services for children and families to prevent abuse and neglect; family preservation services; child protective services (intake, family assessment, investigation, and case management); in-home services; out-of-home placement . . . ; and adoption services” (Scarcella et al. 2006, 5). The spending data collected by the Urban Institute reveal considerable variation in spending both across years and between states. The researchers offer several explanations for this variation. One significant factor seems to be the use of nondedicated federal revenue streams for child welfare services. States can spend money from the TANF program, from Medicaid, and from the Social Services Block Grant on child welfare services, but the extent to which money is spent from these sources depends on the particular state and the particular budget cycle in that state. In addition the Urban Institute suggests that some variation may reflect a lack of consistency in how states report spending data. Between 1996 and 2004 total state spending on 2002 their 2004 child welfare has increased from $17 billion to $23.3 billion (see figure 3.1). 11.7 11.7 However, this aggregate trend conceals substantial variation across states. For 8.7 9.1 2002 and 2004, aggregate spending increased by 0.9 perexample, between 2.8from $23.1 2.5billion to $23.32.8
 cent billion. During the2.5
 same two years, thirteen states their total spending (Alabama, Colorado, Delaware, Illinois, 23.1 reduced 23.3 2.4
 Federal State Local Total

1.9


25


1996 7.8 7.3 1.8 17

1998 8.2 7.2 1.9 1.6

2000 10.9 8.4 2.4 21.8

20


2002 11.7 8.7 2.8 23.1

2004 11.7 9.1 2.5 23.3

2.5 2.5


2.8 2.8


2.4
 2.4

9.1


8.7
 8.4
 1.8 1.8


1.9 1.9


7.2


9.1


8.7
 8.4


15


$ Billions

1998 8.2 7.2 1.9 1.6



7.3


Local Local
 Local


7.2


State
 State State


10


Federal


Federal Federal
 10.9


5
 7.8


11.7


8.2


11.7


10.9
 8.2


11.7


11.7


0
 1996


1998


2000


2002


2004


Figure 3.1 Figure
3.1.
Total
federal,
state,
and
local
spending
on
child
welfare
1996–2004.
(Data


Total federal, state, and local spending on child welfare 1996–2004. (Data from
Scarcella
et
al.
2006,
8.)
 

 from Scarcella et al. 2006, 8.) 



1998


2000


2002


2004


54

Chapter Three

Iowa, Minnesota, Montana, Nevada, North Dakota, Texas, Virginia, West Virginia, and Wyoming), whereas another thirteen states increased their total spending by more than 10 percent (Arizona, Arkansas, Florida, Hawaii, Idaho, Kansas, Mississippi, Nebraska, New Mexico, Oregon, Pennsylvania, Rhode Island, South Dakota). Figure 3.2 illustrates the variation in spending, averaged over the child population across states in 2004, from a high of almost $800 per child in Rhode Island to a low of just over $60 per child in South Carolina.

Child Welfare Legislation In addition to increased spending on programs, a second possible outcome of child welfare scandals is that the state enacts child welfare legislation. Compiling a measure of child welfare legislation is complicated somewhat by the broad array of policy initiatives that have ties to child welfare services. Beginning in 2002 the National Conference of State Legislatures (NCSL) began reporting annually on the passage of significant state legislation related to child welfare systems. As described in the reports, NCSL is focusing on legislation that reflects “emerging issues and key legislative trends” as well as new laws that “address important issues in the child welfare field or institute substantial changes in child welfare practice or administration” (NCSL 2004, 8). The NCSL reports may not catalog every piece of child welfare–related legislation, but they do capture the most substantively interesting pieces of legislation and therefore represent a reasonable approximation of the amount of legislative activity in a particular state in a given year. In addition NCSL breaks down bills addressing multiple issues into their component parts. Counting these component parts as separate pieces of legislation allows for greater comparability across states, since legislation addressing many aspects of the child welfare system is weighted more heavily than single-issue legislation. To provide a sense of the range of issues addressed by state legislation, table 3.1 organizes the legislation into subject categories with specific examples for each category. As the table demonstrates, legislation covers many aspects of the child welfare system: from adoption procedures to foster care programs to prevention services. In addition some legislation provides additional resources for child welfare systems, such as funding for additional employees, whereas other legislation increases regulation rather than resources, such as requiring more frequent visits to foster children. Despite this variation, aggregating all the legislation into a single-count measure of legislative activity around child welfare makes sense for several reasons. First, the question that this chapter initially seeks to answer is whether states respond to child welfare crises with the passage of new

Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginnia Wisconsin Wyoming

0

100

200

300

400

Federal Spending per Child

500

600

700

800

900 1000

State and Local Spending per Child

Figure 3.2

Federal, state, and local child welfare spending per child by state, 2004. (Retrieved from the Child Welfare League of America’s National Data Analysis System [http://ndas.cwla.org]. Data collected by the Urban Institute.)

Table 3.1 Classification of state child welfare legislation 2002–4 (with examples of specific pieces of legislation in each category) Accountability • Creation of audit teams to monitor the child welfare agency • Establishment of an office of the child advocate to oversee the agency • Procedures for child fatality reviews to be conducted when child who was known to the child welfare system is injured and/or has died of abuse or neglect • Public access to records, hearings, and proceedings related to child welfare Adoption • Subsidies for adoptive parents • New procedures to expedite adoptions • Rules around adoption of sibling groups Financing • Requirement that agencies maximize federal funding • Creation of new financing mechanisms Foster care • Educational opportunities for foster children • Foster parent rights and responsibilities • Recruitment of foster parents • Frequency of visits to foster children • Services and programs for foster children transitioning to independent living • Procedures to expedite move from foster care to permanency • Requirements to involve families in case planning • Use of psychotropic medications for foster children • Use of kinship care in place of traditional foster care • Procedures for locating missing foster children

Maltreatment investigations • Who can do the investigations • How cases can be classified and treated • Legal rights of children, families, and alleged perpetrators during investigation • Creation of children’s advocacy centers to conduct interviews with abused children • Additional penalties for certain types of abuse and neglect, for example, involving domestic violence or manufacture of methamphetamine • Expansion of category of those required to report suspected abuse Prevention and diversion • Safe haven laws • Provision of mental health services for children whose families would otherwise have to relinquish custody of child to be eligible for services • Services for families in crisis Interagency coordination • Requirement of increased coordination across state and local agencies that work with children and families Redesign • Restructuring of overall child welfare system • Requirement that agency develop comprehensive plan to meet federal child and family services review requirements or to achieve accreditation of system Workforce • Compensation and stipend changes • Caseload standards • Training requirements • Funds for new positions

Privatization • Requirements that child welfare agency contract with private providers for some service delivery Source: National Conference of State Legislatures 2004, 2005





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legislation. This single-count measure captures the extent of legislative activity around child welfare issues in a given year. The content of the legislative response in a particular state is then expected to depend on details of the crises, as well as the relative influence of particular policy entrepreneurs and the general political environment in the state. The second reason to aggregate all the legislation is that one of the most obvious ways to distinguish between types of legislative response is regulation versus resources. The use of two policy measures, spending and legislating, allows me to assess this distinction: Do the same factors predict increased resources (spending) as predict increased regulation (legislating)? Finally, the same state may pass legislation addressing many different aspects of the child welfare system in a given year. By aggregating child welfare–related legislation into a single measure, I am able to explore whether events like crises or court orders fuel legislative activity in a state, perhaps by opening a policy window. That said, I am not able to explain why a state adopts a particular regulation or focuses on a particular aspect of its child welfare system. Clearly, if the analysis demonstrates that states do seem to respond to crises with legislation, then it will be interesting to understand why the legislative response in one state might involve privatization, whereas in another state it might involve further regulation of the state agency. However, at the moment, the number of cases that fall into these subcategories during this time period is too small for meaningful quantitative analysis (that is, only two states engaged in privatization during the time period included here). In subsequent chapters I am able to explore in greater detail the link between particular scandals, state institutions, and the type of legislation enacted in state case studies.

Models: Spending and Legislation For this analysis I consider data on spending for 2002 and 2004 and on legislating for 2002, 2003, and 2004. This is the period for which the available spending data overlap with the available data on legislation, allowing me to compare the results for the two policy measures.

Independent Variables Both models, spending and legislating, include four key measures to test hypotheses developed in chapter 1: (1) child welfare scandals in the state, (2) litigation, (3) information about the federal government’s Child and Family Services Review (CFSR) of the state, and (4) the role of county governments in the administration and financing of the state child welfare system.3 First I include a measure of child welfare scandals in the state. To create

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this variable I searched the highest-circulation newspaper in each state for stories about death or injuries to children who either were in state custody or were somehow known to the child welfare system (for example, through previous child abuse complaints against the family).4 I counted the incident as rising to the level of scandal if the newspaper carried three or more stories about the way in which the actions or inaction of the child welfare agency contributed to the death or injury of the child.5 The variable that is included in the models is a count of the number of scandals in the two years preceding the spending and legislation data (for example, any scandals from 2000 through 2002 are considered for the 2002 spending and legislation data). This variable allows enough time for a response to the scandal to show up in either legislation enacted or money spent but also recognizes that the link between scandal and policy is expected to come from the desire of state actors to respond quickly in the face of public outrage. I also include a measure of change in the state’s child victimization rate over the prior two years, on the theory that a significant shift in the rate might generate a demand either for more money or for policy change, independent of media coverage of a particularly high-profile case of victimization. Second, both models include a litigation measure: that is, whether the state’s child welfare system recently entered into a consent agreement in response to a lawsuit. Since the 1970s thirty-three states have been sued over the operation of some or all of their child welfare systems. Some of these states have faced multiple lawsuits, and some of the consent agreements have been in effect for many years—for example, Connecticut and Illinois are still under consent decrees entered into in 1991. This information on consent decrees is drawn from an October 2005 study produced by CWLA in collaboration with the American Bar Association (Child Welfare League of America 2005); the study summarizes every child welfare consent agreement in every state from 1995 to 2000. Following the same logic as for the scandal measure, this dichotomous litigation variable measures whether a state entered into a consent decree in the two years preceding passage of legislation. The measure includes all kinds of consent decrees entered into during the time period— both those that focus on the overall operation of the child welfare system and those that focus on a specific aspect of the system, such as reunification services provided to parents. The third and fourth measures in both models are different measures of intergovernmental relationships. The third variable measures whether the state has had its initial assessment as part of the federal government’s CFSRs. Because no state received a passing grade on more than two of the seven dimensions during this first round of reviews, I use a measure of whether the review occurred recently in relation to the change in spending or passage of legislation, rather than a measure of how well the state did on





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its review.6 Every state has had to develop an improvement plan in response to the review, and every state will need to demonstrate improvement to continue receiving federal money. Consequently, I expect that states whose reviews were more recent may have enacted legislation or increased spending in response to criticism from the federal government. Finally, the fourth variable is also an intergovernmental measure, capturing whether a given state has a strong role for county governments in the administration and financing of the child welfare system. In addition to controlling for these key state characteristics, I include the following additional information in both the spending model and legislating model: • Party of the governor7 • Party control of the legislature • Erikson, Wright, and McIver (1993) measure of the percentage of the state population that identifies itself as liberal, averaged over fifteen years • Median income (as a measure of state capacity) • Percentage of the population that is African American • Professionalization of the state legislature

Spending Model The first model explores the link between scandal and state and local spending per child.8 The mean state and local spending level per child is $145, but the level ranges from a low of $19 per child in South Carolina to a high of more than $400 per child in Rhode Island. I average the spending across the state’s child population to take into account the extent to which larger states are expected to spend more on child welfare services than smaller states. Using child population rather than overall population makes sense given that the programs under consideration specifically target children’s well-being. I look at spending per child overall rather than per child in foster care, because child welfare programs encompass much more than simply foster care–related spending—for example, abuse investigation and prevention services. At the same time, recognizing that a larger foster care population may increase the demand for spending, I include the relative size of the foster care population in the model as well. Because analysis of state spending patterns has commonly suggested that current spending levels are largely driven by past spending levels, I also include the previous level of spending on child welfare services in the model (see Berry 1990 and Achen 2000 for a review of this literature).9 I also include federal spending per child: More federal spending may spur greater state and local spending, or federal dollars may substitute for state and local dollars. Finally, I include a measure of the extent to which

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total state spending exceeds revenue in a particular year to capture the extent of fiscal stress (or slack) faced by the state as it decides its child welfare budget.

Results of Spending Model Table 3.2 reports the coefficients and standard errors for the regression model predicting state and local spending per child on child welfare programs in 2002 and 2004.10 At least as modeled here, scandals are not significantly related to spending, nor are changes in the actual child victimization rate significantly related to child welfare spending.11 A federal review of the child welfare system in the preceding two years is also not significantly related to spending levels. Having entered into a recent consent agreement is statistically significant (p=.02).12 However, the relationship is negative—that is, states that have entered into a recent agreement can be expected to spend $7.52 less per child than other states, all else held constant. This finding may reflect the fact that low-spending states are more likely to be the subject of litigation designed to increase the amount of resources devoted to the child welfare system, and perhaps two years is not enough time to capture increased spending in response to litigation.13 Although having recently entered into a consent agreement is associated with a decrease in spending, not an increase, I also considered the possibility that an older consent agreement might be associated with higher spending levels. Even if the most significant monetary response to a court order were to occur earlier in the life of the consent decree, this infusion of dollars might continue to affect spending relative to other states’ spending, because the state’s compliance with the consent decree often continues to be monitored long after the original agreement is reached. In addition consent decrees often require regular reports on the child welfare system, so release of these reports means that the child welfare system and its problems may be in the news on a regular basis. A variable measuring “consent decree ever in effect” is not statistically significant in the model, but this lack of relationship—in contrast to a negative relationship for recent consent agreements—may mean that litigation does have the result over time of bringing lower-spending states in line with higher-spending states (that is, so that they are no longer distinguishable in terms of spending levels). The only other key variable of interest that is significantly related to changes in spending is the county-administered system measure (p=.08). States with a strong role for counties in their child welfare system are shown to have spent more than $13 more per child than states with centralized systems, all else held constant. It is not immediately clear why this might be the

Table 3.2 State and local spending per child on child welfare 2002–4

Independent variable

Scandal Consent decree Strong county Federal review Democratic legislature Democratic governor Public opinion liberalism African American Median income Foster care population Child victimization rate South Northeast Midwest Professionalism Budget surplus 2002 State and local spending T–2 Federal spending per child Constant R-squared

Coefficient (panel-corrected standard errors)

Coefficient (panel-corrected standard errors)

–2.00 (4.06) –7.52* (3.11) 13.37^ (7.58) –4.27 (7.20) 4.75 (8.03) –2.37 (14.80) 3.43*** (.62) –135.87*** (36.64) .0007 (.002) 915.93 (1,274.12) –8.34 (30.69) 15.52 (15.18) –10.37 (16.62) 11.09 (11.12) 3.00 (3.02) –19.67 (38.09) –16.11 (12.83) .42 (.27) .35^ (.22) –67.68 .65

–4.02 (5.54) 21.71 (16.16) 11.84* (5.15) –9.85 (11.69) 12.17*** (2.57) –8.15 (10.63) 7.00*** (1.61) –183.42*** (50.46) .001 (.001) 5,083.49** (1,752.62) –.46 (.94) 30.25 (22.24) 6.96 (17.76) 32.42*** (6.84) 1.44 (4.08) –78.48 (82.39) –35.03 (24.02) —

Note: N=96, Wald chi2(3)=32.16*** and 17.25*** ***=p