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CPS is Not Your Friend

March 8, 2010 3 comments

In all your dealings with CPS, even if your worker seems friendly and helpful, always keep in mind that the CPS system is NOT your friend, NOT your counselor, and NOT your advocate. Understand that you are in an adversarial (oppositional) relationship with CPS, that you are being evaluated and investigated by CPS, that CPS can take your child, and that every thing you say can and often will be used against you.

The very words ‘child protective services’ sound so humanitarian, and so in tune with what mothers want, especially those mothers who are dealing with a violent partner, that women frequently make the serious mistake of thinking that CPS is their friend. Or they think that CPS will at least by on the same side with them, or that CPS will naturally work to support their needs and interests. This mistaken belief is even easier to fall into when the CPS worker is friendly or tells you directly that she or he wants to help you. In fact, your worker may truly believe that he or she is there to help you. CPS workers themselves are often blind to the underlying dynamics of the system they work for.

The reality is that CPS system is a government agency armed with the enormous power to take your child, and to do so on only the most minimal pretext, with only the smallest sliver of evidence, and minimal due process rights for you. The CPS system is set up to investigate and judge whether or not you are a fit parent, even when everyone knows you are not the one who abused your child.

So, if you are a non-offending parent, in all your dealings with CPS, remember, CPS is not your friend! CPS is not your counselor! CPS is not your advocate! If you always keep this in mind, it will help you avoid some common and tragic mistakes. It will also help you to take basic, but critical steps to protect yourself from CPS abuses of power along the way.

Here are the kinds of mistakes so many women fall into when they believe that CPS is on their side. Women often pour their hearts out to CPS. They open their homes and family life to CPS, and give CPS all kinds of intimate information that CPS then can, and often will, use against you. Another big mistake women make when they think CPS is on their side, is that they trust that CPS is looking after their interests. They let their guard down. They don’t pay attention to what’s going on. They don’t prepare and protect themselves. And, all too often, they don’t wake up until it’s too late.

Example: Here’s just one example of the kind of tragedy that occurs over and over again when women think CPS is on their side. An exhausted mother has been coping with an abusive husband for years. One day her 10-year-old daughter tells a teacher that the reason she’s late to school is because her father got in a fight with her mother after breakfast and he started beating her mother. The teacher reports this to CPS. The CPS worker tells the mother she wants to help the family. The mother bares her heart to the worker. The mother tells the CPS worker how stressed she has been. How much trouble she has sleeping. How fearful she is in the home. She tells CPS that a year ago she went to a shelter, but soon returned to the abusive husband because she didn’t think she could make enough money to feed the children. She says she tries to warn the children against being around the father when he gets in that mood. She says she doesn’t know what to do.

Then one day the mother gets a copy of the written CPS report. She is stunned to read that the worker has written that ‘this mother is out of control, can’t cope, is mentally unstable and unable to protect the child’, and that, furthermore, the mother is ‘alienating the children from the father’. And that based on this, CPS is petitioning the court to remove the child from the mother.

It happens like this over and over again. So right from the beginning, understand that CPS is geared up and empowered to protect children against parents. CPS is not working on your behalf. Even if CPS lines up a whole set of programs for you to attend to help you keep your child, you need to realize that if you don’t comply with these programs to CPS satisfaction, CPS holds the threat of taking your child. This does not constitute a friendly relationship. Even though every one agrees that you did not abuse the child, you are in an adversarial (oppositional) relationship with CPS, and a particularly precarious adversarial relationship at that.

The proof that you are in an adversarial (oppositional) relationship with CPS is that (in most states) the juvenile court must assign you an attorney to represent your interests and protect you from CPS powers when you’re in court with CPS. This is a huge clue that even the courts recognize that you, the non-offending parent, are in an adversarial relationship with CPS and that you need legal protection from CPS powers.

Another way to look at this is to understand that the only special power authorized to the CPS/juvenile court system is a power that can hurt you badly, i.e., the power to take your child. CPS is not empowered in any special way to help you. It’s true that CPS can give you referrals to various social and psychological services, but those are all things that you can do for yourself. Worse yet, when CPS gives you these referrals, they are usually mandated referrals given under threat of losing your child if you don’t comply. But in terms of any unique governmental power designed to help you, the non-offending parent, CPS has nothing. CPS is not empowered to hold the perpetrator accountable, is not empowered to obtain justice for either you or your child, and is not empowered to protect you.

It’s critical that you understand that once CPS opens a case on your child, even though everyone knows you are not the abuser, you are being investigated and judged by the CPS system. And a determination is being made as to whether or not to take your child. This is not a friendly relationship. You are in an adversarial (oppositional) relationship with CPS.

It’s worth repeating. It does not matter how helpful, encouraging, or humanitarian your individual CPS worker might be, the CPS system is NOT your friend. They are investigating you. You are under threat of losing your child.

NOTE: The CPS system was established in the middle of last century at a time when women’s and children’s rights within the family were not well established. Family violence was not viewed as a crime, i.e. was not viewed as a serious offense against society. A man’s home was his castle, and women and children were his legal inferiors. CPS was structured in a way to conform to these very patriarchal views, and, for the most part, CPS structure and operation remains legally locked into those outdated and oppressive modes today.

Categories: Abuse by CPS Tags: ,

CPS/Juvenile Court Decisions are Made on the Lowest Judicial Standard of Evidence


At best, CPS/juvenile court Decisions are Made on the Lowest Judicial Standard of Evidence, the ‘Preponderance of the Evidence’ Standard, i.e. 51% of the Evidence. The void of evidence and rigor in the CPS/juvenile court system leaves the decision making process wide open to the virtually unchecked influence of mistakes, bias, discrimination, prejudice, vengeance, hearsay, junk science, nonsense, and arbitrariness of all kinds. (The one exception to this is that a final termination of parental rights usually requires a ‘clear and convincing’ standard of evidence, which is still a much lower standard than the ‘beyond a reasonable doubt’ standard of the criminal system.)

When CPS seeks to establish the abuse, remove a child for up to 18 months, establish mandated service plans, determine visitation, etc., CPS must go into juvenile court to get these decisions authorized by the court. At first this may seem to provide the kind of oversight on CPS decisions that would make the process just, equitable, and safe from abuses. But read on.

First, the body of law governing the CPS/juvenile court system is so vague and open ended that virtually any and all decisions made by these bodies falls within the scope of the laws.

Second, at best, CPS and juvenile courts makes these decisions based on the ‘preponderance of evidence’ standard. This is the lowest judicial standard of evidence. The preponderance of the evidence standard is 51% of the evidence. It’s sometimes called the ‘more likely than not’ standard. What this means is that all CPS needs to support a decision is evidence on their side, the CPS side, which is just a sliver more than the evidence on your side. This is a far cry from the ‘beyond a reasonable doubt’ standard criminal officials must establish before they can convict someone of a crime, even a misdemeanor.

Example of Preponderance of the Evidence: The mother tells CPS she didn’t know that the stepfather was sexually molesting the daughter because the stepfather always did it while she (the mother) was watching television in another room. The CPS worker tells the court that the fact the mother was in the same house watching television while the stepfather molested the child is a good indication that the mother should have known what the stepfather was doing. Given the sloppiness of the ‘preponderance of the evidence’ standard, all the judge has to do is lean ever so slightly to the social worker’s argument, and the judge can issue a finding that the mother ‘knew or should have known’, and then based on this finding grant the CPS petition to detain the child. Which is exactly what happened in this case.

Many lawyers themselves are so scornful of the flimsy evidence standard of the CPS system they call it “a crap shoot”, or the “anything goes” standard. The problem for the mother goes beyond the fact that CPS doesn’t need much evidence against her. It also means that whatever opinion a CPS worker may have of you, the worker can usually support that opinion in court simply by fishing through the extensive family details the worker has gathered and then selecting out the one or two tidbits that favor the opinion.

Add to this the huge initial mistake many women make of thinking of CPS as their advocate or friend or counselor. They pour their hearts out to the worker, giving the worker a whole ocean of intimate information in which to fish for evidence against them.

Yes, it’s true that with all this latitude, the CPS system can actually do things right and put its full resources into helping the mother and child to get safely on their feet together. And indeed, there are plenty of cases where this is exactly what happens. But there are a number of things that makes the system tend toward abusive responses. One of these is the cardinal truth of any power. Unchecked power always tends towards abuses of that power. And the power of CPS is hugely unchecked. And worse yet, as is discussed later, it is exercised in secret.

A second thing that tends the system toward abusive and prejudicial responses is the class of the mothers themselves, and the heaping social prejudices that already prevail against them. The mothers who come to the attention of CPS are most often poor, or immigrant, or minority race, and themselves are the direct or secondary victims of family violence. The harsh realities of their lives are chaotic, frantic, and generally incomprehensible to people who don’t live them. There is so much prejudice, stereotypes, ignorance, and blame against these women floating in society that the middle class social service system is primed from the start to blame these mothers, or at the very least, to believe it’s the mothers that need to be fixed.

NOTE 1: Lessons from the Native American Community. Prior to the passage of the federal Indian Child Welfare Act of 1978, child welfare/juvenile court systems were removing up to 25% of the children from many Indian tribes, then terminating Indian parental rights, and adopting the children out to non-Indian families. Non-Indian social workers and judges were using rampant prejudicial and racist notions to justify these removals. In particular, CPS/juvenile courts were judging many traditional Indian child rearing practices to be abusive, in and of themselves. Native American peoples’ were losing so many of their children to this process, many tribes labeled these child welfare policies as genocidal.

The Indian tribes crafted the Indian Child Welfare Act with the aim of stopping this systematic removal of their children. In so doing, the Indians keenly understood how the use of the ‘preponderance of evidence’ standard gave free reign to the prejudices, racism, and arbitrary factors that were being used to justify taking their children. They understood that the more oppressed a person is the more they need a high standard of evidence to protect them from governmental abuse. So, among other things, the Indian Child Welfare Act requires that CPS/juvenile courts must use the stricter ‘clear and convincing’ standard of evidence before the state can put an Indian child in temporary foster care, and must use the even stricter ‘beyond a reasonable doubt’ standard of evidence before the court can order termination of Indian parental rights. The act also requires that at any termination hearing, there must be expert witness testimony on Indian culture and child rearing.

We feel strongly that these same protections should be extended to all who come before CPS, since most all of these families are members of historically oppressed groups.

5. The Flimsy ‘Preponderance of the Evidence’ Standard is Bad Enough, But Things are Actually Much Worse. Increasingly, the CPS/juvenile court systems are handing off their fact finding and decision making responsibilities to mediators, evaluators, and even to CASA volunteers, all of whom operate on NO standard of evidence at all.

There’s no doubt that the juvenile courts have become increasingly stressed over the last few decades as victims of family violence have emerged to seek help for their plights. But instead of adding resources to properly meet the need, the CPS/juvenile court system, like the family court system, has handed off more and more of its fact finding and decision making responsibilities to a whole phalanx of psychologists, mediators, evaluators, and even to volunteers.

These are court janitors, really, brought aboard to mop up the judicial mess made by women and children who have found a way to make their needs and outrage heard. When a case becomes complicated or contentious, or is just more work than the judge wants to handle, the judge simply turns the case over to one of these evaluators to look into the case and come back to the judge with a set of recommendations. In nearly all cases, juvenile court judges blindly rubber stamp these recommendations with no further ado.

What is absolutely critical to understand is that once handed off to these evaluators, you have been ushered out the court’s back door, outside the rule of court law, and completely unprotected by rules of evidence. These evaluators operate under NO standard of evidence. NO rules of admissibility. NO legal protections at all. Hearsay, psychobabble, prejudice, lies, gossip, it all comes in. And it’s often all against you because the perpetrators are usually expert manipulators and liars, and, in addition, they have likely already poisoned the social relationships around you. This is why it’s the non-offending parent who most needs strict rules of evidence for protection, and is most hurt by their absence.

NOTE 1 – CASA Volunteers – But it gets even worse. Many juvenile courts across the country are now handing off official fact finding and decision making responsibilities in these cases to CASA volunteers, people who are only required to have 30 hours training. And the juvenile courts are usually assigning these volunteers to the most egregious and complex cases of child abuse.

The public has been thoroughly wooed to the feel good idea of having CASA volunteers to ‘protect the interests of the child’ in these cases. Indeed, there is great benefit for the child to be assigned a special person to talk to and even to advocate for the child through this process.

The whole CASA program would be just fine if it ended there. But juvenile courts routinely swear these volunteers in as official court fact finders (investigators), as representatives of the child’s stated interests, as representatives of the child’s best interests, and, as formulators of recommendations to the court as to the best disposition of the child. A recent national study, the Packard Foundation funded Caliber Study, finds that juvenile court judges adopt ALL the recommendations of the CASA volunteers in over 60% of cases.

This is a complete mockery and travesty of any and all notions of justice, and is particularly contemptful of mother’s and children’s rights. For so many reasons. But just for one, imagine if your surgeon sought out and took the recommendation of whether to amputate your leg from a volunteer with 30 hours training. You would be outraged! And you would never deal with this surgeon again. Yet this is exactly what juvenile court judges across the country are doing on the question of whether or not to remove the child from the mother, in the most complex and egregious of cases. They are turning over their fact finding, evaluation, and decision making responsibilities by swearing in persons with 30 hours training to act in any or all these official capacities.

The courts say they are doing this because they want to be sure to hear the children’s voices. But you only have to think for a moment to realize what the courts are really doing is avoiding the costs of a professional investigator, expert, or professional representation that is minimally needed to guarantee even minimal judicial standards for children.

And these courts have the nerve to accuse the mothers of failure to protect!

6. Both the Federal and State Welfare Law Governing the CPS/Juvenile court System are Full of Vague, Non-mandatory Language, a Fact Which Further Promotes the ‘Anything Goes’ Atmosphere of CPS Proceedings. In addition, these laws almost always refer to the parents as an undifferentiated single unit, “the parents’, a fact which puts a legal lock on viewing the non-offending parent with as much culpability as the abusive parent. Only recently has the legal language begun to recognize the existence of the ‘non-offending parent’ as separate or unique from the offending parent.

As you read through the federal and state law governing child protective services you can see features of the law that further help explain the frequent arbitrary and biased actions of these agencies. Here are just two.

Federal and state welfare law governing child protective services are vague, nonspecific, and use mostly non-mandatory language. For example, federal law ‘encourages’ child welfare agencies to provide their materials in languages other than English. It does not mandate that they do so. As such, many, if not most, non-English speaking mothers receive their CPS reports, their service plans, and notices in English only. Another example is that welfare law states a ‘preference’ for family reunification, and says social workers shall make ‘reasonable efforts’ to provide services that allow the family to stay together.

This kind of language in the law leaves so much wiggle room that virtually anything the system decides will fall within the law, a fact which further magnifies the difficulties for a non-offending parent trying to defend herself or appeal these decisions.

A second feature that runs throughout child welfare law is that it constantly refers to ‘the parents’ as an undifferentiated entity. There’s very infrequent distinction in child welfare law between the offending and non-offending parent. In fact, if you were an alien from outer space reading this law, it would be a while before it even dawned on you that “the parents” are two separate human beings. This dubious framework stems from the archaic patriarchal view of marriage of not very long ago that the two become one and the one is the man.

Naturally, this constant reference to “the parents” helps cement the system’s huge blind spot to a woman’s predicament when her partner is abusive. Clearly, the law can’t see her more as a victim of the abuser, if the legal language lumps her in with the abuser. If the father is a domestic violence perpetrator, the mother, too, is automatically “engaging in domestic violence”, which is precisely the language the system has used to justify taking the children from mothers who are victims of domestic violence. Legal recognition and distinctions between the offending and non-offending parent are coming at a snail’s pace.

7. The CPS/Juvenile Court System Operates in Secrecy Off the Public Record. This secrecy fans the flames of the system’s other tendencies to abuse.

The reason that CPS/Juvenile Court findings, proceedings, mandates, and actions take place off the public record is ostensibly to protect the privacy of the child and family in what is viewed as a private family matter. But one certainly must ask, who really has been more protected by this secrecy, the CPS system or the families it serves?

Nothing fans the flames of governmental abuse like governmental secrecy. Secret files, secret evidence, secret accusations, secret proceedings are a sure fire formula for allowing abuses to thrive and expand throughout the system. Since its inception, CPS/juvenile court activities have been off the public record with the exception of only a few states. The involved parents are informed. But, to date, neither the public nor any public watchdog has been allowed scrutiny or oversight of the handling of these cases.

Fortunately, it looks like there is the possibility this may change. In 2005, The National Council of Juvenile and Family Court Judges voted approval of presumptively open hearings with discretion of courts to close. This isn’t yet law, but it’s a big step in that direction. As part of the resolution the judges wrote the following,

“Open court proceedings will increase public awareness of the critical problems faced by juvenile and family courts and by child welfare agencies in matters involving child protection, may enhance accountability in the conduct of these proceedings by lifting the veil of secrecy which surrounds them, and may ultimately increase public confidence in the work of the judges of the nation’s juvenile and family courts.”

We would probably word this a little differently, ‘Open court proceedings will increase public awareness of the critical problems faced by children and non-offending parents in matters involving child protection,…..’

8. Most all CPS/juvenile court Systems deal ONLY with Intra familial Child Abuse. This schism between the way society deals with child abuse perpetrated by a family member versus child abuse perpetrated by an ‘outsider’ points out a staggering hypocrisy in the rhetoric about treating child abuse seriously. Behind the rhetoric is a child welfare and police system that in reality works hand in hand to let most child abusers walk free.

Many people are very surprised when they call CPS to report a child abuse case perpetrated by a neighbor, a priest, a stranger, or by any one outside the family. CPS tells the caller they don’t handle these cases. They only respond to cases in which the perpetrator is a family member. So in most cases in which the perpetrator is not a family member, CPS tells the caller they’ll need to report to police.

Another thing that may surprise you is that if you call police to report a case of child abuse perpetrated by a family member, police will often tell you should report the case to CPS. Granted police could take the report if they wanted to, and they should take the report. But police themselves are all too often on the same philosophical page as CPS. They too often believe that when fathers ‘grow their own victim’, the fathers shouldn’t be held accountable like other offenders.

And another thing. Even if police do take a report of sexual abuse perpetrated by a family member, chances are very good that the perpetrator, even if convicted, will get off lightly compared to an outside-the-family perpetrator. California law, like the law in many states, maintains gaping legal loopholes where, prosecutors can, and frequently do, charge intra familial child sex abuse under different codes which allow the family offenders much lighter sentences. In addition, the law allows convicted intra familial child sex offenders to be given probation, different from outsider child sex offenders who must go to prison. And the law allows convicted intra familial child sex offenders to stay off the state’s public registered sex offenders lists, also unlike ‘outside’. (For a good discussion of the legal loopholes for fathers and other family members who sexually molest their children see Child Sexual Abuse and the State by Ruby Andrew at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=904100)

There isn’t a civic leader out there that doesn’t publicly rage to the heavens about what monsters child molesters are, and how these ‘animals’ should be strung up at the crack of dawn. But, remember, the overwhelming majority of all child sex abuse is perpetrated by family members. What this means is that, in reality, we have a system that publicly beats its chest over the small percentage of child molesters who attack someone else’s child, while by legal slight of hand that same system lets the vast majority of child molesters go free. Not by accident, but by legal and institutional design. What’s perhaps most telling is that, at least in California, these legal loopholes for intra familial perpetrators have been widened over recent years, rather than tightened.

Or to put it another way, the more women and children have made demands on the system to stop family violence, the more the system has created ways to look good while paving the perpetrator’s escape. The patriarchy with all its bluff and bluster to the contrary, still supports the notion that a man’s home is his castle, and that his children are his to do with as he pleases. Unfortunately, CPS, with its hold-no-perpetrators-accountable system, is a vital part of the machinery for perpetuating these archaic and oppressive beliefs.

http://www.justicewomen.com/tips_bewarechildprotectiveservices.html#partone

HOW THE EMERGENCY REMOVAL POWER IS ABUSED

March 4, 2010 4 comments

This case just serves to prove that any child can be led, and misled as well as minipulated by those who are in charge. This five year old girl was mentally challenged and her teacher as well as Child Protective Services minipulated and led her into confessions of being abused, when she probably didn’t even understand what she was being told. This is just one way that the state collects children for their aution block. The get the children away from their parents and question them without counsel. Teacher”s also have this habit. Things are then assumed, and put into play that are not true, families are torn apart and destoryed simply because the state wants to fill its cofers.

The State says it has a “compellilng interest in children.” My question is what is that compelling interest other than financial gain? If they really had a compelling interest they would do everything in their power to keep families together. They would help with the state funding for houseing (Section 8) jobs, etc.

Their only compelling interest is the fact that the state earns between 4000.00 and 6000.00 per child it snatches from parents. In this case the foster home stood to earn quite a bit of money because the child was challenged. The compelling interest is all about the money.

HOW THE EMERGENCY REMOVAL POWER IS ABUSED

State law gives ACS workers the power to remove children from their homes entirely on their own authority. That enormous, unchecked power is supposed to be used only when the worker considers the case an emergency and doesn’t have time to get a court order.

But in response to a federal lawsuit, ACS admitted that its workers use this power routinely, whether there really is an emergency or not.

The impact on children can be seen in the harm done to the child at the center of the lawsuit.

Sarah Tenenbaum was five years old, and developmentally delayed when her trauma began. After a barrage of leading questions from a Kindergarten teacher, Sarah made comments that the school interpreted as alleging sexual abuse by her father.

Two child protective workers made an unannounced visit to the home on a Friday, stripsearched Sarah and her brother, questioned them both, found nothing wrong and left. They also lied about why they were there, never mentioning any allegation of sexual abuse. Though they claim they told Sarah’s father to call their office on the following Monday, the parents say they received no such instruction – they didn’t even get a phone number.

All weekend, the city took no action on what it later would claim was an �emergency.� Then on Monday, child protective workers visited the school. Still, no action was taken.

Then suddenly on Tuesday morning, four days after the investigation began, the case allegedly turned into an �emergency� – solely because Sarah’s father didn’t make a phone call he says he never was told to make. And even if he had been told to call, the father had no way to know such a call was urgent since he was never told the real reason for the investigation.

With neither permission from the a parents nor an order from the court, child protective workers converged on Sarah’s school. Suddenly the five-year-old was torn away from teachers, classmates, and friends. She was forced into a car with a stranger and driven to a huge hospital.

There she waited for hours, amid strangers, for a medical examination. Finally two doctors she had never met before, a pediatrician and a gynecologist, conducted an examination that included the insertion of a cotton swab into Sarah’s vagina and anus. Through it all – the seizure, the waiting, and the examination, Sarah had no mother, no father, no one she knew at all to comfort her.

No evidence of abuse was found, Sarah was returned to her parents that night, and the case ultimately was ruled unfounded.

Citing the lower court, the U.S. Court of Appeals for the Second Circuit ruled that �Sarah, almost certainly, did, in fact, experience psychological injury� at the hands of the City.

ACS admitted that the way it treated Sarah was nothing unusual. ACS admitted it is standard operating procedure to bypass the courts when taking away children, even when there is plenty of time to get a court order. As the Appeals Court noted in its decision: �at oral argument on this appeal, counsel for [ACS], when asked whether the City condoned the defendants’ actions, responded �Yes, and they do it routinely. That is the policy.’”

The court decision was scathing in its denunciation of ACS’ approach. �If, irrespective of whether there is time to obtain a court order, all interventions are effected on an �emergency’ basis without judicial process � due process for the parents and their child evaporates,� the court ruled. �If officers of the State come to believe that they can never be questioned in a court of law for the manner in which they remove a child � it is inevitable that they will eventually inflict harm on the parents, the State and the child� [emphasis in original].� [i]

ACS’ first reaction was to defy the court. The agency put out a memo telling workers to change nothing. Then it reconsidered in 2003, modifying the memo. There has been some improvement, but ACS still abuses the emergency removal power regularly. [ii]

[i] Tenenbaum v. Williams 193 F. 3d 581 (2d Cir., 1999)

[ii] Personal communication, Carolyn Kubitschek, counsel for plaintiffs, Tenenbaum v. Williams .

Illegal Entry by CPS and Police Officers

March 4, 2010 1 comment

According to the judge who ruled in this case, the tip by the unknown person who stated the front porch was cluttered was not enough grounds to enter the defendants home and seize their children. CPS stated they did not need a warrant because they did not search and seize, when in fact they did. They seized the children. They also stated they had never been trained in fourth amendment rights so they were exempt. The officers stated they should be exempt because they were under the impression that CPS didn’t need a warrant. The judge’s response was that was not a defense and the officers should have known better.

William Webb

Cherri Webb

Yukon, Oklahoma

IN THE DISTRICT COURT OF CANADIAN COUNTY

STATE OF OKLAHOMA

OKLAHOMA DHS,

(on behalf of the minor children

May, John, and Ann)

Plaintiff

versus

WILLIAM WEBB and CHERRIE WEBB

Defendants

Case No. JD 2004– 19

DEFENDANT’S MOTION TO DISMISS

Defendants, Cherrie and William Webb (parents of the minor children John, Mary, and Ann of Oklahoma) respectfully request that, under the provisions of 12 O.S. §2012, this Court dismiss the above-styled and numbered case on the following grounds:

1 Failure to show cause within the prefixed timeframe or anytime thereafter.

2 Violation of the Webb Family’s Constitutionally guaranteed and protected rights.

3 Failure to comply with DHS Policy.

4 Perpetrating fraud upon the Court.

5 DHS interference in the Webb family is a continuing danger.

Defendants Webb and Webb would further show the Court that they have filed a Brief in support of this Motion.

Respectfully submitted,

________________________

William Webb

Cherrie Webb

Memorandum of Authorities In Support of Motion to Dismiss

Statement of the Case

Plaintiff Canadian County DHS Child welfare specialist , Gabrielle Smart, entered the residence of William and Cherrie Webb on March 11 2004 at 430AM with five police officers. She did not present any identification. The police officers admitted that they did not have a warrant and that they were removing the minor children Trevour Webb and Caitlin Reed from the home and placing them into protective custody. Neither the police officers or Gabrielle Smart gave a reason for this action. Oklahoma City Police Officer Raines threatened the Webb parents that they would be arrested if they resisted or did not assist the police in the removal of the children from the home.

Claim

DHS alleges that the minor children are deprived based on physical and emotional abuse by the mother and failure to protect by the father.

Defendant

William and Cherrie Webb are parents of the minor children, Celeste Bessenbacher, Caitlin Reed and Trevour Webb

Relief Sought

The relief DHS requests is have the minor children placed in DHS custody and the Webbs to pay child support.. The Webbs are requesting the immediate dismissal of this action as well as return of their 17yo daughter who is currently in Canadian County DHS Custody.

DEFENDANT’S POSITION

It is Defendant’s position that:

The seizure of the children by Gabrielle Smart,child protective services and the Oklahoma City police department was a violations of the Webbs 4th Amendment Rights.

The entry into the Webb home for the purpose of “protective custody” of the children in the home violated the 4th and 14th Amendments rights of the Webbs.

That Gabrielle Smart violated Oklahoma DHS Policy and US Federal Law and Oklahoma state statutes by failing to identify herself with proper documentation.

That law enforcement officers failed to obtain a warrant before entering the Webb home failed to reveal the reason for the removal of the children from the Webb home.

“Best interest of the children” is not served when children are coerced from their beds based on false and unsubstantiated allegations of child abuse.

Ten judicial days is adequate for substantiation of any allegations requiring protective custody and emergency removal of children from their home.

By not immediately informing the Webbs of the allegations against them, the Oklahoma City Police officers and Gabrielle Smart violated the 6th Amendment rights of the Webbs.

By not conducting a thorough and proper investigation, Canadian County DHS has violated the order of this Court as well as departmental procedure and practices.

By not following through with the proposed “safety plan”, Canadian County DHS has shown that harassment of the Webbs is of greater importance than monitoring the well-being of stated minor children.

By actively promoting distance between the minor child CeLeste with her siblings and parents, Canadian County DHS has created trauma and harm for the Webb family.

By allowing CeLeste Bessenbacher to continue a relationship with an older unsavory character, Canadian County DHS has placed her well-being and future in peril.

The following arguments and authorities are presented in support of Defendant’s

position.

Points and Authorities in Support of Dismissal

Tables of Authorities Cited herein:

List of Constitional provisions cited herein:

14th Amendment 1

Warrant Clause of the 4th amendment. 1

List of Cases cited herein:

K.H. through Murphy v. Morgan, 7th Cir. (1990) 1

Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999)
1

Hurlman v. Rice (2nd Cir. 1991)
1

Troxel et vir. v. Granville certiorari to the supreme court of washington No. 99-138. Argued January 12, 2000–Decided June 5, 2000 1

Walsh v. Erie County Dept. of Job and Family Services 1

List of statutes cited herein:

340:75-3-8. Investigation protocol 1

Washington Rev. Code §26.10.160(3) permits “[a]ny person” to petition for visitation rights “at any time” 1

§ 2151.421 of the Ohio Revised code 1

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1. The seizure of the children by Gabrielle Smart,child protective services and the Oklahoma City police department was a violations of the Webbs 4th Amendment Rights.

The United States Court of Appeals for the Ninth Circuit said it best:

“The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.” Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999)

CPS MUST by law comply with the “Warrant Clause” as required by the Constitution and the Federal Courts whereas they are “governmental officials” and are subject to the Constitution as are the police. There are NO EXCEPTIONS to the Constitution for DHS.
According to Walsh v. Erie County Dept. of Job and Family Services, 3:01-cv-7588.

The social workers argued, “the Fourth Amendment was not applicable to the activities of their social worker employees.” The social workers claimed, “entries into private homes by child welfare workers involve neither searches nor seizures under the Fourth Amendment, and thus can be conducted without either a warrant or probable cause to believe that a child is at risk of imminent harm.”

The court disagreed and ruled:

“Despite the defendant’s exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose request to enter, however benign or well-intentioned, are met by a closed door.”

The Court also stated “The Fourth Amendment’s prohibition on unreasonable searches and seizures applies whenever an investigator, be it a police officer, a DCFS employee, or any other agent of the state, responds to an alleged instance of child abuse, neglect, or dependency.” The social worker’s first argument, shot down by the court. The social workers then argued that there are exceptions to the Fourth Amendment, and that the situation was an “emergency.” They state, the “Defendants argue their entry into the home, even absent voluntary consent, was reasonable under the circumstances. They point to: the anonymous complaint about clutter on the front porch; and the plaintiff’s attempt to leave.These circumstances, the defendants argue, created an ‘emergency situation’ that led Darnold and Brown reasonably to believe the Walsh children were in danger of imminent harm. (Thus is the old “emergency” excuse that has been used for years by social workers.) The Court again disagreed and ruled:

“There is nothing inherently unusual or dangerous about cluttered premises, much less anything about such vaguely described conditions that could manifest imminent or even possible danger or harm to young children. If household ‘clutter’ justifies warrant less entry and threats of removal of children and arrest or citation of their parents, few families are secure and few homes are safe from unwelcome and unjustified intrusion by state officials and officers.”

The Court went on to rule, “They have failed to show that any exigency that justifies warrantless entry was necessary to protect the welfare of the plaintiff’s children. In this case a rational jury could find that ‘not evidence points to the opposite conclusion’ and a lack of ‘sufficient exigent circumstances to relieve the state actors here of the burden of obtaining a warrant.”

2. The entry into the Webb home for the purpose of “protective custody” of the children in the home violated the 4th and 14th Amendments rights of the Webbs

Walsh v. Erie County Dept. of Job and Family Services, 3:01-cv-7588.

The social workers then argued that they are obligated under law to investigate any reported case of child abuse, and that supersedes the Fourth Amendment. They argued, “Against these fundamental rights, the defendants contend that Ohio’s statutory framework for learning about and investigation allegations of child abuse and neglect supersede their obligations under the Fourth Amendment. They point principally to § 2151.421 of the Ohio Revised code as authority for their warrantless entry into and search of the plaintiff’s home. That statute imposes a duty on certain designated professionals and persons who work with children or provide child care to report instances of apparent child abuse or neglect.”

The Court disagreed and ruled: “The defendant’s argument that the duty to investigate created by § 2151.421(F)(1) exempts them from the Fourth Amendment misses the mark because, not having received a report described in § 2151.421(A)(1)(b), they were not, and could not have been, conducting an investigation pursuant to § 2151.421(F)(1).” The social worker’s third argument, shot down by the court.

The Court continues with their chastisement of the social workers:

“There can be no doubt that the state can and should protect the welfare of children who are at risk from acts of abuse and neglect. There likewise can be no doubt that occasions arise calling for immediate response, even without prior judicial approval. But those instances are the exception. Other wise child welfare workers would have a free pass into any home in which they have an anonymous report or poor housekeeping, overcrowding, and insufficient medical care and, thus perception that children may be at some risk.”
The Court continues: “The anonymous phone call in this case did not constitute a ‘report’ of child abuse or neglect.” The social workers, Darnold and Brown, claimed that they were immune from liability, claiming qualified immunity because “they had not had training in Fourth Amendment law.” The police officers, Chandler and Kish, claimed that they couldn’t be sued because they thought the social workers were not subject to the Fourth Amendment, and they were just helping the social workers. The Court disagreed and ruled: “That subjective basis for their ignorance about and actions in violation of the fourth Amendment does not relieve them of the consequences of that ignorance and those actions.” The Court also stated: “The claims of defendants Darnold, Brown, Chandler and Kish of qualified immunity are therefore denied.”

Police officers and social workers are not immune for coercing or forcing entry into a person’s home without a search warrant. Calabretta v. Floyd (9th Cir. 1999)

The mere possibility of danger does not constitute an emergency or exigent circumstance that would justify a forced warrantless entry and a warrantless seizure of a child. Hurlman v. Rice (2nd Cir. 1991)

Police officer and social worker may not conduct a warrantless search or seizure in a suspected child abuse case absent exigent circumstances. Defendants must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonable necessary to alleviate the threat. Searches and seizures in investigation of a child neglect or child abuse case at a home are governed by the same principles as other searches and seizures at a home. Goodv. Dauphin County Social Services (3rd Cir. 1989)

Both Canadian County DHS and Oklahoma City Police Department officers lacked subject matter jurisdiction. When deciding to place the Webb children into protective custody, the Oklahoma City Police officers did not consider that the child was not being truthful with her allegations. They did not consider the previously filed police reports in two different cities. They did not investigate that the runaway child would lie to protect the people who harboured her, contributed to her delinquency and assisted her in her inappropriate behavior and duplicity.

3. That Gabrielle Smart violated Oklahoma DHS Policy and US Federal Law and Oklahoma state statutes by failing to identify herself with proper documentation.

INSTRUCTIONS TO STAFF 340:75-3-8

1) In every contact, the CW worker makes the disclosures in (A) – (D) of this paragraph to all persons being interviewed. Information which must be disclosed, before proceeding with the investigation protocol, includes:

(A) employee identification card;

(B) the agency represented;

(C) the lawful purpose of the investigation; and

(D) answers to questions that the person may have.

4. That law enforcement officers failed to obtain a warrant before entering the Webb home failed to reveal the reason for the removal of the children from the Webb home.

The 9th Circuit Court of Appeals case, Calabretta v. Floyd, 9th Cir. (1999) “involves whether a social worker and a police officer were entitled to qualified immunity, for a coerced entry into a home to investigate suspected child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency.”

Both Canadian County DHS and Oklahoma City Police Department officers lacked subject matter jurisdiction.

5. “Best interest of the children” is not served when children are coerced from their beds based on false and unsubstantiated allegations of child abuse.

The police officers placed the runaway, Mary, into their custody at 12:15AM on March 11th, 2004. They did not come to the Webb home until 4 hours later. If there was “imminent danger” and a need for protective custody, the children that were in the home could have been picked up via dispatched officers immediately. The fact that it was nearly 5 hours later, shows that the Oklahoma City Police Department could have obtained a warrant.

At this point, an investigation should have begun to corroborate allegations of child abuse. The Webb family has never been interviewed by the Oklahoma City Police Department. Canadian County DHS has had ample opportunity to interview the two children that remain at home, but have not done so.

Ten judicial days is adequate for substantiation of any allegations requiring protective custody and emergency removal of children from their home.

340:75-3-8. Investigation protocol

Revised 7-12-01

(a) Purpose of investigation. The investigation begins the process of direct involvement with the family. It sets the stage for problem identification, service provision, and the development of a helping relationship. The investigation takes into account the dynamic nature of the family situation and looks beyond the allegation to identify risk of harm to the children. The CW worker’s investigation is directed toward identifying and understanding the elements that create risk. The investigation must be as thorough as possible as it relates to risk and must consider the alleged abuse or neglect, each child, the PRFC, and family functioning.

(3) In summary, the CW worker’s interview is aimed at obtaining information regarding the alleged abuse or neglect, the functioning of the child(ren), the parents, and the family. Information regarding the alleged abuse or neglect includes:

(A) what happened;

(B) when and where it occurred;

(C) the child’s current condition;

(D) other effects of abuse or neglect; and

(E) who else has information.

Within the 10(ten) judicial days. Canadian County DHS workers refused to interview collateral contacts that would present exculpatory information and evidence that allegations were made in bad faith. According to DHS Policy 340:75-3-8 (k) :

(k) Interviewing collateral contacts. A collateral contact is an individual who has or is likely to have pertinent information about the child(ren) and the family. Interviews with collaterals are necessary in conducting a thorough investigation and in assessing risk. Collaterals may include relatives, neighbors, law enforcement, teachers, physicians, nurses, or other informed individuals. Minor collaterals are not interviewed without first obtaining permission from their parent(s).

By not immediately informing the Webbs of the allegations against them, the Oklahoma City Police officers and Gabrielle Smart violated the 6th Amendment rights of the Webbs.

Children may not be removed from their home by police officers or social workers without notice and a hearing unless the officials have a reasonable belief that the children were in imminent danger. Ram v. Rubin, (9th Cir. 1997)

Absent extraordinary circumstances, a parent has a liberty interest in familial association and privacy that cannot be violated without adequate pre-deprivation procedures. An exparte hearing based on misrepresentation and omission does not constitute notice and an opportunity to be heard. Procurement of an order to seize a child through distortion, misrepresentation and/or omission is a violation of the Forth Amendment. Parents may assert their children’s Fourth Amendment claim on behalf of their children as well as asserting their own Fourteenth Amendment claim. Malik v.Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)

By not conducting a thorough and proper investigation, Canadian County DHS has violated the order of this Court as well as departmental procedure and practices.

Children are not well served if they are subjected to investigations base on false allegations. Little children can be traumatized by investigations in ways that are unintended by the social worker. However, to a small child all they know is that a strange adult is taking off their clothing while their mother is sobbing in the next room in the presence of an armed police officer. This does not seem to a child to be a proper invasion of their person –quite different, for example, from an examination by a doctor when their mother is present and cooperating. The misuse of anonymous tips is well known. Personal vendettas, neighborhood squabbles, disputes on the Little League field, child custody battles, revenge, nosey individuals who are attempting to impose their views on others are turned into maliciously false allegations breathed into a hotline.

By not following through with the proposed “safety plan”, Canadian County DHS has shown that harassment of the Webbs is of greater importance than monitoring the well-being of stated minor children.

The Court ordered DHS to initiate a “safety plan” in order to grant the minor children Caitlin Reed and Trevour Webb to their parents physical custody. The plan was written and signed by the Webbs, but never initiated by DHS. DHS has visited the Webb children at their home twice since March 12,2004. The children’s attorney has not called or visited the children at the home. There have been no phone calls to the Webb home. The safety plan stated that the Comprehensive Home-Based Services was to initiate contact with the Webb family within five days. This has not occurred to date. DHS has failed to comply with all parts of the safety plan.

By actively promoting distance between the minor child CeLeste with her siblings and parents, Canadian County DHS has created trauma and harm for the Webb family.

Children have a Constitutional right to live with their parents without government interference. Brokaw v. Mercer County, 7th Cir. (2000) A child has a constitutionally protected interest in the companionship and society of his or her parents. Ward v. San Jose, 9th Cir. (1992) State employees who withhold a child from her family infringe on the family’s liberty of familial association. K.H. through Murphy v. Morgan, 7th Cir. (1990)On May 25th, 2004 Marvla Robinson stated that Mary had a choice in whether or not to pursue family visitation. Mary has attended 4- H functions. She has been visited by persons that her parents do not approve of and who encouraged her delinquent behavior.

John and Ann have been denied an opportunity to participate in interactions with their sibling.

By allowing Mary to continue a relationship with an older unsavory character, Canadian County DHS has placed her well-being and future in peril.

On Thursday, June 25, 2004. We were informed that CeLeste was in Oklahoma City with an older Muslim male that we had and still insist that she not associate. Our daughter is in danger of being unduly controlled and even abused by this man, and involved in a co-dependent relationship that is not healthy or safe for a girl of her age and inexperience. CPS is preventing the Webbs from protecting their daughter even from her own mistakes, as is the right and duty of a parent, and which any parent of any teen knows is most often the subject of great rebellion from the child. Still it is our duty and right to set the rules and control her relationships in her best interest. Since CPS is failing to protect her from those teenaged impulses which could carry lifelong or even life threatening implications. There is the REAL AND PRESENT PROBABLUILITY THAT SHE WILL BE PREGNANT and even possibly beaten or otherwise harmed as a direct result of the CPS malfeasance.

TROXEL et vir. v. GRANVILLE certiorari to the supreme court of washington No. 99-138. Argued January 12, 2000–Decided June 5, 2000

Washington Rev. Code §26.10.160(3) permits “[a]ny person” to petition for visitation rights “at any time” and authorizes state superior courts to grant such rights whenever visitation may serve a child’s best interest. Petitioners Troxel petitioned for the right to visit their deceased son’s daughters. Respondent Granville, the girls’ mother, did not oppose all visitation, but objected to the amount sought by the Troxels. The Superior Court ordered more visitation than Granville desired, and she appealed. The State Court of Appeals reversed and dismissed the Troxels’ petition. In affirming, the State Supreme Court held, inter alia, that §26.10.160(3) unconstitutionally infringes on parents’ fundamental right to rear their children. Reasoning that the Federal Constitution permits a State to interfere with this right only to prevent harm or potential harm to the child, it found that §26.10.160(3) does not require a threshold showing of harm and sweeps too broadly by permitting any person to petition at any time with the only requirement being that the visitation serve the best interest of the child.

The facts presented by DHS do not support the petition for custody.

Under Georgia’s DFCS Manual they Define the Act of Deprivation as:


My Daughter Alice Samantha Thomason was alledgely charged with Deprivation,
according to the list below she committed none of those claims. Her children were no deprived, they had a home, a warm bed, food in their stomach and clothes on their backs. At no time were her children deprived – However Jackson County DFCS listened to unreliable informants and she is now fighting for her children. Jackoson County Georgia is very depressed economically and DFCS needed the 12,000.00 they received through federal funding throuh Title IV to fill their coffers.

Under the Georgia Constitution, the superior court system has exclusive
jurisdiction over all divorce actions. Ga. Const. 1983, Art. VI, §IV, ¶ I. As a result, some
confusion often arises when deprivation is alleged in a custody battle between the
child’s parents. Juvenile courts will not accept a deprivation petition filed by one parent
against another because it is most likely an attempt to gain custody of the child by
bypassing a more stringent standard of proof necessary to modify a custody award. In
the Interest of W.W.W., 213 Ga. App. 732 (1994). All deprivation proceedings arising
between the child’s parents must be originally filed in superior court. If the superior court
judge determines that the deprivation proceeding is not a custody dispute in disguise,
the judge will transfer the deprivation issues to the juvenile court for adjudication. In the
Interest of M.A. et al., Children, 218 Ga. App. 433 (1995). Thus, during the investigation
of an allegation of deprivation, it is possible that the caseworker will have some contact
with the superior court system as well.
B. Definition of Deprivation
The code lists four circumstances in which a child can be considered “deprived”.
When the child:
1. is without proper parental care or control, subsistence, education as required by
law, or other care or control necessary for his physical, mental, or emotional
health or morals;
2. has been placed for care or adoption in violation of the law;
3. has been abandoned by his parents or other legal custodian; or
4. is without a parent, guardian, or custodian.

Texas Considers a Bill of Rights for Foster Children

March 1, 2010 3 comments

Texas Considers a Bill of Rights for Foster Children: The Texas Legislature is
considering a “foster children’s bill of rights.” Senate Bill 805 has passed the Texas
Senate, and a companion bill, House Bill 1752, is pending in the Texas House. The bill
compiles 50 existing statutory rights and rolls them into one comprehensive list. The bill
would mandate that a simplified version of this list be clearly explained, printed and
given to each foster child. It would be translated if necessary, or communicated in any
way that’s successful for a child with a disability. The legislation asserts a foster child’s
right to a safe, healthy and comfortable home that’s free of abuse, discrimination or
harassment. It would mean a foster child has the right to adequate amounts of healthy
food and appropriate medical care. The bill would allow children to attend religious
services of their choice, give them certain rights to privacy and allow participation in
extracurricular activities.
Compliance with ICWA: The following are excerpts from an article in the Sioux City
Journal:
A California Indian tribe has filed a complaint in federal court seeking to nullify the
adoption of an American Indian baby born in Sioux City. The Tyme Maidu Tribe, Berry
Creek Rancheria, of Oroville, Calif., claims in court documents that state and federal
Indian child welfare laws were not followed from shortly after the baby girl’s birth
throughout her placement for adoption with an Arizona couple.
The tribe said it was not told of the infant’s removal from her mother or her placement
with the couple, even though it had notified a Sioux City lawyer involved in the adoption
three months before the birth that tribal homes were available for placement of the child
and that the tribe would not agree to placement in a nonpreferred home. The tribe also
said it was not notified of several hearings in Woodbury County Juvenile Court and an
Arizona court. “The Juvenile Court affirmatively denied the tribe its federal right to
effectively participate in the termination proceedings,” the tribe said in the complaintThe tribe said Sioux City attorney Maxine Buckmeier ignored its requests for a
placement with the mother’s extended family and made “little or no effort” to check for
other possible placements with the tribe. “Instead, Buckmeier placed (the girl) with the
(adoptive couple), her personal clients, with the goal of the (couple) adopting (her),” the
petition said.
The tribe is seeking a judge’s order that the child be returned to the tribe’s custody, that
the Woodbury County Juvenile Court and Buckmeier comply with all Indian child welfare
laws in future custody proceedings concerning the child and provide the tribe with its
right to intervene in all hearings.
According to the petition, filed in U.S. District Court in Sioux City, Shannon Edwards, an
enrolled tribal member, gave birth to the girl June 6. Three days later, she signed a
release of custody to Buckmeier. According to the ICWA, that consent was invalid
because the law requires at least 10 days after birth before such consent can be given.
Buckmeier transferred possession of the child to an Arizona couple and on June 19
obtained a referral to place the child in Arizona
.The tribe said in the petition that it was not notified of any action taken in the case until
it was served with a petition for termination of parental rights on June 26, after the child
was placed in Arizona. The tribe said it was denied participation by telephone in a Nov.
1 hearing on that petition. Edwards’ parental rights were terminated Dec. 26. The tribe
has appealed that ruling to the Iowa Supreme Court. The tribe has also appealed a
juvenile court order overruling the tribe’s motion to vacate the adoption. Both appeals
are pending.
As the case was proceeding in Woodbury County, the adoptive couple filed an adoption
petition on Oct. 5 in Maricopa County, Ariz. Five days later, Edwards appeared before a
judge in Coconino County, Ariz., and consented to the adoption and waived the ICWA
preferred placement preferences. The tribe said that waiver was obtained without notice
to the tribe, and those proceedings took place in a court that had no jurisdiction in the
case. The tribe also said that the couple did not notify the Arizona court of the pending
case in Iowa.
On March 26, the petition said, the couple secured an order in Arizona designating them
as the child’s adoptive parents. The tribe contends they do not have that legal status
because ICWA laws were not followed throughout the process. Granting custody to the
nonIndian couple, the petition said, would cost the girl eligibility for tribal enrollment,
which would deprive her of an entitlement to a share of tribal profits, which is currently
guaranteed at $3,000 per month plus quarterly bonuses, and eligibility for a private
education, trust fund and money for athletics, books and supplies.

Delay in Florida Adoption Case: The following are excerpts from an article in the
Florida Times-Union:
For nearly three years, a Jacksonville teenager languished in foster care while the
agency responsible for him repeatedly broke Florida law and lied in court about its
efforts to get him adopted, a judge found. In fact, the judge said, caseworkers at the
Children’s Home Society made no efforts at all to put the boy’s information on a statemandated
Internet adoption site despite telling the judge the opposite in court and in
writing.
Circuit Judge David Gooding indicated April 4 in his contempt of court order that he
plans to fine the agency, and he requested financial information to help him determine
the right amount. “Children’s Home Society engaged in prolonged, repeated and
chronic misrepresentations to this court and violations of judicial … orders to the
detriment of the child,” Gooding wrote. “This conduct … is particularly egregious
because for 32 months, this child was unknown to any prospective adoptive families.”
One of the child’s former counselors at Children’s Home Society testified in October that
the agency thought he was on the adoption exchange site but said under crossexamination
that his information hadn’t been updated since May 2005, the judge said.
But Gooding said even though Children’s Home Society told him in court, filed regular
reports and prepared court orders saying the boy was on the adoption exchange, he “is
not and has not ever been” on any state-mandated site. In light of its long history,
Gooding said, “Children’s Home Society should have known better.”
The boy has been in foster care much of his life but became eligible for adoption 30
days after his parents’ rights were terminated in January 2004, according to Gooding’s
order. Once that happened, state law required Children’s Home Society to actively seek
a permanent home through adoption, including placement of his picture and
biographical information on the adoption exchange site. His status was the subject of
regular hearings in dependency court, presided over by Gooding.
Georgia Judge Halts Gay Adoption: The following are excerpts from an article in the
Georgia Blade:
Days away from her seventh birthday, a little girl named Emma Rose is currently
trapped in Georgia’s foster care system, unable to reunite with the woman who has
been her mother for almost a year — all because the mother is a lesbian. The
prospective adoptive mother, Elizabeth Hadaway, was also sentenced to 10 days in jail
earlier this month by a Wilkinson County Superior Court judge (judge Parrott) who
refused to grant the adoption in part because “the child will have a long-term exposure
to the homosexual parent’s lifestyle.”
Hadaway first began trying to adopt Emma Rose last spring at the request of the
young girl’s biological mother, Deborah Schultz, who is also a lesbian. According to
court documents and an interview with Hadaway, Schultz informed Hadaway that she
had fallen on tough times and asked Hadaway to take custody of her six-year-olddaughter. Hadaway traveled to Florida last May to pick up Emma Rose, and a month
later she was granted legal custody of the child by Wilkinson County Superior Court
Judge James Cline. A few months later, Hadaway underwent a mandatory home
evaluation by a local adoption agency, where it came out that Hadaway was a lesbian
and living with her partner of seven years.
Hadaway admitted she was in a lesbian relationship, and Judge Parrott said he
needed to do research to determine if Georgia law allowed adoptions by gay parents,
according to Hadaway. On Jan. 8, 2007, Parrott issued a ruling that denied Hadaway
the right to adopt Emma Rose and ordered the young child be returned to her
biological mother within 10 days. Parrott’s 16-page ruling is inundated with references
to Hadaway’s homosexuality, and his belief that placing Emma Rose in a lesbian home
is not in the best interest of the child.
Parrott conceded that Georgia law has no requirements relating to the sexual
orientation of adoptive parents, but accused Hadaway of attempting to “subterfuge and
sham”the court by applying as a single adoptive parent when she “seeks to
accomplish an adoption by a de facto homosexual couple.”
Parrott also argued that the constitutional amendment banning same-sex marriage
approved by Georgia voters in 2004 effectively prohibits adoptions by same-sex
couples. “[Hadaway] seeks to have her and her same-sex partner treated as a family
union or unit, the same as a married couple for the purposes of adoption,”Parrott
wrote. “Clearly, then, the unmarried homosexual union in this case would be getting a
direct benefit of marriage under Georgia adoption law: the ability to adopt.”
Parrott also ruled against placing Emma Rose with Hadaway because the young girl
would be exposed to both homosexuality and discrimination. “If the instant adoption is
approved, inevitably the child will witness both directly and circumstantially the
homosexual activity of [Hadaway] and her same-sex partner,”Parrott wrote. “There
has been no study conducted … into the isolation and stigma that the child may face
growing up in a small, rural town with two women, in whose care she was placed at the
age of six, who openly engage in homosexual relationship.”
Parrott’s ruling ordered Emma Rose to be returned to Deborah Schultz within 10 days,
or be declared a “deprived child”and turned over the Georgia Department of Family &
Children Services. Hadaway and Shultz met at a truck stop in Jeffersonville, Ga., on
Jan. 12, 2007, but Shultz refused to take Emma Rose back to Florida with her, instead
reiterating her wish for Hadaway to raise the young girl.
Prior to Parrott’s Jan. 8 ruling, Hadaway left her longtime partner and moved to Bibb
County, 70 miles south of Atlanta, which she considered more progressive and tolerant
than Wilkinson County. After Shultz refused to regain custody of Emma Rose,
Hadaway said she was encouraged by attorneys and DFCS workers to apply for an
adoption in Bibb County Superior Court.
Upon discovering that Emma Rose remained in Hadaway’s custody, Parrott issued two
more rulings: a Feb. 12 order to place Emma Rose in DFCS custody, and a March 23
ruling finding Hadaway and her attorney in criminal contempt for not following his order
to transfer custody of the child. The two women were sentenced to 10 days in jail, or
five days plus a $500 fine, but are currently appealing Parrott’s decisionCiting a report by Alicia Gregory, a doctor hired by Wilkinson County DFCS to conduct
an independent assessment of Emma Rose’s situation, Bibb County Superior Court
Judge Tilman Self ruled March 30 that Hadaway be restored custody. “Dr. Gregory
concluded, and in fact was quite adamant, that Emma’s best interests would be served
by returning Emma to [Hadaway’s] custody,”Self wrote. “Indeed, Dr. Gregory stated
that Emma’s current foster placement was the worst possible scenario for Emma.”
But when Hadaway and Wilkinson County sheriff’s deputies attempted to retrieve
Emma Rose from her foster family on April 3, they were rebuffed. “The foster family
would not turn her over to me,”Hadaway said. When the sheriff’s deputies informed
the foster family that they had a Bibb County court order demanding Emma Rose be
returned to Hadaway, the foster father allegedly called Parrott. The judge told the
officer that he was not recognizing the Bibb County order, and if Hadaway wanted
custody of Emma Rose she would have to re-apply in Wilkinson County.
Hadaway’s new lawyer — Parrott prohibited her first attorney from continuing to
represent Hadaway after he found them both in contempt — is filing a habeas corpus
claim and a writ of mandamus with the Georgia Supreme Court in an attempt to get the
Bibb County custody order enforced.

AprilStatistical Summary: During the month of April, the Iowa Supreme Court
rendered no decisions in juvenile cases. During the month of April, the Iowa Court of
Appeals rendered 19 opinions in juvenile cases. Of those 19 cases, 16 were
Termination of Parental Rights (TPR) cases and 3 were Child In Need of Assistance
(CINA) cases. Here is what happened on those cases:
TPR Cases: In all 19 of the TPR, the Court of Appeals affirmed the
termination of parental rights.
CINA Cases: In one of the Child in Need of Assistance Cases, an
appeal by a child, the Court of Appeals affirmed the trial court’s
order denying the motion to modify placement or to dismiss the
CINA petition. In another case, the Court of Appeals affirmed the
trial court’s permanency order placing guardianship with
grandparents. In the third CINA case (this case is discussed below),
the Court of Appeals reversed the trial court’s permanency order
that failed to return the child to the custody of the mother.
Evidence is Necessary: In Interest of T.R. (Iowa Court of Appeals, April 25, 2007): In
this Child in Need of Assistance case, the court, at a permanency hearing, adopted the
recommendations of two fathers and the guardian ad litem (contrary to the position ofof Appeals discussed the burden of proof in a Permanency hearing:
The State in a permanency hearing has the burden to show the
children cannot be returned. In this case, the State not only did not
meet that burden, but actually supported the return of the children to
their mother. This was not done without basis, but rather on the
recommendation of DHS. At the hearing, the State along with DHS,
the mother, and one of the three fathers, all sought the return of the
children to Tammy. The guardian ad litem and two of the fathers
“expressed concerns.” No evidence was taken. No expert
testimony or reports were admitted to rebut the recommendation of
DHS. Those expressing concern presented no evidence or
testimony. It was upon this record that the juvenile court determined
that the return of the children was not appropriate.
Where, as here, the State has not assumed the burden to show the
children cannot be returned, some other party must assume that
burden. That did not occur here. The Court, of its own volition,
ignored both the recommendation of the State and DHS. Without
any evidence recommending the continued removal of the children,
the court found that reunification was inappropriate. Where no one
has met the burden, the Court cannot find evidence of further
adjudicatory harm sufficient to deny reunification.
Placement of Other Children: In Interest of A.W. (Iowa Court of AppealsApril 25,
2007): In this Termination of Parental Rights case, the Iowa Court of Appeals held that
the continued placement of one child with a parent does not rule out a termination of
parental rights as to other children:
Where a parent is allowed to continue to parent some children, it
may nonetheless be in the other children’s best interests to
terminate parental rights. (citations omitted) DHS’s failure to
remove the new baby from Shayla’s home does not convince us that
the children could be returned to Shayla’s home.
Notice for Prior Proceedings: In Interest of J.P. (Iowa Court of Appeals, April 25,
2007): In this Termination of Parental Rights case, the Iowa Court of Appeals had to
address the issue of whether failure of proper notice in prior proceedings would interfere
with the progress of a termination proceeding:
Although it does not appear that the statutory procedures for notice
of the CINA adjudicatory, dispositional, or permanency review
hearings were strictly complied with by the State, we conclude thatthe lack of formal notice does not undermine the subsequent
termination of his parental rights. The father did received notice of
the termination petition and hearing, was present, and was
represented by counsel. (citations omitted)
The father had considerable personal contact with DHS, was
informed of the status of the adjudication and disposition, and was
offered services to comply with the case plan for reunification. At
the termination hearing, he admitted that he knew he should have
obtained legal counsel during the pendency of the CINA case.
Under these facts, the father has never challenged the adjudication
or disposition. We conclude formal notice or service of process
under section 232.88 to the father of the CINA case was waived and
did not hinder the court from proceeding with termination of his
parental rights.
Hague Convention: De Silva v. Pitts, ____ F3d _____ (10th Cir. 2007): Petitionermother
appealed a judgment of the district court denying her Hague Convention petition
for return of her son to her custody in Canada. The Federal Circuit Court approved of
language of a prior case [Shealy, v. Shealy, 295 F.3d 1117, 1121 (10th Cir. 2002)] to
explain the requirements of the Hague Convention:
The removal or retention of a child is wrongful where it is in breach
of rights of custody attributed to a person, an institution or any other
body, either jointly or alone, under the law of the State in which the
child was habitually resident immediately before the removal or
retention, where such rights were actually exercised by the parent
seeking return of the child. The petitioner bears the burden of
showing by a preponderance of the evidence that the removal or
retention was wrongful. More specifically, the petitioner must show
that: (1) the child was habitually resident in a given state at the time
of the removal or retention; (2) the removal or retention was in
breach of petitioner’s custody rights under the laws of that state;
and (3) petitioner was exercising those rights at the time of removal
or retention.
The court found that the child should not be returned in this case because of the
preference of the child. The Court stated:
Once a petitioner establishes that removal was wrongful, the child
must be returned unless the respondent can establish a defense.
(citations omitted) There are four defenses set out in the
Convention, which are narrowly construed, (citations omitted) and
which are not relevant here. There is also a fifth consideration, left
to the discretion of the judicial or administrative authority, which
allows for refusal to order the return of a child where “the childobjects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of its views.”
Sibling Visitation: In light of the recent passage and signing of the “Sibling Visitation
Bill”jointly promoted by the Joan & Lyle Middleton Center for Children’s Rights and the
Elevate™ group, the following information from the Child Welfare Information Gateway,
is of particular interest:
 Approximately 70% of children in foster care in the United States have another
sibling also in care.
 According to a 2003 study of California foster children with siblings in care, about
46% were placed with all of their siblings who were in care, and 66% were placed
with at least one sibling.
 A 2005 longitudinal analysis of placement patters of more than 168,000 foster
youth with siblings in care in New York City shoed that 43% of siblings entered
care on the same day, with another 10% entering within 30 days. 41% entered
care longer than 6 months apart, and these siblings were at the highest risk of
being separated. For siblings not entering care together. 2/3s were not placed
together initially. However, when siblings entered care together, 78% were
placed all together.
“Here’s a message to the new borns, waiting to breathe: if you believe
then you can achieve. Just look at me, against all odds ‘though life is
hard, we carry on, livin’ in the projects, broke with no lights on. To all
the seeds that follow me- protect your essence, born with less, but
you still precious.”–Tupac Shakur

Taken Straight from A Georgia DFCS HandBook


[DOCID: f:publ89.105]

[[Page 111 STAT. 2115]]

Public Law 105-89
105th Congress

An Act

To promote the adoption of children in foster care. <>

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <>

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) <> Short Title.–This Act may be cited
as the “Adoption and Safe Families Act of 1997”.

(b) Table of Contents.–The table of contents of this Act is as
follows:

Sec. 1. Short title; table of contents.

TITLE I–REASONABLE EFFORTS AND SAFETY REQUIREMENTS FOR FOSTER CARE AND
ADOPTION PLACEMENTS

Sec. 101. Clarification of the reasonable efforts requirement.
Sec. 102. Including safety in case plan and case review system
requirements.
Sec. 103. States required to initiate or join proceedings to terminate
parental rights for certain children in foster care.
Sec. 104. Notice of reviews and hearings; opportunity to be heard.
Sec. 105. Use of the Federal Parent Locator Service for child welfare
services.
Sec. 106. Criminal records checks for prospective foster and adoptive
parents.
Sec. 107. Documentation of efforts for adoption or location of a
permanent home.

TITLE II–INCENTIVES FOR PROVIDING PERMANENT FAMILIES FOR CHILDREN

Sec. 201. Adoption incentive payments.
Sec. 202. Adoptions across State and county jurisdictions.
Sec. 203. Performance of States in protecting children.

TITLE III–ADDITIONAL IMPROVEMENTS AND REFORMS

Sec. 301. Authority to approve more child protection demonstration
projects.
Sec. 302. Permanency hearings.
Sec. 303. Kinship care.
Sec. 304. Clarification of eligible population for independent living
services.
Sec. 305. Reauthorization and expansion of family preservation and
support
services.
Sec. 306. Health insurance coverage for children with special needs.
Sec. 307. Continuation of eligibility for adoption assistance payments
on behalf of children with special needs whose initial
adoption has been dissolved.
Sec. 308. State standards to ensure quality services for children in
foster care.

TITLE IV–MISCELLANEOUS

Sec. 401. Preservation of reasonable parenting.
Sec. 402. Reporting requirements.
Sec. 403. Sense of Congress regarding standby guardianship.
Sec. 404. Temporary adjustment of Contingency Fund for State Welfare
Programs.
Sec. 405. Coordination of substance abuse and child protection services.
Sec. 406. Purchase of American-made equipment and products.

TITLE V–EFFECTIVE DATE

Sec. 501. Effective date.

[[Page 111 STAT. 2116]]

TITLE I–REASONABLE EFFORTS AND SAFETY REQUIREMENTS FOR FOSTER CARE AND
ADOPTION PLACEMENTS

SEC. 101. CLARIFICATION OF THE REASONABLE EFFORTS REQUIREMENT.

(a) In General.–Section 471(a)(15) of the Social Security Act (42
U.S.C. 671(a)(15)) is amended to read as follows:
“(15) provides that–
“(A) in determining reasonable efforts to be made
with respect to a child, as described in this paragraph,
and in making such reasonable efforts, the child’s
health and safety shall be the paramount concern;
“(B) except as provided in subparagraph (D),
reasonable efforts shall be made to preserve and reunify

families–
“(i) prior to the placement of a child in
foster care, to prevent or eliminate the need for
removing the child from the child’s home; and
“(ii) to make it possible for a child to
safely return to the child’s home;
“(C) if continuation of reasonable efforts of the
type described in subparagraph (B) is determined to be
inconsistent with the permanency plan for the child,
reasonable efforts shall be made to place the child in a
timely manner in accordance with the permanency plan,
and to complete whatever steps are necessary to finalize
the permanent placement of the child;
“(D) reasonable efforts of the type described in
subparagraph (B) shall not be required to be made with
respect to a parent of a child if a court of competent
jurisdiction has determined that–
“(i) the parent has subjected the child to
aggravated circumstances (as defined in State law,
which definition may include but need not be
limited to abandonment, torture, chronic abuse,
and sexual abuse);
“(ii) the parent has–
“(I) committed murder (which would
have been an offense under section
1111(a) of title 18, United States Code,
if the offense had occurred in the
special maritime or territorial
jurisdiction of the United States) of
another child of the parent;
“(II) committed voluntary
manslaughter (which would have been an
offense under section 1112(a) of title
18, United States Code, if the offense
had occurred in the special maritime or
territorial jurisdiction of the United
States) of another child of the parent;
“(III) aided or abetted, attempted,
conspired, or solicited to commit such a
murder or such a voluntary manslaughter;
or
“(IV) committed a felony assault
that results in serious bodily injury to
the child or another child of the
parent; or

[[Page 111 STAT. 2117]]

“(iii) the parental rights of the parent to a
sibling have been terminated involuntarily;
“(E) if reasonable efforts of the type described in
subparagraph (B) are not made with respect to a child as
a result of a determination made by a court of competent
jurisdiction in accordance with subparagraph (D)–
“(i) a permanency hearing (as described in
section 475(5)(C)) shall be held for the child
within 30 days after the determination; and
“(ii) reasonable efforts shall be made to
place the child in a timely manner in accordance
with the permanency plan, and to complete whatever
steps are necessary to finalize the permanent
placement of the child; and
“(F) reasonable efforts to place a child for
adoption or with a legal guardian may be made
concurrently with reasonable efforts of the type
described in subparagraph (B);”.

(b) Definition of Legal Guardianship.–Section 475 of such Act (42
U.S.C. 675) is amended by adding at the end the following:
“(7) The term `legal guardianship’ means a judicially
created relationship between child and caretaker which is
intended to be permanent and self-sustaining as evidenced by the
transfer to the caretaker of the following parental rights with
respect to the child: protection, education, care and control of
the person, custody of the person, and decisionmaking. The term
`legal guardian’ means the caretaker in such a relationship.”.

(c) Conforming Amendment.–Section 472(a)(1) of such Act (42 U.S.C.
672(a)(1)) is amended by inserting “for a child” before “have been
made”.
(d) Rule of Construction.–Part E of title IV of such Act (42 U.S.C.
670-679) is amended by inserting after section 477 the following:

“SEC. 478. <> RULE OF CONSTRUCTION.

“Nothing in this part shall be construed as precluding State courts
from exercising their discretion to protect the health and safety of
children in individual cases, including cases other than those described
in section 471(a)(15)(D).”.

SEC. 102. INCLUDING SAFETY IN CASE PLAN AND CASE REVIEW
SYSTEM REQUIREMENTS.

Title IV of the Social Security Act (42 U.S.C. 601 et seq.) is
amended–
(1) in section 422(b)(10)(B) <> –
(A) in clause (iii)(I), by inserting “safe and”
after “where”; and
(B) in clause (iv), by inserting “safely” after
“remain”; and
(2) in section 475 <> –
(A) in paragraph (1)–
(i) in subparagraph (A), by inserting “safety
and” after “discussion of the”; and
(ii) in subparagraph (B)–
(I) by inserting “safe and” after
“child receives”; and
(II) by inserting “safe” after
“return of the child to his own”; and

[[Page 111 STAT. 2118]]

(B) in paragraph (5)–
(i) in subparagraph (A), in the matter
preceding clause (i), by inserting “a safe
setting that is” after “placement in”; and
(ii) in subparagraph (B)–
(I) by inserting “the safety of the
child,” after “determine”; and
(II) by inserting “and safely
maintained in” after “returned to”.

SEC. 103. STATES REQUIRED TO INITIATE OR JOIN PROCEEDINGS TO TERMINATE
PARENTAL RIGHTS FOR CERTAIN CHILDREN IN FOSTER CARE.

(a) Requirement for Proceedings.–Section 475(5) of the Social
Security Act (42 U.S.C. 675(5)) is amended–
(1) by striking “and” at the end of subparagraph (C);
(2) by striking the period at the end of subparagraph (D)
and inserting “; and”; and
(3) by adding at the end the following:
“(E) in the case of a child who has been in foster
care under the responsibility of the State for 15 of the
most recent 22 months, or, if a court of competent
jurisdiction has determined a child to be an abandoned
infant (as defined under State law) or has made a
determination that the parent has committed murder of
another child of the parent, committed voluntary
manslaughter of another child of the parent, aided or
abetted, attempted, conspired, or solicited to commit
such a murder or such a voluntary manslaughter, or
committed a felony assault that has resulted in serious
bodily injury to the child or to another child of the
parent, the State shall file a petition to terminate the
parental rights of the child’s parents (or, if such a
petition has been filed by another party, seek to be
joined as a party to the petition), and, concurrently,
to identify, recruit, process, and approve a qualified
family for an adoption, unless–
“(i) at the option of the State, the child is
being cared for by a relative;
“(ii) a State agency has documented in the
case plan (which shall be available for court
review) a compelling reason for determining that
filing such a petition would not be in the best
interests of the child; or
“(iii) the State has not provided to the
family of the child, consistent with the time
period in the State case plan, such services as
the State deems necessary for the safe return of
the child to the child’s home, if reasonable
efforts of the type described in section
471(a)(15)(B)(ii) are required to be made with
respect to the child.”.

(b) Determination of Beginning of Foster Care.–Section 475(5) of
the Social Security Act (42 U.S.C. 675(5)), as amended by subsection
(a), is amended–
(1) by striking “and” at the end of subparagraph (D);
(2) by striking the period at the end of subparagraph (E)
and inserting “; and”; and
(3) by adding at the end the following:

[[Page 111 STAT. 2119]]

“(F) a child shall be considered to have entered
foster care on the earlier of–
“(i) the date of the first judicial finding
that the child has been subjected to child abuse
or neglect; or
“(ii) the date that is 60 days after the date
on which the child is removed from the home.”.

(c) <> Transition Rules.–
(1) New foster children.–In the case of a child who enters
foster care (within the meaning of section 475(5)(F) of the
Social Security Act) under the responsibility of a State after
the date of the enactment of this Act–
(A) if the State comes into compliance with the
amendments made by subsection (a) of this section before
the child has been in such foster care for 15 of the
most recent 22 months, the State shall comply with
section 475(5)(E) of the Social Security Act with
respect to the child when the child has been in such
foster care for 15 of the most recent 22 months; and
(B) if the State comes into such compliance after
the child has been in such foster care for 15 of the
most recent 22 months, the State shall comply with such
section 475(5)(E) with respect to the child not later
than 3 months after the end of the first regular session
of the State legislature that begins after such date of
enactment.
(2) Current foster children.–In the case of children in
foster care under the responsibility of the State on the date of
the enactment of this Act, the State shall–
(A) not later than 6 months after the end of the
first regular session of the State legislature that
begins after such date of enactment, comply with section
475(5)(E) of the Social Security Act with respect to not
less than \1/3\ of such children as the State shall
select, giving priority to children for whom the
permanency plan (within the meaning of part E of title
IV of the Social Security Act) is adoption and children
who have been in foster care for the greatest length of
time;
(B) not later than 12 months after the end of such
first regular session, comply with such section
475(5)(E) with respect to not less than \2/3\ of such
children as the State shall select; and
(C) not later than 18 months after the end of such
first regular session, comply with such section
475(5)(E) with respect to all of such children.
(3) Treatment of 2-year legislative sessions.–For purposes
of this subsection, in the case of a State that has a 2-year
legislative session, each year of the session is deemed to be a
separate regular session of the State legislature.
(4) Requirements treated as state plan requirements.–For
purposes of part E of title IV of the Social Security Act, the
requirements of this subsection shall be treated as State plan
requirements imposed by section 471(a) of such Act.

(d) <> Rule of Construction.–Nothing in
this section or in part E of title IV of the Social Security Act (42
U.S.C. 670 et seq.), as amended by this Act, shall be construed as
precluding State courts or State agencies from initiating the
termination of

[[Page 111 STAT. 2120]]

parental rights for reasons other than, or for timelines earlier than,
those specified in part E of title IV of such Act, when such actions are
determined to be in the best interests of the child, including cases
where the child has experienced multiple foster care placements of
varying durations.

SEC. 104. NOTICE OF REVIEWS AND HEARINGS; OPPORTUNITY TO BE HEARD.

Section 475(5) of the Social Security Act (42 U.S.C. 675(5)), as
amended by section 103, is amended–
(1) by striking “and” at the end of subparagraph (E);
(2) by striking the period at the end of subparagraph (F)
and inserting “; and”; and
(3) by adding at the end the following:
“(G) the foster parents (if any) of a child and any
preadoptive parent or relative providing care for the
child are provided with notice of, and an opportunity to
be heard in, any review or hearing to be held with
respect to the child, except that this subparagraph
shall not be construed to require that any foster
parent, preadoptive parent, or relative providing care
for the child be made a party to such a review or
hearing solely on the basis of such notice and
opportunity to be heard.”.

SEC. 105. USE OF THE FEDERAL PARENT LOCATOR SERVICE FOR CHILD WELFARE
SERVICES.

Section 453 of the Social Security Act (42 U.S.C. 653) is
amended–
(1) in subsection (a)(2)–
(A) in the matter preceding subparagraph (A), by
inserting “or making or enforcing child custody or
visitation orders,” after “obligations,”; and
(B) in subparagraph (A)–
(i) by striking “or” at the end of clause
(ii);
(ii) by striking the comma at the end of
clause (iii) and inserting “; or”; and
(iii) by inserting after clause (iii) the
following:
“(iv) who has or may have parental rights
with respect to a child,”; and
(2) in subsection (c)–
(A) by striking the period at the end of paragraph
(3) and inserting “; and”; and
(B) by adding at the end the following:
“(4) a State agency that is administering a program
operated under a State plan under subpart 1 of part B, or a
State plan approved under subpart 2 of part B or under part
E.”.

SEC. 106. CRIMINAL RECORDS CHECKS FOR PROSPECTIVE FOSTER AND ADOPTIVE
PARENTS.

Section 471(a) of the Social Security Act (42 U.S.C. 671(a)) is
amended–
(1) by striking “and” at the end of paragraph (18);
(2) by striking the period at the end of paragraph (19) and
inserting “; and”; and
(3) by adding at the end the following:
“(20)(A) unless an election provided for in subparagraph
(B) is made with respect to the State, provides procedures

[[Page 111 STAT. 2121]]

for criminal records checks for any prospective foster or
adoptive parent before the foster or adoptive parent may be
finally approved for placement of a child on whose behalf foster
care maintenance payments or adoption assistance payments are to
be made under the State plan under this part, including
procedures requiring that–
“(i) in any case in which a record check reveals a
felony conviction for child abuse or neglect, for
spousal abuse, for a crime against children (including
child pornography), or for a crime involving violence,
including rape, sexual assault, or homicide, but not
including other physical assault or battery, if a State
finds that a court of competent jurisdiction has
determined that the felony was committed at any time,
such final approval shall not be granted; and
“(ii) in any case in which a record check reveals a
felony conviction for physical assault, battery, or a
drug-related offense, if a State finds that a court of
competent jurisdiction has determined that the felony
was committed within the past 5 years, such final
approval shall not be granted; and
“(B) subparagraph (A) shall not apply to a State plan if
the Governor of the State has notified the Secretary in writing
that the State has elected to make subparagraph (A) inapplicable
to the State, or if the State legislature, by law, has elected
to make subparagraph (A) inapplicable to the State.”.

SEC. 107. DOCUMENTATION OF EFFORTS FOR ADOPTION OR LOCATION OF A
PERMANENT HOME.

Section 475(1) of the Social Security Act (42 U.S.C. 675(1)) is
amended–
(1) in the last sentence–
(A) by striking “the case plan must also include”;
and
(B) by redesignating such sentence as subparagraph
(D) and indenting appropriately; and
(2) by adding at the end the following:
“(E) In the case of a child with respect to whom
the permanency plan is adoption or placement in another
permanent home, documentation of the steps the agency is
taking to find an adoptive family or other permanent
living arrangement for the child, to place the child
with an adoptive family, a fit and willing relative, a
legal guardian, or in another planned permanent living
arrangement, and to finalize the adoption or legal
guardianship. At a minimum, such documentation shall
include child specific recruitment efforts such as the
use of State, regional, and national adoption exchanges
including electronic exchange systems.”.

[[Page 111 STAT. 2122]]

TITLE II–INCENTIVES FOR PROVIDING PERMANENT FAMILIES FOR CHILDREN

SEC. 201. ADOPTION INCENTIVE PAYMENTS.

(a) In General.–Part E of title IV of the Social Security Act (42
U.S.C. 670-679) is amended by inserting after section 473 the following:

“SEC. 473A. <> ADOPTION INCENTIVE PAYMENTS.

“(a) Grant Authority.–Subject to the availability of such amounts
as may be provided in advance in appropriations Acts for this purpose,
the Secretary shall make a grant to each State that is an incentive-
eligible State for a fiscal year in an amount equal to the adoption
incentive payment payable to the State under this section for the fiscal
year, which shall be payable in the immediately succeeding fiscal year.
“(b) Incentive-Eligible State.–A State is an incentive-eligible
State for a fiscal year if–
“(1) the State has a plan approved under this part for the
fiscal year;
“(2) the number of foster child adoptions in the State
during the fiscal year exceeds the base number of foster child
adoptions for the State for the fiscal year;
“(3) the State is in compliance with subsection (c) for the
fiscal year;
“(4) in the case of fiscal years 2001 and 2002, the State
provides health insurance coverage to any child with special
needs (as determined under section 473(c)) for whom there is in
effect an adoption assistance agreement between a State and an
adoptive parent or parents; and
“(5) the fiscal year is any of fiscal years 1998 through
2002.

“(c) Data Requirements.–
“(1) In general.–A State is in compliance with this
subsection for a fiscal year if the State has provided to the
Secretary the data described in paragraph (2)–
“(A) for fiscal years 1995 through 1997 (or, if the
first fiscal year for which the State seeks a grant
under this section is after fiscal year 1998, the fiscal
year that
precedes such first fiscal year); and
“(B) for each succeeding fiscal year that precedes
the fiscal year.
“(2) Determination of numbers of adoptions.–
“(A) Determinations based on afcars data.–Except
as provided in subparagraph (B), the Secretary shall
determine the numbers of foster child adoptions and of
special needs adoptions in a State during each of fiscal
years 1995 through 2002, for purposes of this section,
on the basis of data meeting the requirements of the
system established pursuant to section 479, as reported
by the State and approved by the Secretary by August 1
of the succeeding fiscal year.
“(B) Alternative data sources permitted for fiscal
years 1995 through 1997.–For purposes of the
determination described in subparagraph (A) for fiscal
years 1995 through 1997, the Secretary may use data from
a source

[[Page 111 STAT. 2123]]

or sources other than that specified in subparagraph (A)
that the Secretary finds to be of equivalent
completeness and reliability, as reported by a State by
November 30, 1997, and approved by the Secretary by
March 1, 1998.
“(3) No waiver of afcars requirements.–This section shall
not be construed to alter or affect any requirement of section
479 or of any regulation prescribed under such section with
respect to reporting of data by States, or to waive any penalty
for failure to comply with such a requirement.

“(d) Adoption Incentive Payment.–
“(1) In general.–Except as provided in paragraph (2), the
adoption incentive payment payable to a State for a fiscal year
under this section shall be equal to the sum of–
“(A) $4,000, multiplied by the amount (if any) by
which the number of foster child adoptions in the State
during the fiscal year exceeds the base number of foster
child adoptions for the State for the fiscal year; and
“(B) $2,000, multiplied by the amount (if any) by
which the number of special needs adoptions in the State
during the fiscal year exceeds the base number of
special needs adoptions for the State for the fiscal
year.
“(2) Pro rata adjustment if insufficient funds available.–
For any fiscal year, if the total amount of adoption incentive
payments otherwise payable under this section for a fiscal year
exceeds the amount appropriated pursuant to subsection (h) for
the fiscal year, the amount of the adoption incentive payment
payable to each State under this section for the fiscal year
shall be–
“(A) the amount of the adoption incentive payment
that would otherwise be payable to the State under this
section for the fiscal year; multiplied by
“(B) the percentage represented by the amount so
appropriated for the fiscal year, divided by the total
amount of adoption incentive payments otherwise payable
under this section for the fiscal year.

“(e) 2-Year Availability of Incentive Payments.–Payments to a
State under this section in a fiscal year shall remain available for use
by the State through the end of the succeeding fiscal year.
“(f ) Limitations on Use of Incentive Payments.–A State shall not
expend an amount paid to the State under this section except to provide
to children or families any service (including post-adoption services)
that may be provided under part B or E. Amounts expended by a State in
accordance with the preceding sentence shall be disregarded in
determining State expenditures for purposes of Federal matching payments
under sections 423, 434, and 474.
“(g) Definitions.–As used in this section:
“(1) Foster child adoption.–The term `foster child
adoption’ means the final adoption of a child who, at the time
of adoptive placement, was in foster care under the supervision
of the State.
“(2) Special needs adoption.–The term `special needs
adoption’ means the final adoption of a child for whom an
adoption assistance agreement is in effect under section 473.
“(3) Base number of foster child adoptions.–The term `
base number of foster child adoptions for a State’ means–

[[Page 111 STAT. 2124]]

“(A) with respect to fiscal year 1998, the average
number of foster child adoptions in the State in fiscal
years 1995, 1996, and 1997; and
“(B) with respect to any subsequent fiscal year,
the number of foster child adoptions in the State in the
fiscal year for which the number is the greatest in the
period that begins with fiscal year 1997 and ends with
the fiscal year preceding such subsequent fiscal year.
“(4) Base number of special needs adoptions.–The term `
base number of special needs adoptions for a State’ means–
“(A) with respect to fiscal year 1998, the average
number of special needs adoptions in the State in fiscal
years 1995, 1996, and 1997; and
“(B) with respect to any subsequent fiscal year,
the number of special needs adoptions in the State in
the fiscal year for which the number is the greatest in
the period that begins with fiscal year 1997 and ends
with the fiscal year preceding such subsequent fiscal
year.

“(h) Limitations on Authorization of Appropriations.–
“(1) In general.–For grants under subsection (a), there
are authorized to be appropriated to the Secretary $20,000,000
for each of fiscal years 1999 through 2003.
“(2) Availability.–Amounts appropriated under paragraph
(1) are authorized to remain available until expended, but not
after fiscal year 2003.

“(i) Technical Assistance.–
“(1) In general.–The Secretary may, directly or through
grants or contracts, provide technical assistance to assist
States and local communities to reach their targets for
increased numbers of adoptions and, to the extent that adoption
is not possible, alternative permanent placements, for children
in foster care.
“(2) Description of the character of the technical
assistance.–The technical assistance provided under paragraph
(1) may support the goal of encouraging more adoptions out of
the foster care system, when adoptions promote the best
interests of children, and may include the following:
“(A) The development of best practice guidelines
for expediting termination of parental rights.
“(B) Models to encourage the use of concurrent
planning.
“(C) The development of specialized units and
expertise in moving children toward adoption as a
permanency goal.
“(D) The development of risk assessment tools to
facilitate early identification of the children who will
be at risk of harm if returned home.
“(E) Models to encourage the fast tracking of
children who have not attained 1 year of age into pre-
adoptive placements.
“(F) Development of programs that place children
into pre-adoptive families without waiting for
termination of parental rights.
“(3) Targeting of technical assistance to the courts.–Not
less than 50 percent of any amount appropriated pursuant to
paragraph (4) shall be used to provide technical assistance to
the courts.

[[Page 111 STAT. 2125]]

“(4) Limitations on authorization of appropriations.–To
carry out this subsection, there are authorized to be
appropriated to the Secretary of Health and Human Services not
to exceed $10,000,000 for each of fiscal years 1998 through
2000.”.

(b) Discretionary Cap Adjustment for Adoption Incentive Payments.–
(1) Section 251 amendment.–Section 251(b)(2) of the
Balanced Budget and Emergency Deficit Control Act of 1985 (2
U.S.C. 901(b)(2)), as amended by section 10203(a)(4) of the
Balanced Budget Act of 1997, <> is amended
by adding at the end the following new subparagraph:
“(G) Adoption incentive payments.–Whenever a bill
or joint resolution making appropriations for fiscal
year 1999, 2000, 2001, 2002, or 2003 is enacted that
specifies an amount for adoption incentive payments
pursuant to this part for the Department of Health and
Human
Services–
“(i) the adjustments for new budget authority
shall be the amounts of new budget authority
provided in that measure for adoption incentive
payments, but not to exceed $20,000,000; and
“(ii) the adjustment for outlays shall be the

additional outlays flowing from such amount.”.
(2) Section 314 amendment.–Section 314(b) of the
Congressional Budget Act of 1974, as amended by section
10114(a) <> of the Balanced Budget Act of
1997, is amended–
(A) by striking “or” at the end of paragraph (4);
(B) by striking the period at the end of paragraph
(5) and inserting “; or”; and
(C) by adding at the end the following:
“(6) in the case of an amount for adoption incentive
payments (as defined in section 251(b)(2)(G) of the Balanced
Budget and Emergency Deficit Control Act of 1985) for fiscal
year 1999, 2000, 2001, 2002, or 2003 for the Department of
Health and Human Services, an amount not to exceed
$20,000,000.”.

SEC. 202. ADOPTIONS ACROSS STATE AND COUNTY JURISDICTIONS.

(a) State Plan for Child Welfare Services Requirement.–Section
422(b) of the Social Security Act (42 U.S.C. 622(b)) is amended–
(1) in paragraph (10), by striking “and” at the end;
(2) in paragraph (11), by striking the period and inserting
“; and”; and
(3) by adding at the end the following:
“(12) contain assurances that the State shall develop plans
for the effective use of cross-jurisdictional resources to
facilitate timely adoptive or permanent placements for waiting
children.”.

(b) Condition of Assistance.–Section 474 of such Act (42 U.S.C.
674) is amended by adding at the end the following:
“(e) Notwithstanding subsection (a), a State shall not be eligible
for any payment under this section if the Secretary finds that, after
the date of the enactment of this subsection, the State has–
“(1) denied or delayed the placement of a child for
adoption when an approved family is available outside of the
jurisdiction with responsibility for handling the case of the
child; or

[[Page 111 STAT. 2126]]

“(2) failed to grant an opportunity for a fair hearing, as
described in section 471(a)(12), to an individual whose
allegation of a violation of paragraph (1) of this subsection is
denied by the State or not acted upon by the State with
reasonable promptness.”.

(c) <> Study of Interjurisdictional
Adoption Issues.–
(1) In general.–The Comptroller General of the United
States shall–
(A) study and consider how to improve procedures and
policies to facilitate the timely and permanent
adoptions of children across State and county
jurisdictions; and
(B) examine, at a minimum, interjurisdictional
adoption issues–
(i) concerning the recruitment of prospective
adoptive families from other States and counties;
(ii) concerning the procedures to grant
reciprocity to prospective adoptive family home
studies from other States and counties;
(iii) arising from a review of the comity and
full faith and credit provided to adoption decrees
and
termination of parental rights orders from other
States; and
(iv) concerning the procedures related to the
administration and implementation of the
Interstate Compact on the Placement of Children.
(2) Report to the congress.–Not later than 1 year after the
date of the enactment of this Act, the Comptroller General shall
submit to the appropriate committees of the Congress a report
that includes–
(A) the results of the study conducted under
paragraph (1); and
(B) recommendations on how to improve procedures to
facilitate the interjurisdictional adoption of children,
including interstate and intercounty adoptions, so that
children will be assured timely and permanent
placements.

SEC. 203. PERFORMANCE OF STATES IN PROTECTING CHILDREN.

(a) Annual Report on State Performance.–Part E of title IV of the
Social Security Act (42 U.S.C. 670 et seq.) is amended by adding at the
end the following:

“SEC. 479A. <> ANNUAL REPORT.

“The Secretary, in consultation with Governors, State legislatures,
State and local public officials responsible for administering child
welfare programs, and child welfare advocates, shall–
“(1) develop a set of outcome measures (including length of
stay in foster care, number of foster care placements, and
number of adoptions) that can be used to assess the performance
of States in operating child protection and child welfare
programs pursuant to parts B and E to ensure the safety of
children;
“(2) to the maximum extent possible, the outcome measures
should be developed from data available from the Adoption and
Foster Care Analysis and Reporting System;
“(3) develop a system for rating the performance of States
with respect to the outcome measures, and provide to the States
an explanation of the rating system and how scores are
determined under the rating system;

[[Page 111 STAT. 2127]]

“(4) prescribe such regulations as may be necessary to
ensure that States provide to the Secretary the data necessary
to determine State performance with respect to each outcome
measure, as a condition of the State receiving funds under this
part; and
“(5) on May 1, 1999, and annually thereafter, prepare and
submit to the Congress a report on the performance of each State
on each outcome measure, which shall examine the reasons for
high performance and low performance and, where possible, make
recommendations as to how State performance could be
improved.”.

(b) <> Development of Performance-Based
Incentive System.–The Secretary of Health and Human Services, in
consultation with State and local public officials responsible for
administering child welfare programs and child welfare advocates, shall
study, develop, and recommend to Congress an incentive system to provide
payments under parts B and E of title IV of the Social Security Act (42
U.S.C. 620 et seq., 670 et seq.) to any State based on the State’s
performance under such a system. Such a system shall, to the extent the
Secretary determines feasible and appropriate, be based on the annual
report required by section 479A of the Social Security Act (as added by
subsection (a) of this section) or on any proposed modifications of the
annual report. Not later than 6 months after the date of the enactment
of this Act, the Secretary shall submit to the Committee on Ways and
Means of the House of Representatives and the Committee on Finance of
the Senate a progress report on the feasibility, timetable, and
consultation process for conducting such a study. Not later than 15
months after such date of enactment, the Secretary shall submit to the
Committee on Ways and Means of the House of Representatives and the
Committee on Finance of the Senate the final report on a performance-
based incentive system. The report may include other recommendations for
restructuring the program and payments under parts B and E of title IV
of the Social Security Act.

TITLE III–ADDITIONAL IMPROVEMENTS AND REFORMS

SEC. 301. EXPANSION OF CHILD WELFARE DEMONSTRATION PROJECTS.

(a) In General.–Section 1130(a) of the Social Security Act (42
U.S.C. 1320a-9) is amended to read as follows:
“(a) Authority To Approve Demonstration Projects.–
“(1) In general.–The Secretary may authorize States to
conduct demonstration projects pursuant to this section which
the Secretary finds are likely to promote the objectives of part
B or E of title IV.
“(2) Limitation.–The Secretary may authorize not more than
10 demonstration projects under paragraph (1) in each of fiscal
years 1998 through 2002.
“(3) Certain types of proposals required to be
considered.–
“(A) If an appropriate application therefor is
submitted, the Secretary shall consider authorizing a
demonstration project which is designed to identify and
address barriers

[[Page 111 STAT. 2128]]

that result in delays to adoptive placements for
children in foster care.
“(B) If an appropriate application therefor is
submitted, the Secretary shall consider authorizing a
demonstration project which is designed to identify and
address parental substance abuse problems that endanger
children and result in the placement of children in
foster care, including through the placement of children
with their parents in residential treatment facilities
(including residential treatment facilities for post-
partum depression) that are specifically designed to
serve parents and children together in order to promote
family reunification and that can ensure the health and
safety of the children in such placements.
“(C) If an appropriate application therefor is
submitted, the Secretary shall consider authorizing a
demonstration project which is designed to address
kinship care.
“(4) Limitation on eligibility.–The Secretary may not
authorize a State to conduct a demonstration project under this
section if the State fails to provide health insurance coverage
to any child with special needs (as determined under section
473(c)) for whom there is in effect an adoption assistance
agreement between a State and an adoptive parent or parents.
“(5) Requirement to consider effect of project on terms and
conditions of certain court orders.–In considering an
application to conduct a demonstration project under this
section that has been submitted by a State in which there is in
effect a court order determining that the State’s child welfare
program has failed to comply with the provisions of part B or E
of title IV, or with the Constitution of the United States, the
Secretary shall take into consideration the effect of approving
the proposed project on the terms and conditions of the court
order related to the failure to comply.”.

(b) <> Rule of Construction.–Nothing
in the amendment made by subsection (a) shall be construed as affecting
the terms and conditions of any demonstration project approved under
section 1130 of the Social Security Act (42 U.S.C. 1320a-9) before the
date of the enactment of this Act.

(c) Authority To Extend Duration of Demonstrations.–Section 1130(d)
of such Act (42 U.S.C. 1320a-9(d)) is amended by inserting “, unless in
the judgment of the Secretary, the demonstration project should be
allowed to continue” before the period.

SEC. 302. PERMANENCY HEARINGS.

Section 475(5)(C) of the Social Security Act (42 U.S.C. 675(5)(C))
is amended–
(1) by striking “dispositional” and inserting
“permanency”;
(2) by striking “eighteen” and inserting “12”;
(3) by striking “original placement” and inserting “date
the child is considered to have entered foster care (as
determined under subparagraph (F))”; and
(4) by striking “future status of ” and all that follows
through “long term basis)” and inserting “permanency plan for
the child that includes whether, and if applicable when, the
child will be returned to the parent, placed for adoption and
the State will file a petition for termination of parental
rights, or referred for legal guardianship, or (in cases where

[[Page 111 STAT. 2129]]

the State agency has documented to the State court a compelling
reason for determining that it would not be in the best
interests of the child to return home, be referred for
termination of parental rights, or be placed for adoption, with
a fit and willing relative, or with a legal guardian) placed in
another planned permanent living arrangement”.

SEC. 303. <> KINSHIP CARE.

(a) Report.–
(1) In general.–The Secretary of Health and Human Services
shall–
(A) not later than June 1, 1998, convene the
advisory panel provided for in subsection (b)(1) and
prepare and submit to the advisory panel an initial
report on the extent to which children in foster care
are placed in the care of a relative (in this section
referred to as “kinship care”); and
(B) not later than June 1, 1999, submit to the
Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the
Senate a final report on the matter described in
subparagraph (A), which shall–
(i) be based on the comments submitted by the
advisory panel pursuant to subsection (b)(2) and
other information and considerations; and
(ii) include the policy recommendations of the

Secretary with respect to the matter.
(2) Required contents.–Each report required by
paragraph (1) shall–
(A) include, to the extent available for each State,
information on–
(i) the policy of the State regarding kinship
care;
(ii) the characteristics of the kinship care
providers (including age, income, ethnicity, and
race, and the relationship of the kinship care
providers to the children);
(iii) the characteristics of the household of
such providers (such as number of other persons in
the household and family composition);
(iv) how much access to the child is afforded
to the parent from whom the child has been
removed;
(v) the cost of, and source of funds for,
kinship care (including any subsidies such as
medicaid and cash assistance);
(vi) the permanency plan for the child and the
actions being taken by the State to achieve the
plan;
(vii) the services being provided to the
parent from whom the child has been removed; and
(viii) the services being provided to the
kinship care provider; and
(B) specifically note the circumstances or
conditions under which children enter kinship care.

(b) Advisory Panel.–
(1) Establishment.–The Secretary of Health and Human
Services, in consultation with the Chairman of the Committee on
Ways and Means of the House of Representatives and the Chairman
of the Committee on Finance of the Senate, shall convene an
advisory panel which shall include parents, foster

[[Page 111 STAT. 2130]]

parents, relative caregivers, former foster children, State and
local public officials responsible for administering child
welfare programs, private persons involved in the delivery of
child welfare services, representatives of tribal governments
and tribal courts, judges, and academic experts.
(2) Duties.–The advisory panel convened pursuant to
paragraph (1) shall review the report prepared pursuant to
subsection (a), and, not later than October 1, 1998, submit to
the Secretary comments on the report.

SEC. 304. CLARIFICATION OF ELIGIBLE POPULATION FOR INDEPENDENT LIVING
SERVICES.

Section 477(a)(2)(A) of the Social Security Act (42 U.S.C.
677(a)(2)(A)) is amended by inserting “(including children with respect
to whom such payments are no longer being made because the child has
accumulated assets, not to exceed $5,000, which are otherwise regarded
as resources for purposes of determining eligibility for benefits under
this part)” before the comma.

SEC. 305. REAUTHORIZATION AND EXPANSION OF FAMILY PRESERVATION AND
SUPPORT SERVICES.

(a) Reauthorization of Family Preservation and Support Services.–
(1) In general.–Section 430(b) of the Social Security Act
(42 U.S.C. 629(b)) is amended–
(A) in paragraph (4), by striking “or” at the end;
(B) in paragraph (5), by striking the period and
inserting a semicolon; and
(C) by adding at the end the following:
“(6) for fiscal year 1999, $275,000,000;
“(7) for fiscal year 2000, $295,000,000; and
“(8) for fiscal year 2001, $305,000,000.”.
(2) Continuation of reservation of certain amounts.–
Paragraphs (1) and (2) of section 430(d) of the Social Security
Act (42 U.S.C. 629(d)(1) and (2)) are each amended by striking
“and 1998” and inserting “1998, 1999, 2000, and 2001”.
(3) Conforming amendments.–Section 13712 of the Omnibus
Budget Reconciliation Act of 1993 (42 U.S.C. 670 note) is
amended–
(A) in subsection (c), by striking “1998” each
place it appears and inserting “2001”; and
(B) in subsection (d)(2), by striking “and 1998”
and inserting “1998, 1999, 2000, and 2001”.

(b) Expansion for Time-Limited Family Reunification
Services and Adoption Promotion and Support Services.–
(1) Additions to state plan.–Section 432 of the Social
Security Act (42 U.S.C. 629b) is amended–
(A) in subsection (a)–
(i) in paragraph (4), by striking “and
community-based family support services” and
inserting “, community-based family support
services, time-limited family reunification
services, and adoption promotion and support
services,”; and
(ii) in paragraph (5)(A), by striking “and
community-based family support services” and
inserting “, community-based family support
services, time-limited family reunification
services, and adoption promotion and support
services”; and

[[Page 111 STAT. 2131]]

(B) in subsection (b)(1), by striking “and family
support” and inserting “, family support, time-limited
family reunification, and adoption promotion and
support”.
(2) Definitions of time-limited family reunification
services and adoption promotion and support services.–Section
431(a) of the Social Security Act (42 U.S.C. 629a(a)) is amended
by adding at the end the following:
“(7) Time-limited family reunification services.–
“(A) In general.–The term `time-limited family
reunification services’ means the services and
activities described in subparagraph (B) that are
provided to a child that is removed from the child’s
home and placed in a foster family home or a child care
institution and to the parents or primary caregiver of
such a child, in order to facilitate the reunification
of the child safely and
appropriately within a timely fashion, but only during
the 15-month period that begins on the date that the
child, pursuant to section 475(5)(F), is considered to
have entered foster care.
“(B) Services and activities described.–The
services and activities described in this subparagraph
are the following:
“(i) Individual, group, and family
counseling.
“(ii) Inpatient, residential, or outpatient
substance abuse treatment services.
“(iii) Mental health services.
“(iv) Assistance to address domestic
violence.
“(v) Services designed to provide temporary
child care and therapeutic services for families,
including crisis nurseries.
“(vi) Transportation to or from any of the
services and activities described in this
subparagraph.
“(8) Adoption promotion and support services.–The term
`adoption promotion and support services’ means services and
activities designed to encourage more adoptions out of the
foster care system, when adoptions promote the best interests of
children, including such activities as pre- and post-adoptive
services and activities designed to expedite the adoption
process and support adoptive families.”.
(3) Additional conforming amendments.–
(A) Purposes.–Section 430(a) of the Social Security
Act (42 U.S.C. 629(a)) is amended by striking “and
community-based family support services” and inserting
“, community-based family support services, time-
limited family reunification services, and adoption
promotion and support services”.
(B) Program title.–The heading of subpart 2 of part
B of title IV of the Social Security Act (42 U.S.C. 629
et seq.) is amended to read as follows:

“Subpart 2–Promoting Safe and Stable Families”.

(c) Emphasizing the Safety of the Child.–
(1) Requiring assurances that the safety of children shall
be of paramount concern.–Section 432(a) of the Social Security
Act (42 U.S.C. 629b(a)) is amended–
(A) by striking “and” at the end of paragraph (7);

[[Page 111 STAT. 2132]]

(B) by striking the period at the end of paragraph
(8); and
(C) by adding at the end the following:
“(9) contains assurances that in administering and
conducting service programs under the plan, the safety of the
children to be served shall be of paramount concern.”.
(2) Definitions of family preservation and family
support services.–Section 431(a) of the Social Security Act (42
U.S.C. 629a(a)) is amended–
(A) in paragraph (1)–
(i) in subparagraph (A), by inserting “safe
and” before “appropriate” each place it
appears; and
(ii) in subparagraph (B), by inserting
“safely” after “remain”; and
(B) in paragraph (2)–
(i) by inserting “safety and” before “well-
being ”; and
(ii) by striking “stable” and inserting
“safe, stable,”.

(d) Clarification of Maintenance of Effort Requirement.–
(1) Definition of non-federal funds.–Section 431(a) of the
Social Security Act (42 U.S.C. 629a(a)), as amended by
subsection (b)(2), is amended by adding at the end the
following:
“(9) Non-federal funds.–The term `non-Federal funds’ means
State funds, or at the option of a State, State and local
funds.”.
(2) <> Effective date.–The
amendment made by paragraph (1) takes effect as if included in
the enactment of section 13711 of the Omnibus Budget
Reconciliation Act of 1993 (Public Law 103-33; 107 Stat. 649).

SEC. 306. HEALTH INSURANCE COVERAGE FOR CHILDREN WITH
SPECIAL NEEDS.

Section 471(a) of the Social Security Act (42 U.S.C. 671(a)), as
amended by section 106, is amended–
(1) in paragraph (19), by striking “and” at the end;
(2) in paragraph (20), by striking the period and inserting
“; and”; and
(3) by adding at the end the following:
“(21) provides for health insurance coverage (including, at
State option, through the program under the State plan approved
under title XIX) for any child who has been determined to be a
child with special needs, for whom there is in effect an
adoption assistance agreement (other than an agreement under
this part) between the State and an adoptive parent or parents,
and who the State has determined cannot be placed with an
adoptive parent or parents without medical assistance because
such child has special needs for medical, mental health, or
rehabilitative care, and that with respect to the provision of
such health insurance coverage–
“(A) such coverage may be provided through 1 or
more State medical assistance programs;
“(B) the State, in providing such coverage, shall
ensure that the medical benefits, including mental
health benefits, provided are of the same type and kind
as those that would be provided for children by the
State under title XIX;

[[Page 111 STAT. 2133]]

“(C) in the event that the State provides such
coverage through a State medical assistance program
other than the program under title XIX, and the State
exceeds its funding for services under such other
program, any such child shall be deemed to be receiving
aid or assistance under the State plan under this part
for purposes of section 1902(a)(10)(A)(i)(I); and
“(D) in determining cost-sharing requirements, the
State shall take into consideration the circumstances of
the adopting parent or parents and the needs of the
child being adopted consistent, to the extent coverage
is provided through a State medical assistance program,
with the rules under such program.”.

SEC. 307. CONTINUATION OF ELIGIBILITY FOR ADOPTION ASSISTANCE PAYMENTS
ON BEHALF OF CHILDREN WITH SPECIAL NEEDS WHOSE INITIAL
ADOPTION HAS BEEN DISSOLVED.

(a) Continuation of Eligibility.–Section 473(a)(2) of the Social
Security Act (42 U.S.C. 673(a)(2)) is amended by adding at the end the
following: “Any child who meets the requirements of subparagraph (C),
who was determined eligible for adoption assistance payments under this
part with respect to a prior adoption, who is available for adoption
because the prior adoption has been dissolved and the parental rights of
the adoptive parents have been terminated or because the child’s
adoptive parents have died, and who fails to meet the requirements of
subparagraphs (A) and (B) but would meet such requirements if the child
were treated as if the child were in the same financial and other
circumstances the child was in the last time the child was determined
eligible for adoption assistance payments under this part and the prior
adoption were treated as never having occurred, shall be treated as
meeting the requirements of this paragraph for purposes of paragraph
(1)(B)(ii).”.
(b) <> Applicability.–The amendment made
by subsection (a) shall only apply to children who are adopted on or
after October 1, 1997.

SEC. 308. STATE STANDARDS TO ENSURE QUALITY SERVICES FOR CHILDREN IN
FOSTER CARE.

Section 471(a) of the Social Security Act (42 U.S.C. 671(a)), as
amended by sections 106 and 306, is amended–
(1) in paragraph (20), by striking “and” at the end;
(2) in paragraph (21), by striking the period and inserting
“; and”; and
(3) by adding at the end the following:
“(22) provides that, not later than January 1, 1999, the
State shall develop and implement standards to ensure that
children in foster care placements in public or private agencies
are provided quality services that protect the safety and health
of the children.”.

TITLE IV–MISCELLANEOUS

SEC. 401. <> PRESERVATION OF REASONABLE
PARENTING.

Nothing in this Act is intended to disrupt the family unnecessarily
or to intrude inappropriately into family life, to prohibit

[[Page 111 STAT. 2134]]

the use of reasonable methods of parental discipline, or to prescribe a
particular method of parenting.

SEC. 402. <> REPORTING REQUIREMENTS.

Any information required to be reported under this Act shall be
supplied to the Secretary of Health and Human Services through data
meeting the requirements of the Adoption and Foster Care Analysis and
Reporting System established pursuant to section 479 of the Social
Security Act (42 U.S.C. 679), to the extent such data is available under
that system. The Secretary shall make such modifications to regulations
issued under section 479 of such Act with respect to the Adoption and
Foster Care Analysis and Reporting System as may be necessary to allow
States to obtain data that meets the requirements of such system in
order to satisfy the reporting requirements of this Act.

SEC. 403. SENSE OF CONGRESS REGARDING STANDBY GUARDIANSHIP.

It is the sense of Congress that the States should have in effect
laws and procedures that permit any parent who is chronically ill or
near death, without surrendering parental rights, to designate a standby
guardian for the parent’s minor children, whose authority would take
effect upon–
(1) the death of the parent;
(2) the mental incapacity of the parent; or
(3) the physical debilitation and consent of the parent.

SEC. 404. TEMPORARY ADJUSTMENT OF CONTINGENCY FUND FOR STATE WELFARE
PROGRAMS.

(a) Reduction of Appropriation.–Section 403(b)(2) of the Social
Security Act (42 U.S.C. 603(b)(2)) is amended by inserting “, reduced
by the sum of the dollar amounts specified in paragraph (6)(C)(ii)”
before the period.
(b) Increase in State Remittances.–Section 403(b)(6) of such Act
(42 U.S.C. 603(b)(6)) is amended by adding at the end the following:
“(C) Adjustment of state remittances.–
“(i) In general.–The amount otherwise
required by subparagraph (A) to be remitted by a
State for a fiscal year shall be increased by the
lesser of–
“(I) the total adjustment for the
fiscal year, multiplied by the
adjustment percentage for the State for
the fiscal year; or
“(II) the unadjusted net payment to
the State for the fiscal year.
“(ii) Total adjustment.–As used in clause
(i), the term `total adjustment’ means–
“(I) in the case of fiscal year
1998, $2,000,000;
“(II) in the case of fiscal year
1999, $9,000,000;
“(III) in the case of fiscal year
2000, $16,000,000; and
“(IV) in the case of fiscal year
2001, $13,000,000.
“(iii) Adjustment percentage.–As used in
clause (i), the term `adjustment percentage’
means, with respect to a State and a fiscal year–
“(I) the unadjusted net payment to
the State for the fiscal year; divided
by

[[Page 111 STAT. 2135]]

“(II) the sum of the unadjusted net
payments to all States for the fiscal
year.
“(iv) Unadjusted net payment.–As used in
this subparagraph, the term, `unadjusted net
payment’ means with respect to a State and a
fiscal year–
“(I) the total amount paid to the
State under paragraph (3) in the fiscal
year; minus
“(II) the amount that, in the
absence of this subparagraph, would be
required by subparagraph (A) or by
section 409(a)(10) to be remitted by the
State in respect of the payment.”.

(c) Recommendations for Improving the Operation of the Contingency
Fund.–Not later than March 1, 1998, the Secretary of Health and Human
Services shall make recommendations to the Congress for improving the
operation of the Contingency Fund for State Welfare Programs.

SEC. 405. <> COORDINATION OF SUBSTANCE
ABUSE AND CHILD
PROTECTION SERVICES.

Within 1 year after the date of the enactment of this Act, the
Secretary of Health and Human Services, based on information from the
Substance Abuse and Mental Health Services Administration and the
Administration for Children and Families in the Department of Health of
Human Services, shall prepare and submit to the Committee on Ways and
Means of the House of Representatives and the Committee on Finance of
the Senate a report which describes the extent and scope of the problem
of substance abuse in the child welfare population, the types of
services provided to such population, and the outcomes resulting from
the provision of such services to such population. The report shall
include recommendations for any legislation that may be needed to
improve coordination in providing such services to such population.

SEC. 406. <> PURCHASE OF AMERICAN-MADE
EQUIPMENT AND
PRODUCTS.

(a) In General.–It is the sense of the Congress that, to the
greatest extent practicable, all equipment and products purchased with
funds made available under this Act should be American-made.
(b) Notice Requirement.–In providing financial assistance to, or
entering into any contract with, any entity using funds made available
under this Act, the head of each Federal agency, to the greatest extent
practicable, shall provide to such entity a notice describing the
statement made in subsection (a) by the Congress.

[[Page 111 STAT. 2136]]

TITLE V–EFFECTIVE DATE

SEC. 501. <> EFFECTIVE DATE.

(a) In General.–Except as otherwise provided in this Act, the
amendments made by this Act take effect on the date of enactment of this
Act.
(b) Delay Permitted if State Legislation Required.–In the case of a
State plan under part B or E of title IV of the Social Security Act
which the Secretary of Health and Human Services determines requires
State legislation (other than legislation appropriating funds) in order
for the plan to meet the additional requirements imposed by the
amendments made by this Act, the State plan shall not be regarded as
failing to comply with the requirements of such part solely on the basis
of the failure of the plan to meet such additional requirements before
the first day of the first calendar quarter beginning after the close of
the first regular session of the State legislature that begins after the
date of enactment of this Act. For purposes of the previous sentence, in
the case of a State that has a 2-year legislative session, each year of
such session shall be deemed to be a separate regular session of the
State legislature.

Approved November 19, 1997.

LEGISLATIVE HISTORY–H.R. 867:
—————————————————————————

HOUSE REPORTS: No. 105-77 (Comm. on Ways and Means).
CONGRESSIONAL RECORD, Vol. 143 (1997):
Apr. 30, considered and passed House.
Nov. 8, considered and passed Senate, amended.
Nov. 13, House concurred in Senate amendment with an
amendment. Senate concurred in House amendment.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 33 (1997):
Nov. 19, Presidential remarks.

From the U.S. Code Online via GPO Access
[www.gpoaccess.gov]
[Laws in effect as of January 3, 2007]
[CITE: 42USC670]

[Page 1663-1667]

TITLE 42–THE PUBLIC HEALTH AND WELFARE

CHAPTER 7–SOCIAL SECURITY

SUBCHAPTER IV–GRANTS TO STATES FOR AID AND SERVICES TO NEEDY FAMILIES
WITH CHILDREN AND FOR CHILD-WELFARE SERVICES

Part E–Federal Payments for Foster Care and Adoption Assistance

Sec. 670. Congressional declaration of purpose; authorization of
appropriations

For the purpose of enabling each State to provide, in appropriate
cases, foster care and transitional independent living programs for
children who otherwise would have been eligible for assistance under the
State’s plan approved under part A of this subchapter (as such plan was
in effect on June 1, 1995) and adoption assistance for children with
special needs, there are authorized to be appropriated for each fiscal
year (commencing with the fiscal year which begins October 1, 1980) such
sums as may be necessary to carry out the provisions of this part. The
sums made available under this section shall be used for making payments
to States which have submitted, and had approved by the Secretary, State
plans under this part.

(Aug. 14, 1935, ch. 531, title IV, Sec. 470, as added Pub. L. 96-272,
title I, Sec. 101(a)(1), June 17, 1980, 94

[[Page 1664]]

Stat. 501; amended Pub. L. 99-272, title XII, Sec. 12307(d), Apr. 7,
1986, 100 Stat. 297; Pub. L. 99-514, title XVII, Sec. 1711(c)(1), Oct.
22, 1986, 100 Stat. 2784; Pub. L. 104-193, title I, Sec. 108(d)(1), Aug.
22, 1996, 110 Stat. 2166.)

References in Text

Part A of this subchapter, referred to in text, is classified to
section 601 et seq. of this title.

Amendments

1996–Pub. L. 104-193 substituted “would have been eligible” for
“would be eligible” and inserted “(as such plan was in effect on June
1, 1995)” after “part A of this subchapter”.
1986–Pub. L. 99-514 substituted “foster care and transitional
independent living programs for children who otherwise would be eligible
for assistance under the State’s plan approved under part A of this
subchapter and adoption assistance for children with special needs” for
“foster care, adoption assistance, and transitional independent living
programs for children who otherwise would be eligible for assistance
under the State’s plan approved under part A of this subchapter (or, in
the case of adoption assistance, would be eligible for benefits under
subchapter XVI of this chapter)”.
Pub. L. 99-272 substituted “foster care, adoption assistance, and
transitional independent living programs” for “foster care and
adoption assistance”.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104-193 effective July 1, 1997, with transition
rules relating to State options to accelerate such date, rules relating
to claims, actions, and proceedings commenced before such date, rules
relating to closing out of accounts for terminated or substantially
modified programs and continuance in office of Assistant Secretary for
Family Support, and provisions relating to termination of entitlement
under AFDC program, see section 116 of Pub. L. 104-193, as amended, set
out as an Effective Date note under section 601 of this title.

Effective Date of 1986 Amendment

Section 1711(d) of Pub. L. 99-514 provided that: “The amendments
made by this section [amending this section and sections 671, 673, and
675 of this title] shall apply only with respect to expenditures made
after December 31, 1986.”

Strengthening Abuse and Neglect Courts

Pub. L. 106-314, Oct. 17, 2000, 114 Stat. 1266, provided that:
“SECTION 1. SHORT TITLE.
“This Act may be cited as the `Strengthening Abuse and Neglect
Courts Act of 2000′.
“SEC. 2. FINDINGS.
“Congress finds the following:
“(1) Under both Federal and State law, the courts play a
crucial and essential role in the Nation’s child welfare system and
in ensuring safety, stability, and permanence for abused and
neglected children under the supervision of that system.
“(2) The Adoption and Safe Families Act of 1997 (Public Law
105-89; 111 Stat. 2115) [see Short Title of 1997 Amendment note set
out under section 1305 of this title] establishes explicitly for the
first time in Federal law that a child’s health and safety must be
the paramount consideration when any decision is made regarding a
child in the Nation’s child welfare system.
“(3) The Adoption and Safe Families Act of 1997 promotes
stability and permanence for abused and neglected children by
requiring timely decisionmaking in proceedings to determine whether
children can safely return to their families or whether they should
be moved into safe and stable adoptive homes or other permanent
family arrangements outside the foster care system.
“(4) To avoid unnecessary and lengthy stays in the foster care
system, the Adoption and Safe Families Act of 1997 specifically
requires, among other things, that States move to terminate the
parental rights of the parents of those children who have been in
foster care for 15 of the last 22 months.
“(5) While essential to protect children and to carry out the
general purposes of the Adoption and Safe Families Act of 1997, the
accelerated timelines for the termination of parental rights and the
other requirements imposed under that Act increase the pressure on
the Nation’s already overburdened abuse and neglect courts.
“(6) The administrative efficiency and effectiveness of the
Nation’s abuse and neglect courts would be substantially improved by
the acquisition and implementation of computerized case-tracking
systems to identify and eliminate existing backlogs, to move abuse
and neglect caseloads forward in a timely manner, and to move
children into safe and stable families. Such systems could also be
used to evaluate the effectiveness of such courts in meeting the
purposes of the amendments made by, and provisions of, the Adoption
and Safe Families Act of 1997.
“(7) The administrative efficiency and effectiveness of the
Nation’s abuse and neglect courts would also be improved by the
identification and implementation of projects designed to eliminate
the backlog of abuse and neglect cases, including the temporary
hiring of additional judges, extension of court hours, and other
projects designed to reduce existing caseloads.
“(8) The administrative efficiency and effectiveness of the
Nation’s abuse and neglect courts would be further strengthened by
improving the quality and availability of training for judges, court
personnel, agency attorneys, guardians ad litem, volunteers who
participate in court-appointed special advocate (CASA) programs, and
attorneys who represent the children and the parents of children in
abuse and neglect proceedings.
“(9) While recognizing that abuse and neglect courts in this
country are already committed to the quality administration of
justice, the performance of such courts would be even further
enhanced by the development of models and educational opportunities
that reinforce court projects that have already been developed,
including models for case-flow procedures, case management,
representation of children, automated interagency interfaces, and
`best practices’ standards.
“(10) Judges, magistrates, commissioners, and other judicial
officers play a central and vital role in ensuring that proceedings
in our Nation’s abuse and neglect courts are run efficiently and
effectively. The performance of those individuals in such courts can
only be further enhanced by training, seminars, and an ongoing
opportunity to exchange ideas with their peers.
“(11) Volunteers who participate in court-appointed special
advocate (CASA) programs play a vital role as the eyes and ears of
abuse and neglect courts in proceedings conducted by, or under the
supervision of, such courts and also bring increased public scrutiny
of the abuse and neglect court system. The Nation’s abuse and
neglect courts would benefit from an expansion of this program to
currently underserved communities.
“(12) Improved computerized case-tracking systems,
comprehensive training, and development of, and education on, model
abuse and neglect court systems, particularly with respect to
underserved areas, would significantly further the purposes of the
Adoption and Safe Families Act of 1997 by reducing the average
length of an abused and neglected child’s stay in foster care,
improving the quality of decision-making and court services provided
to children and families, and increasing the number of adoptions.
“SEC. 3. DEFINITIONS.
“In this Act:

[[Page 1665]]

“(1) Abuse and neglect courts.–The term `abuse and neglect
courts’ means the State and local courts that carry out State or
local laws requiring proceedings (conducted by or under the
supervision of the courts)–
“(A) that implement part B and part E of title IV of the
Social Security Act (42 U.S.C. 620 et seq.; 670 et seq.)
(including preliminary disposition of such proceedings);
“(B) that determine whether a child was abused or
neglected;
“(C) that determine the advisability or appropriateness of
placement in a family foster home, group home, or a special
residential care facility; or
“(D) that determine any other legal disposition of a child
in the abuse and neglect court system.
“(2) Agency attorney.–The term `agency attorney’ means an
attorney or other individual, including any government attorney,
district attorney, attorney general, State attorney, county
attorney, city solicitor or attorney, corporation counsel, or
privately retained special prosecutor, who represents the State or
local agency administrating the programs under parts B and E of
title IV of the Social Security Act (42 U.S.C. 620 et seq.; 670 et
seq.) in a proceeding conducted by, or under the supervision of, an
abuse and neglect court, including a proceeding for termination of
parental rights.
“SEC. 4. GRANTS TO STATE COURTS AND LOCAL COURTS TO AUTOMATE THE DATA
COLLECTION AND TRACKING OF PROCEEDINGS IN ABUSE AND NEGLECT
COURTS.
“(a) Authority To Award Grants.–
“(1) In general.–Subject to paragraph (2), the Attorney
General, acting through the Office of Juvenile Justice and
Delinquency Prevention of the Office of Justice Programs, shall
award grants in accordance with this section to State courts and
local courts for the purposes of–
“(A) enabling such courts to develop and implement
automated data collection and case-tracking systems for
proceedings conducted by, or under the supervision of, an abuse
and neglect court;
“(B) encouraging the replication of such systems in abuse
and neglect courts in other jurisdictions; and
“(C) requiring the use of such systems to evaluate a
court’s performance in implementing the requirements of parts B
and E of title IV of the Social Security Act (42 U.S.C. 620 et
seq.; 670 et seq.).
“(2) Limitations.–
“(A) Number of grants.–Not less than 20 nor more than 50
grants may be awarded under this section.
“(B) Per state limitation.–Not more than 2 grants
authorized under this section may be awarded per State.
“(C) Use of grants.–Funds provided under a grant made
under this section may only be used for the purpose of
developing, implementing, or enhancing automated data collection
and case-tracking systems for proceedings conducted by, or under
the supervision of, an abuse and neglect court.
“(b) Application.–
“(1) In general.–A State court or local court may submit an
application for a grant authorized under this section at such time
and in such manner as the Attorney General may determine.
“(2) Information required.–An application for a grant
authorized under this section shall contain the following:
“(A) A description of a proposed plan for the development,
implementation, and maintenance of an automated data collection
and case-tracking system for proceedings conducted by, or under
the supervision of, an abuse and neglect court, including a
proposed budget for the plan and a request for a specific
funding amount.
“(B) A description of the extent to which such plan and
system are able to be replicated in abuse and neglect courts of
other jurisdictions that specifies the common case-tracking data
elements of the proposed system, including, at a minimum–
“(i) identification of relevant judges, court, and
agency personnel;
“(ii) records of all court proceedings with regard to
the abuse and neglect case, including all court findings and
orders (oral and written); and
“(iii) relevant information about the subject child,
including family information and the reason for court
supervision.
“(C) In the case of an application submitted by a local
court, a description of how the plan to implement the proposed
system was developed in consultation with related State courts,
particularly with regard to a State court improvement plan
funded under section 13712 of the Omnibus Budget Reconciliation
Act of 1993 (42 U.S.C. 670 note) [now 42 U.S.C. 629h] if there
is such a plan in the State.
“(D) In the case of an application that is submitted by a
State court, a description of how the proposed system will
integrate with a State court improvement plan funded under
section 13712 of such Act if there is such a plan in the State.
“(E) After consultation with the State agency responsible
for the administration of parts B and E of title IV of the
Social Security Act (42 U.S.C. 620 et seq.; 670 et seq.)–
“(i) a description of the coordination of the proposed
system with other child welfare data collection systems,
including the statewide automated child welfare information
system (SACWIS) and the adoption and foster care analysis
and reporting system (AFCARS) established pursuant to
section 479 of the Social Security Act (42 U.S.C. 679); and
“(ii) an assurance that such coordination will be
implemented and maintained.
“(F) Identification of an independent third party that will
conduct ongoing evaluations of the feasibility and
implementation of the plan and system and a description of the
plan for conducting such evaluations.
“(G) A description or identification of a proposed funding
source for completion of the plan (if applicable) and
maintenance of the system after the conclusion of the period for
which the grant is to be awarded.
“(H) An assurance that any contract entered into between
the State court or local court and any other entity that is to
provide services for the development, implementation, or
maintenance of the system under the proposed plan will require
the entity to agree to allow for replication of the services
provided, the plan, and the system, and to refrain from
asserting any proprietary interest in such services for purposes
of allowing the plan and system to be replicated in another
jurisdiction.
“(I) An assurance that the system established under the
plan will provide data that allows for evaluation (at least on
an annual basis) of the following information:
“(i) The total number of cases that are filed in the
abuse and neglect court.
“(ii) The number of cases assigned to each judge who
presides over the abuse and neglect court.
“(iii) The average length of stay of children in foster
care.
“(iv) With respect to each child under the jurisdiction
of the court–
“(I) the number of episodes of placement in foster care;
“(II) the number of days placed in foster care and the type
of placement (foster family home, group home, or special
residential care facility);
“(III) the number of days of in-home supervision; and
“(IV) the number of separate foster care placements.
“(v) The number of adoptions, guardianships, or other
permanent dispositions finalized.

[[Page 1666]]

“(vi) The number of terminations of parental rights.
“(vii) The number of child abuse and neglect
proceedings closed that had been pending for 2 or more
years.
“(viii) With respect to each proceeding conducted by,
or under the supervision of, an abuse and neglect court–
“(I) the timeliness of each stage of the proceeding from
initial filing through legal finalization of a
permanency plan (for both contested and uncontested
hearings);
“(II) the number of adjournments, delays, and continuances
occurring during the proceeding, including
identification of the party requesting each adjournment,
delay, or continuance and the reasons given for the
request;
“(III) the number of courts that conduct or supervise the
proceeding for the duration of the abuse and neglect
case;
“(IV) the number of judges assigned to the proceeding for the
duration of the abuse and neglect case; and
“(V) the number of agency attorneys, children’s attorneys,
parent’s attorneys, guardians ad litem, and volunteers
participating in a court-appointed special advocate
(CASA) program assigned to the proceeding during the
duration of the abuse and neglect case.
“(J) A description of how the proposed system will reduce
the need for paper files and ensure prompt action so that cases
are appropriately listed with national and regional adoption
exchanges, and public and private adoption services.
“(K) An assurance that the data collected in accordance
with subparagraph (I) will be made available to relevant
Federal, State, and local government agencies and to the public.
“(L) An assurance that the proposed system is consistent
with other civil and criminal information requirements of the
Federal Government.
“(M) An assurance that the proposed system will provide
notice of timeframes required under the Adoption and Safe
Families Act of 1997 (Public Law 105-89; 111 Stat. 2115) for
individual cases to ensure prompt attention and compliance with
such requirements.
“(c) Conditions for Approval of Applications.–
“(1) Matching requirement.–
“(A) In general.–A State court or local court awarded a
grant under this section shall expend $1 for every $3 awarded
under the grant to carry out the development, implementation,
and maintenance of the automated data collection and case-
tracking system under the proposed plan.
“(B) Waiver for hardship.–The Attorney General may waive
or modify the matching requirement described in subparagraph (A)
in the case of any State court or local court that the Attorney
General determines would suffer undue hardship as a result of
being subject to the requirement.
“(C) Non-federal expenditures.–
“(i) Cash or in kind.–State court or local court
expenditures required under subparagraph (A) may be in cash
or in kind, fairly evaluated, including plant, equipment, or
services.
“(ii) No credit for pre-award expenditures.–Only State
court or local court expenditures made after a grant has
been awarded under this section may be counted for purposes
of determining whether the State court or local court has
satisfied the matching expenditure requirement under
subparagraph (A).
“(2) Notification to state or appropriate child welfare
agency.–No application for a grant authorized under this section
may be approved unless the State court or local court submitting the
application demonstrates to the satisfaction of the Attorney General
that the court has provided the State, in the case of a State court,
or the appropriate child welfare agency, in the case of a local
court, with notice of the contents and submission of the
application.
“(3) Considerations.–In evaluating an application for a grant
under this section the Attorney General shall consider the
following:
“(A) The extent to which the system proposed in the
application may be replicated in other jurisdictions.
“(B) The extent to which the proposed system is consistent
with the provisions of, and amendments made by, the Adoption and
Safe Families Act of 1997 (Public Law 105-89; 111 Stat. 2115),
and parts B and E of title IV of the Social Security Act (42
U.S.C. 620 et seq.; 670 et seq.).
“(C) The extent to which the proposed system is feasible
and likely to achieve the purposes described in subsection
(a)(1).
“(4) Diversity of awards.–The Attorney General shall award
grants under this section in a manner that results in a reasonable
balance among grants awarded to State courts and grants awarded to
local courts, grants awarded to courts located in urban areas and
courts located in rural areas, and grants awarded in diverse
geographical locations.
“(d) Length of Awards.–No grant may be awarded under this section
for a period of more than 5 years.
“(e) Availability of Funds.–Funds provided to a State court or
local court under a grant awarded under this section shall remain
available until expended without fiscal year limitation.
“(f) Reports.–
“(1) Annual report from grantees.–Each State court or local
court that is awarded a grant under this section shall submit an
annual report to the Attorney General that contains–
“(A) a description of the ongoing results of the
independent evaluation of the plan for, and implementation of,
the automated data collection and case-tracking system funded
under the grant; and
“(B) the information described in subsection (b)(2)(I).
“(2) Interim and final reports from attorney general.–
“(A) Interim reports.–Beginning 2 years after the date of
enactment of this Act [Oct. 17, 2000], and biannually thereafter
until a final report is submitted in accordance with
subparagraph (B), the Attorney General shall submit to Congress
interim reports on the grants made under this section.
“(B) Final report.–Not later than 90 days after the
termination of all grants awarded under this section, the
Attorney General shall submit to Congress a final report
evaluating the automated data collection and case-tracking
systems funded under such grants and identifying successful
models of such systems that are suitable for replication in
other jurisdictions. The Attorney General shall ensure that a
copy of such final report is transmitted to the highest State
court in each State.
“(g) Authorization of Appropriations.–There is authorized to be
appropriated to carry out this section, $10,000,000 for the period of
fiscal years 2001 through 2005.
“SEC. 5. GRANTS TO REDUCE PENDING BACKLOGS OF ABUSE AND NEGLECT CASES
TO PROMOTE PERMANENCY FOR ABUSED AND NEGLECTED CHILDREN.
“(a) Authority To Award Grants.–The Attorney General, acting
through the Office of Juvenile Justice and Delinquency Prevention of the
Office of Justice Programs and in collaboration with the Secretary of
Health and Human Services, shall award grants in accordance with this
section to State courts and local courts for the purposes of–
“(1) promoting the permanency goals established in the Adoption
and Safe Families Act of 1997 (Public Law 105-89; 111 Stat. 2115);
and
“(2) enabling such courts to reduce existing backlogs of cases
pending in abuse and neglect courts, es

[[Page 1667]]

pecially with respect to cases to terminate parental rights and
cases in which parental rights to a child have been terminated but
an adoption of the child has not yet been finalized.
“(b) Application.–A State court or local court shall submit an
application for a grant under this section, in such form and manner as
the Attorney General shall require, that contains a description of the
following:
“(1) The barriers to achieving the permanency goals established
in the Adoption and Safe Families Act of 1997 that have been
identified.
“(2) The size and nature of the backlogs of children awaiting
termination of parental rights or finalization of adoption.
“(3) The strategies the State court or local court proposes to
use to reduce such backlogs and the plan and timetable for doing so.
“(4) How the grant funds requested will be used to assist the
implementation of the strategies described in paragraph (3).
“(c) Use of Funds.–Funds provided under a grant awarded under this
section may be used for any purpose that the Attorney General determines
is likely to successfully achieve the purposes described in subsection
(a), including temporarily–
“(1) establishing night court sessions for abuse and neglect
courts;
“(2) hiring additional judges, magistrates, commissioners,
hearing officers, referees, special masters, and other judicial
personnel for such courts;
“(3) hiring personnel such as clerks, administrative support
staff, case managers, mediators, and attorneys for such courts; or
“(4) extending the operating hours of such courts.
“(d) Number of Grants.–Not less than 15 nor more than 20 grants
shall be awarded under this section.
“(e) Availability of Funds.–Funds awarded under a grant made under
this section shall remain available for expenditure by a grantee for a
period not to exceed 3 years from the date of the grant award.
“(f) Report on Use of Funds.–Not later than the date that is
halfway through the period for which a grant is awarded under this
section, and 90 days after the end of such period, a State court or
local court awarded a grant under this section shall submit a report to
the Attorney General that includes the following:
“(1) The barriers to the permanency goals established in the
Adoption and Safe Families Act of 1997 that are or have been
addressed with grant funds.
“(2) The nature of the backlogs of children that were pursued
with grant funds.
“(3) The specific strategies used to reduce such backlogs.
“(4) The progress that has been made in reducing such backlogs,
including the number of children in such backlogs–
“(A) whose parental rights have been terminated; and
“(B) whose adoptions have been finalized.
“(5) Any additional information that the Attorney General
determines would assist jurisdictions in achieving the permanency
goals established in the Adoption and Safe Families Act of 1997.
“(g) Authorization of Appropriations.–There are authorized to be
appropriated for the period of fiscal years 2001 and 2002 $10,000,000
for the purpose of making grants under this section.
“SEC. 6. GRANTS TO EXPAND THE COURT-APPOINTED SPECIAL ADVOCATE PROGRAM
IN UNDERSERVED AREAS.
“(a) Grants To Expand CASA Programs in Underserved Areas.–The
Administrator of the Office of Juvenile Justice and Delinquency
Prevention of the Department of Justice shall make a grant to the
National Court-Appointed Special Advocate Association for the purposes
of–
“(1) expanding the recruitment of, and building the capacity
of, court-appointed special advocate programs located in the 15
largest urban areas;
“(2) developing regional, multijurisdictional court-appointed
special advocate programs serving rural areas; and
“(3) providing training and supervision of volunteers in court-
appointed special advocate programs.
“(b) Limitation on Administrative Expenditures.–Not more than 5
percent of the grant made under this subsection may be used for
administrative expenditures.
“(c) Determination of Urban and Rural Areas.–For purposes of
administering the grant authorized under this subsection, the
Administrator of the Office of Juvenile Justice and Delinquency
Prevention of the Department of Justice shall determine whether an area
is one of the 15 largest urban areas or a rural area in accordance with
the practices of, and statistical information compiled by, the Bureau of
the Census.
“(d) Authorization of Appropriations.–There is authorized to be
appropriated to make the grant authorized under this section, $5,000,000
for the period of fiscal years 2001 and 2002.”

Entitlement Funding for State Courts To Assess and Improve Handling of
Proceedings Relating to Foster Care and Adoption

Pub. L. 103-66, title XIII, Sec. 13712, Aug. 10, 1993, 107 Stat.
655, as amended by Pub. L. 105-89, title III, Sec. 305(a)(3), Nov. 19,
1997, 111 Stat. 2130; Pub. L. 107-133, title I, Sec. 107(a)-(d), Jan.
17, 2002, 115 Stat. 2418, which was formerly set out as a note under
this section, was renumbered section 438 of the Social Security Act by
Pub. L. 107-133, title I, Sec. 107(e), Jan. 17, 2002, 115 Stat. 2419,
and is classified to section 629h of this title.

Abandoned Infants Assistance

Pub. L. 100-505, Oct. 18, 1988, 102 Stat. 2533, as amended by Pub.
L. 102-236, Secs. 2-8, Dec. 12, 1991, 105 Stat. 1812-1816; Pub. L.
104-235, title II, Secs. 221, 222, Oct. 3, 1996, 110 Stat. 3091,
3092; Pub. L. 108-36, title III, Secs. 301-305, June 25, 2003, 117
Stat. 822-824, known as the Abandoned Infants Assistance Act of 1988,
and formerly set out as a note under this section, provided temporary
authority for the Secretary of Health and Human Services to make grants
to public and nonprofit private entities for the purpose of developing,
implementing, and operating projects to prevent the abandonment of
infants and young children and required the Secretary to provide for
evaluations of those projects. As amended by Pub. L. 102-236, Sec. 8,
the program became permanent, and Pub. L. 100-505, except title II, was
transferred to subchapter IV-A (Sec. 5117aa et seq.) of chapter 67 of
this title.

Study of Foster Care and Adoption Assistance Programs; Report to
Congress Not Later Than October 1, 1983

Section 101(b) of Pub. L. 96-272 directed Secretary of Health,
Education, and Welfare to conduct a study of programs of foster care and
adoption assistance established under part IV-E of the Social Security
Act (this part) and submit to Congress, not later than Oct. 1, 1983, a
full and complete report thereon, together with his recommendations as
to (A) whether such part IV-E should be continued, and if so, (B) the
changes (if any) which should be made in such part IV-E.

From the U.S. Code Online via GPO Access
[www.gpoaccess.gov]
[Laws in effect as of January 3, 2007]
[CITE: 42USC671]

[Page 1667-1674]

TITLE 42–THE PUBLIC HEALTH AND WELFARE

CHAPTER 7–SOCIAL SECURITY

SUBCHAPTER IV–GRANTS TO STATES FOR AID AND SERVICES TO NEEDY FAMILIES
WITH CHILDREN AND FOR CHILD-WELFARE SERVICES

Part E–Federal Payments for Foster Care and Adoption Assistance

Sec. 671. State plan for foster care and adoption assistance

(a) Requisite features of State plan

In order for a State to be eligible for payments under this part, it
shall have a plan approved by the Secretary which–
(1) provides for foster care maintenance payments in accordance
with section 672 of this title and for adoption assistance in
accordance with section 673 of this title;
(2) provides that the State agency responsible for administering
the program author

[[Page 1668]]

ized by subpart 1 of part B of this subchapter shall administer, or
supervise the administration of, the program authorized by this
part;
(3) provides that the plan shall be in effect in all political
subdivisions of the State, and, if administered by them, be
mandatory upon them;
(4) provides that the State shall assure that the programs at
the local level assisted under this part will be coordinated with
the programs at the State or local level assisted under parts A and
B of this subchapter, under subchapter XX of this chapter, and under
any other appropriate provision of Federal law;
(5) provides that the State will, in the administration of its
programs under this part, use such methods relating to the
establishment and maintenance of personnel standards on a merit
basis as are found by the Secretary to be necessary for the proper
and efficient operation of the programs, except that the Secretary
shall exercise no authority with respect to the selection, tenure of
office, or compensation of any individual employed in accordance
with such methods;
(6) provides that the State agency referred to in paragraph (2)
(hereinafter in this part referred to as the “State agency”) will
make such reports, in such form and containing such information as
the Secretary may from time to time require, and comply with such
provisions as the Secretary may from time to time find necessary to
assure the correctness and verification of such reports;
(7) provides that the State agency will monitor and conduct
periodic evaluations of activities carried out under this part;
(8) subject to subsection (c), provides safeguards which
restrict the use of or disclosure of information concerning
individuals assisted under the State plan to purposes directly
connected with (A) the administration of the plan of the State
approved under this part, the plan or program of the State under
part A, B, or D of this subchapter or under subchapter I, V, X, XIV,
XVI (as in effect in Puerto Rico, Guam, and the Virgin Islands),
XIX, or XX of this chapter, or the supplemental security income
program established by subchapter XVI of this chapter, (B) any
investigation, prosecution, or criminal or civil proceeding,
conducted in connection with the administration of any such plan or
program, (C) the administration of any other Federal or federally
assisted program which provides assistance, in cash or in kind, or
services, directly to individuals on the basis of need, (D) any
audit or similar activity conducted in connection with the
administration of any such plan or program by any governmental
agency which is authorized by law to conduct such audit or activity,
and (E) reporting and providing information pursuant to paragraph
(9) to appropriate authorities with respect to known or suspected
child abuse or neglect; and the safeguards so provided shall
prohibit disclosure, to any committee or legislative body (other
than an agency referred to in clause (D) with respect to an activity
referred to in such clause), of any information which identifies by
name or address any such applicant or recipient; except that nothing
contained herein shall preclude a State from providing standards
which restrict disclosures to purposes more limited than those
specified herein, or which, in the case of adoptions, prevent
disclosure entirely;
(9) provides that the State agency will–
(A) report to an appropriate agency or official, known or
suspected instances of physical or mental injury, sexual abuse
or exploitation, or negligent treatment or maltreatment of a
child receiving aid under part B of this subchapter or this part
under circumstances which indicate that the child’s health or
welfare is threatened thereby; and
(B) provide such information with respect to a situation
described in subparagraph (A) as the State agency may have;

(10) provides for the establishment or designation of a State
authority or authorities which shall be responsible for establishing
and maintaining standards for foster family homes and child care
institutions which are reasonably in accord with recommended
standards of national organizations concerned with standards for
such institutions or homes, including standards related to admission
policies, safety, sanitation, and protection of civil rights, and
provides that the standards so established shall be applied by the
State to any foster family home or child care institution receiving
funds under this part or part B of this subchapter;
(11) provides for periodic review of the standards referred to
in the preceding paragraph and amounts paid as foster care
maintenance payments and adoption assistance to assure their
continuing appropriateness;
(12) provides for granting an opportunity for a fair hearing
before the State agency to any individual whose claim for benefits
available pursuant to this part is denied or is not acted upon with
reasonable promptness;
(13) provides that the State shall arrange for a periodic and
independently conducted audit of the programs assisted under this
part and part B of this subchapter, which shall be conducted no less
frequently than once every three years;
(14) provides (A) specific goals (which shall be established by
State law on or before October 1, 1982) for each fiscal year
(commencing with the fiscal year which begins on October 1, 1983) as
to the maximum number of children (in absolute numbers or as a
percentage of all children in foster care with respect to whom
assistance under the plan is provided during such year) who, at any
time during such year, will remain in foster care after having been
in such care for a period in excess of twenty-four months, and (B) a
description of the steps which will be taken by the State to achieve
such goals;
(15) provides that–
(A) in determining reasonable efforts to be made with
respect to a child, as described in this paragraph, and in
making such reasonable efforts, the child’s health and safety
shall be the paramount concern;
(B) except as provided in subparagraph (D), reasonable
efforts shall be made to preserve and reunify families–

[[Page 1669]]

(i) prior to the placement of a child in foster care, to
prevent or eliminate the need for removing the child from
the child’s home; and
(ii) to make it possible for a child to safely return to
the child’s home;

(C) if continuation of reasonable efforts of the type
described in subparagraph (B) is determined to be inconsistent
with the permanency plan for the child, reasonable efforts shall
be made to place the child in a timely manner in accordance with
the permanency plan (including, if appropriate, through an
interstate placement), and to complete whatever steps are
necessary to finalize the permanent placement of the child;
(D) reasonable efforts of the type described in subparagraph
(B) shall not be required to be made with respect to a parent of
a child if a court of competent jurisdiction has determined
that–
(i) the parent has subjected the child to aggravated
circumstances (as defined in State law, which definition may
include but need not be limited to abandonment, torture,
chronic abuse, and sexual abuse);
(ii) the parent has–
(I) committed murder (which would have been an
offense under section 1111(a) of title 18, if the
offense had occurred in the special maritime or
territorial jurisdiction of the United States) of
another child of the parent;
(II) committed voluntary manslaughter (which would
have been an offense under section 1112(a) of title 18,
if the offense had occurred in the special maritime or
territorial jurisdiction of the United States) of
another child of the parent;
(III) aided or abetted, attempted, conspired, or
solicited to commit such a murder or such a voluntary
manslaughter; or
(IV) committed a felony assault that results in
serious bodily injury to the child or another child of
the parent; or

(iii) the parental rights of the parent to a sibling
have been terminated involuntarily;

(E) if reasonable efforts of the type described in
subparagraph (B) are not made with respect to a child as a
result of a determination made by a court of competent
jurisdiction in accordance with subparagraph (D)–
(i) a permanency hearing (as described in section
675(5)(C) of this title), which considers in-State and out-
of-State permanent placement options for the child, shall be
held for the child within 30 days after the determination;
and
(ii) reasonable efforts shall be made to place the child
in a timely manner in accordance with the permanency plan,
and to complete whatever steps are necessary to finalize the
permanent placement of the child; and

(F) reasonable efforts to place a child for adoption or with
a legal guardian, including identifying appropriate in-State and
out-of-State placements \1\ may be made concurrently with
reasonable efforts of the type described in subparagraph (B);
—————————————————————————
\1\ So in original. Probably should be followed by a comma.

(16) provides for the development of a case plan (as defined in
section 675(1) of this title) for each child receiving foster care
maintenance payments under the State plan and provides for a case
review system which meets the requirements described in section
675(5)(B) of this title with respect to each such child;
(17) provides that, where appropriate, all steps will be taken,
including cooperative efforts with the State agencies administering
the program funded under part A of this subchapter and plan approved
under part D of this subchapter, to secure an assignment to the
State of any rights to support on behalf of each child receiving
foster care maintenance payments under this part;
(18) not later than January 1, 1997, provides that neither the
State nor any other entity in the State that receives funds from the
Federal Government and is involved in adoption or foster care
placements may–
(A) deny to any person the opportunity to become an adoptive
or a foster parent, on the basis of the race, color, or national
origin of the person, or of the child, involved; or
(B) delay or deny the placement of a child for adoption or
into foster care, on the basis of the race, color, or national
origin of the adoptive or foster parent, or the child, involved;

(19) provides that the State shall consider giving preference to
an adult relative over a non-related caregiver when determining a
placement for a child, provided that the relative caregiver meets
all relevant State child protection standards;
(20)(A) unless an election provided for in subparagraph (B) is
made with respect to the State, provides procedures for criminal
records checks, including fingerprint-based checks of national crime
information databases (as defined in section 534(e)(3)(A) \2\ of
title 28), for any prospective foster or adoptive parent before the
foster or adoptive parent may be finally approved for placement of a
child regardless of whether foster care maintenance payments or
adoption assistance payments are to be made on behalf of the child
under the State plan under this part, including procedures requiring
that–
—————————————————————————
\2\ See References in Text note below.
—————————————————————————
(i) in any case involving a child on whose behalf such
payments are to be so made in which a record check reveals a
felony conviction for child abuse or neglect, for spousal abuse,
for a crime against children (including child pornography), or
for a crime involving violence, including rape, sexual assault,
or homicide, but not including other physical assault or
battery, if a State finds that a court of competent jurisdiction
has determined that the felony was committed at any time, such
final approval shall not be granted; and

[[Page 1670]]

(ii) in any case involving a child on whose behalf such
payments are to be so made in which a record check reveals a
felony conviction for physical assault, battery, or a drug-
related offense, if a State finds that a court of competent
jurisdiction has determined that the felony was committed within
the past 5 years, such final approval shall not be granted; and
\3\
—————————————————————————
\3\ So in original. The word “and” probably should not appear.

(B) subparagraph (A) shall not apply to a State plan if, on or
before September 30, 2005, the Governor of the State has notified
the Secretary in writing that the State has elected to make
subparagraph (A) inapplicable to the State, or if, on or before such
date, the State legislature, by law, has elected to make
subparagraph (A) inapplicable to the State; \4\
—————————————————————————
\4\ So in original. Probably should be followed by “and”.
—————————————————————————
(C) provides that the State shall–
(i) check any child abuse and neglect registry maintained by
the State for information on any prospective foster or adoptive
parent and on any other adult living in the home of such a
prospective parent, and request any other State in which any
such prospective parent or other adult has resided in the
preceding 5 years, to enable the State to check any child abuse
and neglect registry maintained by such other State for such
information, before the prospective foster or adoptive parent
may be finally approved for placement of a child, regardless of
whether foster care maintenance payments or adoption assistance
payments are to be made on behalf of the child under the State
plan under this part;
(ii) comply with any request described in clause (i) that is
received from another State; and
(iii) have in place safeguards to prevent the unauthorized
disclosure of information in any child abuse and neglect
registry maintained by the State, and to prevent any such
information obtained pursuant to this subparagraph from being
used for a purpose other than the conducting of background
checks in foster or adoptive placement cases;

(21) provides for health insurance coverage (including, at State
option, through the program under the State plan approved under
subchapter XIX of this chapter) for any child who has been
determined to be a child with special needs, for whom there is in
effect an adoption assistance agreement (other than an agreement
under this part) between the State and an adoptive parent or
parents, and who the State has determined cannot be placed with an
adoptive parent or parents without medical assistance because such
child has special needs for medical, mental health, or
rehabilitative care, and that with respect to the provision of such
health insurance coverage–
(A) such coverage may be provided through 1 or more State
medical assistance programs;
(B) the State, in providing such coverage, shall ensure that
the medical benefits, including mental health benefits, provided
are of the same type and kind as those that would be provided
for children by the State under subchapter XIX of this chapter;
(C) in the event that the State provides such coverage
through a State medical assistance program other than the
program under subchapter XIX of this chapter, and the State
exceeds its funding for services under such other program, any
such child shall be deemed to be receiving aid or assistance
under the State plan under this part for purposes of section
1396a(a)(10)(A)(i)(I) of this title; and
(D) in determining cost-sharing requirements, the State
shall take into consideration the circumstances of the adopting
parent or parents and the needs of the child being adopted
consistent, to the extent coverage is provided through a State
medical assistance program, with the rules under such program;

(22) provides that, not later than January 1, 1999, the State
shall develop and implement standards to ensure that children in
foster care placements in public or private agencies are provided
quality services that protect the safety and health of the children;
(23) provides that the State shall not–
(A) deny or delay the placement of a child for adoption when
an approved family is available outside of the jurisdiction with
responsibility for handling the case of the child; or
(B) fail to grant an opportunity for a fair hearing, as
described in paragraph (12), to an individual whose allegation
of a violation of subparagraph (A) of this paragraph is denied
by the State or not acted upon by the State with reasonable
promptness;

(24) include \5\ a certification that, before a child in foster
care under the responsibility of the State is placed with
prospective foster parents, the prospective foster parents will be
prepared adequately with the appropriate knowledge and skills to
provide for the needs of the child, and that such preparation will
be continued, as necessary, after the placement of the child;
—————————————————————————
\5\ So in original. Probably should be “includes”.
—————————————————————————
(25) provide \6\ that the State shall have in effect procedures
for the orderly and timely interstate placement of children; and
procedures implemented in accordance with an interstate compact, if
incorporating with the procedures prescribed by paragraph (26),
shall be considered to satisfy the requirement of this paragraph;
—————————————————————————
\6\ So in original. Probably should be “provides”.
—————————————————————————
(26) provides that–
(A)(i) within 60 days after the State receives from another
State a request to conduct a study of a home environment for
purposes of assessing the safety and suitability of placing a
child in the home, the State shall, directly or by contract–
(I) conduct and complete the study; and
(II) return to the other State a report on the results
of the study, which shall ad

[[Page 1671]]

dress the extent to which placement in the home would meet
the needs of the child; and

(ii) in the case of a home study begun on or before
September 30, 2008, if the State fails to comply with clause (i)
within the 60-day period as a result of circumstances beyond the
control of the State (such as a failure by a Federal agency to
provide the results of a background check, or the failure by any
entity to provide completed medical forms, requested by the
State at least 45 days before the end of the 60-day period), the
State shall have 75 days to comply with clause (i) if the State
documents the circumstances involved and certifies that
completing the home study is in the best interests of the child;
except that
(iii) this subparagraph shall not be construed to require
the State to have completed, within the applicable period, the
parts of the home study involving the education and training of
the prospective foster or adoptive parents;
(B) the State shall treat any report described in
subparagraph (A) that is received from another State or an
Indian tribe (or from a private agency under contract with
another State) as meeting any requirements imposed by the State
for the completion of a home study before placing a child in the
home, unless, within 14 days after receipt of the report, the
State determines, based on grounds that are specific to the
content of the report, that making a decision in reliance on the
report would be contrary to the welfare of the child; and
(C) the State shall not impose any restriction on the
ability of a State agency administering, or supervising the
administration of, a State program operated under a State plan
approved under this part to contract with a private agency for
the conduct of a home study described in subparagraph (A); and

(27) provides that, with respect to any child in foster care
under the responsibility of the State under this part or part B and
without regard to whether foster care maintenance payments are made
under section 672 of this title on behalf of the child, the State
has in effect procedures for verifying the citizenship or
immigration status of the child.

(b) Approval of plan by Secretary

The Secretary shall approve any plan which complies with the
provisions of subsection (a) of this section.

(c) Use of child welfare records in State court proceedings

Subsection (a)(8) shall not be construed to limit the flexibility of
a State in determining State policies relating to public access to court
proceedings to determine child abuse and neglect or other court hearings
held pursuant to part B or this part, except that such policies shall,
at a minimum, ensure the safety and well-being of the child, parents,
and family.

(Aug. 14, 1935, ch. 531, title IV, Sec. 471, as added Pub. L. 96-272,
title I, Sec. 101(a)(1), June 17, 1980, 94 Stat. 501; amended Pub. L.
97-35, title XXIII, Sec. 2353(r), Aug. 13, 1981, 95 Stat. 874; Pub. L.
97-248, title I, Sec. 160(d), Sept. 3, 1982, 96 Stat. 400; Pub. L. 98-
378, Sec. 11(c), Aug. 16, 1984, 98 Stat. 1318; Pub. L. 99-514, title
XVII, Sec. 1711(c)(2), Oct. 22, 1986, 100 Stat. 2784; Pub. L. 100-485,
title II, Sec. 202(c)(1), Oct. 13, 1988, 102 Stat. 2378; Pub. L. 101-
508, title V, Sec. 5054(b), Nov. 5, 1990, 104 Stat. 1388-229; Pub. L.
103-66, title XIII, Sec. 13711(b)(4), Aug. 10, 1993, 107 Stat. 655; Pub.
L. 103-432, title II, Sec. 203(b), Oct. 31, 1994, 108 Stat. 4456; Pub.
L. 104-188, title I, Sec. 1808(a), Aug. 20, 1996, 110 Stat. 1903; Pub.
L. 104-193, title I, Sec. 108(d)(2), title V, Sec. 505, Aug. 22, 1996,
110 Stat. 2166, 2278; Pub. L. 105-33, title V, Sec. 5591(b), Aug. 5,
1997, 111 Stat. 643; Pub. L. 105-89, title I, Secs. 101(a), 106,
title III, Secs. 306, 308, Nov. 19, 1997, 111 Stat. 2116, 2120,
2132, 2133; Pub. L. 105-200, title III, Sec. 301(a), July 16, 1998, 112
Stat. 658; Pub. L. 106-169, title I, Sec. 112(a), title IV, Sec. 401(o),
Dec. 14, 1999, 113 Stat. 1829, 1859; Pub. L. 109-171, title VII,
Sec. 7401(c), Feb. 8, 2006, 120 Stat. 150; Pub. L. 109-239, Secs. 3,
4(a)(1), 10, July 3, 2006, 120 Stat. 508, 513; Pub. L. 109-248, title I,
Sec. 152(a), (b), July 27, 2006, 120 Stat. 608, 609; Pub. L. 109-432,
div. B, title IV, Sec. 405(c)(1)(B)(i), Dec. 20, 2006, 120 Stat. 2999.)

Amendment of Subsection (a)(20)

Pub. L. 109-248, title I, Sec. 152(b), (c)(2), July 27, 2006,
120 Stat. 609, provided that, effective Oct. 1, 2008, and applicable
with respect to payments under this part for calendar quarters
beginning on or after Oct. 1, 2008, subsection (a)(20) of this
section is amended:
(1) in subparagraph (A), by striking “unless an election
provided for in subparagraph (B) is made with respect to the
State,” in introductory provisions; and
(2) by striking subparagraph (B) and redesignating subparagraph
(C) as subparagraph (B).

References in Text

Parts A, B, and D of this subchapter, referred to in subsecs.
(a)(2), (4), (8)-(10), (13), (17), (27) and (c), are classified to
sections 601 et seq., 620 et seq., and 651 et seq., respectively, of
this title.
Section 534(e)(3)(A) of title 28, referred to in subsec. (a)(20)(A),
was redesignated section 534(f)(3)(A) of title 28 by Pub. L. 109-248,
title I, Sec. 153(i), July 27, 2006, 120 Stat. 611.

Amendments

2006–Subsec. (a)(8). Pub. L. 109-171, Sec. 7401(c)(1), inserted
“subject to subsection (c),” after “(8)”.
Subsec. (a)(15)(C). Pub. L. 109-239, Sec. 10(a), inserted
“(including, if appropriate, through an interstate placement)” after
“accordance with the permanency plan”.
Subsec. (a)(15)(E)(i). Pub. L. 109-239, Sec. 10(b), inserted “,
which considers in-State and out-of-State permanent placement options
for the child,” before “shall”.
Subsec. (a)(15)(F). Pub. L. 109-239, Sec. 10(c), inserted “,
including identifying appropriate in-State and out-of-State placements”
before “may”.
Subsec. (a)(20)(A). Pub. L. 109-248, Sec. 152(a)(1)(A)(i), which
directed amendment of subpar. (A) by inserting “, including
fingerprint-based checks of national crime information databases (as
defined in section 534(e)(3)(A) of title 28),” after “criminal records
checks” and substituting “regardless of whether foster care
maintenance payments or adoption assistance payments are to be made on
behalf of the child” for “on whose behalf foster care maintenance
payments or adoption assistance payments are to be made” in the matter
preceding

[[Page 1672]]

“clause (I)”, was executed by making the insertion and substitution in
the introductory provisions preceding cl. (i), to reflect the probable
intent of Congress.
Subsec. (a)(20)(A)(i), (ii). Pub. L. 109-248, Sec. 152(a)(1)(A)(ii),
inserted “involving a child on whose behalf such payments are to be so
made” after “in any case”.
Subsec. (a)(20)(B). Pub. L. 109-248, Sec. 152(a)(2), inserted “, on
or before September 30, 2005,” after “plan if” and “, on or before
such date,” after “or if”.
Subsec. (a)(20)(C). Pub. L. 109-248, Sec. 152(a)(1)(B), added
subpar. (C).
Subsec. (a)(25). Pub. L. 109-239, Sec. 3, added par. (25).
Subsec. (a)(26). Pub. L. 109-239, Sec. 4(a)(1), added par. (26).
Subsec. (a)(27). Pub. L. 109-432 added par. (27).
Subsec. (c). Pub. L. 109-171, Sec. 7401(c)(2), added subsec. (c).
1999–Subsec. (a)(8). Pub. L. 106-169, Sec. 401(o), struck out
“(including activities under part F of this subchapter)” after “part
A, B, or D of this subchapter”.
Subsec. (a)(24). Pub. L. 106-169, Sec. 112(a), added par. (24).
1998–Subsec. (a)(23). Pub. L. 105-200 added par. (23).
1997–Subsec. (a)(15). Pub. L. 105-89, Sec. 101(a), amended par.
(15) generally. Prior to amendment, par. (15) read as follows:
“effective October 1, 1983, provides that, in each case, reasonable
efforts will be made (A) prior to the placement of a child in foster
care, to prevent or eliminate the need for removal of the child from his
home, and (B) to make it possible for the child to return to his
home;”.
Subsec. (a)(17). Pub. L. 105-33, Sec. 5591(b)(1), struck out “and”
at end.
Subsec. (a)(18). Pub. L. 105-33, Sec. 5591(b)(3), redesignated par.
(18), relating to preference to adult relatives, as (19).
Pub. L. 105-33, Sec. 5591(b)(2), substituted “; and” for period at
end of par. (18) relating to denial or delay of adoption or foster care
on basis of race, color, or national origin.
Subsec. (a)(19). Pub. L. 105-33, Sec. 5591(b)(3), redesignated par.
(18), relating to preference to adult relatives, as (19).
Subsec. (a)(20). Pub. L. 105-89, Sec. 106, added par. (20).
Subsec. (a)(21). Pub. L. 105-89, Sec. 306, added par. (21).
Subsec. (a)(22). Pub. L. 105-89, Sec. 308, added par. (22).
1996–Subsec. (a)(17). Pub. L. 104-193, Sec. 108(d)(2), substituted
“program funded under part A of this subchapter and plan approved under
part D of this subchapter” for “plans approved under parts A and D of
this subchapter”.
Subsec. (a)(18). Pub. L. 104-193, Sec. 505(3), added par. (18)
relating to preference to adult relatives.
Pub. L. 104-188, Sec. 1808(a)(3), added par. (18) relating to denial
or delay of adoption or foster care on basis of race, color, or national
origin.
1994–Subsec. (b). Pub. L. 103-432 struck out after first sentence
“However, in any case in which the Secretary finds, after reasonable
notice and opportunity for a hearing, that a State plan which has been
approved by the Secretary no longer complies with the provisions of
subsection (a) of this section, or that in the administration of the
plan there is a substantial failure to comply with the provisions of the
plan, the Secretary shall notify the State that further payments will
not be made to the State under this part, or that such payments will be
made to the State but reduced by an amount which the Secretary
determines appropriate, until the Secretary is satisfied that there is
no longer any such failure to comply, and until he is so satisfied he
shall make no further payments to the State, or shall reduce such
payments by the amount specified in his notification to the State.”
1993–Subsec. (a)(2). Pub. L. 103-66 substituted “subpart 1 of part
B” for “part B”.
1990–Subsec. (a)(8)(E). Pub. L. 101-508, Sec. 5054(b)(2), added cl.
(E).
Subsec. (a)(9). Pub. L. 101-508, Sec. 5054(b)(1), amended par. (9)
generally. Prior to amendment, par. (9) read as follows: “provides that
where any agency of the State has reason to believe that the home or
institution in which a child resides whose care is being paid for in
whole or in part with funds provided under this part or part B of this
subchapter is unsuitable for the child because of the neglect, abuse, or
exploitation of such child, it shall bring such condition to the
attention of the appropriate court or law enforcement agency;”.
1988–Subsec. (a)(8)(A). Pub. L. 100-485 substituted “part A, B, or
D of this subchapter (including activities under part F of this
subchapter)” for “part A, B, C, or D of this subchapter”.
1986–Subsec. (a)(1), (11). Pub. L. 99-514 substituted “adoption
assistance” for “adoption assistance payments”.
1984–Subsec. (a)(17). Pub. L. 98-378 added par. (17).
1982–Subsec. (a)(10). Pub. L. 97-248 amended Pub. L. 97-35,
Sec. 2353(r), generally. See 1981 Amendment note below.
1981–Subsec. (a)(10). Pub. L. 97-35, Sec. 2353(r), as amended by
Pub. L. 97-248, Sec. 160(d), substituted provisions that in order for a
State to be eligible for payments under this part a State plan must
provide for establishment or designation of a State authority or
authorities responsible for standards for foster family homes and child
care institutions, such standards to be reasonably in accord with
recommended standards of national organizations concerned with standards
for such institutions or homes, including standards related to admission
policies, safety, sanitation, and protection of civil rights, for
provisions that such State plan provide for the application of standards
referred to in section 1397b(d)(1) of this title.

Effective Date of 2006 Amendment

Pub. L. 109-432, div. B, title IV, Sec. 405(c)(1)(B)(iii), Dec. 20,
2006, 120 Stat. 2999, provided that: “The amendments made by this
subparagraph [amending this section and section 1320a-2a of this title]
shall take effect on the date that is 6 months after the date of the
enactment of this Act [Dec. 20, 2006].”
Pub. L. 109-248, title I, Sec. 152(c), July 27, 2006, 120 Stat. 609,
provided that:
“(1) General.–The amendments made by subsection (a) [amending this
section] shall take effect on October 1, 2006, and shall apply with
respect to payments under part E of title IV of the Social Security Act
[this part] for calendar quarters beginning on or after such date,
without regard to whether regulations to implement the amendments are
promulgated by such date.
“(2) Elimination of opt-out.–The amendments made by subsection (b)
[amending this section] shall take effect on October 1, 2008, and shall
apply with respect to payments under part E of title IV of the Social
Security Act for calendar quarters beginning on or after such date,
without regard to whether regulations to implement the amendments are
promulgated by such date.
“(3) Delay permitted if state legislation required.–If the
Secretary of Health and Human Services determines that State legislation
(other than legislation appropriating funds) is required in order for a
State plan under section 471 of the Social Security Act [this section]
to meet the additional requirements imposed by the amendments made by a
subsection of this section, the plan shall not be regarded as failing to
meet any of the additional requirements before the first day of the
first calendar quarter beginning after the first regular session of the
State legislature that begins after the otherwise applicable effective
date of the amendments. If the State has a 2-year legislative session,
each year of the session is deemed to be a separate regular session of
the State legislature.”
Amendment by Pub. L. 109-239 effective Oct. 1, 2006, except as
otherwise provided, and applicable to payments under this part and part
B of this subchapter for calendar quarters beginning on or after Oct. 1,
2006, without regard to whether regulations have been promulgated by
Oct. 1, 2006, and with delay permitted if State legislation is required,
see section 14 of Pub. L. 109-239, set out as a note under section 622
of this title.

[[Page 1673]]

Amendment by Pub. L. 109-171 effective as if enacted on Oct. 1,
2005, except as otherwise provided, see section 7701 of Pub. L. 109-171,
set out as a note under section 603 of this title.

Effective Date of 1999 Amendment

Pub. L. 106-169, title I, Sec. 112(b), Dec. 14, 1999, 113 Stat.
1829, provided that: “The amendments made by subsection (a) [amending
this section] shall take effect on October 1, 1999.”
Amendment by section 401(o) of Pub. L. 106-169 effective as if
included in the enactment of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, Pub. L. 104-193, see section
401(q) of Pub. L. 106-169, set out as a note under section 602 of this
title.

Effective Date of 1998 Amendment

Pub. L. 105-200, title III, Sec. 301(d), July 16, 1998, 112 Stat.
658, provided that: “The amendments made by this section [amending this
section and section 674 of this title] shall take effect as if included
in the enactment of section 202 of the Adoption and Safe Families Act of
1997 (Public Law 105-89; 111 Stat. 2125) [see Effective Date of 1997
Amendments note below].”

Effective Date of 1997 Amendments

Amendment by Pub. L. 105-89 effective Nov. 19, 1997, except as
otherwise provided, with delay permitted if State legislation is
required, see section 501 of Pub. L. 105-89, set out as a note under
section 622 of this title.
Amendment by Pub. L. 105-33 effective as if included in the
enactment of title V of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Pub. L. 104-193, see section 5593 of Pub. L.
105-33, set out as a note under section 622 of this title.

Effective Date of 1996 Amendment

Amendment by section 108(d)(2) of Pub. L. 104-193 effective July 1,
1997, with transition rules relating to State options to accelerate such
date, rules relating to claims, actions, and proceedings commenced
before such date, rules relating to closing out of accounts for
terminated or substantially modified programs and continuance in office
of Assistant Secretary for Family Support, and provisions relating to
termination of entitlement under AFDC program, see section 116 of Pub.
L. 104-193, as amended, set out as an Effective Date note under section
601 of this title.

Effective Date of 1994 Amendment

Section 203(c)(2) of Pub. L. 103-432 provided that: “The amendment
made by subsection (b) [amending this section] shall take effect on
October 1, 1995.”

Effective Date of 1993 Amendment

Amendment by Pub. L. 103-66 effective with respect to calendar
quarters beginning on or after Oct. 1, 1993, see section 13711(c) of
Pub. L. 103-66, set out as a note under section 622 of this title.

Effective Date of 1990 Amendment

Section 5054(c) of Pub. L. 101-508 provided that: “The amendments
made by this section [amending this section and section 602 of this
title] shall apply with respect to benefits for months beginning on or
after the first day of the 6th calendar month following the month in
which this Act is enacted [November 1990].”

Effective Date of 1988 Amendment

Section 204 of title II of Pub. L. 100-485 provided that:
“(a) In General.–Except as provided in subsection (b), the
amendments made by this title [enacting sections 681 to 687 of this
title, amending this section, sections 602, 603, 607, 1308, 1396a, and
1396s of this title, and section 51 of Title 26, Internal Revenue Code,
repealing sections 609, 614, 630 to 632, and 633 to 645 of this title,
and enacting provisions set out as notes under section 681 of this
title] shall become effective on October 1, 1990.
“(b) Special Rules.–(1)(A) If any State makes the changes in its
State plan approved under section 402 of the Social Security Act
[section 602 of this title] that are required in order to carry out the
amendments made by this title and formally notifies the Secretary of
Health and Human Services of its desire to become subject to such
amendments as of the first day of any calendar quarter beginning on or
after the date on which the proposed regulations of the Secretary of
Health and Human Services are published under section 203(a) [42 U.S.C.
671 note] (or, if earlier, the date on which such regulations are
required to be published under such section) and before October 1, 1990,
such amendments shall become effective with respect to that State as of
such first day.
“(B) In the case of any State in which the amendments made by this
title become effective (in accordance with subparagraph (A)) with
respect to any quarter of a fiscal year beginning before October 1,
1990, the limitation applicable to the State for the fiscal year under
section 403(k)(2) of the Social Security Act [section 603(k)(2) of this
title] (as added by section 201(c)(1) of this Act) shall be an amount
that bears the same ratio to such limitation (as otherwise determined
with respect to the State for the fiscal year) as the number of quarters
in the fiscal year throughout which such amendments apply to the State
bears to 4.
“(2) Section 403(l)(3) of the Social Security Act [section
603(l)(3) of this title] (as added by section 201(c)(2) of this Act) is
repealed effective October 1, 1995 (except that subparagraph (A) of such
section 403(l)(3) shall remain in effect for purposes of applying any
reduction in payment rates required by such subparagraph for any of the
fiscal years specified therein); and section 403(l)(4) of such Act (as
so added) is repealed effective October 1, 1998.
“(3) Subsections (a), (c), and (d) of section 203 of this Act [42
U.S.C. 671 note, 681 notes], and section 486 of the Social Security Act
[section 686 of this title] (as added by section 201(b) of this Act),
shall become effective on the date of the enactment of this Act [Oct.
13, 1988].”

Effective Date of 1986 Amendment

Amendment by Pub. L. 99-514 applicable only with respect to
expenditures made after Dec. 31, 1986, see section 1711(d) of Pub. L.
99-514, set out as a note under section 670 of this title.

Effective Date of 1984 Amendment

Amendment by Pub. L. 98-378 effective Oct. 1, 1984, and applicable
to collections made on or after that date, see section 11(e) of Pub. L.
98-378, set out as a note under section 654 of this title.

Effective Date of 1982 Amendment

Amendment by Pub. L. 97-248 effective Oct. 1, 1981, see section
160(e) of Pub. L. 97-248, set out as a note under section 1301 of this
title.

Effective Date of 1981 Amendment

Amendment by Pub. L. 97-35 effective Oct. 1, 1981, except as
otherwise explicitly provided, see section 2354 of Pub. L. 97-35, set
out as an Effective Date note under section 1397 of this title.

Regulations

Section 203(a) of title II of Pub. L. 100-485 provided that: “Not
later than 6 months after the date of the enactment of this Act [Oct.
13, 1988], the Secretary of Health and Human Services (in this section
referred to as the `Secretary’) shall issue proposed regulations for the
purpose of implementing the amendments made by this title [see Effective
Date of 1988 Amendment note above], including regulations establishing
uniform data collection requirements. The Secretary shall publish final
regulations for such purpose not later than one year after the date of
the enactment of this Act. Regulations issued under this subsection
shall be developed by the Secretary in consultation with the Secretary
of

[[Page 1674]]

Labor and with the responsible State agencies described in section
482(a)(2) of the Social Security Act [section 682(a)(2) of this
title].”

Preservation of Reasonable Parenting

Section 401 of Pub. L. 105-89 provided that: “Nothing in this Act
[see Short Title of 1997 Amendment note set out under section 1305 of
this title] is intended to disrupt the family unnecessarily or to
intrude inappropriately into family life, to prohibit the use of
reasonable methods of parental discipline, or to prescribe a particular
method of parenting.”

Reporting Requirements

Section 402 of Pub. L. 105-89 provided that: “Any information
required to be reported under this Act [see Short Title of 1997
Amendment note set out under section 1305 of this title] shall be
supplied to the Secretary of Health and Human Services through data
meeting the requirements of the Adoption and Foster Care Analysis and
Reporting System established pursuant to section 479 of the Social
Security Act (42 U.S.C. 679), to the extent such data is available under
that system. The Secretary shall make such modifications to regulations
issued under section 479 of such Act with respect to the Adoption and
Foster Care Analysis and Reporting System as may be necessary to allow
States to obtain data that meets the requirements of such system in
order to satisfy the reporting requirements of this Act.”

Purchase of American-Made Equipment and Products

Section 406 of Pub. L. 105-89 provided that:
“(a) In General.–It is the sense of the Congress that, to the
greatest extent practicable, all equipment and products purchased with
funds made available under this Act [see Short Title of 1997 Amendment
note set out under section 1305 of this title] should be American-made.
“(b) Notice Requirement.–In providing financial assistance to, or
entering into any contract with, any entity using funds made available
under this Act, the head of each Federal agency, to the greatest extent
practicable, shall provide to such entity a notice describing the
statement made in subsection (a) by the Congress.”

Has the Pendulum Swung to the Point of Sense or Nonsense by Kate Chester


Kate Chester
Lawoffice@connectNC.net
UASFA: Has the pendulum swung to the point of sense or nonsense?
“The pendulum of the mind oscillates between sense and nonsense, not between right and wrong.” Carl G. Jung, Memories, Dreams, Reflections 154 (1989 Vintage ed.).
UBackground and Historical Context
The Adoption and Safe Families Act [ASFA] was passed by Congress with wide bipartisan support, in 1997. The Department of Health and Human Services was tasked with the responsibility of turning the new law into regulations for implementation. The ASFA regulations went into effect on 27 March 2000. The law is extremely complex, and there are exceptions to many of the basic rules. Although this paper sets out the most important features of ASFA, any attorney practicing in this area should read the law carefully and in depth, and study materials which have been published to explain the law.
ASFA was not, by far, the first attempt which had been made to address the problem of children whose parents had either become unable to care for them, or who had allegedly abused or neglected them. The history of child welfare in America is best symbolized by a pendulum which swings between two opposing viewpoints: one which believes that when a child’s own parents cannot take care of him/her, the child should be given to someone who, ostensibly, can do a better job; and the viewpoint which says that families are important, and should be preserved whenever possible. Under the latter paradigm, it is in the best interests of the child for the parent(s) to be given assistance and some reasonable amount of time to see if they can become better able to take care of their own children. The first group believes that the safety of the child should be the paramount consideration; the second group believes that more children can be safe in their own homes, and that children fare better when they are given an opportunity to maintain their bonds with their parents and their community. Underlying both philosophies is a strong foundation of Constitutional law which has consistently held that parents have fundamental rights to the care, custody, and control of their own children,TPD7DPT while also recognizing that parental rights are not absolute.TPD8DPT
When the history of ‘child-saving’ is recounted, the story of Mary Ellen is usually told. Legend has it that in 1875, a New York City child named Mary Ellen Wilson was defended by the Society for the Prevention of Cruelty to Animals, because she had been abused by her mother, and there were laws on the books to protect animals, but not children.

In reality, New York had had a law against child abuse since 1833, and the woman accused of beating her was not her mother, but a woman with whom Mary Ellen had been sent to live. Mary Ellen was an illegitimate child, and had been placed by the New York City Department of Charities – - a precursor of today’s foster care – - as an indentured servant. She was supposedly under supervision of the Board of Charities when the abuse occurred.TPD10DPT
From the late 19th century to the early 20th century, as many as 200,000 “orphans” were shipped to the mid-west as part of a plan called the “placing out system.” Charles Loring Brace, a minister and forerunner of the social work profession, considered the children of immigrants – - particularly offspring of the Italian and Irish Catholic – - to be racially inferior. He opined that, if these children were removed quickly enough from their “depraved” parents, and placed in rural areas with Protestant families, they might rise above the “inferior culture” into which they had been born, and become responsible citizens.TPD11DPT
Aside from the inherent bigotry, and other glaringly obvious issues and problems with this ‘system,’ data from historical research indicates that approximately 30-44% of these children were not orphans at all, but had at least one living parent.TPD12DPT Allegations were made of child-stealing, and lurking under the more overt appeal to Christian charity was a subtext of free labor, as many of the children who were sent west were used as free farm labor.TPD13DPT
To some extent, the ‘placing out system’ was a reaction to the institutionalization of children in orphanages. One hundred years before the case of Mary Ellen, New York City had opened one of the nation’s first poorhouses.TPD14DPT Early on, orphaned children were often housed along with the aged and the insane. By the end of the 19PthP century, some estimate that 100,000 children were living in children’s orphanages.TPD15DPT The pendulum swung between attempting to keep children near their families, communities, and roots by placing them in orphanages, or sending them away to new homes.
Around the turn of the century, the federal government began to take notice and to involve itself in the welfare of America’s children. In 1909, the White House Conference on the Care of Dependent Children was held.TPD16DPT The conference asserted that poverty alone did not make a parent unfit. It led to the establishment of a significant government support program which came to be known as the “Mother’s Pension,” or the “Widow’s Pension,” based on the tenet that “family life . . . is sapped in its foundations when the mothers of young children work for wages.”TPD17DPT The 1934 Social Security Act was an outgrowth, and included Title IV, which created Aid to Dependent Children, which in 1964 became Aid to Families with Dependent Children [AFDC].TPD18DPT
A radical change in the way child welfare was approached came in the early 1960′s. In 1961, the term, “battered child syndrome” was coined, and physicians established that a child could continue to suffer physically and emotionally long after bruises and broken bones had appeared to heal.TPD19DPT By 1966, all 50 states had passed legislation requiring doctors and other health care workers to report suspected cases of child abuse.
In 1974, Congress passed the Federal Child Abuse Prevention and Treatment Act. States were required to strengthen mandatory reporting laws or lose federal money. Courts around the nation were flooded with parents accused of intentionally injuring their children.TPD21DPT A philosophical dichotomy emerged between those who believed that children should be protected by being removed from unsafe and potentially unsafe families, opposed by civil libertarians who believed that, “in the haste to ferret out abuse[,] the rights of children and families were being trampled.”TPD22DPT
By 1977, there were in excess of 500,000 children in foster care in the United States.TPD23DPT In response to those rising numbers, in 1980, Congress passed the Adoption Assistance and Child Welfare Act [AACWA].TPD24DPT
AACWA attempted to strike a balance between keeping children safe from abuse while at the same time preventing the unnecessary severing of children from their families of origin and their communities. The federal government provided funding to help states pay for both adoption and reunification costs, not just foster care.TPD25DPT The law required courts to make findings that leaving a child with his/her parent(s) was “contrary to the welfare” of the child, and that “reasonable efforts” had been made to prevent removal.TPD26DPT
Critics of AACWA claimed that it placed too much emphasis on family preservation and reunification, and as a result, caused children to languish endlessly in foster care while their parents were given limitless time in which to cure alleged ills. They believed that under AACWA, children’s safety could not be ensured. AACWA supporters, on the other hand, saw children not as sole individuals, but as members of families and communities. They insisted that troubled families deserved an opportunity to try and reunify, and that diligent efforts should be made by the government to help them; but they also reluctantly conceded that once efforts had been made and had failed, children should then be freed for adoption. Within 2 years of the passage of AACWA, the number of children in foster care was cut almost in half from the 1977 figure.TPD27DPT
But, in the early years of the Reagan administration, there were broad-scale reductions in government spending on social welfare programs.TPD28DPT The Reagan administration attempted to get AACWA repealed, but when that failed, it dramatically cut funding for family preservation and reunification services, but placed no cap on foster care subsidies.TPD29DPT In 1989, the federal government spent more than $1 billion on foster care, but no more than $124 million on preventive services.TPD30DPT By 1994, foster care roles had dramatically increased, to more than 465,000 children. TPD31DPT
So before AACWA was given any reasonable chance of success, the pendulum swung once more, away from the focus on family preservation, and making reasonable efforts at reunifying troubled families, and towards safety as the primary goal. Richard Gelles, a professor of sociology at the University of Rhode Island, was one of the advocates of swinging the pendulum back in the ‘safety’ direction. He wrote a landmark book called, UThe Book of DavidU, in which he describes the horror of coming to believe that a small boy was
preservation/reunification and not cognizant enough of safety and the need to protect children from abusive parents.TPD32DPT He had previously been an advocate of family preservation, but changed his mind as a result of a case he referred to as the “David Edwards case.” He asserted that the family preservation model was a failure, that too many children died as a result, and it was necessary to “put children first.”TPD33DPT
Calling for a new “Child-centered Policy,” Gelles stated that,
The essential first step in creating a safe world for children is to abandon the fantasy that child welfare agencies can balance the goals of protecting children and preserving families, adopting instead a child-centered policy of family services. This is not a new policy, but rather a return to the policy of the early 1960s that established child safety as the overriding goal of the child welfare system.
If we have learned anything in the past thirty years, it is that we cannot achieve the delicate balance between keeping abused children safe and keeping them with their parents. The data we have on child welfare interventions support a child-centered policy that aims at reducing the risk for children and matching interventions to their needs. More important, the interventions must be applied efficiently enough that children do not languish in administrative limbo while court cases drag on.TPD34DPT
On the opposing side, Richard Wexler has been among the strongest proponents of giving family preservation a reasonable chance. Wexler, author of UWounded Innocents: The Real Victims of the War Against Child AbuseU, wrote the following in a law journal article, highly critical of policies put into play by ASFA:
ASFA was the culmination of an assault on safe, effective programs to keep families together that began in the 1990′s. The law has caused untold misery for thousands of children. While supposedly intended to solve the problems of the foster care system, it has, in fact, worsened those problems. In the name of promoting adoption, it is creating a generation of legal orphans. And worst of all, in the name of child safety, it has made children less safe.
There is nothing really new about the ASFA approach. Its guiding philosophy can be boiled down to a single sentence: “take the child and run.”TPD35DPT
As is often the case, the truth probably lies somewhere in between. There ought to be a way, in the 21PstP Century, in the wealthiest nation on earth, to both keep most children safe most of the time, AND, at the same time, to preserve most families most of the time. The balance of this manuscript will focus on the most important features and requirements ofASFA, and how the current interpretation and application of the regulations appear to be having draconian consequences, especially for those living in poverty and for children of color. Some of the promises of ASFA have been realized; other goals either been not
realized, or have been achieved at the price of unnecessarily destroying families bonds.
UKey Provisions of ASFA
The primary goals of ASFA were to:
(1) shift the emphasis from making efforts to reunify families to ensuring that
children were safe;
(2) achieve permanent homes more quickly, that is decrease the amount of time
which children spend in foster care and move them more quickly either back
to their own homes or into adoptive homes; and
(3) increase the number of adoptions from the pool of children in foster care who are
available for adoption.TPD36DPT
To achieve those goals, ASFA set time restrictions which states have to meet in order to receive Title IV reimbursement money from the federal government.TPD37DPT The federal government reimburses state governments for approximately 65% of their foster care costs.TPD38DPT
Under ASFA, the following deadlines must be met in order for states to receive their federal funding:
• Within 60 days from the date upon which the child is removed from his/her home,
a Case Plan must be established.TPD39DPT
The term “case plan” means a written document which includes at least the
following: “a plan assuring that the child receives safe and proper care and
that Uthe services are provided to parentsU, child and foster parents Uin order to
Uimprove conditions in the parents’ home, facilitate return of the child to his
Uown safe homeU”TPD40DPT
• In the very first court order, the court must make a finding that “continuation in the
home is contrary to the welfare of the child.”
“Contrary to the welfare findings must be ‘detailed’ and be in the court order or
hearing transcript. Affidavits, nunc pro tunc orders, or orders simply referringto a state law requiring such findings for removal do not meet this
requirement.”TPD41DPT
• Within 60 days from the date upon which the child is removed from his/her home,
the court must make a finding that “reasonable efforts have been made to
prevent the child’s removal from home.TPD42DPT
Under certain circumstances, reasonable efforts need not be made. For example, reasonable efforts need not be made when removal is necessary because there is no way to ensure the child’s safety while providing services.TPD43DPT
• Within 6 months of the date upon which the child “enters foster care,” a six-moth
periodic review must be held. The date on which the child entered foster care
is one of the following, which ever occurred first:
(a) the date upon which the court found the child to be abused or neglected;
(b) 60 days after the child’s actual removal from his/her home.TPD44DPT
• Within 12 months of the date upon which the child enters foster care, the court
must make a finding that the agency has made reasonable efforts to finalize a
permanent plan.TPD45DPT
“Reasonable efforts findings must be detailed – they must include relevant
case facts. These findings must be in the court order or hearing
transcript. Affidavits, nunc pro tunc orders, and orders simply referring
to state laws requiring reasonable efforts for removal do not meet the
requirement . . . The exact wording of the federal statute does not have to be used as long as the findings make clear that the agency made reasonable efforts.”TPD46DPT
Judicial determinations that reasonable efforts have been made are considered “important safeguard(s) against inappropriate agency action” which are not supposed to become “a mere pro forma exercise in paper shuffling to obtain Federal funding.”TPD47DPT While specific terminology need not be used, “[i]t must be clear, however, that the court really determined that the agency actually made reasonable efforts.”TPD48DPT
• If the child remains in foster care for 15 out of 22 months, the agency MUST file a
termination petition.TPD49DPT Additionally, if a court determines that a child is an
abandoned infant, or has been convicted of a particular felony,TPD50DPT then the agency must file the Petition within 60 days of the date on which the finding is
made.TPD51DPT
These are the only points in time, and the only circumstances under which an agency is REQUIRED to file a TPR Petition. This latter deadline – - mandating that an agency must file a termination petition if the child remains out of his/her home for the previous 15 out of 22 months – - is the most radical and controversial of the ASFA provisions.
UThe Problems with ASFA
First of all, ASFA is built on a false premise. Statistics show that adoptions climbed steadily through the 1990′s, before ASFA was implemented.TPD52DPT So it was not necessary to implement ASFA in order to increase adoptions. Adoptions decreased in 2001, increased slightly in 2002, but then dropped again in 2003.TPD53DPT
The pool of children available for adoptions is constantly being refilled as terminations increase. It is common knowledge that younger children are more likely to be adopted. Children of color are less likely to be adopted than Caucasian children. If states continue to terminate parents’ rights at a faster rate than adoptive homes can be found for children, are we doing much more than using the law to bastardize children who could have gone home, safely – - and perhaps more quickly – - had their parents had been provided a little assistance and a little more time? In 2002, there were 67,000 terminations and 53,000 adoptions, nationwide; in 2003, terminations increased to 68,000, but adoptions dropped to 49,000.TPD54DPT
A second false premise is the assumption that children must be safer in foster care than they are with their own families. The fact is, no adult – - parent or foster caregiver – - can guarantee a child’s safety 100% of the time. As our Supreme Court held in UIn re StumboU,
On this record, we have a report of a circumstance that probably happens repeatedly across our state, where a toddler slips out of a house without the awareness of the parent or caregiver — no matter how conscientious or diligent the parent or care giver might be. While no one wants that to happen, such a lapse does not in and of itself constitute “neglect” under N.C.G.S. § 7B-101. However, a single report of a naked, unsupervised two-year-old in the driveway of her home does not trigger the investigative requirements of N.C.G.S. § 7B-302.TPD55DPT
Placement in FC does not guarantee safety. In November 2000, Time Magazine published the results of an investigation which they had conducted, in an article called, “The Crisis of Foster Care.” In the article, the author stated that,
Many foster parents . . .continue to act selflessly as important way stations for at-risk kids while their biological parents get their lives together. However, neglect and a quagmire of child-swallowingbureaucracies plague the system. And the incidence of neglect, physical and sexual abuse of children in the various foster-care systems is feared to be significantly higher than the incidence in the general population. Nobody bothers to keep an accurate count, but in round numbers, more than 7,500 children are tortured under what is technically government protection.TPD56DPT
The National Coalition for Child Protection Reform has found statistics to support the
conclusion that children are always not safe in foster care: a child is twice as likely to die from abuse suffered in foster care as in the general population. NCCPR cites studies which show that in Baltimore, the rate of substantiated cases of sexual abuse was more than four times higher in foster care than in the general population. A study of foster children in Oregon and Washington state found that nearly 1/3 of the children reported being abused by a foster parent or other adult in a foster home.TPD57DPT
Beyond the flawed premise behind ASFA, the problems with the law tend to fall into two categories. There are both inherent flaws, flaws in the way ASFA was written; and there are also flaws in the way ASFA is applied. The most troubling aspect of the way ASFA is structured is that state governments are paid to adopt children out; no incentives are paid for placing a child in any other permanent home, including back with their parents.
ASFA was intended to encourage adoption, so it was written to provide adoption incentive payments to states. A baseline was established for each state, based on an average of the number of adoptions which took place between 1995 and 1997. States receive a bonus for each child adopted above the baseline in a given year. “Regular” children are worth $4,000; special needs children are worth $6,000. TPD58DPT In some cities and counties, quotas have been imposed.TPD59DPT
As soon as money enters the picture, conflict of interest – - or at least the potential for conflict of interest – - becomes possible. There are no incentive payments or awards for achieving any other permanent plan for a child. Specifically, there is no financial incentive for reuniting children with their own parents. For example, if a sibling-group of 3 children will bring an $18,000 bonus to North Carolina, and a social worker is sitting on the fence trying to decide whether to recommend either reunification or adoption, isn’t there at least the possibility that the money will influence her decision? When deciding where children should live, money shouldn’t be the deciding factor. Bonuses should either be eliminated, or should be given not just for adoption, but for achieving any safe permanent home for a child, regardless of what the permanent plan is.
A second problem with ASFA is that the term ‘reasonable efforts’ is not defined. The law does not provide a list or even any guidelines for what types of efforts are reasonable. Consequently, when social workers draft so-called ‘reasonable efforts reports,’ they are often replete with items such as, “took Junior to the dentist.” Taking Junior to the dentist is not a reasonable effort towards reunifying a family; it is something the government must dounder the parens patriae doctrine because the state has taken away the parent’s chance to do it.
Another problem inherent in ASFA is that it treats the cases of abused children the same
way it treats cases which involve neglected children. Intentional abuse is a different problem from neglect. Abuse cases should be fast-tracked, and ASFA makes some provision for that, under limited circumstances.TPD60DPT In 2002, the federal government determined that of the approximately 35,000 children reported as maltreated, approximately 90% were
substantiated for neglect, and about 7% were substantiated for abuse.TPD61DPT
This failure to separate abuse of children from neglect of children, and to treat them distinctly differently, however, is at the very root of the argument between the “safety at the expense of family preservation” advocates, and the “family preservation at the expense of safety” advocates. That children should be safe is a given. But how much consideration is ever given to the damage which is done to children by removing them from the only parent(s) they have ever known? “Think for a moment what it means to rip children from their parents and their brothers and sisters and place them in the care of strangers . . . . Tearing children from their parents almost always leaves emotional scars.”TPD62DPT
Putting children in foster care does not guarantee their safety. And although those of us who represent parent-respondents are inevitably focussed on the rights of our clients, don’t children have a right to know their parents, especially when many parents are ‘guilty’ of nothing more than being economically disadvantaged?
Neglect, as opposed to abuse, is not usually the result of intentional acts, and more often than not, is driven by poverty. Parents who are already struggling because of poverty-related issues should not be further victimized by having their children removed. When children and their parent(s) are living in poverty, then genuine reasonable efforts should be made to keep the family together, a reasonable spectrum services should be provided, and a reasonable amount of time should be allowed for them to make their home environment safe. ASFA does not address the root cause of why most children enter foster care, which is because of poverty-related issues.
In the year 2000, nearly 20% of North Carolina’s children were living in poverty.TPD63DPT “Poverty is confused with neglect . . . because ‘it often comes packaged with depression and anger, poor nutrition and housekeeping, lack of education, and medical care, leaving children alone, exposing children to improper influences.’”TPD64DPT
Parents who are actively working to regain custody of their children should not have their rights terminated based on the children being in foster care for 15 out of 22 months. It is somewhere between totally unrealistic and impossible for parent(s) living in poverty to overcome the multiple issues which they face in such a short period of time. Often they are told they have only a year – - not 15 months – - to: “find and maintain stable housing,” “find and maintain stable employment”; get a substance abuse assessment and follow allrecommendations; overcome addiction; attend parenting classes; attend counseling/training sessions for domestic violence; get a psychological evaluation and follow all recommendations. These are common case plan goals, which parents are frequently expected to complete in 12 months. How can anyone maintain stable housing or employment in one year’s time (or less)? especially when, more often than not, no reasonable effort at all is being made to assist them.
Too often, parental rights are being terminated in cases like these:
(1) the parent failed to complete her case plan; the mother lived in a rural area, and
could not afford a telephone. She could use a neighbor’s phone for emergencies, but
the case plan required her to call the social worker 3 times a week. When the
neighbor got tired of the mother using the phone so often, the mother had to walk 3
miles to get to a pay phone. She could not do it 3 times a week. By ‘failing to stay in
touch with the social worker,” she failed to comply with the case plan.
(2) the parents were temporarily living in their car; no, of course that is not a good
environment in which to raise children. But both parents had only worked factory
jobs, and the factory in which they had worked closed. The solution was not to take
the children away; the solution was to help the family find safe, affordable housing.
The parents looked for work but could not find jobs. They received no assistance
with job training, seeking employment, or seeking housing. Their rights to their 3
children were terminated.
(3) Mother smoked marijuana. Yes, of course it is illegal and wrong. However, she
never smoked it in front of her two sons. There was no evidence that her marijuana
use had any affect on the children. She had used it infrequently for many years, and
had never ‘graduated’ to crack/cocaine/heroine. She was told she had one year to
recover from her “addiction.” She was put on a waiting list, and could not get into a
substance abuse treatment program for 3 months. The brochure from the treatment
program says that it cannot be completed in a year, and most people take 2 years.
Her rights were terminated because she failed to complete her case plan in a year.
(4) House was “cluttered,” with piles of clothing left on beds, and dishes in the sink.
Children were removed due to an ‘injurious environment, and adjudicated to be
neglected.
(5) “Instability;” mother could not afford to buy a car, and could not afford auto
insurance. She worked minimum-wage jobs, and was a single parent while her
husband was incarcerated. She could not keep any one particular job for any length
of time because she lacked reliable transportation. Because she could not maintain
stable employment, she moved frequently. Her rights to her son, who was 6 months
old when he was removed from her care, were terminated when the child was 22
months old because the mother had not corrected the conditions which led to
removal.
Fifteen months is simply not a reasonable period of time in which to fix the long laundry-list of problems often seen in case plans, many of which have no impact on the child, and have nothing to do with making sure children are safe. For example, “instability” – - moving frequently – - almost certainly had less negative impact on the 6-month-old baby than removing him from his mother/primary caregiver did. If instability is a ground for termination, then the rights of nearly every parent serving in the military would need to be terminated.
ASFA has had a disproportionate impact on families of color. Dorothy Roberts, professor at Northwestern University School of Law, and author of UShattered Bonds: The Color of Child WelfareU, asserts that white children who are abused or neglected are twice as likely as Black children to receive in-home services, while Black children are far more likely to be removed from their homes.TPD65DPT Once in foster care, Black children tend to remain there longer than white children. “Nearly half of while children who are placed in foster care return home within three months; very few Black children do.”TPD66DPT
Statistics maintained by the federal Administration for Children and Families show that in North Carolina, in 2002, (the most recent year for which such statistics have been released,) Black children made up 25.9% of the population of children under 18, while on 30 September 2002, 44.7% of the children in foster care were Black. For the same year, 62.2% of children under 18 in North Carolina were White, but 45.5% of the children in foster care were White. So, even though there were approximately 2.5 times as many white children as Black living in North Carolina, there were roughly equal numbers of Black and White children in foster care. Of children waiting to be adopted, 47.2% were Black, while only 43.3% were White.TPD67DPT
As stated above, there are also flaws in the way ASFA is applied. First of all, states are free to shorten the deadlines imposed by ASFA. For example, in North Carolina, one ground for a terminating a parent’s rights to his/her children is if the parent “has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress has been made in correcting those conditions which led to removal . . . . “TPD68DPT
ASFA does not require termination under those circumstances; ASFA only requires that social services file a termination Petition if the child has been in placement in state-sponsored foster care for 15 out of the previous 22 months. Further, under ASFA, a child does not “enter foster care” on the date when s/he is removed from his/her parents’ home. A child enters foster care on either (a) the date upon which the court found the child to be abused or neglected; or (b) 60 days after the child’s actual removal from his/her home.TPD69DPT Therefore, under ASFA, a parent actually has 17 months to turn his or her life around, while North Carolina only allows that parent 12 months.
Further, the Petitioner is supposed to bear the burden of proving, by clear, cogent, and convincing evidence, that grounds exist for termination.TPD70DPT Yet, under the ground fortermination cited above, the burden is shifted to the parent; the parent must prove to the court’s satisfaction that s/he has corrected the conditions which led to removal.
It also appears clear that in many cases, no reasonable efforts are being made at all. As stated above,TPD71DPT ASFA UrequiresU reasonable efforts to be made; it is one of the foundational assumptions on which ASFA is built. In a recent case, a social worker stated that the Department had provided “extensive services.” But when cross examined by the mother’s attorney, the social worker testified that the mother had been ineligible for emergency financial assistance because the children had been removed, and that the only services which had been provided to the mother was that the Department had drafted a case plan, and that a social worker had given the mother occasional rides to visit with her son, since she did not own a car, and did not have access to public transportation. No reasonable efforts report was included in the court file.TPD72DPT In the author’s experience, this is fairly typical.
As stated above, findings that reasonable efforts have been made were considered “important safeguard(s) against inappropriate agency action,” and were not supposed to become “a mere pro forma exercise in paper shuffling to obtain Federal funding.”TPD73DPT Yet that is exactly what it has become in many cases in North Carolina. After examination of many court files and transcripts, it is this author’s experience that most findings that agencies have made reasonable efforts at reunification are not supported by clear, cogent, and convincing evidence.
An essential key to reunification between children and their parents is sufficient visitation.
Visitation between parents and children in out-of-home placements is vital. Studies show visitation is the most important factor in the reunification process. . . . In addition to assisting in visitation, the caseworker should be making consistent efforts to facilitate a meaningful relationship between parent and child. This includes regularly informing the parent about the child’s progress, and including the parent in health and educational decisions.TPD74DPT
Yet, in North Carolina cases, parents are frequently restricted to one hour a week of supervised visitation a week, even when the permanent plan for the child is to return home. Making reasonable efforts at reunification should include liberal visits between parents and children.
UHow are North Carolina’s Foster Children Faring Under ASFA?
In April of 2004, the New York Times published an article stating that Federal investigators had found widespread problems in the implementation of ASFA. The article stated that, “No state fully complies with standards established by the federal government to assess performance in protecting children and finding safe, permanent homes for those who havesuffered abuse or neglect.”TPD75DPT Further, there are 14 standards, 7 of which “focus on the safety and well-being of children, including the incidence of abuse and neglect, the time they spend in foster care and the stability of their living arrangements.” Sixteen states failed to meet all of those 7 standards, and one of the states which failed is North Carolina.
The 7 “outcome areas” in which North Carolina was “out of substantial compliance,” include the following:
Safety Outcomes
1. Children are, first and foremost, protected from abuse and neglect.
2. Children are safely maintained in their homes whenever possible and appropriate.
Permanency Outcomes
1. Children have permanency and stability in their living situations.
2. The continuity of family relationships and connections is preserved for children.
Child and Family Well-Being Outcomes
1. Families have enhanced capacity to provide for their children’s needs.
2. Children receive appropriate services to meet their educational needs.
3. Children receive adequate services to meet their physical and mental health needs.TPD76DPT
In other words, federal evaluators found that, despite implementation of ASFA’s mandated priority of “safety first,” North Carolina was not doing a sufficient job of keeping children safe, nor was North Carolina doing a sufficient job of maintaining children safely in their own homes whenever possible and appropriate. Additionally, children do not have permanency or stability in their living situations, or continuity with their family relationships and connections.
Another sign of North Carolina’s functioning in the environment created by ASFA is that in 2001, North Carolina earned $623, 679 in adoption bonus money for increasing the number of children adopted.TPD77DPT In 2003, North Carolina’s adoption bonus dwindled to $320,000.TPD78DPT In 2005, North Carolina did not earn any adoption bonus money at all.TPD79DPT
In raw numbers, in 2000, the year during which ASFA was implemented, 1,337 children were adopted in North Carolina. In 2001, the number was 1,327 (10 fewer). In 2002, the number was 1,324, another slight decrease from the previous year.TPD80DPT As for children still awaiting adoption, the numbers have declined, but not radically so. In 1999, before ASFA was implemented, there were 3,595 children waiting to be adopted; in 2000, the number increased to 3,709; in 2001, it decreased to 3,329; and in 2002, 3,130 children still waiting to be adopted.TPD81DPT

Conclusion:

The problems which ASFA was designed to solve will not be solved unless and until the root cause of the child welfare problem is addressed: poverty. There is simply no excuse for 20% of NC children to be living in poverty in 21PstP Century America. This author does not advocate that we return to a welfare system which involves no responsibility, and hand-outs of government checks. But at the same time, parents living in poverty should be given reasonable amounts of assistance for reasonable amounts of time, and they should be given a legitimate chance to address the issues which create barriers to them living safely with their children.
This is important, not just because parents have Constitutionally protected rights, but also because children should have the right and opportunity to know their parents and siblings and other relatives. In poverty-driven neglect cases, the government should be required to make genuine reasonable efforts. Further, what the government orders, the government should pay for; for example, if a trial court orders a parent to have psychological evaluation as a condition of reunification, and the parent is indigent, the government should pay for the evaluation. Indigent parents should not have their rights terminated if they fail to finish a case plan because they are unable to afford what the government orders them to do
In cases where there is clear evidence of intentional abuse, termination should be should be fast-tracked. If a parent has a subsequent child, after his/her rights are terminated to an abused child, s/he should bear the burden of proof that s/he is fit to parent that subsequent child.
“Permanent termination of parental rights has been described as the family law equivalent of the death penalty in a criminal case.”TPD82DPT
This Court’s decisions have by now made plain beyond the need for multiple citation that a parent’s desire for and right to “the companionship, care, custody, and management of his or her children” is an important interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.TPD83DPT
It is a fallacy to apply either/or thinking to child welfare cases: children should be both safe AND protected from unnecessary severance from their families of origin whenever preservation or reunification is reasonably possible. That is the place in the middle where the pendulum should ultimately settle, and where the law would make sense.

TP1PT DEBRA BAKER,MAKING SENSE OF THE ASFA REGULATIONS 3 (2001). See, also, Pub. L. 103-89.
T2T Id. ASFA was codified at 42 U.S.C. §§ 620-679.
PPT3T Id., at 4.
PPTP4PT See, generally, Baker, supra at note 1.
TP5 PTSee, generally, RICHARD GELLES, THE BOOK OF DAVID: HOW PRESERVING FAMILIES CAN COST
CHILDREN’S LIVES (1996).T
P6 PSee, generally, MARIANNE BERRY, THE FAMILY AT RISK: ISSUES AND TRENDS IN FAMILY
PRESERVATION SERVICES (1997).
P7 PSee, e.g., UTroxel v. GranvilleU, 530 U.S. 57 (2000)(holding that the Due Process Clause “includes
a substantive component that provides ‘heightened protection against government
interference with certain fundamental rights and liberty interests.’ The liberty interest at issue in this case – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interest recognized by this court.”) UTroxelU, at 65 (citation omitted).
P8 PSee, e.g., UIn re R.T.W.U, 359 N.C. 539, 614 S.E.2d 489 (2005)(holding that it is possible for parents
to forfeit their constitutionally protected rights if they are found to be unfit, or if they behave
in a manner which is inconsistent with their constitutionally protected status,) UR.T.WU. at 543, 614 S.E.2d at 492.
P9 PRICHARD WEXLER,WOUNDED INNOCENTS: THE REAL VICTIMS OF THE WAR AGAINST CHILD
ABUSE 30-31(1995).
P10 PId., at n. 2-3.
P11 PThe Adoption History Project: Charles Loring Brace (1826-1890), http://darkwing.uoregon.edu/~
adoption/people/brace.html (last visited 26 November 2005).
P12 PSeeWEXLER, supra note 4, at 35.
P13 PId., at 36.
P14 PLYNNELL HANCOCK, HANDS TO WORK 78 (2002).
P15 DUNCAN LINDSEY, THE WELFARE OF CHILDREN 13 (2004)
PP16 PJENNIFER REICH, FIXING FAMILIES: PARENTS, POWER, AND THE CHILD WELFARE SYSTEM 34
(2005).
P17 PId.
P18 PId., at 35.
P19 PJOHN HUBNER, SOMEBODY ELSE’S CHILDREN: THE COURTS, THE KIDS, AND THE STRUGGLE TO
SAVE AMERICA’S TROUBLED FAMILIES 71 (2003).
P20P Id., at 71.
P21 PId., at 72.
P22 PId.
P23 PSee REICH, supra note 16, at 43.
P24 Id., at 42.
PP25 PId., at 42-3.
P26 PId.
P27 PSee LINDSEY, supra note 15 at 83, noting that there were more than 500,000 children in foster care
in 1977, and only 262,000 in 1982.
P28 PId.
P29 PSeeWEXLER, supra note 9, at 219.
P30 PId.

The Georgia Tort Claims Act: A License for Negligence in Child Deprivation Cases?

February 27, 2010 1 comment

http://law.gsu.edu/lawreview/index/archives/show/?art=18-3/18-3_Allen_Note.htm

The Georgia Tort Claims Act: A License for Negligence in Child Deprivation Cases?
Mauricia Allen

Introduction

In what has been described as “‘one of the most horrific cases of child abuse ever seen in Fulton County,’”[1] five-year-old Terrell Peterson died from repeated physical abuse.[2] This tragedy occurred even after the plight of Terrell and his siblings had been reported to the Department of Family and Children Services (DFCS or “Department”) on eight separate occasions, with no less than twenty-one different caseworkers mishandling his file over a two-year period.[3] Sadly, this is not an isolated incident. Of 513 files on Georgia children who died between 1996 and 1998, forty-six percent of the deaths occurred while DFCS had an open file on either the child or the child’s family.[4] Equally disturbing is the fact that DFCS violated either state policies or procedures in nearly a third of the cases.[5] Further, this is not just a local problem, but also a national one with “[t]ens of thousands of other children” being seriously harmed after a child protection agency became involved in the situation.[6] Some areas have reported that as many as twenty-five to forty-five percent of children who die of alleged child abuse and neglect were previously reported to the appropriate child welfare agency.[7]

Cases like these raise questions of great importance: What is the appropriate level of culpability for DFCS in the alleged negligent handling of a child deprivation case?[8] Should the Department be held civilly liable, or should it be protected by governmental immunity?[9] The Georgia Tort Claims Act[10] (GTCA) waives the state’s sovereign immunity for torts that state officials and employees commit within the scope of their employment.[11] However, the GTCA provides an exception to this waiver for the discretionary acts of state employees, resulting in complete immunity for these actions.[12] The exception is applicable even if the discretion is abused, resulting in immunity for the negligent performance of discretionary acts.[13]

The purpose of this Note is to explore both the Georgia courts’ application of the GTCA in suits against DFCS for the alleged negligent handling of child deprivation cases and the proper immunity that should be afforded DFCS in such circumstances. Part I reviews the history of the GTCA. Part II outlines the state’s statutory duty to protect its children. Part III evaluates the seemingly contradictory application of the discretionary function exception among the Georgia courts. Part IV explores how other jurisdictions, both federal and state, interpret the discretionary function exception. Finally, Part V analyzes the policy implications of applying either a broad or a narrow definition of discretionary function under the GTCA in cases involving the negligent mishandling of child deprivation cases.

I. The Georgia Tort Claims Act

A. Basis for the Georgia Tort Claims Act

The Georgia Tort Claims Act (GTCA) is patterned after the Federal Tort Claims Act (FTCA).[14] The basis for the FTCA, the doctrine of sovereign immunity, originated in the common law.[15] The doctrine is based on the common law maxim that “the King can do no wrong,” thus relieving the government from liability for the negligence of a government agent or official.[16] Historically, the injured’s only recourse was the use of a private congressional claim bill, which was a petition for a legislative enactment allowing compensation for the harm the government caused.[17]

In 1946, due to a marked increase in the number of people injured by the government and the cumbersome nature of the claim bills, Congress waived governmental immunity and passed the FTCA.[18] The FTCA allows citizens to sue the government in tort for the negligent acts of its employees and officials.[19] However, the FTCA is subject to a discretionary function exception,[20] allowing the government to retain sovereign immunity when a government employee or official makes a decision based on his discretion.[21] Unfortunately, the statute does not define “discretionary,” nor does the legislative history lend much guidance to its meaning.[22] Thus, the federal courts are left to interpret the definition of “discretionary” as well as the breadth of the discretionary function exception.[23]

B. History of the GTCA

Until 1974, the State of Georgia was cloaked in the protective blanket of sovereign immunity.[24] However, in that year, the Georgia Constitution was amended to authorize the General Assembly to establish a court of claims to try cases against the state.[25] Nonetheless, the amendment specifically reserved the state’s sovereign immunity.[26] In 1990, the legislature drafted an amendment to the Georgia Constitution, explicitly retaining the state’s sovereign immunity absent a waiver by the General Assembly in the form of a state tort claims act.[27]

In 1992, the General Assembly enacted the GTCA.[28] The statute expressly waives the state’s sovereign immunity for the torts of state employees acting within the scope of their employment “in the same manner as a private individual or entity would be liable under like circumstances.”[29] The exclusive remedy under the GTCA is an action against the agency, not against the employee who commits the tort.[30] However, the waiver is limited by several potentially broad-reaching exceptions.[31] One such exception is for the performance of a “discretionary function or duty” by a state employee.[32]

In construing the meaning of the discretionary function exception, the courts first looked to the plain meaning of the statute.[33] The statute defines “discretionary function or duty” as that “requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.”[34] In order to ascertain the scope of this broad definition, the courts found it necessary to review the legislative history in search of the General Assembly’s intent in providing for the discretionary function exception.[35]

In the second section of the GTCA, the General Assembly acknowledged that “inherently unfair and inequitable results” will occur if sovereign immunity is strictly applied.[36] The General Assembly noted that unlike a private business that can limit its liability by choosing which services to provide, the state must provide a broad range of services and functions.[37] Consequently, the General Assembly concluded that the state should not be required to provide every feasible service available, and “the state’s exposure to tort liability must be limited.”[38]

The legislative history provides little insight into the General Assembly’s actual intent in creating the discretionary function exception.[39] Because of the apparent conflict between the GTCA’s broad ban against the state’s unrestrained tort liability and the narrow definition of discretionary function, the courts must interpret the ambiguous legislative history and determine how to apply the exception.[40] Thus, judicial interpretation of the breadth of this exception will either expand or limit the state’s tort liability in executing its statutory duty to protect Georgia’s children.[41]

II. Georgia’s Duty to Protect Its Children

In the landmark case of DeShaney v. Winnebago County,[42] the United States Supreme Court held that when a state voluntarily decides to protect abused and neglected children, state tort law may create a duty to adequately protect the child.[43] The state may then be held negligent for failing to satisfy that duty.[44] As a result, child welfare agencies are obligated to investigate allegations of child abuse and neglect, intervene if needed, and protect children from maltreatment.[45] In Georgia, the Department of Human Resources is responsible for providing services to protect the welfare and safety of the state’s children through its own programs and those of DFCS and Child Protective Services (CPS).[46]

A. Georgia’s Child Protection Law

In order to have a cognizable claim of negligence, a duty must exist.[47] Georgia code section 49-5-8 (“Code”)[48] outlines the state’s statutory duty to protect the welfare and safety of its children.[49] The Code’s purpose “is to promote, safeguard, and protect the well-being and general welfare of children and youth of this state.”[50] Georgia law requires that DFCS follow procedures and affirmatively act to carry out this mandate.[51] The statute requires the Department to investigate all suspected cases of child abuse and neglect.[52] However, the Code does not provide any specific guidelines for DFCS to follow in the course of its investigations.[53] The procedures that DFCS must follow after receiving a report of alleged child deprivation are set out in the Child Protective Services Social Services Manual.[54]

1. Child Protective Services Procedure

CPS has a legal duty to protect children who are victims of abuse and neglect.[55] Once CPS receives a report of suspected abuse, the intake worker is responsible for gathering all relevant information necessary to assess the child’s situation.[56] The intake worker assigns a response time to any report that may need further investigation.[57] The response time, determined by the urgency of the situation, may be anywhere from an immediate response up to five days.[58]

Deciding whether a report warrants field investigation involves the use of a decisional tree titled the “Child Abuse/Neglect Intake Screening Tree” (“Tree”).[59] In using the Tree, intake workers gather the information to certain pertinent questions that require a yes or no response.[60] Each yes or no response dictates which branch of the tree the caseworker will proceed down in the information-gathering process.[61] Some situations allow the report to be “screened-out,” which means that no field investigation will follow the intake report; however, the caseworker may refer the case to another appropriate agency.[62] Supervisors must review all screened-out cases.[63]

If the caseworker deems that an investigation is necessary, the investigator must complete it within thirty days of the initial intake report.[64] At the end of that period, the investigator determines whether the allegation of abuse or neglect is either substantiated or unsubstantiated.[65] Through face-to-face contact with the parents, the investigator gathers information and looks at various factors to determine if abuse or neglect is occurring.[66] These factors include the following: (1) how the parent behaves with the child, i.e., is any violence observed; (2) how the parent describes the child, i.e., does the parent describe the child in negative ways; (3) whether the parent has caused serious harm to the child; (4) whether the parent’s explanation for the alleged abuse or neglect of the child is consistent; (5) whether the parent has seriously maltreated any other child previously; and (6) whether the child appears fearful of the parent.[67] The investigation also requires that the investigator contact at least two collateral sources.[68] Collateral sources may include medical personnel, teachers, and counselors.[69]

Unsubstantiated reports are not necessarily false reports, because failure to substantiate is usually due to a caseworker’s inability to gather all of the pertinent information.[70] If substantiated, CPS determines if the child can be adequately protected while remaining in the home, or if foster placement is appropriate.[71] In order to place the child outside the home, CPS must take legal action that requires Juvenile Court intervention.[72]

The caseworker is required to have, at a minimum, monthly face-to-face contact with all children placed in a foster home.[73] If a report of suspected abuse or neglect is made regarding the foster parents, CPS must investigate the matter immediately.[74] Within forty-eight hours of completing the investigation, the caseworker must decide whether to remove the child from the foster home.[75] Unfortunately, instead of protecting children, DFCS’ action or inaction often places them at greater risk.[76]

III. Georgia Courts’ Interpretation of the Discretionary Function Exception in Child Deprivation Cases

The Georgia Court of Appeals has generally construed the discretionary function exception broadly.[77] However, in cases regarding the alleged negligent handling of child deprivation, the Georgia Supreme Court has overruled the appeals court, providing for a narrower definition of the exception.[78]

A. Jackson v. Department of Human Resources

In February 1998, the Georgia Court of Appeals reviewed the issue of Department liability in the alleged negligent mishandling of a child deprivation case under the GTCA.[79] In Jackson, a father of three children alleged that the Department was negligent in placing his children with relatives whose home was unqualified to be a foster care placement.[80] The children suffered physical and emotional abuse while in the home.[81] The Department defended on the ground that decisions regarding a foster child’s placement are discretionary and thus protected by sovereign immunity.[82]

The court relied on a discretionary versus ministerial analysis in reaching its holding.[83] The court stated that a discretionary act is one that “calls for the exercise of personal deliberation and judgment, entailing ‘examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’”[84] Conversely, “a ministerial act ‘is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.’”[85] The court found that foster home placement requires the caseworker not only to consider the best interest of the child, but also to weigh all available alternatives, taking into account “a multitude of social and economic factors.”[86] The court held that placement decisions are discretionary since they require the “exercise of discretion and personal judgment.”[87]

B. Brantley v. Department of Human Resources

In November 1998, the court of appeals reviewed its second case regarding the Department’s liability under the GTCA concerning the alleged mishandling of a child in foster care.[88] In Brantley, a two-year-old’s foster parents left the child unsupervised in their backyard pool where she slipped out of a float and drowned.[89] The court analogized a foster parent’s function to that of a school official responsible for the monitoring, supervising, and controlling of students, finding that the foster parents’ supervisory duties fell within the discretionary function exception of the GTCA.[90]

The plaintiffs, relying on Department of Transportation v. Brown, argued that supervising a child is not a discretionary function.[91] In Brown, the Georgia Supreme Court held that the discretionary function exception only applies to “basic governmental policy decisions” and not to “any decision affected by ‘social, political, or economic factors.’”[92] The court found that road planning and designing are not policy decisions and, thus, not subject to the discretionary function exception.[93] Here, however, the appeals court distinguished child supervision from road planning and designing, reasoning that discretionary functions are those requiring personal deliberation and judgment.[94] Consequently, the court held that foster child supervision falls within the discretionary function exception.[95]

The Georgia Supreme Court granted certiorari and unanimously reversed the lower court’s decision, holding that a foster parent’s negligent supervision does not fall within the discretionary function exception of the GTCA.[96] Unlike the court of appeals, the court found that Brown was analogous to the instant case.[97] The court stated that designing roads requires at least as much discretion as supervising a child and further, that such a comparison was not an appropriate basis for distinguishing the cases.[98]

Additionally, the court noted that the court of appeals consistently failed to consider the statutory definition of “discretionary function.”[99] The GTCA definition requires the exercise of discretion or judgment, which itself requires a “policy judgment in choosing among alternate courses of action based upon a consideration of social, political or economic factors.”[100] The court held that leaving an unsupervised child in a pool is not routine childcare and “[i]f such a decision were considered a discretionary function, the ‘exception [would] swallow the waiver.’”[101]

C. Edwards v. Department of Children & Youth Services

In 1999, the court of appeals was presented with yet another case brought under the GTCA for the negligent mishandling of a child in the state’s custody.[102] In Edwards, the parents of a child placed in a youth detention center (YDC) sued under the GTCA for the wrongful death of their fifteen-year-old daughter (“Edwards”), alleging that the YDC negligently failed to provide her with reasonable medical care.[103] After Edwards complained of a headache, the YDC nurse diagnosed her as having a sinus problem and prescribed over-the-counter medication.[104] The following morning and evening, Edwards again complained of headache pain to the house parent, who also gave her over-the-counter medication.[105] A security guard who checked on Edwards that evening testified that Edwards could not stand on her own.[106] The staff continued to monitor Edwards every five to ten minutes.[107] During one such check, the staff realized that Edwards was not breathing and called the nurse.[108] The nurse arrived approximately ten minutes later, instructed that someone phone 911 and began cardiopulmonary resuscitation.[109] By the time the emergency team arrived, Edwards had died from a subdural hematoma.[110]

The parents claimed that the YDC had an absolute, nondiscretionary duty to provide medical care for their daughter, and that the YDC negligently delayed calling 911.[111] The court of appeals affirmed the lower court’s decision that the YDC had a duty to provide medical care but found that the YDC fulfilled that duty by treating and monitoring Edwards.[112] The court held that selecting the type and amount of medical care administered to an incarcerated juvenile are decisions left to the employees’ discretion.[113] Further, sovereign immunity is not waived under the GTCA even when such discretion is abused.[114]

On appeal, a unanimous Georgia Supreme Court reversed, finding that the court of appeals had “improperly expanded the meaning of ‘discretionary function.’”[115] The court again relied on Brown, where it had rejected reviewing the case law before the GTCA’s enactment, because the statute itself defines “discretionary function.”[116] The court found the GTCA’s language clearly requires that the discretionary function exception apply only to decisions that are “policy judgment[s]” related to choices among “alternative actions based on social, political, and economic factors.”[117] Further, the court was persuaded by the reasoning of other state courts that a decision regarding the proper medical care to provide to incarcerated juveniles is not a “basic governmental policy decision.”[118] The court held that the YDC’s decisions regarding Edwards’ treatment “do not involve policy judgments based on social, political or even economic factors.”[119] Thus, the YDC was not immune from liability under the GTCA.[120]

IV. Other Jurisdictions’ Application of the Discretionary Function Exception

The Georgia Court of Appeals has interpreted only three cases regarding the GTCA’s discretionary function exception in instances of alleged mishandling of a child deprivation case.[121] The Georgia Supreme Court reversed two of the three cases; therefore, it is appropriate to look to other jurisdictions for guidance on the exception’s appropriate application.[122] Supreme Court cases interpreting the exception will be examined first, since the GTCA is patterned after the FTCA and the definition of “discretionary function” under the GTCA parallels “discretionary function” under the FTCA and its developing case law.[123] Next, a review of other state courts’ interpretations of “discretionary function” as applied to the handling of child deprivation cases will be examined.

A. The United States Supreme Court’s Interpretation of the FTCA Discretionary Function Exception

Though the Supreme Court has not reviewed the FTCA’s discretionary function exception in the context of a child deprivation case, the Court has proclaimed that “[t]he prevention of . . . [the] abuse of children constitutes a government objective of surpassing importance.”[124] The 1953 case of Dalehite v. United States[125] was the first case in which the United States Supreme Court interpreted the FTCA’s discretionary function exception.[126] The Court used the exception to bar mass tort liability in Texas, when an explosion of fertilizer grade ammonium nitrate (FGAN) injured and killed hundreds of people.[127] The plaintiffs sued under the FTCA, alleging government negligence in the manufacture and transport of the highly combustible FGAN, which was being produced for export to war-torn Europe.[128]

The Court found that the discretionary function exception immunized the government from liability because discretion was involved in both formulating and implementing the plan to export the fertilizer.[129] The Court defined “discretion” as “more than the initiation of programs and activities”; it is “[w]here there is room for policy judgment and decision.”[130] Further, the Court developed the “planning rather than operational”[131] decision-making distinction that subsequent courts applied.[132]

Two years later, in Indian Towing Co. v. United States,[133] the Court used Dalehite’s “planning” versus “operational” dichotomy when a towing company sued the United States for negligence after a tugboat hit shore because the Coast Guard improperly maintained a lighthouse.[134] The Court found that the Coast Guard’s decision to maintain the lighthouse was a “planning” decision; thus, it was discretionary and protected under the discretionary function exception.[135] However, the actual maintenance of the lighthouse was “operational,” requiring no discretion and opening the government up to liability.[136]

For the next thirty years, the lower courts used this dichotomy to insulate the government from liability whenever an activity was deemed to be “planning” as opposed to “operational.”[137] However, in 1984, the Court reexamined the discretionary function exception in United States v. S.A. Empresa De Viacao Aerea Rio Grandense[138] (“Varig Airlines”), which involved an airline fire that resulted in 124 deaths.[139] The Federal Aviation Administration (FAA) was sued under the FTCA for the negligent performance of a safety inspection on a commercial aircraft.[140] The plaintiff alleged that if the inspection had been properly performed, the fire hazard would have been detected in time to prevent the accident.[141]

The Court formulated a new test that focused on “the nature of the conduct, rather than the status of the actor”[142] and whether the acts in question are the type that Congress intended to exempt from liability.[143] The Court stated that the purpose of the discretionary function exception is “to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”[144] The Court held that if regulating an activity requires a judgment regarding social, economic, or political policy, then the discretionary function exception applies.[145] Though this standard is far from clear, it is a departure from the earlier planning versus operational analysis.[146] Four years later, the Court in Berkovitz v. United States[147] sought to clarify the standard.[148]

In Berkovitz, an infant contracted polio after he received an oral polio vaccine.[149] His parents sued under the FTCA, alleging negligence because the National Institute of Health’s Division of Biologic Standards (DBS), which had approved the vaccine, neglected to obtain certain information from the manufacturer before issuing a vaccine license, as the regulatory scheme required.[150] The Court found that because the DBS failed to follow a “mandatory directive,” the discretionary function exception did not apply.[151] The Court noted that whether the discretionary function exception applies depends upon a two-part analysis.[152] First, only conduct that involves judgment is discretionary.[153] Conduct based on a statute or regulation proscribing a specific course of action is not discretionary because there is no exercise of judgment in such instances.[154] Second, if the conduct does involve judgment, the issue becomes whether the conduct is the type that Congress meant to protect by the discretionary function exception.[155] Public policy considerations should be the basis of this inquiry.[156] Thus, the Berkovitz test reaches broadly, allowing the exception for matters grounded in social, economic, or political policy.[157]

United States v. Gaubert,[158] decided in 1991, is the Court’s most recent and definitive review of the discretionary function exception.[159] In Gaubert, a shareholder of an insolvent savings and loan association alleged that the government negligently interfered with the unstable Federal Savings and Loan Associations (FSLAs) of the 1980s.[160] Specifically, the plaintiff alleged that the Federal Home Loan Bank Board (FHLBB), which had statutory authority to regulate the FSLAs, was negligent in the supervision of the day-to-day business decisions of the FSLAs.[161] The Court applied the two-part Berkovitz test: (1) does the act involve the use of judgment? (2) is the judgment the kind that the discretionary function exception is intended to protect?[162] The first issue examined was whether the FHLBB’s activities were discretionary or whether they were controlled by a statute, regulation, or policy.[163] The Court found that the FHLBB had broad, non-mandatory statutory authority to supervise the FSLAs, leaving most decisions up to the judgment of the FHLBB.[164] Because the acts involved the use of judgment, the Court moved to the second prong of the test and found that the FHLBB’s decisions were “within the purview of the policies behind the statutes.”[165] Thus, the discretionary function exception applied because it involved policy judgments of the type Congress meant to protect.[166]

Justice Scalia, concurring, opined that requiring a “policy judgment” before the discretionary function will apply is overly broad and the lower courts would have difficulty with its application.[167] Justice Scalia stated that more emphasis should be placed upon the decision-maker’s status within the organization, because the level of the decision-maker is indicative of whether policy considerations are at issue.[168] Justice Scalia asserted that more of an operational versus planning dichotomy, pursuant to Dalehite and Indian Towing, should be applied to establish clearer guidelines.[169]

B. State Courts’ Interpretation of Discretionary Function in Negligence Cases for the Mishandling of Child Deprivation Cases

In G. v. State Department of Social and Rehabilitation Services,[170] an adoptive mother sued the Department under the Kansas Tort Claims Act, alleging that the decision not to remove her adopted son from his previous foster home was negligent and caused him emotional and psychological damage.[171] While in the foster home, the county received a report that another child in the home sexually abused him.[172] The Department claimed immunity under the discretionary function exception of the Kansas Tort Claims Act.[173] The court held that the decision to remove a child from foster care is discretionary as it requires deliberation and the weighing of risks, and thus it is not a decision that should be susceptible to judicial review.[174]

In Scott v. County of Los Angeles,[175] the County of Los Angeles (“County”) was sued for the negligent supervision of a child placed in foster care.[176] The County defended on the grounds that it was immune from liability under the discretionary function exception to the California Tort Claims Act.[177] State regulations mandated that the Department of Social Services (DSS) make monthly visits to all homes where foster children were placed.[178] Despite receiving numerous reports that the child was being abused, DSS did not comply with the monthly visitation mandate.[179] Subsequently, the child was permanently disabled and disfigured when his foster grandmother immersed him in scalding water, severely burning his legs.[180] The court found that DSS not following the mandatory visitation schedule was not an omission resulting from discretion, but rather, a failure to fulfill a ministerial duty.[181] Caseworkers do not have the choice to violate the regulations outlined in the DSS policy manual.[182] The court noted that “[i]f those standards are deemed discretionary, the effect can only be to decrease, not increase, the protection afforded to children.”[183] Consequently, the County was liable for negligence.[184]

In Williams v. Horton,[185] a suit was brought when the negligent placement of a child in a foster home resulted in the child’s death.[186] The defendants claimed immunity under the Michigan Tort Claims Act.[187] The court held that finding a placement for a foster care child requires “significant decision-making” that involves weighing numerous factors and alternatives.[188] Thus, the placement constituted a discretionary function, not a ministerial one, and the placement action was immunized from liability, despite the placement being negligent.[189]

In Boland v. State of New York,[190] a father alleged that the state was liable for his son’s death and his daughter’s injuries suffered at the hands of their stepmother that occurred while the father was out of the country.[191] Neighbors reported their concerns to a state child abuse hotline, but because of a routing error, the correct county did not receive the report in a timely manner.[192] By the time the caseworker visited the residence, the children had already been injured and hospitalized.[193] The New York Supreme Court held that the child abuse hotline was acting in a ministerial capacity in the call intake.[194] Thus, the state was not protected by governmental immunity.[195]

In Department of Health & Rehabilitative Services v. Yamuni,[196] an adoptive mother sued the Department of Health (“Department”), alleging both negligent investigation of repeated abuse reports regarding her adopted son while he was in the care of his natural mother and failure to seek protective custody of him.[197] The court held that these duties were operational acts because they did not involve policymaking.[198] Further, the court noted that to allow immunity for the Department “would turn [the state’s child protective statute] on its head by protecting the legal protector . . . from the protected class.”[199] Therefore, the Department was liable for the incompetent investigation.[200]

In Rich v. Erie County Department of Human Resources,[201] the Department removed a child from the home where his mother’s boyfriend was abusing him.[202] The boyfriend killed the child after the Department returned him to the home.[203] The Administrator of the child’s estate sued the Department for negligence.[204] The Ohio Court of Appeals noted that the state’s child abuse statutes mandate conflicting procedures.[205] For instance, although an abused child must be removed from the home, the Department must also strive for reunification.[206] Because of the wide range of the statute’s mandates, the Department has broad discretion in carrying out its duties.[207] Further, the court acknowledged that the decision to return a child to a home where he has previously been abused is “always fraught with peril since [the Department] attempt[s] to predict human behavior.”[208] Consequently, the court found the Department’s decision to return the child to his mother to be one of discretion, thus affording the Department governmental immunity.[209]

V. Policy Considerations

As illustrated, when faced with the decision of whether to hold a state liable for the negligent handling of a child deprivation case or to extend the state immunity, courts employ a number of different tests, which result in a multitude of outcomes.[210] In particular, courts struggle to decide whether a particular action or inaction is discretionary in nature.[211] Consequently, proper application of the discretionary function exception in cases involving the alleged mishandling of child abuse cases demands an inquiry into the policies underlying the exception.[212]

A. Policies Supporting a Broad Application of the Discretionary Function Exception

A broad application of the discretionary function exception to the GTCA in cases of alleged negligent handling of child deprivation cases implicates important policy rationales. These include separation of governmental powers, hampering government decision-making, and depletion of government funds.

1. Separation of Powers

A major argument for a broad application of the discretionary function exception is that it preserves the separation of powers between the branches of the government.[213] This argument is based on the premise that the judiciary should not be allowed to second-guess the wisdom of a governmental agency (here, DFCS) that supposedly has more expertise and more experience in setting policies in its particular area.[214] However, DFCS and its caseworkers arguably are not making policy decisions; the legislature has already done that by passing child protection statutes.[215] DFCS and its caseworkers are simply carrying out the mandate of the child protection statutes.[216] Thus, judicial review of DFCS’ non-policymaking activities may not be problematic because it is appropriate for the judiciary to review operational decisions.[217] Rather than reviewing a coordinate branch’s policy choice, the court would be reviewing a standard negligence claim and holding the state liable for breaching a duty that it imposed upon itself—the protection of the state’s children.[218] Moreover, because the state’s interest in protecting the safety and welfare of its children is of paramount importance, it is imperative that DFCS’ actions are not shielded from the judiciary’s scrutiny.[219]

2. Hampering Government Decision-Making

Another typical argument for a broad application of the discretionary function exception is that caseworkers must be free to exercise their judgment without a constant fear of liability.[220] Proponents of that argument believe that without freedom from liability, caseworkers will become too cautious in their decision-making.[221] Alternatively, the caseworker may engage in “defensive” social work.[222] Operating in the shadow of a constant threat of liability, the caseworker may become too intrusive in the family relationship without proper justification.[223] Such over-intervention harms the child and violates parental rights.[224] The GTCA seemingly resolves both of these concerns because the caseworker may not be held individually liable when working within the scope of his employment.[225] The potential for over-intervention is further curbed by the fact that a parent may in some cases sue the state for violating their parental rights if the child is removed unnecessarily.[226]

Further, holding the state liable for the negligent mishandling of child deprivation cases should not hinder the effective functioning of DFCS because Title 49 places a mandatory, statutory duty on the state to investigate reports of suspected child abuse and neglect.[227] DFCS cannot choose not to investigate reports of alleged child abuse.[228] Realistically then, holding DFCS legally accountable would not harm its effective decision-making but rather enhance it by deterring negligence.[229]

3. Depletion of Government Funds

Another argument against broadly imposing liability upon DFCS is that such a policy would rapidly deplete government funds.[230] However, the GTCA provides for a cap on damages.[231] The Code limits the state’s liability to $1 million per person, per occurrence, with a $3 million aggregate liability per occurrence, regardless of the number of defendants.[232] The Code further provides that judgments can only be collected from the state’s tort claims fund or applicable insurance policies.[233] If the funds become depleted, the state’s liability under the GTCA ceases for the fiscal year.[234] In such a case, the only way the plaintiff may recover a judgment is if the General Assembly appropriates additional funds for that purpose.[235] Further, concerns regarding the state’s financial ability to fulfill its statutory duties implicate budgetary decisions, which is the province of the legislature.[236]

B. Policies Supporting a Narrow Application of the Discretionary Function Exception

A narrow application of the discretionary function exception to the GTCA in cases of the alleged negligent handling of child deprivation cases would further the policies of promoting deterrence and providing remedies.

1. Deterrence

Imposing liability against DFCS will likely aid in the deterrence of the negligent mishandling of child abuse cases.[237] Child welfare agencies tend to be underfunded and understaffed.[238] The lack of sufficient financial resources seriously harms the very children who are under the supposedly watchful eye of the agency.[239] Many times, overburdened caseworkers have no choice but to perform abbreviated investigations, ignore time limits, and inadequately supervise on-going cases.[240] Some judges consider an agency’s limited resources when determining if the agency was negligent in the performance of its duties.[241] However, many judges consider lack of funding to be an inappropriate consideration.[242] Judge Posner has declared, “‘understaffing is not a defense to a violation of administrative law.’”[243]

Imposing liability would give the state greater incentive to allocate increased resources to DFCS to provide better hiring, training, and supervision of its caseworkers.[244] Like any private business, forcing the state (or federal) government to internalize negligence costs creates incentives for the state to act more safely.[245] As a result, the state would become “more creative and energetic about finding new solutions to the problem.”[246]

2. Availability of a Remedy

A narrow application of the discretionary function exception supports the traditional tort theory that a negligent actor should compensate the innocent victim.[247] President Lincoln once stated, “[i]t is as much the duty of Government to render prompt justice against itself in favor of its citizens as it is to administer the same between private individuals.”[248] Child abuse victims are quite likely the most helpless victims in society.[249] If the state avoids liability pursuant to a broad interpretation of the discretionary function exception, innocent victims are forced to shoulder the consequences of DFCS’ negligence.[250] These children need redress to, inter alia, pay for the future medical and psychological treatment they will likely require after enduring such maltreatment.[251]

The United States Supreme Court recognizes the unfairness of denying relief to an innocent victim on the grounds of governmental immunity.[252] Hence, it is preferable to spread the cost of DFCS’ liability over all taxpayers who enjoy the benefits of the government’s services.[253] Providing the victim a remedy is fair because an exception to governmental immunity can become a “license to harm.”[254]

Conclusion

Courts struggle with the question of what level of immunity to afford the state when a child abuse case has been handled negligently.[255] In Georgia, courts have approached the issue in various ways.[256] A broad application of the discretionary function exception essentially reinstates sovereign immunity.

When DFCS violates its own policy and procedure manual, there is no discretionary function to protect.[257] To permit the discretionary function exception in such cases would result in the exception swallowing the rule.[258] Instead of being protected by the state, DFCS’ negligence further victimizes the children.[259] DFCS will not be held liable when it merely makes a “reasonable” mistake, but only when it acts negligently.[260] It is imperative that children, society’s most helpless victims, be compensated for the harm they suffer.[261] If under funding results in negligence, the state must be encouraged to allocate more resources to DFCS in order to prevent such harm.[262] Ultimately, the lives of innocent children like Terrell Peterson are at stake. Courts must protect these children rather than allow the GTCA to become a license for the negligent handling of child deprivation cases. To that end, courts should narrowly define the discretionary function exception to the GTCA and hold the state responsible when its child protection agencies act negligently. When children fall through “the crater”[263] at DFCS, the very agency appointed and funded by Georgia taxpayers to protect them, the state must be held accountable.

Mauricia Allen[264]

——————————————————————————–

[1]. Jane O. Hansen, Abuse Suit: State Under Fire in 5-Year-Old’s Death, Atlanta J. Const., Nov. 10, 1999, at A1 (quoting Fulton County District Attorney Paul Howard). Georgia Governor Roy Barnes proclaimed that Terrell’s death was a “tragic tale of the state’s failure – of our failure – to protect him.” Ron Martz, State Failed Terrell Peterson, Barnes Says at Bill Signing, Atlanta J. Const., Apr. 7, 2000, at C1.

[2]. See Hansen, supra note 1, at A1.

[3]. See Hansen, supra note 1, at A1; Timothy Roche, The Crisis of Foster Care, Time, Nov. 13, 2000, at 76. Some states report caseworker turnover rates as high as 70%. See Roche, supra, at 81. Atlanta attorney Don Keenan brought both federal and state claims against the Department of Human Resources on behalf of Terrell Peterson’s estate and his mother. See Ron Martz, Judge Rules State Not Liable in Death of Terrell Peterson, Atlanta J. Const., Aug. 23, 2001, at F1. The judge dismissed the federal claim, ruling that the state is not responsible for a child who is not in the custody of DFCS, even when DFCS is aware of the child’s situation. Id. The state claim is still pending. See id. A section 1983 analysis is outside the scope of this Note; for a discussion of section 1983 cases, see Eric P. Gifford, Comment, 42 U.S.C. § 1983 and Social Worker Immunity: A Cause of Action Denied, 26 Tex. Tech L. Rev. 1013 (1995).

[4]. See Jane O. Hansen, Georgia’s Forgotten Children; Welfare Case Files Show How Agency Failed to Protect; Journal-Constitution Study Examines How 513 Abused and Neglected Children Died on State’s Watch, Atlanta J. Const., Jan. 16, 2000, at A1.

[5]. See id. In Terrell’s case, after receiving a report of physical abuse, the caseworker did not retrieve the police report, did not interview Terrell, did not talk to the doctor, did not request medical records, and did not talk to his teachers to verify if he fell often at school (which was his foster grandmother’s explanation for his injuries). See Jane O. Hansen, Did 5-Year-Old Terrell Have to Die? Georgia’s Child Protection System Failed Him—And Then Covered Up the Truth, Atlanta J. Const., Oct. 17, 1999, at A1. Further, the caseworkers did not make all the foster home visits the policy manual mandates, did not appear in court as required, and “lied in reports that supervisors signed but did not read.” Roche, supra note 3, at 76.

[6]. Douglas J. Besharov, Protecting Children from Abuse: Should It Be a Legal Duty?” 11 U. Dayton L. Rev. 509, 510 (1986). In 1993 an estimated 2,815,600 children in the United States were reported as being abused or neglected. See U.S. Department of Health and Human Services, Executive Summary, Third National Incidence Study of Child Abuse and Neglect (Sept. 1996). This is a 98% increase from 1986. See id. Of these children, Child Protective Services investigated less than one-half of the cases. See id. In Georgia, there were 69,949 reports of child abuse or neglect reported in 1999, with 26,888 of the reports substantiated. See Department of Human Resource Office of Communication, Ga. Department of Human Resources, Fact Sheet (Aug. 2000).

[7]. See Margaret J. Ryan, Comment, The Status of Civil Liability When Child Protection Workers Fail to Do Their Jobs, 14 S. Ill. U. L.J. 573, 576 (1990).

[8]. See generally Besharov, supra note 6; Susan Lynn Abbott, Note, Liability of the State and its Employees for the Negligent Investigation of Child Abuse Reports, 10 Alaska L. Rev. 401 (1993); Laura Humber Martin, Comment, Caseworker Liability for the Negligent Handling of Child Abuse Reports, 60 U. Cin. L. Rev. 191 (1991); Ryan, supra note 7.

[9]. See generally sources cited supra note 8.

[10]. O.C.G.A. §§ 50-21-20 to -25 (1998).

[11]. O.C.G.A. § 50-21-23(a) provides that “[t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances . . . .”

[12]. See O.C.G.A. § 50-21-24(2) (providing immunity for the state in “[t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused”).

[13]. See id.

[14]. See Edwards v. Dep’t of Children & Youth Servs., 525 S.E.2d 83, 85 (Ga. 2000); Brantley v. Dep’t of Human Res., 523 S.E.2d 571, 574 (Ga. 1999).

[15]. See Harold J. Krent, Note, Preserving Discretion Without Sacrificing Deterrence: Federal Governmental Liability in Tort, 38 UCLA L. Rev. 871, 875-76 (1991); Barry R. Goldman, Note, Can the King Do No Wrong? A New Look at the Discretionary Function Exception to the Federal Tort Claims Act, 26 Ga. L. Rev. 837, 837-38 (1992).

[16]. See Goldman, supra note 15, at 837.

[17]. See Krent, supra note 15, at 876; Goldman, supra note 15, at 837. See generally Alexander Holtzoff, The Handling of Tort Claims Against the Federal Government, 9 Law & Contemp. Probs. 311, 323-26 (1942).

[18]. See Pub. L. No. 79-601, 60 Stat. 843 (1946) (codified as amended at 28 U.S.C. §§ 2671-2680) (1988); Goldman, supra note 15, at 838.

[19]. See Krent, supra note 15, at 876; Goldman, supra note 15, at 838. An actionable negligence claim requires that: (1) the defendant owed the plaintiff a duty of due care; (2) the defendant breached that duty; and (3) the breach proximately caused the plaintiff’s damages. See Clarence Morris & C. Robert Morris, Jr., Morris on Torts, ch. IV, § 1, at 44 (2d ed. 1980).

[20]. 28 U.S.C. § 2680(a) (2000) provides that the government is not liable for:

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

[21]. See Krent, supra note 15, at 871; Goldman, supra note 15, at 839.

[22]. See Krent, supra note 15, at 876-77.

[23]. Id.

[24]. See R. Perry Sentell, Jr., Tort Claims Against the State: Georgia’s Compensation System, 32 Ga. L. Rev. 1103, 1113 (1998). See generally Charles N. Kelley, Jr., Georgia Tort Claims Act: Provide a Limited Waiver of Sovereign Immunity, 9 Ga. St. U. L. Rev. 349 (1992); David J. Maleski, The 1992 Georgia Tort Claims Act, 9 Ga. St. U. L. Rev. 431 (1993).

[25]. See Ga. Const. of 1945, art. VI, § V, ¶ I (1976).

[26]. See id.

[27]. The amendment now appears at Ga. Const. art. I, § II, ¶ IX(e) and provides:

Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

[28]. O.C.G.A. §§ 50-21-20 to -25 (1998). A 1994 study revealed that local government liability for the alleged misconduct of officials and employees was an extensively litigated area of law frequently reviewed by Georgia’s appellate courts over the past thirty years. See R. Perry Sentell, Jr., Georgia Local Government Law: A Reflection on Thirty Surveys, 46 Mercer L. Rev. 1 (1994).

[29]. O.C.G.A. § 50-21-23(a) (1998).

[30]. Id. § 50-21-25(a) (providing that “[t]his article constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.”). Further, the Act broadly defines state officers and employees as “elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity . . . .” Id. § 50-21-22(7) (1998).

[31]. See id. § 50-21-24 (1998).

[32]. See id. § 50-21-24(2) (1998).

[33]. See, e.g., Brantley v. Dep’t of Human Res., 523 S.E.2d 571, 574 (Ga. 1999).

[34]. O.C.G.A. § 50-21-22(2) (1998).

[35]. See Brantley, 523 S.E.2d at 574; Edwards v. Dep’t of Children & Youth Servs., 525 S.E.2d 83, 84 (Ga. 2000).

[36]. O.C.G.A. § 50-21-21(a) (1998); see also Edwards, 525 S.E.2d at 84.

[37]. See Edwards, 525 S.E.2d at 84.

[38]. Id.

[39]. Id.

[40]. Id. at 84-85.

[41]. See generally sources cited supra note 8.

[42]. 489 U.S. 189 (1989).

[43]. See id. at 201-02. DeShaney involved the issue of whether the county had deprived a severely abused child of his liberty without due process for failing to intervene and protect him. See id. at 189. The suit was brought under 42 U.S.C. § 1983. See id. A section 1983 analysis is outside the scope of this Note. See Gifford, supra note 3.

[44]. See DeShaney, 489 U.S. at 201-02.

[45]. See O.C.G.A. § 49-5-8(a)(2)(B) (2000). See generally sources cited supra note 8.

[46]. See O.C.G.A. § 49-5-8(a) (2000). DFCS is the county agency, and CPS is a branch of DFCS. See id.; John E.B. Myers, Legal Issues in Child Abuse and Neglect Practice 68 (2d ed. 1998).

[47]. See Morris & Morris, supra note 19, ch. IV, § 1, at 44. A breach of duty occurs when the defendant’s “conduct is not as careful as a reasonably prudent person’s conduct would be in like circumstances . . . .” See id.

[48]. O.C.G.A. § 49-5-8 (2000). The Federal Government has also responded to the issue of child deprivation. See generally Child Abuse Prevention and Treatment Act of 1974, Pub. L. No. 93-247, 8 Stat. 4 (codified in scattered sections of 42 U.S.C.) [hereinafter CAPTA]; The Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 500 (codified in scattered sections of 42 U.S.C.) [hereinafter AACWA]; The Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified in scattered sections of 42 U.S.C.) [hereinafter ASFA]. CAPTA creates, among other things, requirements, such as the passage of child abuse laws, which the states must implement in order to receive federal funding for child maltreatment programs. See Vernon R. Wiehe, Working with Child Abuse and Neglect 35 (1996). AACWA mandates a family-based approach to child welfare services. See id. at 36. For a discussion of ASFA, which is an overhaul of AACWA, see Robert M. Gordon, Drifting Through Byzantium: The Promise and Failure of the Adoption and Safe Families Act of 1997, 83 Minn. L. Rev. 637 (1999).

[49]. The Code provides that “[p]rotective services . . . will investigate complaints of deprivation, abuse, or abandonment of children . . . and, on the basis of the findings of such investigation, offer social services . . . or bring the situation to the attention of a law enforcement agency, an appropriate court, or another community agency.” O.C.G.A. § 49-5-8 (a)(2)(B) (2000). For a discussion of a state’s public duty doctrine and the need for a “special relationship” beyond what is provided by a general welfare statute to create the legal duty needed for a cognizable negligence claim, see R. Perry Sentell, Jr., Georgia’s Public Duty Doctrine: The Supreme Court Held Hostage, 51 Mercer L. Rev. 73 (1999). However, neither the Georgia Court of Appeals nor the Georgia Supreme Court has questioned the existence of a duty as created by the state’s child welfare statutes in child deprivation cases where the state has retained custody of the child. See Edwards v. Dep’t of Children & Youth Servs., 512 S.E.2d 339, 340 (Ga. Ct. App. 1999), rev’d, 525 S.E.2d 83 (Ga. 2000); Brantley v. Dep’t of Human Res., 509 S.E.2d 645 (Ga. Ct. App. 1998), rev’d, 523 S.E.2d 571 (Ga. 1999). However, it might be an issue if the government “fails adequately to provide a protective public service.” Sentell, supra, at 100.

[50]. O.C.G.A. § 49-5-2 (2000).

[51]. See Taylor v. Ledbetter, 818 F.2d 791, 799-800 (11th Cir. 1987) (“What the child is entitled to is the state’s protection from harm. She is entitled to be protected in the manner provided by statute.”).

[52]. O.C.G.A. § 19-7-5(e) (2000) requires that:

[i]f a report of child abuse is made to the child welfare agency or independently discovered by the agency, and the agency has reasonable cause to believe such report is true or the report contains any allegation or evidence of child abuse, then the agency shall immediately notify the appropriate police authority or district attorney.

[53]. See id. However, Georgia Rules and Regulations require that “[t]he Agency shall have a written manual of operating policies and procedures regarding its services. The policies and procedures shall include . . . [p]rocedures for supervising foster home placements . . . [and][a]gency practices shall conform to the written policies.” Ga. Comp. R. & Regs. 290-9-2-.05 (1), (b)3, (7) (2000).

[54]. See generally Georgia Department of Human Resources, Child Protective Services Social Services Manual (Oct. 1999) [hereinafter Services Manual].

[55]. See id. ch. 2100, § I, at 1. For a brief history of the role of CPS in the United States, see Myers, supra note 46, at 41-42.

[56]. See Services Manual, supra note 54, ch. 2100, § III, at 56.

[57]. See id.

[58]. See id. Examples of reports that always require an immediate to 24-hour response include the following: (1) maltreatment of a child under the age of three; (2) serious multiple bruises/welts; (3) bizarre punishments; (4) sexual abuse; (5) reports where a child lives in the same household where an alleged maltreated child has died; and (6) maltreatment of a child in custody. See id. ch. 2100, § III, at 68-69.

[59]. See id. ch. 2100, § III, at 79 app. A.

[60]. See id. Some examples of the questions asked include the following: (1) “Is the victim less than 18 years old?” (2) “Is the alleged perpetrator a caretaker to the child?” (3) “Does the referral fit other screen-out criteria such as poverty and custody issues?” (4) “Is ‘physical abuse’ involved?” (5) “Is ‘neglect’ involved?” (6) “Is ‘emotional abuse’ involved?” See id.

[61]. See id.

[62]. See id.

[63]. See id. ch. 2100, § III, at 71.

[64]. See id. ch. 2100, § IV, at 127.

[65]. See id. ch. 2100, § IV, at 127-28. A substantiated report must be “supported by a preponderance of the evidence.” Id.

[66]. See id. ch. 2100, § IV, at 119.

[67]. Id.

[68]. Id. ch. 2100, § IV, at 124.

[69]. Id.

[70]. See Wiehe, supra note 48, at 24.

[71]. See Services Manual, supra note 54, ch. 2100, § II, at 35-36. Foster care is only appropriate when “it has been established that it is necessary for the physical and/or emotional well-being of the child.” Ga. Comp. R. & Regs. 290-9-2.07(1) (2000).

[72]. See Services Manual, supra note 54, ch. 2100, § II, at 37. Authority to remove the child from the home can be achieved through one or more of the following:

Juvenile Court order transferring temporary custody to [DFCS] . . . ; Juvenile Court order terminating parental rights; [v]oluntary agreement to place a child in foster care; [v]oluntary relinquishment of parental rights; Superior Court order; or [r]equest for short-term emergency care, as a result of an emergency or illness of the person having physical and legal custody . . . .”

Id. ch. 2100, § II, at 39.

[73]. See id. ch. 2100, § V, at 147. The Department is also required to have a case plan for the child and his foster family that is reevaluated at least once every six months. See Ga. Comp. R. & Regs. 290-9-2-.07(f) (2000).

[74]. See Services Manual, supra note 54, ch. 2100, § VI, at 14.

[75]. See id.

[76]. See Michele Miller, Note, Revisiting Poor Joshua: State-Created Danger Theory in the Foster Care Context, 11 Hastings Women’s L.J. 243 (2000). The Seventh Circuit has noted that:

If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.

Id. at 245 (quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982)).

[77]. See Bruton v. Dep’t of Human Res., 509 S.E.2d 363, 367 (Ga. Ct. App. 1998) (holding that the Department’s decision to place an Alzheimer patient in a personal care home was a discretionary function); N.W. Ga. Reg’l Hosp. v. Wilkins, 469 S.E.2d 786, 789 (Ga. Ct. App. 1996) (holding that the Department’s decision that a mentally handicapped man was a suitable resident for a personal care home was discretionary in nature); Christensen v. State, 464 S.E.2d 14, 17 (Ga. Ct. App. 1995) (holding that the parole board’s decisions regarding the release of a prisoner were discretionary in nature). But see Dep’t of Transp. v. Brown, 471 S.E.2d 849, 851 (Ga. 1996) (holding that the discretionary function exception should only apply to basic governmental policy decisions).

[78]. See Edwards v. Dep’t of Children & Youth Servs., 525 S.E.2d 83, 85-86 (Ga. 2000); Brantley v. Dep’t of Human Res., 523 S.E. 2d 571 (Ga. 1999).

[79]. See Jackson v. Dep’t of Human Res., 497 S.E.2d 58 (Ga. Ct. App. 1998).

[80]. Id. at 58-59.

[81]. Id. at 59.

[82]. Id.

[83]. Id.

[84]. Id. (quoting Joyce v. Van Arsdale, 395 S.E.2d 275, 276 (1990)).

[85]. Jackson v. Dep’t of Human Res., 497 S.E. 2d 58, 59 (Ga. Ct. App. 1998).

[86]. Id.

[87]. Id.

[88]. See Brantley v. Dep’t of Human Res., 509 S.E.2d 645 (Ga. Ct. App. 1998).

[89]. See id. at 646. O.C.G.A. § 50-21-22(7) (2000) provides that “[a]n employee shall also include foster parents . . . .”

[90]. See Brantley, 509 S.E.2d at 646 (“‘We have . . . consistently held that the task of school officials to monitor, supervise, and control students is a discretionary action protected by the doctrine of official immunity.’”) (quoting Payne v. Twiggs County School Dist., 501 S.E.2d 550 (Ga. Ct. App. 1998)).

[91]. See Dep’t of Transp. v. Brown, 471 S.E.2d 849 (Ga. 1996). But see Sentell, supra note 49, at 101 (arguing that Brown may have been erroneously decided because the public duty doctrine was not applied in the same manner as in City of Rome v. Jordan, 426 S.E.2d 861 (Ga. 1993)).

[92]. Brown, 471 S.E.2d at 851.

[93]. Id. The court further noted that the use of such a standard “is so broad as to make the exception swallow the waiver. Whether to buy copier paper from a particular vendor, and in which colors, are decisions that might be affected by all three factors, but they are not policy decisions.” Id.

[94]. See Brantley, 509 S.E.2d at 647.

[95]. See id.

[96]. See Brantley v. Dep’t of Human Res., 523 S.E.2d 571, 575 (Ga. 1999).

[97]. See id. at 573.

[98]. See id.

[99]. See id.; Bontwell v. Dep’t of Corr., 486 S.E.2d 917 (Ga. Ct. App. 1997); Christensen v. State, 464 S.E.2d 14 (Ga. Ct. App. 1995). But see N.W. Ga. Reg’l Hosp. v. Wilkins, 469 S.E.2d 786 (Ga. Ct. App. 1996) (finding by the court of appeals that “discretionary function” is narrower than what the court found prior to GTCA’s enactment).

[100]. Brantley, 523 S.E.2d at 574 (quoting O.C.G.A. § 50-21-22(2)); see Edwards v. Dep’t of Children & Youth Servs., 525 S.E.2d 83, 85 (Ga. 2000) (stating that there is no need to review pre-GTCA cases); Dep’t of Transp. v. Brown, 471 S.E.2d 849, 851 (Ga. 1996) (stating that it is not necessary to consider discretionary versus ministerial decisions of prior case law).

[101]. Brantley, 523 S.E.2d at 575 (quoting Brown, 471 S.E.2d at 851) (second alteration in original).

[102]. See Edwards v. Dep’t of Children & Youth Servs., 512 S.E.2d 339, 340 (Ga. Ct. App. 1999).

[103]. Id.

[104]. Id. at 341.

[105]. Id.

[106]. Id.

[107]. Id.

[108]. Edwards v. Dep’t of Children & Youth Servs., 512 S.E.2d 339, 341 (Ga. Ct. App. 1999).

[109]. Id. at 342.

[110]. Id. at 342 n.2.

[111]. Id.

[112]. Id. at 343.

[113]. Id.

[114]. Id.

[115]. Edwards v. Dep’t of Children & Youth Servs., 525 S.E.2d 83, 84 (Ga. 2000).

[116]. Dep’t of Transp. v. Brown, 471 S.E.2d 849, 851 (Ga. 1996).

[117]. Edwards, 525 S.E.2d at 85.

[118]. Id.; see also id. at 85 n.17 (citing Magee v. United States, 121 F.3d 1 (1st Cir. 1997)) (finding that specific medical treatment decisions fall outside the discretionary function exception); Rise v. United States, 630 F.2d 1068, 1072 (5th Cir. 1980) (finding that failure to provide proper medical care cannot be considered the exercise of a discretionary function); Jackson v. Kelly, 557 F.2d 735, 739 (10th Cir. 1977) (finding that the discretionary function exception does not absolve government from liability for negligent medical care).

[119]. Edwards, 525 S.E.2d at 85-86.

[120]. See id. at 86.

[121]. See id. at 84; Brantley v. Dep’t of Human Res., 523 S.E.2d 571, 574 (Ga. 1999); Maleski, supra note 24, at 448.

[122]. See id. at 84; Brantley v. Dep’t of Human Res., 523 S.E.2d 571, 574 (Ga. 1999); Maleski, supra note 24, at 448.

[123]. See Brantley, 523 S.E.2d at 574. In Miracle v. Spooner, the United States District Court for the Northern District of Georgia heard a case where the parents of seven children placed in a foster home sued under both 42 U.S.C. § 1983 and the GTCA for negligent placement and supervision of the children. 978 F. Supp. 1161, 1163-65 (N.D. Ga. 1997). The children were physically abused while in the foster home, resulting in one of their deaths. Id. When the court reached the issue of liability under the GTCA, it stopped short of performing the discretionary function analysis and found no liability on the part of DFCS or its caseworkers, because the court determined the caseworkers were acting within the scope of their employment. Id. at 1175. In 1999, the district court again reviewed a claim brought under 42 U.S.C. § 1983 and the GTCA by a mother whose son was sexually abused while in a foster care home. See Rayburn v. Farnesi, 70 F. Supp. 2d 1334, 1336-39 (N.D. Ga. 1999). The court acknowledged that foster parents are employees of the state; however, because the plaintiff sued the foster parents in their individual capacities, and not the state, the foster parents were free from liability because O.C.G.A. § 50-21-25(a) expressly disallows liability against the individual. See id. at 1341.

[124]. New York v. Ferber, 458 U.S. 747, 757 (1982).

[125]. 346 U.S. 15 (1953).

[126]. See id. at 35-36; Donald N. Zillman, Protecting Discretion: Judicial Interpretation of the Discretionary Function Exception to the Federal Tort Claims Act, 47 Me. L. Rev. 366, 368 (1995).

[127]. See Dalehite, 346 U.S. at 17, 21. The case was a test case representing 300 separate personal and property claims totaling $200 million. See id. at 17.

[128]. Id. at 23.

[129]. Id. at 43.

[130]. Id. at 35-36. Justice Jackson, in his dissent, stated that “[s]urely a statute so long debated was meant to embrace more than traffic accidents. If not, the ancient and discredited doctrine that ‘The King can do no wrong’ has not been uprooted; it has merely been amended to read, ‘The King can do only little wrongs.’” Id. at 60 (Jackson, J., dissenting).

[131]. Id. at 42.

[132]. See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955) (using a planning versus operational analysis); Barroll v. United States, 135 F. Supp. 441, 449-50 (D. Md. 1955) (using the planning versus operational analysis).

[133]. 350 U.S. 61 (1955).

[134]. Id. at 64.

[135]. Id. at 69.

[136]. Id.

[137]. See Goldman, supra note 15, at 843-44; Amy H. Hackman, Note, The Discretionary Function Exception to the Federal Tort Claims Act: How Much is Enough?, 19 Campbell L. Rev. 411, 418 (1997).

[138]. 467 U.S. 797 (1983).

[139]. Id. at 800.

[140]. Id. at 801.

[141]. Id.

[142]. Id. at 813.

[143]. Id.

[144]. Id. at 814.

[145]. Id. at 820.

[146]. See Zillman, supra note 126, at 370; Goldman, supra note 15, at 844. See generally Hackman, supra note 137, at 418.

[147]. 486 U.S. 531 (1988).

[148]. See id.

[149]. Id. at 533.

[150]. Id. at 533, 540.

[151]. Id. at 544.

[152]. Id. at 536-37; Zillman, supra note 126, at 370.

[153]. See Berkovitz, 486 U.S. at 545.

[154]. See id. at 544-45.

[155]. See id. at 545.

[156]. See id.

[157]. See generally id.

[158]. 499 U.S. 315 (1990).

[159]. See Zillman, supra note 126, at 371; Hackman, supra note 137, at 424.

[160]. See Gaubert, 499 U.S. at 320.

[161]. Id. at 318.

[162]. See Gaubert, 449 U.S. at 322-23; Zillman, supra note 126, at 371.

[163]. Gaubert, 499 U.S. at 328.

[164]. Id. at 329.

[165]. Id. at 332-33.

[166]. See id. at 334; Zillman, supra note 126, at 372.

[167]. See Gaubert, 499 U.S. at 335 (Scalia, J., concurring).

[168]. See id. at 336; Hackman, supra note 137, at 425.

[169]. See Gaubert, 499 U.S. at 336 (Scalia, J., concurring).

[170]. 833 P.2d 979 (Kan. 1992).

[171]. Id. at 980.

[172]. Id. at 982-83.

[173]. Id. at 983. The discretionary function exception within the Kansas Tort Claims Act states in part that “a governmental entity or an employee acting within the scope of the employee’s employment” will not be liable for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.” Id. at 985 (citing Kan. Stat. Ann. § 75-6104).

[174]. See id. at 988; Beebe v. Fraktman, 921 P.2d 216, 218 (Kan. Ct. App. 1996) (holding that the decision to open a file for suspected child abuse is a discretionary function).

[175]. 32 Cal. Rptr. 2d 643 (Cal. Ct. App. 1994).

[176]. See id. at 645-47. After being abandoned by her mother, the juvenile court placed the child with her grandmother with the placement to be supervised by DSS. Id.

[177]. Id. at 649. Section 820.2 of the California Government Code provides that “a public employee is not liable for any injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion is abused.” Id. at 647 n.5.

[178]. See id. at 646 n.2.

[179]. Id. at 649.

[180]. Id. at 648.

[181]. See id. at 651; see also Alicia T. v. County of Los Angeles, 222 Cal. App. 3d 869 (Cal. Ct. App. 1990) (holding that the decision to begin dependency proceedings is discretionary); Newton v. County of Napa, 266 Cal. Rptr. 682, 687 (Cal. Ct. App. 1990) (holding that the initial decision to conduct a child abuse investigation is discretionary, but subsequent actions in performance of the investigation may be ministerial).

[182]. See Scott, 32 Cal. Rptr. 2d 643, 651 (Cal. Ct. App. 1994).

[183]. Id. at 652.

[184]. See id.

[185]. 437 N.W.2d 18 (Mich. Ct. App. 1989).

[186]. Id. at 19.

[187]. See id. Michigan Compiled Laws section 691.1407 provides that the “officials, employees, and agents are immune from tort liability only when they are . . . performing discretionary, as opposed to ministerial acts.” Id.

[188]. Id. at 20.

[189]. See id. at 21.

[190]. 638 N.Y.S.2d 500 (N.Y. App. Div. 1996).

[191]. Id. at 501-02.

[192]. Id.

[193]. Id. at 502.

[194]. Id. at 505.

[195]. See id. at 506.

[196]. 529 So. 2d 258 (Fla. 1988).

[197]. Id. at 259.

[198]. Id. at 259-61.

[199]. Id. at 262.

[200]. See id.

[201]. 665 N.E.2d 278 (Ohio Ct. App. 1995).

[202]. Id. at 280.

[203]. Id.

[204]. Id.

[205]. Id. at 282.

[206]. See id.

[207]. See id.

[208]. Id.; see also Todd v. State, 699 So. 2d 35, 42 (La. 1997) (holding that the decision to remove a child from his home is one in which the caseworker has latitude and is, therefore, discretionary in nature); White v. White, 479 So. 2d 588, 589 (La. Ct. App. 1985) (holding that the decision whether to investigate a report of child neglect when the state does not have custody of the child is discretionary in nature).

[209]. See Rich, 665 N.E.2d at 282.

[210]. See supra Parts I, II.

[211]. See supra Part I.

[212]. See generally Krent, supra note 15, at 884-907; Abbott, supra note 8, at 423-27; Goldman, supra note 15, at 852-59; Martin, supra note 8, at 212-18.

[213]. See Krent, supra note 15, at 872; Goldman, supra note 15, at 852; Martin, supra note 8, at 216.

[214]. See Edwards v. Dep’t of Children & Youth Servs., 525 S.E.2d 83, 85 (Ga. 2000) (“The purpose of the exception under the federal act is to prevent the courts from substituting their own judgment for the policy decisions of the executive and legislative branches of government.”); Maleski, supra note 24, at 448; Goldman, supra note 15, at 853.

[215]. See Martin, supra note 8, at 213.

[216]. See id.

[217]. See Brantley v. Dep’t of Human Res., 523 S.E.2d 571, 575 (Ga. 1999) (finding that a non-discretionary act is “not the type of governmental decision that should be protected from review by the judiciary”); Martin, supra note 8, at 208 (citing Stevenson v. State Dep’t of Transp., 619 P.2d 247, 251-52 (Or. 1980)).

[218]. See generally Martin, supra note 8, at 208.

[219]. See generally Brantley, 523 S.E.2d at 575.

[220]. See generally Goldman, supra note 15, at 853-54.

[221]. See generally id.

[222]. See Besharov, supra note 6, at 547.

[223]. See id. at 547-48.

[224]. See Abbott, supra note 8, at 424-25.

[225]. See O.C.G.A. § 50-21-25(a) (2000).

[226]. See Abbott, supra note 8, at 425.

[227]. See O.C.G.A. § 49-5-8(a)(2)(B) (2000); accord Abbott, supra note 8, at 424.

[228]. See O.C.G.A. § 49-5-8(a)(2)(B); accord Abbott, supra note 8, at 424.

[229]. See generally Abbott, supra note 8, at 424-25.

[230]. See Bersharov, supra note 6, at 546-47; Abbott, supra note 8, at 425.

[231]. See O.C.G.A. § 50-21-29(b) (2000).

[232]. See id.; Maleski, supra note 24, at 440.

[233]. See O.C.G.A. §§ 50-21-33(h) (2000), 50-21-34(a), (b) (2000).

[234]. See Charles M. Richards & Susan J. Levy, A Practioner’s View of the Georgia Tort Claims Act, 30 Ga. St. B.J. 24, 30 (1993).

[235]. See id.

[236]. See Martin, supra note 8, at 211 n.122 (“Under common notions of governmental responsibility, . . . when a state has undertaken by statute the duty to protect abused children, it offends moral justness to suggest that the state could avoid the consequences of failing to execute that duty on the basis of inadequate government funds.”).

[237]. See generally Abbott, supra note 8, at 426; Goldman, supra note 15, at 856-57. But see generally Krent, supra note 15, at 885-87.

[238]. See generally Abbott, supra note 8, at 426; Goldman, supra note 15, at 856-57. But see generally Krent, supra note 15, at 885-87.

[239]. See Besharov, supra note 6, at 546.

[240]. See id. at 531, 546.

[241]. See Richard J. Pierce, Jr., Judicial Review of Agency Actions in a Period of Diminishing Agency Resources, 49 Admin. L. Rev. 61, 63 (1997).

[242]. See id.

[243]. Id. (quoting Judge Posner in Salameda v. INS, 70 F.3d 447, 452 (7th Cir. 1995)).

[244]. See Abbott, supra note 8, at 426; Martin, supra note 8, at 211.

[245]. See Krent, supra note 15, at 872. “If the theory of tort law is in part to compel private entities to become more efficient in light of potential tort liability, then there is no apparent reason why potential liability should not similarly force the government to be more prudent in its operations.” Id.; see also Goldman, supra note 15, at 856.

[246]. Martin, supra note 8, at 218.

[247]. See Morris, supra note 19, ch. VII, §14, at 200.

[248]. Peter H. Schuck, Suing Government 1 (1983).

[249]. See Martin, supra note 8, at 210.

[250]. See Goldman, supra note 15, at 857.

[251]. See Miller, supra note 76, at 254-55.

[252]. See, e.g., Owen v. City of Independence, 445 U.S. 622, 657 (1980).

[253]. See Abbott, supra note 8, at 426; see also Schuck, supra note 248, at 23.

[254]. Scott v. County of Los Angeles, 32 Cal. Rptr. 2d 643, 653 (Cal. Ct. App. 1994) (citing Clyde E. Jacobs, The Eleventh Amendment and Sovereign Immunity vii (1972) (referencing Lincoln’s first annual congressional address)).

[255]. See supra discussion Parts I, II.

[256]. See supra discussion Part I.

[257]. See supra discussion Parts I, II.

[258]. See supra notes 93, 101 and accompanying text.

[259]. See generally Miller, supra note 76.

[260]. See Morris & Morris, supra note 19.

[261]. See supra Part V.B.

[262]. See supra Part V.A.

[263]. Hansen, supra note 5, at A1 (quoting Don Keenan, an Atlanta lawyer suing the state on behalf of Terrell Peterson’s estate, who declared that the treatment of Terrell is not “about falling through the cracks, this is about falling through the crater”).

[264]. The author wishes to express her sincere gratitude to fellow law student, Lynne Voelker, for her invaluable technical and substantive suggestions.

Lawsuit in Mississippi due to Abuse by CPS

February 27, 2010 3 comments

Olivia Y. v. Barbour
No. 3:04CV251LN
United States District Court for the Southern District of Mississippi – Jackson Division
Date lawsuit filed: March 30, 2004; Amended Complaint, May 17, 2004.
Status: Lawsuit and motion for class certification filed March 30, 2004; Amended
Complaint adding seven additional named plaintiffs filed on May 17, 2004. Class
certification granted on March 11, 2005. Stipulated settlement on liability reached by
parties on March 28, 2007, and approved by the court on June 15, 2007. Final
settlement agreement and reform plan agreed to by parties on November 7, 2007,
and approved by the court on January 4, 2008.
Co-counsel: Wayne Drinkwater and Melody McAnally, Bradley Arant Rose & White
LLP, Jackson, MS; Stephen Leech, Attorney at Law, Jackson, MS; John Lang,
Christian D. Carbone and John Piskora, Loeb & Loeb LLP, New York, NY.
Defendants: Governor of Mississippi, Executive Director of the Mississippi
Department of Human Services, and Director of the Mississippi Division of Family and
Children’s Services.
Reason for filing lawsuit: For over a decade, the State of Mississippi had known
that it was failing in its obligation to protect abused and neglected children. The
state’s child welfare system had simply collapsed under years of gross
mismanagement and severe underfunding. Many people involved in the child welfare
system had said that it was so broken that there was virtually no child welfare
system in Mississippi. Successive child welfare administrations had refused to
undertake the reforms they knew were required to protect the health and welfare of
Mississippi’s most vulnerable children. The final settlement agreement and reform
plan approved by the court on January 4, 2008 mandates top-to-bottom rebuilding of
Mississippi’s child welfare system and requires the State to meet its constitutional
and statutory obligations to serve and protect the abused and neglected children of
Mississippi.
Serious problems with the foster care system in Mississippi at the time of
filing:
• Children were routinely placed in emergency shelters and other temporary
holding facilities for months at a time because the State had nowhere else to
put them.
• Caseworkers were overburdened and poorly trained, with high caseloads that
prevented them from adequately supervising the children in their care or
investigating reports of abuse and neglect.
• After determining that children have been abused and neglect, DFCS often
refused to open a case or provide services, and instead left the children in
harmful environments, or diverted the children to relatives who may have
been inappropriate or unable to provide care without support from DFCS.
• Children experienced extended stays in state custody with little effort being
made by DFCS to provide needed reunification services or to develop
appropriate adoptive homes for them.
• Instead of placing children in family-like settings, the state routinely placed
children as young as toddlers in large group facilities, often more than 50
miles away from their homes. Some of these institutions were unlicensed and
therefore did not have to comply with many state or federal requirements for
staffing, training, corporal punishment, or planning for children’s futures.
Vital statistics on the foster care system in Mississippi:
• Number of children in foster care: Approximately 3,183 as of June 1, 2005.

• Failure to meet all national norms: Social workers in Mississippi have
some of the highest caseloads Children’s Rights has seen across the country.
During the course of litigation, Children’s Rights learned that the statewide
average caseload per worker was 48 children, a level DFCS itself has
characterized as “BEYOND DANGER!” In some counties, caseloads were found
to exceed 100 children per worker.
• Failure to investigate reports of abuse and neglect: Because of the high
caseloads, DFCS admits it is only able to investigate the most severe cases of
abuse. This problem is long-standing. At the time of filing, 12% of children in
MDHS custody had at least one incident of suspected maltreatment in their
foster care placement that was not investigated. The backlog of investigations
at the time of litigation was nearly 3,000 and the average initial response
time was over 76 hours.
• Failure to open cases on confirmed cases of abuse and neglect: DFCS
admitted to the federal government that in 2002, the agency opened cases
and provided services for only 47% of the cases in which they confirmed a
child had been abused or neglected. Thus, DFCS left more than half of the
children it found to be maltreated with no oversight or services to ensure
their safety, a trend that continued as of the date the suit was filed.
• Maltreatment in foster care: In 2005, the rate of substantiated abuse and
neglect of children while in DFCS foster care custody was over five times the
allowable federal standard.
• Medical and mental health care: At the time of filing, DFCS was unable to
determine how many children had even received a health screening and
lacked medical histories on many of the children in custody. According to a
review by Plaintiffs’ expert, MDHS failed to provide 84.1% of children with a
physical examination within 7 days of placement as required. In 89.4% of
reviewed cases, MDHS also failed to make the children’s health records
readily available to assigned caregivers. Without medical history, DFCS could
not ensure that children were receiving needed services. Children were often
placed in foster homes or institutions without medical or mental health
histories, Medicaid cards, or refills of critical prescriptions. There was a severe
shortage of dentists and mental health providers who serve children in foster
care.
• Length of time to adoption: A review by Plaintiffs’ expert reported that
26.2% of children legally freed for adoption languished for another 3 years or
more in MDHS custody, some in custody up to 11 years since adoption
became a permanency option for them.
• Over-reliance on institutional placements: As of June 1, 2005, 20.2% of
children who entered foster care were placed in a group home or facility,
rather than a foster home.
Named plaintiffs in the case at the time of filing:
Olivia Y. was removed from her home at age 3, weighing only 22 pounds, which is
the normal weight of a child less than half of her age. She had been severely
neglected and malnourished by her mother, but DFCS described the sickly and frail
little girl as “quiet,” “cute,” and “petite.” After entering care in September 2003,
Olivia was moved through five separate placements, including a relative’s home
where a convicted rapist also lived. When then placed in a shelter, staff there
reported that she was malnourished and depressed, and suffering from extremely
small stature, low weight, abnormal facial features and severe cradle cap, among
other things. Although Olivia was later moved to a foster home, apparent
developmental delays were not addressed, and DFCS failed to provide her with
needed medical and therapeutic services. Following the filing of the lawsuit by
Children’s Rights, Olivia has since been adopted by a family.
Jamison J. spent his childhood in DFCS custody. He and his sisters were removed
from their abusive mother when he was only 4 years old. He lived in a loving foster
home for five years where the parents hoped to adopt him. Instead, DFCS sent him
back to his abusive mother in a home where he witnessed months of abuse of a twoyear-
old child by an unrelated adult living in the home, culminating later in the fatal
beating of the child. Jamison then cycled through a series of institutions throughout
the state. At one point, DFCS sent Jamison out-of-state to live with his father who
had served over a decade in prison for violent crimes, and who Jamison had not seen
in over 15 years. When Jamison was forced to return to Mississippi, DFCS forgot to
pick him up at the airport. Because DFCS had no other place for Jamison to live,
Jamison was sent to a group home on the campus of the infamous Oakley Training
School and was told he had to get a GED instead of attending regular school.
Jamison is bright and wanted to finish high school and attend a four-year college.
Thanks to the pressure of the lawsuit, Jamison was moved to a highly-regarded
group home where he graduated from high school. He is now serving in the U.S.
Army.
John A. entered foster care at age nine suffering from mental illness. At the time of
filing, John had been moved more than 35 times and had not received consistent
mental health treatment. He had been institutionalized over 13 times, and was sent
twice to Memphis institutions because there were no available placements in
Mississippi. During one year, John was bounced in and out of foster homes six times
in less than three months. He also has been cycled on and off a variety of
medication, at one point being kept on six different drugs. In 2005, John had to sit in
the DFCS office day after day, kept out of school, waiting until someone would agree
to care for him. John has been freed for adoption, but DFCS has taken few steps to
provide John with a permanent home. Currently, John is residing in a group home
Cody B. was removed from his parents and placed in a shelter by DFCS when he
was two months old. When he was finally placed with a foster mother, she was never
told that Cody suffered from severe asthma. DFCS allowed Cody to be routinely
exposed to cigarette smoke during supervised visits with his biological parents,
exacerbating his asthma. After DFCS allowed an unauthorized overnight stay with his
biological parents, Cody had to be hospitalized for a severe asthma attack. When the
foster mother expressed frustration with DFCS’ failure to take necessary and
required steps to protect Cody’s well-being, DFCS removed Cody from this home, the
only one he had ever known, and placed him in a shelter. His next foster parents
were not told of Cody’s medical condition, and Cody again required hospitalization.
After being released from the hospital, DFCS returned him to the shelter, and then
placed him in yet another temporary foster home. This rapid succession of
unnecessary moves was extremely traumatic for Cody and jeopardized his health.
Following the filing of the lawsuit by Children’s Rights, Cody has since been adopted.
The W. children, Mary, Tom, Matthew, and Dana. DFCS placed these siblings in
a Hinds County shelter for six weeks in 2000 because their drug-abusing mother was
neglecting them and their father was incarcerated. The children all suffer from
documented behavioral and mental health problems. At age 8, Tom was hospitalized
because he wanted to kill himself. At age 11, Mary also threatened suicide, and was
admitted to a psychiatric hospital. Their aunt and uncle became their foster parents,
but when DFCS received a report that the aunt was allegedly exaggerating the
children’s needs, DFCS removed the children from her care without any prior notice
or investigation. After investigation, the claim was determined completely
unfounded, yet DFCS refused to return the children to their aunt and uncle who
wanted to adopt the children. Separated for the first time in their lives, the children,
who were legally free for adoption, were placed with three different foster families
who were not interested in adopting them. Mary, Matthew and Dana have since been
adopted, and Tom is currently living with a foster family.
Brief history of the case:
2001: Children’s Rights began investigating Mississippi’s child welfare system at the
request of local advocates.
March 30, 2004: Children’s Rights and co-counsel filed the Olivia Y. complaint in
federal court in Jackson, MS, on behalf of six named plaintiff children and two
statewide classes of children: (1) those in foster care custody, and (2) those not in
custody but known to the system because of reports of abuse or neglect.
May 17, 2004: Amended Complaint was filed on behalf of an additional seven
named plaintiff children.
November 18, 2004: The Court denied the State’s motion to dismiss as to the
Constitutional substantive due process claims of the children in State custody. Full
discovery began. Trial was set for February 2006.
March 11, 2005: The Court certified as a class all children in DHS custody.
September 8, 2005: Magistrate Judge Nichols granted Defendants’ motion for a
stay of litigation for 45 days while DHS dealt with the devastation wrought in the
southern part of the state of Mississippi by Hurricane Katrina, later extended through
January 1, 2006. Trial was reset for August 2006.
February 7, 2006: Plaintiffs submitted five expert reports detailing system failures
and the resulting harm to children.
March 31, 2006: Defendants submitted Child Welfare League of America (CWLA)
expert report corroborating chronic system failures
May 1, 2006: Both sides submitted motions for summary judgment arguing that the
available evidence justified a legal ruling without a trial. Trial was postponed pending
the Court’s decision on motions.
August 29, 2006: Court denied both parties’ motions for summary judgment.
November 13, 2006: Court set a trial date of May 7, 2007.
March 28, 2007: Parties signed Stipulated Settlement Agreement in which the
defendants agreed to no longer contest that the State was violating the substantive
due process rights of the Plaintiff foster children.
May 3, 2007: A mediator was appointed to facilitate the development of a remedial
plan to address systemic deficiencies within DFCS, as required under the Stipulated
Settlement Agreement.
May 17, 2007: Stipulated settlement agreement was officially approved by the
presiding federal judge at a fairness hearing.
November 7, 2007: Parties agreed to the Mississippi Settlement Agreement and
Reform Plan, which mandates top-to-bottom reform of Mississippi’s child welfare
system.
January 4, 2008: Settlement Agreement and Reform Plan were approved by the
presiding judge at a fairness hearing.
June 4, 2008: The parties reached agreements on the services and plans to be
provided to the named plaintiffs of the lawsuit who remain in foster care custody.
October 21, 2008: The Court-appointed Monitor issued a Preliminary Status Report,
outlining her monitoring activities and her assessment of defendants’ progress in
hiring new leadership and implementing the Settlement Agreement.

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