Why Children Aren't Adopted

Few know the child welfare system as intimately as does George Miller, former Chairman of the Select Committee on Children, Youth and Families of the Committee on Ways and Means. And nowhere is the bureaucratic imperative for expansion and survival more evident than in his own home state of California. As Miller explained: "In California, we are finding overloading of the system with children never intended for foster care, for the single purpose of reducing state costs by qualifying otherwise ineligible children for Federal reimbursements" (Committee on Ways and Means, 1987).

A recent lawsuit filed in Contra Costa County, Laurie Q. v. Shalala, illustrates the extent of this problem. The complaint alleges that the county has maintained adoptable children in foster care-some with foster parents who have actively sought to adopt them-for the sole purpose of misappropriating their Supplemental Security Insurance (SSI) into the county treasury. In one case mentioned as representative in the suit, a child was found to have been assigned six social security numbers by the county, not one of which was her own. Another plaintiff charged that, when she called the county to inquire as to the availability of SSI for her disabled foster child, she was told by a county employee that she would not be seeing any as it "all goes into a pot." As a result, her foster child went without a needed wheelchair. These and other such practices are alleged to have continued for years. Among the highly detailed allegations set forth in the civil complaint:

The County routinely ignores state-mandated timelines concerning permanency planning for disabled children in foster care, thereby keeping adoptable children in foster care much longer than necessary. The County engages in a custom it terms "red dotting" which involves deliberate shelving for indeterminate amounts of time and/or refusal to allow adoption by labeling children with documented medical and/or behavioral disabilities as "unadoptable." By intentionally delaying the adoption of disabled children in county custody, the County is able to remain the representative-payee for the children's SSI benefits and is able to continue its practice of misappropriation and unlawful self-reimbursement.

Conna Craig and Derek Herbert of the Institute for Children identify as the most troublesome obstacles to foster-child adoption, (a) a federal funding scheme that compensates states for keeping children in care, (b) the failure of states, including the court system, to expedite adoptive placements, (c) overuse of the "special needs" categorization, and, (d) a lack of public awareness about the number of children in foster care who are legally free for adoption but not in preadoptive homes. Insofar as the special needs categorization of children is concerned, Conna Craig points out that in her own home state of Massachusetts, child welfare agencies are known to defer requests for termination of parental rights until children reach the age of seven, as at that age children are deemed to have "special needs" for which child welfare agencies may claim additional federal reimbursements (Mack, 1997).

The reasons for this become clearer on examination of the regulations guiding the recovery of allowable administrative costs under the Adoption Assistance Program Under Title IV-E of the Social Security Act. Among the allowable costs chargeable to the program are the determination and redetermination of eligibility, fair hearings and appeals, rate setting, other costs directly related only to the administration of the program, the costs associated with grievance, negotiation and review of adoption agreements, post-placement management of subsidy payments, recruitment of adoptive homes, placement of the child in the adoptive home, case reviews conducted during a specific preadoptive placement for children who are legally free for adoption, case management and supervision prior to an interlocutory of final decree of adoption, a proportionate share of related agency overhead, referral to services, development of the case plan, home studies, and a proportionate share of the development and use of adoption exchanges. Three conditions must be met in order to trigger these funds. The state must determine that 1) an eligible child cannot or should not be returned to the home of his parents, 2) that the goal for the child is adoption, and, 3) that the child has been determined by the state or local agency to be a "child with special needs" (Administration for Children, Youth and Families, 1983). Once a child is adopted, most or all of these funding streams stop flowing.

As an obvious consequence of the lack of accountability in the child welfare and adoption systems, in 1974 less than 4% of the 30,000 children in the New York city foster care program were referred to adoption, while 29% of all foster children in New York had retained this status throughout their entire lives. "There was recognized to be a definite profit incentive for keeping the child [in foster care]," New York State Representative Mario Biaggi explained to a Congressional subcommittee. "Once the child left the facility," he explained, "the payment to the agency was stopped." Little has changed since. Today, more than 18,000 New York City foster children have a permanency goal of adoption, many of whom are legally free for adoption. Yet the agency completes only approximately 2,400 adoptions each year (Marisol v. Guiliani).

Renny Golden (1997) notes that, without an effective long-term plan, "children don't stand a chance of being adopted." Golden notes that less than 3% of adoptable children were actually adopted in Illinois in 1994, and that of 5,000 children in foster care in Milwaukee County in 1993, only 50 were adopted. Ludicrous case records play a role, according to Pia Menon, formerly an attorney with the Cook County Office of the Public Guardian. "I know for a fact why adoptions fail," she says. "It is because of lousy record keeping and useless evaluations of children. You can't give a caregiver a good assessment of what's wrong with a child without a good case history. People adopt children assuming everything is OK, and then the problems start coming out and they can't deal with them" (Golden, 1997, p. 178).

Indeed, Theodore Stein (1987) points out that information maintained by child welfare agencies is often incomplete and poorly documented. Child-specific data, such as custody date and type of permanent plan, may be missing from a computerized information system. Case plans may exist as a document which reports a planning goal, such as return home, while containing no information about how the goal is to be accomplished. Stein notes that workers "often fail to document the basis for decisions made and tend to record inferences without providing descriptive support." Staff may fail to log chronologically worker-client or parent-child contacts or to monitor service provision.

News of the many wrongful adoption suits filed against child welfare agencies and service providers may also deter many prospective adoptive parents. Almost invariably, child welfare agencies and their service providers raise public policy concerns in their defense against claims of fraud, concealment, and deliberate misrepresentation. In M. H. v. Caritas Family Services, for example, service providers Lutheran Social Services of Minnesota, Catholic Charities of the Archdiocese of St. Paul and Minneapolis, and Children's Home Society of Minnesota joined the defendant as amicus curiae, arguing that the deliberate withholding of information about an adoptive child's background makes for sound public policy. In Roe v. Catholic Charities, the defendant argued that disclosure of the requested information to the adoptive parents would have violated public policy evidenced by Illinois statutes. In Meracle v. Children's Service Society, a Wisconsin case, the defense argued that public policy precluded an action against an adoption agency for negligent misrepresentation. Similar arguments were raised in Michael J. v. Los Angeles County and in Mohr v. Commonwealth, a Massachusetts case in which Special Assistant Attorney General Owen Gallagher advanced the argument on behalf of the Commonwealth, and John T. Landry, III, Special Assistant Attorney General, argued the case on behalf of the social worker who was charged with misrepresentation and fraudulent concealment.

The cited cases constitute but a small representative sampling of many such cases in my possession, the common elements of which would be willful and deliberate misrepresentations of material facts, fraud, and concealment. While it would be improvident to suggest that the adoption end of the child welfare industry is deliberately designed in such a manner as to deter prospective adoptive parents, it can fairly be argued that if a system were to be designed with this objective in mind, one would need hardly improve on the model currently in place. As Children's Rights attorney Marcia Robinson Lowry (Committee on Ways and Means, 1988) explains:

Access to adoption is a cruel hoax. It does not exist for most of these kids. It takes such a long time to decide whether or not to free a child for adoption that by the time a child gets on an adoption track, the child is both so old and so damaged by his experiences in foster care that he becomes truly unadoptable. Then the States say, look, the only kids we have are kids that nobody wants. The State has put them into that situation and the State has delayed getting these kids into a situation where people would know that they were available for adoption.

The problems underlying the failure of the child welfare system to achieve permanence and stability for foster children are attributable to structural deficiencies which "are both numerous and complex," notes the Pacific Research Institute (Matlick, 1997). "Inefficiencies, failures, and misdirected motives exist at every level, from the individual caseworker to the judges that preside over reunification hearings, to the adoption system that is supposed to provide efficient exit." In the final analysis, however, the researchers note that there is one unifying factor underlying all of these deficiencies:

While each level can and should be examined individually, it must be recognized that every problem can be traced to the fact that, structurally, the system fails to promote its own goals. Administrators and caregivers are neither given incentives to promote permanency nor held accountable when they do not. They are instead rewarded for the very impermanence that they are employed to prevent (Matlick, 1997).