What’s Actually in The Trump Executive Order on Child Welfare

President Donald Trump and First Lady Melania Trump after signing the executive order on child welfare policy. Photo: White House

President Donald Trump issued an executive order Wednesday with a laundry list of instructions for his administration on child welfare. The order does not appear to direct new money to states – in one place, it might be calling for tighter restrictions on federal funds – but it does lay out new data collection and technical assistance aimed at reducing the use of, and time spent in, foster care.  

“It is the goal of the United States to promote a child welfare system that reduces the need to place children into foster care” and “achieves safe permanency for those children who must come into foster care, and does so more quickly and more effectively,” the order said. 

Here’s a quick rundown of what jumped out to Youth Services Insider from the executive order. To avoid repeating the phrase ad nauseam, every item is something Trump is instructing the secretary of the Department of Health and Human Services to do. 

Supporting Kinship Care, Preventing Aging Out

Trump said in the order that relatives and others who step up to care for children too often lack “adequate support,” and that the frequency with which youth aging out of foster care experience homeless or joblessness is “unacceptable.” HHS will have to develop a plan to “address barriers to accessing existing Federal assistance and benefits for eligible individuals” for both kin and youth aging out. 

This would be most welcome on both counts. When child welfare agencies place kids with kin, more often than not, it is not through the formal foster care route – it’s through diversion, where the physical custody changes but the parent retains legal custody. In these cases, most states do not pay the relative caregivers the same amount of money that a licensed foster home would get. 

But there are often other benefits that the family might qualify for, including “child-only” welfare checks or assistance with food and nutrition. 

Trump also orders HHS to urge more states to consider taking federal funds for kinship guardianship agreements, often referred to as Kin-GAP. This is a model for permanency that enables relatives to assume permanent custody, with financial support, without the turbulence that can come with adopting the child of a loved one. 

Most states have been approved for Kin-GAP funding, but the actual use of them is highly concentrated in the most populous states. There were nearly 25,000 active Title IV-E guardianships in 2016, the seventh year of the program, according to a recent federal evaluation. Of those, 75 percent were in just six states: California, Texas, Illinois, Oregon, Missouri and Pennsylvania.   

In terms of youth aging out, nearly every state in the U.S. now has some form of extended eligibility whereby a young person can remain in foster care through age 21. But whether they age out at 18 or later, there is often no entity making sure that they are connected to the safety net benefits they might be entitled to. 

Quality Legal Representation

In late 2018, HHS set a new precedent by announcing that states could draw federal funds to help pay for the legal counsel of parents and children involved in child welfare cases. Heretofore, states could only tap the main child welfare entitlement, Title IV-E, for the legal costs incurred by the government. 

Just a few weeks ago, the agency updated this new policy to clarify that this money could also be used for support staff to lawyers, including social workers or peer advocates. This was done to help boost the growing movement to spread what’s known was interdisciplinary law offices, or high-quality legal representation, through which a parent or child’s legal team is fighting for them in and out of court. 

The Trump order calls for HHS to “provide guidance to States regarding flexibility in the use of Federal funds to support and encourage high-quality legal representation for parents and children.” In other words, to go beyond amending the federal manual and actually express the administration’s endorsement of this model. 

When the IV-E tap was first opened on legal fees in 2018, there was a conscious effort not to make too much of a big deal about it, for fear that administration budget hawks would notice and screech about expanding an entitlement program. Now, Trump is saying directly to HHS to put the seal of approval on the most expensive and effective brand of counsel. 

Data on Foster Families

HHS will have two years to build a more “rigorous and systematic” approach to getting administrative data for the periodic reviews done on state child welfare agencies. Among the data points Trump mandates to be in this new process:

  •     Demographic information for children in foster care and waiting for adoption
  •     The number of currently available foster families and their demographic information
  •     The average foster parent retention rate and average length of time foster parents remain certified
  •     A target number of foster homes needed to meet the needs of children in foster care
  •     The average length of time it takes to complete foster and adoptive home certification.

The demographic information for kids in care is already available, through the existing Adoption and Foster Care Analysis and Reporting System (AFCARS). It lags behind the current day by more than a year, so perhaps this order is asking for a more current figure during the state reviews.

 For the past three years, The Imprint has been working on collecting the most basic data available on foster homes from each state – you can see our data sets for each state by visiting the Who Cares website. We marked the total number of foster homes available in America at around 220,000 last year, up from 210,000 in 2018, but many states saw a decline in the number of licensed homes. 

 We will be fascinated at the attempt to collect the rest, especially the average foster parent retention rate and average time of service. The Center for State Child Welfare Data took a stab at this using one state’s data, tracking homes licensed from 2011 to 2016, and the findings were grim – of the homes licensed in 2011, just 5% were active by 2016. Only 27% of homes licensed just the year before were still active, which suggests that the problem with retention is heavily rooted in that first year of experience. 

 Reasonable Efforts Reviews

Also required in HHS’ periodic reviews now will be an assessment of how states perform in making reasonable efforts to prevent removing children, and when that is necessary, reasonable efforts to secure them a permanent home (either through reunification, guardianship or adoption). The reviews will also have to assess how states do in the early stages of cases in finding family willing to help, and on meeting the timelines around filing for termination of parental rights.

 This is followed with instructions that the agency should make use of its ability to penalize states that are failing to live up to these standards, which HHS has had for decades but rarely uses. 

Assessing Risk Assessment

Trump’s order requires HHS within 18 months to aggregate all of the standards used by states to conduct risk and safety assessments, which are applied to child welfare cases with steep consequences including the removal of children based on how risky a parent is scored to be. 

The expectation is that HHS will analyze this information and then issue best practices on how to judge the risk associated with various issues that often connect to child welfare cases, including domestic violence and substance use or abuse. This will be tough sledding in states where counties handle child welfare services, sometimes with different risk assessment tools than each other. 

John Kelly can be reached at jkelly@chronicleofsocialchange.org

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