In 1998, the federal government started an incentive program aimed at pushing states to finalize more adoptions of youth in foster care.
But in the decades since its inception, few states have seen any consistent benefit from the half-billion dollars spent on incentives. There are 34 states that have received less than $10 million in the 18 years the awards have been made thus far.
But one state has consistently reaped rewards from the federal incentives: Texas.
Year in and year out, as the calculation of the incentives shifted and foster care totals trended down and then up, Texas continued to rake in adoption incentives. As of fiscal 2015, the Lone Star State has hauled in $84 million in incentives, 15 percent of the $556 million in total funding given out.
How did Texas become the king of adoptions? The answer appears to lie in the uncommon way it interacts with biological families.
On the one hand, it has prioritized support for relatives willing to take custody of children. On the other hand, Texas terminates the rights of more parents, by far, than any state in the union.
For every 1,000 children in foster care in Texas in 2015, 296 of them were permanently separated from their parents. In California, where there were over 55,000 kids in foster care that year – 26,000 more than in Texas – that rate was 118. In Florida, home to 22,000 kids in care, it’s 170.
It is standard operation for the Texas Department of Family and Protective Services (DFPS) to begin the termination of parental rights (TPR) process at the very beginning of foster care cases, before any attempt at a reunification plan is underway.
The state’s short fuse with abusive or neglectful parents, and its strong reliance on kin in the quest for permanency, have spurred an ever-increasing number of adoptions in the state. DFPS and its private providers finalized 2,248 adoptions in 2002, and 5,703 in 2016.
But critics of the agency say the trend is not to be applauded; it is a symptom of the state’s failure to reunify families.
“This is a huge problem,” said Brandon Logan, director of the Center for Families and Children at the Texas Public Policy Foundation, in an email to The Imprint. “Texas DFPS files petitions to terminate the rights of all known and unknown parents at the very beginning in over 99 percent of cases, including the rights of innocent parents.”
A National Push for More Adoptions
Through the incentives program, the federal government rewards states for finding families to adopt children whose parental rights have been severed due to abuse or neglect. The amount states are paid per adoption varies based on the child’s age and other circumstances, such as whether the child has special medical needs or developmental disabilities.
Over the years, the incentive payout plan has been revised to improve the way the awards are calculated. One shift pegged the awards to a base year: if a state finalized more adoptions than it did in 2007, it got paid.
A later change, included in a 2014 law, changed it so states were competing again with their expected rate based on recent performance. The new calculation also includes guardianship agreements with kin, so that adoption is not favored over them.
But for many states, the adoption incentives have yielded paltry payouts or big sums in short bursts.
Prior to 2014, most states failed to consistently draw an award from the program. In 2006, 32 states failed to earn any adoption incentive. After the 2007 change there were only 13 states without an adoption incentive in 2008; by 2013 that had jumped back up to 27 states.
Even states with larger total payouts have not seen consistent revenue through adoption incentives. Illinois has earned $33 million since 1998, but most of it came in the first two years of the program. California has brought in $39 million, and almost all of it came in the first four years.
For Texas DFPS, the incentives have become a modest, but predictable, stream of revenue year after year. The agency finalized 4,022 adoptions in 2007, and beat that mark by at least 500 adoptions every year. Between 2008 and 2014, Texas took in more than $61 million. In that stretch, $1 of every $5 in incentives flowed to the coffers of DFPS.
The recent shift in the incentive calculation seems to have helped more states be competitive. Every state drew at least some adoption incentive funds in 2015, which is the most recent award year on record since the incentives are usually paid out a few years after completion.
But Texas still finished with the third-highest award, behind only California and Oklahoma. The state’s incentive has topped $1 million in all but five of the 18 years, and at its peak reached $12 million in 2013.
So what is Texas doing that other states are not?
Terminating Parents’ Rights, Connecting Kin
In order for an adoption from foster care to occur, the rights of the biological parents must be permanently severed. And no state comes close to Texas on that count.
Since 2006 Texas has terminated parental rights for 91,589 children, according to federal data. The next highest total is 79,918 for California. No other state has exceeded 43,000 for the same period.
The state’s penchant for termination is less surprising when you consider that it essentially begins the process upon removing a child from the home.
“The practice in most parts of Texas is to file a termination for parental rights petition at the beginning of most cases even if there is no real indication that termination is needed at that point,” said Stephen Dixon, attorney with Children’s Rights in New York, in an email to The Imprint. “This practice causes the de facto goal (at least one of them) in most cases to be termination.”
DFPS policy reads:
In most counties, DFPS requests termination of parental rights as an alternative in the original petition filed at the time of removal. This puts the parents on notice from the beginning of the case that if the problems that lead to removal are not resolved, DFPS may ask the court to terminate parental rights.
Advocates also believe the policy of filing petitions to terminate parents’ rights is more about what’s convenient to the state than what’s best for the child.
“The blanket practice of filing petitions to terminate is almost uniformly contrary to the stated intent of DFPS and to the best interests of children,” said Logan of the Texas Public Policy Foundation. “It places parental rights at legal risk with little or no evidence to substantiate termination. It also prevents parents from fully engaging in rehabilitative services, because their genuine need for such services is used as evidence to terminate their rights.”
Texas may not be completely alone in this practice. Vivek Sankaran, a University of Michigan law professor and founder of the Detroit Center for Family Advocacy, has concerns about the wide variation among states in how quickly they terminate parental rights.
“What I’ve seen is that state laws vary on the types of efforts that have to be made to reunify the family, and whether reasonable efforts have to be made or not, before the state can seek to terminate,” Sankaran said.
He said he was unsurprised to see that his home state of Michigan is number three on the list of states with the highest rates of termination.
“We do a lot of terminations right away, we don’t provide services to the family and our law gives a lot of flexibility to the agency to request termination” early on in the process, Sankaran said. Overall, Sankaran is dubious about the federal adoption incentives program. “The incentives we’ve created around adoption are pretty perverse. We do a disservice to kids by putting adoption on a pedestal when there are other options … where important relationships can be maintained,” he said.
While Texas is perhaps disturbingly quick to move toward TPR, the state said the secret to its adoption success is in finding permanency within families.
According to Jackie Hubbard, DFPS administrator for foster homes and adoption, the post-2007 boom in incentives coincided with “our practice shift to verifying kinship families for permanency.”
“What we saw in the field, as we started to verify for permanency care assistance, we saw an increase in relative adoption,” Hubbard said, in a 2015 interview with The Imprint.
This syncs up with data collected by Generations United, a national kinship organization, that showed 4 percent of Texas kids – or 259,000 – were being raised by relatives without a foster care removal in recent years. Among youth in foster care, 33 percent are living with relatives.
The state has also made case file review a priority to avoid delays to permanency through DFPS’ annual Project PUSH (Placing Us in Safe Homes).
“We gather data on kids who are available and who have been placed in homes that are intended to be permanent, but their adoptions have not been finalized because of paperwork,” said Stephanie Holmes, adoption program specialist with DFPS. “We look for trends in barriers, and then we help overcome those.”
PUSH resulted in the finalization of 1,814 adoptions between April and November of 2017, according to DFPS.
Outside of kinship placements, DFPS officials said Texas relies on a matching process for adoptive families that includes being upfront with the child’s challenges.
“Both CPS and other child-placing agencies are very straightforward about the types of kids we’re working with,” said Jillian Bonacquisti, a team lead for foster care and adoption at DFPS.
“If they’re older, school age, part of a sibling group, if they have special needs, we focus our recruitment efforts on finding families who would adopt those kids, as opposed to doing general recruitment.”
This is not unlike the Wendy’s Wonderful Kids (WWK) model, which is used in three Texas locations and is considered an evidence-based approach that has proliferated to every state in the nation. Operated by the Dave Thomas Foundation for Adoption, WWK helps public agencies and private providers to hire adoption caseworkers trained to specialize in finding homes for the toughest kids: those older than 8, and children with serious disabilities.
Where Does the Money Go?
Since 1998, Texas has drawn $83.9 million in adoption incentives. Per the 2014 law that changed the incentive calculations, states must spend at least 30 percent of their annual draw on post-adoption services.
In its report on adoption incentives expenditures for 2013 to 2017, Texas divides expenses into four categories: CPS direct delivery staff (the largest portion of incentive dollars goes here), adoption purchased services, other CPS purchased services, and, beginning with 2017, substance abuse purchased services.
DFPS was unable to provide examples or detailed reports of the expenses under these categories.
“CPS direct delivery staff” and “other CPS purchased services” are both considered non-adoption related expenses, according to 2015 research by the New York-based Children’s Law Center. The research analyzed incentive spending in 22 states; of those, Texas is one of only seven to spend its incentive earnings on expenses unrelated to adoption.
The tethering of incentives to post-adoption supports could draw more attention in the near future. There is little data collected on the frequency with which adoptions are disrupted, but states will soon have to start reporting on that to the federal government.
“Some of them are really struggling to help their children heal and thrive,” said Mary Boo, of NACAC, about adoptive families. “We know a lot about the effects of trauma and some of the things that can help, and families in some communities get that support and in some communities, they don’t.”
Based on advocates’ concerns, some of those kids probably could have been safely returned to their parents.
“Over 90 percent of the terminations of parental rights by Texas DFPS are not for abuse or neglect but for parents’ failure to complete the list of court-ordered services, despite the fact that those services present more of a burden than a benefit to parents,” Logan said. “What should be a lifeline is actually a noose that terminates parents’ rights.”
And while Texas finalizes adoptions at a high rate, it is hardly successful at finding permanency for all of the children whose parents’ rights are terminated. For every 1,000 children subject to a TPR, 386 are not adopted.
A large portion of those children languish in foster care through their teenage years, a problem that found Texas on the losing end of a class-action lawsuit with nonprofit litigation firm Children’s Rights.
That lawsuit targeted the state’s Permanent Managing Conservatorship (PMC) program, which had basically become a holding tank for older children. According to Stephen Dixon, one of the attorneys on the case, PMC kids’ cases were put on the backburner and time often ran out without good social work having been done. This left kids to languish in group homes.
U.S. District Court Judge Janis Jack’s ruling on that lawsuit in 2015 could force the state to find homes for them more quickly.
“The case can fix this,” Dixon said. “If the judgment stands, Texas may have the best system in the country. If the judgment does not stand, it will be horrible.”
John Kelly contributed to this story.