America’s Failed Child Welfare System Leaves Kids Out in the Cold?

In Chicago, two girls were trapped in abusive foster homes for years because of a clerical error. In New Mexico’s Bernalillo County, 53 child abuse and neglect cases were reported within a 58-day period, with the county on track to double the previous year’s child abuse caseload.

And in Massachusetts, the state’s embattled child welfare agency was warned for decades of the need for improvements before five-year-old Jeremiah Oliver went missing and was found dead months later in a roadside ditch.

Every day, headlines throughout the nation tell the same, sad story of a child welfare system that is malfunctioning– from bureaucratic snafus to overburdened and underfunded systems, to tragic deaths like Jeremiah Oliver’s.

During 2013, an estimated 679,000 children were the victims of neglect or abuse. A conservative estimate of children who were killed that year by abuse or neglect is 1,520. Sadly, the actual numbers are much higher because so many cases of child abuse and neglect go unreported.

Amy Harfeld. Photo: National Association of Counsel for Children

Most – if not all – state child welfare systems are in crisis.

So who is minding the shop? Unfortunately, the answer is no one.

A new report faults all three branches of the federal government for failing to enact, fund, and enforce critical laws, effectively leaving these already devastated children out in the cold with no recourse, and nowhere to turn for help.

The report is aptly titled “Shame on U.S.” and takes the federal Department of Health and Human Services (HHS) to task for allowing states to fall short of full compliance with federal law and approved state plans. Not only does HHS allow states to negotiate corrective action plans, which sidestep real accountability, but it almost never uses its power to financially penalize those states that fail to conform to federal child welfare law, resulting in an unspoken complicity that hurts children and families.

After more than 13 years and two full rounds of Child and Family Services Reviews, not a single state is in conformity with the few federal child welfare requirements actually evaluated. That’s simply not acceptable. As the federal agency responsible for implementing and enforcing child welfare laws, HHS must do a better job of evaluating states’ conformity with federal standards and state plan requirements and must impose serious consequences when states fall short. And HHS must itself be held accountable for their role in following Congressional direction and fulfilling their role in oversight.

As the report points out, however, HHS isn’t the only federal arm that has failed America’s neglected and abused children.

Congress must enact comprehensive child welfare finance reform to address a wide range of problems, such as the arcane “look back” provision which determines Title IV eligibility based on 1996 poverty levels. The patchwork system of federal child welfare laws, scattered between Congressional committees that refuse to collaborate and full of unfunded mandates must be simplified and reconciled. And these laws must have teeth, ensuring that they are vigilantly implemented and enforced — as if each of our children’s safety was at stake. Which it is.

For its part, the federal judiciary has grown far too passive, increasingly willing to step away from involvement in cases aimed at addressing inequities in state child welfare systems.

The report lists dozens of class-action lawsuits that have been filed across the country to address state deficiencies, such as the failure to ensure that social workers have manageable caseloads and receive adequate training and supervision; that incidents of neglect and abuse are reported in a timely fashion and that foster parents are properly licensed and trained. But these cases are often blocked by judicial barriers, standing difficulties and limited access for aggrieved foster children seeking a final avenue of relief. We must recognize and articulate a right to seek judicial remedy when states are failing to follow the law and are not being held accountable.

For those who labor to improve outcomes for maltreated children and the systems designed to protect them, the report – conducted over a three-year period and based on public and internal government documents — is a must-read. It explains exactly where each branch of the federal government has failed in its own right, and in its responsibility to ensure that state child welfare systems are doing their jobs.

But the report also provides ambitious and comprehensive recommendations for solving America’s child welfare system morass. Protecting and caring for our nation’s most vulnerable children is not a state job, nor a federal job. It is a moral imperative for every taxpayer who unknowingly serves as the “parent” of each child in state custody.  And it would indeed be a “shame” if the report’s calls for action by our executive, legislative and judicial branches go unheard.

Amy C. Harfeld, JD is the National Policy Director & Senior Staff Attorney for the Children’s Advocacy Institute at the University of San Diego School of Law.

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