Marcia Robinson Lowry Testifies at Congressional Hearing:

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Recommends Federal Minimum Standards for Child Welfare Systems


My name is Marcia Robinson Lowry, and I am the Executive Director of Children's Rights. Children's Rights is a national non-profit advocacy organization dedicated to promoting and protecting the legal rights of abused and neglected children. I want to thank Chairman Herger and other members of the Subcommittee of Human Resources of the Committee on Ways and Means for providing me with the opportunity to testify today.

As Executive Director of Children's Rights, I have overseen class action litigation in over 12 jurisdictions across the country, including New Jersey , seeking to vindicate the constitutional and federal statutory rights of children under the care of public child welfare agencies. These are, more often than not, poorly managed and inadequately funded agencies that are rarely held accountable for their chronic failures. As you know, of the dozens of states that have been audited for their child welfare performance by the Administration for Children and Families (ACF) in the recently implemented Child and Family Services Reviews (CFSRs), not one has passed.

I appreciate the opportunity to address this Committee and detail the current situation in New Jersey and across the country that will continue to produce child welfare tragedies such as witnessed recently in Collingswood , New Jersey , as long as federal child welfare statutes are not strengthened and enforced.

As you are probably already aware, Children's Rights filed a lawsuit against the New Jersey Division of Youth and Family Services (DYFS) in 1999. That lawsuit was filed after years of attempted reforms of the child welfare system in New Jersey had failed - blue ribbon reports and concerted efforts by local advocates had effected little - if any - change in a child welfare system uniformly seen as dysfunctional and failing. Our lawsuit detailed a host of serious problems that required immediate attention to ensure the safety and well-being of children in the New Jersey foster care system. The class action on behalf of the over 12,000 children in foster care in the State of New Jersey was certified by the federal court last year.

The lawsuit was met by stiff opposition and resistance by DYFS - that is, until the discovery of the death of Faheem Williams and the deplorable condition of two half-starved brothers in January of this year. DYFS faced, under intense media pressure, the horrific consequences of having essentially "lost" these children in its system, failing to protect them despite being placed on clear notice that the children were at considerable risk of harm. At the same time, independent experts retained by Children's Rights to examine the safety practices of DYFS, delivered the devastating results of their review of state data and hundreds of randomly selected foster children's case records maintained by DYFS. Concluding that children in foster care in New Jersey were simply not safe, they found that:

*Over one in ten foster children in New Jersey are abused and neglected in foster care;
*Foster children supervised by the Adoption Resource Centers were over three times more likely to be abused and neglected in their foster homes than other foster children;
*20% of foster children had ping-ponged back into foster care at least once from a failed reunification or adoption; and
*Many caseworkers carry caseloads well over 80 children, when the national standard calls for a caseload of 15 to 17 children (12 children for adoption workers).

Under increasing public pressure to address the undeniable dangers that children in the New Jersey foster care system faced, DYFS entered into settlement negotiations with Children's Rights. An agreement was signed by all parties on June 23, 2003 , and on September 2, 2003 , Judge Stanley R. Chesler of the United States District Court in Trenton , New Jersey , approved the settlement agreement that for the first time mandated sweeping reforms of the New Jersey foster care system.

In the settlement, the State agreed to both emergency and long-term reforms aimed at protecting children, all under the oversight of an outside panel of experts and the federal court. Under the Settlement Agreement, $30M in emergency State funds have already been appropriated for additional casework staff and needed supplies such as computers, cell phones and cars, and every child in foster care - including some 4,000 children placed with families supervised by DYFS's Adoption Resource Centers - is being individually assessed to be safe or removed from an unsafe foster home. Additional reforms will include the re-training of all casework staff and the elimination of barriers to hiring experienced staff, the belated implementation of a Statewide-Automated Child Welfare Information System (SACWIS) allowing the proper tracking of children, foster homes, and case progress, and the resurrection of a defunct Quality Assurance function for continuous internal review and assessment of the State's child welfare case practice.

Meanwhile, though, the number of reports of child abuse and neglect in the State has risen dramatically this year and caseloads have actually increased. The State was also just penalized $6.2M in federal funds after failing a second audit of its Title IV-E claiming for federal foster care matching funds, due to placing foster children in unlicensed homes or facilities, and failing to document the children's legal status. Clearly, reform is a long-term proposition, and Children's Rights will be actively monitoring the progress of the court-ordered reforms.

This is the context in which the latest scandalous oversight of the New Jersey child welfare system needs to be understood. While aberrant mistakes can occasionally be made in any child welfare system, egregious oversights are highly predictable in an under-funded and mismanaged agency such as DYFS in New Jersey. Caseworkers are overwhelmed with too many children to monitor and an insufficient number of foster homes and few supportive services for foster children. They are poorly trained and supervised. Staff has not been given adequate tools to track children, their needs, and whether they are in safe placements. Without such accountability, the State cannot assure the safety of the children in its care.

In the Collingswood case, over the course of the last two years, caseworkers visited the Jackson home dozens of times - a home in which four already adopted children were apparently being starved, so badly malnourished that their tiny sizes masked their true ages. The caseworker reportedly did not question the children's condition or refer any concerns for further investigation. Nor did an emergency safety assessment of this foster home by DYFS in July, mandated by the Children's Rights settlement because the family was caring for a DYFS-supervised foster child who was also slated to be adopted by the family, identify any safety concerns.

In the case of the children adopted and then apparently mistreated by the Jacksons , the agency failures fall squarely into two categories:

An inadequate assessment of the Jacksons when they applied to adopt - that is, a failure to carefully consider their psychological status and parenting abilities, which, even if not evident at the time of the boys earlier adoptions, were certainly apparent when the child in foster care was most recently placed with them pre-adoptively.

A failure to adequately conduct a safety assessment on behalf of the child in foster care who was placed with them - an assessment which should have included an evaluation of the home environment and any and all health and safety issues affecting all children in the home. Had such a complete assessment been conducted, the terrible circumstances under which the four adopted boys were living would have become obvious.

None of this happened, however - why not?

First, it is clear that DYFS currently lacks the capacity on its own to conduct valid and credible safety assessments. Its caseworkers, as a group, lack the skills and the time to appropriately assess the risk of harm to children and the threat of imminent danger, and they do not have the skills, the time or the supervision needed to take appropriate protective action to ensure the safety and well-being of children for whom DYFS is legally responsible. For this reason, the state is seeking independent professionals to make in-person visits to thousands of children for whom emergency safety assessments under the Children's Rights settlement must be redone. This issue, obviously, raises the larger question of capacity-building within DYFS itself to ensure that in the future, DYFS staff do indeed have the skills to assess the safety of children and to ensure that the results of their safety assessments can be relied upon with confidence.

Second, supervisory and administrative accountability within DYFS is critically lacking. The failure to detect and respond to the alleged abuse and neglect of the children in the Jackson home cannot solely be attributed to the caseworker's inadequate assessment and response. That individual had a supervisor and that supervisor was accountable to higher-level administrative staff who also have responsibility for the quality of safety assessments and for ensuring that action is promptly taken to protect children in foster care. Clearly, substantial work is needed within DYFS to develop and implement strong supervisory and administrative processes that monitor and ensure the quality of casework practice.

It is these two areas of unacceptable practice on which we must focus. Nationally, there are 600,000 abused and neglected children in foster care custody. As you know, the federal Adoption and Safe Families Act of 1997 was enacted with two laudable goals: to speed the placement of these foster children into permanent homes and to prioritize child safety at all times for children under the care and supervision of state child welfare agencies. For FY 2002, New Jersey in fact qualified for the second largest financial incentive award in the country under the Act ($1.9M), due to its significant increase in the number of adoptions it completed. This is a positive development if the homes are being screened and chosen appropriately in each child's interests, rather than solely in the state's interest in showing compliance with a federal statute.

We must demand that DYFS, and every child welfare system in the country meet the highest safety standards for children in foster care. It has been suggested that the Collingswood case demonstrates the need for some focus on post-adoption monitoring. The truth is that too many states, certainly including New Jersey , cannot even do an adequate job of monitoring children while they are in foster care. It would indeed be a mistake if instead of focusing our energy and efforts on critical safety issues, we instead began to question the viability of adoption as a permanency option for children in foster care; to question the vital role of adoption subsidies in making possible the adoptions of thousands of children in foster care each year (a role that adoption subsidies have played since 1980); or to question the commitment and love with which tens of thousands of adoptive families have embraced children in foster care, giving them the nurturing, stability and hope that they otherwise would not have had.

We know that adoption "works" for children in foster care. We know that adoption subsidies are a critical adoption resource. It is important to recognize that subsidies typically do not even cover the basic expenses of raising a child - a fact that undercuts the argument that families adopt "for the money." Nonetheless, subsidies provide an important support for families who adopt children with special needs because they defray some expenses and because health insurance coverage accompanies subsidies. Finally, we know that with the exception of a few disturbed adoptive families like the Jacksons (who should have been screened out of the process in the first place), families who adopt children with special needs from foster care are strong, healthy families who contribute to their children's lives and to their communities. Upon adoption, they socially and legally become "just like" other families. To treat these families as "second class" citizens who need continuous monitoring and oversight would not only deprive them of their constitutional rights - a matter of not insignificant importance - but would create a system of government intrusion very likely to discourage families from stepping forward to adopt the now 126,000 children in foster care in this country for whom adoption is planned.

The agency failure in Collingswood was not a failure to supervise adopted children as has been suggested. It was a failure to properly screen and match the Jackson family with foster children they could handle, and then a complete failure to adequately re-evaluate the family - including the children in it - before repeatedly approving them to adopt those foster children. Since adoptions are meant to be permanent, before the child welfare agency signs off on an adoption the child's safety and well-being in the home need to be evaluated and assured. Standard social work practice (and, in New Jersey , state law) requires that every member of the household be part of that evaluation. Any concerns must be fully explored and resolved. Only upon such a complete evaluation, if positive, should an adoption be finalized. Once finalized, however, the family is and should be considered legally indistinguishable from any other family. Children are entitled to be considered equal members of the family, and not subject to the conditions of further agency review.

As children's advocates, we deeply appreciate the interest of this Committee in the situation in New Jersey , and its concern about abused and neglected children. I would like to suggest positive actions that Congress can take to protect the well-being of these children. Congress has already passed legislation several times, beginning in 1980 with the Adoption Assistance and Child Welfare Act, and most recently in 1997 with the Adoption and Safe Families Act. This legislation is directed at ensuring that children are safe, that they do not remain in state foster care systems indefinitely, that they are treated appropriately while they are in state foster systems and that they grow up in permanent families, either their own or new adoptive families.

However, in this legislation Congress has given the states only the broad outlines of its desirable public policy goals and then left the states on their own to comply with those broad outlines. But by now Congress should realize that far too many states are either not meeting even those broad outlines or, when they do, for example, raise their adoption numbers, are doing so by including many clearly inadequate families, as the Jacksons appeared to be, along with the genuinely committed loving families who want to make a home for these children, just to "succeed" by boosting their numbers.

If Congress wishes to really protect these children, to make the broad outlines of its child welfare statutes meaningful instead of a cruel hoax, and to ensure the best possible utilization of billions of federal dollars, it will also impose minimum standards in such areas as job qualifications, worker training, caseloads, and systems of accountability on these child welfare systems. With federal money the states can either save or destroy young lives. We are destroying far too many. If you are appalled at the stunted bodies of the boys in Collingswood, and if you remember the mummified body of 7-year-old Faheem Williams and his starving brothers discovered in a New Jersey basement in January, you will consider mandating minimum standards for the operation of any child welfare system that has the lives of these young children in its hands.

Thank you for this opportunity to present these thoughts to your Committee.
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