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Journal Issue: Children, Families, and Foster Care Volume 14 Number 1 Winter 2004

When Children Cannot Return Home: Adoption and Guardianship
Mark F. Testa

Strategies and Trends in Achieving Permanence

Policies and practices to achieve permanence for children in foster care have evolved rapidly in the last two decades. The current consensus supporting permanence for children in foster care began to emerge in the 1970s, as evidence of the negative effects of long-term foster care placement on child well-being began to mount. Several studies documented the detrimental impact of children languishing indeterminately in foster care without a plan for permanence.3 The research findings reinforced the importance of permanent attachments and relationships for healthy child development and provided a strong evidence base in support of increased efforts to achieve permanence for foster children.4 Additionally, research funded by the U.S. Children's Bureau demonstrated the feasibility of initiatives to improve an agency's ability to find permanent homes for children who would otherwise have grown up in care.5 As a result, despite various tensions in determining the optimal permanency arrangement for individual children (see Box 1), the consensus around the importance of a stable family for children continued to grow. The overarching goal of the federal Adoption Assistance and Child Welfare Act (AACWA) of 1980 was to provide services and support to families and children in order to reduce the amount of time children would spend in care.

A decade after permanency planning became the guiding principle in child welfare, optimism over its potential to bring stability and security to the lives of foster children began to fade. Whatever gains may have been made in reducing the numbers of children in out-ofhome care following the law's passage, voluntary reporting by the states showed that by the late 1980s, foster care caseloads were again on the rise.6 By the early 1990s, more than 500,000 children were in foster care—the highest number ever recorded up to that time.7

Since the mid-1990s, both the number of foster children adopted and the number discharged to the legal guardianship of kin and foster parents have increased substantially. In part, these increases are outgrowths of the growing number of foster children in need of permanent homes. However, other factors have also played a role. A discussion of specific factors that have contributed to the increased number of children achieving permanence through adoption and guardianship, and the demographic characteristics of the children likely to experience each of these options, follows.

Encouraging Adoption

The provisions of the Adoption and Safe Families Act (ASFA) of 1997 endorsed adoption as the primary solution for the backlog of children in foster care who could not or should not return home. The act authorized the payment of adoption bonuses to states that increased numbers of adoptions over an established baseline.8 However, even before the passage of ASFA, social norms regarding adoption practices were evolving, and the number of adoptive parents seeking to adopt children from foster care had begun to grow.

Changing Social Norms
Beginning in the 1970s, social norms began to change, resulting in a lifting of secrecy surrounding adoption and a decline in the number of non–foster care children available for adoption. Both these changes provided an impetus to prospective adoptive parents to adopt children from foster care.

Historically, norms of secrecy surrounding adoption discouraged potential parents from adopting children who did not appear to be their birth children. People making placement decisions sought to match infants physically with the characteristics of adoptive parents. As a result, children who did not match the physical characteristics of the majority of adoption seekers (who were white), as well as older children and children with physical, mental, or emotional handicaps, were generally stereotyped as "unadoptable."9 State laws dating back to the 1940s reinforced the secrecy of adoption by shielding adoption records from public scrutiny, permitting adopted children to be issued second birth certificates that substituted the names of adopted parents for birth parents, and concealing the identity of birth parents.10

Beginning in the 1970s, however, permanency advocates attacked these stereotypes, arguing that "every child is adoptable." Their efforts encouraged a new group of prospective adoptive parents to step forward, a group seeking to express humanitarian values, provide permanent homes for foster children, or preserve children's ties to kinship, ethnic, or cultural groups.11 The rise of such "preferential adoptions" (adoptions motivated by reasons other than infertility)12 helped gradually lift the veil of secrecy from adoption practice and at the same time increased the number of adoptions from foster care.

At about the same time, another shift in social norms had a significant impact on the overall number of children available for adoption. Historically, most children available for adoption were the children of unwed mothers. However, beginning in the 1970s, a reduction in the social stigma associated with illegitimacy and unwed motherhood led to fewer single mothers relinquishing their children for adoption. Responses to the National Survey of Family Growth show that voluntary relinquishment at birth decreased substantially after 1970. Whereas prior to 1973,13 19% of children born to never-married white women were relinquished at birth, after 1989 the figure fell to below 2%. Among children born to never-married black women, the comparable percentage of infants relinquished at birth in 1989 virtually vanished from its level of 2% prior to 1973. As the 1990s approached, adoption seekers of all types increasingly turned to the only source of adoptable children that was expanding in the United States: children waiting in foster care.

Trends in Adoption
Since passage of ASFA in 1997, the number of adoptions from foster care has continued to grow. According to the Adoption and Foster Care Analysis and Reporting System (AFCARS), there were 36,896 adoptions of children with public child welfare involvement in federal Fiscal Year 1998 (October 1, 1997–September 30, 1998), 46,772 such adoptions in federal Fiscal Year 1999, and 50,722 such adoptions in federal Fiscal Year 2000. As of federal Fiscal Year 2001, 27 states and the District of Columbia had already doubled adoptions over the 1995–97 baseline set in the president's 1996 initiative (Adoption 2002) and ASFA.14 Hawaii, Idaho, Illinois, Maine, Oklahoma, and Wyoming, were able to triple the number of adoptions. Adding up the peak number of adoptions each state finalized shows that the nation's foster care systems surpassed the president's goal of doubling adoptions by 2002 a year in advance. (See the Appendix at the end of this article for adoption trends in each state for federal Fiscal Years 1995 to 2001.) As a result, public foster care systems have begun to shrink. However, this trend also means that states will have a difficult time increasing adoptions in the future since the pool of children adoptable from foster care is becoming smaller.

Characteristics of Adopted Children
According to the latest available data, there appear to be distinct differences between foster care children who are adopted, those who are placed with legal guardians, and those who remain in care awaiting permanent homes.15 Adopted children tend to be younger than those placed with legal guardians or those waiting in care, and fewer of them are members of a minority race.

The average child adopted from the foster care system in federal Fiscal Year 2000 was 6.9 years old, and the average child awaiting adoption was 8.1 years old.16 In federal Fiscal Year 2000, the number of children under age six who were adopted from foster care was 28% higher than the number of younger children awaiting adoption. Conversely, the number of children age 11 and older who were adopted was 40% lower than the number of older children awaiting adoption.

A child's race or ethnicity also affects the likelihood of being adopted. Black children constituted the largest racial category of children adopted from foster care in Fiscal Year 2000, but their proportionate share of total adoptions dropped to 39% from 46% in Fiscal Year 1998 (see Table 1). This decline was due partially to the addition of a multiracial classification and improvements in moving African American children from foster care to permanent homes during Fiscal Year 2000. The impact of these changes can be gleaned by comparing the racial and ethnic distribution of adopted children to children awaiting adoption. Whereas the number of children of African American descent who were adopted during Fiscal Year 1998 was 13% lower than the number awaiting adoption at the end of the fiscal year, by Fiscal Year 2000 this underrepresentation had narrowed to 9%. Because of the increasing number of African American children being adopted, they constitute a smaller share of the pool of foster children awaiting adoption.

Characteristics of Adoptive Homes
The increase in adoptions over the 1995–97 baseline and the large gains among African Americans in particular are consistent with the goals of Adoption 2002, ASFA, and related policy initiatives. But the supply of new adoptive homes has not come from the untapped pool of families that federal officials believed could be recruited after the Multiethnic Placement Act17 cleared away some of the obstacles to transracial adoption. Rather, the major source of new adoptive homes has been relatives who previously were either ignored as an adoptive resource or were not asked to adopt on the mistaken assumption that relatives would not adopt.

Most children adopted out of foster care (almost two thirds) are adopted by unrelated foster parents. But since 1997, relatives have become the fastest-growing source of new adoptive homes for foster children.

Between federal Fiscal Years 1998 and 2000, the number of adopted children who were already related to their adoptive parents prior to finalization almost doubled, from 5,451 to 10,612. As a consequence, the proportionate share of kinship adoptions rose from 15% to 21% of all adoptions from foster care.

The discovery that relatives will indeed adopt if fully informed of their options came about as a result of innovative efforts to create alternative permanency options that built on the cultural traditions of informal adoption and kinship care among African Americans. For example, in 1994 Illinois developed a special foster care status called Delegated Relative Authority (DRA), which gave relative caregivers greater decision-making authority while retaining children in public custody in order to preserve federal eligibility for foster care subsidies. A study of DRA found that 70% of caregivers who preferred a child to stay with them until the child was fully grown reported that they were willing to consider adoption.18 However, this study also found that the willingness of kin to adopt fell off sharply for children older than 11.

The Growth of Kinship Care and Guardianship

The number of kin care providers has increased substantially since the passage of ASFA. However, the growing number of children placed with kin may have inadvertently contributed to the growing backlog of children in long-term foster care because of lingering resistance to the idea of relatives adopting their own family members. In response, many child welfare agencies have rediscovered the utility of legal guardianship as a means of moving children off child welfare rolls, making kinship care arrangements legally lasting, and providing continued financial support to kin caregivers.

Growing Preference for Kinship Care
Between 1986 and 1990, the number of children placed in formal foster care with relatives rose from 18% to 31% of public placements in the 25 states that were able to supply such information to the U.S. Department of Health and Human Services (DHHS).19 The growth of kinship foster care after 1986 came in response to two developments: a heightened interest in honoring familial and cultural ties20 and an inadequate supply of licensable foster homes, particularly in inner-city neighborhoods.21 As the national foster care population expanded, however, child welfare researchers began spotting connections between caseload growth and the rise in kinship foster care. They noticed that although foster children living with kin tended to have more stable placements than children living with non-kin,22 their rates of reunification and adoption were much lower,23 thereby contributing to the backlog of foster children in longterm care. (See the article by Geen in this journal issue for further discussion of kinship care.)

Rediscovery of Guardianship
The growing number of kin caregivers has been the major impetus for the increased usage of guardianship. Legal guardianship actually predates adoption in American law. Court-appointed legal guardians are legally conferred with "the duty and authority to make important decisions in matters having a permanent effect" on the life, development, and general welfare of a child.24 Although legal guardians need not be related to the child, kin make up a substantial proportion of appointed guardians.

Legal guardianship is an attractive option for child welfare agencies and kin, as it addresses many concerns expressed about kin adopting their own family members. When a child is adopted, all ties to the birth family are legally severed and the adoptive parents assume all legal and financial responsibility for the child. Legal guardianship does not require the termination of parental rights, thus children retain legal connections to their birth families, and guardians assume limited financial liability for the upkeep of children in their care. This can be a beneficial arrangement for some children and families. Guardianship, unlike adoption, allows kin to retain their extended family identities as grandparents, aunts, and uncles. Children may retain rights of sibling visitation. Birth parents may still exercise a limited role in their children's upbringing as they hold onto certain residual rights and obligations, such as rights to visitation as well as obligation for child support. Birth parents may also petition the court to vacate the guardianship and return the children to parental custody if their circumstances change.

The inclusion of legal guardianship as a permanency option under ASFA recognizes that termination of parental rights and adoption may not always be in the best interests of foster children. For example, when legal grounds are insufficient to prove parental unfitness, but reunification is still undesirable, private guardianship creates legal certainty and stability in the caregiving relationship that is lacking when the state retains legal custody of the child. Furthermore, a number of aspects of guardianship might better serve not only the interests of the child but also the birthparent, substitute caregiver, and state.25 For example, private guardianship:

  • Makes the caregiver personally responsible for the welfare of the child and relieves the state of the civil liability for inadequate foster care;
  • Might help lessen the separation trauma, sense of loss, and identity conflicts that sometimes develop when children are adopted, particularly if they are old enough to remember their parents or cherish their heritage, because private guardianship allows for the continued involvement of birth parents in the lives of their children;
  • Is less expensive than foster care because the costs of casework services, public guardianship administration, foster home licensing, and judicial review are no longer incurred when the child welfare case is closed;
  • Enables the state to seek to recover some of the costs of the subsidy program, because birth parents remain obligated to provide child support; and
  • Is more in keeping with the custom of informal adoption by extended family members.

Support for subsidized guardianship, especially for children in long-term kinship care, grew gradually during the 1990s. The idea was endorsed by nearly every "blue-ribbon committee" convened on the subject of kinship foster care.26 In 1995 the Children's Bureau invited states to submit applications for subsidized guardianship demonstrations "which would allow children to stay or be placed in a familial setting that is more cost effective than continuing them in foster care."27 Reunification and adoption were acknowledged as the preferred choices, and terms and conditions established by the federal waiver demonstrations stipulated that guardianship be pursued only when adoption was inappropriate or unavailable as a permanency option. Currently, seven states (California, Delaware, Illinois, Maryland, Montana, New Mexico, and North Carolina) and the District of Columbia have been granted waivers to test the use of guardianship.28

Trends and Characteristics of Children Discharged to Guardianship
The data indicate an increasing preference for guardianship. 29 AFCARS figures show that 10,341 children exited foster care through legal guardianship during federal Fiscal Year 2000—a 77% increase over Fiscal Year 1998.30 The best available data on the characteristics of children discharged to private guardianship (commonly called private wards)31 come from statefunded programs in the eight federal foster care guardianship demonstrations that DHHS has approved since 1997.32 Despite program and funding differences among state and federal demonstration programs, there are similarities across the states in the characteristics of children discharged to guardian homes as compared to children adopted from foster care.

Table 2 compares the age, race, and ethnicity of private wards with adopted children in the states of California, Illinois, and Washington. The data show that private wards tend to be older and more often members of a minority race than children adopted from foster care. The age difference is consistent with the sentiment that guardianship better accommodates the preferences of older children, who may wish to maintain ties with their biological parents. The racial difference may reflect longstanding Native American, African American, and Hispanic traditions of extended family care that share important similarities with legal guardianship.

In sum, although the preference for adopting younger children continues, significant gains have been made in the number of older children achieving permanence either through adoption or legal guardianship. This trend is largely a result of more kin choosing to adopt and more children exiting foster care through legal guardianship. Moreover, a greater number of African American children are achieving permanence, largely as a result of state policy and administrative reforms that have aggressively promoted adoption and guardianship as alternatives to long-term kinship foster care.33