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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


1. Mass, H.S., and Engler, R.E., Jr. Children in need of parents. New York: Columbia University Press, 1959.

2. Legal guardianship over a child either through birth or adoption.

3. Bowlby, J. Attachment and loss. New York: Basic Books, 1969; and Goldstein, J., Freud, A., and Solnit, A.J. Beyond the best interests of the child. New York: Free Press, 1973.

4. See the article by Jones-Harden in this journal issue for a more detailed discussion of this research.

5. Emlen, A., Lahti, J., Downs, G., et al. Overcoming barriers to planning for children in foster care. DHEW Publication No. (OHDS) 78-30138. Washington, DC: U.S. Government Printing Office, 1978.

6. Although no reliable time series on foster care trends existed at the time, by piecing together different sources, some official observers determined that the number of children in out-of-home care had decreased dramatically as a result of AACWA from an estimated 500,000 in 1977 to less than 250,000 in 1983. See Gershenson, C.P. Child welfare research notes #9. Washington, DC: Department of Health and Human Services, Administration for Children, Youth, and Families, 1985. Others disputed this claim, however. See Steiner, G.Y. The futility of family policy. Washington, DC: Brookings Institution, 1981.

7. Several factors appear to have contributed to the increasing number of children in foster care. Analysis of the "flow" of children into and out of the foster care system, as reported to the Voluntary Cooperative Information System (VCIS), suggests that some of the rise can be attributed to parental drug addiction, concentrated urban poverty, and the AIDS epidemic. A marked decline in the rate of exits from care appears to have also contributed to the accumulation of children in long-term foster care. (VCIS was operated by the American Public Welfare Association and funded by the U.S. Department of Health and Human Services. It collected information voluntarily submitted by the states and compiled it in an annual report starting in Fiscal Year 1982. Prior to the development of AFCARS, VCIS was the primary source of data on the national child welfare system and the only source of comprehensive data estimates on the adoption of special needs children who at some time had been part of the substitute care system.) For further discussion of this topic, see Tatara, T. Characteristics of children on substitute and adoptive care: A statistical summary of the VCIS national child welfare database. Washington, DC: American Public Welfare Association, 1992; and the article by Stukes Chipungu and Bent-Goodley in this journal issue.

8. These bonuses authorized up to $6,000 per child adopted over the baseline. See the article by Allen and Bissell in this journal issue for a full discussion of the provisions of ASFA.

9. Smith, J. The realities of adoption. New York: Madison Books, 1997.

10. Sokoloff, B. Antecedents of American adoption. The Future of Children (1993) 3:17–25; and Carp, W. Family matters: Secrecy and disclosure in the history of adoption. Cambridge, MA: Harvard University Press, 1998.

11. Hoksbergen, R.A. Adoption in worldwide perspective. Berwyn: Swets North America Inc., 1986.

12. Chandra, A., Abma, J., Maza, P., and Bachrach, C. Adoption, adoption seeking, and relinquishment for adoption in the United States. Advance Data from Vital and Health Statistics, No. 306. Hyattsville, MD: National Center for Health Statistics, 1999.

13. Testa, M.F., and Falconnier, L. Improving data collection on adoption and relinquishment of children in the National Survey of Family Growth. Final report prepared for a professional services contract, Center for Disease Control and Prevention. Hyattsville, MD: National Center for Health Statistics, December 1998.

14. Adoption 2002 was a 1996 presidential initiative to promote bipartisan federal leadership in adoption and other permanent placements for children in the public child welfare system. Duqette, D.N., Hardin, M., and Payne Dean, C. Adoption 2002: The president's initiative on adoption and foster care. Washington, DC: Children's Bureau, National Clearinghouse on Child Abuse and Neglect Information, 1999.

15. Demographic characteristics of foster children are more readily obtainable for children awaiting adoption or adopted from the public foster care system than for children discharged to legal guardianship.

16. U.S. Department of Health and Human Services, Administration for Children and Families. Adoption and Foster Care Analysis and Reporting System. Report 7. Washington, DC: DHHS, August 2002. Available online at /dis/afcars/cwstats.htm.

17. For a brief description of Multiethnic Placement Act, see the Appendix at the end of the article by Allen and Bissell in this journal issue.

18. Testa, M., Shook, K., Cohen, L., et al. Permanency planning options for children in formal kinship care. Child Welfare (September– October 1996) 75(5): 451–70.

19. Spar, K. Kinship foster care: An emerging federal issue. Washington, DC: Library of Congress, Congressional Research Service, September, 1993.

20. Gleeson, J., and Craig, L. Kinship care in child welfare: An analysis of states' policies. Children and Youth Services Review (1994) 16(1/2):7–31.

21. Leos-Urbel, J., Bess, R., and Geen, R. State policies for assessing and supporting kinship foster parents. Washington, DC: Urban League, July 15, 2000.

22. Iglehart, A.P. Kinship foster care: Placement, service, and outcome issues. Children and Youth Services Review (1994) 16(1/2):107–22; Scannapieco, M., Hegar, R., and McAlpine, C. Kinship care and foster care: A comparison of characteristics and outcomes. Families and Society (1997) 78(5):480–88; and Wulczyn, F., and Goerge, R.M. Foster care in New York and Illinois: The challenge of rapid change. Social Service Review (1992) 66(2):278–94.

23. Berrick, J. D., Barth R., and Needell, B. A comparison of kinship foster homes and foster family homes: Implications for kinship foster care as family preservation. Children and Youth Services Review (1994) 16(1/2):33–64; Testa, M. Kinship foster care in Illinois. In Child welfare research review. Vol. 2. J.D. Berrick, R. Barth, and N. Gilbert, eds. New York: Columbia University Press, 1997, pp. 101–29; and Thornton, J.L. Permanency planning for children in kinship foster homes. Child Welfare (1991) 70(5):593–601.

24. Children's Bureau, Social Security Administration, U.S. Department of Health, Education, and Welfare. Legislative guides to the termination of parental rights and responsibilities and the adoption of children. No. 394. Washington, DC: U.S. Government Printing Office, 1961, pp. 2–3.

25. Leashore, B.R. Demystifying legal guardianship: An unexplored option for dependent children. Journal of Family Law (1984–85) 23:391–400.

26. National Council of State Human Services Administrators. Resolution on kinship care. Washington, DC: American Public Welfare Association, 1997; American Bar Association. House of Delegates resolution on kinship care of abused, neglected, and abandoned children. Chicago: American Bar Association, 1999; and Child Welfare League of America. Kinship care: A natural bridge: A report of the Child Welfare League of America based on the recommendations of the CWLA North American Kinship Care Policy and Practice Committee. Washington, DC: CWLA, 1994, p. 83.

27. Administration for Children and Families, U.S. Department of Health and Human Services. Child welfare demonstrations pursuant to section 1130 of the Social Security Act, Title IV-E and Title IV-B of the act, Public Law 103-432. Federal Register (June 15, 1995) 60(115):31483; and Williams, C. Expanding the options in the quest for permanence. In Child welfare: An Africentric perspective. J.E. Everett, S.S. Stukes Chipungu, and B.R. Leashore, eds. New Brunswick, NJ: Rutgers University Press, 1991, pp. 266–89.

28. The federal foster care (Title IV-E) guardianship demonstrations adhere to the definition of legal guardianship contained in ASFA: "The term 'legal guardianship' means a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decision making. The term 'legal guardian' means the caretaker in such a relationship." Adoption and Safe Families Act, 42 U.S.C. 675 (7).

29. As compared with relative custody, for example. An award of legal custody confers on relatives the right of physical possession of the child and the duty to provide the child with food, shelter, education, and medical care. However, in most jurisdictions, an award of legal guardianship carries greater rights and responsibilities. During federal Fiscal Year 2000, there were 26,300 discharges to the custody of relatives. Although more than double the number discharged to legal guardianship, the number represents an increase of only 12% over Fiscal Year 1998, compared with a 77% increase in legal guardianship, from 5,836 to 10,341 cases, during this same period. See U.S. Department of Health and Human Services, Administration for Children and Families. Welcome to the Children's Bureau. Available online at Interim estimates of April 2000 and Fiscal Year 2000 as of August 2002.

30. See note 29, U.S. Department of Health and Human Services. Interim estimates of Fiscal Year 2000 as of August 2002.

31. Children discharged to legal guardianship are legally referred to as private wards.

32. See note 28.

33. See Bartholet, E. Nobody's children: Abuse and neglect, foster drift, and the adoption alternative. Boston: Beacon Press, 1999; Testa, M. The changing significance of race and kinship for achieving permanency for foster children. Paper presented at Race Matters: A Research Forum. Westat, Inc. and the Children and Family Research Center, UIUC. Washington, DC. January 8–9, 2001; and Wulczyn, F. Closing the gap: Are changing exit patterns reducing the time African American children spend in foster care relative to Caucasian children? Paper presented at the Research Roundtable on Children of Color in Child Welfare. Children's Bureau. Washington, DC. September 19–20, 2002.

34. Maza, P. Viewing adoption through the AFCARS lens. Presentation at the Seventh Annual Child Welfare Demonstration Projects Meeting. Washington, DC. February 2003.

35. Children and Family Research Center. Displacements from permanence. Urbana, IL: University of Illinois at Urbana-Champaign, March 2003.

36. Barth, R.P., Berry, M., Carson, M.L., et al. Contributors to disruption and dissolution of older-child adoptions. Child Welfare (1986) 65(4):359–71.

37. Goerge, R., Eboni, H., Yu, D., et al. Adoption disruption and displacement: The Illinois child welfare system, 1976–94. Chicago: Chapin Hall Center for Children, 1995.

38. See note 35, Children and Family Research Center.

39. Foster care placements, guardianships, and adoptions.

40. Williams, J.M. Kinship foster care in New York state—An African-American perspective. In Fostering kinship: An international perspective on kinship foster care. R. Greeff, ed. Aldershot, UK: Ashgate Publishing Limited, 1999, pp. 153–65.

41. In Texas, kin assuming physical custody of a foster child must turn to the state welfare program for financial support.

42. Terling-Watt, T. Permanency in kinship care: An exploration of disruption rates and factors associated with placement disruption. Children and Youth Services Review (2001) 23(2):11–126.

43. In Illinois, 3.1% of the guardianships awarded in 1997, 2.7% of the 1998 guardianships, and 3.5% of the 1999 guardianships were dissolved by March 2002. Of all the guardianships dissolved or disrupted because of death or incapacitation, 49% necessitated the reappointment of IDCFS as the public guardian of the child because no family member was available to become the child's private guardian.

44. English, D.J., Ober, A.J., and Brummel, S.C. Report on the Washington state guardianship study. Olympia, WA: Office of Children's Administration Research, Washington State Department of Social and Health Services, March 1999.

45. Congressional Budget Office. CBO baseline for foster care and adoption assistance. Washington, DC: Human Resources Cost Estimate Unit, March 1999.

46. Howard, J.A., and Smith, S.L. Adoption preservation in Illinois: Results of a four year study. Normal, IL: Illinois State University, 1995.

47. Watson, K. Providing services after adoption. Public Welfare (1992) 50:5–13.

48. Hemmens, G., Hardina, D., Madsen, R., and Wiewel, W. Changing needs and social services in three Chicago communities. Vol. 4, Hardship and support systems in Chicago. Washington, DC: Urban Institute, 1986.

49. See note 46, Howard and Smith.

50. Weissman, I. Guardianship: Every child's right. Annals of the American Academy of Political and Social Science (1964) 355:134–39; and note 24, Children's Bureau, Social Security Administration, U.S. Department of Health, Education, and Welfare.