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TESTIMONY OF RONALD K. HENRY, ATTORNEY-AT-LAW
BEFORE THE SUBCOMMITTEE ON HUMAN RESOURCES
COMMITTEE ON WAYS AND MEANS
UNITED STATES HOUSE OF REPRESENTATIVES

APRIL 8, 1997

I. Introduction

Vernon Rocchi was not told about the birth of his daughter by his former partner.

In 1993, the child was taken from the mother and placed in foster care. The Department of Social Services did not attempt to contact Mr. Rocchi, who would have taken custody and avoided the need for foster care entirely.

In 1996, the Department of Social Services sought to arrange an adoption of the child by the foster parents. It appears that the Department of Social Services initially made false claims that it had attempted to contact Mr. Rocchi and that he had defaulted in making an appearance to contest a termination of his parental rights. The court did not accept these claims. Mr. Rocchi was easily found and appeared in court to contest the termination of his parental rights even though he had never seen or even been allowed to know the existence of his daughter.

I have attached excerpts of the opinion by the court in which Mr. Rocchi appeared. The court found that Mr. Rocchi and his wife were fit and suitable for custody of the child. The court then found that the Department of Social Services had created a terrible dilemma. Although the court found that Mr. Rocchi was fit and suitable to have custody, the Department of Social Services had caused the child to spend all of her conscious life in foster care.

The judge put some band-aids on the situation by giving temporary custody to the foster parents and beginning a visitation schedule to introduce the daughter to her father. No sanctions were imposed on the Department of Social Services which remains free to treat other children in the same way and to do it with Federal money.

The foster care system in the United States is broken. The financial incentives are wrong. The consequences for children are wrong.

II. What Can Be Done

Increasing the number of adoptions is one vehicle for reducing foster care caseloads by moving children through the foster care system and then out the back door. The purpose of my testimony is to demonstrate to you that the foster care caseload can also be reduced by paying attention to those children who do not need to go through the front door of entry into the foster care system at all.

The goals of the Federal government are to:

1. Increase the number of children who are in safe, permanent placements; and
2. Reduce long-term dependency on the foster care system.

Adoption is one means of achieving these goals. A simple change of custody is another means of achieving these goals which has been too often overlooked because of the skewed economic incentives present in the current foster care system. Example:

Mother has custody and father pays child support. State places child in foster care because of mother’s neglect. Father is fit and seeks custody but is resisted by state foster care bureaucracy.

Where a child has been placed or is to be placed in foster care, a transfer of custody to another fit and willing relative achieves the same governmental objectives as adoption and has additional social benefits:

1. Where a fit and willing relative can be found, it is not necessary to sever all of the child’s links to the biological heritage.

2. Many groups are concerned about reports of abuse of governmental power in removing children from their families; a change of custody to a fit and willing relative is less intrusive than a termination of parental rights;

3. A change of custody is consistent with both (1) public support for "family preservation" and (2) public opposition to excessive efforts to prop up dysfunctional single parents.

As a practical matter, a change of custody may also be more efficient than adoption in rescuing children from foster care because the standard of proof for change of custody (best interests of the child) is less difficult than for termination of parental rights (unfitness).

III. Description of Proposed Amendments

Section 2 (14 U.S.C. Section 671 (a)(15)(A)(i)(I)) is amended to make it clear that reasonable efforts to avoid foster care placement through family preservation can include reasonable efforts to transfer custody to another fit and willing relative, not just efforts to reduce the dysfunction of the current custodial home. Under current practice, the caseworker’s "mission" is seen as limited to maintaining or returning the child to the abusive parent’s home. The proposed change is in keeping with the public understanding that family preservation is desirable but has been too narrowly focused on subsidies to the one person who may be the most dysfunctional individual in the child’s entire family.

Section 2 (14 U.S.C. Section 671 (a)(15)(A)(ii)(II)) is amended to provide that transfer of custody to another fit and willing relative is available along with adoption and legal guardianship when efforts will not be undertaken to maintain the child in the prior custodial home.

Section 4 (42 U.S.C. Section 675 (5)(E)) is amended to assure that "both parents" or "the parents" are given an opportunity to participate. Current practice among caseworkers is to consider only the parent from whose home the child was taken and to provide neither notice nor opportunity to be heard for the noncustodial parent. In most cases, the caseworker does not even make inquiry to determine the identity of the noncustodial parent.

Section 5 (42 U.S.C. Section 675 (5)(F)) is amended to eliminate the "ten years of age" provision. Children above the age of ten are often more difficult to place in adoption but still have the same need for stability and permanency in their placements.

Section 6. One of the issues that the task force needs to consider is the extent to which foster care is used as an income device. Since foster care payments are higher than welfare payments and since welfare payments are now time-limited, the incentives have grown for strategic behavior on the part of both recipients and caseworkers to place children in kinship foster care.

Section 7 (42 U.S.C. Section 653 (a)) is amended to provide availability of the Parent Locator Service for establishing and modifying orders. The reason for the change is simple -- the need to identify and engage both parents is important at the commencement of the foster care placement. Failure to provide for the participation of both parents at the commencement of a foster care placement would lead to the anomalous situation of a noncustodial parent being called to participate in a termination of parental rights proceeding after 18 months of foster care which might have been avoided if the parent had been contacted at the outset.

Section 10 is amended to make technical assistance available for reducing foster care dependency by making clear that "alternative permanent placements" include both adoptions and changes in custody.

Section 11 (42 U.S.C. Section 670-679) is amended to provide that the bonus is paid for permanent placements reducing foster care dependency through either adoption or changes in custody.

IV. Conclusion

Some advocates will tell you that the child's relatives are an obstacle to removing children from foster care by adoption. I want you to understand that proper identification and evaluation of the child's relatives can also reduce foster care caseloads and, in some cases, can do it better by eliminating the need for children ever to enter the foster care system.

The foster care system demands payment for its services with Federal tax dollars. It is both fiscally prudent and morally essential to thoughtfully determine whether foster care placement needs to be commenced. If a child's other relatives are fit and willing to provide for the child where a custodial parent has failed, there is no rationale for either the expense or the disruption to the child inherent in foster care placement.

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