Copyright © 2004 American Bar Association. All Rights Reserved.

by Ernestine S. Gray

Someone has defined insanity as doing the same thing over and over but expecting a different result. By that definition, what we have been doing in child welfare for the past two decades is insane. All the efforts to improve the system have not resulted in better outcomes.¹ The number of children entering foster care has continued to increase. Moreover, children are still languishing in the system, not being reunified or adopted, cycling in and out of care, and even, on occasion, dying.

In a 1997 article, John Gibeaut, a reporter for the ABA Journal, wrote, "The way Americans go about caring for abused and neglected kids is a mess. The only way to fix a system that fails everyone may be for juvenile court judges and lawyers to take charge."² I am not sure how many people would agree that turning the system over to the judges and lawyers would be the best mechanism for improving outcomes for families and children. For many, judges and lawyers are seen as part of the problem with the current system. But I do agree with Gibeaut that the solution must entail a radically new approach.

To begin, we must take a crucial look at the system when no reporters or television cameras are inquiring about the death of a child. Unfortunately, in my opinion, many of the changes in the laws in this area have been efforts to "correct" the latest horrific case. We need to be proactive rather than reactive. We need time to think and plan, free from the pressure to rush to judgment and find fault or blame for the latest tragedy. We must not allow those who know very little about the system to attempt to fix it, yet again, through some new version of legislation. We do not need another piece of legislation. We just need to enforce the laws that are already on the books, adequately fund the child welfare and court systems, and make decisions that support the belief that "the children of our state are its most precious resource."³ Based on my 18 years on the bench, I offer the following suggestions for improving the child welfare system:

We must take steps to keep children from coming into the system. Both for the children and for society, it is far better to prevent the harm from happening than to have to repair the damage. When I was a relatively new and naive judge, I said that it was criminal, in a country as rich as America, that families were being separated because of poverty, and after 18 years on the bench I still believe this to be true. Many of our problems would be solved if we ensured that all citizens had adequate income, housing, and health insurance, and we were willing to provide financial support for families at the level we provide for incarceration.

Next, we must recognize that there are not enough professionals in the system to do this work. We need better-trained and better-paid judges, lawyers, and social workers to reduce turnover and keep experienced workers. Judges should not be rotated. Professionals, especially lawyers and social workers, need to be mature, with significant life experience.

With appropriate caseloads, caseworkers have sufficient time to complete thorough investigation, develop better case plans, and connect children and families to needed services that are family centered and child focused. This would lead to improvements in the quality and timeliness of the information that other professionals—such as lawyers and judges—rely on to make decisions in children’s best interests.

One of the bright lines in the Adoption and Safe families Act of 1997 (ASFA) is concurrent planning, which allows caseworkers to pursue both reunification and adoption at the same time. Some find working on two goals at the same time to be difficult, but concurrent planning should help to ensure permanency for children much faster. If a child is placed initially in a dually certified home (that is, the foster parent is committed to adoption), less time is needed to reach permanency. In such situations, time spent working to reunite the child with his or her birth family can also count toward the legal time requirements for placement of a child in a prospective home before an adoption can be filed.

To further advance the goal of achieving permanency as early as possible, services must be provided immediately. To accomplish this, a thorough assessment must be done of all members of the family. This assessment will identify the needed services. Additionally, because of the time frames established by ASFA, we absolutely cannot wait three months to start providing services! Three months is one-fourth of the time allotted to work toward reunification of the family.

Collaboration among system professionals—domestic violence advocates, judges, attorneys, and court-appointed special advocates (CASAs)—is absolutely critical. The child welfare system cannot adequately meet all the needs of children and families without collaborating with other agencies and service providers. Many families who come to an agency’s attention have multiple problems, which must be addressed appropriately to meet the goal of providing permanency for children. Housing, mental illness, and substance abuse are at the top of the list. To provide timely and appropriate services, child welfare agencies need to collaborate with agencies that have primary responsibility for addressing these issues. Agencies should also work with job programs to provide employment opportunities for parents.

The children and families that enter the child welfare system come from communities. Establishing the best chance for success requires engaging the community. The community needs to become more actively involved in identifying potential foster parents, adoptive parents, CASA workers, and mentors. Preventing child abuse and neglect is a community concern and communities must be meaningfully engaged in this work. Churches, schools, businesses, recreation departments, and other service providers all must play a role in helping to keep children safe.

None of these principles or ideas is new. As a society, we talk about them. We say that they drive our work. However, the decisions we make regarding funding do not support what we say. We do not behave as if children are our greatest natural resource, and as a result, many children will be left behind. We will improve the child welfare system to better support families and promote the healthy development of children in foster care only when we begin to practice what we preach.

Ernestine S. Gray, JD, is a judge on the Orleans Parish Juvenile Court in New Orleans.

This commentary was excerpted with permission from the winter 2004 issue of The Future of Children, a special issue focusing on children, families and foster care published by The David and Lucile Packard Foundation.

1. Included in these efforts are the Adoption, Assistance and Child Welfare Act of 1980 (Public Law 96-272) and the Adoption and Safe Families Act of 1997 (Public Law 105-89).

2. Gibeaut, J. "Nobody’s Child." ABA Journal 84, December 1997, 44-51.

3. Miller v. State of Louisiana, 838 So. 2d. 761, 765 (2003), citing Vonner v. State, 273 So. 2d 252, 256 (La. 1973).