Faced with overwhelming evidence of huge numbers of children needlessly placed in foster care — and what foster care was doing to these children, Congress passed a law in 1980 that included a clause requiring states and localities to make “reasonable efforts” to keep families together.  Judges were supposed to certify that “reasonable efforts” had been made — a process that simply involved checking a box on a form — before the case was eligible for federal foster care funds.

            There was nothing in that law that prevented agencies from moving swiftly to remove children from their homes — and keep them out — in the small minority of “horror story” cases.  The law required “reasonable efforts” — not ridiculous efforts.  And everybody knew it.

            But by 1997, the debate over “reasonable efforts” had taken an Orwellian turn.  Child savers began blaming it for their own failure to get children out of foster care. To make the case, they cited the increase in the foster care population since the early 1980s.  But they avoided going back further than that – because had they done so, they would have had to admit that in the late 1970s, before “reasonable efforts” became law, there were at least as many children languishing in foster care, relative to the total child population, as there were in 1997, (a crucial year for reasons discussed below) or there are today.

            The real problem is the opposite:  Rather than making reasonable efforts, agencies typically make little or no effort at all to keep families together.  Once children are in foster care, they are filed away and forgotten as overwhelmed workers rush on to the next case.

            According to the National Council of Juvenile and Family Court Judges, many judges “remain unaware of their obligation to determine if reasonable efforts to preserve families have been made.  Other judges routinely ‘rubber stamp’ assertions by social service agencies …”¹

            A report by a team of leading national child welfare experts found that in New York City’s family courts the question of whether reasonable efforts have been made was “very rarely addressed.”  The same report found that judges admitted they often routinely approved requests to take away children even when they didn’t really believe the child savers made an adequate case – because of fear of the media coverage if they sent a child home and something went wrong.

            The report concluded that “Such practice … comes frighteningly close to abdicating the Court’s basic responsibility to protect the rights of children and families.”²

            In part because of this report, New York now has a system of high-quality family defense, so things are not as bad there now – but getting the city family policing agency to follow the law and make reasonable efforts is always a fight.

            And in many places there is rarely anyone putting up a fight:

            ● In Alaska, the Anchorage Daily News reports, the head of the family policing agency herself admitted that the agency’s “often young, inexperienced employees may sometimes feel compelled to remove children from their homes when other options could suffice if there were more time to work with families.”³ In Missouri, the head of the family policing agency made a similar admission.[4]

            The “reasonable efforts” clause has a whole lot of loopholes but “you can tear apart a family if you don’t have time to do anything else” isn’t one of them.

● A survey of Michigan judges found that 20 percent of the judges said they always concluded that reasonable efforts had been made – in other words, their child welfare agencies were perfect.  Another 70 percent said they rarely concluded otherwise.

But even more significant: 40 percent of judges admitted that they lied and said the state child welfare agency made “reasonable efforts” in cases where the judges really didn’t believe it.  In half those cases, the judges admitted they lied because, if they didn’t, the state would not get federal aid for holding the child in foster care, and the county would have to pick up the extra costs. [5]

And if that’s the proportion who will admit it on a survey …

How much have things changed since that survey was taken? Here’s what Vivek Sankaran, director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School wrote in 2021:

Testifying in the case being heard, in which a family separation was on the table, the caseworker remarked, “No, I didn’t make reasonable efforts to reunify because the mother was homeless and was living in a room in a shelter.”[6]

            Three separate studies since 1996 have found that 30 percent of America’s foster children could be safely in their own homes right now, if their birth parents had safe, affordable housing.[7]   

            ● Even the Chicago Tribune, the newspaper that led the crusade that derailed family preservation for years in Illinois, eventually acknowledged that the “reasonable efforts” requirement was not enforced in that state.[8]

            It wasn’t enforced anywhere else either. The federal government never seriously enforced the reasonable efforts requirement and the U.S. Supreme Court ruled that individuals couldn’t even sue to have it enforced.[9]

            Children do not languish in foster care because of reasonable efforts.  Children languish in foster care because of the lack of reasonable efforts. 

             None of this is surprising.  All of the incentives — for everyone from the frontline worker to the agency administrator — push against making reasonable efforts.

            Financial incentives: The National Commission on Children found that children often are removed from their families “prematurely or unnecessarily” because federal aid formulas give states “a strong financial incentive” to do so rather than provide services to keep families together.[10] Those incentives have not changed (See Issue Paper 12).     

            Political incentives: No worker or administrator will ever be penalized for wrongly placing hundreds of children needlessly in foster care — even if the child is abused there.  But if a child is left at home and something goes wrong, workers may be fired, judges transferred, and all face the wrath of the media.

            Indeed, while it is common for people working in the system to claim that workers are “damned if they do and damned if they don’t” in fact, when it comes to taking away children, they’re only damned if they don’t.

            Personal incentives:  When a worker sees a child living in poverty, the first instinct is often to “rescue” the child on the assumption that the child is bound to be “better off” in care with a more affluent family.  The physical conditions in an impoverished home are a reality before the worker’s eyes.  The enormous love between that child and her or his parents is invisible.  Similarly, the very real dangers of foster care, physical and emotional, are an abstraction.

            But despite all these incentives and despite the mountain of evidence that the “reasonable efforts” clause is widely ignored, whenever a child “known to the system” dies, someone is sure to blame “the law” — by which they mean the “reasonable efforts” clause. 

            Why? 

            Because when a child dies, it’s usually because workers are overwhelmed with too many cases; or they have little or no training, or paperwork got lost, or any number of similar problems, all of which reflect badly on the agencies themselves.

            Thus, when asked, “Why did this child die?”  They can say either: “This child died because ‘the law’ made us do it” or “This child died because we screwed up.”  What are most agency administrators likely to say?

            Sadly, the scapegoating of family preservation was so successful that by the end of 1997, Congress largely repealed the “reasonable efforts” requirement when it passed the so-called Adoption and Safe Families Act.  Backers of ASFA say it only ends reasonable efforts in the most egregious cases.  In fact, the law is filled with “catch-all” clauses that make it possible to avoid the requirement in almost every case.

            Fortunately, as the racial justice reckoning spreads across America calls have grown to repeal ASFA.

            But until that happens, it’s up to state and local government.  ASFA makes it easy to avoid making reasonable efforts, but it does not prohibit them.  It is up to states and localities to decide what to do.

Updated October 8, 2022         

                                   

1. National Council of Juvenile and Family Court Judges et. al., Making Reasonable Efforts: Steps for Keeping Families Together. (New York: Edna McConnell Clark Foundation, 1987), p.8.  //2.. Special Child Welfare Advisory Panel, Advisory Report on Front Line and Supervisory Practice, March 9, 2000, pp. 47,48.  //.3 Nathaniel Herz, “Lawmaker says Alaska child welfare agency practices ‘legal kidnapping,’ but top official disputes charge, Anchorage Daily News, Sept. 9, 2016. //4. Richard Wexler, “Fixing Missouri child welfare: Darrell Missey has it backwards,” Missouri Independent, September 26, 2022.  //5. Muskie School Of Public Service Cutler Institute For Child And Family Policy, University of Maine, and American Bar Association Center for Children and the Law, Michigan Court Improvement Program Reassessment, August, 2005. //6. Vivek Sankaran, “The Power of Asking Why,” The Imprint, Nov. 1, 2021.  //7. Deborah S, Harburger with Ruth Anne White, “Reunifying Families, Cutting Costs: Housing – Child Welfare Partnerships for Permanent Supportive Housing Child Welfare, Vol. LXXXIII, #5 Sept./Oct. 2004, p.501. //8. Andrew Gottesman, “System Overload: Juvenile Court Can Rarely Spare the Time to Care,” Chicago Tribune, Dec. 22, 1993, p.1    //9. Suter v. Artist M., 112S.Ct. 1360, 1992.   //10. National Commission on Children, Beyond Rhetoric: A New American Agenda for Children and Families, (Washington DC: May, 1991) p.290.