Richard Gelles, one of the nation’s leading child welfare experts, died late in June of brain cancer, as reported by the Chronicle of Social Change. Gelles’ death deprives the nation of one of its leading child welfare scholars, and one of the few remaining spokespersons for a child centered approach to child welfare.
Richard Gelles played an important role in the passage of the Adoption and Safe Families Act (ASFA) of 1996 through the publication of The Book of David: How Preserving Families Can Cost Children’s Lives. This book told the story of a 15-month old boy who was murdered by his abusive mother. David’s parents had an open child welfare case when he was born, due to their severe abuse of his sister Marie when she was six weeks old that left her with lifelong disabilities. While Marie was still in foster care, the parents were reported to the child abuse hotline twice for abusing David. In closing their investigation without removing David or opening a case, agency workers ignored two huge red flags–the grievous injury to six-week-old Marie and the failure by her parents to comply with the agency’s reunification plan, resulting in the termination of their parental rights to their daughter. Three and a half months after the case was closed, David was dead.
According to Gelles, David’s death could be traced to the doctrine requiring that agencies make “reasonable efforts” to keep or reunite abused and neglected children with their parents. Without any definition or timeframe, efforts to keep children like David with their birth parents often cross the line separating reasonable from unreasonable. Gelles argued that David’s death could also be traced to “the larger ideology behind ‘reasonable efforts,’ ‘the sacrosanct belief that children always (or nearly always) are better off with their biological parents.”
In his testimony at a 1995 Congressional hearing, Gelles argued that the current obsession with family preservation should be replaced for a “child centered child welfare system” where abused and neglected children would longer remain for years in abusive homes, nor would they languish for years in foster care. Instead, the goal of a child-centered child welfare system would be “to terminate parental rights, when appropriate, quickly enough so that (1) children are not permanently harmed, physically or psychologically, and {2) make children available for adoption earlier enough in their lives so that they are ‘adoptable.'”
Gelles’ perspective was incorporated into several changes made by ASFA, as described by former Hill staffer Cassie Statuto Bevan in an Urban Institute compilation on ASFA ten years after its passage. The requirement for “reasonable efforts” was moderated by requiring that such efforts must maintain the child’s health and safety as the “paramount concern.” Moreover, a deadline was placed on reunification efforts, requiring a state to file for termination of parental rights after a child had been in foster care for 15 of the previous 22 months. ASFA also allowed states to bypass reasonable efforts altogether in extraordinary cases, such as when parents have committed a felony assault resulting in serious injury to the child or another child–clearly an exception that could have been applied in David’s case.
While it appears that ASFA has resulted in shorter stays in foster care as Gelles hoped, the impact of the provisions designed to protect children from dangerous parents appears to have been less than their authors hoped. Agencies make frequent use allowable exceptions to the 15-month time limit for termination of parental rights and rarely use the provisions that allow them to forego reunification plans. In order to make the system more child-centered, these provisions should be strengthened. Unfortunately, we seem to be going in the opposite direction.
There is a groundswell of attacks against ASFA, with critics claiming that 15 months is not enough time for with problems like drug addiction to address them, especially if services are not immediately available. Some critics even denounce the law as racist because they say it penalizes black parents, ignoring the needs of black children for safety and permanency. Contrary to the child-centered perspective Gelles promoted, these advocates prioritize parents’ rights over children’s needs to be placed in a loving home quickly enough to avoid permanent damage and early enough in their lives to be likely to be adopted.
In The Book of David and in his testimony, Gelles also criticized the investment of a billion dollars in unproven “intensive family preservation programs” to keep families together. These new programs, such as the well-publicized Homebuilders, were intensive, short term, crisis intervention services designed to address parental behaviors that are putting their children at risk. Gelles pointed out that there was no research evidence to support the success of intensive family preservation programs at preventing foster care placements, let alone keeping children safe–which was not even evaluated. And from a theoretical perspective, Gelles pointed out that intensive family preservation programs would be effective for only those families with a low level of risk and a high level of readiness to change. To assume that these services could work for all maltreating families was unrealistic.
Sadly, the same programs that were supported without evidence in the 1980’s are being supported again with more baseless claims of research support. As reported in a recent post, Homebuilders is once again being promoted as effective in keeping families together, although the research is no more convincing than that of the 1980s. Recently Homebuilders was approved as a best practice that can be funded by the Family First Act, based on only two studies. One of the studies focused on a program that did not follow the Homebuilders model and worked only to reunify families already separated by foster care—not prevent foster care placement which is the main purpose of Family first. The second was a study of Homebuilders family preservation programs and according to its authors failed to demonstrate any favorable program impacts.
Why invest in a program that has failed to document success over several decades of research? The renewed push for family preservation has once again taken over the child welfare world. With the passage of the Family First Act, allowing billions in funding for programs that keep families together, there is a desperate need for programs to spend that money on. The federal clearinghouse established to approve programs for this purpose has demonstrated that its standards for calling a program “well-supported by the evidence” are low indeed. And that is not surprising, since there are few such programs that have been shown to be effective in helping abusive and neglectful parents change longstanding and often intergenerational patterns. And so the story starts again.
As we face increased backlash against ASFA and increased incentives to spend billions of dollars on unproven family preservation programs, Richard Gelles’ keen analysis and advocacy for children will be greatly missed.
Child Welfare Monitor 
I realize and value this article was meant to recognize the individual contributions and convictions of Mr. Gelles and do not wish to detract from his work and achievements for children and families. I agree provisions such as Aggravated Circumstances/ No Reasonable Efforts Required, Mandate to File and/ or Extreme Conduct are sometimes overlooked in cases involving particularly severe circumstances of abuse, and am thankful they are available options when needed. I also agree with the article referenced in this post by Mr. Guggenheim – that the exceptions to the ASFA timeline aren’t used as often as they might be. More than a response to Mr. Gelles then, this is a response to the ASFA and the system of care it operates within and has to some extent created, and how they are being represented and appear to be defended in this article.
While I generally agree with the aspirations of ASFA – timely permanency for children – I am not sure I agree with the notion it is as supportive, reflective or centering of children’s rights as it needs to be. Just as their parents do, children have limited rights to their families – parents included – and I’m not sure the ASFA, in the manner it has been implemented, with reasonable efforts and diligent efforts to identify, locate and place with family being required, offers a sufficient safeguard to assure child and family stability, much less real and holistic child safety.
Until the child welfare system gains a firm handle on the disproportionate impact it often has on marginalized groups – particularly BIPOC and LGBTQ+ communities – I am not sure it can ever be correctly or fairly stated we, as a child welfare institution, are keeping or making large swaths of children truly safe. How can a child, whose life trajectory may forever be impacted by discriminatory decision-making and planning structures ever be considered safe as they travel through the system? If a broad definition of violence against marginalized groups is considered, the child welfare system may be headed toward a reckoning similar in kind to what our not-so-distant Executive Branch relatives in the law enforcement community are facing, and as a current, well-intended participant in that system, I would be hard-pressed to say we are not due for such a course correction. Unfortunately (or fortunately(?)), we have an increasing awareness intention doesn’t equate to impact, and a child’s experience of a well-intended, but nonetheless often racist and discriminatory system cannot possibly be considered truly safe, nor many of their placements through that system permanent (particularly when recognizing the difference between legal and emotional permanency) or wholly consistent with their well-being.
Add to our own limitations as a child welfare system the similarly discriminatory – intentionally or otherwise – judicial and legislative systems, and the fairness of our entire system of care quickly falls into question. Mass convictions (mostly by pleading) and incarceration rates of marginalized groups result in fewer placement resources to match our increasingly diverse population, reduce the availability of family members for placement and undoubtedly foster distrust in otherwise ‘suitable’ or ‘approvable’ placement resources, particularly within marginalized communities. The bases of our diligent searches are often undermined by the realities already disproportionately impacting the families we’re meant to serve. Although the intention may be achieving timely safety and permanency for children, the impact may be a continuation of the pre- ICWA separation of children from their communities, although perhaps on a smaller scale and with greater subtlety.
Additionally, in many locations there are far too few culturally responsive services available to assist families in personally, culturally specific ways to make progress, yet we continue to penalize them for lack of what we consider “timely progress” – failure to meet the 15/22 month timeline. Even when we know certain groups of people experience this disadvantage (or conversely, white families often benefit from the privilege of working with service providers who share a similar experience of the world), we continue to apply the same timeline and standards of measurement. With that perspective in mind, well intended child welfare professionals and service providers like myself – whether intentionally or subconsciously – applying our own values, beliefs and expectations to groups of people who may experience a radically different world than we do and who must prepare their children to live in that world seems fundamentally unjust. With this awareness in mind, it’s difficult to say providing the same service referrals to all families and expecting the same or similar outcomes, within the same amount of time can fairly be considered “reasonable” or our continuing to do so to be making “reasonable efforts.”
In order to keep children truly safe, our system of care must be safe for them and their families – including the provision of consistent treatment and outcomes across demographics. Until that happens, the implementation of ASFA – however well-intended it may be – will most assuredly run afoul of its underlying principles. Supporting the continuation of the status quo in order to achieve “the greater good” until something better comes along or drastic improvements can be made is a rationale long-allowed to maintain discriminatory systems. This is an emergency and should be treated as one.
Lest I surface concerns without options for systems improvement and before I do, allow me to say I am not a Constitutional Law expert, one possible improvement (within the limitations of the child welfare system, anyway) would be to automatically apply criteria similar in kind to the ICWA for any groups identified as receiving disproportionate treatment or disparate outcomes by a state’s child welfare system. For example, if African Americans are identified as being disproportionately represented within a given state’s child welfare system (as is the case within many states, including my own), efforts and family-finding provisions similar to ICWA would apply. While it is possible to say this may run afoul of Equal Protection, one could reasonably argue everyone would have the potential to benefit equally from such a provision once the necessary criteria of disproportionate treatment had been identified; alternatively, it would be difficult to prove the ASFA is being applied equally across demographics, given the broad scale of disproportionality we’re creating through our compliance with its requirements. Certainly, in order to differentiate between the ICWA – which is based upon the unique political relationship between the US and the indigenous groups it has attempted to assimilate – some finesse would be required. One has to believe such a law, based upon the levels of disproportionality certain groups of people are experiencing and the scale of disparate outcomes occurring, may well pass the strict scrutiny of the court given the liberty interest of family autonomy is at stake. Equal Protection would likely be the standard, but equitable protection in this case would also seem what is needed to achieve equal protection insofar as outcomes are concerned.
In terms of the availability and provision of services, to achieve fair application of the ASFA through administration of the reasonable efforts standard, those services and providers available would need to be representative of the demographics of the community they intend to serve. This could be made a more broad condition of an agency’s “reasonable efforts” and be attached to funding – whether by way of a federal funding carrot, stick or more likely both.
We have a long road ahead of us to assure children (and families) experience qualitatively similar outcomes – that all children are safe, experience legal and emotional permanency, and their life-long well-being needs are being met. When we consider and center “children’s rights,” we must include in that consideration the right of children to be free from discrimination, racism and the resultant disparities created by our child welfare system.
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Thank you for your very thoughtful and detailed response to my blog. I have a somewhat different view about disproportionate impact: because it reflects disproportionate underlying rates of abuse and neglect, attempts to eliminate disproportion impact might actually be harmful to children of color, as I have written before. See https://childwelfaremonitor.org/2019/01/07/race-tribe-and-child-welfare-how-identity-policy-trumps-childrens-needs. My position on ICWA is made clear there; the last thing I’d want is another ICWA for African-Americans. Sorry I do not have more time to respond to your truly impressive post. I appreciate you for taking the time to compose it.
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Thank you for your kind reply, I appreciate the gesture – including the inclusion of a link to an additional post explaining your concerns regarding the ICWA and the possibility of any similar laws coming into effect.
As might easily be imagined by the content of my initial response to your blog, I am in strong favor of the ICWA, but not for lack of awareness of the real or perceived failings you mentioned. The difference may be I believe some, if not all, of the shortcomings identified in your post may well be a result of faulty implementation by local child welfare organizations – I will explain. Before I do, we must first be clear the ICWA does not place requirements on Indian tribes; it prescribes state or federal government action or inaction in their various dealings with tribal members (or those eligible for membership) and the federally recognized tribes themselves, who are considered sovereign nations, and to whom the federal government has pledged a “trust responsibility.” This trust responsibility includes the need for the government to assist with safeguarding tribal resources, per the Constitution, and per the ICWA, tribal children are included among tribes’ most sacred resources.
The ICWA allows states limited authority to remove children under emergent circumstances, which are defined in the law (the guidelines published 12/2016 provide additional definition, as I recall), requiring the child return only upon amelioration of those emergent circumstances. Emergency removals allow for an expedited intervention, but require near-immediate review by the court – a particularly sensible safeguard, given past-practice. When properly implemented by state child welfare agencies, this generally works to assure child safety – the agency need only be able to prove the existence of these emergent circumstances and the direct impact they are having on the child(ren) in order to intervene, and may continue the intervention so long as the danger persists. If there are concerns additional dangers underlie the emergent circumstances, the agency may pursue recourse through the non-emergent filing process, and may do so immediately.
As stated in your blog, the ICWA most certainly does provide a higher threshold for the non-emergent removal of Indian children than most state statutes provide for children generally, and this is the case for the reasons you outlined at the outset of the post regarding the horrific treatment of indigenous people at the hands of our then recently formed government, and the specific targeting of children by the government and its agencies.
Where I believe most analyses run afoul of the ICWA is how the perception of this higher threshold impacts the safety of children. The law itself states, “…no foster care placement may be ordered… absen[t] of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” In other words, the state child welfare agency must prove by a middling legal standard that its intervention in the private lives of citizens (in the case of tribal citizens, individuals subject to and protected by multiple governments – both of whom have a say in the treatment of their citizens, perhaps particularly their child-citizens) is necessary to prevent “serious emotional or physical damage to the child.”
Parental rights are some of the most sacred, literally fundamental now existent in our country and are thankfully not absolute – they must be balanced against children’s right to remain free from abuse, including neglect. With that said, demanding the government – particularly a government and system of care who have been responsible for actively, intentionally and invidiously targeting the children of citizens of another sovereign political entity – from removing children generations later, under similar auspices, without having to first prove that intervention is specifically to prevent “serious emotional or physical damage to the child” seems an almost ridiculous proposition. Arguably, child welfare agencies should be able to demonstrate serious harm is likely to result to any child prior to its intervention, even absent that history, given the rights involved and the trauma we know children may experience before, during and after removal, as well as the difficulties agencies often experience in effecting the return of those children in a timely manner even when it has been determined safe to do so.
Returning to the proposition many of the difficulties and dangers identified with implementation of the ICWA are often (by no means always) the result of shortcomings on the part of the agency, the directive is clear and seems reasonable (for reasons outlined in the preceding paragraph): the agency or its attorney must understand how the identified safety threats are operating within the child’s home to a sufficient degree they can prove to a judicial officer that it is highly probable (a rough estimation of the clear and convincing standard) that serious emotional or physical damage will befall the child were they to remain home. Allow me to emphasize that last point: “for the child to remain home” – not for the agency to continue its intervention.
Removal occurs when the child is displaced from both of their parents, using the ICWA’s “foster placement” definition, which constructively defines the term “removal” as it has been used in these posts: “shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.” To my awareness none of this prevents a state agency from filing a legal case, constructing an in-home safety plan (in-home referring to the child remaining with at least one of their parents, even if outside of the physical home) and assuring child safety while they remain with at least one their parents. I suppose I fail to see how doing the utmost possible to prevent a child’s experience of forced removal could possibly be interpreted as failing to be non-child-centered under these circumstances and with these allowances.
Certainly the agency cannot be expected to protect children from the unknown, but the same unknown that impacts Indian children is as likely to impact non-Indian children under these circumstances, assuming the agency has thoroughly assessed the family’s condition and circumstances. Similar in kind to the possibility unknown safety threats exist at the outset of a given case, some safety threats exist in adoptive placements, even with the careful application of certification standards, and these same unknowns are as likely to impact Indian children as non-Indian children. In fact I believe it is likely, certainly (but most unfortunately) given the disparity in adoption numbers, that I would be able to identify 10 or more instances of abuse occurring post-adoption in a non-ICWA case for every one which occurs in an ICWA case. The exception – unsafe adoptions – thankfully, at least to my awareness, outweighs the rule – safe adoptions – in both cases.
I’ll end where I began – the ICWA requires state action (and in many ways in my thinking, similar, more child and family-centered action than the ASFA requires). Injuries, even fatalities in this work are virtually guaranteed – one need look no further than Eileen Munro’s work on the application of critical thinking to child welfare practice to find numerous instances of misfortune befalling children who came to the attention of child welfare agencies (or did not, but should have) due to failures, often identified in hindsight, in an agency’s work. These lapses (or, if you prefer, failures) are more likely to be in the agency’s work, not in the acts and laws that direct their work – if it were otherwise, it is likely more children would be unsafe than safe.
We can leave the importance of ICWA inquiries and tribal engagement (i.e. agencies thoroughly interviewing families for tribal status and providing timely and sufficient notification to tribes on first contact, and remaining in true partnership and collaboration throughout a child’s case) in preventing foster care and adoption disruption for another time… but **spoiler alert** my half of that conversation will begin and end just as this one did – with the cause of relative success or failure landing squarely on the shoulders of the involved state child welfare agency, not at the feet of the child, the family, the tribe or the ICWA. A discussion as to whether an ICWA-like law should apply to indigenous Hawaiians, African Americans and others will also have to wait.
Thank you for your time and attention – I appreciate the dialogue very much!
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