In New Jersey, children’s needs disregarded as blood ties take precedence over attachment and timely permanency

In my last commentary, I wrote about the tragic case of Harmony Montgomery, who disappeared after being placed with her father after four-and-a-half years in and out of foster care. Massachusetts is not unusual in keeping young children in limbo for excessive periods of time in the interests of reunifying or placing them with family members. While writing about Harmony, I heard from a foster parent in New Jersey about several children who are being sent home to their parents or placed with relatives after more than three years in foster care starting in infancy or early toddlerhood. There is strong evidence that these disruptions are harmful to young children given the attachments they form to their early caregivers. For this reason, a federal law is designed to curb this practice. Talking to foster parents and advocates revealed a conjunction of policy changes, agency culture and circumstances in New Jersey that are resulting in very young children being removed from stable pre-adoptive homes after as much as three years in these homes, starting in infancy or toddlerhood. But a group of advocates is determined to protect these vulnerable children by showing legislators the reality behind the state’s pious pronouncements about the importance of biological family.

I first wrote about New Jersey in February 2021, when the Department of Children and Families (DCF) was turning away would-be foster parents, an unusual situation among states, particularly during the Covid-19 pandemic. My investigation revealed a dramatic decline in substantiated investigations and foster care entries between 2013 and 2020, which could have been due to policy or practice changes making it harder to confirm child maltreatment or to an increased tendency to place children informally with relatives before concluding a maltreatment investigation. Since that time, the number of children entering foster care has leveled off, changing little between 2020 and 2021, and the agency has begun accepting foster parents again. However, the agency’s emphasis on biological ties at the expense of emotional bonds has been raising concerns among child advocates.

Research has shown that “adverse childhood experiences, known as ACES, that disrupt attachment relationships between children and their caregivers are a “significant predictor of risk for child emotional or behavioral problems.” This is why the federal Adoption and Safe Families Act (AFSA) included a provision requiring states to file for termination of parental rights (TPR) after a child has spent 15 out of the past 22 month in foster care, unless the child is living with a relative, services to address the conditions leading to placement have not been provided, or if the state can document a “compelling reason” why TPR is not in the child’s best interests.

But New Jersey’s Division of Child Protection and Permanency (DCP&P), part of its Department of Children and Families (DCF), has been moving away from considering the importance of attachment and timely permanency for young children. In large part, this change has been a response to the current dominance of an ideology emphasizing the importance of biological family bonds, the trauma caused by family separation, and the belief that if a child must be removed from home then the best placement is with an extended family member or family friend. These beliefs were all reflected in the Family First Act, which was passed in 2018 as part of the Bipartisan Budget Act of 2018. And now there are calls to repeal the AFSA timelines that encourage timely permanency to protect children from the trauma of being separated from longtime caregivers to whom they have become attached. Also contributing to the focus on blood ties was the growing attention to racial disparities in many areas, including child welfare. This focus was intensified by the murder of George Floyd by Minneapolis police, which led to comparisons between police and child welfare and calls to abolish the “family policing system.” One organization making this call is upEnd, a collaboration between the University of Houston and the Center for the Study of Social Policy, which just happens to be the court monitor for New Jersey’s long-standing class action suit, Charlie and Nadine H. v. Murphy.

In 2018, Christine Beyer became the DCF Commissioner. She came to New Jersey directly from Casey Family Programs, which describes itself as “the nation’s largest operating foundation focused on safely reducing the need for foster care in the United States.” I’ve written before about Casey’s outsized influence on child welfare policy, which the foundation uses to promulgate its mission to “to provide and improve — and ultimately prevent the need for — foster care.” With assets of $2.4 billion and spending of $111 million in 2019, Casey works to implement its mission by providing free consulting to states and localities, convening meetings, producing research and testimony, and helping place alumni like Beyer in government offices around the country.

In 2019, under Beyer’s leadership, DCF released a new strategic plan, which contained four “transformational goals,” one of which is “preserving kinship connections.” The plan dictates that family separation should be used as rarely as possible, but that when it is necessary to remove children from families to ensure their safety, DCF will ensure that children can remain with extended family or family friends. In aid of this goal, DCF set a target of placing 60 percent of children entering care with kin in the first seven days and 80 percent by the first 30 days.

The New Jersey State Legislature has endorsed the enhanced focus on kinshipn by passing legislation which was signed by Governor Phil Murphy on July 2, 2021. The new law adds a set of “findings” which states that “kinship care is the preferred resource for children who must be removed from their birth families because use of kinship care maintains children’s connections with their families.” But the findings go beyond simply establishing a preference for kinship care. They go on to negate the importance of a child’s attachment to a foster parent in decisions about kinship placement, with the following language:

f. The existence of a healthy attachment between a child and the child’s resource family parent does not in and of itself preclude the child from maintaining, forming or repairing relationships with the child’s parent or caregiver of origin.
g. It is therefore necessary for the Legislature to amend current laws to strengthen support for kinship caregivers, and ensure focus on parents’ fitness and the benefits of preserving the birth parent-child relationship, as opposed to considering the impact of severing the child’s relationship with the resource family parents [bold added by author].

In accord with this finding, the legislation eliminated the provision that allowed the use of evidence that separating a child from the child’s resource family parents would cause “serious and enduring emotional or psychological harm” to the child in initiating a petition to terminate parental rights. This elimination of any consideration of emotional harm to the child, no matter how serious or lasting, is disturbing. The result may be a generation of foster children that are ripped from loving, stable homes with the only parents they have ever known, causing lifelong damage. To make matters even worse, a child’s reunification with a birth parent or placement with kin may not last, but it may be too late to return the child to the foster family that raised them. Witness the case of Harmony Montgomery in Massachusetts. After her third failed reunification with her mother, her behavioral problems had escalated to the extent that the foster family that had provided the only safety and stability she had ever known no longer felt capable of caring for her. (And that’s before she was placed with her unvetted father and disappeared.)

The recent legislation did make some sensible changes that could help children achieve timely permanency. It requires that DCP&P first make reasonable efforts to find a suitable relative or “fictive kin” (family friends or trusted adults who have a preexisting relationship with the child), before placing a child with another person. This is helpful, because placing a child with kin right away prevents the need to remove the child from unrelated caregivers with whom the child has already bonded. It also reduces (to six consecutive months or nine of the last 15 months) the amount of time that a caregiver (including a foster parent) must have cared for a child before qualifying for Kinship Legal Guardianship (KLG), a permanency option that allows an adult with a relationship to a child to raise that child without terminating the parents’ rights.

But aside from the new provision requiring an upfront search for kin and reducing the time to qualify for KLG, the bulk of the policy, practice and legislative changes since 2018 has made it more likely for children in foster care to be removed from foster homes where they have lived for as long as three years. Talking to some of these foster parents raised alarming concerns about DCP&P’s disregard for the damage done to children by tearing them away from the only families they have every known (or can remember) at the age of three or four.

The foster parent who first approached me (I will call her “Ms. R”) has been caring for a child (I will call him “A”) since he was born over three-and-a-half years ago. A was removed from his mother as a result of her substance abuse and mental illness. Although A’s mother did visit, she did not begin to complete goals necessary for reunification until he had been in care for three years. A’s father, late to arrive on the scene due to his mother’s refusal to identify him, was barely engaged. DCP&P had already tried to terminate the rights of both parents, but the judge ruled against the agency, arguing that the father was not given enough time to prepare for reunification. The agency did not appeal, leaving A in limbo beyond timelines and without a clear plan going forward. But after that ruling, the agency began working with A’s mother, whose rights should have been terminated by the judge at the TPR trial. A is currently visiting with his mother twice weekly and has begun to exhibit problem behaviors on visiting days. On one occasion, A’s school called the CPS hotline after A returned from a visit saying “Mommy hurt me,” but DCP&P declined to investigate. A DCP&P worker raised concern about the mother’s rough handling of A during visits, but A’s mother managed to get the worker removed from the case. A’s mental health provider has suggested that the visits end to stop his problem behaviors, as A’s extreme aggression jeopardizes his placement at school and endangers other children. The provider also opposes reunifying A with his mother, but DCP&P appears to be undaunted: the judge has issued a “self-executing order” allowing reunification to proceed at the agency’s discretion without a hearing.

Ms. R referred me to Ms. S, who has been caring for “B” for three-and-a-half years, since she was five days old. B was removed from her parents due to neglect related to substance abuse and mental illness. The father almost killed B in utero by attacking her mother late in her pregnancy, sending her to the emergency room. At 10 months old, B was placed with a relative, but she came back into care neglected and sick after her father had taken her back and was live-streaming himself high with her on Facebook. After the pandemic began, visits became virtual and the parents were given extra time to comply with their case plans. When B was 18 months old, her father began bringing another relative to his visits with her. In her sixties, childless and with mobility problems, the relative nevertheless wanted to raise B and the DCP&P was happy to oblige. When B was two-and-a-half, her goal was changed to Kinship Legal Guardianship with the relative. B began progressively longer visits with the relative, returning to the foster home exhausted with an unused toothbrush, gastrointestinal problems, regressed behaviors and reports that her father was at the visits against agency requirements. The relative refused to speak to the S’s or to take B to trauma therapy. B’s attorney was in favor of adoption by the S’s, and a trial was scheduled and postponed multiple times. Before it could take place, DCP&P simply placed B with the relative at the age of three-and-a-half. B’s lawyer remained opposed to the move but with the new legislation discounting the importance of attachment to the foster parent in TPR cases, told the S’s that his argument would no longer carry weight with the judge.

Ms. R also referred me to Ms. T, who has been caring for “C” for almost three years. “C” came to the R’s at the age of 13 months old malnourished, dehydrated, unable to walk or crawl, and needing hospitalization, after his mother was arrested and her boyfriend brought the three children to New Jersey. C has global developmental delays; his two siblings are autistic and were placed in another home, but the siblings had regular visits. The goal was never changed from reunification, in part due to delays caused by Covid-19. After C had spent nearly three years with the T’s, DCP&P began to plan for adoption, but not with the T’s. C’s two autistic siblings had been moved to an unrelated foster parent who was willing to adopt all three children. Ms. T received a call one morning stating that overnight visits would start that Friday–in a home C had never visited before. Since the visits have started, C has become clingy at home and his behaviors have deteriorated in school to the extent that Ms. S now has to pick him up at noon from his all-day pre-K class. C’s attorney believes he should stay with the T’s and his pediatrician has expressed strong opposition to the move. But DCP&P appears to be resolved on keeping the children together, citing the 80-20 rule, which applies to placements within 30 days, not three years.¹ Clearly, the agency believes that the blood ties between siblings who have never lived together outweigh C’s attachment to a foster family that has raised him for the last three-quarters of his life–including the foster “brother” he grew up with, who has now been adopted by the T’s.

In all of these cases, DCP&P chose to remove children from foster parents who had been caring for them for three or more years and wanted to adopt them. This is far beyond the timeline contained in federal and New Jersey law, which requires states to file for TPR after a child has been in foster care for 15 of the past 22 months. States are allowed to make exceptions based on the best interests of the child, the lack of services for the parents, or a child already living with a relative, but it does not appear that these exceptions applied in these cases. For the two children, B and C, who were placed or about to be placed with relatives, those relatives should have been identified and the children placed with them much earlier if the placement was going to happen at all. The goal of having 80 percent of children placed with kin within a month should not be cited to justify moving a child to kin after three years; yet DCP&P staff cited it to justify “C”‘s placement with a stranger after almost three years with his foster family

We should not make policy based on individual cases and we do not know how frequent these extended stays in foster care are or whether they are increasing in New Jersey. Data on how long children stay in foster care before achieving permanency is not available either in New Jersey or nationwide.² Nor do we know the extent to which the pandemic has contributed to delays in permanency; it did not seem to affect the case of A, whose mother did not start working on her case plan for three years, but it seems to have contributed to the delays in permanency for “B” and “C.” In addition, a historically high shortage of family court judges has also been delaying the scheduling of hearings in New Jersey; the state Senate is moving to fill the vacancies now. However, it appears that policy and practice in New Jersey are moving in the direction of delayed permanency as children in foster care wait for parents to work on their case plans or appropriate relatives to appear. And the New Jersey Legislature’s elimination of attachment to foster parents as a criterion in TPR filings is clearly designed to remove one obstacle to reunification or relative placement outside the timeframes that are considered acceptable by child development experts.

It is unfortunate that New Jersey does not seem to be interested in collecting data that might cast light on the extent and impacts of the increased emphasis on blood ties. For example, child advocates worry that DCP&P may be increasingly waiving foster parent licensing requirements for kin caregivers at the expense of children’s safety, but DCF does not provide data on the number of waivers granted. Data on re-entry into foster care after reunification or permanent placement has not been updated on the data portal maintained by Rutgers University since 2019 and data on maltreatment after reunification has not been updated since 2018. Whether DCF is simply indifferent or prefers not to share this data is not a question I can answer.

BA small but growing group of New Jersey foster parents and child advocates is determined to push back against current trends and place children’s needs front and center where they belong. Begun in response to the dramatic decline in foster care entries and fears that children were being left in dangerous homes, the Child Advocacy Association of New Jersey (CAANJ), is housed inside a nonprofit (Miriam’s Heart) that supports foster and adoptive children and families. CAANJ fought unsuccessfully against removing the provision that allowed the use of evidence that separating a child from the child’s foster parents would harm the child in initiating a petition to terminate parental rights. Currently, the group is supporting bills that would require foster parents, relatives, pre-adoptive parents, or caretakers to be party to reviews or hearings involving a child under DCP&P care; establish an Office of Child Advocate or Ombudsperson; and increase the frequency of permanency hearings from every 12 months to every six months. They also have a wish list of legislation that they would like to draft if they can find sponsors. This includes a foster parents’ bill of rights and legislation allowing foster parents to be considered “kin” for placement and adoption purposes (not just Kinship Legal Guardianship) after the child has been with the family for a specified period of time; strengthening the requirements to search for relatives at the beginning of a child’s foster care placement; requiring TPR hearings to take place within six months of a child’s goal changing to adoption; allowing open adoption to be an option in foster care adoptions; and imposing uniform standards for whether resource, kinship, or biological caregivers when it comes to agency involvement, removal and reunification.

The national movement to place blood ties above attachment and bonding has found a faithful echo in New Jersey, where children’s needs are being disregarded as they are being reunified with parents or placed with relatives long after they should have been settled in permanent homes. Ironically, DCF has a “Statewide Action Plan” for addressing ACES among New Jersey’s children, but the plan does not require the agency itself to stop inflicting ACES on its own clients. But a group of child advocates is fighting back and trying to enlist legislators in the quest to put children’s needs back on the front burner. This child advocate fervently hopes that they succeed.

Moreover, it is not clear that the 80-20 rule was meant to be satisfied by placing a child with siblings in the home of a non-relative.
Ideally we would want to know, for each child exiting to a permanent placement, the amount of time they were in foster care, and how this “time to permanency” has changed over time. Such data are not provided routinely by states and the federal government and requires manipulation of data by researchers using statistical analysis software.

The tragedy of Harmony Montgomery: Why we must strengthen the federal permanency timeline, not repeal it

I write with heartbreak and rage about a child who was removed from her drug-abusing mother at the age of two months, placed with a loving family that wanted to adopt her, ripped from this family twice more to return to her mother in a fruitless attempt at reunification, and finally placed after over four years with a father and stepmother she hardly knew without any vetting to ensure their capacity to care for her. The case of Harmony Montgomery has made national news–but only because she is now missing after that last disastrous placement. The Massachusetts Office of the Child Advocate (OCA) has released its report on the tragic case of Harmony Montgomery. The OCA report reveals the extent of the disruption to which Massachusetts subjected this young child, but unfortunately it does not draw the needed conclusions about policy and practice to ensure timely permanency for children in foster care. No child should be subject to the treatment Harmony received in the child welfare system, let alone the abuse and neglect she certainly endured after leaving it, but policy shifts being considered now would make it more likely that other children will suffer similar fates.

Harmony’s child protection case began almost as soon as she was born in June 2014 to Crystal Sorey and Adam Montgomery, who were not married and were no longer together at the time of her birth. Montgomery was incarcerated at the time of Harmony’s birth for “a shooting that involved illicit substances,” according to the report. Harmony was diagnosed at birth with a visual disability and was blind in one eye. Due to her disability, she received early intervention services until age three and then special education services from her local school district until moving to New Hampshire.

Shortly after Harmony’s birth, the Haverhill Area Office of the Massachusetts Department of Children and Families (DCF) received three reports alleging that Sorey was using illegal substances and neglecting Harmony. DCF confirmed the allegation of neglect and opened a case to provide services to the family without removing Harmony. But two more reports were made in August 2014, and DCF concluded that Sorey continued to struggle with substance abuse, putting Harmony at risk. Two-month-old Harmony was removed and placed in foster care. (A chronology at the end of this commentary provides a summary of the case history).

In January 2015, seven-month-old Harmony was returned to the care of her mother. But the following April, at the age of 10 months, Harmony was removed from Sorey again due to neglect associated with her renewed substance abuse. In July 2015, Harmony’s permanency plan was changed from reunification to adoption. In September 2015 Adam Montgomery was released from prison and moved to New Hampshire, but he did not contact DCF for a year. In February 2017, the DCF team changed Harmony’s goal back to reunification with her mother. That March, Harmony was returned to her mother for the second time. She was almost three years old and had been in foster care for a total of 28 months, including approximately 23 consecutive months since her second removal from her mother.

In January 2018, at the age of three-and-a-half, Harmony was once again removed from Sorey due to the latter’s neglect associated with renewed substance abuse, and she was placed in the same foster home where she had lived during both of her previous stays in care. In August 2018, when Harmony was four years old and after eleven months without seeing her, her father resumed supervised visits. According to OCA, in December 2018 the team began working toward “reunification”^1,2 with Montgomery instead of Sorey and requested that New Hampshire conduct a home study through the Interstate Compact on the Placement of Children (ICPC).³ Nevertheless, Harmony’s goal was changed back to adoption in that same month.⁴

A hearing was held in February 2019 to consider both parents’ requests for immediate custody of Harmony, but Sorey was unable to attend because she was at a hearing about another of her children. New Hampshire had not yet acted on the home study request and the DCF attorney objected to the placement of Harmony with Montgomery in the absence of any information about the family. The attorneys for Montgomery, Sorey and Harmony⁵ all supported giving custody to Montgomery, and the judge awarded him full custody on the grounds that as a “fit parent” as defined by law, Montgomery’s right to parent his child could not be infringed by the ICPC. A week later, Montgomery brought Harmony to New Hampshire to join his household made up of his wife, Kayla Montgomery, and their two children, who were both under five years old. DCF’s involvement with Harmony was over and there was to be no agency or court oversight of the newly reunified family as there would be if Montgomery lived in Massachusetts.

A report from the Governor of New Hampshire provides a glimpse into Harmony’s troubled life after arriving in New Hampshire. On July 19, 2019, an anonymous call was made to the Department of Children, Youth and Families (DCYF) hotline stating that five-year-old Harmony was seen a week before with a black eye that Adam Montgomery admitted causing. In a visit conducted on August 7, 2019, a social worker found signs of a healing black eye, but Harmony and her father said the mark was caused by “horseplay” with a sibling. The allegation was ruled “unfounded,” but Harmony was deemed to be at high risk for future maltreatment.

On January 8, 2020, another call was made to the hotline regarding another child or children in the home. When the investigating social worker asked about Harmony, Adam Montgomery said that she had been back in Massachusetts with her mother since about Thanksgiving of 2019. Kayla Montgomery later confirmed the story, stating that Montgomery told her he was taking Harmony to Sorey on the day after Thanksgiving in 2019. On January 13 and March 16, additional calls were received regarding the household, and Montgomery again stated that Harmony was with her mother and he had not seen her in a year. In September 2021, a person known to Sorey called the DCYF hotline to say that Sorey had not seen Harmony since 2019 and had not been able to reach Montgomery to schedule a visit. DCYF learned that Harmony had never been registered for public school in Manchester.

On December 31, 2021, the Manchester police located Montgomery, but he did not have Harmony in his care and gave “contradictory and unconvincing explanations” of her whereabouts. An exhaustive police search for Harmony began, making national headlines. On January 4, 2022, Adam Montgomery was arrested on charges of second degree assault and endangering the welfare of a child. On January 6, 2022, Manchester police arrested Kayla Montgomery on a charge of welfare fraud for obtaining over $1,500 in Food Stamp benefits for Harmony after she was no longer in their household. The search for Harmony continues.

The case history shared by OCA shows that DCF, the agency charged with protecting children, instead subjected Harmony to the trauma of repeated moves during her crucial infancy and early childhood, including ripping her from a loving home where she had resided for almost two years. After being removed from her mother at two months, returned to her at seven months, removed again at ten months, and then remaining another 23 months in foster care, Harmony deserved to stay with the only family who had provided a safe and stable home for her. This family had even facilitated Harmony’s contact with family members other than her parents, who visited her in the foster home and told OCA they appreciated the care Harmony received there. But DCF sent her back to her mother, only to remove her again 10 months later. There is no better evidence of the damage done by this ill-advised action than the following quote from the OCA report:

Although placed in the same foster home after each removal, each time Harmony returned she struggled with more challenging behavior and increasing feelings of insecurity. While the foster parents provided exceptional care and were committed to Harmony, with each subsequent placement the scope and depth of her behavioral and emotional needs grew. The foster family felt that after Harmony had been removed from Ms. Sorey’s care for the last time, they were no longer able to provide for her increased needs. Several months into her third placement, Harmony’s foster parents determined that it was in Harmony’s best interest to be placed in a therapeutic foster home where she would receive the specialized and dedicated attention she needed. It is evident in the record this was an extraordinarily difficult decision for the foster parents as they consistently expressed their love for Harmony.
Office of the Child Advocate, A Multi System Investigation Regarding Harmony Montgomery, May 2022,

The harm to children of such repeated disruptions has been well documented, as Sarah Font and Lindsey Palmer explain. Humans have a fundamental need to know where and to whom they belong. Foster care sets up a “loyalty conflict” that is familiar to every social worker who has worked in the field, and the harmful impacts of repeated movement between the two families cannot be overstated. Secondly, children need predictability, and research consistently shows that unpredictable environments harm children’s development even more than harmful environments. Every member of Harmony’s case management team should have been aware of the harm that would be caused by the repeated disruptions in her living situation, the on-and-off visitation with her father and the continued uncertainty about her future.

In subjecting Harmony to over four years of uncertainty and disruption, DCF and the court also appear to have flouted both law and policy guidelines. Massachusetts General Laws Chapter 119 Section 26 requires DCF to file a petition in court to “dispense with parental consent to adoption, custody, guardianship or other disposition” if the child has been in foster care in the custody of the state for 15 of the immediately preceding 22 months. This law is based on the Adoption and Safe Families Act of 1997 (ASFA), which requires states to observe this “15/22 rule” in order to receive Federal foster care funds. Federal and Massachusetts law provide three exceptions to the rule: if the child is being cared for by a relative, if there there is a “compelling reason” that filing such a petition would not be in the best interests of the child, and if the family has not been provided with the services that the department has deemed necessary for the child’s safe return home. DCF policy mirrors the provisions of the law by requiring that DCF review all cases of children who have been in placement 15 of the past 22 months and initiate a petition for TPR (termination of parental rights) unless one of the three exceptions described above apply.⁶ But there is no mention in the OCA report that such a review took place.

DCF policy includes other requirements to ensure the 15/22 rule is followed, mostly through the use of Permanency Planning Conferences (PPC’s). PPC’s are “the Department’s primary internal planning vehicle for reviewing the clinical and legal issues related to permanency decision-making.” PPC’s are required under certain circumstances, including within the first 9 months following the date of placement. At this conference, DCF policy states that:

For most families, based upon a well-reasoned prognosis about the probability of the child’s returning home given the family’s documented capacity to benefit from reunification services, the Department will decide whether to initiate a TPR action at the PPC held within 9 months after the child enters placement. In some of those cases, the Department will decide that one of the exceptions [described above] applies but will schedule another PPC for the 13th month after placement to determine whether initiating TPR is appropriate given the facts as they then exist.

Harmony’s first PPC noted by OCA took place in July 2015, about 11 months after her placement, in apparent violation of the nine-month deadline. The result of that conference was a change of Harmony’s permanency goal to adoption, which presumably entailed “initiating a TPR action” as described by the policy. If for some reason that did not happen, another PPC should have been scheduled for the 13th month after placement. OCA does not cite another PPC until the one that took place in February 2017, which was about two-and-a-half years after placement and actually changed her goal back to reunification. So it is appears that the DCF Area Office was out of compliance with agency policy requiring it to either initiate the TPR or schedule another PPC for the 13th month after placement.

There are more safeguards in DCF policy to ensure timely permanency for children in foster care, but these did not save Harmony either. According to policy, “Any decision not to initiate [a TPR] when a child has been in placement for 15 of the previous 22 months must be the result of a Permanency Planning Conference and approved by the Director of Areas/designee.” Harmony had spent 15 of the past 22 months in care around February 2016. But there is no mention that such a PPC ever took place or that such approval was obtained. As noted above, the next PPC mentioned by OCA occurred after Harmony had been in care for two-and-a-half years.

The OCA report does not mention the 15/22 rule, even though it provides a link to the policy in which the rule is repeatedly mentioned. Presumably, the rule was not mentioned in the case records that OCA reviewed, and this may be typical. When the US Government Accountability Office (GAO) studied early state implementation of AFSA, they found that in the nine states that provided data on the use of the rule in FY 2000, “the number of children exempted from the provision greatly exceeded the number of children to whom it was applied.” This is not surprising because the exceptions can be easily interpreted so broadly as to apply to many or most cases. There is no update on the GAO survey, but available evidence suggests that application of this provision is not widespread. During child welfare monitoring visits conducted by the federal government between 2015 and 2018, practices related to timely termination of parental rights were rated as a strength in only seven of the 50 states plus the District of Columbia and were rated as an “area needing improvement” in the other 44 jurisdictions, according to a federal study. Foster parents from around the country who completed a caregiver survey disseminated by the advocacy group iFoster reported that failure to observe the AFSA timeline resulted in stalled permanency for foster youth. Certainly, the intent of the law is not being fulfilled.

Whether social workers around the country are assessing cases to determine whether the exceptions apply or simply ignoring the 15/22 rule is not clear. In Harmony’s case, no discussion is noted in the OCA report of whether she was exempt from the rule. It certainly appears that her mother received more than enough services before and after her relapses; she was reported to have received both substance abuse treatment and mental health therapy. It might have been possible to argue that Harmony’s father needed more time because he was released from prison when she had already spent ten months in foster care, but since he did not contact DCF for a year after being released, such an argument seems weak.

Respect for the 15/22 rule is if anything decreasing because of the current ideological climate in child welfare that prioritizes the rights of parents over the needs of children. Indeed, there is a new movement to repeal ASFA altogether on the grounds that it is unfair to parents. Parents’ rights advocates argue that states are not providing parents with the services they need, and it is not fair to apply the timeline when parents have not been offered the services they need in time to meet the 15-month deadline. This is a valid point. Enforcement of the timeline needs to be accompanied by prompt assessment and appropriate services for both parents. But the burden should be on the parent to make use of the services offered. An agency should not be required to beg, persuade or repeatedly urge parent to pursue visits and services. if a parent falls out of touch and cannot be reached, the child should not be penalized by delays in permanency.

Parent advocates also argue that it often takes longer than 15 months to correct deep-seated problems. In particular, it is well-known that most substance abusers (like Harmony’s mother) relapse more than once before shaking their addiction. But young children simply don’t have the time to wait for such a parent to be cured without incurring irreversible developmental damage.

In this time when parents’ rights advocates have all but monopolized the current conversation, few seem to be speaking for the rights of children. But in its recent report, Voice of the Foster Care Community, the advocacy group iFoster concluded that greater efforts are needed to support parents before their children are removed, and to help them regain their children quickly once placed in foster care. But if that quick reunification does not happen, caregivers, workers and advocates surveyed stated the need to prioritize the needs of the child over the needs of the parent to avoid delays in termination of parental rights. As one Pennsylvania foster parent put it,

….if parents are unable to work their case plan, then the 15 of 22 months rule must be followed so kids don’t languish in care for years. This is a way-too-common occurrence. Parents are given many chances to work their case plan while their children languish in care, being passed back and forth between families and living in instability.”

Advocates for children in foster care should be asking Congress to strengthen the 15/22 rule, not repeal it. Perhaps there could be different timelines for children of different ages, as has been suggested by Cassie Statuto Bevan, who helped draft ASFA. Children who come into care as teens may not want their bonds with their parents to be disrupted. But the youngest children need to achieve permanency even faster than what is prescribed by ASFA. Infants and young children placed in foster care should not spend their most crucial developmental period in limbo awaiting a parent’s eventual cure.

OCA’s central finding was that “Harmony’s individual needs, wellbeing, and safety were not prioritized or considered on an equal footing with the assertion of her parents’ rights to care for her in any aspect of the decision making by any state entity.” This finding certainly encompasses DCF’s failure to seek timely permanency for Harmony. But OCA’s specific findings and recommendations regarding time to permanency are not as well-developed as they could have been. OCA has one finding regarding permanency as it relates to DCF, but it is quite weak, stating that “the delay in achieving permanency for Harmony impacted her well-being.” OCA goes on to explain that the delay caused trauma for Harmony, which in turn resulted in the disruption of her pre-adoptive placement. In reality, If Harmony had been adopted soon after she had spent 15 months in foster care, she would have found safety and stability in a loving home. The failure to pursue adoption within 15 months of Harmony’s placement in foster care did not just damage her emotionally; it resulted in her disappearance and possible death.

Strangely, OCA made no recommendation to DCF regarding reducing the time to it takes to achieve permanency for children in foster care. There was no mention of the 15/22 rule and the failure to enforce it or follow the procedures designed to ensure its observance. It is only in the section on the legal process that OCA stated (but did not label as a “Recommendation”) that “For children whose parents will not accept services or to whom children cannot be safely returned to their home within the first two years of their removal, DCF should expeditiously move toward another permanency plan.”⁷

OCA had a number of other findings and recommendations. The Office rightly highlighted DCF’s exclusive focus on Sorey as a potential caregiver for Harmony throughout most of the life of the case, resulting in the failure to complete an assessment of Montgomery and his wife and develop an appropriate service plan for them. This was particularly important in light of Harmony’s disabilities, which required that a caregiver be able to provide adequate care. Clearly, DCF should have done more to engage Montgomery during the first 15 months of the case. If he and his wife had been assessed and provided with an appropriate service plan, perhaps they would have been ruled out as as caregivers long before the fateful hearing. This failure to engage Montgomery resulted in OCA’s only recommendation directed at DCF, which was that “DCF should develop a comprehensive plan to ensure both parents are adequately assessed and receive the support and access to services needed so that their child(ren) can achieve permanency.”

OCA devoted the bulk of its findings and recommendations to the legal process, and specifically to the many problems with the February 2019 hearing that resulted in Harmony’s placement with her father. Clearly, the placement of Harmony with her father in the absence of any assessment of him or his wife or any examination of their home was the immediate cause of the the tragic outcome. But that hearing, conducted over four years from Harmony’s entry into foster care, should have never taken place. OCA’s findings regarding the process are certainly worth consideration, but there should have been much more attention given to the need to ensure permanency for children much earlier.

Despite the flaws in its findings and recommendations, the OCA report is invaluable for its revelation of the problems in social work and legal practice that led to the disappearance and probable murder of Harmony Montgomery. Harmony’s story should be a cautionary tale for anyone supporting, or considering the value of, proposals to repeal the Adoption and Safe Families Act, or at least the requirement that states initiate a termination of parental rights after a child has been in foster care for 15 out of the last 22 months. Rather than eliminated, that provision needs to be strengthened by reducing the scope of the exemptions that make it toothless and perhaps by adjusting it according to the age of the child. No other child should be subjected–by a system designed to protect children– to the suffering that Harmony underwent while in the system and after leaving it.

Timeline of Harmony’s case based on the OCA report

Date	Months in Foster Care	Event/Activity
June 2014		Harmony is born. DCF receives three reports of substance abuse and neglect by her mother. A case is opened
August 2014		DCF receives two more reports. Harmony is removed.
January 2015	5	Harmony meets her father for the first time, in prison, and is returned to her mother
April 2015		Harmony is removed from her mother again due to substance abuse
July 2015	8	Harmony meets her father for the second time, in prison; Harmony’s permanency plan changed to adoption
September 2015	10	Harmony’s father is released from prison and moves to New Hampshire
February 2016	15	Harmony has spent 15 months in foster care out of the last 22 months
September 2016	22	Adam Montgomery contacts DCF for the first time since his release from prison a year earlier
October 2016	23	Harmony meets Adam Montgomery for the third time.
February 2017	27	Harmony’s permanency plan is changed back to reunification. After visiting with Harmony once a month for five months, Adam Montgomery stops responding to DCF’s efforts to schedule further supervised visits.
March 2017	28	Harmony is returned to her mother for the third time. Over the next few months she has unsupervised weekend visits with her father.
September 2017	28	Adam Montgomery contacts DCF after a seven-month lapse, and has one supervised visit with Harmony.
January 2018	28	Harmony is removed from her mother for the third time due to substance abuse.
August 2018	35	Adam Montgomery resumes supervised visits after a lapse of 11 months.
December 2018	39	Harmony’s goal is changed back to adoption.
February 2019	41	A Juvenile Court Judge awards custody of Harmony to Adam Montgomery. One week later, Montgomery takes her to New Hampshire and DCF involvement ends.
September 2021		A person known to Crystal Sorey contacts the New Hampshire child ause hotline to report that she has not seen Harmony since April 2019.
December 2021		Manchester police announce Harmony’s disappearance and their search for her. She has not yet been found.

Notes to Table: For purposes of calculating months in foster care, All dates assumed to be the first of the month

This commentary was updated on June 8, 2022 to incorporate the results of a federal study entitled Freeing Children for Adoption within the Adoption and Safe Families Act Timeline.

Notes

1. Child welfare law and policy refer to “reunification” with a parent even if the child has never lived with that parent.

2. According to OCA, “the Foster Care Review panel kept a permanency goal of reunification for Harmony but for the first time changed their focus of reuniting Harmony with Ms. Sorey to placing her with Mr. Montgomery.” But OCA explained in an earlier text box, foster care review panels make recommendations, not decisions. Therefore this statement appears to be inaccurate.

3. The ICPC is an agreement between the states that allows a state considering placement of a child in another state to request a home study of the family with whom the child will be placed.

4. This goal change raises many questions which are not addressed in the OCA report. It is not clear why the goal was changed so soon after the team reportedly agreed to continue the goal of reunification with a new focus on Adam Montgomery. This discrepancy could be related to OCA’s confusing statement that a Foster Care Review panel made the decision to continue the goal of reunification but shift the focus to Adam Montgomery. Perhaps that panel only recommended this new focus. According to OCA, the panel also recommended convening a Permanency Planning Conference (PPC), which is the body empowered to change the goal and which indeed did change the goal to adoption.

5. According to OCA, Harmony’s attorney supported custody for Montgomery because she was bound to advocate for the expressed wishes of the four-and-a-half-year old, not her best interests.

6. While federal law and DCF policy speak of initiating a TPR petition, Massachusetts law prescribes “dispensing with parental consent,” as described in the previous note. Some jurisdictions, in order to avoid creating “legal orphans” through a TPR, take this approach of dispensing with parental consent to an adoption or guardianship. The practical result would be the same, ending parental rights.

7. In its list of recommendations for the courts, OCA strangely includes a recommendation for the agency, stating that “DCF should review and determine the length of time from permanent custody to a final adjudication of adoption, guardianship or return to parent for a child in order to ensure that the case achieves a safe and expedient resolution.” In addition to being misplaced, this is a very weak statement of what needs to be done.

When parents’ rights trump children’s needs

Sometimes it seems like basic humanity and common sense get lost in the scramble to affirm parents’ rights at all cost. Nowhere was this more clear than in a quote from Aysha Shomburg, the former New York City child welfare official who was appointed by President Biden to head the Children’s Bureau. As quoted in The Imprint, Schomberg cited a 15-year-old father facing a termination of parental rights as evidence for the need to eliminate the timelines imposed by the Adoption and Safe Families Act. Speaking of this teen dad, Schomberg said, “That stays in my mind and makes me think, how many young fathers are out there and maybe want to take care of their children, but are maybe up against this timeline?”

After picking my jaw up off the floor, I wondered whether Schomberg thought a fifteen-year old was actually capable of parenting an infant, or whether she thinks ASFA should be amended so a child can stay in foster care as many years as it takes for the parent to grow up.

Schomburg’s statement reminded me of one of the saddest cases I carried as a social worker in the District of Columbia’s foster care system. A two-month-old (I’ll call him “Shawn”) came into care when he was removed from his teenage mother (“Shameka”) after she swung him wildly in his carseat and then stalked off in a temper from a home for teen mothers, abandoning her son there. Shawn was placed with one of the best foster families I have ever known–“the Smiths,” a couple who was Black like Shawn and had raised their own children and fostered numerous others. They quickly fell in love with Shawn and gave him the kind of parenting that textbooks envision. Mrs. Smith stayed home with Shawn all day, talking to him, playing with him, and loving him, until the Smiths placed him in a carefully-chosen early childhood education setting at the age of two. Shawn was the center of Mr. and Mrs. Smith’s lives and part of their extended family of children and grandchildren. I’ll never forget that when he fell in love with trains, they found every train-related toy, game or event.

As the months and then years rolled by, Shawn’s mother stopped visiting him. She had named a father for Shawn, but a paternity test came back negative. Shawn’s goal was changed to adoption with the Smiths and I imagined the happy life awaiting him in their loving home. But one day, Shameka admitted that she had lied about the name of the biological father for the sake of revenge against him. She named the real father, and the paternity test was positive. The father (“Antonio”) soon showed up at the agency, a pleasant seventeen-year-old who was delighted to meet his adorable young son. Shawn’s birth father lived with his parents and siblings in subsidized housing and relied on government assistance. Shawn’s grandfather was excited about the new family member. He told me that two of his older sons also had children as teenagers, and that becoming fathers is what made them actually grow up, finish high school, and get jobs.

The Smiths were devastated, but I assured them that the court would not rip a two-year-old away from the only parents he had ever known. But then I talked to the agency attorney and realized there was no question in her mind that the agency had to change the goal to “reunification” with the father, a perfect stranger. And that is exactly what happened. The goal was changed and the Smiths had to bring Shawn to the agency for progressively longer visits with his birth father. At one visit, Mr. Smith was heard crying in the bathroom.

I am glad I was no longer at the agency when Shawn went ‘home’ with his father. But I’ll never forget the day I ran into Shawn’s Guardian ad Litem, the attorney appointed to represent him in court. “We ruined his life,” she told me. She had visited him often in the months following his return home, and and reported that his new household was chaotic, with none of the routine and predictability so crucial for growing children. And we will never know the effects of being ripped away from the Smiths after two years of security and attachment.

I thought about Shawn when I read Aysha Shomburg’s post. I wondered whether Schomburg cared more about the fifteen year-old than about his son. It was not about the infant’s future. It was about the father’s rights. And indeed, most child welfare officials would say Schomburg was correct in not speculating about the child’s future. Child welfare agencies are not in the business of choosing the best parent, just ensuring that the birth parents can provide the minimal acceptable care. But what about the attachment that Shawn had developed over two years with the Smiths? The importance of attachment, and the consequences of disrupting it for a young child, is why the timelines were included in ASFA–the timelines that Schomberg wants to eliminate. So attachment – and the trauma of disrupting it – does not seem to be a significant issue for her.

Schomburg’s citation of a fifteen year old father as an argument against permanency timelines is an illustration of what’s wrong with mainstream child welfare thinking today. It’s all about parents’ rights, while the most basic of children’s needs are disregarded. It is based on an idealized vision of families rather than the way they really are. It’s the kind of thinking that allowed a child named Noah Cuatro to die when the Los Angeles Department of Children and Family Services told social workers to emphasize his family’s strengths more than its weaknesses. We must stop using that kind of thinking to prescribe our actions toward our most vulnerable citizens–our youngest children.