More than 30 years ago, Elisabeth Landes and Richard Posner provocatively observed that a “glut” in black babies exists in the United States foster care system. Their controversially framed assessment attracted ardent criticism, including charges of racism. Nonetheless, Posner and his colleague touched on urgent and yet unresolved problems, including how to (a) provide more meaningful life opportunities for child wards of the state by transitioning them into permanent home placements, (b) reduce the prevalence of black children in foster care, and (c) decrease state expenditures on foster care, while not sacrificing quality of care. There were other questions of great importance that arose in response to their research. However, the use of economic terms as analytical tools to describe the collision of both a terrible racial phenomenon and family law crisis launched the type of criticism that ultimately detracted from the authors’ pertinent thesis. As a result, Landes and Posner abandoned this line of inquiry.
Yet, the importance of studying the supply and demand imbalance of permanent home placement remains urgent. The supply of children in U.S. foster care far exceeds the demand for their adoption. Indeed, only one in five children is adopted from foster care in the United States. Not only do the circumstances leading to the surrender of children to the state continue unabated (negligence, abuse, poverty, drug addiction of the parents), but the U.S. recession (home foreclosures, bankruptcies, and homelessness) further exacerbates these conditions. Children of color in the foster care system fare the worst because of reduced permanent placements, extended or permanent stays in “temporary” care, and fewer transitions out of the system. Empirical data confirms this point. The challenges in overcoming these problems persist.
To explicate, the Adoption and Foster Care Analysis and Reporting System (AFCARS), which “collects information on all children in foster care for whom State child welfare agencies have responsibility for placement, care, or supervision,” captures this bleak picture in a 2011 report. AFCARS’s data reveals an open secret: nearly half a million children reside in foster homes or contemporary orphanages as wards of the state, while waiting to return to or to find a home. The life chances of these children are severely compromised: most will never attain a high-school diploma because of soaring dropout rates.
High incarceration rates, juvenile delinquency, and sexual exploitation while under the state’s supervision provide provocative counter-narratives to the conventional wisdom that foster care serves as the best available option for children in need of homes. When closely studied, such outcomes provide further evidence of a system in distress. Factors contributing to this failing system include overcrowding, poor oversight, mismanagement, and inadequate monitoring, which independently and collectively result in substandard outcomes for children.
This glut that Posner and Landes earlier describe, manufactures far more pernicious outcomes than they presumed, as the externalities of contemporary foster care extend beyond economic inefficiencies to include extraordinarily poor welfare outcomes for children. Some of these externalities create cyclical norms that undermine the long-term stability and social health of communities. My forthcoming article, Baby Cooperatives: Rethinking the Nature of Families, (download here) to be published by the University of Illinois Law Review, articulates a new approach to creating families by challenging the normative family framework, which federal and state officials use to determine suitability for adoption.
On one hand, until recently, restrictive state laws precluded gay men and women from adopting; a few states continue to prohibit any gay adoption, using marriage as proxy for an entitlement or right to parent. Indeed, significant constraints continue in this domain with second parent adoption. In such cases only one gay parent is permitted legal guardianship, while the other parent has no legal status in relation to the child. Most recently, the Fifth Circuit Court of Appeals warned that the state of Louisiana need not provide full faith and credit to a gay couple who adopted a Louisiana-born child in New York and sought a Louisiana birth certificate. The court opined that the couple’s full faith and credit claim “is superficially appealing,” but cannot be reconciled with U.S. Supreme Court jurisprudence. In another recent case, a father was denied the opportunity to co-parent his daughter because she had two parents already (although one was in jail and the other in the hospital) and the child was sent to foster care.
So what should be done about these issues? Institutionalizing contracts between related adults (by family or friendship) to care for children (child cooperatives) will likely serve as a viable if not best “family” mechanism to transition children from ward status to permanent home placement. A California state senator has a similar idea. Relying on extended family (or nannies) is not a new idea; its fundamental principles can be found among ancient communities, and borrowed in the ubiquitous political cliché, it takes a village to raise a child. You can read more about my proposal here.