Jaquan doesn’t remember much about the years before foster care.
From ages 4 to 6, he remembers one foster mother hitting him with a baseball bat, one foster mother banging his head on the floor, and one foster mother telling him she couldn’t help that he was getting picked on at school because she wasn’t his real mother. “It made me get a mindset of me against the world,” recalls Jaquan. “I would play a lot of ball against the wall. I would play all these two-player games by myself.”
Then in 1997, Congress passed the Adoption and Safe Families Act, a major child welfare reform bill meant to ensure that children like Jaquan weren’t left in foster care. The bill declared that children would return to their families of origin in a timely fashion. But if they remained in foster care for 15 out of 22 months, foster care agencies were required to begin the process of severing legal ties to their biological parents and looking for adoptive homes. In 1984, 12,000 adoptive parents were receiving a federal adoption assistance subsidy each month for a child they had adopted out of foster care. By 2013 that number had risen to almost 450,000. If it could work for Annie and Daddy Warbucks, the bill held out hope, it could work for hundreds of thousands of real children as well.
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Jaquan was 7 in 2001 when it was his turn to find his “forever family.” He’d already lived in the home of the foster mother who adopted him for some time, but in Jaquan’s memory she was still a stranger. Then one day she took him to a large building and into a large room with a large table. Jaquan thought he must be at a banquet. So when the judge asked him if he wanted to be adopted, Jaquan, expecting a feast and not knowing what adoption was, answered hopefully, “Yes.” And that, as far as the government was concerned, was that.
But this October, almost 20 years after the passage of ASFA, a major symposium in New York City raised concerns about the number of adopted children returning to foster care as adolescents, among them Jaquan, often years after they were originally adopted; in response to such concerns, a federal bill passed last year will require states for the first time to track how many adopted children return to foster care.
New York City’s Administration for Children’s Services, a co-sponsor of the symposium, said its numbers suggest that approximately one out of every 20 children adopted from foster care in New York City in the past 22 years eventually returned to it, some temporarily to address mental health or behavioral issues, some permanently. “We know this is not the whole universe of broken adoptions,” Andrew White, the deputy commissioner for ACS’s department of policy, planning and measurement, said. “But it is the closest we can get with the data we have.”
Advocates believe the number of adoptions that break is higher, and may be higher still in other parts of the country, where the time between a child’s entry into foster care, the termination of parental rights, and subsequent adoption is shorter than in New York City. Previous studies have suggested that between 9 percent and 15 percent of adoptions out of foster care eventually break, while one study of 99 youth found that number rose to 24 percent by the time adopted children reached adolescence.
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In 2012, Dawn Post, co-borough director of the Children’s Law Center of New York, and child and parent lawyer Brian Zimmerman published “ The Revolving Door of Family Court: Confronting Broken Adoptions.” (PDF) At the time, Zimmerman recalled, “I could sit in the back of the courtroom and see three straight PINS [Person in Need of Supervision] cases in a row where the person bringing in the child would identify herself as the adoptive parent.” (A parent or guardian can ask that the court find a child a person in need of supervision when the child does not attend school, or behaves in a way that is dangerous or out of control or especially disobedient.)
In their paper, Post and Zimmerman acknowledged that children’s reactions to loss and trauma play a role in why adoptions break. Children with behavioral problems, and children who have experienced sexual abuse, are particularly likely to experience broken adoptions. What many of these families need is greater preparation before adoption, and greater support after.
But Post and Zimmerman pointed a finger, as well, at the pressure agencies, courts, and systems are under to get kids out of foster care, often pushing past ambivalences at the start of the adoption process to create a “permanency” on paper that is unlikely to last. “Caseworkers, social workers, and attorneys for children are all guilty of asking foster parents…to try it, to see how it works out. When the adoptive parents say that it is not working out and the commitment to adopt is waning, child welfare professionals ask them to ‘just hang in there,’” they wrote.
Jeremy Kohomban, the president and CEO of Children’s Village, which runs one of the largest residential treatment centers in New York State, estimates that 10-15 percent of the boys who come to their campus were once in an adoptive home.
In the summer of 2014, Lawyers For Children, which represents most of the youth in New York City who are placed in foster care voluntarily by their parents, found that roughly 20 percent of the voluntarily-placed children on their caseload had been placed there by adoptive parents.
In approximately half those cases, said Betsy Kramer, director of the public policy project at Lawyers For Children, youth have no ongoing relationship with their adoptive parents. “There’s no planning, no visitation, no support provided,” Kramer said. “Even when parents do have some contact with the child, most have no interest in being a full-time parent.”
Some adoptions never “break”—“but no one would call them healthy,” added Chris Gottlieb, co-director of the NYU Family Defense Clinic, which represents biological parents in family court. “I will never forget meeting a 15-year-old who had been adopted out of foster care and called his mother ‘Mrs. Smith’ [name changed]. He was living in the adoptive mother’s home and she was providing for his physical needs, but he was not family to her, nor she to him.”
For Jaquan, what adoption meant was that he found himself in a home with a lock on the refrigerator door, on psychotropic medication that he says made him sleep through class—and which, looking back, he believes he never needed—with no caseworker, no lawyer, and no way that he could figure how to get out.
In August 2006, ACS filed a neglect report against his adoptive mother; Jaquan, along with the other children she had adopted, were removed from her home for approximately four months but were later returned home without a finding of neglect, according to court papers that Jaquan’s attorney submitted on his behalf when he sued his adoptive mother for past child support this year.
“When I was 15,” recalled Jaquan, “I called 311 and asked how to get un-adopted. They told me I had to go to the foster care agency I had gotten adopted from. But when I went to the address on Fordham Road where the office had been, it was closed down.”
Jaquan found himself on his own at 17. In court papers, Jaquan’s adoptive mother stated that Jaquan chose to leave after a fight with his brother. Jaquan says his adoptive mother kicked him out and told him not to come back. But even before Jaquan’s adoption officially “broke,” he said, he wished someone knew it was broken all along.
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When the Adoption and Safe Families Act (ASFA) was passed in 1997, the overarching belief was that children needed permanency. If it wasn’t with their biological parents, it would be with someone new. But research suggests that severing ties, even ties that are painful or imperfect, can be devastating for children who have already experienced loss and trauma. Siblings who have gone through trauma together may have particularly strong bonds, Randi Mandelbaum, law professor at Rutgers University, told the symposium, and maintaining those bonds after adoption can strengthen their identity, their ability to make secure attachments, and even the stability of their adoptive home. Despite this, only seven states allow judges to order post-adoption sibling contact against the consent of the adopting parent.
Other children whose adoptions break are the product of adoptions that are “forced,” Post and Zimmerman suggested in their paper: situations where “both family and child might have been happier with a long-term foster care situation where whatever ties the child had [with his or her biological family] were not severed,” as one attorney surveyed for the report explained. Maybe a parent continues to struggle with addiction or mental illness, but the connection between child and parent or other family member remains. Indeed, in approximately three-quarters of the 15 cases Post and Zimmerman tracked in-depth in their report, a biological parent, sibling, aunt, uncle, or grandparent remained an active part of the child's life despite adoption.
In 2001, author Cris Beam, whose book To the End of June looks at the disillusion and disappointment often involved in adoptions out of foster care, took in a teen from foster care herself. “My daughter calls me her mom and I call her my daughter and nothing could make it more meaningful,” said Beam. “But my daughter didn’t want to be adopted. For her that would signal that she was formally giving up on reconciling with her birth mother. She didn’t want that, and I didn’t want to push that pain on her. I think that’s the case for a lot of kids.”
At times, that child’s hope is just an illusion. At other times, the most secure arrangement for a child is to have connections to both families.
In their report, Post and Zimmerman recalled watching a case in family court of a young woman who was running the streets, and whose adoptive parents didn’t want her back—nor did her siblings’ adoptive mother, who a year before had agreed to become her guardian. “While the three adults all argued and postured about how they did not want the teenager and should not be forced to take her back into their homes, a fourth woman—the biological mother—begged for the chance,” Post and Zimmerman wrote. “She had overcome the addiction issues which originally led to her children to be removed from her care, had a stable residence, and was in fact employed as a peer counselor in a drug and alcohol rehabilitation facility. However, the court advised her that she had no standing to seek custody as her parental rights had been terminated.”
In recent years, child welfare systems around the country have developed a new category of permanency—Kinship Guardianship—which allows children to remain permanently in a relative’s home and outside the foster care system without requiring that the child be adopted. It is a category of permanency created specifically because family members who are willing to raise a child when a parent can’t, won’t or is deemed unfit, are nonetheless often reluctant to sever the legal ties between parent and child. But no such category of permanency exists for children without a biological relative ready to take them in. When their adoptions break, they are often left with lifelong connections to no one.
Jaquan first met one of his brothers when he was 7, when his brother was placed in the same adoptive home. “I didn’t exactly know what biological anything was, so when they told me he was my brother, I was like, ‘Oh, OK, what is a brother?’” He met his sister a few years later, when she was placed in the same home, but shortly after she was sent back to Jaquan’s biological family.
Jaquan met his parents and the rest of his family at 17, when that same sister reached out to him on Myspace. Jaquan sometimes stayed with his biological mother in the years after his adoption broke, but he felt like an outsider in his family. “Most of my siblings got to stay with family. Even those who went into foster care were with our biological parents longer than me.”
Jaquan has never asked his parents why he was removed. He’s afraid they wouldn’t tell him the truth, and he’s afraid to bring up something that might cause him to get too angry. “It feels like there’s no way to tie up the past,” said Jaquan.
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While government rules complicate the adoption process, government money does as well—both the money the federal government pays to the states for finalizing adoptions, and the money paid to adoptive parents for caring for adoptive children.
When ASFA was passed in 1997, the goal set by the Department of Health and Human Services was to double the number of children adopted or permanently placed by 2002. As an incentive, the federal government agreed to pay $4,000-$6000 to the states for each child adopted from foster care. In 2008, the Fostering Connection to Success and Increasing Adoptions Act increased payment for older and special-needs children to between $8,000 and $12,000. Post wrote in a separate 2013 article on adoption bonuses published by the American Bar Association that in October 2010, 38 states and Puerto Rico were rewarded $39 million for reaching the adoption incentives set by the Department of Health and Human Services, with Texas receiving the highest bonuses, of close to $7.5 million, followed by Florida with $5.7 million and Michigan with $3.5 million. While the federal government pays bonuses for adoptions, no similar bonuses are paid to the states for reunifying children with their families, or any other form of permanency.
For many critics, the possible perverse incentives this creates is concerning.
In her article, Post writes: “The hyperbole centers around locating loving, safe, and permanent homes for children. However, the reality is that adoption bonuses places value on adoption for the agency above all other forms of permanency, even when adoption may not be the most appropriate option for some families… By rewarding states for increased numbers rather than for better outcomes, inappropriate or poor placement decisions may result.”
Then there is the money that states pay to adoptive parents. In New York City, adoptive parents receive between $600 to $1,700 a month per family to care for an adopted child, depending on the age and special needs of the child. The stipend was created to help low-income parents care for children they might otherwise be unable to afford. It is often particularly important when families adopt their own kin, as well as because many of the families that do adopt children out of foster care are low-income.
However, this important benefit can create its own perverse incentives, motivating some adoptive parents to adopt for financial gain. In their report, Post and Zimmerman write: “[A]llegations against adoptive parents for failure to provide adequate food, clothing, shelter, or medical care are quite common. Cases where children are left for long periods of time with no supervision and food (‘home alone’ and ‘inadequate guardianship’ cases) are also common.”
Moreover, when an adoptive parent is no longer caring for a child, that parent is required to come forward so that the subsidy can be stopped or transferred.
But the way the federal statute is written, unless the adoptive parent comes forward herself to end the subsidy, the subsidy can be cut off only if the parent is not providing support for the child in any way—though just what this means is unclear—or if the parent is no longer legally responsible for the care of the child. And when a child returns to foster care, the adoptive parent is still legally responsible.
In “virtually all” the cases of broken adoptions that Lawyers For Children represent, Kramer said, the adoptive parent continues to receive the adoption subsidy, even while tax dollars are also being paid to care for the child again back in the system.
Kramer said sometimes an adoptive parent really is planning for the child to return and needs funds to help pay rent on an appropriate home or for food on the weekends when the child visits. “There isn’t an easy solution, such as simply cutting off the subsidy whenever a child comes back into foster care,” said Kramer. “But we also have many clients who are very angry. Their parents have cast them aside, but continue to collect money for their support.”
Jaquan discovered for the first time that his adoptive mother was receiving money for him at 17, when he went to the welfare office to see if he could get food stamps. At the time, he was working at McDonald’s, going to school, and renting a room for $200 a month.
But at the welfare office the worker told him they couldn’t help him because he was already receiving a government income. Jaquan protested, saying the only income he received was from his job. That’s when the worker informed him that his adoptive mother was receiving a subsidy on his behalf, and that unless she informed them that he was no longer living with her, there was nothing they could do.
In court papers, Jaquan’s mother said she contacted ACS to inform them that Jaquan was no longer in her home as soon as Jaquan left it, but that it took months before the subsidy was actually terminated. However, Jaquan’s lawyer stated that the adoptive mother only terminated the adoption subsidy in 2014, in the same month that Jaquan filed for child support.
“All my life I suffered not having enough,” said Jaquan. “I never knew that my adoptive mother had the means to help me. I always thought the little stuff she did do for me came solely from her. That wasn’t the case.”
Recently the federal government asked for comments from child welfare systems about this situation, and New York City like other systems asked for greater clarity, as well as greater leeway, in ending the subsidy when appropriate.
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Over the past two decades, the number of children in foster care has declined. That reduction is particularly dramatic in New York City, where the rolls are just a fraction of what they once were, in part because New York City has invested more heavily in services that aim to keep children safely with their parents.
As a result, ACS pointed out, the number of adoptions and broken adoptions have decreased. In 2014, according to ACS data, 73 children adopted out of foster care in New York City returned to the system, down from 126 in 2010 and 182 in 2002. “The fact that the scale is not too great means it should be solvable,” ACS said in a statement to The Daily Beast.
However, recently New York City has taken steps that some believe could make things worse. This summer, Public Advocate Letitia James sued New York City over children’s long lengths of stay in foster care. Across the country, the median time between a child’s last entry into foster care and adoption is 29 months. But New York City is slow in reuniting children with their parents, the lawsuit contends, and slow in moving children toward adoption. In 2013, children in New York City spent more than twice as long in foster care as children nationally. The lawsuit is meant to ensure that children don’t spend years in care because of bureaucratic failures.
But legal providers for parents and children in New York City have come out against the lawsuit, in part because they fear it will put pressure on the city to terminate parental rights quickly and speed up adoptions even when adoption may not be the best outcome for children.
“We have serious concerns that [James’s] lawsuit will put more pressure on the system to move kids toward adoptions that are not in their best interests. New York has made a progressive policy choice to prioritize keeping children with their families more than many other states do. As a result, more children remain with and return to their parents,” said Gottlieb.
They may have reason to be concerned.
In 2006, Michigan was sued by Children’s Rights Inc. because of children’s long lengths of stay in foster care.
Cristina Peixoto, vice president of child and family services at Spaulding for Children in Michigan, said the settlement put positive pressure on the state to quickly fulfill bureaucratic requirements that often slowed the pace of adoptions. At the same time, Peixoto said, it also put tremendous pressure on agencies to get adoptions done quickly. “Workers felt completely overwhelmed. I can’t tell you how many times workers came back from court crying.” In that atmosphere, she said, speed sometimes came at the cost of preparing families adequately for adoption, in particular helping them understand the challenges they might face and building a support network.
Peixoto said her agency is working hard to change that. But what continues to be almost wholly lacking across the state, she said, is planning for the relationship between the adoptive and biological families after adoption.
“Right now,” she said, “we have no incentives for this and often no level of awareness.
“There’s also an attitude of ‘You’re a bad parent. You don’t deserve to be part of your child’s life.’ We lose sight that it’s not for the benefit of the parent. It’s for the benefit of the child … We can sever people’s rights but we don’t have the right to sever their relationships.”
Rachel Blustain is the editorial director of Rise, a publication written by and for parents involved in the child-welfare system.
