Where Are the Reasonable Efforts to Enforce the Reasonable Efforts Requirement?: Monitoring State Compliance Under the Adoption Assistance and Child Welfare Act of 1980^
By 1980, the federal program supporting the state-administered foster care system stood on the brink of implosion. In the preceding 10 years, the number of children in federally assisted AFDC/Title IV-E foster care(1) had spiraled from approximately 8000 to more than 100,000.2 This twelve-hundred percent increase stemmed, in large part, from the tremendous number of children involuntarily removed from their homes and placed into foster care as a result of allegations of abuse or neglect.3 Fueling this meteoric rise were state child welfare officials who pursued broad policies grounded almost exclusively in child removal proceedings rather than in family intervention initiatives.4 Frequently these policies worked to the detriment of the affected children because, quite frequently, the states could not support the burgeoning foster care population.5 Ultimately, these state-governed foster care policies served as a primary catalyst for the foster care explosion-a situation that, by the late 1970s, resulted in many children being removed unnecessarily from their homes.6
In response to this foster care crisis, Congress passed the Adoption Assistance and Child Welfare Act of 1980 (AACWA).7 This Act attempted, among other things, to encourage states to shift foster care policies away from "removal-only" strategies and toward programs emphasizing alternative types of rehabilitative services for families.8 To accomplish this, AACWA established certain criteria that state agencies must meet in order to receive federal funding.9 The reasonable efforts requirement ranks among the most important. This requirement mandates that-in child abuse and neglect cases involving children who qualify for AFDC-state youth court judges render a "judicial determination" acknowledging that the state has engaged in "reasonable efforts" to prevent the unnecessary removal of children from their homes.10 Unfortunately, the reasonable efforts requirement has not served as the broad protective device for children that Congress originally envisioned primarily because the U.S. Department of Health and Human Services (HHS), the federal administrative agency charged with ensuring state compliance with AACWA, has failed to adequately enforce the law.11 Thus, although Congress enacted AACWA to curtail federal reimbursements to states for inappropriate removals, HHS's current enforcement policies continue to provide states with virtually the same level of access to federal reimbursement dollars as they enjoyed prior to the passage of AACWA.
Since 1980, commentary focusing on AACWA has examined several key issues: the lack of enforceability of the state-plan portion of the law and the application of requirements concerning reunification efforts following foster care placement;(12) the overall lack of federal guidance in determining what state-based services meet the undefined reasonable efforts threshold;(13) and the need to forego the reasonable efforts requirement for situations involving children whose lives are threatened by dangerous family members.14 Recently, Congress addressed several of these concerns by passing the Adoption and Safe Families Act of 1997 (ASFA)'5legislation that, by offering somewhat greater guidance regarding the definition of reasonable efforts, grants states more flexibility to remove children living in extremely dangerous and abusive home environments.'6 While important, the legislation still leaves a significant shortfall in AACWA, particularly as it applies to the involuntary placement of AFDCqualifying children (at least those belonging to families not affected by ASFA) into foster care. The most critical omission in ASFA is that it does not address the enforcement problems inherent in the judicial determination language of 42 U.S.C. sec 672(a). …