The “Reason Two” Theory for Tracking Failed Adoptions

There is a major blind spot in national data when it comes to the child welfare continuum, and it is on the back end. The federal government has never established a systematic way to collect information from states about the number of finalized adoptions of foster youths that “disrupted,” ending with a youth heading back to foster care.

The feds might soon be asking. And Youth Services Insider stumbled onto a potential way for states to answer.

A bill waiting for a date on the Senate floor would do exactly that. Within 12 months of the bill’s passage, the Department of Health and Human Services would be required to “promulgate final regulations providing for states to collect and report information regarding children who enter foster care because their adoptions or foster child guardianships disrupt or are dissolved.”

Here is why it’s a big deal: The last major attempts to even estimate how many adoptions disrupted took place in the 1980s and 1990s, in California and Illinois, and both suggested that about 15 percent of adoptions disrupted.

Those studies took place in an era when adoptions from foster care were just beginning an uptick, from about 15,000 in 1990 to 20,000 in 1994.

There have been 670,000 adoptions of children in foster care since 2000, an average of 51,500 per year. If that 15 percent disruption rate still holds, then 105,000 children have experienced their placement into a new family fall apart.

But the problem remains: How can states count disruptions? The Senate bill offers no insight, and it is trickier than it might sound because the finalization of the adoption is essentially the end of the “case,” as it were. And many times, the child’s name will change.

But one child welfare attorney pointed out to us that there is one lasting connection between the world of foster care and the world of adoptive families that could be used to track somewhere between 85 percent of all adoptions: Title IV-E Adoption Assistance.

After further research, we conclude that she could be right.

Adoption Assistance payments provide funds to States to facilitate the timely placement of children, whose special needs or circumstances would otherwise make it difficult to place, with adoptive families.

In practice, these payments are known on the state level as adoption subsidies and they apply to pretty much any IV-E eligible child.

The payments are a split between federal and state funds. Once adoption assistance starts, there are only three ways to end it:

  • 1) The child reached the age that the state cuts off adoption assistance (always 18 or over)
  • 2) The adoptive parents is no longer legally responsible for the youth, and has had parental rights terminated.
  • 3) It is proven that the adoptive parent is providing absolutely no support to the youth.

The first way would simply indicate that the youth has reached adulthood, either at 18 or 21, in the eyes of the state. The third way is incredibly rare, McCartney said, because almost anything can be counted as support.

So if a state can classify its terminations of adoption assistance to be sorted by “reason for,” it would be possible to see the number of payments that ceased for ‘Reason Number Two.”

Not only would it provide the number of disrupted adoptions, it would only count the ones permanently disrupted. A hypothetical: Adoptive parents who had a child re-enter foster care to access expensive mental health services, with the intention of reunifying with them, would not show up as a “reason two.”

By the way, that exact hypothetical was mentioned more than once at a Congressional briefing on post-adoption services a few years back.

Now, the “Reason Two” theory only works if the vast majority of children adopted from foster care are eligible.

  • 1) They are eligible to receive adoption assistance.
  • 2) They actually receive it.

In previous decades, number one was not the case, so number two definitely wasn’t. The eligibility for IV-E foster care and adoption assistance payments was contingent on the income of the child’s birth family.

For a state to claim federal foster care or initiate adoption payments related to a child in its custody, it had show that the income of the birth family was below a poverty level established in the 1996 Aid to Families with Dependent Children.

This is still the case for IV-E eligibility when it comes to foster care funding, although there is increasing interest in changing that. But by 2018, all of the youths adopted from foster care are eligible for IV-E adoption assistance, thanks to changes phased in after the Fostering Connections to Success and Increasing Adoptions Act.

So soon, all adopted foster youths will be eligible for adoption assistance. But using AA to track disrupted adoptions has nothing to do with eligibility; it depends on the payments actually taking place (and ceasing in some cases)

The national numbers suggest that nearly all of the children eligible for AA receive it. Following are the percentage of eligible children who connect to an adoption payment in recent years:

  • 2009: 88 percent
  • 2010: 90 percent
  • 2011: 90 percent
  • 2012: 92 percent

That rate, YSI, suspects, is high enough to provide a very rich national calculation of the adoption success rate for foster children, and even provide some insight on age and demographic breakdowns with minimal added effort.

The state-by-state breakdown for 2012 reveals that not all states would have a robust representation of its foster care adoptees. There are 10 states where more than 15 percent of the eligible adoptees do not receive assistance payments.

On the other hand, most the high-population states do connect AA with most eligible adoptees. Of the six states that finalized more than 2,000 adoptions – Calif., Texas, Fla., Mich., Ariz. and N.Y. – only Michigan (86 percent) had a rate lower than the national average.

So there it is, the “Reason Number Two” Theory for tracking failed adoptions. We would love to hear from readers with critiques or alternative theories!

Youth Services Insider is mostly written by Chronicle Editor-in-Chief John Kelly

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John Kelly, Editor in Chief, The Chronicle of Social Change
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  1. The Donaldson Adoption Institute, with funding from the Freddie Mac Foundation, has completed a study of post-adoption instability that will be published on our website at the end of April. We were able to gather some data on post-adoption re-entry into foster care and on adoption dissolution from states and commissioned an analysis of national AFCARS data. There is considerable new information in this study, so please look for it on our website very soon!

  2. Mr. Kelly’s proposes that disrupted adoptions be tracked by counting the number adoption subsidies that are cut off after a parent is no longer legally responsible for the youth and has had his or her parental rights terminated. This is a good idea in theory that, in practice, would dramatically undercount the number of failed adoptions. For his proposition to work, the agencies that administer the subsidy (in New York City, the Administration for Children’s Services, or ACS) would need to actually enforce that the subsidy was being used for the child’s care, and move to terminate the rights of adoptive parents who have put the child back in foster care and are not planning for the child’s return. In practice, the circumstances under which adoptive parents had their parental rights terminated is rare and has, to our knowledge, only happened a few times in New York City. (For further context around this issue, see this article:

    Our office, The Children’s Law Center New York, has been working to represent young people who are no longer in the home of their adoptive parent and who never plan to return. For some of these young people, another adult has stepped forward and received a final order of guardianship. Others are in the foster care system, and will likely age out without any stable adult in their life.

    A primary part of representing this population thus far has been learning everything about the adoption subsidy, and using that knowledge to assist clients of the Broken Adoption Project. Without exception, the broken adoption clients seen by the Project have known that their adoptive parent was receiving money for their support. Many of these young people have expressed a profound sense of outrage that an adult who no longer provides their care continues to receive government funds for their support.

    Around 98% of all foster care adoptions in New York are subsidized. Adoption subsidy payments continue until the child is 21. There are 3 narrow circumstances in which an adoption subsidy payment might be transferred or cut off: after the death of an adoptive parent, if the parent is no longer legally responsible for the child, or if the parent is no longer providing the child with any support.

    1) Death of Adoptive Parent

    The adoption subsidy is suspended upon the death of the adoptive parent. A young person can become his or her own payee of the adoption subsidy if he or she is over the age of 18 when his adoptive parent passes away. Otherwise, a new adult who becomes the young person’s permanent legal guardian can become the payee as long as he can provide the correct documentation. OCFS will draw up a new contract with the new legal guardian. Once the new contract is drawn up, the new guardian will receive a retroactive payment for the months that he was not receiving the subsidy.

    Once the subsidy has been transferred from the original adoptive parent, it can be transferred again. For example, the Broken Adoptions Project currently represents a client whose adoptive mother died when she was 10, who then began living with her father’s girlfriend. The father’s girlfriend became her legal guardian, and began receiving her subsidy. Now, the young woman lives with her grandparents, and they will soon become her permanent legal guardians. Because her original adoptive parent has passed away, the subsidy can be transferred to any subsequent legal guardians.

    2) No longer legally responsible

    The second situation in which an adoption subsidy can be suspended is when the adoptive parent is “no longer legally responsible” for the adopted child and has had their rights terminated. Under the current interpretation of the law, this category does not allow the subsidy to be terminated when an adoptive parent places a child back into foster care, when a child goes into a juvenile delinquency facility (even if such a placement is due to a PINS petition filed by the adoptive parent), or if another adult receives a final order of guardianship for that child. If the child is placed back into foster care, the adoption subsidy is decreased to a “basic” rate (around $800 a month.) Anecdotal information suggest that there is no clear protocol followed by ACS and FCLS in terms of filing child support cases against parents who place their adopted children back into care on either PINS petitions or voluntary placements. It seems that these child support cases are more commonly filed in upstate New York.

    If no child support case is filed, an adoptive parent in NYC continues to receive payments for a child, and can decide for him or herself how much to turn over each month. The “Voluntary Placement Agreement” that a parent is fills out when placing a child back into foster care asks the parent to fill in “the amount of money they agree to pay” while the child is in foster care. Under that line, the document states “I understand that I may be referred to the Office of Child Support Enforcement and, if I am, I may be ordered to pay an amount of child support other than what I have written on this agreement.” Clearly, if no child support cases are filed, parents are left with complete discretion about how much money to turn over. Since the document is used for both biological parents and adoptive parents, the document makes no reference to an adoption subsidy, or suggests that the amount of money that a parent turns over should be commensurate with the adoption subsidy.

    In one of the Broken Adoption Project’s current cases, the client’s adoptive mother has placed her back into foster care on a voluntary instrument. The adoptive mother wrote on the “Voluntary Placement Agreement” that she agreed to pay $400 a month, despite receiving a subsidy of $821. In court, she stated initially that she was keeping the rest of the money for her older, biological daughter. On a later court date, she stated that she couldn’t turn over more of the money because the adoption subsidy was her only income, and that her public housing benefits considered the full subsidy amount in calculating her rent. The referee suggested to the ACS attorney on the record that they needed to be filing child support cases for every adoptive parent who put their child back into care. She indicated that she provides notice to the Office of Children and Family Services every time she sees an adoptive parent place the child back into foster care, and was under the impression that the subsidy would therefore be terminated. However, as it stands, many parents do not lose the subsidy and also do not face child support enforcement after placing their child in care.

    Each year it is the adoptive parent’s responsibility to update the agency yearly regarding the child’s educational status. However, there is no affirmative obligation placed upon the agency to track the progress of the family. The agreement essentially assumes that the adoptive parent is going to be forthcoming about the parent’s relationship with and care of the child. Although it is possible that the failure to provide the educational status update would alert officials to investigate an adoptive child’s situation, we have been unable to verify with ACS that they actually follow up on such a failure and even what would happen as a result and how that would occur. Additionally, the state is not required to verify educational documents submitted. Finally, when ACS was asked if they had ever terminated a subsidy without an adoptive parent’s permission, they were unable to identify even one instance where this had occurred.

    3) No Longer Providing Any Support

    ACS’s post-adoption subsidy unit indicates that it’s seen around 500 young people in the past 3 years who allege that their adoptive parents are either providing limited or no support. In that situation, the unit sends out a letter to the parents, informing them of their legal obligation to support the child. Two social workers in that unit then do outreach to the adoptive parent, and try to get them to come to some sort of agreement on a reasonable amount of support. Typically, the amount they negotiate is significantly less than the entire subsidy, even when the child is not living in the home. When negotiation fails, the social workers advise the child to go to family court and file for child support. The social workers try to keep matters out of court. They have stated that they try not to upset the adoptive parent, because if the adoptive parent cuts off the subsidy (by faxing a notarized statement to ACS stating that they no longer wish to receive the subsidy) the child might not get anything. Even when the child alleges that they are receiving no money at all from the adoptive parent, the first step is mediation, not cutting off the subsidy and informing the parents of their fair hearing rights.

    The young people represented by the Broken Adoptions Project are deeply upset by the knowledge that the state is subsidizing their care for someone who doesn’t care for them—in extreme cases, sometimes even subsidizing the care of an adult who was abusive or who shut them out of the home. It is surprising to these young people that their only recourse is to file for child support, and that the adoptive parent can continue to collect government funds without repercussions. As a result, our office is beginning to file for child support on behalf of these young people, and has had some success with two of these cases.

    Mr. Kelly is entirely correct in asserting that adoption failures must be tracked–but if tracking is to be tied to the subsidy, there must be a far more rigorous system in place to ensure that these subsidies are not fraudulently collected. The current manner in which the subsidy is administered, at least in New York, simply assumes that adoptive parents are providing the child with a “forever home” and are using the subsidy for that child’s care, even when the reality suggests that some parents are doing neither. With the current system, it is insufficient to simply count the number of subsidies that are being terminated. Thousands of broken adoptions will remain uncounted if this tracking system is used.

    Dawn J. Post, Esq.
    Sarah McCarthy, Kirland and Ellis Fellow
    The Children’s Law Center of New York

    The views are those of the authors and not the organization.

  3. Tracking this is essential. Reason two is not adequate. Very few parents who return their kids into foster care after an adoption ever have their rights terminated. But nearly all receive a subsidy. A better measure would be to track all youth who enter care after an adoption. Child welfare systems can track that, even if they aren’t allowed to discontinue the subsidy. Maybe when the public sees how much money we waste by paying for foster care while also paying stipends to parents that have abandoned their children, we may realize that investing in comprehensive post-permanency/post-adoption supports is worth it.

    • I agree this is the best way to track these numbers. I often called them “re-entry” children but our state, Florida does not track them. The numbers will be higher than people think.
      Our local agencies don’t want these numbers to be this exact because it means services on the front end and post adoptively are lacking.
      They continue to count disruptions ( before finalization) and dissolutions ( terminated rights or death which end subsidy).

  4. I am totally in agreement with the move towards data collection on disruptions, and believe that it should capture and distinguish data from all adoptions; foster care, private and international. The general absence of post-adoption services and resources across the nation, and specifically my home state of California, is due in part to a lack of appreciation of the turmoil faced by many adoptive families, especially as the children enter the teen years. So many children come to their “forever family” with brains wired for trauma survival, inter-uterine abuses and attachment impairment, yet there is little help for families from traditional therapies and community mental health services. For many reasons, documented in “The Seven Core Issues” of Adoption”, Silverstein and Kaplan 1982, parents experience personal emotional challenges that can frequently mask the true trauma-related issues from helping professionals.

    Without data collected at foster care intake, or even earlier at child welfare referral, the needs and struggles of families will remain shielded from view and the dearth of relevant support services will consequently continue.

  5. As a child welfare administrator, I’m troubled that 10% of the children in my care are entries from adoptive homes (to clarify, most not finalized by my own agency. Counting by subsidies is problematic for many reasons, including the fact that terminating federal subsidies can’t be done unilaterally wo/ parental consent unless their rights are terminated. As a rough measure I use caregiver relationship on entry. That gives me all adoptions, not just those finalized by the public agency…but perhaps we should be capturing all adoptions. If we don’t capture the data, we will never be able to identify factors that should be addressed. Really heart breaking when youth re-enter b/c someone thought it was a good plan for the child to be adopted by a much older parent…who is now in a nursing home/has Alzheimer’s/medical conditions, etc., yet refusing to place with much older parents considered age discrimination!

    At any rate, again want to emphasize importance of collecting the data.

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