H. Elenore Wade
86 Geo. Wash. L. Rev. 869
Every year in the United States, state child welfare agencies receive millions of reports of suspected child neglect. The families involved in these reports are often first subjected to government interference in the legally protected parent-child relationship on the basis of “neglect,” a legal concept that lacks an intent standard and is often difficult to separate from a parent’s poverty and consequent inability to provide for a child’s physical needs. Children of families experiencing homelessness and housing insecurity are especially vulnerable to removal to foster care due to their lack of safe housing. After removal, it becomes increasingly difficult for a homeless parent to hold onto his parental rights while his child languishes in foster care, often with a caregiver who is a complete stranger. Although federal law requires states to make reasonable efforts to prevent removal or return a child to her home, reasonable efforts rarely include housing assistance. Meanwhile, states receive uncapped federal funding for foster care services, which include room-and-board payments to foster homes. Providing uncapped funding for foster care but little meaningful assistance to a child’s parent stacks the deck in favor of termination of parental rights in cases where the primary barrier to family reunification is a lack of safe housing.
Even for the small number of children in foster care for whom adoption is the best or only option, the number of adoptive families remains low despite efforts at the federal and state levels to encourage adoption. Congress continues to approach the problem by attempting to make adoption quicker and easier in order to increase the supply of available adoptive families, but there continues to be an enormous shortfall in the availability of adoptive homes for children in foster care. Furthermore, entry into foster care—even for a few days—is an adverse, disruptive, and jarring experience for children and families that should be avoided whenever possible. By reducing the number of children removed from their homes in the first place and therefore reducing the demand for adoptive families, the law can reduce the disparity between the number of children awaiting adoption and the available adoptive homes, promote racial and class justice, and breathe life back into the constitutional right of poor but otherwise fit parents to raise their children as they please. Requiring reasonable efforts to include housing assistance will prevent removals, and federal funding can be repurposed to serve the stated goals of child welfare law.
