Fostered or Forgotten is a Teen Vogue series about the foster care system in the United States, produced in partnership with Juvenile Law Center and published throughout National Foster Care Month. In this feature, Jennifer Rodriguez, the executive director of Youth Law Center, and Jenny Pokempner, the child welfare policy director at Juvenile Law Center, provide a summary of the evolution of the child welfare system.
Those involved in working with children and youth know more today than we ever have about child and youth development. We know what children need to grow up healthy, and how, for example, hardships like trauma can impact their development and future. We have a staggering amount of knowledge about the damage that childhood trauma can wreak on developing bodies and minds, as well as what can help youth overcome adversity and build resilience and strength. Research confirms that children need relationships with adults who love them unconditionally, strong connections within the community, and exposure to enriching experiences. For children who have experienced abuse or neglect, nurturing relationships and enriching experiences are actually critical prerequisites for healing brains, bodies, and spirits.
Across the United States, child welfare systems are charged with responding to help young people who experience abuse or neglect. Until recently, these systems have frequently structured their practice around keeping children safe from physical harm and avoiding risk. They have not taken up a charge to support nurturing families or healthy childhoods. Providing children and youth safety and protection is fundamental, but most parents and societies aspire to provide their children with much more. As lawyers for children, we think a lot about what justice means for children and families who come into contact with the child welfare system. Justice does mean protecting the rights of children and families and making sure children are protected when they are in state care. Cornel West said that “justice is what love looks like in public.” For children in foster care, this type of justice has been elusive when only safety and protection dominate child welfare policy and practice and when we fail to ignore how systems of protection sometimes do children significant harm.
The system first started as a means to manage the needs of poor children without burdening society.
The child welfare system in the U.S. has a complicated evolution. The United States has made limited investments in what we know children need and what their parents need to support them: high-quality public schools; accessible, affordable, and high-quality child care and healthcare; and safe and affordable housing. The U.S. spends the least out of 10 developed nations on benefits that support families and has the lowest child well-being ranking and the highest number of child maltreatment deaths.
It was not until the 1800s that meeting the needs of children was seen as a social problem for which an organized response was required. Prior to that time, the treatment and care of children was left largely to their parent’s discretion and mostly deemed a private matter. The Poor Laws from England were transplanted to the United States, and when intervention in the family did occur, it tended to be related to the poverty of the family rather than child maltreatment. To the degree that cases of extreme child maltreatment were addressed in an official manner, it was through the criminal law. This was in large part due to a longstanding view that parental authority includes the disciplining of children, which could mean even harsh and brutal treatment.
More structured systems developed with the growth of industrialization, urbanization, and a changing view on children and individuality. The Houses of Refuge was one of the first institutions developed specifically for the placement of children. These institutions were for children who were neglected or could not be cared for by their parents, but were mostly for those who were on the streets, did not have a parent or caregiver, or committed petty offenses. These were “vagrant” children and the treatment they received in the Houses of Refuge could be extremely jarring. By the end of the 1800s, courts had authorized the state’s power to develop these institutions and the laws that gave the state broad power to move children to these facilities and keep them for long periods of time. This is the concept of the parens patriae — parent of the state — and stands for the principle that the state should step in to care for those who cannot care for themselves.
Then the “child savers” emerged.
In the mid-1800s, another institution shaped the child welfare system: the Children Aid Societies. Private agencies developed industrial schools for children. They also included “orphan trains,” which were established to transport children to families in the midwest and western states. In the 1800s, Children’s Aid Societies began to place children — mostly boys — with families that were not their own, usually for the purposes of working. This response was less about child maltreatment and more about the concern and fear that was raised by growing poverty in cities and a changing economic structure. “When viewed in the context of protection for abused and neglected children, it did not represent progress. It did represent continued intervention, but little welfare, for neglected poor children,” Marvin Ventrell, JD, former director of the National Association of Counsel for Children wrote in 1998.
While the “child savers” believed that they were rescuing children, they were also providing a labor force to regions of the country that had high labor needs. The orphan trains and the work of the Children’s Aid Society reflected a belief that by removing children from urban poverty and placing them with new people in places far away from the ills of the city, they would have better futures. This belief was also seen in the treatment of Native American children, many of whom were removed from their homes, placed in boarding schools, and stripped of their culture as a means of forced assimilation. The Indian Child Welfare Act (ICWA) was enacted in 1978 to prohibit this system of removing native youth from their families. Nevertheless, even after the enactment of ICWA there continue to be concerns that native children are overrepresented in the child welfare system.
Concerns with child abuse and neglect started to play a part in the system.
Henry Bergh, the head of the American Society for the Prevention of Cruelty to Animals, established the New York Society for the Prevention of Cruelty to Children (NYSPCC) in the late 1800s as a means to address both the continued problem of poor children on city streets and cases of extreme child abuse or maltreatment. Before that time, it was rare that child maltreatment was dealt with in court other than in the most extreme cases, and then, only in criminal courts. In these rare cases, a parent may have been fined or punished for the harm that was caused, but how the child would be cared for or how their harm would be treated was not a subject of public concern. Bergh and fellow Progressive Era reformers began to focus on protecting children both within the family and from the harm of the streets. These efforts occurred alongside child labor reforms and reflected developing views on the obligation of society to protect children so they had an opportunity for a future.
One of the first cases of “child abuse” to be made public demonstrates some of the most troubling features that remain in the U.S. foster care system. Mary Ellen Wilson was born New York City around 1864 to an unmarried woman and was “indentured” to the home of her father and his wife by the local authorities. The family was supposed to report yearly to the town commissioners about the child, but had only done so twice.
After being placed in this home, Mary Ellen’s father died and she lived with her step-mother and her step-mother’s new husband, who physically abused and neglected her. Her neighbors heard the abuse and sought help from the Society to Prevent Cruelty to Animals. Mary Ellen’s step-mother was found guilty of assault and battery and sentenced to one year of hard labor.
After her case, SPCC chapters started to develop in most big cities across the country to respond to child abuse and neglect. This organization had quasi-judicial power to remove children from their homes and place them in foster care or institutions when their homes or care were deemed unfit. While the SPCC did attempt to assist parents in caring for their children, their authority to remove children was their most-marked feature and resembles the structure of our current child welfare system.
The federal government then got involved.
By the 1900s, America’s state and federal courts had validated the authority of the state to step in and remove children from their homes to respond to abuse and neglect under the parens patriae doctrine. Foster homes and institutional care remained the main response and there were concerns about the conditions children faced in these settings. Slowly but surely, the role of the federal government in child welfare was established.
The first White House Conference on the Care of Dependent Children occurred in 1909 in response to concerns about institutional placement of children. At this time, there was also growing recognition that childhood was a distinct phase in life and that child protection was an important role for society and the government. The U.S. Children's Bureau, the first department of the federal government devoted to the welfare of children, was created in 1912, and it remains the key federal entity in overseeing the administration of federal child welfare funds and issuing policies.
Decades later, the Social Security Act of 1935 was passed and included federal funds for child welfare services and began the connection between means testing and funding for child welfare systems. The federal government impacts how child welfare services are providing largely through the provision of funding, which is contingent upon following requirements of the Social Security Act.
And then in 1980, the enactment of the Adoption Assistance and Child Welfare Act solidified the structure for federal funding for child welfare systems and services and assured the involvement of the courts in overseeing this system. While requiring “reasonable efforts” to prevent placement and providing funds for in-home services to children and their families, there was always limited funding for these services but unlimited funding for foster care reimbursement for eligible children.
From the 1980s to the present, the federal child welfare law has been amended with the goal of system improvement. Many positive provisions have been enacted, such as increased support of kinship care and resources for older youth in foster care, but the core structure of the system has remained: removal from the home is the main response and the government’s financial investments are in out-of-home placement rather than in prevention or in services to strengthen families.
As of 2016, 437,465 children were in foster care in the U.S.. Of those youth, 117,794 were waiting to be adopted. About 20,000 youth “aged out” of the child welfare system without being returned home or placed with another family.
Looking forward, there’s hope.
Despite concerns with the harms institutional care poses to children, troubling models have persisted within child welfare that have been hard to shake despite evidence related to their ineffectiveness. And despite research consensus that institutional care interferes with child and adolescent development at every age, states have struggled with implementing the policies and practices to end use of this care model. Large numbers of youth, especially teens, are left to grow up in institutions where they do not get the attention, care, and consistent and supportive relationships they need to grow and learn.
Although developing a comprehensive safety net that values all children and all families and invests in their future seems difficult to imagine in these troubling times, it is possible. Advocates believe that Americans can choose to apply what is known about child development, family needs, human behavior, and social change to prioritize the lives of these children now.
New provisions of groundbreaking federal law, the Family First Prevention Services Act, were signed into law on February 9, hold promise to provide support for changing course by incentivizing the provision of prevention services and de-incentivizing the use of group and institutional care. State child welfare agencies, however, will need to work closely with families, youth, and communities to change their cultures, practices, and policies to deliver on the promise of this new law.
Community members play a critical role in supporting vulnerable families through difficult times, mentoring and providing resources to parents and youth in the child welfare system, becoming foster parents who work to reunify a family and nurture a child, and by honoring the families who dedicate their lives to caring for others. Community members can also tell lawmakers that investment in our child welfare system and in services that prevent children from entering the system is important to the whole community.
In a number of states across the country, birth families, foster families, youth in foster care, and dedicated caseworkers are working together with the support of child welfare leaders to prioritize parenting and focus on children’s needs through the Quality Parenting Initiative. Together, they are coming up with a new vision for a system that supports families, prioritizes healthy development, and ensures every youth has the connections, parenting, and experiences they need and is based on human dignity and respect. Youth and alumni of foster care are also leading the way in system reform: Juvenile Law Center’s youth advocates from Youth Fostering Change, California Youth Connection, Foster Care Alumni of America, and FosterClub have policy and advocacy agendas to serve youth and families in the system.
History has taught us that transformative change is only possible with our most intractable social problems when led by those who live the daily consequences of inaction. The futures of young people are at stake and deserve our commitment and investment.
Related: The Foster Care to Prison Pipeline: What It Is and How It Works
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