Public Law 96-272 and Its Effects
on the Field of Public Child Welfare
John T. Oeffner
University of Missouri-Columbia
Social Work 402
This paper will provide an analysis of the Adoption Assistance and Child
Welfare Act of 1980, also known as Public Law 96-272 (P.L. 96-272). P.L.
96-272 is important because it changed the focus of public child welfare
from breaking up families (often leaving the children to grow up in foster
care) to a focus on prevention of placement and reunification. If reunification
is not possible then permanency through adoption or legal guardianship
becomes the goal. This paper will accomplish four objectives: (1) provide
a legislative analysis including the history, events, and people that led
to the passage of P.L. 96-272, (2) summarize three key aspects of the law,
(3) discuss some of the current effects that the law is having on the field
of public child welfare, and (4) propose changes to the law to make it
The period of time prior to the passage of P.L. 96-272 was a time of massive social upheaval in America. The government was being questioned at every turn. Events contributing to this questioning were the Vietnam War, the shooting of protesters at Kent State, the Watergate hearings, and Nixon's resignation. The aforementioned events came after a period in American history where government decisions were looked at unquestioningly by the general population. Added to this questioning of the government's decisions were the movements related to human rights. There were movements that sought things such as women's rights, prisoner's rights, reproductive rights, Indian's rights and the beginning of the children's rights movement. The fledgling children's rights movement was aided in 1965 by the Supreme Court decision In re Gault. In its decision the Court extended Constitutional protection to children, particularly the Due Process Clause (Pine, 1986).
Families, at this time in history, were also undergoing changes. There were more single parent families than ever before. This is attributed to the dramatic increase in the incidence of divorce and increased births out of wedlock. Pine (1986) notes that there was a doubling in the number of divorces from 1960 to 1970. An increase from 5.3% to 10.7% of all births were to unmarried women the resulting statistic was that one in eight children were living in single parent households. At this time women were entering the work force at increasing rates.
Adoptions was another area related to the family that was changing. The number of couples, fertile and infertile, wanting to adopt children, particularly healthy white infants, increased. There was a decrease in the number of white infants available due to the legalization of abortion, the use of contraceptives, and the destigmatization of illegitimate births. To make up for the decrease in the number of white infants available there was an increase in the number of transracial adoptions. This trend was short-lived due to the efforts of black social workers and Indian rights advocates. A push to encourage the adoption of older and disabled children, or sibling groups was the next response to the lack of adoptable children. However, most couples still preferred to adopt infants. The resulting issue of black market adoptions was a motivating force for the development of federal adoptions policy (Pine, 1986).
According to Pine (1986) there were three Congressmen who were instrumental in the development and passage of P.L. 96-272. The first Senator to take a stand on children's issues was Walter Mondale from Minnesota. In 1971, Mondale created the Subcommittee on Children and Youth. This subcommittee did not have much activity until 1973 when it held hearings on its first bill. The subcommittee began hearings on adoptions and child welfare reform in 1975. The second Congressman to address the issue of children was Representative George Miller of California. His focus was on the issue of public child welfare reform. He wanted the child welfare programs to focus more on preplacement and prevention services rather than foster care. The third congressman was Senator Alan Cranston and his focus was that of adoption reform. Cranston was spurred on by the reports of black market adoptions. Senator Cranston proposed several bills that were focused at reforming the public adoptions policies (Pine, 1986).
In 1978 the bills that would finally become the Adoption Assistance
and Child Welfare Act of 1980 were introduced in the House of Representatives
and Senate. Senator Cranston introduced S. 1928, different in many ways
from the bill (H.R. 7200) offered in the House by Representative Miller.
By late 1979 the Senate and House had each passed their own versions of
adoption and child welfare reform legislation. The Conference Committee
reached agreement on a compromise bill in April of 1980. Congress voted
and passed the legislation on June 13, 1980. President Carter signed the
bill into law on June 17, 1980.
Summary of P.L. 96-272
The Adoption Assistance and Child Welfare Act of 1980 was designed to
reform the public child welfare systems. It has three distinct aspects
that were designed to initiate reform. The first aspect is that it made
the public child welfare systems accountable to the federal government
and to the families they serve. Secondly, it changed the way in which public
child welfare was funded from an emphasis on foster care to an emphasis
on prevention of placement, reunification, or another permanent placement.
And, the third emphasis was that it created adoption subsidies for persons
who would adopt the previously considered unadoptable children in the system.
The families the public child welfare systems serve are affected by
the second area of accountability that the Act addresses. P.L. 96-272 requires
that "reasonable efforts will be made (A) prior to the placement of
a child in foster care, to prevent or eliminate the need for removal of
the child from his home, and (B) to make it possible for the child to return
home" (P.L. 96-272, Sect. 471 (a) (15)). By requiring that reasonable
efforts be exhibited, the family has been given the right to have treatment
made available to them that could prevent placement or promote reunification.
Another way in which the Act made the states accountable to families is
that it required the development of case plans which were to be reviewed
by either administrative panels or judicial hearings. The administrative
review panels are to be open to the parents of the child in the state's
care. This requirement allows the parents to be a part of the treatment
planning process and it gives them the opportunity to discuss their progress
(P.L. 96-272, 1980).
Changes as a Result of P.L. 96-272
There have been many changes that have been a result of the Adoption Assistance and Child Welfare Act of 1980. This section will briefly cover five issues of change that have occurred since passage of P.L. 96-272. First discussed is a study by Samantrai (1992) that explored how states have changed their practices in response to the law. Next a study by Abramson (1991) on the use of court-appointed special advocates to help in the permanency planning of minority children is reviewed. Third, the programs of family preservation and family reunification both of which provide intensive services that are meant to keep families together are described. Fourth, there is a discussion of how P.L. 96-272 fails to address primary prevention issues due to the emphasis placed on permanency planning. Finally, an analysis is made of Suter v. Artist M. which tested the reasonable efforts clause of P.L. 96-272.
In Samantrai's 1992 study states were found to have changed their public child welfare practices after the passage of P.L. 96-272. He examined four areas of services to determine what kind of change had been made. The four areas of services were (1) Primary Prevention, services available to all children and families; (2) Preplacement Prevention, services provided in child abuse and neglect cases which deter the need for removal of the child; (3) Reunification, services provided to the child and family to promote rapid reunification; (4) Permanency Planning, services designed to find alternative permanent families for children unable to be reunified. This study found that of the 34 states that responded to the survey there had been an increase in the number of states that were providing all four categories of services. The most dramatic increase reported by Samantrai was in the category of primary prevention. The results showed a fifty percent increase in the number of states providing primary prevention services between 1978-79 and 1985-86.
P.L. 96-272 places an emphasis on the activities of permanency planning for children. A study by Abramson (1991) examined the use of court appointed special advocates (CASA) in Fresno, CA. The CASA's were studied to determine their effectiveness in the permanency planning of minority children. CASA's are specially trained volunteers that are appointed by the Juvenile Court to represent children in the foster care system. Abramson concluded that CASA's were effective in developing and monitoring of permanency plans. They were also shown to be effective in that children who had a CASA and were returned home were less likely to be placed in foster care again.
Another set of programs that were developed as a result of P.L. 96-272 were those of Intensive Family Preservation (FPS) and Family Reunification (FRS). These services were developed in the areas of preplacement and reunification. Both of the programs are built from similar models. Each program emphasizes small case loads (two to three cases per worker), time limited cases (between one and five months), family centered orientation. With services provided in the home, and intensive work with the family (often the social worker available to the family twenty-four hours a day, seven days-a-week) (Pine, Warsh, & Maluccio, 1993; Whittaker, Kinney, Tracy, & Booth, 1990). There has not been much research on whether or not children returned to the home through FPS or FRS remain there; therefore, it is difficult to determine whether the services are effective by that measure.
Pelton (1991) examines the issue of permanency planning in child welfare practice and its failure. The main premise of Pelton's argument is that permanency planning fails because primary prevention takes a minor role and does not receive appropriate funding. Pelton contends that the foster care population is increasing because the number of children entering foster care is larger than the number of children leaving the system. Stressed by Pelton is the fact that children are moving in and out of the foster care system repeatedly. Pelton notes that in fiscal year 1985 276,000 children were in foster care on one day at the end of the year; 460,000 children had experienced foster care during that year; and, twenty-five percent of children who entered care had been in care at least once during the previous twelve months. It is through statistics such as these that Pelton concludes the public child welfare system must be revamped and focus more on primary prevention.
In the continuing struggle to improve the public child welfare system,
children's rights advocates have developed the strategy of filing suit
against states to correct their foster care systems. Since the passage
of P.L. 96-272 states have been sued on the basis of violation of the reasonable
efforts provisions of P.L. 96-272 and 42 U.S.C. Section 1983 (a civil rights
statute). The first case of this kind to reach the U.S. Supreme Court was
Suter v. Artist M.. The case was a class action suit filed against
the state of Illinois, claiming that the state was not exercising reasonable
efforts. This claim was based on the fact that the state was not assigning
social workers soon enough to new foster care cases and to cases where
the worker had transferred the case. The Supreme Court, in a 7-2 decision,
ruled that the reasonable efforts language in P.L. 96-272 did not contain
an implied right for individuals, harmed by state non-compliance, to sue
for state compliance with the statute. This decision hampers the ability
of child welfare advocates to sue for change within the public child welfare
system (Kopels & Rycraft, 1993).
Suggestions for Change
The Adoption Assistance and Child Welfare Act of 1980 is a definite milestone in the area of public child welfare. The law was crafted with the efforts of legislators and interest groups on both sides. In a political atmosphere laws are often a compromise among the many sides of an issue. In the case of P.L. 96-272 this author sees two issues that should be readdressed to improve the overall strength of the law. The first issue is that of redefining the "reasonable efforts" clauses. The second issue is that of adding more emphasis to primary prevention activities.
Reasonable efforts can mean many things to many people. Currently, the definition of reasonable efforts is left up to the states to develop then it is approved by the Department of Health and Human Services (DHHS). The definition offered by DHHS said that the state must identify the services offered and provided to the child and family to prevent removal or promote reunification. This definition does not provide a guideline to the individual social workers, child welfare agencies, or juvenile court judges that have to make the decisions of whether reasonable efforts have been exercised (Seaberg, 1986). In James Q. Wilson's book Bureaucracy (1989), he notes that goals must be clear in order for the front-line workers to derive their tasks from the goals. Wilson also cautions that if the agency's goals are not well defined the workers will derive their tasks from each other and their own values. This author believes that this is true of regulatory definitions also.
In the definition proposed by this author there are four criteria to meeting reasonable efforts. The first is that there must be evidence of "sustained service activity" that shows the social worker(s) continued attempts to engage the family in services, monitored follow through, and removed blockages to effective implementation (Seaberg, 1986). The second criteria is that the services provided to the family be relevant to the problem that was determined to cause the removal of the child(ren) (Seaberg, 1986). Third the family problem which resulted in the removal of the child must be correctly recognized (Seaberg, 1986). This third aspect is important because if the problem is defined inaccurately, the services will be irrelevant, and the family will not be affected by the treatment. The fourth criteria of the definition judges the state as a whole rather than individual cases and social workers. This part examines the diligence of the state in encouraging the development of services throughout the state. Many times clients in rural areas of the state must travel long distances to receive the services that are more easily accessible in urban areas.
This new definition does not mandate what services must be provided; however, it does give guidance in what reasonable efforts means. Social workers would not need to be afraid that their professionalism was being infringed upon, because they still have the ability to make treatment choices. It would seem that social workers would welcome a definition that gives guidance, thereby avoiding accusations of providing less than reasonable efforts to help families and children.
This redefinition of reasonable efforts would not be considered in the current Congress and among the states. The current Congress is examining the possibilities in which it can withdraw from regulating the states' behaviors. With the push toward block grants, P.L. 96-272 is in jeopardy; therefore, redefinition of reasonable efforts would most likely not be considered. The states would not be in support of a more deeply defined reasonable efforts clause, as it would result in a loss of freedom to make their own definitions and the states may interpret it as an increase in cost of services (specifically the portion regarding developing services throughout the state). This author would propose that the states seek a Medicaid waiver that could add funding to the development of services in under served areas of the state.
The second area of improvement that should be made to P.L. 96-272 is an increased emphasis on the aspect of primary prevention. Primary prevention is the group of services that are available to all families regardless of the fact that the family has had child abuse and neglect reports or not. These services could range from provision of parenting skills classes to improving housing for high risk families. According to Pelton (1991), studies have shown that poverty and the risk of child abuse are related; therefore, primary prevention should include increased services to families suffering from poverty conditions. Primary prevention could also include the sensitization of teenage mothers to the effects of child abuse and how they can avoid abusing their children. This issue of change is the most ethically sensible because it provides protection to children (from abuse) and families (from unwarranted intrusion) in the least restrictive means possible.
This area of improvement to P.L. 96-272 would also be opposed by the
Congress and the states. It would most likely be opposed on the grounds
that it would be too expensive to implement primary prevention programs
and over disagreements about the definition of what constitutes primary
prevention. Public child welfare systems have adjusted to the reasonable
efforts requirements for preplacement services by developing family preservation
programs and the states have noted these programs represent fiscal savings
over foster care placement. The states are even developing family reunification
services which could also promise savings and meet the need for reunification
services. This author is confident that the states could develop services
to families that could meet primary prevention needs that also show a savings
over foster care placement.
In conclusion, the Adoption Assistance and Child Welfare Act of 1980
is a landmark law in the field of public child welfare. It was developed
through the efforts of legislators and advocates on both sides of the child
welfare issue. P.L. 96-272 developed a balance between the protection of
children by placing them in foster care and the need to protect the family
from unwarranted intrusion. By using changes in federal funding the Congress
was able to use a "carrot and stick" approach to get the states
to move from foster care to preplacement and reunification services with
an emphasis on permanency planning for the children. This law is not perfect;
however, it was a start. The changes proposed in this paper are a start
also. The focus of any changes to P.L. 96-272 should keep in mind that
those being addressed are the most helpless and "voiceless" of
Abramson, S. (1991). Use of court-appointed advocates to assist in permanency planning for minority children. Child Welfare, 70, (4), pp. 477-487.
Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 501-535.
Kopels, S., & Rycraft, J. R. (1993). The U.S. Supreme Court rules on reasonable efforts: A blow to child advocacy. Child Welfare, 72, (4), pp. 397-406.
Pelton, L. H. (1991). Beyond permanency planning: Restructuring the public child welfare system. Social Work, 36, (4), pp. 337-343.
Pine, B. A. (1986). Child welfare reform and the political process. Social Service Review, 60, (3), pp. 339-359.
Pine, B. A., Warsh, R., & Maluccio, A. N. (eds.) (1993). Together again: Family reunification in foster care. Washington D.C.: Child Welfare League of America.
Samantrai, K. (1992). To prevent unnecessary separation of children and families: Public Law 96-272--policy and practice. Social Work, 37, (4), pp. 295-302.
Seaberg, J. R. (1986). "Reasonable efforts": Toward implementation in permanency planning. Child Welfare, 65, (5), pp. 469-479.
Whittaker, J. K., Kinney, J., Tracy, E. M., & Booth, C. (eds.) (1990). Reaching high-risk families: Intensive family preservation in human services. New York: Aldine de Gruyter.