Journal Issue: Children, Families, and Foster Care Volume 14 Number 1 Winter 2004
Family Reunification in Law, Policy, and Practice
Family reunification can be viewed from multiple perspectives, such as the body of law that delineates parental rights and the implications of the law on public policy, the practices and decision-making processes child welfare agencies engage in when deciding whether to return children to their birth parents, and child and family factors that may affect the possibility of successful reunification. The following sections discuss family reunification in all of these contexts.
The bedrock assumption underlying child welfare policy is that children are better off if raised by their natural parents.1 This preference for the role of natural parents is codified in law and provides the rationale for retaining reunification as a core outcome for children placed in foster care.2 Parents have the fundamental right to direct the care, custody, and control of their children, and it is presumed that, until or unless proven otherwise, they will act in a child's best interest.3
Although the U.S. Supreme Court has long recognized the autonomy of the natural family and grants wide latitude to parents, the court does acknowledge the interest of the state to protect and promote children's welfare and to assure that children have permanent homes.4 The exercising of this authority emphasizes that a child is not the absolute property of a parent, although state action is limited to situations in which parents are proven unfit or unwilling to perform parental duties and obligations.5 Because the presumption favoring parents has to be set aside before any other caregiving arrangements are pursued (assuming the parents do not consent), reunification has to remain the primary goal of child welfare services until a permanent decision regarding parents' abilities to carry out their responsibilities can be made.
Parental rights regarding children are frequently construed as a bundle of rights and responsibilities pertaining to custody, medical treatment, educational and religious decision making, physical and emotional care, and financial support. Generally, the parent's rights are comprehensive and predominate over those of the child and third parties, including the state and relatives of the child. However, the bundle is divisible, and some rights can be conveyed to others for a limited duration, even as natural parents retain other rights. For example, parents can convey guardianship of a child to a third party during a planned absence. The guardian assumes day-to-day responsibility for the child (food, clothing, and shelter), but parents retain the right to make certain decisions on behalf of the child. Only in the extreme circumstance of termination of parental rights do the natural parents totally relinquish the bundle.
For a court to challenge a parent's fundamental right to the custody of his or her child, there must be a showing of parental unfitness. Even when parental unfitness is demonstrated, with few exceptions there is a residual presumption that it is in the child's best interests to be in the custody of the parent. Thus, subsequent to the determination of parental unfitness, the court conducts a separate best interests analysis, determining whether it would be in the best interest of the child to remain with the parent or to be placed out of the home. The legal standards for unfitness and best interests of the child are neither clearly defined nor exact. A court must balance competing interests (parents, children, and third parties) and examine various factors as it weighs the facts of an individual case in making its determination.
Generally speaking, the legal framework for thinking about child rearing creates a strong presumption in policy that favors parents' rights to raise their children.6 This attitude is reflected in three major pieces of social legislation governing the nation's child welfare system: the Indian Child Welfare Act of 1978, the Adoption Assistance and Child Welfare Act of 1980, and the Adoption and Safe Families Act of 1997.7
Of the three acts, the Indian Child Welfare Act of 1978 (ICWA) contains the strongest language in favor of family preservation. ICWA requires proof by clear and convincing evidence for any temporary foster care placement and proof beyond a reasonable doubt for termination of parental rights.
The major goals of the Adoption Assistance and Child Welfare Act of 1980 (AACWA) were to prevent the removal of children from their own homes by requiring states to make reasonable efforts to maintain them there or, if children had to be removed for their safety, to reunite them expeditiously with their parents.8 AACWA required a judicial determination that reasonable efforts had been made or offered to prevent placement or to enable the return of children to their homes. It also contained fiscal incentives for states to avert and shorten foster care placements and to encourage permanency planning for children.
Although the Adoption and Safe Families Act of 1997 (ASFA) specifically authorizes funding for time-limited reunification services, the focus on family preservation and reunification shifts somewhat to efforts to achieve permanency and stability for children through adoption. 9 The act's major features are a change in the time frame for the dispositional review (also called the permanency planning hearing) from 18 months to 12 months and allowing states to plan reunification and adoption concurrently by seeking adoptive homes for children. Significantly, ASFA requires the state to petition the court to terminate parental rights or to support the petition filed by a third party for children in foster care for 15 of the most recent 22 months. Exceptions to this mandate include children in the care of relatives, children whose best interests are not served by adoption (justified by the state in writing), and children for whom the state has not made reasonable reunification efforts. Lastly, ASFA clarifies reasonable efforts requirements: States are not required to provide reunification services when a parent has killed another child, when the child is the victim of serious physical abuse, or when parents' rights vis-a-vis other siblings have already been terminated. (See the article by Allen and Bissell in this journal issue for a full discussion on ASFA.)
Although some critics claim that ASFA makes it easier to set aside parental rights, signs of a substantially weakened set of parental rights are hard to see. For the most part, ASFA provides some additional guidance to states by clarifying the reasonable efforts standard and creating a new presumption for the termination of parental rights. Of course, whether poor parents can adequately represent themselves is an important question in its own right.10 Overall, federal policy regarding permanency demonstrates a strong preference for returning children to live with their birth parents or for adoption by surrogate parents.11
Due in large part to the legal and policy framework protecting parental rights, family reunification remains the primary permanency goal for most children who come into the child welfare system. According to the Adoption and Foster Care Analysis and Reporting System (AFCARS), reunification was the stated permanency planning goal for 44% of children in care.12 At the same time, in an effort to expedite children's placement into permanent families, many agencies concurrently plan for family reunification and an alternative permanency option, such as adoption or kinship care, should reunification not be achieved within the set timelines defined under ASFA. As of 2002, 37 states had statutes detailing their concurrent planning policies.13
The concurrent planning process typically involves assessing which children are least likely to reunify and thus would most benefit from an alternative permanency plan. Under an alternative plan, a child is more likely be placed with a foster or kin family that is willing to adopt should reunification not be possible, and birth parents are made to understand that should reunification not be achieved, the child will be placed permanently with the foster or kin family.
The available research on the effectiveness of concurrent planning, while limited, suggests that the practice has been helpful in finding permanent homes for children in a timely manner.14 However, some critics have raised concerns that concurrent planning practices may undermine family reunification efforts. Some argue that concurrent planning leads case workers to work less vigorously toward family reunification.15 Another concern is that birth parents may have difficulty working with case workers when they know alternative permanency options are being actively pursued. To date, there are no rigorous evaluations of the relationship between concurrent planning practices and the likelihood of family reunification. However, proponents of concurrent planning argue that appropriate training, careful implementation, and quality communication between social workers, birth parents, and foster caregivers can address and alleviate many of these concerns.16
The Decision to Reunify
Although family reunification is the most common exit type for children in care, relatively little is known about reunification decision making and the process of reintegrating children into their families. However, the available research suggests that greater sensitivity to parent and child characteristics is needed in choosing appropriate permanency options and keeping reunified families intact. Only a few studies have attempted to explore the factors that lead caseworkers to recommend reunification. What can be gleaned from these studies is summarized below.
One study designed to understand why reunifications fail identified the following case activities as essential parts of the reunification process: quality assessments including whether and when reunification should occur, quality case plans, family engagement, service coordination, family compliance with case plans, family readiness, and post-reunification services and monitoring. The study also noted that a history of prior reunifications, ambivalence on the part of parents, and length of placement all played a part in the decision to reunify. Finally, the study linked the provision of postreunification services to successful reunifications.17
Another small, qualitative study involved interviews with nine caseworkers and several child welfare administrators working in three different public child welfare agencies in the Washington D.C. region.18 Although the small number of participants and the regional focus of this research limit our ability to generalize about these findings, they do offer some insights into the reunification decision-making process.
In the D.C. study, social workers cited four essential issues they considered when deciding to reunify a child. First, most workers were particularly concerned with how well parents had complied with the conditions set out in their case plans. Specifically, workers assessed whether birth parents had actively participated in any service referrals they were given, whether their behavior had changed, and their level of involvement in the daily lives and schooling of their children. Second, assessing the safety of the home was critical in the reunification decision. In addition to assessing necessary changes in the home, workers looked for evidence that birth parents had ceased problematic behavior that might endanger a child and had demonstrated improved parenting skills. Frequency of visitation was another critical factor in the decision-making process. Parents who were unwilling or unable to visit or were inconsistent in their visitation patterns were less likely to be recommended for reunification than were parents who adhered to the visitation schedule. Finally, children's wishes were also a factor in the reunification decision, particularly for older children. It must be emphasized, however, that the lack of research in this area is troubling. Larger studies on factors that affect caseworker decision making are critical to improving the reunification decision-making process.
Child and Family Factors
The characteristics and circumstances of children and families also affect the likelihood of reunification. Reunifying a child with his or her birth parents is not a one-time event. Rather, it is a process involving the reintegration of the child into a family environment that may have changed significantly from the environment the child left. During the time apart, both the parent and the child may have encountered new experiences, developed new relationships, and created new expectations about the nature of their relationship. All these factors must be considered and accounted for when facilitating both physical and psychological reunification. Some studies have found that certain child and family characteristics can hinder or help the reunification process.
Some researchers have found that parental ambivalence about the return of children can be a significant barrier to successful reunification.19 Other studies have found that parents who have multiple problems are less likely to successfully reunify with their children.20 For example, parents with a combination of substance abuse problems, mental illness, or housing problems, and/or single parents, were less likely to be reunited than parents who did not face a multitude of concerns. Additionally, one study found that the duration and amount of contact families had with child welfare workers were positively related to reunification.21 Although other factors may be at work in this dynamic, it appears that continued and consistent interaction between reunified families and social workers may facilitate the reunification process. Maintaining contact between parents and child welfare workers may be particularly challenging, as some families may be resistant to maintaining ongoing relationships with the child welfare system—a system they may perceive as coercive, invasive, or threatening—after a child's return. This situation stands in contrast to many foster and adoptive families, who often request more interaction and assistance from the child welfare system.22
Children can also experience psychological distress during the reunification process. They may experience feelings of grief, loss, or fear at the prospect of leaving a foster home. A child's psychological health can also affect reunification. One longitudinal study of more than 600 children found that children with behavioral or emotional problems were less likely to be reunified than were children who did not face these difficulties.23 Another study found that children experiencing health difficulties and/or disabilities had lower reunification rates than children who were not.24