May 12, 2010

The California Foster Care System

An Overview

The foster care system in the United States serves as a safety net for children whose parents cannot care for them.[1] These children find themselves in foster care through no fault of their own: the state removes them from their own homes because their parents or guardians have abused, neglected, or abandoned them, or have died. According to the most recent count, the foster care population in the United States was approximately 496,000 in 2007.[2] California’s foster care population of more than 65,000 children is far greater than any other single state.[3] Both nationally and in California, half of children in care are over the age of 10.[4]

Children often come to the child welfare system’s attention through an emergency hotline. If the allegations are deemed serious, they are investigated. A child can be removed from his or her home on an emergency basis by a social worker or police officer and kept in protective custody for up to 48 hours, at which time a judge must review the case and the parents or guardian given an opportunity to be heard. The court makes the determination of whether to send the child home or keep him or her in protective custody based on the best interest of the child. If the court ultimately decides that the child should become a ward of the state, it must review the case every six months. Initially at least, the goal is to reunify the family. Social workers develop a case plan and services are offered to parents. Parents may have to prove they have rectified the neglectful or abusive circumstances. For example, a parent may have to show improvement in parenting skills and proof of having completed a parenting class, or that he or she is addressing a drug problem through treatment.[5]

Nearly half a million referrals for suspected abuse or neglect are made each year in California. In 2008, over 97,000 cases were substantiated after investigation and of those, 32,753 children were placed into foster care.[6]

The phrase “foster care,” as commonly used, includes an array of living situations. The majority of children in state care reside in foster families, group homes, and institutions.[7] A foster family typically is a family or an individual who is not related to the child and is licensed to take foster children into their home. Nationally, 46 percent of children in state care are in foster family placements, compared with 38 percent in California.[8]

A group home is a facility with a number of children or youth living there. It might be in a single family residence, or it might be in a larger, more institutional-style building. Group homes are managed by paid staff and can provide more structure and supervision than a foster family or relative home. Nationally, 17 percent of children in state care live in group homes or other institutions, compared with just seven percent in California. However, the percentage of youth ages 11 through 17 residing in group homes is double that, at close to 14 percent.[9] 

A significant number of children in state care—34 percent in 2008—are placed in the home of a relative. In California this is called “kin care.” This is significantly higher than the national average of 24 percent; however, it represents a decline in California from 1998 when 44 percent of foster youth were placed in the homes of relatives.[10] 

Foster care is intended to be temporary, to keep children safe and provide them with all necessities until a permanent living situation can be found. In practice, however, while many children spend just a few days in foster care, others remain for years, with some spending their entire childhoods in the foster care system. For these children, the role of the state is more that of a parent than a temporary guardian.[11]

Emancipating from Foster Care

Children leave the foster care system for a variety of reasons. Some are reunified with their parents; others are adopted or gain a legal guardian who takes custody. But more than half of the children in state custody leave the system not because the problems that pushed them into state care are resolved: they leave simply because they become too old. In most states, the government assumes no responsibility for youth from age 18. Foster parents are not obligated to house, feed, or guide their foster children beyond this age, and group homes no longer provide a place to live. In the parlance of child welfare, youth who age out of the foster care system are “emancipated.”

Nationally, approximately 20,000 youth emancipate from foster care each year.[12]  In California, 4,653 youth emancipated in 2008.[13]

Under California law, the state may retain jurisdiction over children in foster care up to age 21 but is not required to do so.[14] California law prohibits an automatic emancipation based solely on age, but most youth who reach age 18 in the system will find their cases terminated.[15] Statewide, 72 percent of those emancipating are 18 years old, with just 13 percent older than 18 at the time of emancipation.[16] Although the law in theory permits young people to remain in care for other reasons, the only enunciated exception is for those who at age 18 have not graduated from high school or passed the General Educational Development (GED) exam but who are on track to complete an education or vocational program by their 19th birthdays. These youth may be able to stay in their foster care placements until they turn 19.[17] The sad irony of this exception is that those who have not been able to complete high school or other programs preparing them for economic self-sufficiency before turning 19 are likely even less prepared to go out on their own than those who are perceived to be able to complete a course of study prior to age 19.  “Some people need more help than others,” Malachi told us.  But the way the system is set up, those people may get less support. “If you’re not doing good, like in school, or if you’re messing up a bit, they don’t want to help you. They want to kick you out.”[18]

In fact, California appellate courts have held that the decision to terminate a child welfare case and emancipate a youth is within the discretion of the court and that the best interest of the youth must be considered in making that determination.  Nevertheless, federal funding for state foster care ends at age 18. As a result, the cost of extending foster care may play a role in determining whether to retain jurisdiction over a foster youth past that age.  A state legislator observed, "Although the juvenile court has the authority to retain jurisdiction over a dependent child until the age of 21, the reality is that federal funding for foster youth ends at the age of 18, and common practice is for the juvenile court to terminate jurisdiction at that time.”[19]

Selected Federal and State Laws Governing Emancipation

In 2008, Congress unanimously passed the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act).[20] Some experts called this bill the “most significant foster care reform to come around in a decade.”[21]The Act gives states the option to extend federal foster care benefits up to age 21 for youth who are in school, working, in a job training program, or unable to attend school or work due to a medical condition. It also provides reimbursement to states that amend their laws in accordance with provisions of the Act. For states that choose to extend foster care, reimbursement will begin in fiscal year 2011. In late 2008 California Assembly Bill 12 was introduced. If passed, it would, among other things, make California’s foster care laws comply with the provisions of the Fostering Connections Act. At the end of 2009, the bill was pending in the state legislature.[22]

Both California state and federal laws include specific measures to promote preparation for adulthood for children and youth in state care. The John H. Chafee Foster Care Independence Act (FCIA) was passed by Congress in 1999 in large part due to the growing recognition that foster children were faring poorly as young adults.[23] FCIA doubled the funding designated to assist adolescents and young adults in foster care. Significantly, FCIA requires that states use a portion of the funds for foster and former foster youth up to age 21.[24]

California law mandates that child welfare agencies develop transition plans for youth called “Transitional Independent Living Plan” (TILP) to help them prepare for adulthood.[25] The purpose of the transition plan is to identify areas in which a young person needs to prepare for adulthood, and outline concrete steps and goals to learn those skills. The plan is initiated by the county welfare agency, and should be developed with the youth and other supportive adults and first implemented when a youth is 15 or 16 years old. It is meant to be regularly changed as goals are met. Ultimately, it should outline concrete plans and set goals for after emancipation.

For a youth to be emancipated, a hearing is necessary: jurisdiction can only be terminated by court order. State statutes require the county child welfare department to take certain steps intended to ensure a youth is prepared to be on his or her own before a court will sign an order of emancipation. The county welfare department must ensure that the youth is present in court, unless he or she does not want to appear.[26] A law enacted in 2008 requires a judge to ask whether a youth was given the opportunity to attend, and to postpone the hearing to a later date to allow the youth to attend.[27]

For emancipation, the department must also certify that it has provided certain things, including written information concerning the dependency case, family photos, the location of siblings, important documents, and information on how to access documents to which he or she is entitled.[28] The agency must also report to the court that it has assisted the youth in obtaining health insurance; made a referral to transitional housing, if available, or provided assistance in securing other housing; aided in obtaining employment or other financial support; helped the youth apply to college or other educational institutions. Also required is assistance in maintaining relationships with relatives, friends, or other important individuals.

[1] The Children’s Rights Division of Human Rights Watch uses the word “children” to mean people under the age of 18. The words “teenager” and “teen” refer to individuals who are 13 to 19 years old. The word “youth” and term “young people” are used in this report to mean people in adolescence through early adulthood, or approximately ages 12 through 24.

[2] AFCARS Data, Children's Bureau, Administration for Children and Families, US Department of Health and Human Services, “Trends in Foster Care and Adoption –FY 2006—FY 2007,” http://www.acf.hhs.gov/programs/cb/stats_research/afcars/trends.htm (accessed August 7, 2009).  An individual child is included in the count for each year for which he or she is in foster care on the last day. Note that this number is an estimated count of all the children in foster care on the last day of the year, and that in fact, many more children pass through the foster care system in a year. The estimated count of all children who were in the public foster care system during the year was 783,000 for FY 2006-FY 2007. That number is the sum of two mutually exclusive groups of children: the children who are already in care on the first day of the fiscal year (October 1) and the children who enter foster care during the year. An individual child is counted only once for each year.

[3] Barbara Needell et al., University of California at Berkeley Center for Social Services Research, Child Welfare Services Reports for California, CWS/CMS 2009 Quarter 1 Extract,  “Child Population (0-17), Number in Care, and Prevalence Rates,” July 1, 2008, http://cssr.berkeley.edu/ucb_childwelfare/InCareRates.aspx (accessed October 7, 2009). California’s system dwarfs all others in the nation. For example, Texas and New York’s foster care populations, the second and third largest in the nation, are significantly smaller, each with around 30,000 children and youth in their state systems. United States Department of Health and Human Services, Administration for Children and Families, “Foster Care FY2002 - FY2006 Entries, Exits, and Numbers of Children In Care on the Last Day of Each Federal Fiscal Year,” reflecting state data submitted to the Children's Bureau as of June 2008, http://www.acf.hhs.gov/programs/cb/stats_research/afcars/statistics/entryexit2006.htm (accessed March 4, 2009). New York had, at the time of the 2000 census, close to 4.7 million residents under the age of 18. In that year, some 5.9 million children and youth under the age of 18 resided in Texas. California’s population of children and youth was about 9.2 million. United States Census, “Age: 2000,” October 2001, http://www.census.gov/prod/2001pubs/c2kbr01-12.pdf (accessed August 4, 2009).  

[4] Barbara Needell et al., University of California at Berkeley Center for Social Services Research, Child Welfare Services Reports for California, CWS/CMS 2009 Quarter 1 Extract, “Children in Foster Care, Agency Type=Child Welfare,” April 2009, http://cssr.berkeley.edu/ucb_childwelfare/PIT.aspx (accessed October 7, 2009).

[5] Diane Reed and Kate. Karpilow, California Center for Research on Women and Families,“Understanding the Child Welfare System in California: A Primer for Service Providers and Policymakers,” 2nd Ed., June 2009, http://www.ccrwf.org/wp-content/uploads/2009/03/final_web_pdf.pdf (accessed September 14, 2009), pp. 11-14. In the last 10 years, child welfare systems have gone through significant changes. In 1997, the federal Adoption and Safe Families Act (ASFA) (PL 105-89) was enacted. In order to receive federal funding, states are required to collect data on outcome measures and go through a federal review process. California’s first review was in 2002, and it was found to be out of substantial conformity in seven of seven outcome measures. The state created an improvement plan, and was in 2005 found to have met all but one of its improvememt goals based on the second review. A second review was conducted in 2008, and at this writing the state was waiting for the finalization of its improvement plan from the federal Department of Health and Human Services. Ibid., p. 5.

[6] Barbara Needell et al., University of California at Berkeley Center for Social Services Research, Child Welfare Services Reports for California, CWS/CMS 2009 Quarter 1 Extract, “California Child Population (0-17) and Children with Child Maltreatment Allegations, Substantiations, and Entries,” January 1, 2008 to December 31, 2008,  http://cssr.berkeley.edu/ucb_childwelfare/RefRates.aspx (accessed October 7, 2009). In California in 2008, 486,866 children were referred one or more times. Of those referrals, 97,220 children’s cases were substantiated. 37,753 children entered foster care that year. Some cases are substantiated as involving abuse or neglect but it is determined that the child can safely return home if the parents or guardians are provided services.

[7] The majority of those not residing with foster families, in group homes, or institutions have been placed by the court in the home of a relative (see discussion below). The remaining children and youth have been placed in guardianships, pre-adoption settings, “trial home visits,” or have run away.

[8] National data is from US Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families, Children's Bureau, “The AFCARS Report: Preliminary FY 2006 Estimates as of January 2008 (14),” http://www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report14.htm (accessed February 26, 2009). Note that the national data is for the year 2006. State data is from Barbara Needell et al., University of California at Berkeley Center for Social Services Research, Child Welfare Services Reports for California, CWS/CMS 2009 Quarter 1 Extract, Extract,  “Children in Foster Care, Agency Type=Child Welfare,” April 2009, http://cssr.berkeley.edu/ucb_childwelfare/PIT.aspx (accessed October 7, 2009).

[9] Ibid.  In California, 13.65 percent of 11-to 17-year-olds in state care reside in group homes.

[10] Barbara Needell et al., University of California at Berkeley Center for Social Services Research, Child Welfare Services Reports for California, CWS/CMS 2009 Quarter 1 Extract, “Children in Child Welfare Supervised Foster Care as of January 1, 2008 and January  1, 1998(Age 0-20), by Placement Type,” http://cssr.berkeley.edu/ucb_childwelfare/PIT.aspx (accessed October 7, 2009). The year 1998 was chosen because it was the earliest year for which data was readily available.

[11] For an overview of California’s child welfare system, see Diane Reed and Kate Karpilow, California Center for Research on Women and Families, “Understanding the Child Welfare System in California: A Primer for Service Providers and Policymakers,” 2nd Ed., June 2009, http://www.ccrwf.org/wp-content/uploads/2009/03/final_web_pdf.pdf (accessed September 14, 2009) and Lisa K. Foster, California Research Bureau, California State Library, “Foster Care Fundamentals: An Overview of California’s Foster Care System,” December 2001, http://www.library.ca.gov/crb/01/08/01-008.pdf (accessed August 11, 2009).

[12]US Government Accountability Office, “Child Welfare: HHS Actions Would Help States Prepare Youth in the Foster Care System for Independent Living,” Testimony: Statement of Cornelia M. Ashby, Director, Education, Workforce, and Income Security Issues, July 12, 2007, http://www.gao.gov/new.items/d071097t.pdf (accessed August 1, 2009), p. 2.

[13] Barbara Needell et al., University of California at Berkeley Center for Social Services Research, Child Welfare Services Reports for California, CWS/CMS 2009 Quarter 1 Extract, “Exits From Foster Care, Agency Type=Child Welfare, January 1, 2008 to December 31, 2008” http://cssr.berkeley.edu/ucb_childwelfare/Exits.aspx (accessed October 7, 2009). In 2007, 4,566 youth emancipated and in 2006, 4,417. Just five counties account for nearly 55 percent of all youth emancipating in the state: Los Angeles (29 percent of the state’s emancipating youth), Riverside (6.5 percent), Sacramento (6 percent), San Bernardino (6.5 percent), and San Diego (7 percent).

[14] California Welfare & Institutions Code §303. See also California Rules of Court, rule 1466; California Juvenile Court and Procedure §2.31; and California Juvenile Court and Procedure §2.180[5], which provide that termination of jurisdiction may occur when the youth in foster care reaches 18 years old.

[15] See In re Tamika C., 131 Cal. App. 4th 1153, 1161 (2005); In re Holly H.,104 Cal. App. 4th 1324 (2002); and In re Robert L., 68 Cal. App. 4th 789 (1998).

[16]Barbara Needell et al., University of California at Berkeley Center for Social Services Research, “Youth Emancipating from Foster Care in California: Findings Using Linked Administrative Data,” May 2002,http://cssr.berkeley.edu/pdfs/ffy_entire.pdf (accessed August 1, 2009), p. 21. Data provided by the University of California at Berkeley Center for Social Services Research do not disaggregate emancipation rates for youth between the ages of 18 to 20; however, analysis conducted in 2002 of youth who entered the child welfare system between 1991 and 1997 determined that 72 percent of youth emancipated at age 18, 13 percent were older than 18 at emancipation, and 15 percent emancipated younger than age 18.

[17] California Welfare & Institutions Code §11403.

[18] Human Rights Watch interviews with Malachi M., age 20, Inglewood, March 10, 2010.

[19] Dion Aroner, California State Assembly Member, quoted in California State Assembly  Committee on Judiciary,  “Analysis of Assembly  Bill No. 686, “ April 27, 1999, http://www.sen.ca.gov/leginfo/BILL-6-DEC-1998/CURRENT/AB/FROM0600/AB0686/AAFLOOR.TXT (accessed November 2, 2009),  p. 3.

[20] Public Law No. 110-351

[21] Miriam Krinsky, statement to the Los Angeles County Bar Association Juvenile Courts Task Force, March 3, 2009. Krinksy is the former Executive Director of the Children’s law Center and now a lecturer at University of California at Los Angeles and Loyola law schools.

[22] California State Legislature, bill status, http://www.legislature.ca.gov/cgi-bin/port-postquery?bill_number=ab_12&sess=CUR&house=B&author=beall (accessed August 4, 2009).

[23] John H. Chafee Foster Care Independence Act of 1999, 42 USC §677 (1999).

[24] US Government Accountability Office (agency name changed in July 2004), “HHS Actions Would Help States Prepare Youth in the Foster Care System for Independent Living,” July 2007, http://www.gao.gov/new.items/d071097t.pdf (accessed August 22, 2007), p. 2.

The amount is divided among the 50 states, the District of Columbia, and Puerto Rico and totaled $140 million per year, with 1.5 percent reserved for evaluation, technical assistance, performance measurement, and data collection. To receive the funds, states must provide a matching contribution of 20 percent in cash or in-kind contributions.

[25] California Welfare & Institutions Code §391.

[26] The social worker is permitted to document efforts by the county welfare department to locate the youth when the youth is “not available” for the hearing. California Welfare & Institutions Code §391(a)(1).

[27] California Welfare & Institutions Code §349.

[28] The law specifies that the department must report to the court that it has provided certain documents such as a Social Security card, birth certificate, health and education information, driver's license or identification card, a letter prepared by the county welfare department stating the youth's name and date of birth, dates he or she was in foster care, and if applicable, the death certificate of the parent(s) and proof of the child's citizenship or legal residence.