Shame on US for failing to protect abused, neglected children

Ineffective federal enforcement, compounded by judicial and legislative inaction, has rendered child welfare laws meaningless and made a mockery of Congressional mandates to protect our children from abuse and neglect.

A newly released report – aptly entitled “Shame on U.S.” – uses the federal government’s own documents to detail the colossal failure of America’s child welfare system.

{mosads}The three-year study found that not one of America’s 50 states is in “substantial conformity” with minimum standards set in federal law and designed to protect and lift up abused and neglected children.

The result is that abused and neglected children have been left vulnerable to further harm, and in many cases, death. In 2013, at least 679,000 children were the victims of abuse or neglect, and an estimated 1,500 died. Sadly, these numbers are probably low, due in part to unreported abuse.

Despite their failure to protect our most vulnerable citizens, state governments continue to receive billions of dollars each year in federal child welfare funds.

Congress, the executive branch and the federal judiciary have all been derelict in their responsibility to protect abused and neglected children in the United States. One of the most egregious debacles cited in the report – and one that demands immediate action – is the U.S. Department of Health and Human Services’ inadequate Child and Family Services Review process that is supposed to, in HHS’ own words, “ensure [state] conformity with federal child welfare requirements.”

In the most recent review, not a single state was in substantial conformity with minimum standards on all seven measurable outcomes related to safety, permanency and family/child wellbeing.  In fact, 40 states and the District of Columbia failed to achieve substantial conformity on all seven outcomes, and the other ten states were found to be in substantial conformity with just one outcome each.  How is this a process that ensures conformity with child welfare requirements?

HHS has the power to withhold federal funding to compel compliance, but instead often takes a passive approach, allowing states to self-certify compliance and actually set lower standards and performance expectations for themselves than are allowed by law — all of which allow glaring inadequacies to go unabated.

The report also documents repeated instances of HHS failing to issue regulations when directed to do so by Congress, a refusal to impose sanctions on states who are found to be out of compliance with federal law, and an implicit understanding with states that they can continue to receive federal funds without any accountability.

Making matters worse, Congress is slowly weaning America off federal financial support for these children by failing to address an irrational financial provision called the “look back” clause, which withholds the federal foster care maintenance payments for any child taken from a home where income exceeds the poverty line as it existed in 1996. That’s right – 1996.

Congress has shown little appetite to address these issues, DHHS has flagrantly refused to carry out their mandate to enforce the law, and federal courts have been turning their backs on private lawsuits intended to enforce child welfare laws (by, for example, finding that the laws provide no private right of enforcement), creating a federal branch trifecta of inertia and leaving these children out in the cold.

HHS must be more vigilant in its role to ensure that states take seriously their obligation to comply with all applicable federal mandates, and not be allowed to get by with a compromised set of lowered expectations. Congress must also eliminate archaic provisions and ensure we have a comprehensive and appropriately funded child welfare system — one that clearly allow private enforcement when states are out of compliance. And federal courts should stop placing undue standing and abstention obstacles in the way  of private litigants who seek judicial recourse for violations of their rights and to address broader legal inequities within child welfare.

In a very real sense, we are all the “parents” of these children,charged with protecting children from abuse and neglect, ensuring that their rights and needs are met when they are in state custody, making sure that states follow the laws by which they are bound, and providing foster youth with a safe and secure path to adulthood.

How we perform in that role is ultimately the real measure of our nation’s values.

Fellmeth is the executive director of the Children’s Advocacy Institute at the University of San Diego School of Law.