The Child-Welfare System and the Limits of Determinacy

I INTRODUCTION To read Robert Mnookin's seminal 1975 article, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, (1) is to see a blueprint for legislative action. To a remarkable degree, the reforms Mnookin proposed to the child-welfare system are what Congress and the states adopted in the following two decades. And yet reading Mnookin's article is also a Groundhog Day experience. The problems he described with the child-welfare system nearly forty years ago sound all too familiar today. (2) Mnookin famously argued that the best-interests standard was indeterminate in the context of the child-welfare system. (3) According to Mnookin, this open-ended standard created several notable failings: It could not identify families truly in need of intervention, it took little account of the dangers inherent in foster-care placement, and it did not move children through the system expeditiously. (4) As a result, too many children were removed from their homes unnecessarily and then left to languish in the limbo of foster care. (5) To address these problems, Mnookin proposed a more determinate standard to replace the best-interests test. To limit removals to cases where foster-care placement was truly needed, he proposed that states remove a child only where her physical health was in immediate danger and there were no reasonable means available for protecting the child within the family. (6) And, to move children more quickly through the system, he proposed a time limit on efforts to reunify the family. (7) In the 1980s and 1990s, Congress undertook serious and sustained reforms to the legal standards governing the child-welfare system, largely moving in the direction Mnookin advocated. In one reform, Congress tried to stem the tide of foster-care placement by requiring states to provide family-preservation services, intended to keep children in their original homes. (8) Although this requirement fell short of Mnookin's determinate standard for removals, it was in the same spirit of preventing foster-care placement by treating families with children still at home. In a later reform, Congress more fully embraced an aspect of Mnookin's determinate standard, requiring states to adopt a time limit on family-reunification efforts. (9) Despite these considerable changes to the standards governing child welfare, the reforms have had mixed success in changing actual practice on the ground. Determinacy on the front end--accurately identifying which children should be removed from their homes--remains challenging, and efforts to focus on family preservation have had a very modest impact on keeping children at home. We have not fully invested in these programs and doing so is difficult in the face of continued resistance to family-preservation efforts. But even with additional funding, it is not clear these programs can effectively prevent foster-care placement. By contrast, determinacy on the back end--moving more children out of foster care--is easier to achieve. The time limit on reunification efforts has had the intended effect of shortening stays in foster care. This determinacy, however, has come at a real cost. Fewer children are returning home, and one reason children are moving more quickly out of foster care is because they are going to adoptive homes and guardianships. (10) Whether this trade-off is an improvement over the old system, where children spent more time in foster care but were also more likely to return home, is a matter of considerable controversy. But it is clear that a more expeditious timeline puts considerable pressure on parents to make the required changes in time to regain custody. Mnookin predicted this problem but believed that a determinate standard would, ultimately, create a fairer system that benefitted children. (11) The darker side of time limits is that more children are now emancipated from foster care, neither returning home nor finding a permanent home with an adoptive family or a guardian. …