Children Are Suffering From a Misguided Law

The Monitor's recent series on child welfare, and especially the article "When a Child's Safety Is at Stake" (Dec. 30), underlines a major problem in social policy that is having a dramatic - and negative - effect on America's children.

Too many children are spending their most important, formative years in a legal limbo that denies them their chance to be adopted - that denies them what all children should have, the chance to be loved and cared for by parents.

We are sending too many children back to dangerous and abusive homes. We send them back to the custody of people who have already abused and tortured them.

Every day in America, three children die of abuse and neglect at the hands of their parents or caretakers. That's more than 1,200 children every year. And almost half of these children are killed after their tragic circumstances have come to the attention of child welfare agencies.

Tonight, almost 421,000 children will sleep in foster homes. Over a year's time, 659,000 will be in a foster home for at least part of the year. Shockingly, roughly 43 percent of the children in the foster care system at any given time will languish there longer than two years. Ten percent will be in foster care longer than five years. And the number of these foster children is rising. From 1986 to 1990, it rose almost 50 percent.

Too many of our children are not finding permanent homes. Too many of them are being hurt.

Why is this happening? Obviously, many factors are to blame. Many parents were themselves abused as children. Many of them lack good role models for parenting. Our social workers are seriously overburdened.

A flawed federal law

But it's becoming increasingly clear that some of the tragedies in the child welfare system are the unintended consequence of a small part of a law passed by the US Congress. Under the federal Child Welfare Act, for a state to be eligible for federal matching funds for foster care expenditures, the state must have a plan for the provision of child welfare services approved by the Secretary of Health and Human Services.

The state's plan must provide "that, in each case, 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 to his home."

In other words, no matter what the particular circumstances of a household may be, the state must make reasonable efforts to keep it together, and to put it back together if it falls apart.

There is strong evidence to suggest that, in practice, reasonable efforts have become extraordinary efforts - efforts to keep families together at all costs. Much of the national attention on the case of Elisa Izquierdo in New York has focused on the many ways the social welfare agencies dropped the ball. It has been said that there were numerous points in the story when some agency could have and should have intervened to remove Elisa and her siblings from her mother's custody before Elisa was killed.

Unreasonable efforts

I think we should look at the broader question: Should our federal law really push the envelope, so that extraordinary efforts are made to keep such a family together - efforts that are clearly unreasonable?

I think the answer is no. The law should be changed to make it absolutely clear that the best interests of the child come first. I would enact the following simple, straightforward amendment to the Child Welfare Act: "In determining reasonable efforts, the best interests of the child, including the child's health and safety, shall be of primary concern."

In November, I chaired a hearing of the Senate Labor and Human Resources Committee on this issue. I assembled some of America's chief experts on child welfare - and I was very encouraged by what they had to say. Peter Digre, the director of the Los Angeles County Department of Children and Family Services, agreed that "we should emphasize child safety as our first priority."

Dr. Digre's department has about 73,000 children under its protection. He sees the real-life consequences of unreasonable attempts to reunite families that are families in name only.

But our most eloquent testimony came from Sharon Aulton, a grandmother in Annapolis, Md. She had warned the local children services that her daughter was neglecting her children - but they failed to intervene. Her daughter ended up blockading her children in a room and setting the room on fire. Both children perished.

For some children, though, it's not too late. Let's change the law to protect their health and safety.

* Mike DeWine (R) represents Ohio in the US Senate.