The Impact of Suter v. Artist M. on Foster Care Policy

Abstract

Child advocacy groups severely criticized pre-1980 foster care policy because it did not prevent separation from, or promote reunification with, family (Carrieri, 1990; Lewis, 1991; Lindsey, 1992a, 1992b; MacDonald, 1992; Simms & Bolden, 1991). Congress therefore enacted major legislation in 1980 that emphasized preservation and unification: Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272) (hereinafter referred to as Child Welfare Act of 1980, or the act). Critical to changed policy was that to be reimbursed by federal government, states must make to both prevent separation of children from their families and promote reunification with families if separated. Furthermore, act provided for speedy adoption of children who would not return home (Atwell, 1992). The legal issues presented by Child Welfare Act of 1980 that were not clarified were definition of reasonable efforts (Atwell, 1992; Ratterman, Dodson, & Hardin, 1987; Shotton, 1990) and whether private parties could enforce act's provisions (English, 1983). A private right of individuals to enforce a statute means that those who are allegedly affected adversely by a state's noncompliance with a statute may pursue compliance or damages through court action. A key legal axiom is that to sue in courts, one must have legal standing to sue, and legal standing or a private right to sue were not clarified by Child Welfare Act of 1980. To clarify this area, as well as to seek compliance, a class action lawsuit evolved to challenge Illinois Department of Social Services in Chicago for failing to make reasonable efforts (Artist M. v. Johnson, 1989, 1990). Thus, this case presented two key legal issues - definition of reasonable efforts and whether individuals have a private right to force reasonable efforts. After plaintiffs had prevailed in lower federal courts, U.S. Supreme Court ruled that private parties had no legal rights to enforce provisions of act through statute itself or a civil rights lawsuit (Suter v. Artist M., 1992). This article examines Suter and its impact for foster care and adoption policy. Key Provisions of Child Welfare Act of 1980 The passage of Child Welfare Act of 1980 represented first step in permanency planning for foster children (Allen, Golubock, & Olson, 1983). First, it mandated that each state, by submitting a specific plan, commit to making reasonable efforts to prevent removal of children from their families and to return them as soon as reasonably possible. The rationale for this policy initiative was to entice states, with promise of federal monies, to focus on prevention and reunification. Second, beginning October 1, 1983, a judicial determination had to be made that reasonable efforts were used to prevent removal of each child from his or her family before foster placement was made. The rationale for judicial determination was that it would ensure scrutiny of social services provided to each child and would ensure that rights of child and family were respected (Ratterman et al., 1987). To effect judicial determination, states would be forced to amend their statutes (Allen et al., 1983), but many advocates were skeptical whether states would fully implement act (Ratterman et al., 1987). The act mandated that states enact policies in which caseworkers develop case plans for each child that must (1) Be a written document, which is a discrete part of care record, in a format determined by State, which is available to parent(s) or guardian of foster child; and (2) Be developed within a reasonable period, to be established by State, but in no event later than 60 days starting at time State agency assumes responsibility for providing services including placing child; and (3) Include a discussion of how plan is designed to achieve a placement in least restrictive (most family-like) setting available and in close proximity to home of parent(s), consistent with best interest and special needs of child; and (4) After October 1, 1983, include a description of services offered and services provided to prevent removal of child from home and to reunify family. …