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Permanency is a pillar of child welfare law; children generally do better with legally permanent caretakers than in temporary foster care. Historically, when foster children cannot reunify with their parents, states have sought to terminate parental rights and find adoptive families. But recent legal reforms have created a continuum of permanency options, many of which permit ongoing legal relationships with biological parents and do not require termination of biological parents’ rights. Research has demonstrated that such options are as lasting as adoption, and can help more children leave foster care to legally permanent caretakers. This continuum promises to empower families — especially children and their new permanent caregivers — to determine the best legal status for their particular situation. It also challenges a reliance on terminations of parental rights as the default tool to achieve permanency. This is the new permanency.

A milestone in the development of this new permanency was the 2008 Fostering Connections to Success and Increasing Adoptions Act (“Fostering Connections”), which provided federal funds for kinship guardianship subsidies. Yet six years after Fostering Connections, the number of guardianships nationally has not increased - just as many children grow up in foster care, and in many states families have no greater ability to choose the best option for them.

This article is the first to explore the reasons for Fostering Connections’ failure to spark major changes. The fault lies in Fostering Connections’ failure to challenge the deep cultural and legal subordination of guardianship to adoption and the discretion child welfare agencies have to make core decisions in a case without significant court oversight.

This article also explores a jurisdiction in which the new permanency is close to reality. The District of Columbia has seen the number of guardianships surpass the number of adoptions, with more children reaching permanency, and fewer unnecessary terminations. The District thus represents an extreme version of what the new permanency could do nationally — although it also illustrates the problems with overly wide agency discretion regarding kinship placements.

This article proposes a set of reforms that would help fully implement the new permanency nationwide. These reforms would rid the law of a hierarchy among permanency options, establish a stronger and more consistent preference for kinship placements, and empower families, not the state, to select the permanency option that best fits their situation, through more rigorous procedures and better provision of quality counsel than current law provides.


Family Law | Juvenile Law | Law