Brooklyn Law School Assistant Professor of Law Cynthia Godsoe has posted Permanency Puzzle on SSRN. The full text article will appear in Volume 2013 of the Michigan State Law Review. The abstract reads:

Permanency lies at the heart of child protection policy. The Adoption and Safe Families Act (ASFA) directs that children in foster care who cannot be reunified with their birth families be adopted as a first choice, or as a second choice, placed in one of a few narrow categories such as guardianship. Yet unpacking permanency reveals that the legal concept is based on rigid categories and flawed normative concepts of family rather than on empirical data. This narrow conception of permanency undercuts the reality of children’s and parents’ experiences. It also ignores the modern psychological understanding of permanency as “an enduring relationship that arises out of feelings of belongingness.” Under the latter definition, studies show that there is no difference between children being adopted and those being cared for by a guardian.

The law has been slow to adapt, as evidenced by the ongoing funding prioritization of adoption, and the preference for adoption, particularly closed adoption, over subsidized guardianship in state and federal law. In essence, the permanency framework tries to fit complex relationships and families into neat and tidy boxes. This approach is neither effective nor desirable, denying many children meaningful relationships with caring adults, and devaluing certain kinds of families.

A focus on permanency is important for two reasons. First, an outline of the current permanency framework’s flaws is necessary to rethinking the current ineffective approach to child protection. Second, the permanency framework illustrates how the differential treatment of parties in private and public family law results in significant inequalities between them. Inequality in the treatment of families is the subject of this symposium, and one significant, yet understudied, area of inequality is among the public and private family law systems. Private family law focuses on the private distribution of wealth and applies primarily to middle and upper class families. Public family law concerns state public benefits systems and thus generally applies to lower income people. Which system families enter, which “door” they come through, often has a significant impact on their custodial and other parental rights. One reason for this is the rigid and narrow conception of permanency.

This Essay proceeds as follows. Part I outlines the system’s definition of permanency and gives a snapshot of children in the child protection system. Part II explains how this definition is flawed, both starkly different from the reality of children’s experiences and fundamentally misguided as policy. Part III recommends some concrete changes to address these flaws.