Last year, the state of Indiana proposed to balance its budget by cutting funding to foster children and adoptive services. To save $10 million, the Indiana Department of Social Services decided to cut the amount it pays for the support of children in foster care and special needs adoption assistance. The Department based its decision on abstract calculations about how much it costs to care for a child in America. It did not consider the expenses specific to caring for foster children; most tellingly, it did not consider travel costs for visiting the child’s biological family. It never asked for comments from foster families or the agencies that support them in Indiana.
In the fall of 2009, each foster family was slated for a 10% cut in the money it receives to buy necessities like food and clothing for children. And we’re not talking big money to begin with: even before the cut, the state provided $25/day, which was theoretically supposed to cover the cost of food, clothing, shelter, daily supervision (such as child care), school supplies, a child’s personal incidentals, reasonable travel, and insurance liability, among other things. Agencies that help foster children with special needs find permanent adoptive homes were facing a twenty percent reduction in their budgets – despite the need for more effort in this area. There are currently more than 3,000 children in foster care waiting for adoption in Indiana, and a high number of these children have special needs.
States are scrambling to find money these days, no doubt. But it’s also relevant here that the federal government reimburses the state of Indiana for more than 70% of the funding for these foster care and adoptive services.
A group of foster parents and children sued the Department in an effort to stop the cuts from eliminating their already limited resources under a federal law, 42 U.S.C. Section 1983, which allows individuals to sue the government or a government employee who has infringed on their rights under the Constitution or the laws of the United States. Referred to as “Section 1983,” this law was originally passed after the Civil War to help African-Americans exercise new rights created by the 13th, 14th, and 15th Amendments. Those amendments prohibited slavery, established the right to due process and equal protection, and guaranteed every male citizen the right to vote. Although these Amendments became part of the Constitution, state courts refused to enforce them, especially when people’s rights were violated by other state or local government officials. The U.S. Congress passed Section 1983 to allow people to sue in federal court when a state or local official violates their federal rights. The statute can be used by anyone who believes their rights under federal law are being denied.
The right to funding that foster parents wanted the court to enforce was based on a portion of the federal Social Security Act that says that payments to foster families must cover the cost of food, shelter, clothing and other needs. It also says that families adopting children must get money to assist in the adoption process based on their circumstances and the needs of the child or children they are adopting. The federal court in Indiana decided that the law created an enforceable right for the people in the programs.
Because the Indiana Southern District Court interpreted the federal statute as creating a right for foster families, it could directly consider the effect of the proposed budget cuts on the children. The court acknowledged “the potential emotional upheaval and deprivation of basic necessities” that the cuts threatened for them and ordered Indiana’s Department of Social Service not to make the cutbacks.
Paula Z. Segal is a second year student at City University of New York School of Law and a Haywood Burns Fellow in Civil and Human Rights. Before law school, she taught English to Speakers of Other Languages and continues to develop materials for ESOL instructors to connect language and life skills. She is also working with the New York Civil Liberties Union to reduce the school to prison pipeline and coordinates the CUNY Street Law Team, which brings the law to New York City high school students and community groups. For more on the school to prison pipeline, go to http://www.nyclu.org/issues/
(Photo by Department for Children, Schools and Families.)