Obama’s Legacy on Child Welfare and Juvenile Justice

President Barack Obama exits stage right on Friday after presiding over one of the most interesting periods in American history. He leaves with a high approval rating, yet transfers power to a man who vows to undo much of the work done by his administration.

Child welfare and juvenile justice were decidedly not front and center for this administration, or any of the administrations that came before it. But Obama will leave office with a legacy of action in both realms.

Following, in no particular order of importance, are a few things that Youth Services Insider sees as critical pieces of the Obama legacy on juvenile justice and child welfare. We welcome your thoughts if you disagree or would like chime in with other submissions; e-mail: jkelly@chronicleofsocialchange.org.

The Stimulus
Remember the Great Recession that America was in when Obama was sworn in? Sure seems like a million news cycles ago.

In 2011 and 2012, scores of states were still struggling with the economic effects of the Great Recession. As they battled budget crises, many responded with drastic cuts to juvenile justice and child welfare spending. At the time, we tallied at least ten states that cut juvenile justice budgets and nine that cut child welfare spending.

The Obama administration took the lead on crafting (and passing) the American Recovery and Reinvestment Act of 2009, a massive stimulus package to address the recession that totaled $831 billion. On top of many billions going to help keep school districts solvent were several carve-outs for youth services:

• A 6 percent increase in the federal match for Title IV-E funds
• $1.2 billion for youth employment and summer job programs
• $1.5 billion emergency shelter grants for families
• $1 billion increase in the Community Services Block Grant
• $5 billion increase to Temporary Assistance to Needy Families
• $2 billion increase to the Child Care and Development Block Grant
• $2.1 billion increase for Head Start and Early Head Start
• $70 million to coordinate programs that educate homeless children

There is no question that, without the Recovery Act, state budgets would have crashed quickly, harder and more painfully in 2009.

The state budget crunches in 2011 and 2012 might have been tough on systems, but they didn’t sneak up on anyone. States knew the stimulus funds were going away, and knew that a conservative-led Congress was moving to tighten up federal funding in general.

YSI doesn’t think it hyperbole to say that, absent the stimulus plan’s investment in the youth services infrastructure, advocates for kids in a lot of states would still be working to just get back to pre-recession levels in spending to serve the most at-risk youths.

Earmarks: Stricken from the Record
The Congressional appropriations process used to yield thousands of earmarks for youth-serving programs, federal funding awards of various size and scope delivered mostly at the behest of a local member of Congress.

Obama said he would not sign appropriations bills with earmarks his first go-round in 2009; Congress called his bluff, and he caved. By the next year, he had won Congressional support for eliminating them.

Some youth services observers, including our mentor Bill Treanor, had no love for the earmark process. It rewarded programs with a connection more than it did programs with evidence of success. It circumvented the competitive process for federal grants. Treanor once called for all youth programs in the country to rise up and flood every Congressman with an earmark request to bring the system down.

But when earmarks vanished from appropriations – at least the ones related to kids – the money went with them. There was no conversion from earmarking to open competition; the funds just went away once appropriators couldn’t deliver some pork back home. Be careful what you wish for.

Pay For Success
In February of 2011, President Obama put forth a budget proposal that included $100 million for a little-known novelty in human services funding: pay for success (PFS) projects, also known as social impact bonds. The structure involves social investors fronting the money to test the effectiveness of a particular intervention or set of interventions to address a challenge.

If agreed-upon benchmarks for success are achieved, the government partner (city, county, state) pays investors back, perhaps with interest. If benchmarks are missed, investors eat the cost. Basically, it offers often cash-strapped and risk-averse government agencies a sneak-peek at something before they buy in.

Congress nixed that request, but Obama created an incubator for social impact financing within the White House’s Social Innovation Fund. The fund has distributed millions to nine grantees, all tasked with assisting local projects on building capacity and feasibility studies for PFS projects.

“They have been tireless supporters of the idea that we need to use data to drive decision making and stop with all the recipe laws,” said Caroline Whistler, co-founder and president of Third Sector, an intermediary in the PFS space. “Recipe law” refers to legislation that pegs funding to a particular service model, assuming that it will be successful in any community while also disincentivizing innovation.

Whistler also credits the administration with helping to develop the Social Impact Partnership Act, which narrowly missed passage at the end of the last Congress and would have authorized $100 million in Treasury Department funds for PFS projects. The administration was also influential, she said, in working enabling language for PFS into the legislative overhauls of the Elementary and Secondary Education Act and the Workforce Innovation and Opportunity Act.

The jury is decidedly out on whether social impact bonds and PFS projects are going to be the salve for youth services development. It wasn’t really until 2015 that a critical mass of the projects actually started, and the first one on American soil – an ill-conceived young offender project at New York City’s adult jail complex – failed to meet benchmarks.

But if the models start to produce promising results, this administration will be remembered as an early booster.

Juvenile Justice Jeopardy
For Youth Services Insider, covering the Obama administration began in a crowded hall at the Georgetown Law School the day after his election in 2008. Dozens of juvenile justice advocates had been invited to make policy elevator pitches to a panel that had some sway with the transition team; among the panelists was Charles Ogletree, Obama’s old law professor from Harvard University.

The excitement in the room that day was off the charts. A former juvenile justice advocate and community organizer would be in the White House, someone receptive to the message of putting fewer youths behind bars, and making sure more of them were connected to legal counsel and development services. The sky was the limit.

It is very possible that juvenile justice issues will be something President Obama gets passionate about when he’s out of office. But it would be hard to say that the federal role in juvenile justice has been strengthened in the past eight years. In fact, one could argue that the federal role has been left in a more precarious state.

Following that post-election brainstorm on juvenile justice, all the buzz was about which firebrand would lead an invigorated, reform-minded Office of Juvenile Justice and Delinquency Prevention (OJJDP). Attorney General Eric Holder attended several early public juvenile justice meetings hosted by OJJDP, telling attendees that he saw juvenile justice as a legacy issue for him and the president.

The Bush administration OJJDP was led nearly from start to finish by J. Robert Flores, a former prosecutor in Manhattan. Flores ran afoul of juvenile justice advocates for, among other things, failing to vocally support the reauthorization of the Juvenile Justice and Delinquency Prevention Act (JJDPA). That is the legislation at the heart of the federal-state partnership on juvenile justice: states comply with four core standards when it comes to confining (and not confining) youths, and they are rewarded with modest formula grants from OJJDP.

Under Obama, months turned into years, and years turned into a second term, and there was never a person appointed to serve as OJJDP administrator. Holder had long ceased attendance at lowly juvenile justice meetings. It wasn’t until February of 2013 that Obama tapped Bob Listenbee, chief of the juvenile unit at the Defender Association of Philadelphia, for the job.

The Listenbee era has been pretty uneventful, from a policy perspective, and internally things got ugly. In 2015 there was an attempt by longtime staff to push him out of the job; meanwhile Sen. Chuck Grassley (R-Iowa) conducted an investigation into allegations of impropriety in JJDPA compliance monitoring.

Vows by Listenbee’s superiors to improve the process led to a year-long reorganization of the agency, followed by proposed new regulations for states on JJDPA compliance that would have drastically strained the federal-state relationship.

Only a few states are usually out of compliance with the act, and only on one or two of the standards. Under the proposed rules, 48 states would be out of compliance with virtually every standard. Flooded with critical comments from state agencies, OJJDP finalized less stringent regulations yesterday.

When you add that to the fact that JJDPA has not been reauthorized since 2002, and the fact that Congressional appropriations have dwindled for the office, it’s hard to argue that federal juvenile justice presence is stronger now than it was in 2008.

This is a bit of speculation, but YSI wonders if the administration ever shared the opinion of many national advocates that JJDPA participation should still be the dominant juvenile justice role that the federal government should play.

The administration’s proposed rules have not yet been finalized – that might be up to the incoming administration now. But the proposed structure suggests that, at the very least, this administration believes the threshold for compliance should be steeper.

In hindsight, Obama’s budget proposal from fiscal 2012 makes YSI wonder if hisJustice Department really wanted to take OJJDP in another direction, and sort of lost interest when there was backlash from advocates.

The president’s 2012 budget proposal included a plan under which JJDPA compliance would become the basic requirement for a state to compete for juvenile justice system improvement grants. So instead of a federal formula award in exchange for compliance, a state would have gotten a ticket into the game to compete for much larger awards.

It was consistent with the Race to the Top framework Obama had introduced at the Department of Education, a competitive process with high stakes for states willing to engage in big-picture reform.

The plan raised immediate and loud objection from many in the national advocacy community, and the administration quickly altered its proposal. And that was the end of that.

It Gets Better
George W. Bush will be the last president in American history who did not have to figure out how he or she would use the vast social media landscape to support, or combat, policies and ideas. that President Obama was the first president who needed to contemplate this.

A memorable, early online endeavor for Obama came in November 2010, after a 15-year-old Indiana boy hanged himself after peers taunted him for his homosexuality. Popular columnist Dan Savage posted a video on YouTube, urging young gay people that if they could just persevere through high school, a more accepting world was waiting for them. It was a realistic and heartfelt video punctuated with a three-word statement: It gets better.

“It Gets Better” became a viral campaign, featuring video from celebrities and citizens alike. And the president of the United States.

“You are not alone,” Obama said in his video. “There are people out there who love you and care about you just the way you are.”

YSI is not sure there is a president from either party that would have stood up for gay youths the way Obama did in that video, which was viewed nearly 2 million times (back when that was impressive; we used to have to use computers to watch stuff, kids!). We can only hope every president after him does.

ACA: A Legacy Unwound?
For reasons obvious to anyone still consuming news in this country, it will be difficult for a long time to figure out the legacy of Obama’s signature political achievement, the Affordable Care Act. The Republican-led Congress, and his Republican successor in the White House, are set on repealing it and replacing it.

There are many provisions of the act that helped poor families, including the expansion of Medicaid to cover more families and the protection of people with preexisting conditions. For child welfare, the ACA legacy rests largely on two pieces:

• The guarantee of Medicaid through age 26 for any youth aging out of foster care. When you combine that provision with the extended foster care provisions in the Fostering Connections to Success and Increasing Adoptions Act, the period between 2008 and 2010 were a watershed period for helping the youth in foster care who need it most: the ones we are about to push into adulthood without meaningful familial supports.
• The Maternal, Infant and Early Childhood Home Visiting Program (MIECHV), a $1.5 billion expansion of models that place health professionals with new and expecting mothers. MIECHV is now two years overdue for reauthorization, and leaders in both parties have expressed an interest in getting that done.

Well-Being: The Third Leg of Child Welfare
In 2009, Obama tapped a guy named Bryan Samuels to head up the Administration for Children, Youth and Families at the Department of Health and Human Services (HHS). It is the agency within HHS that oversees most of the child welfare spending, including the Title IV-E entitlement for foster care and adoption assistance.

It would be hard to be more qualified for a gig than Samuels was for ACYF. He headed up the Illinois Department of Child and Family Services, and then served as chief of staff for Arne Duncan, Obama’s education secretary, when Duncan was CEO of Chicago Public Schools.

And if that’s not enough, Samuels spent his formative years in a group boarding school and home as his mother struggled with addiction – technically not in foster care, as it was a voluntary placement.

This hire, YSI would argue, was among the most critical youth-related decisions Obama made. In our opinion, Samuels was a major contributor to changing the discussion of child welfare forever by pushing a notion that resonated with the field: That child well-being ought to be added to the standard measuring sticks of safety and permanency.

It is an idea more radical than it sounds. The traditional tenets of child welfare – keeping kids safe, ensuring permanent support in their lives – mostly relate to the behavior of adults, particularly parents. Child well-being requires an attention to the development of children, regardless of their being returned to birth parents, placed into a kinship arrangement or into foster care.

Samuels’ point was that, foster care or not, maltreatment inflicted on a child causes damage we ought to address with services. In the years since Samuels took that job, there has been a notable increased interest in the impact of maltreatment, and the path to addressing it, regardless of setting.

Child Welfare Data and Evaluation
Obama’s ACYF has also deserves credit for improving the infrastructure and process for federal data collection and evaluation on child welfare. The administration promulgated new rules for state data collection, freeing up states to replace the unitary system that many state agencies had complained was anachronistic and rigid (that would be the Statewide Automated Child Welfare Information System).

Those state systems feed the national collection, the Adoption and Foster Care Analysis and Reporting System (AFCARS). ACYF, for the first time since 1993, breathed some new life into the AFCARS spectrum of information, adding critical data points on Native American children, sexual orientation, failed adoptions, and health issues.

Also updated under Obama was the Child Family Services Review (CFSR), the periodic assessment of state-level child welfare performance that began under Bush. Richard Barth, one of the leading researchers on child welfare issues, had praise for the administration’s upgrades to CFSR.

“I believe that the CFSR was vastly improved,” Barth said. “The logic, underlying statistical methods, and procedures were rigorously reviewed and the implementation is much improved as a result. The approach builds on the strengths of existing state quality improvement practices in innovative ways.”

Obama, however, becomes the second president to go through his tenure without a single state passing a CFSR. And the incoming administration will have to decide how valuable the process is, as it seems to be holding nobody accountable for improvement.

HHS is empowered to issue financial penalties to states for CFSR failure, but only a handful have been docked anything.

“I can’t say that I think that taking money from states will make the difference, either; it’s hard to implement well with less money,” Barth said. “The public spectacle of failure is probably the best leverage we can get.”

So far, that hasn’t worked very well.

Rights of Disabled Parents
It did not get a lot of ink, but in 2015, pursuant to an investigation, the Departments of Justice and Health and Human Services jointly ordered the Massachusetts Department of Children and Families to return a two-year-old to the custody of her grandparents and her mother, who is mentally handicapped.

DCF, the federal agencies declared, had removed the child at birth without taking into account that the mother’s parents had made significant efforts to assist their daughter in raising the child:

“The Departments find that DCF acted based on Ms. Gordon’s disability as well as on DCF’s discriminatory assumptions and stereotypes about her disability, without consideration of implementing appropriate family-based support services.”

It was a precedent-setting statement by the administration that the rights of disabled people, under the Americans with Disabilities Act, extend to parenting. There are an estimated 4.1 million parents with disabilities.

“I’m thrilled with this decision, but it was unfortunate that it ever happened. It took two years, three months, and 12 days longer than it needed to,” said Robyn Powell, a lawyer for the National Council on Disability, a federal agency that helps lawmaker craft policies relating to disability.

“I hope other states will notice, National Council on Disability attorney Robyn Powell told The Daily Beast in 2015. “This isn’t unique at all. This happens to parents with disabilities all the time. And most stories don’t have a happy ending.”

The Man He is
Jeremy Kohomban, the CEO of juvenile and child welfare service provider Children’s Villages (CV) in New York City, said he doesn’t see a huge legacy for Obama on either child welfare or juvenile justice. But his presence in the White House, and his performance on all of the issues, had an immeasurable impact on the youths served at CV, particularly African-American males.

“We didn’t just elect a president twice; we elected a man they could look up to,” Kohomban said. “He was not just a president; he was a loving dad, who in public showed us he communicated with his children. And a great husband…very cool. That’s a big deal. Especially with older kids, boys and girls, that I work with. We needed this, and he gave it to us.”