Do You Know What ASFA of 1997 Really Says??

A decade ago, children were more likely to spend years in foster care as authorities tried again and again to reunite them with their biological families.

Reunification at ALL costs appeared to be the ultimate goal of the various state agencies. Young lives were being damaged at best and destroyed at worst with this philosophy.

The 1997 Children and Safe Families Act called on states to terminate parental rights faster so that children would be available for adoption sooner. The idea was to give more children permanent,stable homes.

I belong to numerous messageboards on line dealing with foster care and adoption issues. From various comments I have seen about ASFA it appears there are a great number of misconceptions as to what it says.

I have done extensive research to find out exactly what it says as well as what it means.

Do you know what ASFA 1997 actually includes? (Any BOLD passages have been made bold by me to emphasize the wording.) I will add some commentary at the conclusion of going through the sections of the law.

ADOPTION AND SAFE FAMILIES ACT:

The Adoption and Safe Families Act (ASFA), P.L. 105-89, 111 Stat. 2115, amending 42 U.S.C. §§671-675, was passed in 1997 to improve the safety of children and to promote adoption and other permanent homes for children who need them, as well as to continue to support families. Stating that the child’s health and safety were of paramount concern, the law made changes in and clarified some of the policies established under the Adoption Assistance and Child Welfare Act of 1980. It contained a wide range of provisions, from reauthorization of existing programs to providing adoption incentives for states.

ASFA regulations were announced by the U.S. Health and Human Services Department on January 25, 2000 and went into effect on March 27. States had 12 months in which to meet some of the requirements, but most had to be met right away. See 65 F.R. 4020 (January 25, 2000), amending 45 C.F.R. Parts 1355, 1356, and 1357.

A state must meet certain requirements in order to comply with foster care program provisions of the Title IV-E state plan or to be eligible to receive federal financial participation for foster care maintenance payments. While some requirements affect state plan compliance alone, others affect the child’s eligibility for Title IV-E foster care payments.

Reasonable Efforts Generally: The state must make reasonable efforts to: 
maintain the family unit and prevent the unnecessary removal of a child from his or her home, as long as the child’s safety is assured; effect the safe reunification of the child and family (if temporary out-of-home placement is necessary to ensure the immediate safety of the child); and make and finalize alternate permanency plans in a timely manner when reunification is not appropriate or possible. 45 C.F.R. §1356.21(b).

“Contrary to Welfare” Determination in First Court Ruling: A child’s removal from the home must be the result of a judicial determination that continuation in the home would be contrary to the welfare of the child, or that placement outside the home would be in the best interest of the child. This determination must be made in the first court ruling that sanctions (even temporarily) the removal of the child from the home. If this “contrary to the welfare” determination is not made in the first court ruling, the child is not eligible for Title IV-E foster care payments for the duration of that stay in foster care. The omission cannot be remedied. 45 C.F.R. §1356.21(c).
 
Reasonable Efforts to Prevent Removal: When a child is removed from his or her home, a judicial determination as to whether reasonable efforts were made, or were not required, to prevent removal must be made no later than 60 days from the date the child is removed from his home. If this determination is not made, the child is not eligible for Title IV-E foster care payments for the duration of that stay in foster care. 45 C.F.R. §1356.21(b)(1).

Reasonable Efforts Not Required: Reasonable efforts to prevent removal or to reunify the family are not required where the state agency has obtained a judicial determination that such efforts are not required because:
 
The parent has subjected the child to aggravated circumstances (as defined in state law);
The parent has been convicted of murder or voluntary manslaughter of another child of the parent, aiding or abetting, attempting, conspiring or soliciting to commit murder or voluntary manslaughter, or a felony assault that results in serious bodily injury to the child or to another child of the parent; or
Parental rights have been terminated involuntarily with respect to a sibling. 45 C.F.R. §1356.21(b)(3).
 
Foster Care Placement; Limit on Court Role: To satisfy the requirements for a case plan for each child (see §38.3 on P.L. 96-272), the state agency must promulgate policy materials and instructions for use by staff to determine the appropriateness and necessity for the foster care placement of the child. Federal financial participation in foster care payments is not available when a court orders a placement with a specific foster care provider. 45 C.F.R. §1356.21(g).

Permanency Hearing; Deadline: Previously, the Adoption Assistance and Child Welfare Act required that states hold dispositional hearings within 18 months after placement of a child in foster care. ASFA repeals this provision and establishes a permanency planning hearing. This hearing must occur within 12 months of the date a child “is considered to have entered foster care,” or within 30 days of a judicial determination that reasonable efforts to reunify the child and family are not required. A child “is considered to have entered foster care” on the earlier of the date of the first judicial finding of abuse or neglect or the date that is 60 days after the child is removed from the home. 45 C.F.R. §1355.20(a).

Permanency Plan Set at Hearing: The court must determine the permanency plan, or goal, for the child at the permanency hearing. 45 C.F.R. §§1355.20 and 1356.21(h). (This hearing to determine the permanency plan does not have to be the “permanency hearing” described in state law. Under ASFA, the court can hold a hearing on the permanency plan any time, which must be at least every twelve months; the state law presumptions at permanency hearings under the Children’s Code are a separate matter.)
 
Permissible plans: Permissible permanency plans, or goals, under ASFA are:
Return to parent;
Adoption;
Legal guardianship;
Placement permanently with a fit and willing relative; or
Another planned permanent living arrangement, but only if the state agency has documented to the court a compelling reason why none of the other options would be in the child’s best interest. The regulations offer examples of compelling reasons, including that of an older teen who specifically requests that emancipation be his or her permanency plan. 45 C.F.R. §1355.20
 
Reasonable Efforts to Finalize Plan: The state agency must obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan that is in effect (whether the plan is reunification, adoption, legal guardianship, placement with a fit and willing relative, or placement in another planned permanent living arrangement). This determination must be made within 12 months of the date the child is considered to have entered foster care, and at least once every twelve months thereafter while the child is in foster care. If the determination is not made, the child becomes ineligible for Title IV-E payments after the end of the twelfth month following the date he or she is considered to have entered foster care, and remains ineligible until such a determination is made. 45 C.F.R. §1356.21(b)(2).
 
TPR Required: Deadline for Filing. The state must file or join in a petition to terminate parental rights if the child has been in foster care for 15 of the most recent 22 months. The petition must be filed by the end of the child’s 15th month in foster care. 45 C.F.R. §1356.21(i)(1)(i).

This 15 month period runs from the date on which the child is considered to have entered foster care, that is, the date on which the child was adjudicated an abused or neglected child or the date 60 days after the child was removed from the home, whichever comes first. 45 C.F.R. §1355.20(a).

TPR Within 60 days of Felony Determination: If the parent has been convicted of one of the felonies listed in the regulations, the petition to terminate must be filed within 60 days of a judicial determination that reasonable efforts to reunify the child and parent are not required. 45 C.F.R. §1356.21(i)(1)(iii) 

TPR Within 60 days of Abandoned Infant Determination: If a child is determined by the court to be an “abandoned infant” (as defined by state law), the petition to terminate must be filed within 60 days of the judicial determination that the infant is abandoned. 45 C.F.R. §1356.21(i)(1)(ii). 

Exceptions to TPR Requirement: The state agency may elect not to file for TPR if: 
at the agency’s option, the child is being cared for by a relative; the agency has documented in the case plan (which must be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the individual child, or the agency has not provided to the family services that the state deems necessary for the safe return of the child to the home, when reasonable efforts to reunify the family are required. 45 C.F.R. §1356.21(i)(2).

Recruiting Adoptive Family Begins At Filing for TPR: When the state files a petition to terminate parental rights, it must concurrently begin to recruit, identify, process and approve a qualified adoptive family on behalf of the child, regardless of age. 45 C.F.R. §1356.21(i)(3).

Specific Findings on Contrary to Welfare and Reasonable Efforts Required: Judicial determinations regarding contrary to the welfare of the child, reasonable efforts to prevent removal and reasonable efforts to finalize the permanency plan in effect, including judicial determinations that reasonable efforts are not required: must be explicitly documented, must be made on a case-by-case basis, and so stated in the court order. 

A transcript of the court proceeding is the only other documentation that will be accepted to verify that these determinations have been made. Affidavits, nunc pro tunc orders, and references to state law are not acceptable. 45 C.F.R. §1356.21(d

Commentary:

As one reads through ASFA 1997 it all sounds very good. Unfortunately, as with many laws, it is not worth the paper it is written on. The states DO NOT follow the act and they in the past years have NOT suffered any penalty; though the youth have!

Termination of parental rights petitions are rarely filed following the 15/22 rule. Agencies and judges seem to believe this is a guideline rather than a mandate. They continuously restart the clock giving bios chance after chance to get their act together. Meanwhile the youth continues to linger in limbo.

This is despite a ruling by a Federal Judge in 2001:

Case Law:

http://ssw.unc.edu/fcrp/fp/fp_vol6no1/wijudge_sue_speedy_adoption.htm

The law requires, except where exempted, reasonable efforts to reunify youth with their parents. It appears that states are using the Exceptions to TPR Requirements clause in any way possible to not follow the 15/22 clause. Some states continue, seven years after implementation, to operate under the old philosophy of reunify at all costs no matter how long it may take.

You can quote the Adoption and Family Safety Act of 1997 and get a totally blank look from the people who are supposed to be in charge of enforcing the act. They need to get “all their ducks in a row” and follow the intent of the act which is “the best interest of the child is uppermost”. As it stands now, it’s the rights of the parents.  Their “civil rights” have to be protected no matter how much further damage is done to the children already scarred by the placement in the system.

A law is good only if it includes enforcement and penalty clauses; ASFA does not! The federal government completed it first audit of all 50 states in 2005 to see if they met the minimum of seven standards. The results were/are alarming as not one single state passed the audit. Despite this result not a single state was penalized.

Overall it appears to me that ASFA of 1997 has been a failure! You may read other of my blog entries that sight the various statistics for the past several years.

I could go on in length but will conclude this commentary with a simple statement: “It is time for the general public to demand the law be enforced. It will be to society’s benefit but more importantly to the youth languishing in the system.”  

Right to be heard:

I have addressed this issue in a previous blog entry but thought it appropriate to also include it here so the two laws would be together.

U.S. Department of Health & Human Services, Administration for Children & Families web site includes the following:

8.3C.2b  TITLE IV-E, Foster Care Maintenance Payments Program, State Plan/Procedural Requirements, Case review system, notice and opportunity to be heard
 
2. Do the notice requirements in section 475(G) of the Social Security Act apply to all court hearings? Do they apply to shelter care, emergency removal, adjudication and disposition hearings? Do they apply to procedural hearings, such as pretrial hearings or hearings on motions for discovery?
 
Answer:  The revised statutory language confers a “right” to be heard instead of an “opportunity,” as well as changes such right to be heard to a “proceeding” instead of “review or hearing” as in the previous language. Thus, we are interpreting this change to mean that in having a “right” to any “proceeding” to be held with respect to the child, the foster parents, pre-adoptive parents or relatives providing care for a child must, at a minimum, be provided with notice of their right to be heard in all permanency hearings, as well as six-month reviews, if held by the court.
Source:  01/29/07
Legal Reference:  Social Security Act – section 475(5)(G), 45 CFR 1356.21(o)

If you wish to go to the source:
http://www.acf.hhs.gov/j2ee/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=1