Mark Hardin, ABA Center on Children and the Law © 1998 by the American Bar Association
The following are ten prerequisites for full and effectiveimplementation of the Adoption and Safe Families Act, Pub. Law 105-89 (ASFA) by the courts.
1. Child protection agencies have adequate legal representation to make it possible to achieve legally permanent homes for foster children within the timetables specified by ASFA.
For example, agency attorneys seek early termination of parental rights when appropriate, build a strong record at early stages of the case, periodically troubleshoot as the case proceeds, and are willing to risk losing in decisions to seek termination of parental rights.
This is most likely when there are specialization and training for attorneys, low caseloads, concerted efforts to recruit and retain the strongest attorneys, and careful evaluation and rewards for attorneys who successfully move cases toward timely permanence.
2. Courts make changes in judicial infrastructure necessary to make timely decisions.
For example, if state agencies file earlier termination petitions, as called for by ASFA, courts add enough judges and enough time on judicial calendars to hear and decide the termination cases at a good pace.
State court systems also make fundamental reforms such as establishing tight and comprehensive deadlines for judicial hearings and decisions, establishing information systems to monitor compliance with deadlines and other areas of judicial performance, enforcing judicial deadlines, setting aside more time for each hearing in child protection cases, reducing caseloads for child protection cases, meeting regularly to work out problems with child protection agencies and other key groups, and improving judicial calendars (e.g., setting hearings for a precise time and having one judge hear all stages of each case).
3. States adopt thorough and carefully thought out provisions to implement the ASFA revisions in reasonable efforts requirements.
For example, states enact clear and comprehensive definitions of the "aggravated circumstances" that are to be exceptions to when reasonable efforts are required.
State courts develop a procedure to consistently make determinations whether grounds not to require reasonable efforts apply. Courts make such findings because (a) agency attorneys ask for such determinations (see above) and (b) state laws, procedures, and regulations require courts to determine whether the grounds apply.
4. Permanency hearings cause states to make timely decisions for children in foster care.
States to adopt procedures for permanency hearings that make it difficult to routinely extend foster care. For example, states require such things as (a) advanced filing of motions and supporting reports systematically describing why higher priority permanency options such as return home or adoption are not possible and (b) judicial findings describing why higher priority permanency options are not possible.
States adopt strict and restrictive criteria for extending children in foster care and may fail to implement the federal requirements that the court is to order the filing of a termination petition if the goal is adoption.
5. Agencies quickly gather sufficient information to seek early termination of parental rights when appropriate.
States overcome problems with staffing or supervision, as well as overcome procedural and legal barriers to gathering gaining sufficient information to show that early termination is appropriate and legally possible. Examples of such information include criminal records of parents, mental health treatment histories and records, substance abuse treatment history, and history of past involvement with child protection agencies, including those of other states.
States eliminate cumbersome procedures for gathering the information from other agencies, and the lack of legal support for gathering the information.
6. At the beginning of each case, agencies and their attorneys formally notify (i.e., serve with summons and petition) non custodial parents, possible unwed fathers, and relatives and may fail to secure early determinations of paternity when paternity has not been established.
When non custodial parents and unwed fathers are parties to the case when the petition is first filed and the agency works both with the custodial parent, it avoids serious delays later. If the agency's work with the custodial parent eventually is unsuccessful, the agency will already have searched for the non custodial parent or putative father, determined paternity, and developed and implemented a case plan with the goal of placing the child with the non custodial parent. If the child couldn't be placed with the non custodial parent, it will be able to seek a new permanent placement.
7. The agency develops thoughtful exceptions to the ASFA requirement to file petitions for termination of parental rights within 15 months. It requires that caseworkers provide individualized information showing why the exception applies.
For example, ASFA allows delays in filing termination petitions when there are service delays of their are "compelling reasons" that filing would not be in the best interest of the child. The agency develops not standardized phrases and paragraphs workers can merely fill into forms, but rather well thought out exceptions that require the worker to add specific supporting documentation.
8. The child welfare agency provides timely services to preserve families and thus facilitates timely decisions to either return children home or permanently placed them with new families.
The agency eliminates chronic shortages of key services for families of children in foster care by funding, planning, organizing the services. Chronic shortages are overcome when the agencies, legislatures, and local governing bodies (a) set aside enough services to meet the needs of families with abused and neglected children and (b) decide services that are important enough to provide without delay to families with abused and neglected children and which services that state will not provide for such families.
Note: If a state has not provided reunification services to the family within the time contemplated in the child's case plan, and if the state believes that the services are necessary for the child's safe return home, the state is excused from filing a termination petition within 15 months after the child enters care.
9. Agencies other than the public child protection agency (e.g. substance abuse treatment and mental health treatment) provide timely services to preserve families and thus facilitate timely decisions to either return children home or permanently place them with new families. Services by other agencies are provided without long waiting lists and the duration of the services are limited to adapt to child welfare agencies' permanency planning deadlines.
Enough treatment slots are set aside for families of children in foster care to allow timely delivery of the services.
Other agencies meet with the child welfare agency and work out timetables for delivering key services that are consistent with the timetables of the child protection agency in ensuring the child a permanent home. That is, the other agencies set policies to prevent services from continuing too long nor from being continually repeated without success. Further, the other agencies develop protocols to provide frank and accurate information about the parents' success and prognosis.
10. Child protection agencies obtain enough well trained staff to recruit adoptive homes and place children in such homes.
1 The recommendations in this handout have not been adopted by the American Bar Association House of Delegates or Board of Governors and therefore do not represent official policy of the American Bar Association.