Adoption & Safe Families Act

The Adoptions and Safe Families Act Signed into law on November 19, 1997 Purpose: to remedy chronic problems with the child welfare system ASFA amended the federal foster care law Titles IV-B and IV-E of the Social Security Act Made safety and permanency the primary focus of the law

The ASFA Regulations U.S. Department of Health and Human Services (HHS) promulgated regulations in three major steps: consultation and pilot tests with several states draft regulations issued on September 18, 1998 HHS received hundreds of comments on the draft regulations The final regulations were issued on January 25, 2000, and went into effect on March 27, 2000.

The ASFA Regulations Amend existing regulations by adding new requirements for state compliance with Titles IV-B and IV-E of the Social Security Act Incorporate provisions of the Multi-Ethnic Placement Act Change certain criteria that govern Title IV-E foster care eligibility reviews Represent a shift in focus from an emphasis on case file documentation to a more outcome-driven approach where programs are measured according to actual results. States are granted sufficient flexibility to address deficiencies, and to develop and implement a program improvement plan.

Time Periods 2 different starting points in defining time periods: (1) Actual Removal (date the child is removed from the home) (2) Foster Care Entry defined as the earlier of: the date the court found the child neglected or abused; or 60 days after the child’s actual removal.

ASFA Time Periods

COURT ORDERS Must be child and case-specific Set forth in writing Can specifically reference an affidavit Can specifically reference a checklist Cannot merely reference state law NO nunc pro tunc or stipulated orders

Reasonable Efforts to Prevent Removal 2 types Reasonable Efforts to Prevent Removal The court must make a finding that the agency made reasonable efforts to prevent placement ASFA requires finding must be made within 60 days of the child’s removal If the court does not make the finding, the agency will not receive IV-E dollars for the child’s entire stay in foster care The finding must be detailed and child specific - not just a reference to state law

Reasonable Efforts Reasonable Efforts to Finalize the Permanency Plan The court must make a finding whether the agency provided reasonable efforts to finalize the permanency plan within 12 months of the child’s entry into foster care. A negative, late, insufficient or missing finding means the agency is ineligible for IV-E dollars until the court makes a positive finding.

Contrary to the Welfare Findings Must be made on the first court order following a child’s removal from home Need not use exact language If the finding is not made in the first order, the agency will NOT receive IV-E dollars for the entire length of the child’s stay in foster care The finding must be made in both emergency and non-emergency removals

No Reunification Efforts Aggravated Circumstances Enumerated Felony: Murder of a child, Voluntary Manslaughter, Aiding, Abetting, Conspiring, Soliciting to commit such murder or voluntary manslaughter, felony battery of a child Prior involuntary termination of parental rights

Termination of Parental Rights Petition must be filed when: Child in foster care 15 of the most recent 22 months Court has adjudicated child to be abandoned Court has waived duty to provide reasonable efforts to reunify Exceptions under ASFA Child living with a relative Agency has failed to provide services it has deemed necessary Compelling Reasons

2 different provisions: Compelling Reasons 2 different provisions: (1) The agency determines it has a “compelling reason” not to file a termination petition for child who has been in care “15 of the last 22 months” (2) “Compelling reason” why “another planned permanent living arrangement” is being selected as a permanency option Lack of an adoptive resource IS NOT a compelling reason, nor is being in a particular class or group

Hierarchy of Permanency Options Under ASFA Permanency Hearings Hierarchy of Permanency Options Under ASFA Return to the Parent Adoption Legal Guardianship Permanent Placement with a Fit and Willing Relative Another Planned Permanent Living Arrangement

Permanency Hearings I. Timing To be COMPLETED: Within 12 months of foster care entry Within 30 days of a judicial determination that reasonable efforts to help a child safely return home are not required Every 12 months thereafter as long as child is in foster care This applies to all children in foster care, regardless of whether the child is pre- or post-TPR, and regardless of whether the child is placed in a pre-adopt home or not.

Permanency Hearings II. What Constitutes a Permanency Hearing: Held by a court or court-approved administrative body Participation: Parent, Child, Relative caretakers and foster parents (entitled to notice and opportunity to be heard) Not a permanency hearing: ex parte proceedings, stipulations, paper reviews

All Review Hearings (a) Reintegration should be the primary focus of the agency unless aggravated circumstances, etc. (b) Progress reports from agency and foster parents every 6 months (c) For all 6 month review and permanency hearings court shall: notify all interested parties, foster parents, pre-adopt parents and relatives. determine whether child’s needs are being adequately being met and whether reintegration continues to be a viable option. determine whether agency has provided services necessary to return the child home. If court determines reintegration is not a viable option, county or district attorney or designee should file a motion to terminate parental rights within 30 days of hearing and hearing should be held within 90 days.

Six-month Reviews 1. Need and appropriateness of placement 2. Extent of compliance with case plan 3. Projected date for return, adoption or guardianship

Hierarchy of ASFA Permanency Options Return to the Parent (Limits in regs) Adoption Legal Guardianship (Defined in the regs) Permanent Placement with a Fit and Willing Relative Another Planned Permanent Living Arrangement Independent living IS NOT acceptable “AN EFFORT TO….”: Policy – Foster positive relations among professionals, parents and court Practice – Read court’s file, be aware of history and pending issues Example – Examples: 1. Mediating disputes between family members regarding termination (high conflict therapeutic mediation) 2. Allowing mental health/medical professionals to explain child’s needs in order to get buy in from parents as to treatment issues. 3. Setting up visitation plans between parents, grandparents, aunts, uncles, etc. Newton CMC example – set up visits between 3 sets of grandparents and extended family members Judicial Perspective – “BARRIERS IN CASES…”: “Push people to get as concrete as possible, the treatment plan, for example, amy call for an alcohol assessment. Ct. Facil. Will push parties to say what program will be used, and how the parent will know where to go and when to go. Phone numbers are exchanged often.” “NEUTRAL FACILITATION…”: “Conferences allow parents to ask a lot of questions regarding the pending issues at the time. Not a time to rehash entire history of case, but to make sure parents and professionals know what is expected of them – So many treatment plans have language that the parent may not understand. The plan might make reference to ‘fostering a positive parental relationship’ – does the parent know what that means? The CMC is a time to make that very clear.” “NOTES…”: Next slide

Concurrent Planning Reasonable Efforts to finalize an alternate permanency plan may be made concurrently with reasonable efforts to reunify the family Once TPR petition filed, ASFA requires the agency to identify, recruit, process and approve a qualified family for adoption. “AN EFFORT TO….”: Policy – Foster positive relations among professionals, parents and court Practice – Read court’s file, be aware of history and pending issues Example – Examples: 1. Mediating disputes between family members regarding termination (high conflict therapeutic mediation) 2. Allowing mental health/medical professionals to explain child’s needs in order to get buy in from parents as to treatment issues. 3. Setting up visitation plans between parents, grandparents, aunts, uncles, etc. Newton CMC example – set up visits between 3 sets of grandparents and extended family members Judicial Perspective – “BARRIERS IN CASES…”: “Push people to get as concrete as possible, the treatment plan, for example, amy call for an alcohol assessment. Ct. Facil. Will push parties to say what program will be used, and how the parent will know where to go and when to go. Phone numbers are exchanged often.” “NEUTRAL FACILITATION…”: “Conferences allow parents to ask a lot of questions regarding the pending issues at the time. Not a time to rehash entire history of case, but to make sure parents and professionals know what is expected of them – So many treatment plans have language that the parent may not understand. The plan might make reference to ‘fostering a positive parental relationship’ – does the parent know what that means? The CMC is a time to make that very clear.” “NOTES…”: Next slide

Home visits:Six months unless extended by court INTERRUPTIONS IN CARE Non-IV-E Eligible Placements: Detention, hospitalization, training schools, forestry camps. Home visits:Six months unless extended by court 1. Treat foster care placement as continuous. Maintain review schedule. 2. Treat as a discharge from foster care, and re-establish eligibility if child comes back into care.

Foster Parents’ Rights & Responsibilities Notice and opportunity to be heard Includes foster parents, pre-adoptive parents, and relatives having care of the child Need not be personal appearance CAROLYN: Review tools used by court facilitators to help make the D & N process go more smoothly so that children can be placed into a safe, permanent home as expeditiously as possible. Tools in a workbox that can be used as needed for prevention as well as remediation. A dual layer of tools – the Ct. Facil position is the main tool and what we use to make our positions most effective are our tools.

Licensing Requirements Foster Family Homes Licensing Requirements All foster homes, including relative homes, must meet same licensing requirements Some non-safety requirements can be waived Some time may lapse between the date when a foster family satisfies all requirements for licensure or approval and the actual date the license is issued, allow States to claim reimbursement for this period – up to 60 days. To accommodate those States where current State practice is not consistent with the requirements for foster family homes, a 6 month period to bring current foster families to appropriate licensing standards is allowed

Foster Family Homes Criminal Records Checks: Mandatory criminal records checks on potential foster and adoptive parents Not retroactive-- this requirement applies only to homes licensed after November 19, 1997 Checks required only for foster & adoptive parents, not other household members Cannot license: anyone convicted of violent felony anyone convicted of “drug related felony” in last five years

Responsibility For Placement Agency has responsibility for child’s placement Court may order specific placement and child will be IV-E eligible as long as agency had opportunity to be heard

Application of ASFA to Delinquency Cases ALL children in Title IV-E eligibility placements must meet ASFA provisions A delinquent child “enters foster care” 60 days after the child is removed from home There must be a “contrary to the welfare” finding at the first hearing on the actual removal Case plan within 60 days after removal Permanency Hearings must be held This is not a compelling reason

ICWA Indian Child Welfare Act ASFA does not change anything in ICWA The tribe may intervene at any point The tribe may plan for the child The tribe must be provided notice of proceedings affecting placement in accordance with ICWA Heightened standard for TPR plus active efforts requirement of ICWA still in place

TOP TEN ASFA MISTAKES Court orders don’t reference specifics Permanency Hearings not held Long-term foster care and independent living used as permanent plans Reasonable efforts and CTW findings late Not applying ASFA to juvenile cases Not holding reviews during interruptions in care Stopping reasonable efforts before getting court order Not using Aggravated Circumstances to move cases quickly Not documenting compelling reasons for TPR and PPLA Using reunification as a goal without time limits

ICPC Interstate Compact on the Placement of Children Regulation 7 applies when: the caretaker is a parent, guardian, adult sibling, adult aunt or uncle, non-agency guardian AND the child is under 2 yrs. of age OR the child is in emergency shelter OR the court finds the child has spent substantial amount of time in recipient’s home OR Within 30 days of receiving state having a completed referral and documentation, sending agency has not received determination. Court orders must meet specific criteria, including finding that Regulation 7 applies Compact administrators should be contacted about delays and problems Judges have authority under Regulation 7 and the UCCJEA to gain cooperation of the receiving state court See the APHSA web site at http://icpc.aphsa.org