1. Ohio CASA Celebrate Kids Conference September 19, 2019
Judge Patricia Walker FitzGerald, Ret.
Casey Family Programs
Judicial Engagement Team

2. The Adoptions and Safe Families Act, 1997 Regulations March 2000

3. Impetus for ASFA
A General dissatisfaction with the performance of state child welfare systems in achieving these goals for children and families.

4. Underlying Principle of ASFA
Every child deserves a safe, permanent home within the shortest possible time

5. Specific Purpose of ASFA
Prevent unnecessary removals
When removal necessary, must attempt reunification unless it cannot be done safely or within a reasonable period of time
If no reunification, expedite adoption or other permanent living arrangement

6. Child and Family Well-Being
OUTCOME AREAS
Safety
Permanency
Child and Family Well-Being
Safety: children protected from abuse and neglect
children safe in their own homes when possible
Permanency: permanency and stability of living arrangements
Well-being: continuity of family relationships and connected
Ky did well in 1 and 3

7. Judicial Oversight: role of judge
Prevent unnecessary removals
Assess reasonable and services and make findings as to same
Conduct regular review hearings and monitor timelines
Ensure appropriate permanency plan for all children in care and monitor progress toward same

8. Prevent unnecessary removals
No child removed who can safely remain at home
If child removed, must find continuation in the home is contrary to the welfare of the child
Finding must be in first order on removal or entire stay in foster care is ineligible for Title IV-E funds
Cannot be corrected by affidavit, nunc pro tunc orders
Must be something in record to indicate intent to make finding at the time

9. Assess reasonableness of services
Reasonable efforts: 1) to prevent removal -finding to be made within 60 days of removal or entire stay in foster care ineligible for Title IV-E 2) to finalize permanency plan -within 12 months of entry into care and annually thereafter -lack of finding disqualifies until finding made
Ok no efforts if emergency
A TOOL to achieve compliance with goals

10. Permanency goals
Reasonable efforts must be made to finalize plan within 12 months of removal—sooner if appropriate
Period may be extended if a parent is diligently working toward reunification and court can expect that reunification can occur within a time frame consistent child’s developmental needs Fed. Register Vol. 65 No. 4035

11. R/E to reunify not required if:
Court determines aggravated circumstances as defined by law
Other enumerated factors
E.g., prior involuntary tpr, assault with serious injury to this or another child or parent, homicide of child’s parent; mental illness/MR; on-going drug-alcohol abuse; other circumstances making r/e inconsistent with best interests of child and permanency plan

12. TIMELINES Case plan within 60 days of removal
Court or administrative reviews at least every 6 months from removal
Permanency hearings within 12 months of entry into foster care and every 12 mo. thereafter*
Reasonable efforts to finalize permanency plan within 12 months of entry f/c
Mandatory filing of TPR 15 of last 22 months from entry into foster care
*EXCEPT within 30 days of decision r/e not required

13. Permanency Goals Based on: Best interest Individual needs, and
Circumstances of child
Every child deserves a safe, permanent home within the shortest possible time

14. Hierarchy of Approved Permanency Goals
Reunification Adoption Legal Guardianship Permanent placement with a fit and willing relative Another planned permanent living arrangement when compelling reasons shown
Intended to encompass al legal guardianship arrangements that are permanent
Regs: Term CR adopted because far too many children given the goal of long-term foster care, which is not a permanent living situation for a child
Ex: older teen who specifically requests emancipation, parent and child have significant bond, parent unable to care for child bec of Parent’s disability and foster parent has committed to permanent placement and maintaining a bond with parent
tribe has identified other ppla
Who can change goal? Court tor agency

15. Definition of Legal Guardianship Under ASFA
2 key features:
1) Permanent
2) Self sustaining
Transfer to the caretaker the following parental rights:
Care and Control
Protection
Education
Custody
Decision making

16. What is an “APPLA?”
ASFA defines the term as “any permanent living arrangement not enumerated in the statute.”
42 U.S.C. 475(5)(C)
“Planned” means the arrangement is intended, designed, considered, premeditated, or deliberate
“Permanent” means enduring, lasting, or stable
Includes:
physical placement of the child
quality of care
supervision
nurture

17. Mandatory filing of TPR
When child in care 15 of 22 months unless compelling reasons documented
Within 60 days of determination child abandoned or R/E not required
State must begin process of finding adoptive home concurrently with filing of TPR
Compelling reasons should be used RARELY –must document not in child’s best interest to be referred for TPR, placed for adoption, pc, or relative placement
States may define compelling reasons—regs don’t
Ex: child in relative care; no legal grounds for tpr; child’s age, wishes, close bond with sibling
May avoid penalizing parent if necessary services are not available or accessible to parents

18. Compelling Reasons Examples cited in regs:
(1)   an older teen who specifically requests that emancipation be established as his/her permanency plan;
(2)   the case of a parent and child who have a significant bond but the parent is unable to care for the child because of an emotional or physical disability and the child’s foster parents have committed to raising him/her to the age of majority and to facilitate visitation with the disabled parent; or
(3) the Tribe has identified another planned permanent living arrangement for the child.
45 C.F.R. § (h)(3)(i), (ii), & (iii).

19. Putting the Information Together and Making a Safety Decision
American Bar Association:
“Child Safety:
A Guide for Judges and Attorneys”

20. Questions to ask to assess safety
1. What is the nature and extent of maltreatment?
2. What are the circumstances of the maltreatment?
3. How does the child function day to day?
4. How does the parent discipline the child?
5.What are overall parent practices and attitudes
6. How does the parent manage his own life

21. Safe Child: Unsafe child:
Vulnerable children are safe when there are no threats of danger within the family or when the parents possess sufficient protective capacity to manage any threats.
Children are unsafe when: • threats of danger exist within the family and • children are vulnerable to such threats, and • parents have insufficient protective capacities to manage or control threats.

22. Threats of Danger Specific and observable; Immediate; Out-of-control;
Severe consequences

23. Vulnerability
A child is vulnerable when he lacks the capacity to self-protect

24. Protective Capacities
Cognitive
Behavioral
Emotional

25. Determining if child is safe
Is there a threat of danger? If no, child is safe. If yes:
Is child vulnerable to that threat? If no, child is safe. If yes:
Are there sufficient protective capacities to manage the threat? If no:
Child is unsafe.

26. Reunification Do original or new threats to safety exist?
Changes in parent behavior, motivation, attitudes
Quality of parent/child relationship
Parental willingness and capacity for reunification
Child readiness and behavior
Preparation of child, parents and caregiver
On-going supports/services in place