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 RegulationsU.S. Department of Health and

Human Services (HHS) promulgated regulations in three major steps:

1. consultation and pilot tests with several states

2. draft regulations issued on September 18, 1998

3. 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 RegulationsAmend 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

Requirement Deadline Starting DateCase Plan 60 days Actual Removal

Reasonable Efforts toPrevent Removal

60 days Actual Removal

Six-Month PeriodicReview

6 months Foster Care Entry

Permanency Hearing 12 months Foster Care Entry

Reas Efforts to FinalizePermanency Plan

12 months Foster Care Entry

Mandatory TerminationPetition Filing

15 of the last 22 months Foster Care Entry

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 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 EffortsReasonable 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

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

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

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.

INTERRUPTIONS IN CARE

Non-IV-E Eligible Placements: Detention, hospitalization, training

schools, forestry camps.Home visits:Six months unless

extended by court1. 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

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