1998 State Legislative Responses to the Adoption and Safe Families Act of 1997
State Legislative Report
March 1999
Vol. 24, No. 5
By Steve Christian, Senior Policy Specialist
President Clinton signed PL 105-89, the Adoption and Safe Families Act of 1997 (ASFA), in November 1997. Widely regarded as the most significant piece of federal child welfare legislation in almost 20 years, ASFA requires numerous changes to state laws and policies to remain eligible for federal funds under Titles IV-B and IV-E of the Social Security Act. Congress enacted the new law in response to growing dissatisfaction with the child welfare system and in recognition of reform efforts and innovations under way in many states.
ASFA emphasizes safety and permanence for children who have been removed from home because of abuse or neglect. The legislation is partly a reaction to cases in which agencies allowed children to remain in or return to unsafe homes based on a misinterpretation of the federal requirement for "reasonable efforts" to preserve and reunify families. Federal lawmakers also were concerned about the dramatic growth in the number of children in temporary foster care and their need for permanent, stable families. The number of children in foster care rose from 270,000 at the end of 1985 to approximately 502,000 at the end of 1996 (1).
The goals of ASFA are to clarify the "reasonable efforts" requirement, expedite the process of placing children with permanent families when they cannot return home, emphasize child safety and promote adoption when appropriate for the child. More specifically, ASFA:
- Clarifies when reasonable efforts to preserve or reunify families shall not be required under federal law.
- Defines when states must initiate proceedings to terminate parental rights and immediately begin seeking permanent placements for children.
- Requires states to make reasonable efforts to find permanent homes for children who cannot safely be returned to their families.
- Accelerates the time frame for permanency hearings and modifies the purpose of such hearings.
- Provides incentive payments to states that increase the number of adoptions of foster children.
It is important to note that, notwithstanding ASFA, federal law still requires states to make reasonable efforts to keep families together when the child's safety can be assured and it is in the child's best interest.
Many of the policy changes in ASFA were modeled on existing state legislation. For example, at the time ASFA was being debated, a number of states had passed legislation expediting the permanency process, including shortening time frames for permanency hearings. Other states, including Arizona, California, Colorado, Rhode Island, Utah and Washington, expanded on the list of cases in pre-ASFA federal law in which states cannot require reunification of foster children with their families (2). Still others, including Florida, Illinois, Michigan and Rhode Island, specified when the state would be required to begin proceedings to terminate parental rights.
For the most part, ASFA leaves it to states to determine which state plan requirements must be incorporated in state statute. Although laws are not expressly required to implement the bulk of ASFA's provisions, those that affect court process and decision making will probably require legislation in most states. In fact, the overwhelming majority of states that enacted legislation to implement ASFA in 1998 amended or added statutory provisions regarding timing of permanency hearings, judicial reasonable efforts determinations and the requirement for proceedings to terminate parental rights. At the same time, no state enacted legislation to cover every single ASFA mandate. Clearly, states have determined that at least some of the law's requirements are best implemented by changes to administrative regulations, court rules or internal agency policy, rather than state law.
ASFA became effective on the date of enactment, which was November 19, 1997. The law, however, permits a delayed effective date with respect to those provisions of ASFA that require state legislation, as determined by the secretary of the U.S. Department of Health and Human Services (DHHS). The delayed effective date may be no later than the beginning of the first calendar quarter after the close of the first regular state legislative session that takes place after November 19, 1997. In January 1998, DHHS requested each state to identify which ASFA requirements would require changes to state law. Every state certified that at least some of ASFA's requirements would require state legislation and requested a delayed effective date for those requirements.
How State Legislatures Have Responded To ASFA
In 1998, 38 states enacted ASFA-related legislation. Click here for a table of those states and their laws. Six states, Arkansas, Montana, Nevada, North Dakota, Oregon and Texas, did not have regular legislative sessions in 1998. Six states, Louisiana, Massachusetts, New Hampshire, New Jersey, New Mexico and New York, and the District of Columbia were in session but did not enact legislation in response to ASFA. As stated, most state legislation enacted in 1998 centered on the provisions of ASFA regarding reasonable efforts, termination of parental rights and permanency hearings.
Clarification of the Reasonable Efforts Requirement
ASFA states that reasonable efforts to prevent removal of a child or to reunify families shall not be required in certain specified cases and, in addition, in those cases in which the child has been subjected to "aggravated circumstances," as defined in state law (3). In 1998, 31 states enacted legislation to implement this provision. ASFA also provides that the child's health and safety are the paramount concern in decisions regarding reasonable efforts. Most states included this language in their ASFA legislation. ASFA does not prohibit states from making reasonable efforts even in those circumstances in which such efforts are not required by federal law. Four states, however, have legislated a presumption against reasonable efforts in certain cases. A California statute enacted prior to ASFA prohibits a court from ordering reunification services in certain cases, including severe sexual or physical abuse, abandonment, and failure to comply with a prior treatment plan for chronic alcohol or drug abuse. The court, however, may order services if it finds by clear and convincing evidence that reunification is in the child's best interest (4). Arizona, Georgia and Utah enacted a similar statutory presumption against services (5).
Mandatory Cases
ASFA mandates that reasonable efforts shall not be required when a court has determined that a parent has (a) committed murder or voluntary manslaughter of another child of the parent, (b) aided, abetted, attempted, conspired or solicited to commit such murder or manslaughter, (c) committed a felony assault that results in serious bodily injury to the child or another child of the parent, or (d) had parental rights to a sibling terminated involuntarily Click here to see how states responded to this requirement. Of the 38 states that passed ASFA legislation in 1998, 30 either relied on existing law or enacted new law to adopt all of these mandatory conditions. Most states adopted the language contained in ASFA. Six states, however, modified the condition regarding termination of parental rights to a sibling to allow for the possibility of parental rehabilitation. Before a court may determine that reasonable efforts are not required, Alaska, Arizona, California and Oklahoma require the court to determine that the parent failed to correct the conditions that led to loss of parental rights and is currently unable to discharge parental responsibilities (6). Connecticut limits the condition to terminations that occurred within the past three years and requires the state to have made reasonable efforts toward reunification for at least 90 days (7). Iowa requires clear and convincing evidence that services would not be likely to correct within a reasonable time the conditions that led to the termination of parental rights (8).
Aggravated Circumstances
While the specific cases described above are relatively rare, states may cover a broader range of criminal activity, child maltreatment and family conditions by defining "aggravated circumstances" under which reunification services are not required. These may include, but need not be limited to, abandonment, torture, chronic abuse and sexual abuse (3). Twenty-eight states included one or more of these terms in their definitions of aggravated circumstances. The terms are not defined in ASFA and very few states defined them in law. A relatively small number of states enacted additional aggravated circumstances. Click here for a table of the aggravated circumstances enacted by states in 1998.
Reasonable Efforts to Place Children in Permanent Homes
ASFA contains a new requirement that, if a state does not make reasonable efforts to preserve or reunify families, or if such efforts are discontinued, it must make reasonable efforts to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child (3). Proposed regulations issued by the U.S. Department of Health and Human Services would require the court to determine at least once every 12 months that the state made such reasonable efforts. Without such a finding, the child would become ineligible for Title IV-E foster care maintenance payments (9). Neither ASFA nor the proposed regulations define "reasonable efforts." In 1998, 20 states enacted language relating to the new reasonable efforts requirement. Most of these states adopted the language from ASFA without elaborating on what kind of efforts are required.
Concurrent Permanency Planning
ASFA also clarifies that states may engage in "concurrent permanency planning," in which efforts to reunify families are made concurrently with efforts to place the child for adoption or in some other permanent arrangement (3). Twenty states passed legislation in 1998 either allowing or requiring concurrent permanency planning (10). Of the states that allow concurrent planning, most simply adopted the language contained in ASFA or some variant thereof. A 1997 Illinois law directs the state to conduct concurrent permanency planning and requires consideration of a number of factors when determining the appropriateness of concurrent planning, including the likelihood of prompt reunification, past history of the family and barriers to reunification being addressed by the family (11). Minnesota enacted legislation in 1998 requiring the state to establish a program of concurrent planning, including guidelines, technical assistance and protocols for local service agencies. The legislation appropriates funds for the program and requires an evaluation and a report to the Legislature (12).
Termination of Parental Rights
ASFA requires the state to file a petition to terminate parental rights in the following cases (13):
- A child has been in foster care for 15 of the most recent 22 months,
- A court has determined a child to be an abandoned infant (as defined under state law), or
- The parent has been convicted of murder or voluntary manslaughter of another child of the parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or manslaughter, or of felony assault that has resulted in serious bodily injury to the child or to another child of the parent.
ASFA does not require the filing of a petition in the following circumstances:
- The child is being cared for by a relative,
- The state has documented in the case plan a compelling reason for determining that filing a petition would not be in the best interest of the child, or
- The state has not provided the services necessary for the safe return of the child (if the state is required to make reasonable efforts to reunify the family).
As with the requirement to clarify reasonable efforts, states responded to the termination of parental rights requirement in a number of different ways. The following discussion summarizes how state legislatures responded to this requirement. See also the table here.
Children in Foster Care for 15 of most Recent 22 Months
Twenty-one states adopted the language in ASFA. Four states, Ohio (14), Florida (15), Rhode Island (16) and Michigan (17), require termination proceedings after the child has been in foster care for 12 months. California requires the court to order a termination hearing if the child is not returned home within 12 months and the case plan is not extended (4).
Abandonment of Infant
Of the states that enacted ASFA legislation in 1998, 25 included a statutory requirement to initiate termination of parental rights proceedings for abandoned children (18). Six of these states-Alabama, Connecticut, Michigan, Ohio, Rhode Island and West Virginia-apply this provision to any abandoned child, not just infants. States that limited this provision to infants varied widely in terms of the upper age limit on infancy. Infants were defined as children under age 6 (Alaska), under age 3 (Washington), under age 2 (Illinois, Oklahoma), 18 months or younger (Nebraska), and under age 1 (Iowa, Tennessee, Utah, Wisconsin). States also adopted various definitions of abandonment.
Murder, Manslaughter, Felony Assault
Twenty states enacted legislation in 1998 to require termination proceedings under all of these circumstances. Some states specified additional crimes or conduct. These include Illinois (aggravated criminal sexual assault), Maryland (crime of violence), Michigan (certain criminal sexual conduct), Minnesota (crimes under definition of "egregious harm") and Rhode Island ("cruel and abusive" conduct toward any child).
Other
Alaska, Iowa, Indiana, Kansas, Maine, Ohio, Pennsylvania and Washington require initiation of proceedings when the court has determined the existence of aggravated circumstances and that reunification services are not required.
Exceptions to the Filing Requirement
Twenty-three states adopted in statute all three of the exceptions to the filing requirement stated in ASFA, namely that the child is being cared for by a relative, that there are compelling reasons why termination is not in a child's best interest or that services were not provided to the family. Although the wording is relatively uniform from state to state, a few enacted modified versions. For example, Indiana provides that the third exception, that reunification services were not provided, applies either when the time period for completion of the services has not expired, or when the services that were not provided are "substantial and material" (19). South Carolina added language to the third exception making it applicable only when the parent has not delayed or refused services (20).
No state attempted to define in law the "compelling reasons" why termination of parental rights would not be in the child's best interest. At least two states, however, provided examples. Iowa's law says that compelling reasons include a reasonable likelihood that completion of services will make it possible for the child to safely remain home or return home within six months (21). In West Virginia, compelling reasons include the child's age and preference regarding termination of parental rights and that the child is in placement as a juvenile delinquent (22).
A few states have enacted other exceptions. Although not expressly authorized by ASFA, these could be considered "compelling reasons" why termination of parental rights should not be initiated. California provides an exception when the parent has maintained contact and the child would benefit from continuing the relationship (23). California, Iowa and Rhode Island allow for an exception when the court finds that the child's return home is probable within a specified period of time (24). California also provides exceptions for cases in which the child is 12 or older and objects to termination of parental rights, or in which the child is in a residential facility, adoption is unlikely and termination of parental rights is unnecessary for placement of the child with a permanent family (23). Finally, Colorado's law provides that 15 months in foster care is not a ground for termination of parental rights when it is due to circumstances beyond the parent's control, such as court delays or incarceration (25).
Permanency Hearings and Plans
ASFA changes prior federal law regarding the timing of permanency hearings, at which the court determines the permanent plan for a child in foster care. A permanency hearing must be held no later than 12 months after the child enters foster care, instead of the 18 months under prior law. ASFA also requires, in cases in which a court determines that reunification services need not be provided, that a permanency hearing be held within 30 days after such determination. The requirement for earlier permanency hearings follows a trend in state law. When ASFA was enacted, 27 states already required in statute a hearing earlier than 18 months.
In addition to shortening deadlines for permanency hearings, ASFA requires the court to determine a permanency plan that establishes a planned permanent living arrangement for the child. The plan may be to return the child to the parent, initiate a proceeding to terminate parental rights and place the child for adoption, refer the child for legal guardianship or place the child with a fit and willing relative. Any other option, including permanent foster care, requires the state agency to document a "compelling reason" that one of the preferred options would not be in the child's best interest.
In 1998, 34 states enacted laws to conform to ASFA's time frame for permanency hearings. Some states enacted more stringent timelines than those required by ASFA. These include Maryland (11 months after the child enters out-of-home placement), Minnesota (within six months of out-of-home placement if the child is less than 8 years old), Oklahoma (effective Jan. 1, 2000, within six months after out-of-home placement for children under age three at the time of removal), and Vermont (a permanency hearing may be held within three months for children under age three and within six months for children between three and six).
Eighteen states amended their laws regarding the contents of court-ordered permanency plans. All of those states listed the permanency options set forth in ASFA and most of them included the requirement for a showing of compelling reasons for certain permanency options. No state, however, defined or gave examples of such compelling reasons. Three of the 18 states that made conforming amendments did not require a showing of compelling reasons for any permanency option.
Other ASFA Requirements
In addition to the requirements described above, ASFA contains a number of other provisions intended to improve safety and permanency for children in state care.
Criminal Background Checks
Unless a state opts out of this provision through legislation or a letter from the governor to DHHS, ASFA requires it to conduct criminal background checks on prospective foster and adoptive parents who will receive foster care maintenance payments or adoption assistance payments on behalf of a child. States that adopt this provision must not approve any foster or adoptive parent for purposes of federal foster care or adoption assistance payments when a background check reveals certain crimes (26). Fifteen states passed laws in 1998 concerning this provision of ASFA. They varied widely on the types of licensure requiring background checks, the list of disqualifying offenses and the time limits applicable to disqualification. Idaho and Oklahoma opted out of this provision through legislation. Massachusetts and Colorado opted out with letters to DHHS from their governors.
Adoptions Across State and County Jurisdictions
ASFA contains two provisions intended to help overcome interjurisdictional barriers to adoption. First, state plans under Title IV-B of the Social Security Act must contain assurances that the state will develop plans for the effective use of cross-jurisdictional resources to facilitate timely adoptive or permanent placements. Second, a state must not deny or delay the adoptive placement of a child when an approved family is available outside the relevant jurisdiction (which may be the county or the state, depending upon whether the state's child welfare system is administered by counties or by the state) (27). States that violate this provision can incur financial penalties.
Six states passed laws in this area in 1998. California, Missouri, Rhode Island and South Carolina prohibit delaying or denying an adoptive placement to an approved family outside of the jurisdiction. Utah requires the state to develop plans for effective use of cross-jurisdictional resources. A few states enacted other types of legislation to improve interjurisdictional adoptions. Alaska's law authorizes the state to enter into the Interstate Compact on Adoption and Medical Assistance, a vehicle for the efficient management and delivery of interstate adoption benefits and services. Thirty-seven states are parties to the compact. Illinois and Ohio authorized state agencies to enter into interstate agreements for adoption assistance, including medical assistance. California, in which the child welfare system is county-administered, included a requirement that the state establish a statewide exchange system that interjurisdictionally matches waiting children and approved adoptive families.
Health Insurance for Special Needs Children
ASFA requires states to provide medical assistance to an adopted child with special needs who is covered by a state-funded adoption assistance agreement. Currently, all states provide some form of health insurance coverage to such children. Forty-five states and the District of Columbia provide optional Medicaid coverage, and five states provide coverage through programs funded solely with state dollars.
Foster Care Standards
ASFA requires that states develop and implement standards to ensure that children in foster care are provided quality services that protect their health and safety. Only Tennessee enacted a provision reflecting this requirement. Most states are likely to address this provision through regulation.
Notice Requirements
ASFA requires that foster parents, preadoptive parents and relative caregivers be given notice of and an opportunity to be heard in any review or hearing with respect to the child. All but seven of the states that enacted ASFA legislation in 1998 included this provision.
Conclusion
Responding to ASFA was a high priority for state legislatures in 1998. Given the complexity of the federal law and the lack of time provided for implementation, the states did an impressive job of incorporating ASFA's many requirements into the existing statutory framework governing child protection and the permanency process. In some respects, however, lawmakers have just begun responding to the challenges posed by the federal law. Even after ASFA, the permanency goal for most children in state care will be to return home as quickly as possible. States will find it hard to achieve that goal if appropriate and effective services are not provided to families in a timely manner. When services are delayed, agencies and courts are unable to make informed decisions about parents' ability to protect and care for their children, and such children will continue to languish in foster care. Another long-term challenge for states will be to craft appropriate permanency options for those children for whom neither reunification nor adoption is a viable plan. Several states have established subsidized guardianship programs, using TANF dollars, state funds or Title IV-E waivers, to provide ongoing assistance to caregivers for whom adoption is not possible or desirable. Another issue under ASFA is the capacity of state courts and child welfare agencies to meet the new federal requirements without a significant increase in resources. At the very least, judges, attorneys, court personnel and child welfare staff will require training on how to comply with the new mandates. Finally, both states and the federal government are moving toward an increased emphasis on achieving positive results for children and families. States face the challenge of framing child and family outcome measures and reforming systems to ensure the safety, permanence and well-being for children in state care.
Notes
1. U.S. House of Representatives, Committee on Ways and Means, Background Material and Data on Programs within the Jurisdiction of the Committee on Ways and Means: The 1998 Green Book (Washington, D.C.: U.S. Government Printing Office, 1998).
2. In order to receive grant funds under the Child Abuse Prevention and Treatment Act, states cannot require reunification of a child with a parent who committed murder or voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired or solicited to commit such murder or manslaughter, or committed felony assault resulting in serious bodily injury to the child or another child of the parent. P.L. 104-235, Sec. 107.
3. 42 U.S.C. 671(a)(15).
4. Cal. Welfare and Institutions Code, sec. 361.5.
5. Ariz. Rev. Stat. Ann. Sec. 8-846; Ga. Code Sec. 15-11-41; Utah Code Ann. Sec. 78-3a-311.
6. Alaska Stat. Sec. 47.10.086(c)(8); Ariz. Rev. Stat. Ann. Sec. 8-846.C.6.; Cal. Welfare and Institutions Code Sec. 361.5(b)(10); Okla. Stat. Tit. 10, Sec. 7003-4.6.A.11.b.
7. 1998 Conn. Acts, P.A. 98-241, Sec. 7.
8. Iowa Code Sec. 232.102.
9. Federal Register 63, no. 181, September 18, 1998.
10. Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Iowa, Idaho, Maryland, Maine, Minnesota, Missouri, Mississippi, Nebraska, North Carolina, Oklahoma, Rhode Island, South Carolina, Wisconsin and West Virginia.
11. P.A. 90-28, amending 20 ILCS 505/5.
12. 1998 Minn. Laws, Chap. 406.
13. 42 U.S.C. 675(5).
14. Ohio Rev. Code Sec. 2151.413.
15. Fla. Stat. Sec. 39.703.
16. R.I. Gen. Laws Sec. 40-11-12.1(d)(5).
17. Mich. Comp. Laws Sec. 712A.19a (5).
18. The 1996 amendments to the Child Abuse Prevention and Treatment Act, P.L. 104-235, required states, as a condition of eligibility to receive grant funds under that statute, to certify the existence of provisions, procedures and mechanisms for expedited termination of parental rights in cases of infants determined to be abandoned under state law. The required provisions must be in place within 2 years from the date of enactment, which was October 3, 1996.
19. Ind. Code Ann. Sec. 31-35-2-4.5 (effective July 1, 1999).
20. S.C. Code Ann. Sec. 20-7-768(C)(2).
21. Iowa Code Sec. 232.111.
22. W.Va. Code Sec. 49-6-5b.
23. Cal. Welfare and Institutions Code Sec. 366.26; Iowa Code Sec. 232.111; R.I. Gen. Laws Sec. 40-11-12.1.
24. Cal. Welfare and Institutions Code Sec. 366.26.
25. Colo. Rev. Stat. 19-3-604.
26. 42 U.S.C. 671(a).
27. 42 U.S.C. 674.
This publication was made possible through funding from the Children's Bureau of the U.S. Department of Health and Human Services and the Dave Thomas Foundation for Adoption.
STATE LEGISLATIVE REPORT is published 12 to 18 times a year. It is distributed without charge to legislative leaders, council and research directors, legislative librarians, and selected groups for each issue. For further information on STATE LEGISLATIVE REPORT or to obtain copies, contact the NCSL Book Order Department in Denver at (303) 830-2054.
© 1998 by the National Conference of State Legislatures.
For additional information on Adoption and Safe Families Act contact Steve Christian at 303/364-7700
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