April 17, 1998 98-R-0627
FROM: Lawrence K. Furbish, Assistant Director
RE: Federal Adoption and Safe Families Requirements
You asked what changes the state must make in its child protection laws to avoid losing money under the requirements of the federal Adoption and Safe Families Act (ASFA) of 1997 (Public Law 105-89) and the Child Abuse Prevention and Treatment Act (CAPTA) of 1996 (Public Law 104-235). Your question relates to the provisions of HB 5745, An Act Concerning Child Protection.
Federal law requires state law to specify that the child's health and safety are of paramount concern during neglect and abuse proceedings. State law must abrogate the state's responsibility to make reasonable efforts to reunite a family when the parents have committed certain acts of criminal violence or aggravated abuse. Federal law also requires the state to take certain actions relatively rapidly if it does not have to make reasonable efforts to reunify, including holding a permanency hearing for the child and moving to finalize a permanent placement.
The state must initiate a termination of parental rights procedure for any child who has been in foster care for 15 out of the last 22 months, for any infant who has been abandoned, or for any child whose parents have committed certain violent or seriously abusive acts. But federal law gives states several conditions whereby it does not have to immediately file for termination. States are given a deadline and a phase-in period to act on the required terminations for children who have been in foster care for the required period of time.
The state must hold permanency hearings within 12 months of a child entering foster care; the prior federal requirement was 18 months. Foster and pre-adoptive parents must be given notice and an opportunity to be heard in neglect and abuse proceedings but need not be made parties.
The state must check the criminal records of prospective foster and adoptive parents, but it can opt out of this requirement by affirmative action of the governor or the General Assembly. The state must document the steps it takes to find an adoptive family or other permanent living arrangement, and federal law contains a definition of guardianship, although it is not clear if states must adopt this definition. Finally, the state must have procedures for reporting suspected, as well as actual, abuse and neglect, and it must require appointment of a guardian ad litem in all abuse or neglect proceedings.
This report does not contain a number of other federal requirements that do not relate to the provisions of HB 5745. These include such things as requiring health insurance for special needs children, mandating continuation of adoption assistance to special needs children whose adoptions fall through, requiring states to spend a significant proportion of their expenditures on community-based family support and family preservation services, and imposing a number of data reporting requirements on states.
The federal requirements can be met by amending state statutes or, in many cases, by including provisions in the state plan, which is necessary in order for the state to receive federal funds.
REASONABLE EFFORTS AT FAMILY REUNIFICATION
The law must make the child's health and safety the paramount concern in determining the reasonable efforts that the state should make to preserve and reunify families (42 USCA § 671(a)(15)(A)). Reasonable efforts must be made to preserve and reunify families before children are placed in foster care, to prevent or eliminate the need to remove them from their home, and to make possible their safe return home (§ 671(a)(15)(B)).
The law must state that reasonable efforts are not required if a court has determined:
1. the parent has subjected the child to aggravated circumstances, as defined by state law (under the federal act aggravating circumstances may include, but need not be limited to, abandonment, torture, chronic abuse, and sexual abuse);
2. the parent committed murder or voluntary manslaughter on another of his children;
3. the parent aided or abetted, attempted, conspired or solicited to commit such a murder or voluntary manslaughter;
4. the parent feloniously assaulted the child or another of his children causing serious bodily injury; or
5. the parent had his parental rights involuntarily terminated for a sibling of the child (§ 671 (a)(15)(D)).
CAPTA also requires a state to have provisions in its state plan that do not require reunification under numbers 2, 3, and 4 above (42 USCA § 5106a(b)(2)(A)(xii)).
If, pursuant to these provisions, reasonable efforts are not made, a permanency hearing must be held for the child within 30 days of that determination and reasonable efforts must be made to place the child in a timely manner according to a placement plan and to finalize a permanent placement (§ 671(a)(15)(E)). Or, if the state has made reasonable efforts but determines that continuing them is inconsistent with the child's permanency plan, it must make the same reasonable efforts at placement (§ 671(a)(15)(C)). Reasonable efforts to place a child in adoption or with a legal guardian may be made concurrently as reasonable efforts to reunify the family (§ 671(a)(15)(F)).
These provisions must be in each state's plan in order to be eligible for funding, but federal law also states that they are not to be construed to preclude state courts from exercising their discretion to protect the health and safety of children in individual cases (42 USCA § 678).
TERMINATION OF PARENTAL RIGHTS (TPR)
ASFA adds new requirements to an existing federal law that requires each state plan to provide for a case plan and a case review system (42 USCA 671(a)(16). It requires the state to file for termination of parental rights when:
1. a child has been in foster care for 15 of the most recent 22 months;
2. a court has determined that the child is an abandoned infant (as defined by state law);
3. a court has determined that the parent has murdered, committed voluntary manslaughter, or aided, abetted, attempted, conspired, or solicited to commit such a murder or manslaughter on another of his children; or
4. a court has determined that the parent has committed a felony assault resulting in serious bodily injury to the child or another of his children (42 USCA § 675(5)(E)).
If another party files a termination petition, the state can seek to join as a party to the proceeding. Concurrent with the termination process, the state must identify, recruit, process, and approve a qualified family for an adoption.
ASFA specifies that the state does not have to file for termination in these instances if (1) at the state's option, the child is being cared for by a relative; (2) the agency (DCF) documents in the case plan (which must be available for court review) a compelling reason why the filing would not be in the child's best interest; or (3) the state did not provide the child's family on a timely basis with the services deemed necessary for the child's safe return home (§ 675(5)(E)).
CAPTA requires a state to have procedures in effect such that a conviction for a felony under #3 or 4, above constitutes grounds for TPR (42 USCA § 5106a(b)(2)(A)(xiii)). Under CAPTA, the state still retains sole discretion to decide on a case-by-case basis whether or not to seek termination. This provision appears to be overridden by the ASFA's requirement that the state file for termination in these cases.
Regarding the 15-month termination requirement (#1 above), AFSA specifies that a child is considered to have entered foster care on the earlier of (1) the first date he was judicially determined to be abused or neglected or (2) 60 days after he was removed from home (§ 675(5)(F).
AFSA sets out a schedule for phasing in a state's compliance with the 15-month requirement. By November 1998 (six months after the end of the first legislative session following the law's enactment), Connecticut must have begun termination proceedings for one-third of its eligible children now in foster care. During this phase, it must give priority to children whose permanency plan calls for adoption and children who have been in foster care the longest. The state must have begun termination for another one-third by May 1999 (12 months after the 1998 session ends) and by November 1999 (18 months after the 1998 session) must have begun hearings for all children now in foster care who meet the 15-month criteria. Connecticut children who enter foster care after November 19, 1997 come under the act's requirements as soon as they have been in care for 15 months (42 USAC § 675 note).
ASFA requires the state to hold a permanency hearing in family or juvenile court within 12 months of when the child enters foster care (previously, federal law required the hearing within 18 months) (42 USCA § 675(5)(C)). And a hearing must be held at least every 12 months as long as the child remains in foster care. The hearing is to develop a permanency plan for the child that must include whether and when the child will be returned to the parents, placed for adoption with the state filing for TPR, referred for legal guardianship, or placed in another planned permanent living arrangement. The last option is only available when the state has documented a compelling reason for not returning the child home or moving to terminate parental rights for adoption or placement with a relative or other legal guardian.
NOTICE TO FOSTER OR PREADOPTIVE PARENTS OR RELATIVE CAREGIVERS
ASFA requires foster parents, pre-adoptive parents, or other relatives providing care to be given notice and an opportunity to be heard in any review or hearing concerning the child (42 USCA § 675(5)(G)). This does not mean that they must be made a party to the proceeding.
CRIMINAL RECORDS CHECK
AFSA requires states to adopt a criminal records check provision, but it also allows them to opt out of this requirement by specific action of the governor or legislature (42USCA § 671(a)(20)). The state must check the criminal records of prospective foster or adoptive parents before they can be finally approved for placement of a child with them. Final approval for placement of the child must not be granted if the check reveals a felony conviction for (1) child abuse or neglect; (2) spousal abuse; (3) for a crime against children, including child pornography; or (4) for a crime involving violence, including rape, sexual assault, or homicide, but not assault or battery and a court finds that the felony was committed at any time. If the check reveals a felony conviction for physical assault or battery or a drug offense and a court finds it was committed within the past five years, final approval of the placement must not be granted.
The state can opt out of this requirement if the governor notifies the secretary of Health and Human Services of the state's intent not to follow it or the legislature passes a law making the provision not apply.
DOCUMENTATION OF ADOPTION OR PLACEMENT STEPS
ASFA requires the state to document the steps it takes to find an adoptive family or other permanent living arrangement for children whose permanency plan includes adoption or placement in another permanent home (42 USCA § 675(1)(E)). The documentation must cover attempts to find a fit and willing relative, a legal guardian, or another planned permanent living arrangement and the steps to finalize the adoption or legal guardianship. It must include child- specific use of state, regional, or national adoption exchanges, including electronic exchanges.
DEFINITION OF GUARDIAN
ASFA contains a definition of "legal guardianship" for purposes of the federal child welfare, foster care, and adoption assistance law (42 USCA § 675(7)). It is not clear if states must adopt this definition as a condition of receipt of federal funds. "Legal guardianship" is defined as a judicially created relationship between a child and caretaker intended to be permanent and self-sustaining. It is evidenced by the transfer of certain parental rights to the caretaker (legal guardian): protection, education, care and control of the person, custody of the person, and decisionmaking.
CAPTA requires states to have provisions for the reporting of suspected, as well as actual, instances of child abuse and neglect (42 USCA § 5106a(b)(2)(A)(i)).
GUARDIAN AD LITEM
CAPTA requires states to have provisions for the appointment of a guardian ad litem (GAL) in all cases involving abused or neglected children that result in a judicial proceeding (42 USCA § 5106a(b)(2)(A)(ix)). The GAL may, but does not have to, be an attorney.