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Young boy with basketballLearning About the Adoption and Safe Families Act

What is the Adoption and Safe Families Act?

The Adoption and Safe Families Act (ASFA), Public Law 105-89, was enacted in November 1997 with bipartisan support. ASFA amends the 1980 Adoption Assistance and Child Welfare Act by taking further steps to promote safety and permanence for children who have been alleged or determined to be abused and/or neglected. Congress and the Administration were especially concerned about reports that children were being left in, or returned from foster care to, unsafe family situations and that an estimated 100,000 children were in foster care waiting for adoptive families. ASFA includes a number of specific provisions that require or provide incentives for states to change policies and practices to better promote children's safety and adoption or other permanency options. ASFA also requires the Department of Health and Human Services (HHS) and the U.S. General Accounting Office (GAO) to prepare several reports to assist Congress in making future decisions on behalf of children in the child welfare system. ASFA provides a unique opportunity to begin to move children who have been lingering in foster care without permanent plans into permanent homes. By clearing the system of these cases, the child welfare system should be better able to respond to children just entering care so they and their families can get the help they need and prompt permanency decisions can be made.

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What does ASFA do to help keep children safe?

ASFA enhances children's safety by:

  • Specifying that a child's health and safety must be paramount when decisions are made about the initial removal of a child from his or her home, the return home, and the care a child receives while in foster care or in an adoptive family.
  • Clarifying that there is nothing in federal law requiring that a child remain in or be returned to an unsafe home. Federal law requires that state child welfare agencies make reasonable efforts to prevent the unnecessary placement of children in foster care and to reunify children in foster care with their families. ASFA includes specific examples where it would not be reasonable to require services to reunify children with their families and invites states to establish others in state law, if they have not already. The situations specified in ASFA where reasonable efforts are not required include where a court determines that a parent has committed murder or voluntary manslaughter of another of his/her children or a felony assault that results in serious bodily injury to his/her child; a parent has subjected the child to aggravated circumstances as defined in state law; or the parental rights to a sibling of the child have been involuntarily terminated.

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What are the primary ways that ASFA promotes adoption and other permanency options for children?

ASFA intends to promote adoption and other permanency options by:

  • Establishing expedited timelines for determining whether children who enter foster care can be moved into permanent homes promptly — their own homes, adoptive homes or other planned permanent living arrangements. Two new timelines are imposed. First, permanency hearings must be held for children no later than 12 months after they enter foster care (6 months earlier than under prior law). Second, state agencies must review their existing caseloads and track new children entering care so that termination of parental rights (TPR) proceedings will be initiated for children who have been under the responsibility of the state for 15 out of the most recent 22 months, unless, in individual cases, certain exceptions apply.
  • Requiring that termination of parental rights proceedings be initiated in additional circumstances — when a child is an abandoned infant, or in cases where a parent has committed murder, voluntary manslaughter, or felony assault of another of his/her children. Again, in individual cases, certain exceptions might be applied even in these situations.
  • Offering adoption incentive payments for states that increase their adoptions of foster children over a base year. States that increase the number of adoptions of foster children in a given fiscal year over a base year will receive a bonus for each child adopted above the base year number.

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Does the new TPR provision mean that parents' rights automatically will be terminated after a child is in care for a defined period of time?

No. ASFA requires that termination of parental rights proceedings be initiated when a child is in foster care for 15 out of the most recent 22 months. Once the TPR petition is filed and the proceedings are initiated, a court must determine first whether there are grounds for termination of the parents' rights (eventually both parents' rights must be terminated for a child to be free for adoption), and second, whether it would be in the child's best interest to do so.

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What exceptions does ASFA provide to the requirement that a TPR petition be filed?

ASFA clearly associates termination of parental rights with adoption. It requires that the state agency, concurrently with its filing of a TPR petition, must identify, recruit, process, and approve a qualified family for adoption. It then specifies several circumstances that may make termination inappropriate at a particular time. ASFA includes three circumstances in which a decision could be made in an individual case that a TPR petition should not be filed, even though the child has been in care for 15 out of 22 months or one of the serious offenses by a parent against a child has been committed. The exceptions are:

  1. The child is in the care of a relative;
  2. The state agency documents a compelling reason why filing is not in the best interest of the child; or
  3. The state agency has not provided to the child's family, consistent with the time period in the case plan, the services deemed necessary to return the child to a safe home.

The recently issued ASFA regulations emphasize the importance of these exceptions being applied on a case-by-case basis. Decisions about the appropriateness of pursuing termination of parental rights, just like decisions about reasonable efforts and permanency plans, should be based on the individual needs of each child and family. It also is important to remember that ASFA requires that permanency plans for the child continue to be scrutinized after the first permanency hearing until a child is in a permanent placement. The court must continue to make a determination that reasonable efforts to move a child toward permanence are being made, there must be reviews at least every six months of the child's status, and a subsequent permanency hearing must be held at least every 12 months.

In making decisions about the appropriateness of initiating termination of parental rights proceedings, efforts should be made not to overburden the courts with cases in which termination is neither necessary nor appropriate. Clearly if adoption is the plan, termination is both necessary and appropriate. However, if the permanency plan is something else, such as permanent placement with a legal guardian for whom adoption has been ruled out, the steps to move toward that goal will be different. The new timelines in ASFA apply to all children entering foster care after Nov. 19, 1997 (the effective date of ASFA), as well as those children already in care on that date.

  • The timing of permanency hearings for all children will be moved up to within 12 months of the date the child enters foster care, or in the case of children already in care, 12 months from the last permanency hearing (referred to previously as a "dispositional" hearing).
  • The 15 out of the most recent 22 months clock for filing a TPR petition begins running when a child enters foster care, for those entering after Nov. 19, 1997. For children already in care on Nov. 19, 1997, states are required to phase in the filing of TPR petitions beginning with children for whom the permanency plan is adoption or who have been in care the longest. Generally, a state agency has 18 months from the end of its state's first legislative session that began after Nov. 19, 1997, to review its caseload and to file TPRs for the children for whom they are appropriate.

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Is it true that a state will get a bonus for every foster child who is adopted?

No. ASFA provides for a bonus to a state only for adoptions that represent an increase over the number of adoptions achieved in an established base period in that state. For example, if 250 adoptions is the base level, and 253 children are adopted in a specific fiscal year, the state will receive bonus payments for only three children. The bonuses are $4,000 for each foster child adopted above the base and an additional $2,000 ($6,000 total) if the child has special needs and is eligible for the federal Adoption Assistance program. (A capped amount of $20 million was originally set aside for these bonuses, and that amount has been increased to $43 million for at least FY 2000.) It is also important that ASFA requires states to use their bonus funds for child welfare services, including post adoption services.

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What other provisions in ASFA will help promote permanence for children?

The following provisions in ASFA all were intended by Congress to help promote prompt permanence for children in foster care:

  • Reasonable efforts toward permanence. ASFA explicitly requires that when a child in foster care cannot be reunified with family members, state agencies must make reasonable efforts to place the child in a timely manner in accordance with the child's permanency plan and to complete whatever steps are necessary to finalize the plan. These steps, including specific recruitment efforts to find adoptive families, must be documented in the child's case plan. Consistent with this, ASFA clarifies that reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts to reunify a child.
  • Continuation of the Family Preservation and Support Services Program. ASFA changes the name of this program to the Promoting Safe and Stable Families program and continues funding for three years, increasing it $20 million each year. It also expands the uses of the program funds to explicitly require that significant portions of the funds be used for family reunification and adoption promotion activities, as well as for family support and family preservation activities. These were the only new resources in ASFA, other than the adoption bonuses.
  • Attention to geographic barriers to adoption. ASFA requires state agencies to develop plans for the effective use of cross-jurisdictional resources to facilitate timely adoptive or permanent placements for waiting children. States also are prohibited from denying or delaying a child's adoptive placement when an approved family is available outside of the jurisdiction.
  • Expanded health coverage for adopted children with special needs. States not already providing health coverage to adopted children with special needs for whom there is an adoption assistance agreement through Medicaid or their own state funds are required to do so.
  • Notice and right to be heard for certain caregivers. ASFA requires that foster parents and any pre-adoptive parents or relatives caring for a child in foster care must be given notice of, and an opportunity to be heard in, any reviews or hearings involving the child. Although some states already do this, others do not. ASFA specifically states that it is not requiring party status for all of these caregivers.
  • Continuing eligibility for federal adoption assistance. Children who were previously adopted and eligible for the federal Adoption Assistance program under Title IV-E of the Social Security Act, but whose earlier adoption was dissolved (because the parent died or the parents' rights were terminated) will continue to be eligible for Title IV-E Adoption Assistance payments if adopted again after October 1, 1997.
  • Use of Federal Parent Locator Service. State child welfare agencies are authorized to use the Federal Parent Locator Services to assist in locating absent parents for the purpose of making or enforcing child custody or visitation orders, including termination of parental rights proceedings.
  • Congressional encouragement of standby guardianship laws. ASFA includes a Sense of the Congress that states should have laws and procedures that would permit a parent who is chronically ill or near death to designate a standby guardian for their children without surrendering their own rights. This standby guardian could step in temporarily when the parent is incapacitated, and permanently if the parent should die.

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Does ASFA provide any increased flexibility to states to protect children and to ensure them permanence?

Yes. ASFA specifically expands the ability of states to obtain federal waivers to demonstrate new approaches to child welfare reform. ASFA provides for HHS to grant such waivers to up to ten states a year. To date, 30 waivers have been awarded in 21 states and the District of Columbia. States have chosen to use their federal foster care funds more flexibly to establish subsidized legal guardianship programs for relatives caring for children in foster care; offer wrap-around services to young people in foster care with special needs; coordinate substance abuse treatment and child protection services; and to offer preventive in-home services, reunification services, or enhanced services for other children in foster care.

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What reports to Congress are required by ASFA?

The Secretary of HHS was required to prepare the following reports and submit them to the House Ways and Means and Senate Finance Committees in Congress. Those that are completed are accessible on-line at http://www.acf.dhhs.gov/programs/cb:

  • Blending Perspectives and Building Common Ground: A Report to Congress on Substance Abuse and Child Protection (Released April 1999)
  • Progress Report to the Congress on Conducting A Study of Performance-Based Financial Incentives in Child Welfare (Released 1999)
  • "Notice of the Final List of Child Welfare Outcomes and Measures" (Published in the Federal Register on August 20, 1999, Volume 64, Number 161).
  • "Secretary's Report on Kinship Care" (forthcoming). This report is to discuss the extent of the placement of children in foster care with relatives and recommendations for appropriate strategies to support these caregivers. It is to be prepared by the Secretary of HHS after consultation with the Kinship Care Advisory panel established by ASFA.
  • "General Accounting Office Report on Inter-jurisdictional Adoptions" (forthcoming). GAO must conduct a study to consider how to improve procedures and policies to facilitate timely and permanent adoptions of children across state and county jurisdictions. It must forward the study and any recommendations to improve procedures to Congress.

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When did these new ASFA requirements take effect in the states?

The ASFA requirements were effective immediately unless a state indicated that it needed new legislation to comply with the new ASFA provisions, which most did. In that case, the changes became effective in the state at the beginning of the first quarter that begins after the end of the first state legislative session after ASFA was enacted. This means that in a state where the 1998 legislative session ended in April 1998, ASFA provisions became effective on July 1, 1998. But in a state that just passed its ASFA legislation on February 1,1999, it went into effect on April l, 1999.

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How many states have passed legislation to comply with ASFA?

All 50 states and the District of Columbia have passed legislation in response to ASFA. The nature of the legislation varies significantly. In some states, like Illinois, California, and Virginia, the changes made were relatively minor because major changes had been made earlier in response to other reform efforts in the states in anticipation of ASFA. Many states confined their changes to those required by ASFA.

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What is known about state activities undertaken in response to ASFA?

The National Conference of State Legislatures (NCSL) has prepared useful summaries of the ASFA legislation passed by each state, as well as an analysis of selected provisions. These materials can be accessed through NCSL's Web site at www.ncsl.org. A State Legislative Report, 1998 State Legislative Responses to the Adoption and Safe Families Act of 1997, is also available on their Web site, or from NCSL at 1560 Broadway, Suite 700, Denver, CO 80202.

The General Accounting Office also issued a report, Foster Care: States' Early Experiences Implementing the Adoption and Safe Families Act (December 1999) which can be obtained online at www.gao.gov.

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What has been done on the federal level to implement ASFA?

HHS's Administration for Children and Families (ACF) has conducted numerous briefings and training sessions for states, localities, and others. On January 25, 2000 it also issued final regulations implementing the foster care provisions of ASFA. These regulations also established procedures for Federal review of State Child and Family Services Plans, review of state eligibility for federal Title IV-E funds, and implementation of the Multi-Ethnic Placement Act (MEPA).

For a summary of the final ASFA regulations, consult the CDF publication, "Implementing the Adoption and Safe Families Act: An Overview of the Federal Regulations." To request a copy, call Cynthia Kirkland at (202) 662-3568. The complete text of the final regulations can be accessed on-line at www.access.gpo.gov. On February 17, 2000, the House Ways and Means Subcommittee on Human Resources held a hearing on the new child and family service review system. Testimony from that hearing is available at www.house.gov/ways_means. For a more detailed side-by-side comparison of the final regulations, public comments and federal child welfare law, contact Georgetown University Law Center Federal Legislation Clinic at (202) 662-9595 or access its website online at www.law.georgetown.edu/clinics/flc.index.html.

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Special looks at ASFA

In addition to CDF and NCSL, a variety of other organizations and agencies are publishing special looks at the new law. Other resources include:

  • P.L. 105-89, Adoption and Safe Families Act of 1997, Issues for Tribes and States Serving Indian Children was released in November 1999 by the National Indian Child Welfare Association and the National Resource Center for Organizational Improvement and can be obtained by calling (207) 780-5810.
  • The Adoption and Safe Families Act: Exploring the Opportunity for Collaboration Between Child Mental Health and Child Welfare Service Systems is a 1999 publication by the National Technical Assistance Center for Children's Mental Health at Georgetown University's Child Development Center. To order a copy, call (202) 687-8803.

If you have questions, comments, or information to share, please e-mail us at [email protected] or write to Children's Defense Fund, Attn: Child Welfare and Mental Health Division, 25 E Street, NW, Washington, DC 20001.

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