IMPACT OF THE ADOPTION AND SAFE FAMILIES ACT (ASFA) ON JUDICIAL RESOURCES AND PROCEDURES

Mark Hardin, ABA Center on Children and the Law
©1998 American Bar Association

New Requirements for State Courts in Child Abuse and Neglect Cases

The Adoption and Safe Families Act of 1997, Public Law 105-89 (ASFA) presents a number of major challenges for state courts. State compliance with the law is a condition of state eligibility for funding to public child welfare agencies. The law, which is designed to achieve more timely decisions and stronger safety guarantees for abused and neglected children, includes the following new provisions that affect courts:

In certain extreme cases of child abuse and neglect, courts are authorized to decide that states need not provide services to reunify families. ASFA §101(a), 42 U.S.C. §671(a)(15)(D).
Once it is decided that the plan for a foster child is no longer reunification, agencies are required to make reasonable efforts to secure a new permanent home for the child. Courts are to monitor these efforts. ASFA §101(a), 42 U.S.C. §671(a)(15)(C).
After a child enters foster care, earlier and more decisive hearings are required to determine a permanent plan (e.g., return home, adoption) for the child. ASFA §302, 42 U.S.C. §675(5)(C).
After a child has been in foster care for 15 of the last 22 months, the state must -- subject to certain exceptions -- petition for the termination of parental rights. ASFA §103(a)(3), 42 U.S.C. §675(5)(E).
Foster parents, preadoptive parents, and relative caretakers must be given notice and the opportunity to speak in court hearings, but need not be made parties to the proceedings. ASFA §104. 42 U.S.C. §675(5)(G).

New Demands on State Court Resources

The new requirements make new demands on state court resources in a number of specific ways. First, courts are expected to decide, early in the case, whether reunification services are required. Requests for court decisions that such services are not required will require more, earlier, contested hearings. It will also trigger earlier permanency hearings and, in turn, earlier termination of parental rights hearings.

Second, permanency hearings are required at 12 months, several months earlier than in the past. Further, permanency hearings are to be more decisive and comprehensive hearings than before. For example, in the absence of compelling circumstances to the contrary, the court is to order the initiation of termination proceedings. The court is also expected to thoroughly review all permanency options. Additional court and attorney time is required.

Third, there are now deadlines for filing or joining in termination petitions. As a result, petitions will be filed earlier in each case, causing a temporary bulge in termination hearings and a higher proportion of termination proceedings will be contested. There will be additional appeals of termination decisions.

Fourth, foster parents, preadoptive parents, and relative caretakers now must receive notice and have the opportunity to participate in court hearings in child abuse and neglect cases. This will require both additional court time and additional time and costs for court staff.

To meet these new resource demands, courts may need to reconsider their internal budgets, allocations of judges, and budget requests to state legislatures. Besides needing additional judge time, they may also need more specialized court staff, further funding for court appointed attorneys, and automated systems to monitor, among other things, the timeliness of judicial decisions.

New Procedural Issues for State Courts

There are a number of important procedural issues for state courts to resolve in implementing the new federal requirements. Depending on the state, these procedural issues might be addressed through legislation, court rules, case law, and court forms. The following is a list of some of the key procedural areas presented by ASFA.

First, states must adopt procedures for determining, early in the case, whether to require the state to provide services to reunify a family with a child in foster care. For example, the state must decide:

At what precise stage of the court process is this decision to be made?
Who initiates this decision? Can the judge inquire about whether reunification services should be required?
Are there ways of ensuring that the agency and court will have enough information, early in the case, to make an informed decision about providing reunification services? For example, such information might include parents' criminal records, mental health histories, and past substance abuse treatment records.
What procedural protections should apply in connection with the decision? Should the rules of evidence apply? What should be the burden of proof?
Must there be repeated and duplicative hearings concerning whether reunification services are required? ASFA seems to call for the following sequence of hearings: an initial decision that reunification services are not required, a permanency hearing within 30 days (in which the decision may be reexamined), and a termination of parental rights hearing. Can these proceedings be consolidated or at least the early hearings be conducted as preliminary proceedings?
What are the grounds for deciding, early in the case, that reunification services will not be provided? Note that legislatures must enact such grounds. The grounds may or may not be similar to grounds for terminating parental rights.

Second, states must adopt procedures for earlier and more decisive permanency hearings. For example, the state will need to consider:

What notice and reports should be provided prior to the hearing? When should they be required?
Will court oversight of agency efforts to preserve the family need to occur earlier and more rigorously to make it possible for courts to decide upon permanent plans at permanency hearings?
Should judicial findings be required at permanency hearings? If so, should agency reports be formatted to address issues for inclusion in judges' findings?
If judicial findings should be required, how should they be organized to encourage more decisive permanency hearings?
Can permanency hearings be designed to help ensure that states meet their 15 month deadlines for either filing termination of parental rights proceedings or providing written explanations why termination proceedings are not appropriate?

Third, states must adopt procedures to ensure the participation of foster parents, preadoptive parents, and relative caretakers of abused and neglected children. For example, they will need to decide:

Who should provide the notice to the foster parents, preadoptive parents, and relative caretakers and what should be the courts' role in overseeing such notice?
What should be the procedures to allow foster parents, preadoptive parents, and relative caretakers to speak at hearings?
Should foster parents, preadoptive parents, and relative caretakers be able to be present throughout the court hearings? Should they be permitted to become parties under specific conditions?

ASFA cannot succeed without effective judicial leadership. Individual judges must follow both the letter and the spirit of ASFA. They must have high expectations of the parties and develop an efficient and fair court process. In turn, state supreme courts and state court administrators must communicate to the courts that they expect full implementation of ASFA and that they will do their best to provide the resources to make it possible.

¹Any recommendations set forth in this handout have not been adopted by the American Bar Association House of Delegates or Board of Governors and therefore do not represent official policy of the American Bar Association.