Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
26080812
label
Adoption II [3]
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
26080812
sourceUrl
contentType
document
title
Adoption II [3]
citationUrl
collections
Records of the First Lady's Office (Clinton Administration)
Margaret “Maggie” Williams' Subject Files
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
26080812
levelOfDescription
fileUnit
otherTitles
42-t-2194630-20130359S-Seg2-035-007-2015
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
482a3d7b5dbb7edc
ocrText
The Child Advocate's Legal Guide:
Effective Collaborative Work to Speed
Permanence for Children in Foster Care
by Debra Ratterman Baker, J.D., American Bar Association
Center on Children and the Law,
and
Charlotte Vick, J.D., Assistant Director, North American
Council on Adoptable Children
March 1995
North American Council on
Adoptable Children (NACAC)
970 Raymond Ave., Suite 106
St. Paul, MN 55114-1149
612/644-3036
©1995 The North American Council on Adoptable Children
Introduction
The authors wrote The Child Advocate's Legal Guide as part of NACAC's
Collaborative Court Education Project. The purpose of this project was to
encourage collaborative efforts between such persons as adoptive and foster
parents, attorneys and child welfare workers to speed children's journeys
through the foster care and court process. The Legal Guide is meant to
facilitate this work. The Collaborative Court Education Project was funded
through a US. Department of Health and Human Services Adoption
Opportunity Grant. We are grateful for their thoughtful support and
encouragement.
The Need
The American Public Welfare Association (APWA) estimates the number of
children in foster care increased from 285,000 to 460,000 in 1992 - a 61% jump
in five years. Advocates estimate that there are currently 500,000 children in
foster care. Of this number, a small and consistent 35,000 to 50,000 have had
their parental rights terminated and are available for adoption. Others wait
for years before significant action is taken to place them in permanent homes.
Data gathered by Collaborative Court Education Team members in eighteen
states indicate that 40-50% of children stay in foster care over two years and
15% stay four to five years. Adoption specialists estimate that approximately
20% (92,000) of the total number of children could be made available for
adoption if parental rights were terminated. They wait because child welfare
and legal systems neither reunite birth families nor free children for adoption
quickly.
This data clearly demonstrates the abysmal condition of the nation's current
foster care system. Until this year, states were not mandated to gather and
share foster care data. This made it difficult to evaluate conditions and
sheltered the problem from public scrutiny. Even current figures cited above
are suspect. We believe that these figures only report the child's most recent
contact with foster care and do not reflect the actual length of time in care for
many children who return home - just long enough to close their case - then
return to foster care for yet another session. For a child, years translate into
lifetimes: four years equaling two-thirds of a six year old's life, two years
equaling one-half of a four year old's life.
The Problem
Although PL. 96-272 as well as matching state law mandates eighteen month
reviews of the status of each child in foster care, crowded court calendars,
rotating judge systems, high social work case loads, social workers who view
termination of parental rights as a failure to fix birth families, and a system
which confuses the "best interests of the child" with the legal rights of
parents, all combine to relegate many children to a childhood in foster care.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
i
Many advocates feel that current proposals, such as the return to orphanages,
recision of PL 96-272, and decentralization of funding and legal control, may
further confuse the process. Clearly, major changes such as these must be
monitored and addressed when necessary to ensure that children are not left
unprotected.
The Solution
Through research, NACAC has identified systems and models which can be
used to improve the current status of children in out-of-home care. These
models are powerful tools for local change. The work of the Collaborative
Court Education Project is NACAC's effort to place these tools in the hands of
persons concerned about waiting children.
As part of this Project, teams were developed in eighteen states. These teams,
each comprised of persons from many disciplines, caused significant change
in most of their local jurisdictions. They managed to: educate biological
parents in danger of losing children; promote and establish communication
between system offices to help speed the Termination of Parental Rights
process; educate judges about effective juvenile court process; create computer
dispositional menus to improve court orders; facilitate implementation of
new state laws; assess state use of Title IV-E money; raise adoptive placement
rates by convincing the state to re-hire adoption specialists; and publicize the
need for adoption of waiting children. Many teams intend to continue their
work even after the project is officially over.
How To Use This Book
Team members determined the content of this book. This book was written
specifically to be used by children's lawyers and lay advocates. Each chapter
contains: statement of the problem, legal summary, proposed solutions,
sample protocols, models or forms, and discussion questions.
The issues most often cited as barriers to permanence within the child welfare
- court - adoption continuum are included in this book. The book is
organized in sections, first to discuss common problems which plague foster
children and adoptive families, second to address system concerns, and third
to explain legal issues. The final section on planning is meant to provide
tools for starting local child welfare improvement projects.
Use this book as a beginning point for research. A bibliography is located at
the end of the book. Sample forms and protocols also are included and can be
used "as is" in your project. At the end of each chapter we've included
several discussion questions. It is our hope that they will be used by your
group or team to reach consensus about each issue. Similar questions at the
North American Council on Adoptable Children
The Child Advocate's Legal Guide
ii
end of the chapters in the planning section could be used to help formulate a
plan of action.
NACAC's ultimate goal is to find permanent homes for waiting children. If
you are utilizing this book for that purpose and feel that we can provide
technical assistance or support, please feel free to call. It is our sincere wish
that this book also be used in the continuing work of the Court Project Teams
and that it inspire and facilitate the work of other advocates.
The information in this book is not meant to be used to answer specific legal
questions. Its purpose is educational. New laws and court decisions can
quickly change legal trends. Always carefully research all issues.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
iii
WHO WE ARE:
The North American Council on Adoptable Children (NACAC) is a
nonprofit, broad-based coalition of volunteer adoptive parent support and
citizen advocacy groups, adoption professionals, legal experts, caring
individuals, and agencies committed to meeting the needs of waiting children in
the United States and Canada.
WHAT WE DO:
Activities include:
a quarterly newsletter called Adoptalk, devoted to current issues in adoption,
foster care, parenting, and child advocacy;
the largest annual national conference on adoption issues, uniting the
concerns and resources of over 1300 experienced adoptive parents, child
welfare professionals, and advocates annually;
education of court and child welfare personnel about effective permanency
planning models and the benefits of special needs adoption;
research on a variety of critical topics including fiscal and programmatic
analysis of state adoption assistance programs, and a state-by-state
comparison of key aspects of termination of parental rights statutes;
collaborative work with foundations that are leaders in the effort to improve
foster care conditions and promote permanency for children;
adoptive parent leadership training, parent group development, and
assistance to a network of over 500 local organizations throughout the
United States and Canada working to provide awareness of adoption issues,
family support programs, administrative monitoring, and recruitment of
prospective parents;
public education, special events, and Adoption Awareness Month across the
United States and Canada;
strong, consistent, directed advocacy on behalf of children and families,
including federal testimony on parental leave, medically fragile infants, post-
legal adoption service needs, subsidy, recruitment of minority parents for
waiting minority children, and adoption tax deductions.
OUR AGENDA:
We believe the goal of permanence for all children is clearly in their best interest,
realistic, and cost-effective. Collectively, as concerned citizens, parents, decision
makers, and advocates, our impact and ability to effect change for vulnerable
children is dramatic. Together we can make a difference.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
iv
The children are waiting
older kids, able-bodied kids, not-so-able-bodied
kids, kids with brothers and sisters, bright kids, kids with intellectual
disabilities, Native American kids, Spanish heritage kids, African American
kids - - all kinds of kids. Kids who need parents. And kids who cannot speak
out for themselves.
The North American Council on Adoptable Children wants you to know about
these kids and about our work on their behalf. Please join us in our work. For
more information or to join, contact:
The North American Council on Adoptable Children
970 Raymond Avenue, Suite 106
St. Paul, Minnesota 55114-1149
(612) 644-3036
NACAC is a member of Children's Charities of America, part of the Combined
Federal Campaign (CFC). Our CFC code number is 1531. All contributions to
NACAC are tax deductible.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
V
INDEX
Section
Page
Introduction
i
Who We Are
iv
Index
vi
Current Issues in Foster Care and Adoption
Chapter 1: Kinship Care
1
Chapter 2:
Foster Adoptive Parents
12
Chapter 3:
Special Needs Adoption and Adoptability Issues
21
Chapter 4:
Open Adoption
30
Chapter 5: Orphanages
38
Child Welfare System Concerns
Chapter 6: Court Issues
43
Chapter 7:
Indian Child Welfare Act
53
Legal Issues
Chapter 8:
Termination of Parental Rights and Adoption Laws
62
Chapter 9: Reasonable/Diligent Efforts
89
Chapter 10: Grounds for Termination of Parental Rights
98
Chapter 11: Substance Abuse
107
Chapter 12: Putative Fathers
114
Chapter 13: The Best Interests of the Child
126
Chapter 14: Adoption Assistance
133
North American Council on Adoptable Children
The Child Advocate's Legal Guide
vi
Planning
Chapter 15: Multidisciplinary Permanency Planning Teams
150
Chapter 16: Helping Children and Saving Money
169
Chapter 17: Funding Your Project
180
Chapter 18: The Collaborative Court Education Project Final Report
187
Bibliography
208
North American Council on Adoptable Children
The Child Advocate's Legal Guide
vii
1
Chapter One
Kinship Care
Statement of the Problem
A major trend for children who are removed from their parents because of abuse or
neglect has been a gradual shift from foster care placement to placement with
relatives or friends. According to a 1992 report of the Inspector General of the U.S.
Department of Health and Human Services, the overall proportion of children
placed with kin rose from 18 percent to 31 percent over a five-year period. The goal,
of relative placements is to reduce the trauma to the child of being removed from
their home by placing them with someone with whom they already have a positive
connection. According to Duerr-Bunrich in a 1994 comparison of kinship, foster
home, and foster families, kinship placements tend to be stable, long-term
placements with more contact with the child's biological family. Conversely, a
study by George & Wulczyn (1992) found that reunification with birth parents is
much slower when children are placed with kin, even though kin work hard to
make visitation happen. Kinship placements are also less likely to result in
adoption.
Kinship care merits more research to clarify pitfalls and to highlight advantages.
For example, Iglehart (1994) found that adolescents in kinship care have fewer
mental health problems than adolescents in other types of care, and children in
kinship placements generally have fewer placement adjustment problems.
What would assure the greatest permanence for children in kinship care?
Guardianship is one way of providing permanency. Legal guardianship could
provide an appropriate balance between family autonomy and the need to support
and monitor the child's situation. Barth (1994) argues that children with guardians
are assured of neither ongoing services nor permanency, but predicts that
guardianship will continue to expand, exemplified by several state laws that now
allow paid guardianship status. Some advocates propose creation of a category of
"voluntary kinship adoption" in which parental rights could be voluntarily
terminated, and special needs children adopted by kin could be eligible for Adoption
Assistance benefits. The payment is roughly the same rate as the per diem based
foster care rate, ($4500 per year per child), but saves money by reducing
administrative and court costs.
As kinship placements grow, issues arise over whether these placements should be
treated the same as foster care placements in terms of permanency planning
requirements. In some instances, state child welfare agencies would continue to
work toward reunification with the parents and supervise the relative placement.
In others, the agency considers the kinship placement to be a solution to the
North American Council on Adoptable Children
The Child Advocate's Legal Guide
1
problem and state intervention is minimal. In either situation, children in kinship
placements tend to stay in out-of-home placement for many years without any
efforts to achieve permanency.
The New York Task Force on Permanency Planning for Children in Foster Care
studied the issue of permanency for children in kinship care in New York City
where over half the children in care are placed with relatives or neighbors. They
found that caseworkers had a lower level of expectation in kinship foster care
causing them to ignore long-term planning responsibilities. The goal of "return to
parent" was continued year after year even when the parents had disappeared or
failed to cooperate in the service plan.
Having relatives continue to care for a child may in fact be the best permanency plan
in some cases. Agencies and relatives, however, are sometimes slow to make this
arrangement permanent through legal transfers of custody, guardianship, or
adoption. Legal actions are costly and time-consuming and may create tension
between the parent and the relative. In other instances, the foster care payments a
relative may receive for caring for a child in the custody of public agencies may be a
barrier to other permanency options.
Legal Summary
One of the major problems of kinship care is confusion over the legal status of
children placed with relatives and over the child welfare agency's-duty to work
toward a permanency plan for the child. In our review of state laws, we identified at
least seven different legal routes to placing a child with a relative. The method that
is used in a case determines whether the relatives are eligible for financial
assistance, whether the family is eligible for reunification services, whether the
child can be freed for adoption, and how the arrangement can be modified.
First, the child welfare agency could enter into an agreement with the parents to
drop an abuse or neglect petition if they allow their child to live with a relative. If
the child is placed with a relative or friend by a parent without legal action, then the
child welfare agency has no power to review the placement unless there is an
allegation of unfitness as in any neglect or abuse situation. The child welfare agency
may re-file the original petition against the parents, but such cases are often more
difficult to prove in court as time passes. The agency also has no power to compel
the parents or the relatives to participate in services. The state might not be able to
terminate parental rights in an appropriate case if their state statute requires the
child be in state custody prior to the initiation of a termination action.
Second, a child could be released to or placed in the custody of relatives after a
finding of abuse or neglect. The child welfare agency has more control under this
arrangement since it may ask for a modification of the court order if there are any
problems with the placement. If the court also grants the child welfare agency an
order of supervision, then it can require the parent to participate in services. The
North American Council on Adoptable Children
The Child Advocate's Legal Guide
2
child welfare agency may also ask the court for an order of supervision over the
relatives with whom the child is placed to monitor the placement and insure the
child receives services. However, if no order of supervision is granted, the child
welfare agency has little control over these placements. Again, a termination action
might not be an option under grounds with state custody as a prerequisite.
Third, the court may grant the child welfare agency legal custody of the child and
order the child welfare agency to place the child with relatives. In this situation, the
agency has the same power to compel parents to participate in services as in foster
care placements. These relative homes must be approved by the child welfare
agency.
Fourth, relatives may be certified as foster parents and receive foster care payments,
medical benefits, and services. These types of "kinship placements" are reviewed
periodically like other foster care placements. If necessary, the agency may file a
termination of parental rights action to free the child for adoption since it has
"custody."
Fifth, the relatives may file their own custody action for the child. This action may
be in family or juvenile court. The court will then hold a hearing to decide the
custody dispute between the parent and the relative. The child welfare agency may
or may not be allowed to intervene. If the court transfers custody to the relatives,
the child cannot be returned to the parents unless they can prove a significant
change in circumstances. The relative gains the right to authorize medical care for
the child, register the child for school, and make other decisions for the child's
welfare without parental approval. The parent retains residual rights such as being
recognized as the legal parent of the child, the right to visitation, the right to consent
to adoption, and the duty to pay support.
While this option provides a more permanent outcome for the child, it seriously
limits further child welfare agency involvement. It also requires the relative to pay
for his or her own attorney which may be a barrier for some low-income kinship
caretakers.
Sixth, the relatives may be granted guardianship over the child either through the
agreement of the parents or through a court action. A guardianship is usually a
more significant transfer of legal rights and obligations than a custody order and
may limit the parent's rights and obligations. States differ in the forms of
guardianship which can be established and the rights granted guardians. In some
jurisdictions guardianship arrangements may be revoked by the parents if they
withdraw their consent. The court which oversees guardianships may be different
from the court that handles juvenile cases and may not have access to information
about prior abuse or neglect. In addition, relatives who are guardians rather than
adoptive parents are not eligible for adoption subsidies.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
3
Finally, the relative may adopt the child. This usually requires that the parents
formally surrender their parental rights or that a court terminates parental rights.
The relative then becomes the legal parent of the child and the biological parent no
longer has any legal rights as a parent. However, the relative and parents may agree
to an "open adoption" where the parent may be allowed to visit, call, or write the
child. In some instances, the relative may send the parent pictures or updates on
the child. Once an adoption is finalized, it is irrevocable. The relative may also
qualify for adoption subsidies.
The courts have begun to play a role in monitoring permanency planning for
children in kinship care. The New York Court of Appeals held in the Matter of Dale
P., 614 N.Y.S.2d 967, 85 N.Y.2d 72 (1994), that the department of social services has
the same responsibility to pursue permanency planning for children who are placed
directly in the custody of relatives or friends as for children in the custody of the
department. In response to this decision, New York law was amended to allow
relatives with care and custody of a child to file a petition to terminate parental
rights so that they can pursue adoption.
The level of kinship care can determine the type, if any, of public benefit which
might be available to the family caregiver for the child. For example, if a child is
voluntarily given to a relative and if other eligibility criteria are met, the family can
get AFDC payments. If the child is placed by the agency, and if the family member
qualifies for a license, foster care benefits may be paid. Legal guardians in all states
can receive Social Security Dependents benefits for a child, and while some states
allow them to receive foster care benefits, others prohibit foster care payments. Only
kin who legally adopt a child are entitled to adoption assistance payments.
Kinship payments lack uniformity across the country. In a 1994 study by Gleeson &
Craig, only sixteen states reported offering foster care board payments to kin who
met foster home licensing or relative home licensing standards. In 1979, the U.S.
Supreme Court in Miller vs. Youakim, 440 U.S. 125, established that relatives who
otherwise qualify as foster parents for children in IV-E reimbursable cases must be
permitted to become foster parents. However, many kinship caregivers miss out on
foster care benefits due to licensing standards that stipulate criteria such as certain
home square footage requirements. Others miss out on benefits because they lack
the assertiveness to pursue the licensing process. Thus, kinship caregivers may lose
on several fronts: economically-settling for AFDC rates versus higher foster care
rates; and supportively-missing important services and benefits that accrue to foster
parents.
Proposed Solutions
Many states could reduce delays in achieving permanency for children in relative
care by clarifying or expanding the legal options of courts in these cases. For
children in foster care rather than in kinship placement, both federal and state
legislation clearly mandates the child welfare agency's duty to work toward
North American Council on Adoptable Children
The Child Advocate's Legal Guide
4
reunification of the family, and if that is not possible, to pursue termination of
parental rights and adoption. The court that handles the child abuse or neglect
action or approves the voluntary placement agreement generally has continuing
jurisdiction to review the placement and assess the agency's goals. In addition, it is
clear that the agency has the authority to bring a termination petition in appropriate
cases. However, when a child is placed with a relative, the duties of the child
welfare agency are much less clear.
Legislation could provide new legal options which would allow the court, agency,
relatives, and parent to clearly delineate the rights and duties of each party and
ensure that the arrangement is in the best interests of the child. These options could
include:
1.
Parental Care with Kin Supports: the child would remain with the parents
and the public agency would work toward preventing the out of home placement by
facilitating kinship support. This arrangement might include the parent being
ordered to live with the relatives or both the parents and relatives being ordered to
participate in services.
2.
Temporary Kinship Care: the agency or court could determine that it is in the
best interests of the child who has been abused, neglected, or voluntarily placed to be
in the care of a relative or friend. The child welfare agency would work toward
reunification, review hearings would be held, and the agency would be held to the
same permanency planning guidelines as apply to children in foster care. The
parents would be ordered to participate in services and the public agency would
supervise the placement with relatives. The relative could be eligible for financial
or medical assistance under AFDC and specialized services for the child through the
child welfare agency. The relative could also be ordered to participate in the
reunification plan.
3.
Kin Guardianship: The court that has jurisdiction over the child abuse or
neglect action or approved a voluntary placement would have the authority to
transfer guardianship to a relative who has been caring for the child. The public
agency would be able to petition the court for the transfer as part of their duty
toward permanency planning. If the relative could not afford an attorney, the court
would have the discretion to appoint one. The parents would retain parental rights
and be allowed to visit unless the court issued a protective order denying visitation
or contact because it was not in the best interests of the child. The public agency
would no longer supervise the placement nor work toward reunification. Any
revocation or modification of the guardianship order would come before the same
court and would be based on the best interests of the child with no preference
toward the parent.
4.
Kin Adoption: The court that has jurisdiction over the child abuse or neglect
action or approved a voluntary placement would have the authority to terminate
parental rights and approve the child's adoption by a relative who has been caring
North American Council on Adoptable Children
The Child Advocate's Legal Guide
5
for the child. The law should allow for termination in appropriate cases if the child
has been in relative care rather than foster care for the statutory period. The public
agency would be able to petition the court for the termination as part of their duty
toward permanency planning. If the relative could not afford an attorney to file the
adoption, the court would have the discretion to appoint one. The parents would
lose all parental rights but could be allowed to visit if it is in the child's best
interests. The relatives would be eligible for adoption subsidies.
By providing these options within the context of an abuse or neglect action rather
than requiring the relative to initiate a separate action (sometimes in a different
court), this process would provide for greater continuity and fewer delays.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
6
Sample Protocols and Forms
The following data collection form is based on Mary Jane Link's "Kinship Care: The
Double-Edged Dilemma" (1990). It could be used in your state to collect information on
kinship care and to identify permanency planning issues.
Kinship Foster Care Study
DATA COLLECTION INSTRUMENT
A. Child's Name:
B. Child's DOB:
C. Case Number:
D. Date of Agency Involvement:
1. voluntary 2. CPS report 3. placement 4. court order
E. Date of Placement:
F. Date Placed with Relative:
G. Immediate Family
Name
DOB Sex
Relationship Location
Phone
Contacted?
1.
2.
3.
4.
5.
6.
7.
8.
H. Presenting Problem
North American Council on Adoptable Children
The Child Advocate's Legal Guide
7
I. Preventive Services:
1. Not Offered
2. Offered
3. Provided
J. Court Information
Type
Date
1. Petition:
2. Court Order:
3. Court Order:
4. Court Order:
5. Court Order:
6. Court Order:
K. Child's Placements
Start Date
End Date
Caretaker Relationship
Location
1.
2.
3.
4.
5.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
8
L. Kinship Family
Name
DOB Sex
Relationship Location
Phone
Contacted?
1.
2.
3.
4.
5.
6.
7.
8.
M. Approval of Relative's Home
1. Date Investigation Begun:
2. Date Home Approved:
3. Central Registry Review
yes no
4. Adequate Homestudy
yes no
5. Evidence of Mother residing in home
yes no
6. Evidence of Father residing in home
yes no
North American Council on Adoptable Children
The Child Advocate's Legal Guide
9
N. Service Plans
Goal
Missing? Visiting? In Services?
1. 30 day assessment
MF MF M F
2. 90 day plan
MF M F M F
3. 6 month plan
MF MF M F
4. 12 month plan
MF MF M F
5. 18 month plan
MF MF M F
6. 24 month plan
MF M F MF
7. 30 month plan
MF MF M F
8. 36 month plan
MF MF M F
9. 42 month plan
MF M F M F
10. 48 month plan
MF MF M F
O. Permanency Plan
1. Returned to Parents?
yes no
Date:
2. Full Custody to Relative?
yes no
Date:
3. Guardianship to Relative?
yes no
Date:
4. Mother Surrendered?
yes no
Date:
5. Father Surrendered?
yes no
Date:
6. Termination Petition Filed?
yes no
Date:
7. Termination Order?
yes no
Date:
8. Adoption Petition?
yes no
Date:
9. Adoption Finalized?
yes no
Date:
10. Open Adoption?
yes no
Date:
North American Council on Adoptable Children
The Child Advocate's Legal Guide
10
Questions for Discussion
1.
Are placements with relatives and friends explored by the child welfare
agency when the child comes into care?
2.
Are putative fathers identified and their family members considered as
placement options?
3.
Are children placed with relatives in a safer situation than when they were
living with their parents?
4.
What kind of supervision, if any, does the child welfare agency offer for
relative placements?
5.
Are reunification efforts made by the agency when a child is placed in kinship
care?
6.
Are relatives caring for children eligible for financial assistance, medical
coverage or other services?
7.
Is there permanency planning for children in relative placements?
8.
What are the permanency options for relatives who wish to permanently care
for children? What rights do parents retain under these options?
9.
Are relatives eligible for adoption or other subsidies under these permanency
options?
10.
Can parental rights be terminated if the child is in the custody of a relative
rather than the public agency?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
11
Chapter Two
Foster Parent Adoptions
Statement of the Problem
Historically, foster parents were viewed as temporary, paid caregivers. They
had no standing in court to appear on behalf of the children and in many
jurisdictions were precluded from adopting their foster children. To prevent
attachment, policies in the 1940's and 1950's mandated that children be
shifted from foster home to foster home on a yearly basis.
Psychological studies now demonstrate that it is precisely this constant life
disruption which creates "attachment disorders" in children. Generally, the
harm children suffer from foster care is not the rare but well-publicized
incident of physical abuse but rather the harm of impermanence - not
belonging and never knowing what the future will provide.
"The single most dominant feature of the special needs adoptive family is
that the vast majority of them have been foster parents first," says
McKenzie (1993, p. 71). "Foster parent adoption should be seen as an excellent
avenue toward permanency and should receive more emphasis and
aggressive promotion." Foster parents adopt older children with mental
health problems and medically fragile infants. When the child's biological
family can not be salvaged, foster families, particularly treatment foster
families, adopt special needs children in large numbers. "In California, as in
other states, well over 80% of all older child agency adoptions are by foster
parents," Barth (1994).
Kadushin (1988) provides a summary of eleven studies of special needs
adoption. The summary found an overall disruption rate of only 11%. Foster
parent adoptions have consistently been associated with stability.
In their 1990 study of almost 800 families that adopted special needs children,
Rosenthal and Groze (1990, p. 475) found that overall:
Adoption had a positive impact on families. Outcomes were excellent
or good for single-parent families and families with lower education,
lower income, and minority status. Minority communities have
strong traditions of, and experience in, raising children away from the
nuclear family.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
12
Legal Summary
According to Hardin & Bulkley (1983), a number of states have adopted
special statutes or administrative regulations explicitly granting foster parents
the right to notice and an opportunity to be heard when the agency seeks
removal of a foster child. There are several basic differences in the types of
procedures and protections that are granted to foster parents under these
statutes and regulations. Some provide for a court hearing, while others
provide a formal trial-type administrative hearing. Still others create a highly
informal agency review, with few procedural protections. Most require a
hearing to be held before the child may be removed.
Most statutes and regulations place limits on when foster parents can
challenge removal of the child. First, the majority of special statutes and
regulations grant a right to contest removal only after the child has resided in
the home for a certain length of time, ranging from ninety days to eighteen
months. Second, most do not allow foster parents to challenge removal in
emergencies or in situations where the child's health and safety are in danger.
Third, some do not allow foster parents to contest removal where the child is
to be returned to the biological parent or placed permanently with another
family. Fourth, others deny a hearing when the biological parents have
placed the child voluntarily. Finally, agency regulations sometimes state that
there can be no administrative hearing if there are pending court proceedings
which may determine whether the child will be removed or if a court has
ordered the removal.
Where there is no separate statute explicitly specifying the procedural rights
of foster parents, a next step is to take a careful look at the Juvenile Court Act.
The Juvenile Court Act is a state statute which authorizes court intervention
to protect abused and neglected children. Juvenile Court Acts in every state
establish criteria and procedures for state intervention and removal of abused
and neglected children.
Some statutes permit members of the public or "any person" to file a petition
in Juvenile Court to initiate neglect proceedings. In Pennsylvania, for
example, "any person" may initiate a petition to bring the child within the
jurisdiction of the Juvenile Court if it is in the best interests of the child and
the public.
Several issues arise from foster parent adoptions. For example: 1) Will a
foster parent who wishes to adopt help the child's birth parents create and
maintain a positive relationship or will he or she sabotage the relationship?
2) Is the bond built during foster care more important than other
considerations such as family status and race matching? 3) Should foster
parents have the first opportunity to adopt a child who has been in their care
for a significant period of time? 4) Since foster care payments and services are
North American Council on Adoptable Children
The Child Advocate's Legal Guide
13
generally more generous than adoption assistance, do these built-in
disincentives prevent adoption?
1) Will a foster parent who wishes to adopt help the child's birth parents
create and maintain a positive relationship or will he or she sabotage the
relationship?
A basic element of every successful contested termination of parental rights
(TPR) case is proof that the county agency has made "reasonable efforts" to
reunify the birth family. These efforts can include a multitude of efforts such
as chemical dependency treatment, parenting education and; always,
visitation. Maintenance of the parent-child bond is key to effective family
rehabilitation. A foster parent who chooses to sabotage these efforts by
making visiting sessions difficult or keeps the atmosphere tense or the child
unwelcoming, may in fact be making the TPR case unwinnable because
reasonable efforts have been thwarted.
In Washington State specific legislation was enacted to form a concurrent
planning project in which at-risk-children were placed with foster parents
which would later become adoptive parents if parental rights were
terminated. If foster parents volunteer because they believe fostering is a way
to adopt a young healthy child, they create a conflict of interest and the
termination may fail in court.
2) Is the bond created during foster care more important than other
considerations such as family status or culture?
Once the biological parent's rights are terminated and the child is free for
adoption, the agency must consider which adoptive placement will serve the
"child's best interests." Many state statutes, and if not law then agency
priority, determine who should have the first opportunity to adopt. For
example the Minnesota Heritage Act mandates that a child's relatives and/or
race be a consideration in placement for adoption. The federal Indian Child
Welfare Act (ICWA) grants control of adoptive placements to the child's tribe.
Recently the U.S. Supreme court rejected the appeal of white Minnesota
foster parents who said they were wrongly denied the chance to adopt three
American Indian children, members of the Leech Lake Band of Chippewa.
This ruling reaffirms ICWA and the sovereignty of Indian tribes.
Litigation multiplies when the child welfare agency carelessly places children
in short term foster care, rather than with relatives or same race placements.
When these placements become long term, a bond forms and adoption
becomes an issue.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
14
3) Should foster parents have the first opportunity to adopt a child who has
been in their care for a specific period?
Many states, acknowledging that foster parents often form permanent bonds,
give preference to long term foster parents. Generally the child must have
been in placement more than six months before this preference applies.
Several states sponsor fost-adopt programs to promote permanency.
4) Since foster care payments and services are often more generous than
adoption assistance, do these built-in disincentives prevent adoption?
In many states, adoption assistance payments made to the adoptive parents of
a special needs child are less than foster care payments provided for that same
child. In addition, certain foster care support services such as respite care or
social work support, may disappear. In Minnesota, for example, a foster child
can get free tuition to any state college. One family reports that this factor
prevented them from adopting their sixteen-year-old foster daughter. They
simply could not afford to save enough money to fund college on their own.
Most foster families who adopt lose significant monetary benefits but proceed
because they realize the child gains psychological security.
Proposed Solutions
Linda Katz of Lutheran Social Services in Washington and Idaho has
developed an extremely effective concurrent planning model consisting of
intensive family reunification efforts coupled with foster-adoptive child
welfare services. This program protects the biological parents' rights yet eases
the foster care experience for the child. The model contains several elements:
1) assessment, 2) child placement limitations, 3) strong, clear and time limited
reunification efforts, 4) openness, 5) permanence, and 6) cost savings.
1) Assessment. When a child is first taken into custody, a protocol listing
certain factors such as intractable drug abuse is used to determine the
likelihood of a child returning to his or her biological parents. Those
children whose families fit a certain profile are slotted into a concurrent
planning track.
2) Child placement limitations. In the concurrent planning track, children
are immediately placed with foster families that are interested in adoption.
This process saves the child the trauma of multiple placements. It is the
foster parents who become the heroes of this project because they must
commit to helping the biological parents reattach while still being willing to
adopt. Foster parents face the risk of loss in order to save the child from
suffering multiple placements.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
15
3) Strong, clean and time limited reunification efforts. While the child is in
foster care, the biological parents are provided with strong and clear
reunification services. The parents are told from the very beginning that they
have been assessed as at risk of termination of their parental rights. They are
told exactly what they must do to prevent termination, what services will be
provided, and how much time will be allowed for change. They are
encouraged to visit their child and as a result get to know the foster family.
(See the attached Matrix for assessing treatment needs.)
4. Openness. Washington State has an open adoption statute which allows
parties to an adoption to make visitation agreements. These agreements can
be either extremely limited or generous. However, violation of the
agreement does not jeopardize the adoptive placement. Contract type
remedies are available rather than disruption of the adoption so the child's
expectation of permanence will not be endangered. Biological parents who
are in the concurrent planning track quickly decide for themselves whether
they can make the required life style changes. If not, because they already
have a relationship with the foster parents, and because they know they can
retain some contact with the child, they are more willing to acknowledge
their own inability to parent and voluntarily surrender the child for
adoption.
5. Permanence. In many cases, strong reunification efforts create timely
reunifications of families. In others, because of a voluntary surrender or
because the Department of Human Services (DHS) can specifically document
their reasonable efforts and the parent's failures, termination of parental
rights occurs quickly. Almost immediately, the adoption can be finalized -
all without the child having to move again.
6. Long-term cost savings. Cost savings can be documented using
comparisons of foster care expenses (including administrative, biological
parent support costs, and court expenses) against the cost of adoption. In
addition, the psychological benefits for the child of either a quick return to the
biological parents or adoption into a permanent home can also be
documented.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
16
Sample Protocols and Forms
Katz Matrix
CATEGORY I - CONDITIONS AND ACCEPTED TREATMENT MODALITIES
Condition and Probable Results
Accepted Treatment Modalities
Parental rights to another child have been terminated
Depends on parental condition or deficiencies.
following a period of service delivery to the parents and
Commonly recommended are: psychological
no significant change has occurred in the interim.
evaluation; counseling; drug treatment; anger
management; parenting classes; therapeutic
day care; life-skills program; parent interac-
tion training; Parents Anonymous.
Parent has killed or seriously harmed another child
Depends on parental condition or deficiencies.
through abuse or neglect and no significant change has
Commonly recommended are: psychiatric
occurred in the interim.
hospitalization and subsequent aftercare for
prolonged period; drug/alcohol inpatient
treatment for 9-12 months with aftercare;
Parents Anonymous. Treatment for
non-offending parent.
Parent has repeatedly and with premeditation harmed
Psychological evaluation; psychiatric
or tortured this child.
hospitalization; sexual deviancy evaluation;
anger management; drug/alcohol evaluation;
random urinalyses.
Parent's diagnosed sever mental illness (psychosis,
Inpatient psychiatric hospitalization,
schizophrenia, borderline personality disorder,
medication and/or ECT treatment, followed
sociopathy) has not responded to previously delivered
by aftercare, sheltered living environment, and
mental health services. Parents' symptoms continue,
continued medication and monitoring; life-
rendering parents unable to protect and nurture child
skills program.
adequately, such that abuse, neglect, or severe emotional
maltreatment will occur.
Parents' only visible support system and only visible
Methadone program; inpatient drug/alcohol
means of financial support is found in illegal drugs,
6-9 months followed by halfway house living
prostitution, and street life. Child will be abused or
and aftercare for 6-9 months; ongoing
neglected by parents or parents' companions,
outpatient counseling; AA or NA; job training;
or will be essentially abandoned in foster care while
random urinalyses.
parents continue their illegal lifestyle.
CATEGORY II - CONDITIONS AND ACCEPTED TREATMENT MODALITIES
Condition and Probable Results
Accepted Treatment Modalities
There have been three or more CPS interventions for
Psychological evaluation; drug/alcohol
separate incidents, indicating a chronic pattern of abuse
treatment as recommended; parenting class;
or severe neglect. Danger of repeated placements and
anger management; homemaker services;
unsuccessful parental rehabilitation due to chronicity of
home-based services; therapeutic day care;
problems.
life-skills program; parent interaction
training; Parents Anonymous; parent aide.
Other children have been placed in foster care or with
Highly structured, time-limited placement and
relatives for periods of time over six months duration or
period of services. Psychological evaluation;
have had repeated placements with CPS intervention. If
drug/alcohol treatment as recommended;
original causal factors are unchanged, pattern will be
therapeutic day care; homemaker services;
repeated with this child. Child's development will be
Parents Anonymous.
impaired.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
17
Parents are addicted to an illegal drug or to alcohol.
Drug/alcohol evaluation; impatient or
High risk that addiction prevents reunifying family
intensive outpatient treatment; aftercare
and leaves children in limbo of foster care indefinitely.
for a prolonged period; AA, NA, CA,
methadone maintenance, or a combination
of these as appropriate to the addiction;
random urinalyses.
Parents have a diagnosis of chronic and debilitating
Psychological evaluation; outpatient
mental illness: psychosis, schizophrenia, borderline
psychotherapy; inpatient group therapy;
personality disorder, sociopathy, or other illness that
inpatient group therapy; inpatient
responds slowly or not at all to current treatment
hospitalization; halfway house placement;
modalities. High risk of prolonged foster care for the
ECT; self-help support groups.
child during which parents may resist or refuse mental
health treatment.
This child has been abandoned with friends, relatives,
Aggressive, sustained outreach efforts to
hospital, or in foster care; or once the child is placed in
involve parents with the child and with
subsequent care, the parents do not visit on their own
services, and to press for parental decision-
accord. High risk that parents will disappear or appear
making regarding child's permanency at the
rarely, stalling service delivery and preventing child from
earliest possible date, permission to
moving to a permanent home.
relinquish. Psychiatric evaluation, and so
forth, as appropriate to identify problems.
Pattern of domestic violence between the spouses of
Psychological evaluations for both parents;
one year or longer. Serious risk that the parents'
individual psychotherapy; anger management
dependent and volatile relationship will eclipse the
groups; battered women's groups; shelters.
needs of children on a long-term basis.
Treatment for domestic violence must be given
the same weight as treatment for other
problems.
Parents have a recent history of criminal activity. Risk
Depends on existence of other factors.
of long-term foster care while parent is incarcerated and
Requires aggressive outreach, confrontation
no services can be provided.
on child's needs; access to criminal records
and prison counselors.
Child experienced physical or sexual abuse in
Psychological evaluation; sexual
infancy. Treatment may be so difficult and lengthy
deviancy evaluation; anger
that child spends years in foster care.
management assessment; long-term
treatment for diagnosed conditions.
Even a successfully treated pedophile
cannot parent without great risk of
reoffending. Non offending parent/
spouse groups; treatment for non-
offending parent.
Parents grew up in foster care or group care,
Therapeutic day care; youth service
or in a family of intergenerational abuse.
bureau; teen parent programs; groups
Unfamiliarity with normal family life can
for single parents; drug/alcohol
severely limit parents' ability to overcome other
assessment; permission to relinquish.
problems in their lives.
Parent is under the age of 16 with no parenting
Therapeutic day care; youth service
support systems and placement of the child and
bureau; teen parent programs; groups for
parent together has failed due to parent's
young single parents; drug/alcohol
behavior. High risk that parent's immaturity
evaluation and treatment; permission
will interfere with successful treatment for other
to relinquish.
problems.
CPS preventive measures have failed to keep the
Drug/alcohol evaluation;
child with parent: home based services; visiting public
psychological evaluation; anger
health nurse; home builders; therapeutic day care,
management; life-skills program;
and so forth.
counseling; parenting classes;
therapeutic day care.
Parents have asked to relinquish their child on
Direct, confrontational counseling and
more than one occasion following initial
decision-making for the child's
intervention. Risk of child suffering repeated
permanence; psychiatric evaluation;
placements until parent is allowed to relinquish.
time lines set and enforced;
relinquishment.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
18
Mother abused drugs/alcohol during pregnancy,
Drug/alcohol evaluation and
disregarding medical advice to the contrary.
recommended treatment (with infant
High probability of continued drug abuse
is possible); access to medical and
preventing reunification of the family.
criminal records; time lines set and
No services can be useful until the mother is sober.
enforced; education concerning long-
term effects on infant; permission to
relinquish.
Lack of prenatal care for other than financial
Psychological evaluation; drug/
reasons. Conditions predictive of lack of bonding:
alcohol evaluation; recommended
sociopathic personality, drug involvement;,or other
treatment; public health nurse; parent
serious conditions making reunification unlikely.
training.
Parents are intellectually impaired, have shown
Parent training designed for
significant self-care deficits, and have no support
developmentally disabled (DD) parents;
system of relatives able to share parenting. Risk
counseling for DD adults and group
that a slow pace of parents' progress will require
counseling; home-based services;
long-term placement of child. Parents' concrete
home builders; parent aide;
thinking may prevent learning without practice
therapeutic day care; public health
and presence of the child.
nurse; life-skills program coordinator.
In addition to emotional trauma, the child has
Psychological evaluation and
suffered more than one form of abuse, neglect, or
recommended treatment; drug/alcohol
sexual abuse. Risk of long-term placement due to
evaluation and treatment; sexual
complexity of situation and need for wide variety
deviancy evaluation and treatment;
of services to meet different needs before child can
parenting training; home-based
be safely returned.
services; Home builders; day care;
Parents Anonymous; parent aide; anger
management
North American Council on Adoptable Children
The Child Advocate's Legal Guide
19
Questions for Discussion
1.
Does the state or county evaluate the family's needs at the time of
initial foster placement?
2.
Are foster families recruited from among the child's relatives and/or
community?
3.
Is the child's foster placement chosen based on child's needs - such as
cultural matching?
4.
Are foster parents recruited by telling them it is a way to find a child to
adopt?
5.
Is there an innate conflict of interest in allowing foster parents to
adopt?
6.
At the time of first placement, are birth parents told about the
possibility of the termination of their parental rights?
7.
Do birth parents receive adequate support and treatment services
immediately after the child enters care?
8.
What factor is most important to the child when planning
permanency - race? relative status? family economics? or established
bond?
9.
Should foster parents have the first opportunity to adopt the child in
their care?
10. How can we build a system which encourages foster parents to adopt?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
20
Chapter Three
Special Needs Adoption and Adoptability Issues
Statement of the Problem
The 500,000 children currently residing in foster care have all faced either
abuse or neglect or both. These adverse conditions or experiences affect their
development. All of these experiences must be considered by potential
adoptive parents before placement. Waiting children may be: school age or
adolescent; prenatally affected by drugs or alcohol; physically or mentally
handicapped; part of a sibling group; mixed race; hardened by abuse and
feeling angry; or all of the above. In the past, social workers and court
personnel often labeled some children as unadoptable.
Although it is important that potential adoptive parents understand these
conditions and their repercussions, thousands of adoptive family members
have demonstrated that these children, no matter the age or disability, have
the capability of becoming warm, loving, contributing members of a family.
They have proven that special needs adoption, as it is currently labeled, is a
viable option for many parents seeking children. In 1990, out of the 17,000
children adopted, 67% were special needs. In fact, agencies which specialize in
the placement of certain special needs children, such as the Down's
Syndrome Adoption Exchange in New York State, have waiting lists of
potential adoptive parents.
Unfortunately, many children still wait for homes because someone, usually
a social worker or judge, has arbitrarily determined that they are unadoptable.
Charlotte Lopez, Miss Teen USA for 1993 was also a foster child for many
years. In 1994, at age 17 she was finally adopted and joined a forever-family.
Despite her age and early life trauma, she was not "unadoptable".
NACAC received the poem below from Debbie Desimone, the former foster
mother of Andrea Pitman. Andrea and her twin sister have been in foster
care for nearly twelve years, despite being available for adoption since age six.
Andrea left her foster home last year, and was moved to a group home with
the promise of finding a new foster home. The Desimones have contacted
her worker, saying they would be happy to have her with them, but the
worker said their policy is that she cannot live with any previous foster
families. The poem is printed with Andrea's permission.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
21
The Way I Feel About the System
I'm afraid.
I don't know, it sucks being in the system.
I'm alone.
And if staff or the social worker ever heard me
No one wants to help me or anyone else.
saying that I hate my
People are so conceited.
life, they will think I am crazy, and they will try
They only care about themselves.
and put me in a
They don't care about us, or about where we live.
mental hospital.
Just as long as they know that they are going to get
But see that won't help me.
money for us.
God, I hate it.
Like I said, they don't give a damn about us.
Why does it have to be me.
They're always saying "oh yeah we'll make sure
When I first came to a group home they said that I
you go here or there."
could go straight
But the next thing you know they're placing us in
to a foster home from there. But now they're
homes we don't
saying that I should
want to be in.
of thought about it before I went to the group
They're always making promises one minute and
home.
then breaking them
See like I said, "They don't care."
the next minute.
hate them so much.
It sucks.
They are such big liars.
I feel alone.
And I can't stand liars.
No one out there really cares about us.
Well I will keep going until I will get what I want.
I feel like I'm sitting on a bench just waiting by
You would think that they would just give me
myself and all alone,
what I want so I can get
and just waiting for my life to go on and continue.
off their backs, and they won't have to worry
They're always saying we're depressed, or sad in
about me. But no.
life, or we're filled
They're fighting with me so I can finally give up.
with anger. But they don't know how we really
But see I'm not like that
feel in the inside.
I will fight until I finally get what I want. They
All I really want is a nice family so I can continue
should at least give me
on. But no they don't
a change, and see how it works out.
want to give that to me.
And then I can prove to them that if that's what I
They just want to make me suffer.
want then they
It's not fair!
should of given it to me the first time I ask for it.
I want to be like other people. People who have a
But until then I will keep fighting.
family.
No matter if I have to do it by myself.
But no they won't give me that either.
And watch, one day I will finally get what I
I really hate my life.
deserve.
But see that does not mean that I am going to go out
and kill myself,
or even try.
Legal Summary
Child welfare and court bias or misconception has relegated many children to
a childhood in foster care. Social workers, often overworked and only able to
deal with emergencies, will make the decision that a child is "unadoptable"
and fail to take necessary steps to initiate the termination of parental rights.
The rationalization becomes: no one will ever adopt this child so why sever
parental ties - even abusive ties. When the mandatory court review is set,
the worker's report simply says that the child is doing satisfactorily in
placement and the goal is family reunification. This goal is repeated for 2 or 5
or 12 years until the child ages out of the system. Unless the judge questions
why a particular child has had the same report time and again, no one is
likely to move for termination of parental rights and free the child for
adoption.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
22
care; (3) enhanced recruitment of foster and adoptive parents; and (4) caseload
reductions for social workers.
OLiV IA
5
North American Council on Adoptat'e Children
The Child Advocate's Legal Guide
25
Sample Protocols and Forms
A Story of Special Needs Adoption
-by Cathie Thomas
My decision to adopt special needs children was not an active choice; I just sort of fell into it. My
sister was raising her daughter Erica on her own, so I suggested that we move in together and help each other.
After she agreed, I moved from Utah to New Mexico where she lived. Before long I found myself parenting
Erica. Understandably irritated, my sister finally said, "Cathie, if you want a kid, why don't you go get your
own?" This was the first time I really thought about adoption.
I have professional experience as a social worker and have worked in the areas of special
education, early intervention, and speech therapy. When I worked as a speech therapist at the Utah School
for the Blind, I sometime took kids home for the weekend, so I had some practice in taking care of special needs
children. Thus when my sister urged me to "get my own," I decided to talk to a social worker about foster
parenting. The social worker suggested a baby at the institution where I was working.
The baby was not doing very well in the hospital. The doctors said his best chance for survival was
in a home, not the institution, so he came home with me as a foster child. The letter that came with Jamie stated
he would live only a few months. He is now 14 years old.
Jamie was born severely premature and immediately removed to tertiary care at the University
Hospital in Albuquerque. While there, he developed rickets and had several surgeries without anesthesia
because they didn't have any anesthesia designed for a three-pound baby. For some reason, they apparently
thought that if his other systems were not functioning normally, then his pain centers would not be operating
either! The University also lost one of the record books that documented what procedures had been
performed on him. Because she lived several hundred miles away, Jamie's mother never really met him until he
was four months old.
When he was about five months old, Jamie tested positive for Down's Syndrome. Someone at
University Hospital decided to pull his g-tube - his only method of feeding - and sent him to the hospital
where I was working, basically to die. Fortunately, when he came to our institution he became one of my
clients, was assigned to a wonderful pediatrician, and found other people that cared about him. We slowly
weaned him off of oxygen, and when he was nine months old, I took him home.
Jamie weighed only seven pounds when he came home, but he initially did well in our family setting.
After six weeks, however, he went into cardiac arrest and had to go back on oxygen 24 hours a day. To keep
him, I had to find a way to provide this service in my home. Luckily, when I canvassed my neighbors for baby-
sitting services, I found an old best friend of mine who just happened to want to stop working and stay home
with her kids! She knew how to handle asthma and heart problems like Jamie's, and agreed to take of him for
$25 a week. In a very unusual turn of events, I regained an old friend and solved my home care problem. She
took care of Jamie for about three years and he thrived.
A year after Jamie came to live with me, the institution's lawyers claimed that they could no longer
support him because providing financial support while he lived with me was a violation of state law. When I
asked where I should find support for his care, they said they didn't know. They shifted his SSI over to me so
he was taken care of medically, but no one wanted to take financial responsibility for him. Finally, I
convinced social services that he was their responsibility.
Ironically, social services really dragged their feet on the decision to let me adopt Jamie. As is too
often the case, "the system" is the biggest problem prospective adoptive parents face. It was fine for me to
foster Jamie, but it took two and one-half years to convince them to let me adopt him! It finally took an
efficiency expert to move the process along; he explained to them how financially advantageous it was for
them to let me adopt Jamie. After that, they were very helpful in finalizing the adoption and setting us up with
a good care program. Jamie was the first medically fragile child to be adopted in New Mexico.
I have never met any human being who is more valiant than Jamie. I just don't have words to describe
how I feel about him. He is an absolute gift. He's had 20-25 surgeries and has been through so much, yet he
still wants to go on. He never asks why he has to do something; he just puts up with it. He is in pain a lot.
Because of a sinus infection that was not properly diagnosed and treated, he has a chronic systemic staph
infection. For a while, he was having surgeries every four months to clean out his sinuses because we thought
the infection caused his intense pain.
When he is in pain, he is self-abusive. Last year when he was 13, the pain got so severe that he tried
to put himself through a bus window. Most doctors who have seen him say he has a behavior problem, but I
disagree. If his actions resulted from psychological problems, his behavior would escalate and then diminish.
But Jamie's self-abusive behavior starts and end abruptly. Also, he will hurt people he trusts because he
wants them to "fix" him. After he tried to put himself through he bus window, the doctor who treated him
asked me if we have ever considered migraines. Infections can exacerbate migraines. Jamie started taking a
migraine medication and hasn't had surgery since. He still has infections but he can handle them now because
they aren't as painful as before.
After a while, my sister and niece moved out, and Jamie and I were alone for some time. I began to
think about adopting again but didn't want to deal with the system. Then I found out that the first adoption is
the hardest. Officials initially feel compelled to ask what is wrong with you that you want this "strange" kid.
Once you're approved and they know you and your home, they come looking for you. I probably could have
had fifteen kids if I had wanted them.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
26
I met my second child when she was about four months old because her foster mother and I attend the
same church. At the time, another family was supposed to adopt Betsy once she stabilized in the foster home.
One day at church, her foster mother said Betsy was free for adoption, but the family who was supposed to
adopt her had backed out because they had waited so long and had become frustrated - the system strikes
again. Betsy's foster mother then told social services that she wanted me to adopt Betsy.
Betsy was born severely premature, and though she should have weighed three to four pounds based
on her gestation age, she weighed only one and a half pounds. Her birth mother took her home against medical
advice and didn't show up for Betsy's doctor appointments, so after about a month social services checked on
her at home. They found that the birth mother had not been feeding Betsy or taking care of her. Betsy had a
grade three brain bleed which developed into hydrocephalus when the bleed blocked the flow of spinal fluid.
Doctors had to put a shunt in her head to allow the fluid to flow.
After the foster mother's recommendation, social services asked me if I was interested in adopting
Betsy and updated my file in about one-half hour. The social workers knew me well, so there was no
difficulty. After three visits, I brought her home with me.
Betsy's main problem is emotional damage from maternal deprivation and the eight placements she
endured during her first year of life. In order to bond, a child needs stability, especially during the first year.
Being in the same place is not so important, but being with the same person is essential. As a result of her
early experiences, she has no conscience and she lies, hoards, and steals. This behavior increases any time
her routine changes, such as when school is out for the summer or even when it's her birthday. I've learned
one way to "trick" her into telling me the truth. If I ask her it she took something, she will say "no." But if I ask
her where something is, she will tell me. Because of some cognitive processing problems, she hasn't quite
figured out how to not answer a question yet.
When she was ten years old, she stole some of my checks and cashed three of them at a bookstore.
Her reason was admirable - she wanted to buy books for other children who couldn't afford them - but, of
course, this was not the right way to go about it. I asked the police to come over and try to scare her enough
so that she wouldn't steal again, but they refused. I worry about her getting into serious trouble someday.
One doctor wanted to hospitalize Betsy because of her behavior, but he couldn't tell me what the hospital
could do for her that I couldn't, and my therapist agreed.
Betsy is now 11 and just finished fifth grade. She became such a pariah at her school because of
lying and stealing that our recent move to a new town came at a good time. Her old classmates picked on her
because they knew she lied and stole. She needed to change schools. At her old school, she was flunking
special education math, and at her new school, she passed fifth grade math this year. The new school is more
structured and strict, and demands her best effort. She would do well in a military setting, where there are
regimented rules and clear discipline.
We spent a lot of time in counseling, trying to teach her limits. Finally, the therapist said, "Betsy
knows right from wrong, but she's just taking care of number one. She has had to fight for herself since before
she was born and feels that she can only count on herself." What Betsy and I really need; the therapist
concluded, is a closer, stronger bond, so Betsy will feel that she has someone else whom she can trust. I used
to honor Betsy's desire for distance from me, but now I give her lots of hugs, kisses, and affection. This new
approach seems to be working; I'm already seeing some positive changes in her behavior.
Betsy's cognitive processing problems are caused by the shunt in her brain which lies against her
temporal lobe. She gets a blank, confused look on her face when she's not following what you're saying.
Despite this, she has a normal level of intelligence, and is a very bright, sweet, and beautiful child. She is the
most gentle child I have ever known and appears to be normal in all other respects. She plays piano and sings
beautifully. It's both amusing and irritating to see how surprised people are that she has this talent. It's as if
they're thinking, "How could someone who lies and steals have any positive talents or qualities?" She is also
one of the most compassionate human beings I've ever known and she loves to help other people. She is truly a
gem
My third child, Scott, was a very sick, 24-week-old premature baby born at the University Hospital.
He stayed in the hospital for eight months before his birth mother could take him home, but was only home for
about a month before he had to return to the hospital. Unfortunately, his birth mother died in a car wreck
soon after. Scott's older sister was five when their mother died. Because she didn't understand what had
happened, she blamed her mother's death on Scott and took all her anger out on him. She was placed with
their aunt and uncle who, though they would have liked to take Scott also, knew the brother and sister
couldn't live together.
When I found out about Scott, several other families wanted him too, and I thought I had no chance of
adopting him since they were all two-parent families. Then his foster family was transferred, and I was the
only available foster family for medically fragile children. Social services knew that I wanted to adopt Scott,
but said that they couldn't offer adopting, only foster care. My lawyer said I was between a rock and a hard
place - if I didn't take Scott as a foster parent, they wouldn't offer him to me for adoption; if I did take him, I
might eventually have to give him up to another family for adoption. So, I took him in and hoped for the best.
In this case, the slow speed at which the state proceeded worked to my advantage. Typically in New
Mexico, the longer a child is in your home, the better your chances are of being chosen as the adoptive parent.
True to form, the state took so long to make a decision in Scott's case that, by the time he was free for adoption,
all the other families had already found other children or decided that they really didn't want a chronically
ill child anyway. When Scott was about two, the state terminated his father's parental rights (the father
disappeared), and I was able to adopt him.
Scott just turned eight. He's all boy, and doesn't think of himself as sick, but he still has really fragile
lungs and must carry an oxygen tank around behind him like a little wagon. He weighs just 40 pounds. When
we moved, the neighborhood school didn't have a full time nurse, and school officials were worried about
being able to care for him when they first saw his extensive medical records. Ironically, when they met him,
they thought he was cute and were willing to work with him. I thought, "What's cute got to do with it?" but
North American Council on Adoptable Children
The Child Advocate's Legal Guide
27
took advantage of their naiveté. Scott's doing very well in our new home. He's very bright and is looking
forward to becoming a Cub Scout. He is really precious to me.
My kids are on the severe end of the medical-problem spectrum, and they, like all special needs
children, need someone who can effectively advocate for them. When parents get angry with the system and its
professionals, they don't get anywhere. Parents must be able to develop and cultivate a support team of
parents and professionals who can work together to solve problems for the benefit of the children.
Seven years ago, administrators from the University Hospital that sent Jamie to the institution called
and asked me what I would change about the hospital if I had the opportunity. They asked the same questions
of ten other parents who had interacted with different areas of the hospital - no cowardly fear since they
were contacting probably the most angry parents they had encountered. We all met together and came up with
81 requests. In response, the administrators said, "Okay, fix them." They wanted us to form a group that
would effect positive changes in the hospital. As a result, there have been many changes in the last seven
years. Now the staff even comes to us for help because the administration will listen to us when it won't
listen to them. We're effective because we work with them positively, rather than fighting with them. We must
exercise this kind of approach if we are to make changes in the social services adoption system.
Adoption of special needs children and its resulting demand for advocacy is really hard work, but it
is the best work in the world. Although it can be painful and frustrating, adoption is one of the most
rewarding and wonderful things I've ever done, and I wouldn't trade it for the world.
circle.
Loving
Pro
in
caring
love
puo
makes
care
passing
himoj
North American Council on Adoptable Children
The Child Advocate's Legal Guide
28
Questions for Discussion
1.
Does your state require that an adoptive family be identified prior to
TPR?
2.
Are social worker caseloads low enough for workers to help find
placements for children with greatest need?
3.
Does your state have a listing program of children available for
adoption?
4.
What other recruitment efforts are made to find families for waiting
special needs children?
5.
Does the state provide adoption assistance?
6.
What services are available to the adoptive families of special needs
children?
7.
Do local judges understand the effectiveness of special needs adoption?
8.
Are there other court barriers to special needs placements?
9.
Would publicity about special needs adoptions help increase
placements?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
29
Chapter Four
Open Adoption
Statement of the Problem
While all children need permanency, there are some situations where having
continued contact with the biological parent after adoption is in the child's best
interests. Some examples are:
a child who has a good relationship with a developmentally, emotionally or
physically disabled parent who cannot care for the child;
an older child or adolescent who benefits from ongoing contacts or visits by a
biological parent and wishes to continue that relationship;
a situation where the foster parents adopting the child have a cooperative
relationship with the biological parent, the relationship is focused on the best
interests of the child, and it is likely to continue after the adoption; or
a special needs child whose siblings may still live with the biological parents
where continued contact is in the child's best interest and consistent with the
child's wishes.
In an "open adoption," the adoptive parents are the legal parents of the child and
the biological parent only retains the rights outlined in the agreement. The
biological parent cannot seek custody of the child or attempt to increase these rights
after the adoption is finalized. One solution used by some courts in certain cases is
to order adoption with visitation or contract rights to the biological parent.
One of the biggest obstacles to open adoption is that in most states the legal validity
and enforceability of post-termination contract agreements is unresolved. This
creates significant problems because without better statute definition, no one
involved in an open adoption agreement can be certain what will happen if there is
a dispute between the biological parent and the adoptive parents. Does the court
simply enforce the agreement? Are the "best interests of the child" the overriding
consideration? Will the court hold that the biological parent has no rights? Will
the court invalidate the adoption for the adoptive parents' failure to comply with
the agreement? Without knowing the answers to these questions, adoptive parents,
biological parents, and the attorneys will be reluctant to consider open adoption as
an option.
With the overloaded juvenile court system another danger is that open adoption or
continued contact agreements are used as a "plea bargain" to settle difficult
North American Council on Adoptable Children
The Child Advocate's Legal Guide
30
termination of parental rights cases. Adoptive parents may be coerced into these
agreements because they fear prolonged and uncertain court proceedings. Parents
may be rushed into this agreement to avoid an emotionally difficult trial without
fully understanding the irrevocability and potential unenforceability of the
agreement. Even more detrimental, the contract conditions could delay or prevent
a freed child from being adopted if a consenting adoptive family has not yet been
identified.
Legal Summary
One barrier to open adoption arrangements is the unclear wording of state adoption
statutes in terms of the legal effect of adoption on the biological parents' rights. For
example, in Kansas, the statute provides that once an adoption is granted by the
court, "all the rights of the natural parent to the adopted child, including the right to
inherit from such child, shall cease...." (Kan. Stat. Ann. $59-2103). The only
statutory exception is usually for step-parent adoptions where the biological parent
whose spouse is adopting does retain these rights. Courts have often interpreted
this statutory language as a prohibition of open adoption. On the other hand, the
availability of a specific open adoption statute has helped clarify this issue (See the
discussion in the chapter on "Foster Adoptive Parents").
In other states, the courts have recognized open adoption agreements between
adoptive and biological parents even though there is no statute that specifically
authorizes it. For example, the Massachusetts court found that these agreements are
enforceable by the court as long as visitation is in the best interests of the child in the
case of In re Adoption of Minor, 291 N.E.2d 729 (Mass. 1973).
Some states allow biological and adoptive parents to agree to continued contact or
visitation as part of the parent's voluntary relinquishment of parental rights. For
example, New York law requires that any agreements to the parent visiting or
contacting the child after adoption must be spelled out in the surrender itself and
the judge must ask the biological parent whether there were any promises made to
induce them to relinquish their rights (N.Y. Soc. Serv. Law $383-c.). The question
that the statute leaves unanswered is whether and how such special provisions will
be enforced.
It is arguable that if the provisions of a conditional surrender are not met that the
surrender is void and the adoption is invalid. For example, if a parent surrenders a
child to be placed with a particular couple and that couple declines to adopt, the
surrender is usually considered to be void. Similarly, the court could assume that
the parent would not have signed the surrender but for the agreement to continued
contact. The problem is that the legality of the adoption may be called into question
if the visitation arrangement falls through.
In Matter of the Catholic Home Bureau for Dependent Children, N.Y.L.J. 3/30/93, at
32, col. 6 (Queens County Fam. Ct. 1993), the court avoided the invalidation of a
North American Council on Adoptable Children
The Child Advocate's Legal Guide
31
conditional surrender when the continued visitation agreement terms were not
complied with by the adoptive parents. The court declared that the provision did
not give the biological parent an automatic right to visit but instead reserved the
biological parent's privilege to have standing to petition the court for continued
contact with the child. The court must make this determination based on the best
interests of the child. The difficulty with this decision is that the biological parent
did not understand this when signing the surrender. How does the parent's counsel
explain such esoteric legal reasoning to their client?
The preferable approach is for any agreement for continued contact or visitation to
be separate from the surrender itself and for biological parents to be informed before
they relinquish their parental rights that non-compliance with the agreement will
not invalidate a finalized adoption. This approach is shown in the Washington
State Statute and in Indiana's "Post Adoption Visitation Privilege Act," both of
which are reproduced at the end of this chapter as model law.
Finally, some child welfare agencies offer the possibility of open adoption outside of
the legal process. This arrangement is used most often when foster parents are
adopting a child and all parties agree that some contact with the biological parent is
desirable. The written agreement specifically defines the type and frequency of
contact, which might range from annual photos or letters to frequent visitation. In
addition, the biological and adoptive parents are informed that the arrangement is
not legally binding under the state's law.
Proposed Solutions
To make open adoption available in appropriate circumstances, states need
legislation to clarify the impact, enforceability, and modification of open adoption
agreements. The law should limit open adoption arrangements to situations where
the parents and adoptive parents genuinely agree and where it is in the best interests
of the child. The court should have the authority to reduce or eliminate the
visitation should it not work out for the child. A mechanism for the resolution of
disputes should be created, either through mediation or court action. Perhaps, as in
the Washington state contract, remedies such as money damages should be
available. It should be clear that the adoption cannot be challenged for a failure to
comply with a visitation agreement.
One innovative approach suggested by Pat O'Brien, the Director of Downey Side
Families for Youth in New York City, is that the child rather than the biological
parent should be granted the "right to visitation or continued contact." This
clarifies the purpose of an open adoption agreement. It is to benefit the child, not
merely the biological parent.
Most importantly, there should be some form of court review of the open adoption
agreement to ensure that it was planned, voluntary, realistic, and in the child's best
interests. The adoptive parents, biological parent, and child should be represented
North American Council on Adoptable Children
The Child Advocate's Legal Guide
32
by legal counsel to review the agreement and advise their clients. The agreement
should be in writing and signed by both parties. It should be clear in the agreement
how any disputes over the visitation will be resolved.
If an open adoption agreement is proposed in a pending termination of parental
rights case, the judge should scrutinize whether the process for negotiating the
terms sufficiently considers the child's best interests. There should be some advance
planning involving not only the biological and adoptive parents, but also the child
welfare agency, the adoption unit, the child's attorney or advocate, and the child's
counselor.
Preferably, there should be a trial period for the visitation prior to the finalization of
the adoption to ensure that the arrangement is workable and beneficial. Supportive
services and counseling to facilitate the visitation should be available both before
and after the adoption is finalized.
One danger in some open adoption arrangements is that the biological parent may
choose not to exercise their visitation for several years and then reappear abruptly
into the child's life. To avoid this problem, the language in the agreement can set
some time limit after which unexercised rights expire. In addition, the agreement
can outline other situations in which visitation may be temporarily or permanently
suspended, such as if the biological parent is visibly intoxicated at a visit, uses
inappropriate discipline, or is verbally or emotional abusive to the child.
The ultimate goal should be to ensure the child's "psychological permanency." The
open adoption agreement should not impair the child's ability to integrate with
their new family. If continued contact will help a child, particularly an adolescent,
to feel they have the biological parents' support to become part of their adoptive
family, the participants should encourage and assist this arrangement.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
33
Sample Protocols and Forms
Indiana Cooperative Adoption Statute
In 1994, Indiana passed a law that is a model for other states seeking to codify open
adoption arrangements. The statute reads as follows:
Indiana Code 31-3-1-13. Post-adoption visitation privileges.
(a) At the time an adoption decree is entered, the court entering the decree
may grant post adoption visitation privileges under subsection (b) to a birth
parent who has consented to an adoption or voluntarily terminated the
parent-child relationship.
(b) A court may grant post adoption visitation privileges if:
(1) The court determines that the best interests of the child would be
served by granting post adoption visitation privileges;
(2) The child is at least two (2) years of age and the court finds there is a
significant emotional attachment between the child and the birth
parent;
(3) Each adoptive parent consents to the granting of post adoption
visitation privileges;
(4) The adoptive parènts and the birth parents execute a post adoption
visitation agreement and file the agreement with the court;
(5) The licensed child placing agency sponsoring the adoption and the
child's court appointed special advocate or guardian ad litem
appointed under Indiana Code 31-6-3-4 recommends to the
court the post adoption visitation agreement, or if there is no
licensed child placement agency sponsoring the adoption, the
county office of family and children or other agency that
prepared the adoption report under Indiana Code 31-3-1-4 is
informed of the contents of the post adoption visitation
agreement and comments on the agreement in the agency's
report to the court;
(6) Consent to the post adoption visitation is obtained from the child,
if the child is at least twelve (12) years of age; and
(7) The post adoption visitation agreement is approved by the court.
(c) A post adoption visitation agreement filed under subsection (b)(4) must
contain the following provisions:
(1) An acknowledgment by the birth parents that the adoption is
irrevocable, even if the adoptive parents do not abide by the post
adoption visitation agreement.
(2) An acknowledgment by the adoptive parents that the agreement
grants the birth parents the right to seek to enforce the post adoption
privileges set forth in the agreement.
(d) A birth parent or an adoptive parent may file a petition with the court
entering the adoption decree for the following purposes:
(1) To modify the post adoption visitation agreement;
North American Council on Adoptable Children
The Child Advocate's Legal Guide
34
(2) To compel a birth parent or adoptive parent to comply with the
post adoption visitation agreement;
(e) The court may not award monetary damages as a result of the filing of a
petition under subsection (d).
(f) The court may void or modify a post adoption visitation agreement
approved under this section at any time before or after the adoption if the
court determines after a hearing that the best interests of the child requires
the voiding or modification of the agreement. Before the court:
(1) Voids or modifies an agreement; or
(2) Hears a motion to compel compliance with an agreement approved
under this section;
the court may appoint a guardian ad litem or court appointed special
advocate under Indiana Code $31-6-3-4 to represent and protect the best
interests of the child.
(g) The provisions of Indiana Code 31-6-3-4(d) through Indiana Code $31-6-
3-4(g) concerning representation, duties, liabilities, and appointment of a
guardian ad litem or court appointed special advocate apply to proceedings
under this section.
(h) A court may not revoke a decree of adoption because a birth parent or an
adoptive parent fails to comply with a post adoption visitation agreement
approved by the court under this section.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
35
Washington Open Adoption Statute
The State of Washington also has an open adoption statute:
Code $26.33.295.
Open adoption agreements - Agreed Orders - Enforcement
(1) Nothing in this chapter shall be construed to prohibit the parties to a proceeding
under this chapter from entering into agreement regarding communication with or
contact between child adoptees, adoptive parents and a birth parent or parents.
(2) Agreements regarding communication with or contact between child adoptees,
adoptive parents, and a birth parent or parents shall not be legally enforceable unless
the terms of the agreement are set forth in a written court order entered in
accordance with the provisions of this section. The court shall not enter a proposed
order unless the court finds that the communication or contact between the child
adoptee, the adoptive parents, and a birth parent or parents as agreed upon and as
set forth in the proposed order would be in the child adoptee's best interests.
(3) Failure to comply with the terms of an agreed order regarding communication or
contact that has been entered by the court pursuant to this section shall not be
grounds for setting aside an adoption decree or revocation of a written consent to an
adoption after that consent has been approved by the court as provided in this
chapter.
(4) An agreed order entered pursuant to this section may be enforced by a civil action
and the prevailing party in that action may be awarded, as part of the costs of the
action, a reasonable amount to be fixed by the court as attorney's fees. The court
shall not modify an agreed order under this section unless it finds that the
modification is necessary to serve the best interests of the child adoptee, and that:
(a)The modification is agreed to by the adoptive parent and the birth parent or
parents; or (b)exceptional circumstances have arisen since the agreed order was
entered that justify modification of the order.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
36
Questions for Discussion
1.
Does your state have any legislation that prohibits or permits open adoption
arrangements?
2.
Does the child welfare agency approve open adoption arrangements?
3.
Under what circumstances is continued contact with a biological parent after
an adoption appropriate? When is it inappropriate?
4.
Is an open adoption agreement ever used to settle a termination of parental
rights proceeding?
5.
Can the court order post-termination contact or visitation?
6.
Are open adoption agreements always in writing?
7.
What considerations go into the development of the open adoption
agreement?
8.
Does the child's attorney or advocate have to agree to the terms of an open
adoption agreement?
9.
How are disputes between biological parents and adoptive parents over open
adoption agreements resolved?
10.
Can an adoption ever be invalidated for noncompliance with an open
adoption agreement?
11.
Does the child welfare agency supervise the open adoption agreement?
12.
Do the biological parents and adoptive parents have access to post-adoption
services to facilitate an open adoption agreement?
13.
Is there a mechanism to modify open adoption agreements?
14.
Can an open adoption agreement be modified or revoked if it conflicts with
the child's best interests?
15.
Can an open adoption agreement be modified or revoked if it conflicts with
the child's wishes?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
37
Chapter 5
Orphanages
Statement of the Problem
Since 1986, NACAC has reported the dramatic increase in the foster care population.
In 1987 there were 285,000 children in foster care; in 1992 this number swelled to
460,000 or approximately 6 out of every 1000 children. In part, the increase is caused
by poverty, drugs, inadequate housing, violence, and a lack of decent wage jobs. In
response to the increasing need for foster care, some people in the system propose a
return to an archaic and expensive institutional solution - orphanages.
Orphanages first became widespread in the U.S. in the late 1800s to house the
children of unfortunate immigrants. The orphanages of today (or group homes as
they may be called) are not be the disease-ridden, over-crowded warehouses of the
nineteenth century. However, a look at the economic status and race statistics for
foster children indicates there would likely be a classist and racist disparity in
institutional populations.
In 1994, the Governor of Illinois appointed a 14-member task force to study "child
residential facilities." Illinois' foster care population has grown from 19,000 in 1989
to 37,000 in 1994. Children are pouring into care and not leaving the system. On one
hand, government spokespersons insist they cannot cope with the increased need
for foster families. On the other, child advocates contend that, in many cases,
changes -some simple- would increase efficiency and pry children out of foster
care.
Some social service administrators and politicians endorse institutions as the
solution for children because it's the easy way out. An administrator faced with a
need for two hundred beds finds it easier to contract that service to an outside
agency than to have already overworked social workers recruit, license, and train
200 new foster homes. The present plan is to use these "homes" for young
"healthy" children, not for older, hard-to-manage teens.
Although institutions provide secure and consistent resources for bureaucrats,
orphanages are damaging to children. As reported in a recent NACAC research brief
by Ford and Kroll (1995), child mental health advocates point to bonding problems
and development of "institutional coping skills" which leave kids unprepared to
parent their own children. Long-term institutionalization in early childhood leads
to recurrent problems in interpersonal relationships and high rates of personality
disorders. Social scientists cite the stigma children face for being unwanted
"orphans." The physical and emotional scarring of Romania's orphans and the
protracted bonding problems they continue to suffer even after being adopted and
North American Council on Adoptable Children
The Child Advocate's Legal Guide
38
brought to the United States ought to provide the evidence necessary to show that
orphanages do not work.
In a March 1, 1994, USA Today article, occupational therapist Sharon Cermak said
Romanian orphans are "touch-starved." The children are not used to human
contact, and recoil when touched by their adoptive parents, or inappropriately latch
on to strangers because they are so desperate for affection. Romanian orphans often
have attachment disorders similar to the orphans reported in the 1995 NACAC
brief.
The 1995 NACAC brief also demonstrates that orphanages have the most
devastating impact on young children. Meanwhile, Illinois will move 60 children
into the "SOS Children's Village" - a "modern orphanage" - during the next two
years. To be accepted into the "village" children must be age 10 or younger! The
notion that foster families cannot be found for these children is preposterous, and
ultimately detrimental to their emotional well being.
In a March 31, 1995 article in the Minneapolis Star Tribune, Geraldine Carter of the
Survival Skills Institute talked about her 1990 visit to St. Mary's Orphanage in
Trinidad. At that time, she was pondering the orphanage concept for some of the
work she intended to do in Minneapolis. Her experience, however, was so awful
that she quickly changed her mind. She reports that Father Benjamin, the Anglican
priest who ran St. Mary's Orphanage, told her "If you can prevent this in your
country, do, because you will not like the kind of people that orphanages turn out."
Although estimates vary, the cost of orphanages is extremely high. According to
Jerry Slomka, Deputy Director of Illinois Department of Children and Family
Services (DCFS) and Chair of the Interagency Authority, foster care costs $350 per
month ($4,200 per year) compared with $4,200 per month ($50,400 annually) for
group homes! Other estimates for group home facilities range as high as $180,000
per year. The cost of building the SOS Children's Village facility is 5.8 million
dollars. At a minimum, placing a child in a group home costs $2400 per month
($29,200 per year).
Legal Summary
Many jurisdictions such as Cook County IL, Washington DC, Florida, Milwaukee
WI, Utah and Alabama have been forced to make significant foster care system
reform because of lawsuits filed which document illegal foster care practices. One
frequently mentioned positive model of reform is Alabama's system, as it
reorganized under a 1991 federal court order. In the years since the Alabama decree
was entered, the number of children in state care has dropped by 18 percent, largely
due to increased family preservation efforts. Alabama also has a different training
program for its workers, one which teaches workers how to handle real life
situations rather than how to process forms. Alabama provides a leading example
of state child welfare reform efforts.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
39
Meanwhile, Illinois is making some progress under their consent decree. DCFS has
hired over 500 new employees in the last year, enabling it to reduce caseloads from a
high of 80-90 per worker to 30 cases per worker. DCFS is also automating its
outdated system for finding vacancies in foster homes. The computerized
"FindHome" system updates vacancies daily, replacing the old card file system for
finding information on foster homes.
The authors are not aware of any court that has suggested, or ordered, a child
welfare department to utilize orphanages as a solution for foster care system
problems.
The Solution
Problems with the child welfare system could be mitigated by: (1) providing
effective re-unification and support services to families in crisis; (2) providing
training, respite care, and counseling for foster parents caring for "damaged"
children; (3) urging courts to quickly legally separate waiting children from
unredeemable birth parents so they can be adopted at an early age; and (4) recruiting
caring, culturally sensitive families as permanent adoptive parents. When change
is needed, as with the foster care system, we should keep the functional element
families. Families not orphanages - are the answer.
Years ago when society pondered how best to care for the influx of drug affected
babies, some people called for the return of orphanages. Fortunately, wiser planners
prevailed. In response to the need, several very successful models were developed
to recruit foster parents who would care for these difficult and fragile children. In
Michigan, the Judson Center founded the L.I.F.E. (Living In Family Environment)
Program. Planners realized that because of the recession and the decline in the auto
industry, many people were without full employment. At the same time, children
needed homes. The L.I.F.E Program selected welfare and low income families who
could demonstrate successful parenting skills and a strong support system to be
licensed as foster parents. They were given special training to deal with disabled
children. As payment, these families, (average size: 3.2), received a salary, ($22,000
in 1990), plus medical benefits. Once the child was placed, the family was financially
independent from the welfare system, the government saved high institutional
expenditures, the child could bond with individuals, and the family had a sense of
pride and accomplishment.
Similarly, there are other solutions that utilize family foster care rather than
institutions. Ada S. McKinley Community Services, Inc., a Chicago-based social
service agency, provides foster care services as part of its mission. McKinley, along
with other agencies, contracts with DCFS to provide foster care services. According
to Carol Winn, McKinley's Division Director of Foster Care, "We need to work
harder in the area of family preservation. As long as there's been foster care, we've
made it work, and we can do the same thing with families. "McKinley's licensing
North American Council on Adoptable Children
The Child Advocate's Legal Guide
40
department provides ongoing assistance to its foster families to make sure the
homes change along with the needs of children. Winn believes similar services can
be provided to families. One area lacking services is aftercare for families that have
children returned to them from out-of-home care. Providing services to these
families would reduce the recidivism rate back to foster care.
In Washington and Idaho, Lutheran Social Services started an innovative program
which reduced social work caseloads to ten children per worker, delivered early and
intensive services to biological parents, emphasized parental visiting, and recruited
foster parents who agreed to become the child's adoptive family if necessary (Katz,
1990). From the start, social workers focused on the child's need for permanency.
Reunification, termination of parental rights, and adoption were simultaneously
discussed with biological parents in order to reduce the length of time needed for
case resolution. The average time from intake to permanency was 13 months, and
82 percent of the 39 children in the sample had only one placement during the one
and a half year project. In several cases where the parents proved unable to parent,
they came to understand the child's needs and voluntarily relinquished rights and
allowed the adoption to occur.
Projects like the ones in Washington and Idaho need to be expanded to fill the
increasing demand for foster parents. At the same time, society needs to keep
children out of foster care by addressing the root causes of the problems which make
children the innocent victims.
Families are unquestionably the best resource for children. As parents, we feel
guilty if our children spend too much time in day care, boarding schools, or any
other institution: Yet, for those neglected and abused children most in need of
loving care, some people are now saying orphanages are the answer. However, as
we have illustrated above, it would be foolish to throw away additional tax dollars
to build these orphanages.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
41
Questions for Discussion
1.
Are local child welfare officials suggesting increased use of child care
institutions?
2.
Are they proposing institutions other than treatment groups homes?
3.
Are there enough foster families in your area? If not, why?
4.
What is the long-term psychological effects of institutionalization on
children?
5.
Is anyone suggesting for-profit institutions (these may be allowable under some
current congressional proposals)?
6.
What are the comparative costs of foster care vs. group home care?
heart
for adopted children
North American Council on Adoptable Children
The Child Advocate's Legal Guide
42
Chapter Six
Court Issues
Statement of the Problem
Once the termination petition is filed, numerous delays may occur while the case
is litigated in the courts. In some instances, a termination case may remain in
court for a year or more before a final decision is made. Continuances and
adjournments may be routinely granted. This further prolongs the child's stay in
temporary care and places undue stress on the child and the parents.
Courts may delay actions to terminate the parental rights because of missing
parents or because the rights of a non-marital father is at issue. Is the father's
consent necessary for the child to be free for adoption? Is the father entitled to a
notice of the proceeding? Time can be wasted on searches for fathers who have
no constitutionally protected rights. Court procedures can add to these delays.
In many termination actions, particularly those grounds based on the parent's
mental illness or mental retardation, an expert must evaluate the parent's mental
condition and testify as to whether the parent is able to care for the child. In the
ABA study done in New York state, we found that children of méntally ill
parents remained in care longer than other children - an average of 4.5 years in
Chemung County and 8.3 years in Onondaga County - before being freed for
adoption. Part of this delay occurred in obtaining timely court-ordered
evaluations.
One of the dilemmas that judges face in termination actions is the parent who
genuinely begins to work to resolve family problems once the termination action
is initiated, even though their prior record in participating in services was poor.
In these cases, the judge may order a suspended judgment which further extends
the time a child remains without a permanent family.
Some of these delays begin even before the termination petition is filed. For
example, the original disposition order in the case may not be specific enough for
the agency to determine whether their reunification efforts have been sufficiently
diligent to file a termination action. Parents may not have been warned about
the potential of termination of parental rights by the court at earlier hearings.
Another problem is that the courts may not focus enough attention at review
hearings on setting a final permanency plan for the child. Sometimes these
hearings last only a few minutes and, if no party is opposed to the extension of
foster care placement, the agency's recommendation is routinely approved.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
43
Legal Summary
In order to obtain federal reimbursement of foster care costs for eligible children,
each state must have a case review system for foster children. 42 U.S.C.A.
§671(a)(16).
Every six months, the child's foster placement must be reviewed by the court or
by an administrative review. At this six month review, the court must
determine:
whether the placement continues to be necessary and is still appropriate;
whether the case plan is being complied with by the family and agency;
whether progress has been made in resolving the problems that led to the
child's placement; and
the likely date the child will be returned home or placed for adoption.
42 U.S.C.A. $675(5)(B).
No later than 18 months after the child's placement, a court hearing must be held
to determine the future status of the child. The child may be:
returned to the parent;
continued in foster care for a specified period;
placed for adoption; or
placed in permanent or long term foster care because of the child's special
needs or circumstances.
If the child is over 16, the court must also consider whether services are being
provided to prepare the child for independent living. 42 U.S.C.A. §675(5)(C).
The court may have the option of ordering the agency to initiate an action to
terminate the parental rights of the parent and free the child for adoption if the
court finds reasonable cause to believe grounds for termination exist. In some
states, like New York, if the agency does not file a termination petition in the case
within 90 days, the court must allow the foster parent or law guardian to initiate
the termination action, unless the agency can show good cause for its delay.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
44
Proposed Solutions
As mentioned in the chapter on "Reasonable/Diligent Efforts," one of the key
issues in most termination actions is whether the agency has made diligent
efforts to encourage and strengthen the parental relationship. One way in which
the court can help to clarify this issue is in its disposition order after a finding of
abuse or neglect has been made. The disposition order lays out the service plan
for the family and the assistance the agency is required to provide. The more
detailed and clear the disposition order is, the more concrete is the standard for
diligent efforts if the case should go to termination of parental rights.
One way to avoid suspended judgments in termination actions is for the judge to
clearly warn the parent at the disposition hearing, as soon as the child has come
into care, that a termination action may be brought against them. The parent
must understand that they must resolve the problems which endangered the
child within one year. This may provide more incentive for a parent to work
with the service plan in order to have their child returned.
In addition, the large number of parents who disappear after their child is placed
in foster care delays termination actions while a search is made for the parent.
To prevent these parents from disappearing, it may be helpful for the judge to
include in their original disposition order a requirement that the parent keep the
agency apprised of their address. Such a warning may impress upon the parent
the importance of maintaining contact with the agency and their child, enhancing
the chances for reunification, and, where reunification is not possible, making an
effective termination action less time consuming.
By more actively using the powers granted under the review hearing statutes, the
court can significantly reduce the amount of time a child unnecessarily lingers in
foster care without a permanent placement. After a child has been in care 12 to
18 months, the agency should be ready to make the decision either to return the
child home or to begin efforts to free the child for adoption. The court should
also use the review process to make a permanency plan for the child.
To avoid delays because of non-marital fathers, the court should adopt
procedures for resolving the status of putative fathers early on in the case. The
court should require that the father of the child be identified to determine if they
have legal rights and are a resource for the child. In termination cases involving
putative fathers, the court could require an affidavit to accompany the
termination petition which addresses the issue of whether an unwed father is
entitled to consent or notice.
Once a termination petition has been filed, the pretrial conference can be an
important means of speeding and simplifying termination litigation. The
exchange of information and the identification and narrowing of issues can
streamline discovery, shorten the time for trial, and make the trial more fair by
North American Council on Adoptable Children
The Child Advocate's Legal Guide
45
avoiding surprises. The pretrial conference is essential especially in termination
cases which involve sophisticated, complex, and lengthy factual or legal issues.
The conference should include the agency attorney, child's attorney, parents'
attorneys, and the caseworker. Any problems with discovery can be resolved,
potential settlement of the case may be discussed, and a trial date should be set.
The pretrial conference can also be used to set stricter time limits for holding the
termination trial.
To speed termination cases requiring expert evaluations, you can develop
materials for the judge to distribute to court appointed experts to focus their
evaluation on the issues as defined by termination law. This summary of both
statutory and case law is useful to the court in instructing the expert prior to the
evaluation. In addition, we recommend that judges set time limits on the
agency's transfer of relevant case records to the expert and on the completion of
the evaluation. A hearing should be scheduled to ensure compliance with these
deadlines.
Finally, courts may be empowered to adopt local court rules. In these instances,
special rules can be adopted to speed termination cases. An important resource
for discussion of court rules is Mark Hardin's Court Rules to Achieve Permanency
for Foster Children: Sample Rules and Commentary (ABA 1984).
North American Council on Adoptable Children
The Child Advocate's Legal Guide
46
Sample Protocols and Forms
The following sample court rules for termination of parental rights cases are
adapted from Mark Hardin's Court Rules to Achieve Permanency for Foster Children:
Sample Rules and Commentary (ABA, 1984).
Sample Court Rules for Termination of Parental Rights
Petition
Rule 1 Contents of Petition
A petition for termination of parental rights shall include the following:
(a)
Citations to pertinent statutory grounds for termination of
parental rights;
(b)
A summary of facts in support of each statutory ground;
(c)
A description of the child, including age and sex; and
(d)
The name and address of the [agency or person legally
responsible for the child.]
[In states where the Uniform Child Custody Jurisdiction Act applies to
termination proceedings, add the following language:]
The petition or an attached affidavit shall include the information required
by Section 9 of the Uniform Child Custody Jurisdiction Act if any person who is
listed in Rule 76 resides out of state, or if interstate litigation is likely.
Rule 2 Amendments to Petition
The petition may be amended at any time until the trial begins. When the
petition is amended, the court shall grant a party sufficient time to prepare. After
the trial begins, a petition may be amended if the amendment does not prejudice
a party and the party is given sufficient time to prepare in response to the
amendment.
Summons and Notice
Rule 3 Persons Who Must Be Served
The following persons shall be served with a summons and petition:
(a)
Both parents of the child;
(b)
Putative fathers who can claim rights to the child;
(c)
Legal guardians and custodians;
(d)
Persons who have been awarded visitation rights by the
juvenile court; and
(e)
[List any other persons who are interested parties under
state law, such as the child or guardian ad litem.]
North American Council on Adoptable Children
The Child Advocate's Legal Guide
47
Rule 4 Method of Service on Missing Parties
The court shall authorize constructive or substitute service only if the
petitioner has filed a written statement or affidavit describing diligent efforts to
locate the parties and serve them personally.
[In states where the Uniform Child Custody Jurisdiction Act applies to
termination proceedings, add the following:]
Notice to persons outside the state shall be made in accordance with
Section 5 of the Uniform Child Custody Jurisdiction Act.
Rule 5 Content of Notice
(a)
The summons or a notice attached to the summons shall include the
following information:
(1)
A statement that termination of parental rights means the
loss of all rights to custody, visitation, and communication
with the child and that if termination is granted, the parent
will receive no notice of future legal proceedings concerning
the child;
(2)
An explanation of the need to respond immediately to the
notice, both to prepare for trial and because important
hearings [will] [may] take place prior to trial; and
(3)
An explanation of how to find out the time and place of
future hearings in the case.
(b)
A copy of the petition shall be attached to the summons.
Uncontested Cases
Rule 6 Uncontested Cases
The court shall conduct a hearing when parents voluntarily relinquish
parental rights or fail to contest the case. At the hearing, petitioner shall make a
prima facie showing that there is a legal basis for the termination of parental
rights, and:
(a)
If the parent is present in court, the court shall determine whether
the parent fully understands the consequences of a termination of
parental rights, is aware of possible less drastic alternatives than
termination, and has been informed of the right to trial and of
representation by counsel;
(b)
If the parent is not present in court but has signed a relinquishment
of parental rights, the court shall determine whether there has been
compliance with all state law requirements regarding a written
voluntary relinquishment of parental rights and whether the parent
was thoroughly advised of and understood the consequences of
termination of parental rights, the possible less drastic alternatives
than termination, and the right to trial and representation by
counsel; or
North American Council on Adoptable Children
The Child Advocate's Legal Guide
48
(c)
If the parent is not present in court and has not signed a
relinquishment of parent rights but has failed to contest the
termination, the court shall determine whether the parent has been
given proper notice of the proceedings.
Matters of Record in Earlier Proceedings
Rule 7 Matters of Record in Earlier Proceedings
The applicable motions, pleading, findings, orders, and judgment from the
[neglect or abuse proceedings] shall be conveyed to the judge hearing the
termination of parental rights case.
Status and Other Pretrial Conferences
Rule 8 Special Notice and Conference When Service Has Been Delayed
Petitioner shall submit a written explanation to the court if service of
process has not been completed within [60] days after the petition is filed. Upon
receiving the report, the court may initiate an informal conference to discuss
completion of service or set a new date by which an additional explanation must
be submitted if service has not been completed.
Rule 9 Status Conference
The court shall convene a status conference if it appears necessary or
appropriate or if requested by any party.
[or]
(a)
If the case appears to be contested, the court shall schedule a status
conference to occur within [20] days after it has been informed that
service is complete.
(b)
At the conference:
(1) The court will review the adequacy of notice and service
of process;
(2) Unrepresented parties will be advised of their right to
counsel and to appointment of counsel. If counsel is
requested, an appointment shall be made and the conference
reconvened at a later date;
(3) A discovery plan and timetable will be established;
(4) Pretrial motions will be heard, if reasonable advance
notice has been given to the parties and the court; and
(5) Dates will be set for the pretrial conference and the trial.
Rule 10 Pretrial Conference
The court may convene a pretrial conference prior to the termination
proceeding.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
49
[or]
(a)
The court shall schedule a pretrial conference with [30] days of the
status conference or within [50] days of the completion of service,
whichever comes first.
(b)
At the conference, the court shall:
(1)
Resolve any outstanding discovery disputes;
(2)
Identify issues of law and fact for trial;
(3)
Hear pretrial motions, if reasonable advance notice has been
given to the parties and the court;
(4)
Resolve any other matters which will simplify or aid the
conduct of the trial; and
(5)
Confirm the time of the termination trial and estimate its
length.
Rule 11 Exchange of Information Before Pretrial Conference
At least (10) days prior to a pretrial conference, each party shall send to
the other parties and the court a list of possible witnesses with a brief summary
of their testimony to be presented at trial, and a list of issues of law and fact.
Parties shall have a continuing obligation to update such information until the
time of trial.
Termination Hearing
Rule 12 Time of Hearing
The termination hearing shall be commenced within [20] days after the
pretrial conference or within [70] days after service is completed, whichever
comes first. The court shall set aside sufficient time to avoid interruptions of the
trial.
Rule 13 Extension of Time and Continuances
Extensions of time and continuances beyond the times specified in these
rules shall be granted for good cause only, whether or not the parties are in
agreement. Orders for extensions or continuances shall appear on the record and
state supporting reasons.
Rule 14 Separate Hearing on Issue of Paternity
If the paternity of the child is at issue, the court may set a special hearing
prior to the trial to determine paternity.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
50
Questions for Discussion
1.
What role does the court play in permanency planning for children in
foster care?
2.
Does the court inquire about the child's father or missing parent at early
hearings in the case?
3.
Does the court order resulting from the disposition hearing in the abuse
and neglect action state clearly and precisely the respective responsibilities
of the agency and the parents in the reunification plan?
4.
Does the court inform the parents of the potential termination of their
parental rights if they do not comply with the disposition order?
5.
How thorough are the 6-month, 12-month and 18-month reviews of
children in foster care?
6.
Does the court have the authority to order the agency to file a termination
petition?
7.
May the court allow other parties, such as the foster parents or the child's
attorney, to file a termination petition?
8.
Once a termination petition is filed, how long does it take to get a final
court order in the case?
9.
Are attorneys appointed in a timely manner in termination cases?
10.
How many pretrial hearings are usually held in termination cases?
11.
Does the court hold status hearings or pretrial conferences in termination
cases?
12.
When is the trial date set in termination cases?
13.
How often and under what circumstances are continuances or
adjournments granted?
14.
How long does an expert evaluation of a parent take when court-ordered?
15.
How is the issue of the legal status of a non-marital father resolved in a
termination action?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
51
16.
Are trials held on consecutive days or are longer trials heard piecemeal
over several weeks?
17.
How long does the court take to issue a decision and court order in
termination cases?
18.
How often does the court issue suspended judgments in termination
cases?
19.
How often are termination decisions appealed?
20.
How long does the appellate process take?
VV
North American Council on Adoptable Children
The Child Advocate's Legal Guide
52
Chapter Seven
Indian Child Welfare Act
Statement of the Problem
Congress passed the Indian Child Welfare Act of 1978 (ICWA) to address the misuse
of state child protection power to remove Indian children and place them with non-
Indian families. 25 U.S.C.A. $1901. Before the passage of ICWA, Indian children
were placed in foster care or for adoption at three times the rate of non-Indian
children.
Federal policy seeks to protect the best interests of Indian children by preserving
Indian families with preventive services. When removal is necessary, Indian
children should be placed in foster or adoptive homes that reflect the unique values
of Native American culture. 25 U.S.C.A. $1902.
The Indian Child Welfare Act sets several requirements for the placement and
freeing of Indian children. The major provisions require:
notice to tribes and Indian custodians;
transfers to tribal court in some cases;
tribal right to intervene in state court cases;
proof of emotional or physical harm to the child if not removed from the
parent;
"active efforts" to prevent removal and to reunify Indian families;
informed consent to voluntary placements and relinquishments, along with
special rights to revoke these instruments; and
placement preferences for extended family members and Indian families.
Although ICWA places special requirements on terminations of the parent-child
legal relationship and relinquishments of Indian children, it does not prevent the
court from freeing these children for adoption. As long as the mandates of the Act
are followed, Indian children can be given permanent homes.
Unfortunately, because of the special requirements in these cases, caseworkers and
attorneys are sometimes reluctant to accept surrenders of, or terminate parental
rights to, an Indian child. As a result, Native American children may languish in
North American Council on Adoptable Children
The Child Advocate's Legal Guide
53
foster care without permanency planning. Even more serious, the parties may
ignore the requirements of the Indian Child Welfare Act and leave open the
possibility that the relinquishment, termination, or even the final adoption may be
overturned.
Legal Summary
"Indian child" is defined by ICWA as any unmarried person under 18 years of age
who is a member of an Indian tribe. It also includes a child who is eligible for
membership in an Indian tribe and who is the biological child of a member. 25
U.S.C.A. $1903(4).
ICWA controls child custody proceedings concerning Indian children. Child
custody proceedings include any actions involving foster care placement,
termination of the parent-child legal relationship, pre-adoptive placement, or
adoption. ICWA also applies to proceedings to transfer an Indian child from a foster
care home or institution to another foster, pre-adoptive, or adoptive placement. 25
U.S.C.A. $1916(b). It does not apply to divorce or juvenile delinquency proceedings.
25 U.S.C.A. $1903(1).
The Act gives special protection to the parents of an Indian child, regardless of
whether they are Indian or not. However, a non-marital father who has not
acknowledged or established paternity is not entitled to these protection. 25 U.S.C.A.
$1903(9).
Indian custodians are also accorded specific rights under ICWA. An Indian
custodian is any Indian person with legal custody of an Indian child under tribal law
or custom, or under state law, by agreement of the child's parent. 25 U.S.C.A.
$1903(2).
If an Indian child is the ward of an Indian court or resides or is domiciled within a
tribal reservation, the Indian tribe has exclusive jurisdiction over custody
proceedings. 25 U.S.C.A. $1911(a). This provision does not prevent the emergency
removal of an Indian child temporarily located off the reservation under state law
to prevent imminent physical damage or harm to the child. 25 U.S.C.A. $1922. A
parent who lives on the reservation cannot defeat tribal jurisdiction by giving birth
off the reservation or by signing a relinquishment in a state court according to the
U.S. Supreme Court in Mississippi Band of Choctaw Indians V. Holyfield, 109 S. Ct.
1597, 104 L.Ed.2d 29 (1989).
If the Indian child does not reside or is not domiciled on the reservation, custody
proceedings may be brought in state court but actions to place a child in foster care or
motions to terminate the parent-child legal relationship are subject to transfer to the
tribe's jurisdiction. 25 U.S.C.A. $1911(b). Transfer can only be denied if either parent
opposes it, the tribe declines jurisdiction, or the state court finds "good cause" to
retain state jurisdiction. 25 U.S.C.A. $1911(b) & (c).
North American Council on Adoptable Children
The Child Advocate's Legal Guide
54
State courts must give "full faith and credit" to decisions of tribal courts in child
custody proceedings. Indian tribal court must also give full faith and credit to other
tribal court decisions in these cases. 25 U.S.C.A. $1911(d).
The child's tribe has the right to intervene in any state proceeding involving foster
care placement or termination of the parent-child legal relationship. If the child has
Indian custodians, they also have a right to intervene. 25 U.S.C.A. $1911(c). Parents
and Indian custodians have a right to court appointed counsel if they are indigent.
25 U.S.C.A. $1912(b). Both the tribe and Indian custodian are entitled to examine all
reports and other documents filed with the court. 25 U.S.C.A. $1912(c).
In every involuntary foster care or termination proceeding that the court knows or
has reason to know involves an Indian child, the child's tribe must be notified by
registered mail. If the tribe is unknown, the Secretary of the Interior must be
notified. 25 U.S.C.A. $1912(a). If the child is a member or eligible for membership in
more than one tribe, the court must notify the tribe with which the Indian child has
more significant contacts. 25 U.S.C.A. $1903(5).
The child's parents must also be given notice of the proceedings by registered mail.
25 U.S.C.A. $1912(a). Notice does not have to be made to a non-marital father who
has not acknowledged or established paternity. 25 U.S.C.A. $1903(9). If the child has
Indian custodians, they also must receive notice. 25 U.S.C.A. $1912(a). No
termination or foster care proceeding can be held until at least 10 days after the
Indian tribe and parent or custodian have received notice. The state court must
grant either an additional 20 days to prepare if the tribe or custodian requests it. 25
U.S.C.A. $1912(a).
An Indian child cannot be placed in foster care and parents of an Indian child cannot
have their parent-child legal relationship terminated unless qualified expert
witnesses testify that continuing custody with the parents or Indian custodians is
likely to result in serious emotional or physical damage to the child. 25 U.S.C.A.
§1912(e) & (f). This showing must be made by "clear and convincing evidence" for
foster care placement and it must be shown "beyond a reasonable doubt" for
termination of parental rights. 25 U.S.C.A. §1912(e) & (f).
Before removing an Indian child to foster care or terminating the legal parent-child
relationship, the state must satisfy the court that active efforts (see the chapter
"Reasonable Efforts") have been made to provide remedial services and
rehabilitative programs to prevent the breakup of Indian families and that these
efforts have proved unsuccessful. 25 U.S.C.A. $1912(d).
For voluntary foster care placements or relinquishments, ICWA requires judicial
safeguards to ensure informed consent. First, consent must be in writing and
executed before a family court judge. The instrument must be accompanied by the
judge's certificate that the terms and consequences of the consent were fully
North American Council on Adoptable Children
The Child Advocate's Legal Guide
55
explained in detail and were fully understood by the parent or Indian custodian.
The certificate must note whether the instrument was explained in English or was
interpreted in another language the parent or Indian custodian understood. 25
U.S.C.A. $1913(a). Any consent given before or within 10 days of the Indian child's
birth is invalid. 25 U.S.C.A. $1913(a).
Parents or Indian custodians may withdraw their consent to a voluntary foster care
placement at any time. Once the parents or Indian custodians withdraw their
consent, the child must be returned to them. 25 U.S.C.A. $1913(b). Relinquishments
are also revocable by parents or Indian custodians at any time before a final decree of
adoption. Once a relinquishment is revoked, the Indian child must be returned to
the parent or Indian custodian. 25 U.S.C.A. $1913(c).
After a final decree of adoption, the biological parents or Indian custodians may
petition to vacate the adoption if their consent was obtained through fraud or
duress. If an adoption order is vacated, the child must be returned to the parent or
Indian custodian. No adoption order may be vacated under ICWA after two years.
25 U.S.C.A. $1913(d).
If the adoption is vacated or set aside for any reason or if the adoptive parents seek
to terminate the adoption order, a parent or Indian custodian may petition for
return of the child. The court must grant this petition unless there is a showing that
it would not be in the best interests of the child. 25 U.S.C.A. $1916(a).
Indian children must be placed in the least restrictive setting and within a
reasonable proximity to their home, taking into account their special needs. When
placing an Indian child in foster care or a pre-adoptive placement, a preference must
be given to a placement with:
(1)
an extended family member;
(2)
a foster home approved by the tribe;
(3)
a licensed Indian foster home; or
(4)
an Indian approved institution.
25 U.S.C.A. $$1915(b).
An extended family member is defined by the law or custom of the child's tribe. If
there is no law or custom, it includes any adult grandparent, aunt, uncle, sister,
brother, sister-in-law, brother-in-law, niece, nephew, first or second cousin, or step-
parent. 25 U.S.C.A. $1903(2).
North American Council on Adoptable Children
The Child Advocate's Legal Guide
56
For adoptive placements, ICWA establishes a preference for:
(1)
extended family members;
(2)
tribal members; or
(3)
other Indian families.
25 U.S.C.A. $$1915(a).
If the tribe establishes its own placement preferences, the state must follow them as
long as the placement is the least restrictive setting appropriate to the child's needs.
The wishes of the Indian child or parent may also be considered in deciding on a
placement. The court or agency must consider whether the parent desires
anonymity in applying the preferences. 25 U.S.C.A.$1915(c). In addition, the
preferences may be overcome by a showing of good cause. 25 U.S.C.A. $1915(a) & (b).
If the state fails to comply with ICWA, the parent, Indian custodian, or tribe may
petition the court to invalidate an order of foster care or termination of parental
rights. 25 U.S.C.A. $1914. Any petition filed by a person or agency who has
improper custody of an Indian child must be dismissed for lack of jurisdiction
unless it would subject the child to a substantial. and immediate danger or threat of
such danger. 25 U.S.C.A. $1920.
Proposed Solutions
If there are delays in setting permanency plans for Indian children in foster care in
your state or locality, the first step is education. All participants in the process,
including the judges, attorneys, caseworkers, supervisors, and adoption workers,
need to understand the Indian Child Welfare Act requirements and that it does not
prohibit termination in appropriate cases. ICWA's special requirements can be met
in these cases.
One excellent resource for educating agency staff is Adoption and the American
Indian Child, a manual for social service workers who are working with Indian
child welfare cases in which adoption through a state court is being considered. It
summarizes the requirements of ICWA as well as providing addresses for regional
Bureau of Indian Affairs offices and a list of adoption resources for Native
American children. This booklet is available through ARROW and the National
American Indian Court Judges Association, 1000 Connecticut Avenue, NW, #1206,
Washington, D.C. 20036, (202) 296-0685.
The next step is to integrate this information into agency and court procedures. The
child welfare agency should attempt to determine a child's tribal status as soon as
they come into foster care. The search process may take several months, so timely
North American Council on Adoptable Children
The Child Advocate's Legal Guide
57
investigation is essential. The court should also question the agency and parents
about the child's tribal membership at the removal and adjudication hearing.
"Active efforts" to work toward reunification of Native American children with
their family should include culturally appropriate services. Some tribes have their
own child welfare services and foster parent programs. An Indian child's placement
should comply with the preferences in ICWA: extended family members, other
tribal members, and other Native American foster families should be considered
first.
The child's Indian status should be noted in any discussion of voluntary or
involuntary termination of parental rights. Preferably, the legal checklist that the
caseworker completes prior to the filing of the termination petition should ask
about the child's Indian heritage. The agency should have available experts who
can testify about the child's physical and emotional well-being at a termination trial.
Finally, any court approval of a surrender or final order of termination of parental
rights should include a provision that the specific requirements of the Indian Child
Welfare Act were met. This will prevent legal challenges to the validity of these
orders.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
58
Sample Protocols and Forms
Termination Checklist
Instructions: Once the decision has been made that it is appropriate to begin a
termination of parental rights proceeding, use the following partial checklist to
make sure that all the necessary ICWA information is in the case file in preparation
for review by the agency attorney. This partial checklist can be used to help prepare
the petition for termination of parental rights. This is not a separate form that must
be filled out; it simply provides guidelines for preparing a case for termination.
CHILD'S NATIVE AMERICAN STATUS
(1) Indian Child
Is the child a member or eligible to be a member of an Indian tribe?
Yes
No
(2) Tribe Affiliation
Mother's tribe:
Father's tribe:
(3) Notice to Tribe
Has the tribe been notified of the child's placement with the department?
Yes
No
Date of Notice:
Proceedings:
Copy of notice in file?
Yes
No
(4) Tribe's Legal Intervention
Has the tribe requested, accepted, or declined custody of the child?
Yes
No
Date :
Proceedings:
Documentation in file?
Yes
No
NOTE: If the child is Native American, special requirements of the Indian Child
Welfare Act apply to the termination proceedings: (1) notification of the
termination must be given to the child's tribe; (2) the agency must show "active
North American Council on Adoptable Children
The Child Advocate's Legal Guide
59
efforts" to reunify the family with an emphasis on culturally appropriate services;
and (3) the agency must show serious emotional or physical damage to the child if
they are returned to the parent "beyond a reasonable doubt." If these special
requirements are not met, the termination can be invalidated.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
60
Questions for Discussion
1.
How many foster children in your state or locality are Native Americans?
2.
What is the average length of stay in foster care for Indian children?
3.
When does the child welfare agency identify the child's tribal status?
4.
Does the court inquire about the child's Indian status at abuse or neglect
proceedings and at an approval of a voluntary placement proceeding?
5.
What culturally relevant services does the child welfare department have
available for the reunification of Indian families?
6.
What resources do local tribes have available for Indian children removed
from their parents?
7.
How have the courts in your state applied and interpreted the provisions of
the Indian Child Welfare Act?
8.
Are tribes notified in termination proceedings involving a child who is a
member of the tribe?
9.
Are culturally sensitive expert witnesses available to testify about the child's
physical and emotional well-being, including their need for permanency, at
termination trials involving Indian children?
10.
Is there sufficient training and education for judges, attorneys, administrators,
and social workers on the legal requirements of the Indian Child Welfare
Act?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
61
Chapter Eight
Termination of Parental Rights and Adoption Laws
Statement of the Problem
A parent's loss of a child through termination of parental rights is usually a
gradual process. It frequently starts with an abuse allegation and the child's
removal from the home. Occasionally it starts insidiously, with the
voluntary placement of a child because of such events as an eviction or
hospitalization. Poverty may also contribute to the family's inability to
reunify. Current AFDC rules mandate loss of benefits as soon as a child
leaves home. Without benefits it is impossible to pay rent for an apartment
large enough for a child. When family support services are not quickly and
effectively provided, bonds weaken and other pressures distract both the
parents and child welfare personnel from working to rebuild families.
In recent years, there has been an explosion in the numbers of children who
must live apart from birth parents because of abuse and neglect. Most
children reside in publicly supported foster care, although not at home but
still legally tied to birth parents. Difficult and piecemeal Termination of
Parental Rights (TPR) statutes in many states are part of the problem because
children who cannot return home cannot be freed quickly for adoption.
Another problem involves the fact that in most states, relevant TPR sections
(of the legal code) are scattered. For example, many states place voluntary
terminations (separations, severances) in the adoption section; some
adoption statutes are in the probate code; involuntary termination is often
separate from voluntary termination; and notice time limits are frequently in
the court rules. Other rules or local case decisions often provide specifics
necessary for TPR such as the elements of reasonable efforts.
Legal Summary
The Adoption Assistance and Child Welfare Act of 1980 (PL 96-272) requires a
judicial determination that a state welfare agency has made reasonable effort
both to prevent removal of children and, if a child is taken out of the home,
to provide effective reunification efforts. It also mandates a court review of
foster care placements every eighteen months.
A termination trial is in large measure a recounting of the history of the
relationship between biological parents and the child, and the welfare
department's compliance with PL 96-272. It is designed to show that the safe
North American Council on Adoptable Children
The Child Advocate's Legal Guide
62
return of the child is currently impossible and that attempts at parental
rehabilitation will be either detrimental to the child or have been
unsuccessful.
There are common threshold factors which must be evaluated prior to the
court's final decision to terminate parental rights. They are: 1) reasonable
efforts made by social services to reunify the family; 2) parent's obligations; 3)
time restrictions; (4) grounds for termination; 5) notification of missing
parties (particularly putative fathers); 6) the best interests of the child. These
factors are discussed at greater length in subsequent chapters.
(1)
Reasonable Efforts
One major problem plaguing termination of parental rights is lack of
specificity within the statute defining child welfare efforts to reunite families.
(See the chapter "Reasonable Efforts" for an in-depth discussion of this issue).
All but three states list the reunification of families as a goal prior to
termination, (this analysis is based on 1993 statutes; see the chart at the end of
the chapter). The majority, however, fall back on hazy descriptions such as a
"reasonable, meaningful effort to offer appropriate services" or "diligent
efforts to provide court ordered services." Only four statutes explicitly define
the type of reunification efforts that social services must provide. Only one
state includes time-tables for completion of efforts.
The State of Maine provides an excellent example of a TPR statute written in
a way that guarantees rehabilitative efforts as well as ensuring a child's
interest in permanency. The Maine statute requires a clear delineation of
parental responsibilities and social service efforts that must be made when a
child is put in foster care. The statute states that is a specific time schedule is
to be established which parents must follow if they are to get their children
back. The case plan must prescribe the precise services offered, schedule
periodic visits for the parent and child, and even provide transportation for
these visits. Progress is reviewed periodically. If, at one of these review dates
it becomes clear that a family is not being rehabilitated despite the rendering
of appropriate services, a recommendation is made to terminate rights and
allow the child to be placed for adoption.
(2)
Parental Obligations
Implicit in termination of parental rights and the states' reasonable efforts
requirements are parental obligations. Except in the most extreme cases, such
as murder of a sibling, where it is clear that reunification might endanger a
child, parents are usually required to cooperate with a social services
reunification plan. If they fail and the department has done its part, this
failure becomes grounds for termination. Typically these plans require such
efforts as: attending parenting classes, drug treatment, maintaining sufficient
North American Council on Adoptable Children
The Child Advocate's Legal Guide
63
contact with the child, finding suitable living space, or making other
adjustments to home conditions. While the child is in placement, the court
can also look at whether the parent is paying their portion of the child's care
costs, although failure to pay by itself is seldom a determining factor.
(3)
Time Restrictions for Termination of Parental Rights Actions
Children's advocates are convinced that the impermanence of foster care
causes emotional scarring. Longer time in care multiplies the adverse effects
upon the child. However, while twenty-four state statutes detail a minimum
time in foster care, (usually between six months and one year before parental
rights can be terminated), only Montana has a maximum time in placement
after which termination must occur. Overall, the time ranges between one
and two years depending on circumstances.
(4)
Grounds for Termination of Parental Rights
Most often termination of parental rights is based on one of two general
factors.
Parental condition is a factor in forty-two states. The mental condition of the
parent, mental limitation or intractable alcohol or drug abuse problem can be
used as grounds for TPR in these states.
Parental conduct, is a factor in all states, both while the child is in foster
placement and while the child is at home. The most common types of
parental conduct while the child is not in placement resulting in an
involuntary termination include: abandonment (50 states); physical or sexual
abuse (48 states and in certain situations); neglect (45 states and 1 in certain
situations); and a felony conviction or long term imprisonment (27 states and
3 in certain situations). See chapter ten for an in-depth analysis of grounds
for termination.
(5)
Notice Provisions for Parties, Particularly Putative Fathers
Due process considerations demand appropriate notice in all legal actions. In
TPRs and subsequent adoptions, however, notice requirements are blurred.
The state statutes vary a great deal in the determination of length, elements,
and entitlement to notice. Adding to this confusion is the fact that parental
rights can be terminated through involuntary TPRs, voluntary TPRs; and
terminations contained within adoption statutes. In an infant adoption, the
mother often voluntarily terminates her rights and may or may not be
accurate about the father's identity and whereabouts.
The number of days notice required also varies widely between states. In
California forty-five days notice must be given before either an involuntary
North American Council on Adoptable Children
The Child Advocate's Legal Guide
64
termination or an adoption. On the low end of the spectrum, North Dakota
requires only one day notice for either action. The average number of days
required in an involuntary termination notice is fifteen. While the average
number of days notice required in an adoption notice is fourteen.
A few states require notice to be given to the child that is the subject of a court
action, often with age thresholds. Termination of parental rights statutes in
six states, and adoption statutes in six states give notice to children.
Occasionally, statutes require the parent of a minor parent to be served with
notice.
One of the most troubling aspects of TPR statutes is notice requirements for
putative fathers (see the discussion in the chapter "Putative Fathers").
Putative father notice defects have created many of the most recent high
profile adoption cases. In 37 states all putative fathers usually must be
notified; in others, only certain fathers are entitled to notice. Marital fathers
or fathers who either have filed a declaration of interest, signed a parentage
list, or signed an affidavit of parentage are almost always entitled to notice.
Forty-nine states and Washington, D.C. require notice to be given to fathers
that are listed on a child's birth certificate. In Mississippi, however, even
fathers listed on the birth certificate can be excluded from notice if they are
non-marital. In South Carolina, fathers listed on a birth certificate can be
excluded from notice in adoptions if they are not "exercising their rights and
duties as parent." Most states do not require missing parents to be given
notice. Nonetheless, a diligent search is often required prior to dispensing
with notice.
(6)
Best Interest of the Child
For children involved in Termination of Parental Rights proceedings, the
"best interests of the child" is one of the most often cited considerations of
lawmakers, court, and child welfare workers. The majority of states, (42)
recognize its importance by requiring a specific court finding that termination
is in the best interests of the child. However, only six state statues define
what the term "best interests" means. (See the chapter "Best Interests.")
Termination of Parental Rights Reviews and Appeals
Stability in the placement of children is a major tenant of child welfare
professionals. Therefore, a provision for limited revocation of voluntary
terminations and expedited TPRs appeals is generally a positive addition to a
TPR statute. In regard to adoption, only Massachusetts, Nevada and Vermont
do not allow voluntary consents to be revoked. Nine state statutes are silent
on the issue. All other states allow for revocation.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
65
Time limits on revocations also differ greatly between the states. In Iowa, a
parent has only 96 hours to revoke a consent. In Illinois, Oregon,
Pennsylvania, and Washington a parent has a full year to revoke a consent.
In addition to the time limit that may be placed on a revocation, many states
add the additional requirement that all revocations take place prior to a final
or interlocutory decree of adoption. Eighteen statutes do not list time limits
for revocations.
The basis for allowing revocation differs from state to state. Thirteen states
expressly allow revocation in the event of fraud or duress in obtaining the
consent, although other states have case law which allows for revocation in
the case of fraud. Alabama, Hawaii, Montana, Oklahoma, and South Carolina
allow revocation when it is in the best interest of the child. All other states
allow revocation for any reason, or simply do not list permissible reasons for
revocation.
Termination of Parental Rights Statute Clarity
Many people of varying experience and educational background use TPR
statutes, including attorneys, judges, social workers, and sometimes parents.
Therefore, a well written, complete, and logical statutory construction
facilitates (or at least does not impede) due process for both parents and
children.
In general, TPR statutes are inconsistent, contain difficult language, and are
fragmented. The most useful statutes are those which set up a
comprehensive framework for terminations in a common sense format and
include all relevant provisions within one chapter or title. For example,
Colorado's termination provisions are contained within the Children's Code
making it very easy to follow. The West Virginia statute, while contained in
two different sections of the code, manages to be very comprehensive and
clear. The Wisconsin statute is very specific and complete while keeping the
TPR provisions contained within one section. Iowa also demonstrates clear
statutory construction.
Proposed Solutions
While many state statutes demonstrate significant legislative investment in
the protection of parental and children's rights, many others appear to have
evolved haphazardly - without plan. Persons in those jurisdictions who are
not already familiar with the local TPR process, find little guidance in the
written statute.
The National Conference of Commissioners on Uniform State Laws
(NCCUSL) has proposed a Uniform Adoption Act for enactment by the states.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
66
This Act contains sections which provide for voluntary termination of
parental rights or relinquishment as part of an adoption. It also provides for
contested terminations, but says those provisions are in addition to existing
termination of parental rights laws. Following is an analysis done by NACAC
in anticipation of the effort to enact the Uniform Adoption Act in individual
states.
Until a better statue is constructed in your jurisdiction, research the statue,
rules, and case decisions which apply locally. Ensure the child welfare
workers, attorneys, and judges are thoroughly familiar with each part.
Sponsor training, preferably with CLE or CEUs as an incentive.
EA
North American Council on Adoptable Children
The Child Advocate's Legal Cuide
67
Sample Protocols and Forms
Termination Checklist - ABA Center on Children and the Law
Once the decision has been made that it is appropriate to begin a termination proceeding, use
the following checklist to make sure all the necessary information is in the case file in
preparation for review by the county attorney. The completed checklist can be used to prepare
the petition for termination of parental rights. This is not a separate form that must be filled
out - it simply provides guidelines for preparing a case for termination.
Note: This document is a confidential attorney/client communication and should be kept in a
separate file marked "confidential and privileged communications" and not be made available
for review by any other party.
Case Name
Case No.
Date
1. Family Information
a. Child's name:
Date of birth
Place of birth
Birth certificate in file?
Yes
No
b. Mother's name:
Age:
Address:
If the mother's address is unknown, complete the Missing Parent Checklist.
-
C. Father's name:
Age:
Address:
If the father's address is unknown, complete the Missing Parent Checklist.
If the child who is the subject of the termination is non marital (born out of wedlock), complete
the following checklist:
(1) Consent Father
(a) Child under six months old:
Father lived with child or child's mother for continuous six months prior to
placement;
Father openly held himself out as the child's father six months prior to
placement;
Father paid or offered to pay a fair and reasonable sum toward medical
expenses of birth.
(b) Child over six months old:
Father pays child support;
Father visits child monthly or regularly contacts child;
North American Council on Adoptable Children
The Child Advocate's Legal Guide
68
Father physically able to contact child;
Father not prevented from contacting child.
(c) Father lived with the child six months in the one-year period prior to placement:
Father openly held himself out as the child's father.
If an unwed father meets all the conditions of (a), (b), or (c) above, he is a consent father and
the child may not be adopted unless the father's parental rights have been surrendered or
terminated. If the unwed father does not meet the requirements of a consent father, complete
the following section:
(2) Notice Father
(a) Father was adjudicated to be the father of the child in a New York court:
Order on file? Yes
No
(b) Father was adjudicated to be the father of the child in a out-of-state court:
Order was filed with putative father registry
(c) Father filed a notice of intent to claim paternity.
(d) Father is named on child's birth certificate.
(e) Father lived with the child or the child's mother at the time of placement:
Father openly held himself out as the child's father.
(f) Father was identified as the child's father by mother in a sworn, written
statement.
(g) Father was married to mother within six months after the child's birth:
Father married mother prior to the execution of a surrender or initiation of
termination.
(h) Father filed with putative father registry.
If the unwed father meets any of the requirements of (a), (b), (c), (d), (e), (f), (g), or (h), he must
be notified of any action to voluntarily place the child, surrender the child, or to terminate the
mother's parental rights. He may only offer evidence concerning the best interests of the child
at the disposition hearing. His rights do not have to be terminated or surrendered for the child
to be adopted, as long as he is given notice. If an unwed father does not meet any of these
requirements, he does not have a right to be heard or notified of a termination action or
adoption of the child.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
69
2. Termination Grounds
a. Death
(1) Death of both parents
(2) No guardian appointed
b. Abandonment
Mother
Father
(1) Child in care for six months
(2) During the last six months, the parent:
(a) Failed to visit child, and;
(b) Failed to communicate with child, and;
(c) Failed to contact the agency.
C. Permanent Neglect
(1) Child in care for one year
(2) During a one-year period, the parent:
(a) Failed to maintain contact with child, or;
(b) Failed to plan for future of child.
(3) Parent physically and financially able;
(4) Not discouraged or prevented by agency;
(5) Diligent efforts:
(a) Were made to reunify the family;
(b) Were detrimental to child;
(c) Parent failed to keep agency apprised of
their location for at least six months;
(d) Incarcerated parent failed on more than
one occasion to cooperate with the
agency on visitation or planning.
d. Mental Illness or Mental Retardation
Mother
Father
(1) Child in care for one year;
(2) Parent is mentally ill, or;
(3) Parent is mentally retarded;
(4) Unable to care for child for the
foreseeable future.
Expert(s) who evaluated parent:
Name:
Qualifications:
Date of Evaluation
Reports in file:
Yes
No
e. Severe or Repeated Abuse
Mother
Father
(1) Child in care for one year;
(2) Child severely abused, or;
North American Council on Adoptable Children
The Child Advocate's Legal Guide
70
(3) Two adjudications of abuse against parent;
(4) Diligent efforts:
(a) Were made to reunify the family;
(b) Were detrimental to child.
(See the Diligent Efforts Affidavit Format)
3. Placement History
a. Placement with the Department
(1) Date child placed with department:
(2) Type of placement:
Abuse
Neglect
Voluntary
(3) Original Reason for Placement:
b. Child's current Placement:
Name:
Address:
Relationship to Child:
Date of Placement:
to present.
C. Child's Prior Foster Placements
Name:
Address:
Relationship to Child:
Date of Placement:
to
Name:
Address:
Relationship to Child:
Date of Placement:
to
d. Assigned Caseworkers:
Name:
Supervisor:
Date of Assignment:
to
Name:
Supervisor:
Date of Assignment:
to
Name:
Supervisor:
Date of Assignment:
to
Name:
Supervisor:
Date of Assignment:
to
North American Council on Adoptable Children
The Child Advocate's Legal Guide
71
e. Service Plans
Copies of all service plans in file?
Yes
No
Copies of all UCR's in file?
Yes
No
4. Legal History
a. Prior Orders: Briefly summarize the legal history of the case by noting the orders by
the judge. For abuse and neglect cases these orders may include, an emergency placement order,
a temporary removal order, a disposition order, and extensions of placement. For voluntary
placements, these orders might include judicial approval of the placement instrument and
foster care reviews.
Date
Copies of order in file?
Yes
No
b. Prior Termination Actions
Has a previous termination action been filed against:
Mother?
Yes
No
Date filed:
Docket Number:
Result
Copy of petition and order in file?
Yes
No
Father?
Yes
No
Date filed:
Docket Number:
Result
Copy of petition and order in file?
Yes
No
C. Surrenders
(1) Has a surrender been executed by either parent?
Mother?
Yes
No
Date executed:
Judicially Approved:
Yes
No
Date:
Validly revoked?
Yes
No
Copy of surrender and order in file?
Yes
No
Father?
Yes
No
Date executed:
Judicially Approved:
Yes
No
Date:
Validly revoked?
Yes
No
Copy of surrender and order in file?
Yes
No
(2) Have both parents been approached to sign a surrender?
Mother?
Yes
No
Willing
Refused
Father?
Yes
No
Willing
Refused
North American Council on Adoptable Children
The Child Advocate's Legal Guide
72
5. Child's Status
a. Native American Status
(1) Is the child a member or eligible to be a member of an Indian tribe?
Yes
No
(2) Tribe Affiliation:
Mother's tribe:
Father's tribe:
(3) Notice to Tribe:
Has the tribe been notified of the child's placement with the
department?
Yes
No
Date of Notice:
Proceedings:
Copy of notice in file?
Yes
No
(4) Tribe's Legal Intervention
Has the tribe requested, accepted, or declined custody of the child?
Yes
No
Date:
Proceedings:
Documentation in file?
Yes
No
Note: If the child is Native American, special requirements of the Indian Child Welfare Act
apply to the termination proceedings: (1) notification of the termination must be given to the
child's tribe; (2) the agency must show "active efforts' to reunify the family with an emphasis
on culturally appropriate services; (3) the agency must show serious emotional or physical
damage to the child if they are returned to the parent; and (4) the agency must prove its case
for termination "beyond a reasonable doubt." If these special requirements are not met, the
termination can be invalidated.
b. Special Needs or Disabilities
Does the child have any disabilities or special needs?
Yes
No
physical:
mental:
emotional:
other:
C. Prospects for Adoption
Assured
Excellent
Good
Fair
Poor
Potential Adoptive Family:
Name:
Address:
Relationship to Child:
North American Council on Adoptable Children
The Child Advocate's Legal Guide
73
d. Child's Preference
Have you discussed termination and adoption with the child?
Yes
No
Child's response:
Does the child oppose adoption?
Yes
No
Is the child over 14 years of age?
Yes
No
North American Council on Adoptable Children
The Child Advocate's Legal Guide
74
The 1994 Uniform Adoption Act: The Wrong Model for Positive
Change
by Charlotte Vick, J.D.
The National Conference of Commissioners on Uniform State Laws (NCCUSL) is
comprised of more than 300 lawyers, judges, and law professors who draft proposals
for uniform laws and encourage states to enact the measures. In 1953, NCCUSL
approved its first Uniform Adoption Act. Only two states substantially adopted its
provisions. Between 1953 and 1980, NCCUSL produced four more model adoption
acts, none of which achieved widespread acceptance. If child and adoption advocates
(including the Child Welfare League of America, Adoptive Families of America, the
Joint Council on International Children's Services, and NACAC) have their way,
NCCUSL's latest Uniform Adoption Act, approved in August of 1994, will meet a
similar fate-and for good cause!
The Uniform Adoption Act of 1994 contains laudable goals. It seeks to set a template
for adoption law and promote the integrity of adoption finalizations. Unfortunately, if
enacted as currently written, this law would have the overall effect of strongly favoring
infant adoptive parents, short changing birth parents, and discounting adoptees' needs
as they reach adulthood. NACAC believes in adoption law uniformity, but cannot
support a model act that so clearly benefits some members of the adoption community
at the expense of others.
Following is a list of some of the Act provisions which particularly concern NACAC:
Best Interests
It is troubling that an act which so often references the "best interests of the child" does
not explicitly define that phrase. Many states define "best interests" in custody
sections of their divorce statutes, and a few in their termination of parental rights
(TPR) statutes. The 1994 Uniform Adoption Act blindly leaves the definition of that
important phrase up to the agency's and/or the individual judge's discretion-a
dangerous precedent. As NACAC has learned through its Collaborative Court
Education Project, some agency and court personnel are swayed by economic factors
instead of the child's attachments or needs. Some judges flatly refuse to terminate
parental rights; others believe certain children are unadoptable. Only a clear "best
interests" definition can counter these human biases.
Adoption Facilitators
The Act allows "another person," not just lawyers and agencies, to facilitate adoptions
for parents, legal guardians, or agencies [Section 2-102(b)]. In short, anyone could
assist in "locating or transferring legal and physical custody of the minor to a
prospective adoptive parent." We worry that, without standards or licenses such as
those required for pre-placement evaluators, facilitators may fraudulently promote
adoptions or otherwise abuse the law's better intentions.
Home Studies
To its credit, the Act requires that potential adoptive parents receive a positive
evaluation (home study) before adoptive placement, and undergo a second
investigation prior to the final court hearing. Regrettably, the first home study may be
completed up to 18 months before a child is placed in the home, and while the Act
North American Council on Adoptable Children
The Child Advocate's Legal Guide
75
standardizes evaluations for potential parents, it fails to provide for practical parenting
preparation. Prospective parents would be better served if the evaluation included an
educational component that taught applicants adoption-related parenting skills.
Furthermore, we believe that the cost of conventional pre-placement evaluations
should be borne by the adoptive parents, not the state; state funds are needed for
placing special needs children.
Birth Parent Rights
Though the Act purports to prevent unnecessary court action, one potential source of
litigation lies in the Act's tendency to facilitate adoptions by severely limiting birth
parents' rights. For example, birth parents cannot sign a consent or relinquishment
until their child is born. Once signed, the consent is only revocable until the child is
192 hours (eight days) old unless the individual who executed the consent establishes
"by clear and convincing evidence" that the consent was obtained "by fraud or duress"
[Section 2-408(b)(1)]. To make matters worse, the Act largely ignores the need for
birth parent counseling. Between the abbreviated revocation period and lack of
counseling, a birth mother in the throes of post-partum blues may easily make a hasty,
uninformed decision that will later lead to litigation. It also appears that if a child is
adopted at an older age (more than 8 days old) there is no revocation period.
The Act also limits notice to putative fathers. While NACAC generally supports
limitations on the rights of uninvolved fathers, this Act may end up creating additional
Baby Jessica cases because it allows for legal risk placements. According to Section
2-101(b), "a parent having legal and physical custody of a minor may place the minor
for adoption, even if the other parent has not executed a consent or a relinquishment or
the other parent's relation to the minor has not been terminated."
Fathers entitled to notice under this Act include current and former spouses, men who
believed they had legally married even though the marriage was invalid, judicially
determined fathers, or men who signed a document that has the effect of establishing
their parentage. A father who meets these first tests must also have provided financial
support and tried to marry the birth mother after the birth, or "received the child into
his home and openly held out the minor as his child" [Section 2-401(a)(1)(i-iv)].
If the mother does not cooperate with the father's efforts, a "thwarted father" may
succeed in blocking an adoption only if he can provide a "compelling reason"
[Comment, Section 2-401] for not having performed parental duties. The prospective
adoptive parents, birth mother, or agency can still try to terminate the father's parental
rights if the court can be convinced that a termination is necessary to avoid detriment or
risk of substantial harm to the child. The Act grants the court broad power to allow
TPR and adoption in spite of a father's opposition or a procedural violation of the Act
itself. We question whether such decisions might not be based upon economic or
class differences.
Existing Termination of Parental Rights Statutes
Serious statute construction problems exist in the Act's attempts to set provisions for
contested TPRs. NCCUSL states that the Act is designed to supplement states'
existing termination statutes, but as a recent NACAC survey of TPR statutes clearly
shows, current U.S. termination laws are horribly inconsistent. Many states set
unclear process and cite several sections that each govern TPRs. Any attempt to add
another TPR process to existing statutes would further confuse an already muddled
process.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
76
To avoid further complicating this troubled system, the model Act should either: (1)
deal only with voluntary consents and relinquishments related to adoption, or (2)
suggest that states erase any existing state TPR statutes and instead defer to a redrafted
and improved contested TPR section in the Act. As NACAC has learned, the sorry
condition of TPR statutes and court process is one key reason so many children
languish in foster care, unavailable for adoption.
Timelines
In an effort to speed the adoption process, the Act mandates that potential adoptive
parents file a petition for adoption within 30 days after a child is placed with them. If
the petition is not filed after 60 days, the placement can be terminated. However,
while procedural haste for infant adoptions may promote the feeling that an adopted
child was simply born to the family, persons who have adopted older or special needs
children know that adoption in these cases is more like a marriage than a birth. Parents
and children in special needs adoptive placements may need additional time to confirm
bonding potential. Many parents cannot adequately judge in 30 days whether or not
the placement is an appropriate match. In addition, families who are entitled to
adoption assistance payments (which need to be agreed upon prior to adoption
finalization), would be hard pressed to negotiate an appropriate contract within a
month's time. The Act should include a provision for extra time in certain situations.
Placement Preferences
The Act's order of preference for choosing adoptive parents is listed as follows: (1) an
individual who has previously adopted a sibling, (2) an individual with characteristics
requested by a parent or guardian, (3) an individual who has had physical custody of
the minor for six months or more within the preceding 24 months, (4) a relative with
whom the minor has established a positive emotional relationship, and (5) any other
individual selected by the agency. As listed, the ordering does not reflect NACAC's
or other common preference standards.
The Act also provides that "an agency may not delay or deny a minor's placement for
adoption solely on the basis of the minor's race, national origin, or ethnic
background" [Section 2-104(c)]. This anti-discrimination provision is somewhat like
the recently enacted Multiethnic Placement Act of 1994, but also applies to agencies
that do not receive federal funds. Moreover, in wording reflective of the earlier Senate
version of the Multiethnic Placement Act, the Uniform Adoption Act strongly
discourages any degree of race and cultural matching, and subjects agencies that make
these efforts to possible lawsuits filed by a child's guardian ad litem or prospective
adoptive parents. As worded, the Act could effectively curtail same race parent
recruitment and inhibit an agency's efforts to find the best family for each waiting
child.
Birth Records
Perhaps the most disappointing section of the Act deals with sealed birth records
[Article 6]. Most states still have restrictions on disclosure, but the current movement
is clearly toward openness in adoption. While the Act allows birth and adoptive
parents to make early arrangements to facilitate contact when the child is eighteen,
children of parents who do not make this provision lose the option of seeking
information. If any of the four parents resist disclosure, the adoptee is condemned to a
life without history; the Act mandates secrecy for 99 years and deters illicit disclosure
North American Council on Adoptable Children
The Child Advocate's Legal Guide
77
through a system of significant fines and other legal penalties. Only birth parents,
adoptive parents, and adoptees with a "compelling reason" can hope to obtain
identifying information through court action. The Act so tightly controls disclosure
that information gathering could become virtually impossible.
Conclusion
As NACAC and many others in the adoption community agree, all states should enact
uniform, well written adoption and TPR laws. However, this Uniform Adoption Act
is not the model to follow, at least not as currently written. Instead of catering to the
wishes of adoptive parents and placement agencies, adoption legislation needs to focus
on its true constituency: CHILDREN. In addition, attention must be paid to the needs
of all children-including those who are older, physically or emotionally challenged,
or part of a sibling group. Adoption laws should be written to protect them, not just to
facilitate baby-as-commodity, infant adoptions.
from NACAC, Adoptalk (Winter 1995)
North American Council on Adoptable Children
The Child Advocate's Legal Guide
78
Termination of Parental Rights Statutes:
An Overview by State
States
AAAACCCDDFGHIIIIKKLMMMMMMM
Statute Elements
LKRZAOTCELAIADLNSYAAEDISNO
General Information
Does the statute list any
XX
XXXXX
XXX
X
X
XXX
X
general consideration or
goals?
Does the statute define the
X
X
X
X
best interests of the child?
Is the child's preference
X
X
X
X
XX
X
X
X
about TPR considered?
What court generally has
jurisdiction over TPRs?
Juvenile
X XXXX
X
X
X
X
X
X
X
X
X
District/Circuit/
X
XS
X
X
X
X
X
Common
Probate
X
Family
XX
X
X
Is there more than one statute
XXXXXX
X
XXXXXXXXX
X
XXX
which provides for the
termination of parental
rights?
Is there a special appeal
XX
X
XXX XSXX XXX X XSX
process for parents facing
TPR?
Voluntary Terminations and
Surrenders
Does the statute differentiate
X
X
XX
between public and private?
Are voluntary terminations
X X S X X S X X X X X S X S X X X X S X S X S S X X
done as part of an adoption?
79
States
AAAACCCDDFGHIIIIKKLMMMMMMM
Statute Elements
LKRZAOTCELAIADLNSYAAEDISNO
Are grounds required for
X
SSSS
voluntary termination?
Which biological or putative
parent can be excluded from
receiving notice?
Unmarried father - no
XX
X XXXS
XXS XX
S
X
contact?
Father on birth
S
certificate or
affidavit?
Missing parent?
SS
XXX XSS SX S
X
Is there a provision for
XXXXX
X
XXXX-XXXXX XXXX
revocation of the termination
consent?
Involuntary TPRs
Are involuntary terminations
SS
X
S
SS
XSS XXX
done at the same time as an
adoption?
Which biological or putative
parents can be excluded from
receiving notice?
Unmarried father - no
SX
X
XXS
S X
S
X
contact?
Father on birth
S
certificate or
affidavit?
Missing parent?
SS
X
SSS
SS
S
S
X
Grounds for termination
80
States
AAAACCCDDFGHIIIIKKLMMMMMMM
Statute Elements
LKRZAOTCELAIADLNSYAAEDISNO
Parental Condition:
Mental condition?
X
XXX XX XXXXSXXXXX XXX X
Alcohol or drug abuse?
X
XXX X X X XXX XX XXXX
Mental limitations?
X
XXX XX XX XS XXXX XXX
Parental conduct while child
not in placement:
Abandonment?
X X X X X X X X X XXXXXXXXXXX XXXXX
Physical or sexual
XXXXXXXXXXX XXXXXXXX XXXXX
abuse?
Neglect?
XXXXXXXXXXX XXXXXXXX XX XX
Felony conviction or
X
XXX X X X SXX XXX XS X
prison?
Parental conduct while child
in placement:
Nonpayment of cost of
XSXXX
X XX XX XXXX XX XX
care?
Lack of regular contact X X X XXXXXXXXXXXXXX X X XX
with child?
Adjustment of home
XSXXXXXXXXXXX XXXXXXXXXXXX
conditions?
Adherence to terms of
X
XXXXXXXXX
X
XXXXXXXXX
social service contract?
Communication with
X
X
X
X
X
XXX
foster parents/
custodian?
Limits on length of time child
X
XXXXXX
XXXXXX X
has been out of parent's
custody?
81
States
AAAACCCDDFGHIIIIKKLMMMMMMM
Statute Elements
LKRZAOTCELAIADLNSYAAEDISNO
Efforts by state to reunite
XSXXXXXX XXXX SXXXXXXXXXXX
family?
Are significant relationships
X
XXXX X XXX
X XXXXX X
considered?
Bio parents?
X
XXXX X XXX
X
XX
X
X
Foster parents?
X
XXXX X XX
XXX X
Child's preference
X
X
X
X
XX
XX X X
considered?
Best interest findings
XX XXXXXXXXXXX
X XXXXXXX
required?
Specific steps and timelines
S
X X
S
for reasonable efforts?
Time frames for TPR?
XS
SXSS
SXSXSXX
X
Is the court mandated to
terminate under certain
circumstances?
Is adoptability a factor when
XX X X X
X XX X
granting TPRs?
* X means this provision is included or listed as a consideration.
** S means this provision is included in limited circumstances.
*** Answers are based on 1993 Statutes. Requirements contained in rule or case law are generally not listed here.
Note: D.C. represents Washington, D.C.
82
Termination of Parental Rights Statutes:
An Overview by State
States
MNNNNNNNNOOOPRSSTTUVVWWWW
Total
Statute Elements
STEHJMYVCDHKRAICDNXTATAVIY
51
General Information
Does the statute list any
XXXX XXXXX
XXX
X
X
X
31x
general consideration or
goals?
Does the statute define the
X
X
X
X
8 x
best interests of the child?
Is the child's preference
X
X
X
X
X
X
X
16x
about TPR considered?
What court generally has
jurisdiction over TPRs?
Juvenile
X
XXXX
XX
XXX
X
24x
District/Circuit/
X
X
X
X
X
X
X
15x
Common
ls
Probate
X
2 x
Family
X
XXX
XX
10x
Is there more than one statute
X
X
XXXXXXX XXXXXXXX X
X
which provides for the
40x
termination of parental
rights?
Is there a special appeal
XXX XXX XXXX X X
XXXXXS
30x
process for parents facing
3s
TPR?
Voluntary Terminations and
Surrenders
Does the statute differentiate
XX
6 x
between public and private?
Are voluntary terminations
XSXSXSXXXXX
XXSXSXX
XXSX
34x
done as part of an adoption?
14s
83
States
MNNNNNNNNOOOPRSSTTUVVWWWW Total
Statute Elements
TEHJMYVCDHKRAICDNXTATAVIY
51
Are grounds required for
SS
1X
voluntary termination?
Which biological or putative
parent can be excluded from
receiving notice?
Unmarried father - no
XXX
XS
X
X
SXSX
X
20x
contact?
6 s
Father on birth
S
2s
certificate or
affidavit?
Missing parent?
XX XXS X
SXXX
X
15x
8s
Is there a provision for
XSXXXX XXXXXX XXXX X XXXX 39x
revocation of the termination
1s
consent?
Involuntary TPRs
Are involuntary terminations
SS
SSSS
S
S
4 x
done at the same time as an
16s
adoption?
Which biological or putative
parents can be excluded from
receiving notice?
Unmarried father - no
S
X
S
X
8 x
contact?
6s
Father on birth
1s
certificate or
affidavit?
Missing parent?
S
X
S
X
4 x
11s
Grounds for termination
84
States
MNNNNNNNNOOOPRSSTTUVVWWWW Total
Statute Elements
TEHJMYVCDHKRAICDNXTATAVIY
51
Parental Condition:
Mental condition?
XXXXXXXX XXX X X
XXX
X
X
X
38x
1s
Alcohol or drug abuse?
X
X
X
XXX
X
X
X
X
XXX
XX
31x
Mental limitation?
XXXX
XXX
XXX
XX
XX
X X X
33x
1s
Parental conduct while child
not in Placement:
Abandonment?
X X X X X X X X X X X X X X X X X X X X X X X X X 50x
Physical or sexual
X X X X X X X X X X X X X X X X X X X X X X X S X 48x
abuse?
1s
Neglect?
X X X X X X XXXXXSXXXXX X X X XX
X
45x
1s
Felony conviction or
X
X
X
X
XX
X
X X X
X
X
S
X
27x
prison?
3s
Parental conduct while child
in placement:
Nonpayment of cost of
XXXX XX XXX XXXXXX
X
X
33x
care?
1s
Lack of regular contact
XXXXXXXX
X
XXXXXXXXX
X
X
X
42x
with child?
Adjustment of home
X X X X X X X X X X X X X X X X X X X X x X X X 48
conditions?
1s
Adherence to terms of
XXXXXXXXXX
x
X
X
XX
XX
X
38x
social service contract?
Communication with
X
X
X
X
12x
foster parents/
custodian?
Limits on length of time child
X
X
X
X
S
XX
S
X
22x
has been out of parent's
2s
custody?
85
States
MNNNNNNNNOOOPRSSTTUVVWWWW
Total
Statute Elements
TEHJMYVCDHKRAICDNXTATAVIY
51
Efforts by state to reunite
XXXXXXXX XSSXXXXXXXXXXX S 43x
family?
5 s
Are significant relationships
XXX
X
X
X
x
XXXX
29x
considered?
Bio parents?
XXX
X
X
X
x
XXXX
27x
Foster parents?
XX
X
X
X
X
XX
21x
Child's preference
X XX
X
XX
XX
18x
considered?
Best interest findings
XX XXXXXXXXX X XXXXXXXXX
42x
required?
Specific steps and timelines
SS
S
S
S
2x
for reasonable efforts?
6s
Time frames for TPR?
SX
S
X
S SSS SSSS S S S
9x
20s
Is the court mandated to
0 x
terminate under certain
circumstances?
Is adoptability a factor when
X X
SX
12x
granting TPRs?
1s
* X means this provision is included or listed as a consideration.
** S means this provision is included in limited circumstances.
*** Answers are based on 1993 Statutes. Requirements contained in rule or case law are generally not listed here.
Note: D.C. represents Washington, D.C.
98
Discussion Questions
1.
Are there delays in identifying children for whom "free for adoption" is the
appropriate goal? What are the reasons that children remain in care for more than
one year without permanency goals?
2.
Is there early identification of potential termination cases? Under what
circumstances are reunification efforts considered inappropriate or detrimental to
the child? Are "reunification efforts" often continued despite indicators that the
parent will not be able to care for the child?
3.
Are caseworkers reluctant to recommend a child's goal be changed to "free for
adoption"? If so, why?
4.
Is open adoption ever considered as an alternative to long term foster care?
5.
Is the process for identifying children as appropriate for adoption too lengthy?
Does the approval procedure cause delay?
6.
Under what circumstances would the caseworker's recommendation that the goal
be changed to "free for adoption" be rejected?
7.
If the court recommends that a termination be filed at an extension hearing or a
foster care review hearing, are there delays in acting on this order?
8.
Are there casework delays in referring these cases to attorneys? Are there staff
shortages? Are there relationship problems between attorneys and caseworkers?
9.
Are there legal department delays in responding to termination cases? Are there
delays in attorney requests for additional information from the caseworkers?
10. Do attorneys who are assigned termination give priority to other work? Are they
reluctant to bring terminations?
11. Is there adequate documentation of the case history at the point the case is referred
for termination? Is additional documentation usually requested?
12. Is there a clear delineation of responsibility between the caseworker and the
attorney for case preparation? Are paralegals utilized?
13. Are there any guidelines or time frames for a caseworker or the attorney in
preparing a case for termination? Are there unnecessary delays in this procedure?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
87
14. Are there specific grounds for termination that are more time-consuming to
prepare and present? What types of cases (e.g. substance abuse) create the most
problems for a successful termination?
15. Do the procedures for searching for missing parents consume a great deal of time?
Who does the search? When is it done?
16. Are petitions adequately drafted?
17. Are there delays in service of the petition? Are cases delayed by rulings that notice
was inadequate?
18. Are the notice requirements for missing parents unnecessarily time consuming?
19. Does the process for appointment of attorneys create delays?
20. Are there delays in the calendaring of cases? Do non-consecutive court dates
unnecessarily draw out termination trials? Are judges rotated off cases?
21. Are continuances granted? Why?
22. Is the discovery process drawn out? Does the agency delay in responding to
discovery requests? Is there a pretrial conference?
23. Does the agency lose termination cases? Why? Is the "diligent efforts"
requirement a barrier? Are the grounds for termination too vague?
24. Are there delays in the appeals process? Why?
25. Is there sufficient training on termination issues for caseworkers? DSS
attorneys? parents' attorneys? law guardians? judges?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
88
Chapter Nine
Reasonable/Diligent Efforts
Statement of the Problem
Many state grounds for termination of parental rights require that the child
welfare agency prove that they have made "reasonable efforts" or "diligent
efforts" to reunify the family. Because the sufficiency of these efforts must
necessarily be determined on a case-by-case basis taking into consideration the
special circumstances of the case, agency staff are often unsure when their efforts
have been diligent enough to allow them to successfully bring a termination
action. Uncertainty as to whether the agency has met this elusive standard also
makes attorneys reluctant to bring termination actions. It is one of the most
frequent reasons for contested termination cases.
Legal Summary
First, it is important to note that the federal "reasonable efforts" requirement
under the Adoption Assistance and Child Welfare Act of 1980 does not apply to
termination of parental rights actions. It is only state law that may mandate a
judicial evaluation of the agency's efforts toward reunification as a prerequisite
for freeing a child for adoption.
Most states have at least one ground for termination with a "reasonable efforts"
or "diligent efforts" requirement, usually as an element or a ground based on the
parent's failure to progress under the service plan. Since the definition of diligent
efforts has been litigated extensively in New York courts, an analysis of their
statutes and cases will help to clarify the standard used by courts to evaluate an
agency's reunification efforts.
Despite the inherent flexibility of the standard for "diligent efforts," New York
law does provide some specific guidelines for determining if the standard has
been met. For example, the statute defines diligent efforts as including:
(1) consultation with the family in developing the service plan; (2) making
arrangements for visitation; (3) providing needed support services and
assistance; and (4) informing the parent of the child's well being. It also
designates efforts for incarcerated parents, requiring meetings with the parent,
and visitation if it is feasible and in the child's best interests.
In New York, "diligent efforts to encourage and strengthen the parental
relationship" is the first issue that the court must resolve in determining whether
the grounds for a "permanent neglect" termination have been met. Courts have
stressed the importance of the service plan for reunification of the family. While
North American Council on Adoptable Children
The Child Advocate's Legal Guide
89
the court's findings on diligent efforts are very fact specific, the majority of courts
will find that diligent efforts have been made if the agency has made reasonable
attempts to assist the family. Nevertheless, family court judges have a significant
amount of discretion on this issue.
Looking at the appellate case law, the diligent efforts requirement is not the
insurmountable obstacle to termination that it is sometimes perceived to be.
Professor Jane Spinak analyzed appellate cases on diligent efforts since the
landmark Court of Appeals case, Sheila G., (in 1984). She found that appellate
courts are more likely to uphold a lower court finding that diligent efforts were
made and more likely to reverse a lower court finding that diligent efforts were
not made.
In New York, there are three legally recognized exceptions to the diligent efforts
requirement which can be used to pursue termination in some of these cases.
Diligent efforts can be excused when the parent has failed to keep the agency
apprised of their address for at least six months, when an incarcerated parent has
failed to cooperate with the agency on more than one occasion, and when such
efforts would be detrimental to the child. The court has applied the last
exception in cases involving physical abuse, mental illness, long term drug
addiction, and prolonged separation of parent and child.
In addition, the suspension of a parent's visitation does not prevent the agency
from seeking termination of the parent's rights. Although termination cannot be
sought on the grounds of abandonment or for failure to contact the child under
the permanent neglect ground, the parent can be alleged to have permanently
neglected the child by failing to plan for the child's future if they have failed to
resolve the problems that led to the suspension of visitation.
Proposed Solutions
One of the first steps you can take to address the barrier of "reasonable efforts" is
to determine whether, in fact, this legal requirement is a barrier. Caseworkers
may have an unrealistic assessment of the legal meaning of the requirement.
Attorneys may be interpreting the statutes too cautiously. Look at your statute
and case law. What grounds do not require reunification efforts? Under what
circumstances do the courts make positive findings on efforts? Are there statutes
or court interpretations that create exceptions to the reunification efforts
requirement in appropriate cases?
Once you have done the necessary legal research, develop training for workers,
attorneys, and courts. Distribute local decisions in termination cases to the
agency staff so they can be aware of the concerns of their judges in these cases.
All these efforts can help to clarify the standard. Provide an opportunity for
these participants to discuss their own interpretations and problems.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
90
To aid caseworkers and attorneys in preparing and organizing evidence on
reasonable efforts, a format based on the statutory definition and one that
incorporates the insights of case law on this issue can be helpful. A reasonable
efforts format provides both a checklist to decide whether efforts have been
sufficient and an outline for better and more persuasive organization of evidence
of the agency's efforts.
This format can also reduce the time necessary for the caseworker to prepare the
information or affidavit for the petition. A chronological history of the agency's
work with the family, given the complexity of most cases, can be lengthy and
very difficult for the court to follow. A specific format can help caseworkers
focus on the most important factual information and ensure that all the statutory
elements of reasonable efforts were met. Using a format, the caseworker is better
able to make a persuasive case for termination and the attorney for the agency is
better able to prepare and present testimony on efforts to reunify the family.
The reasonable efforts format may be used by a caseworker to evaluate the
efforts made to determine if the requirement is met. The format can help the
caseworker to determine if, under the special circumstances of the case, the
reasonable efforts requirement may be excused. It also may outline any special
reasonable efforts conditions, such as for incarcerated parents.
The courts should monitor reasonable efforts at the removal hearing, the
disposition hearing, and all review hearings. Agencies are penalized by the loss
of federal reimbursement for foster care costs when a judge determines at these
hearings that "reasonable efforts" were not made to prevent a placement or
reunify a family.
If your research determines that the statutory requirement of reunification efforts
is an unnecessary barrier to termination of parental rights, consider legislative
change. It seems unfair to penalize children by extending their stay in temporary
care because the agency has failed in their responsibilities to offer the family
services. Losing a termination action does not penalize the agency - it penalizes
the child.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
91
Sample Protocols and Forms
Reasonable Efforts Format
Comments: One of the problems that creates delays and enhances the
likelihood of a dismissal in a termination case is inadequate or confusing
documentation of reasonable efforts. The following is a format for organizing
information on an agency's efforts to prevent the foster care placement and to
reunify the family. It could be used for a variety of purposes: a supervisory tool
to evaluate a case; an affidavit to the petition; a format for the attorney to
organize a case for trial; a guide to caseworkers to prepare testimony on
reasonable efforts; or a framework for judges to evaluate evidence on the issue of
reasonable efforts.
A. Case Planning
1. Describe the family problems necessitating removal or preventing
reunification:
2. Dates and brief summary of consultations with parents (and, where
appropriate, child) in developing the service plan:
3. Service Plan:
a. Father
b. Mother
C. Child
d. Other
B. Preventive Services: For each service offered to the family prior to removing
the child from the home, provide the following information.
1. Brief Description of the Service:
2. Service Provider:
3. Duration of Service (e.g., 1 year, 18 months, etc.):
a. Date Service Offered
North American Council on Adoptable Children
The Child Advocate's Legal Guide
92
b. Date Service Provided
C. If Applicable, Date Service Terminated
4. Frequency of Service (e.g., one hour session on a weekly basis):
a. Percentage of Sessions Missed by Parent
b. Percentage of Sessions Canceled For Other Reasons
5. Describe efforts by the agency to make the service accessible to the
parent (e.g., provided transportation, offered in parent's primary language, etc.):
6. If service was terminated, describe reasons for termination:
7. Impact of service on problem necessitating CPS intervention:
8. If reasonable efforts to prevent placement were not appropriate, indicate
basis for discontinuing efforts and explain the specific circumstances:
C. Reunification Services: For each reunification service offered to the family
after the child was removed from home, provide the following information:
1. Brief Description of the Service:
2. Service Provider:
3. Duration of Service (e.g., 1 year, 18 months, etc.):
a. Date Service Offered
b. Date Service Provided
C. If Applicable, Date Service Terminated
North American Council on Adoptable Children
The Child Advocate's Legal Guide
93
4. Frequency of Service (e.g., one hour session on a weekly basis):
a. Percentage of Sessions Missed by Parent
b. Percentage of Sessions Canceled For Other Reasons
5. Describe efforts by the agency to make the service accessible to the
parent (e.g., provided transportation, offered in parent's primary language, etc.):
6. If service was terminated, describe reasons for termination:
7. Impact of service on problem preventing reunification:
8. If reasonable efforts to reunify the family were not appropriate, indicate
basis for discontinuing efforts and explain the specific circumstances:
D. Visitation History: If the child has been removed before the hearing, provide
the following information for each parent:
1. Frequency of Arranged Visitation (e.g., weekly for 1 hour):
a. Percentage of Visits Missed by Parent
b. Percentage of Visits Canceled For Other Reasons
2. Describe efforts by the agency to make the visitation accessible to the
parent (e.g., provides transportation, visits in parent's home, prison visits
arranged, etc.):
3. If Visitation Was Restricted:
a. Type of Restriction
North American Council on Adoptable Children
The Child Advocate's Legal Guide
94
b. Date Restriction Ordered
C. Describe Reasons for Restriction
4. If Visitation Was Suspended:
a. Date Visitation Suspended
b. Describe Reasons for Suspension of Visitation
5. Describe the quality of parental interaction during visits:
E. Contacts with Child and Family
1. Dates and Brief Summary of Contacts:
2. If Contact Not Made or Suspended, Explain (e.g., parent failed to keep
agency apprised of address):
North American Council on Adoptable Children
The Child Advocate's Legal Guide
95
Questions for Discussion
1.
What grounds for termination of parental rights are available in your
state?
2.
Do any of these grounds require the court to evaluate the agency's efforts
to work toward reunification of the family?
3.
Are the agency's efforts a factor that the court may consider in deciding
whether to free a child for adoption?
4.
Are there any statutory exceptions to the "reasonable efforts" or "diligent
efforts" requirement?
5.
How does the statute define the level of efforts required?
6. Are there any special categories of parents or children (e.g., incarcerated
parents) for whom there are specific definitions of "diligent efforts"?
7.
How have the courts interpreted the efforts requirement?
8.
How do caseworkers view the reasonable efforts requirement for
termination?
9.
Are there cases that are not recommended for termination because of
inadequate efforts by the agency?
10. Are there cases where efforts to reunify the child with the family would be
detrimental, (e.g., severe abuse)? Can termination actions be brought in
these cases if such efforts are not made?
11. Does the agency provide services or visitation in cases where the child
would be endangered only because it believes it is legally mandated to do
so?
12. Do attorneys discourage termination actions citing the lack of diligent
efforts to reunify the family?
13. How does the local judge define "reasonable efforts" in termination cases?
14. Is information on these efforts included in the termination petition?
15. Is the caseworker's testimony on diligent efforts concise, relevant, and
persuasive?
16. Is there a need for training on the reunification efforts requirement?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
96
17.
Does the reunification efforts requirement in the termination statute
unnecessarily prevent children from being freed for adoption?
18. Does the definition of diligent efforts in your statute need to be more
specific?
doe
North American Council on Adoptable Children
The Child Advocate's Legal Cuide
97
Chapter Ten
Grounds for Termination of Parental Rights
Statement of the Problem
Whenever we witness a child whose parents seem hurtful or negligent our
instant impulse is to try to help. Sometimes we make offers to help, or we
intervene directly and chastise the guilty party. The more frequent reaction,
however, is to either call the police or child protection agency. We wait to see
if something is done to protect the child and often become frustrated with the
county's inaction. While there is no excuse not to investigate a complaint,
frequently the county cannot take substantial action because it does not have
cause.
Just as it is necessary to have "good cause" to remove a child from a home
that is thought to be unsafe, it is also necessary that evidence must meet
certain tests of parental misbehavior to permanently terminate a parent's
rights. These tests are called grounds. Although not all states list exactly the
same grounds, most include: (1) physical abuse; (2) sexual abuse; (3) substance
abuse; (4) mental health problems; (5) incarceration; (6) neglect;
(7) abandonment; (8) failure to pay support, (9) failure to have contact with
the child's caretaker; and (10) abandonment.
Sometimes, child welfare workers and prosecutors default to an easy-to-prove
or non-specific ground, such as neglect, as the basis for most of their
termination cases. If almost all Termination of Parental Rights (TPR) cases in
your jurisdiction are filed based on one ground, when in fact many should be
filed on other grounds, this is a barrier to effective TPR. Mishandled pleading
of this kind can backfire if, for example, the biological parents can
demonstrate they were not neglectful while the real problem (i.e., sexual
abuse) is never put before the court. The child can end up returning to an
unsafe environment.
Legal Summary
Grounds for Termination of Parental Rights vary with the type of
termination or adoption action before the court. Parental rights may be
terminated either voluntarily or involuntarily. Voluntary termination is
most frequently associated with an adoption proceeding and may be called
"relinquishment of parental rights or consent to adoption." Involuntary
terminations are contested court actions which provide for parental loss of
children where it is proven the parents have engaged in some type of
misconduct, either failure to act or dangerous actions.
North American Council on Adoptable Children
The Child Advocates' Legal Guide
98
Voluntary
A large majority of the states, (44), do not require specific grounds for a
voluntary termination of parental rights; the parent must merely give
consent. (Note: the data in this chapter is based on a NACAC survey of 1993
TPR statutes. On occasion, state requirements are encoded in state rule or case
decision and may not be reflected in the numbers.) Other states require at
least some factual basis, but not grounds, before a parent may voluntarily give
up their parental rights. In Iowa and Minnesota, "good cause" must be
shown by the relinquishing parent. The Kentucky statute calls for a "factual
basis" for the voluntary Termination of Parental Rights, but grounds are not
enumerated in the statute. Five states, (Delaware, Michigan, Missouri, Texas
and Utah), require a finding that such a termination is in the best interests of
the child. Even in this instance, Michigan only requires such a finding if the
child is over the age of five. Two other states, Alabama and Mississippi,
indicate that grounds for a voluntary termination in a proceeding
unconnected to an adoption are the same as the grounds for an involuntary
termination.
Involuntary
In virtually all states, a statutory framework is laid out which provides a list
of grounds under which a court may involuntarily terminate parental rights.
Department of welfare rules and case law often further expand upon and
define many of the statutory provisions. Although it can be stated generally
that only serious parental misconduct or failure to act will result in the
involuntary termination of parental rights, the statutes vary widely in their
specific grounds. In all cases, the grounds for involuntary termination must
be proven by clear and convincing evidence.
There are 3 main types of grounds that can be used for TPR. They are:
(1) Parental Condition; (2) Parental Conduct; and (3) Parental Obligations.
Parental Condition such as mental illness, limitation or chemical use, is a
factor in 42 states. The deciding factors for this ground include the current
mental condition of the parent and whether there is an intractable alcohol or
drug abuse problem. According to Mlyniel (1983), while chronic alcoholism
or drug dependence can be a basis for termination of parental rights, the
relationship between alcohol or drug dependence and the parent's care of the
child must be demonstrated. Medical records and witnesses, lay witnesses,
and arrest and driving records can show the extent of alcohol and drug
dependence. The actual detriment to the child from these conditions usually
must be established by expert testimony since many people in our society
suffer from alcohol or drug dependence, yet remain fit to care for a child. An
alcoholic or drug-dependent parent becomes unfit only if the dependency
results in mistreatment of the child or in a failure to provide the ordinary
care required for all children. It is also necessary to show that dependence is
North American Council on Adoptable Children
The Child Advocates' Legal Guide
99
likely to continue and that assistance was offered to the parent, which either
failed or was rejected.
Two sometimes difficult bases for terminating parental rights are mental
illness and mental retardation of the parent. On one hand, many mentally ill
or mentally retarded people are capable of raising children. On the other,
there are certain mentally ill and mentally retarded parents who will never be
able to maintain responsibility for their children. It is necessary in these cases
not only to show with expert witnesses that the parent is mentally ill or
retarded, but also to show that the mental illness or mental retardation
results in improper care of the child.
Parental Conduct, both while the child is in placement and while the child is
at home, is a factor in all states. The most common types of parental conduct
while the child is not in placement which can result in an involuntary
termination include: abandonment (50 states), physical or sexual abuse (48
states and 1 in certain situations ), neglect (45 states and 1 in certain
situations), and a felony conviction or long term imprisonment (27 states and
3 in certain situations).
Although abusive conduct should not always lead to termination of parental
rights, termination is essential in some cases. If the abuse is severe or
repeated, and especially if it has continued after intervention, termination
may be warranted. If a termination proceeding is based on severe or chronic
abuse, it is necessary to present medical testimony regarding the extent of
injury and the unlikelihood that the injuries occurred accidentally. Since
termination presumes that parents will not be able to remedy their parenting
ability in the near future, psychiatric testimony must be available to show the
deteriorating mental health of the parents or the effects that the abuse is
having upon the emotional well-being of the child.
Imprisonment of custodial parents can also be a basis for termination.
Prolonged absence of the caretaker clearly can be harmful to a child. It need
not, however, result in termination if the relationship can be maintained.
Parental Conduct while the child is in placement may also constitute grounds
for TPR. These include: nonpayment of the cost of care for the child (33 states
and 1 in some circumstances); lack of regular contact with the child (42 states);
failure to adjust home conditions (48 states and 1 in certain circumstances);
failure to adhere to the terms of social services contract (38 states); and lack of
communication with foster parents or child's custodian (12 states).
Mlyniel (1983) states that one of the more common allegations in termination
cases is abandonment. While abandonment may seem to be a simple concept,
in the context of termination cases it is subtle. Some courts apply a very
narrow concept of abandonment in adoption or termination cases, focusing
North American Council on Adoptable Children
The Child Advocates' Legal Guide
100
on the intent of the biological parent to forego rights toward the child. These
courts are reluctant to find abandonment when there has been any contact
between parent and child, however sporadic and inconsequential, or when
the parent has expressed a desire to maintain contact. This approach,
emphasizing the parent's "right" to the child, is analogous to the traditional
property law concept of abandonment of chattel.
The clear trend, however, is toward broadening the concept of abandonment.
Under the modern view, abandonment is defined in light of the child's needs
for stability and consistency, as well as from the parent's standpoint. For
example, a parent who visits a child or sends letters once every few months
may not have abandoned the child from an adult's perspective. On the other
hand, the threads of the relationship may unravel from the child's
perspective if parental visitation is sporadic and parental interest is sparse.
A parent's failure to visit or communicate with the child while in foster care
is perhaps the key element in abandonment cases. Of course, failure to visit is
not a good indication of abandonment if the child welfare agency has
inhibited contacts by placing unnecessary limits on visitation or by placing the
child in a foster home far from the parents' residence.
A pattern of needlessly leaving the child with others for prolonged periods of
time may support a finding of abandonment, especially when the parent
habitually fails to make advance arrangements for the child. Most often, such
conduct will have occurred prior to the filing of the original neglect
proceeding. On the other hand, such conduct occurring during periods where
the child was returned home on a trail basis or during extended home visits
while the child is in foster care also can be used to rebut statements of
continuing interest.
Finally, abandonment can also be the legal ground for TPR in the case of
foundlings, where abandonment intent is obvious (but only if diligent efforts
have been made to locate birth parents).
Parental Obligations and the failure to fulfill them frequently becomes
grounds for termination of parental rights. Parental obligations are implicit
in states' reasonable efforts requirements. Except in the most extreme cases,
such as murder of a sibling, where reunification might endanger a child,
parents are usually required to cooperate with a social services reunification
plan. If parents fail to cooperate, and the department has done its part, this
failure becomes the ground for termination.
Failure of the parent to improve is probably the most commonly used basis
for termination of parental rights. When the child has been in foster care for
a long period of time and no substantial progress has been made by the
parents to reunify the family, the court will seek termination. Evidence from
North American Council on Adoptable Children
The Child Advocates' Legal Guide
101
caseworkers regarding the original removal must be presented, as well as
evidence regarding efforts by the agency to work with the parents and the
children since the disposition. In order to prevail, it must be seen that the
agency developed and made reasonable efforts to implement a sound
reunification plan. Typically, social service plans require such parental efforts
as attending parenting classes, seeking drug treatment, maintaining sufficient
contact with the child, finding suitable living space, or making other
adjustments to home conditions.
Statutes which consider the length of time the child has been out of the
custody of the parent are most often for protection of the parents' rights
rather than the child's' needs. These statutes provide a minimum amount of
time the child must be in state custody before an involuntary termination of
parental rights may be sought. Length of time in care is usually not a legal
ground for TPR. Only one state sets a time after which parental rights must
be terminated.
Proposed Solutions
In most cases TPR grounds are not obvious. However, to successfully
terminate parental rights, case documentation of adequate grounds must be
clear. Child welfare workers need to "set up" the case from the very onset by
first documenting the reasons for the child's removal and second setting clear
disposition plans and orders. The plans must map out exactly what the
parent is expected to do, such as attending parenting classes. They must
specify who will provide the service, where, and most importantly, set time
lines for compliance with the plan. Evidence of initial abuse, followed by
reasonable efforts on the part of social services to help the parent learn non-
abusive parenting techniques and subsequent parental non-compliance with
the plan, will provide adequate grounds to terminate.
North American Council on Adoptable Children
The Child Advocates' Legal Guide
102
Sample Protocols and Forms
Lawyers frequently chart a comparison of allegations in the petition against
offers of proof. The following is an example of a way to examine proof in a
TPR case.
Areas of Proof and Evidence Chart
from Hardin, (1993, p.224)
Area of Proof
Evidence/Proof
1.
Inadequate Care while in Custody
of Mother (or Father)
Transcript of First Hearing
(admission by mother)
Severe Rashes
(oral conclusions by judge)
Medical Records
Neighbor's Testimony
Casework File and Testimony
Transcript of First Hearing
(as above)
Unsanitary Home
Testimony of Public Health Nurse
Casework File and Testimony
Transcript of First Hearing
(as above)
Pattern of Abandonment
Casework File and Testimony
2.
Judicial and Agency Planning for
Return of Child
Partial Transcript of hearings
(instructions to mother by judge)
Judicial
Copies of Letters to Client
Contract Between Agency and Mother
Agency
Casework File
Testimony of Caseworkers
North American Council on Adoptable Children
The Child Advocates' Legal Guide
103
Area of Proof
Evidence/Proof
3.
Failure of Mother (or Father) to
Prepare for Return of Child
Non-cooperation with Services
Homemaker Testimony
(efforts to contact and work with
mother)
Casework File
Caseworker Testimony
(observations of and admissions by
mother)
Transcript of Review Hearing
(admissions by mother or
conclusions of judge)
Lack of Visitation; Behavior at
Same as Above, Plus Testimony of
Visits
Foster Parents
Frequent Moves
Testimony of Landlord
Caseworker Testimony
Lack of Effort to Get Proper
Caseworker File and Testimony
Housing
4.
Relationship Between Mother (or
Lay Testimony - neighbors
Father) and Child - Evaluation
(description of child by mother)
(recent observation of visits)
Former Foster Parents'
Testimony (observations)
Caseworker Testimony
(observations, statements by child)
Psychiatric Testimony
5.
Emotional State of Child and
Psychiatric Testimony
Need for Stability and Permanent
Testimony of Foster Parents' Neighbor
Placement
Testimony of Foster Parents'
Clergyman
(change in behavior and attitude)
Testimony of Child's Teacher
North American Council on Adoptable Children
The Child Advocate's Legal Guide
104
Area of Proof
Evidence/Proof
6.
Relationship Between Foster
Psychiatric Testimony
Parents and Child
Caseworker Testimony
(opinion, observation, statements
by child)
Foster Parents
(observation, statements by child)
Testimony of Neighbor of Foster
Parents
Testimony of Clergy of Foster Parents
7.
Character of Foster Parents
Testimony of Foster Parents
Testimony of Psychiatrist
8.
Intention of Foster Parents to
Testimony of Foster Parents
Adopt
North American Council on Adoptable Children
The Child Advocate's Legal Guide
105
Questions for Discussion
1.
Where are "grounds" for TPR located in the statute?
2.
What grounds are listed for your state?
3.
Are grounds necessary for voluntary terminations/surrenders?
4.
What are they and do they differ for those needed for involuntary
terminations?
5.
Are all grounds routinely used when appropriate or do county personnel
always rely on one ground?
6.
Are inadequately provided services (reasonable efforts) a reason for
failed TPR?
7.
Do child welfare and county attorney personnel communicate
effectively about legal grounds for TPR in each case?
8.
Are either statutory grounds or legal process slowing TPRs in your state?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
106
Chapter Eleven
Substance Abuse
Statement of the Problem
Parental substance abuse often is a factor in child abuse and neglect cases. A recent
study estimates that 60% of abuse and neglect cases involve alcohol or drug abuse.
In recent years, there has been an enormous increase in the number of babies
exposed to drugs prenatally. The problem has become more severe as drugs that are
related to spontaneous violence, such as crack and PCP, become more widely used.
In New York City, over 25% of child fatalities are related to substance abuse.
Drug and alcohol abuse during pregnancy may cause a myriad of physical and
mental problems in the developing fetus. Often the concentration and duration of
the drug exposure is many times greater for the fetus than for the addicted mother.
Cocaine and its derivative "crack" have devastating effects on fetal development.
Cocaine exposure can cause smaller heads, missing bowels, deformed hearts, lungs
and genitals, motor problems, as well as strokes and seizures in utero. Drug exposed
babies are more likely to be born prematurely and at low birth weights. Low birth
weight babies are more likely to have medical problems and higher infant mortality
rates. Cocaine babies are ten times more likely to die within their first year.
A 1989 study at Chicago's Prenatal Center for Chemical Dependence found that 2
year-olds that had been exposed in utero to cocaine were developmentally delayed
and had difficulty concentrating. While these children were cognitively normal,
they are easily overwhelmed by simple tasks. School age children who were born
addicted often have difficulty adjusting, are easily angered, and are destructive to
themselves and others. They are also prime candidates for drug abuse.
The most heartening news is a recent study which shows that a supportive and
stimulating home environment after the child's birth can reduce or eliminate many
of these long term problems. According to the ABA Center on Children and the
Law Termination Delays study, children of addicted parents also tend to have longer
stays in foster care. In Onondaga County, the study found that children with a
parent who abused drugs or alcohol spent an average of 4.9 years in foster care before
being freed for adoption. A review of appellate cases shows this period is not
unusual in New York state. Of the 13 reported decisions involving termination
involving parental substance abuse, the period from the time the child was placed
until the termination appeal was resolved ranged from 3 to 7 years.
There is an inherent conflict between the model for drug and alcohol abuse
treatment and permanency planning. Substance abuse counselors stress that getting
sober is a lifetime process and that it may take several years for a parent to learn to
North American Council on Adoptable Children
The Child Advocates' Legal Guide
107
live a drug-free life. However, children need the stability and continuity of
permanent caregivers. One year may seem a short time for an adult, particularly if
they are battling substance abuse addiction, but it is a major developmental period
for a child.
Legal Summary
Over half the states have laws that include the parent's drug or alcohol use as a
ground for termination of parental rights or as a consideration in the decision to
free a child for adoption. These states are: Alabama, Arizona, California, Colorado,
District of Columbia, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, Rhode Island, South
Carolina, Tennessee, Utah, Virginia, Washington, and West Virginia.
For example, under Iowa law, the parent's rights may be terminated if they have a
severe, chronic substance abuse problem and present a danger to themselves or
others as evidenced by prior acts. The child must have been adjudicated a "child in
need of assistance" and must have been removed from home. There must be clear
and convincing evidence that the parent's prognosis indicates that the child will not
be able to be returned to the custody of the parent within a reasonable period of time
considering the child's age and need for a permanent home. Iowa Code Ann.
§232.116(1)(k).
In other states, substance abuse is not a grounds for termination, but may be a factor
in the court's decision. In Colorado, for instance, the court may consider excessive
use of intoxicating liquors or controlled substances which affects the parent's ability
to care and provide for the child in making a determination that the parent is
"unfit." Colo. Rev. Stat. §219-3-604(2).
Despite the existence of specific termination grounds based on substance abuse, most
states use other grounds to free a child when their parent's addiction continues to
pose a danger to the child. For example, if the parent disappears or fails to contact
the child, their rights may be terminated on the grounds of abandonment or
desertion. The courts have not accepted parents' drug addiction as an excuse for
failing to maintain contact with their child.
Mental illness is frequently overlooked as a potential ground for termination of
parental rights in substance abuse cases in states which have this ground.
Researchers from the National Institute of Mental Health announced in 1990 that
half of the people diagnosed with a substance abuse problem also have a diagnosable
mental illness. They found that 26% suffer from depression, 28% have anxiety or
panic disorders, 18% have "antisocial personalities," and 7% have schizophrenia.
Thirty-seven percent of alcohol abusers are also mentally ill.
North American Council on Adoptable Children
The Child Advocates' Legal Guide
108
By far, the most common ground for termination involving a parent who misuses
drugs or alcohol is the parent's failure to remedy the problem that resulted in the
child coming into care within the statutory time period (usually one year).
Generally, the agency must prove that it has made efforts to encourage the parent to
seek treatment for drug or alcohol abuse.
In most of the "inadequate improvement" cases, it is the substance abusing parent's
failure to comply with the service plan that is the most important evidence of the
continued danger to the child. In addition, courts have considered the parent's
continued denial that they have a substance abuse problem even if they are
participating in services. Finally, courts have been willing to terminate parental
rights when a parent has participated in services but has not overcome their
substance abuse problem.
Proposed Solutions
Most of the delays in freeing children occur as results of actions taken shortly after a
child is removed from a parent with substance abuse problems. There is a need for
more specific treatment plans to (1) enhance the accountability of both the parent
and the agency in addressing drug and alcohol dependency and (2) ensure that
permanency planning decisions for the child can be made in a timely manner.
Disposition plans in cases involving parental substance abuse need to outline clearly
and specifically the obligations of the parent to seek and submit to treatment.
Disposition orders should set time limits for a parent to begin a rehabilitation
program, set minimum standards for attendance and participation, and set specific
periods for abstinence to be met by the parent before the child's return home will be
considered. The parent should be required to admit they have a problem and
should be mandated to sign release of information forms in the order.
The following is a list of important components to any viable drug treatment
program:
Treatment should be continued until the parent has been "satisfactorily
discharged."
Dropping out of the program should be a clear violation of the order.
Periodic reports should be required.
Prohibit all use, possession, and selling of drugs and alcohol.
The plan should require periodic drug testing.
Urinalysis is important.
Precautions must be taken to ensure the sample is from the patient and
is not diluted.
Intervals should depend on the type of drug tested.
Techniques must be sensitive and reliable.
North American Council on Adoptable Children
The Child Advocates' Legal Guide
109
Substance abuse treatment providers should also be required to measure and report
the parent's progress to the child welfare agency and the court. Progress is typically
measured through program attendance, participation in treatment process, staff
impressions of improvements in appearance, demeanor and mood, patient's self
report of improvement in self esteem, interpersonal relationships, jobs, and results
of drug or alcohol screenings. Apparent adherence to program requirements does
not necessarily indicate recovery. Drug treatment programs should also assess the
parent's relationship with the child and their ability to care for the child on a full-
time basis.
In some cases where a parent has a history of alcohol and drug addition and failure
to follow through with rehabilitation programs, the agency may recommend at the
disposition that further efforts to reunite the family would be detrimental to the best
interests of the child. For example, a New York court in In re Guardianship of
LeBron, 140 A.D.2d 276, 528 N.Y.S.2d 572 (1st Dept. 1988), found that the parent's
addiction to narcotics made further efforts to strengthen the parental relations
detrimental to the child. The court reversed the finding of the New York County
Family Court that the agency had failed to meet the "diligent efforts" requirement.
The appellate division emphasized the conceded addiction of both respondents to
hard drugs, their poor prognosis for recovery, and their manifest failure to follow
through on a course of drug treatment or achieve any lasting remission.
Parents should be notified by the agency and the court at the disposition hearing that
their failure to successfully complete treatment within one year could result in the
termination of their parental rights. The child's age and need for permanency
should dictate the recovery period. The agency should actively bring contempt
petitions as soon as the parent fails to comply with the order. At that time, the
agency and court can consider modifications of the plan to meet the parent's needs.
Failure to comply with the plan by the end of the first year of the child's placement
should trigger an evaluation of whether the child should be freed for adoption.
Famli that
always be happy!!
YY
Л
North American Council on Adoptable Children
The Child Advocates' Legal Guide
110
Sample Protocols and Forms
Jeffrey A. Adolph, the Attorney-In-Charge of the Child Abuse and Neglect Unit in
Suffolk County, New York, has developed a detailed "dispositional menu." He
uses the language as a sample for developing dispositional orders tailored to specific
situations. Since a substantial number of the cases in Long Island involve alcohol
and drug abuse, he has recommended language for these situations:
DRUG ABUSE REHABILITATION PROGRAM
1.
As a condition of [the child welfare agency's] supervision [of the parent-
respondent], the respondent shall regularly attend and participate in a drug
rehabilitation program at a licensed rehabilitation facility, at a frequency to be
determined by the facility, until satisfactorily discharged by them, in writing to the
Department of Social Services. The Department of Social Services shall forward a
summary of the case, a copy of the petition, and a copy of this order to the facility.
The respondent shall send releases to the Department of Social Services to enable
them to monitor attendance and progress in the program. Upon the respondent's
stipulation and consent, the privilege ordinarily granted pursuant to 42 U.S.C.
$$22290dd-3 & 290ee-3 is waived. Respondent agrees not to assert this privilege at
any hearing the court may conduct concerning this matter. Respondent stipulates
and agrees that any member or employee of a drug or alcohol rehabilitation
program covered by 42 U.S.C. $$22290dd-3 & 290ee-3 may testify at any future
hearing the court may conduct concerning this matter, provided that a properly
executed judicial subpoena is served upon that person and the court rules the
testimony to be relevant and admissible. The Department of Social Services shall
assist the respondent in locating and enrolling in an appropriate program. The
respondent may not use any illegal or controlled substance. The above-described
program shall include periodic drug testing. The Department of Social Services
shall ensure that such testing occurs and be furnished with the results.
ALCOHOL ABUSE REHABILITATION PROGRAM
2.
As a further condition of supervision, the respondent shall regularly attend
and participate in an alcohol abuse rehabilitation program at a licensed
rehabilitation facility, at a frequency to be determined by the facility, until
satisfactorily discharged by them, in writing to the Department of Social Services.
The Department of Social Services shall forward a summary of the case, a copy of
the petition and a copy of this order to the facility. The respondent shall periodically
sign releases to the Department of Social Services to enable them to monitor
attendance and progress in the program. Upon the respondent's stipulation and
consent, the privilege ordinarily granted pursuant to 42 U.S.C. $$22290dd-3 &
290ee-3 is waived. Respondent agrees not to assert this privilege at any hearing the
court may conduct concerning this matter. Respondent stipulates and agrees that
any member or employee of a drug or alcohol rehabilitation program covered by 42
U.S.C. $$22290dd-3 & 290ee-3 may testify at any future hearing the court may
North American Council on Adoptable Children
The Child Advocates' Legal Guide
111
conduct concerning this matter, provided that a properly executed judicial subpoena
is served upon that person and the court rules the testimony to be relevant and
admissible. The Department of Social Services shall assist the respondent in
locating and enrolling in an appropriate program. The respondent may not drink
any alcoholic beverages.
ALCOHOLICS ANONYMOUS
3.
As a further condition of supervision, the respondent shall regularly attend
and participate in an alcoholics anonymous program. The respondent shall
periodically sign releases to the Department of Social Services to enable them to
monitor attendance only in the alcoholics anonymous program. The Department of
Social Services shall assist the respondent in locating and enrolling in an
appropriate program.
NARCOTICS ANONYMOUS
4.
As a further condition of supervision, the respondent shall regularly attend
and participate in a narcotics anonymous program. The respondent shall
periodically sign releases to the Department of Social Services to enable them to
monitor attendance only in the narcotics anonymous program. The Department of
Social Services shall assist the respondent in locating and enrolling in an
appropriate program.
NOTICE OF POTENTIAL PROCEEDINGS TO TERMINATE PARENTAL RIGHTS
5.
The parties are hereby notified that the above order shall constitute the
service plan of the Department of Social Services for this case pursuant to [the abuse
and neglect law]. The above order shall further constitute the diligent efforts that
the Department of Social Services must undertake to encourage and strengthen the
parental relationship pursuant to [the termination law].
The respondent is hereby notified that failure to obey the terms and
conditions imposed in this order and failure to participate in the court ordered
programs detailed above may result in a permanent termination of parental rights
to any child named above after a period of one (1) year that the child remains in
foster care pursuant to [the termination law].
North American Council on Adoptable Children
The Child Advocates' Legal Guide
112
Questions for Discussion
1.
What percentage of the parents with children in foster care have substance
abuse problems?
2.
What programs are available for alcohol and drug abuse treatment? Are
there waiting lists for these programs?
3.
What reunification efforts does the child welfare agency make when the
parents have substance abuse problems?
4.
How specific are the dispositional and treatment plans for parents with drug
or alcohol addiction?
5.
How long, on the average, do children of substance abusing parents remain in
foster care before a permanent plan is made?
6.
How do the child welfare agency and the drug/alcohol treatment facilities
assess the progress of a parent in treatment? Are parenting skills assessed?
7.
How long does the child welfare agency usually wait to file a termination
petition in a substance abuse case?
8.
What grounds for termination of parental rights usually apply to a parent
who has failed to progress in drug or alcohol treatment?
9.
Are there other grounds that could be used in these cases?
10. When would reunification become detrimental to the child's best interests in a
substance abuse case?
11. Are there accelerated termination grounds for infant exposed in utero to
drugs?
12. Are there problems around the adoptive parents' eligibility for adoption
subsidies and medical coverage, particularly for drug-exposed infants who
have not yet shown any apparent disability?
North American Council on Adoptable Children
The Child Advocates' Legal Guide
113
Chapter Twelve
Putative Fathers
Statement of the Problem
The legal rights of unmarried fathers have changed dramatically since 1970. Both in
society and in the law, there has been an increased concern and respect for the
involvement of fathers in the lives of their non-marital children. Putative fathers
who have established a relationship with their children are considered to have
parental rights equal to those of the mother. However, in recognition that some
unwed fathers may have no connection to their children beyond genetic
parenthood, the extension of parental rights to putative fathers has been limited by
the courts.
The complexity of legal distinctions among the rights of putative fathers has created
problems when a non-marital child is placed for adoption. In instances where the
mother has surrendered a non-marital child or had her parental rights terminated,
the legal status of the putative father may create additional delays in finalizing an
adoption.
These problems often arise because the foster care agency and the juvenile court
does not investigate the identity or location of the child's father earlier in the child's
placement. The father may be an appropriate custodian for the child, want to play a
more important role in the child's life, or have relatives who can provide care for
the child. Ignoring the father may result in a dismissal of a termination action
against the mother so that new reunification efforts may begin with the father. For
a child who has already been in care for a year or more, such an order will leave the
child in limbo an unconscionable period of time.
Delays in providing legal permanence for a foster child may also arise when the
juvenile court unnecessarily creates or extends rights to fathers who have not made
efforts to establish a parental or legal relationship with the child. While extending
rights to fathers in early stages of a foster care placement may be in the child's best
interests, delaying an adoption for a father who has not demonstrated a meaningful,
continuous or substantial relationship with the child violates a child's right to
permanency.
Legal Summary
The constitutional rights of putative fathers were first recognized in the case of
Stanley V. Illinois, 405 U.S. 645 (1972). In Stanley, the Supreme Court held that an
unmarried father who had a relationship with his children has a right to participate
North American Council on Adoptable Children
The Child Advocate's Legal Guide
114
in a hearing regarding the best interests of the children prior to having his parental
rights terminated.
In Caban V. Mohammed, 441 U.S. 380 (1979), the Supreme Court declared a New
York law which gave no rights to an unwed father to be unconstitutional. In that
case, the father had lived with the mother and children for five years, was identified
on the birth certificate, held himself out as father, supported children while he lived
with mother, and maintained regular contact with the children after his separation
from mother. The Court held:
The effect of New York's classification is to discriminate against unwed
fathers even when their identity is known and they have manifested a
significant paternal interest in the child. The facts of this case illustrate the
harshness of classifying unwed fathers as being invariably less qualified and
entitled than mothers to exercise a concerned judgment as to the fate of their
children. [New York law] both excludes some loving fathers from full
participation in the decision whether their children will be adopted and, at
the same time, enables some alienated mothers arbitrarily to cut off the
paternal rights of fathers. We conclude that this undifferentiated distinction
between unwed mothers and unwed fathers, applicable in all circumstances
where adoption of a child of theirs is at issue, does not bear a substantial
relationship to the State's asserted interests.
441 U.S. at 394. As a result of Caban, New York law was amended to specify when a
father of a non-marital child must consent to an adoption.
The most recent Supreme Court decision, Lehr V. Robinson, 463 U.S. 248 (1983),
upheld New York's putative father registry and notice provisions as meeting due
process and equal protection requirements. The Court held that a father who has
never established a substantial relationship with the child is not entitled to notice of
an adoption. In Lehr, the father had rarely seen the child, never provided support,
did not live with the mother after the child's birth, and only filed a paternity suit
two years after the child's birth. The Court held that the putative father was not
entitled to notice of the stepparent adoption. The Court stated that:
When an unwed father demonstrates a full commitment to the
responsibilities of parenthood by coming forward to participate in the rearing
of his child, his interest in personal contact with his child acquires substantial
protection under the Due Process Clause But the mere existence of a
biological link does not merit equivalent constitutional protection.
463 U.S. at 261 [citations omitted].
North American Council on Adoptable Children
The Child Advocate's Legal Guide
115
The Court recognized the state's interest in limiting the rights of uninvolved
putative fathers to speed resolution of adoption proceedings:
The legitimate state interests in facilitating the adoption of young children
and having the adoption proceeding completed expeditiously that underlie
the entire statutory scheme also justifies a trial judge's determination to
require all interested parties to adhere precisely to the procedural
requirements of the statute [T]he New York statutes adequately protected
appellant's inchoate interest in establishing a relationship with [the child]
463 U.S. at 265 (1983).
The Court dismissed the father's claims that the statute made an unconstitutional
distinction on the basis of gender:
If one parent has an established custodial relationship with the child and the
other parent has either abandoned or never established a relationship, the
Equal Protection Clause does not prevent a State from according the two
parents different legal rights.
463 U.S. at 267-268 [footnotes omitted].
These cases form the constitutional basis for the recognition and limitation of the
rights of putative fathers. States may distinguish among three types of non-marital
fathers: fathers with full substantive rights, fathers with due process rights, and
fathers who have no rights. Unwed fathers who have maintained substantial and
continuous or repeated contact with the child have the same rights as unmarried
mothers with respect to their children, and must execute a voluntary surrender or
have their parental rights terminated before the child can be adopted. Putative
fathers who do not have such a relationship with their child may still have some
legal connection (such as a paternity order or being named on the child's birth
certificate) and may still be entitled to due process rights with respect to voluntary
surrenders and termination of parental rights involving their non-marital children.
Fathers who have not made efforts to establish any relationship with a non-marital
child do not have a right to be included in a court decision to approve a mother's
surrender, to terminate the mother's rights, or to approve the adoption of the child.
Each state has its own law defining the rights of non-marital fathers. You may find
these issues addressed in your state's:
children's code provisions;
definition of "respondent" in child abuse and neglect statutes;
termination of parental rights law including notice provisions;
surrender or voluntary termination requirements;
North American Council on Adoptable Children
The Child Advocate's Legal Guide
116
paternity law; or
laws concerning the rights of minors.
In addition, there may be important court decisions in your state that define the
rights of non-marital fathers.
Proposed Solutions
The best way to address the delays caused by uncertainty about the legal rights of
putative fathers is to make sure that efforts to identify, locate, and include the father
are made as soon as the child comes into foster care. Judges may feel it is unfair to
terminate a father's rights when the agency has made no efforts at all to involve
him in planning for the child's future. If a father is given this opportunity and
chooses not to follow through with his parental obligations, the case for termination
is clear. If he does prove to be a good caregiver for the child, then termination will
be unnecessary.
The courts must also be diligent in their efforts to have fathers notified and
involved in a case where a child is in foster care. However, once the child has been
in care for six to twelve months, the court should consider the child's need for
timely decisions in determining whether to extend the rights of putative fathers
beyond those constitutionally mandated. It may be unnecessary for a termination
petition to be filed against a father who has not established a meaningful,
continuous or substantial relationship with a child. The child may be freed from
the mother and the order may include a finding of fact that an alleged father has no
rights with regard to the adoption. This is constitutionally permissible.
Finally, all participants in the termination and adoption process should be aware of
the legal rights of putative fathers. This issue should be addressed in training
programs, legal manuals, and agency forms.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
117
Sample Protocols and Forms
As part of the ABA Termination Delays Project, Niagara County Department of
Social Services in Niagara Falls, New York has adopted the following protocol on
putative fathers:
1.
It is critical that information on the father is collected as soon as a child comes
into foster care. Efforts should be made to contact the father to let him know the
child is in foster care. Use a new form or add a category to an existing form to
require this information.
2.
If a father is a "consent father," the Department of Social Services (DSS) has
the same duty to make diligent efforts toward the father as it does toward the
mother. The father should be asked what level of involvement he wants in the
reunification plan and whether he can be a resource for temporary or permanent
placement. He should be told of his duty to maintain contact with the child and plan
for the child's future. He may also be able to name his relatives who may be able to
be a resource for the child.
3.
If a father is a "notice father," he should be given notice of all proceedings,
particularly a proceeding for approval of a voluntary placement agreement. (Under
the statute, a notice father who is given notice of a hearing to approve the voluntary
placement and does not appear loses all rights to notice of further proceedings.)
Since a "notice father" could become a "consent father" while the-child is in foster
care, he should be asked what level of involvement he wants in the reunification
plan and evaluated as a resource for temporary or permanent placement.
4.
If the father has not established any rights, the caseworker should give him
information about how he can file to have his paternity established. DSS is not
required to set up visitation with a father who does not have a paternity order. If
the man denies paternity, the caseworker after discussion with an attorney may send
him a "denial of paternity" form. Referral of fathers to Child Support Enforcement
should be routinely done as part of a reunification plan with the mother to help
supplement her financial resources to care for the child.
5.
If no man is identified as the child's father, the caseworker should attempt to
find out who the child's father might be by questioning the mother, looking at the
birth certificate, contacting Child Support Enforcement, checking other records that
might name the father including WMS and the Putative Father Registry, and
talking to other individuals who might be able to name the father.
6.
If the named father or an unknown father cannot be found, this search
should be documented in the case record. This search should be made when the
child comes into care, when the case is transferred to the foster care unit, and when
a termination petition is filed or a surrender accepted. If the father's whereabouts
cannot be determined when the termination petition is to be filed, the caseworker or
North American Council on Adoptable Children
The Child Advocate's Legal Guide
118
attorney should draft an affidavit documenting the search and a motion for service
by publication to be filed with the petition.
7.
When a mother is willing to sign a surrender, information should be
collected to determine the status of the father. The mother should fill out a
checklist on the father as part of the petition of intent to sign surrender for the
family court.
8.
When a termination petition is filed, the status of the father should be stated
as an allegation in the mother's termination petition. If the man is a "consent
father," he should be approached about signing a surrender. If not, a termination
petition should be filed against him. Notice fathers should be served with the
mother's petition with a notice that complies with the statutory requirements of
Social Services Law $2384-c and Domestic Relations Law $2111-a. If a father does not
have the right to consent or notice, DSS should request that the judge make such a
factual finding in its termination order.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
119
To help foster care caseworkers determine the legal status of a putative father in a
particular case, Niagara County Department of Social Services uses the following
checklist:
Putative Father Checklist
If a child is non-marital (born out of wedlock) entering foster care or currently in
out-home placement, complete the following checklist:
Case Name
Case No.
Date
Child's name:
Date of birth
Place of birth
Birth certificate in file?
Yes
No
Child is currently:
At Home
In Custody
Mother's name:
Address:
Phone number:
Date of birth:
Social security number:
Respondent? Yes
No
Father's name:
Address:
Phone number:
Date of birth:
Social security number:
Respondent? Yes
No
If the father's address or identity is unknown, complete the Missing Parent
Checklist:
(1) Consent Father
(a) Child under six months old
North American Council on Adoptable Children
The Child Advocate's Legal Guide
120
Father has taken prompt action to obtain full
custody and demonstrate his commitment to child
(see Raquel Marie X., 76 N.Y.2d 387 (1990))
(b) Child over six months old
Father pays child support
Father visits child monthly or
regularly contacts child
Father physically able to contact child
Father not prevented from contacting child
(c) Father lived with the child six months in the
one year period prior to placement,
Father openly held himself out as the child's
father
If the unwed father does not meet the requirements of a consent father, complete
the following section:
(2) Notice Father
(a) Father was adjudicated to be the father of the
child in a New York court
Order in file? Yes
No
(b) Father was adjudicated to be the father of the
child in an out of state court
Order was filed with putative father registry
(c) Father filed a notice of intent to claim
paternity
(d) Father is named on child's birth certificate
(e) Father lived with the child or the child's
mother at the time of placement
(f) Father openly held himself out as the child's
North American Council on Adoptable Children
The Child Advocate's Legal Guide
121
father
(g) Father was identified as the child's father by
mother in a sworn, written statement
(h) Father was married to mother within six months
after the child's birth
Father married mother prior to the execution
of a surrender or initiation of termination
(i) Father filed with putative father registry
Missing Parent Checklist
Instructions: If you are filing a termination petition and the whereabouts of the
mother or father is unknown, use the following checklist to complete your search
for the missing parent. The completed checklist can be used to prepare an affidavit
for substituted service of the parent. This is not a separate form that must be filled
out - it simply provides guidelines for conducting the search for a missing parent.
Note: This document is a confidential attorney/client communication and should
be kept in a separate file marked "Confidential and Privileged Communications"
and not be made available for review by any other party.
Case Name
Case No.
Date
Missing parent's name:
Last known address:
Date of last contact with the agency:
Date Check Made
1. Letters sent to parent's last known address
2. Check with relatives of parent
Name:
Response:
North American Council on Adoptable Children
The Child Advocate's Legal Guide
122
Name:
Response:
Name:
Response:
Date Check Made
3. Check of local telephone book for listing under
parent's name
4. Check with department of welfare
5. Check with the post office
6. Check with board of elections
7. Check with department of motor vehicles
8. Check with department of health for death certificate
9. Check with department of corrections
10. Check of local telephone book for listing of persons
with same last name who may know parent's
new location
Name:
Response:
Name:
Response:
Name:
Response:
North American Council on Adoptable Children
The Child Advocate's Legal Guide
123
Date Check Made
11. Visit to last known address and inquiries made
of landlord or neighbors
Name:
Response:
Name:
Response:
Name:
Response:
12. If appropriate, check substance abuse
treatment programs
13. If appropriate, check mental health facilities
14. Other actions to locate parent:
North American Council on Adoptable Children
The Child Advocate's Legal Guide
124
Questions for Discussion
1.
Does the agency identify and locate the fathers of children who are involved
in a preventive services program?
2.
Does the agency identify and locate the fathers of children who are placed in
foster care?
3.
Does the court require that the child's father be given notice of child abuse or
neglect proceedings?
4.
Does the court require that the child's father be given notice of proceedings to
approve or review voluntary placement?
5.
Does the agency require that child protective services conduct searches for
fathers before a case is transferred to the foster care unit?
6.
Is information about the child's father required in the service plan?
7.
Is the legal status of the father addressed in termination of parental rights
petitions?
8.
Does the court address the rights of fathers when it accepts a voluntary
surrender from the mother?
9.
Does the court that hears the adoption petition delay proceedings to resolve
the rights of putative fathers?
10. Are caseworkers trained on the legal rights of putative fathers?
11. Do caseworkers have access to legal advice on the status of non-marital
fathers?
12. Are efforts made to include the father in the reunification plan?
13. Does a termination petition need to be filed against a father who has no
constitutionally protected right toward the child?
14. Is the legal status and rights of the child's father resolved before an adoption
petition is filed?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
125
Chapter Thirteen
The Best Interests of the Child
Statement of the Problem
For children involved in termination of parental rights proceedings, the "best
interests of the child" is one of the most often cited considerations of
lawmakers, courts, and child welfare workers. High profile cases such as
those of Baby Jessica and Baby Richard point out the difficulty of enforcing a
"child's best interests" standard in a system set up to provide protection for
the rights of parents.
Usually, in a contested termination or adoption the court cannot even
consider the child's best interests until after meeting the tests of: 1) notice to
parties, 2) reasonable efforts at family reunification, and 3) proof of grounds
for termination. Both the Baby Jessica and Baby Richard cases hinged on
failed notice to putative fathers and never really determined what situation
would have been best for the child.
Legal Summary
The "best interests of the child" is the applicable standard for the court. It is to
be used when the child's needs are competing with others such as biological
or adoptive parents or with agency convenience or economy. A child's best
interests, however, is not always obvious or easy to determine.
Goldstein, Freud, and Solnit, in Beyond the Best Interests of the Child (1979),
concluded that this standard did not really serve the child. Looking at such
factors as the child's need for continuity, the child's sense of time, and
psychological bonding, they concluded that a different standard should be
used by courts. The standard they suggested would be "the least detrimental
available alternative for safeguarding the child's growth and development."
Even though we agree with the manifest purpose of the in-the-best-interests-of-the-
child' standard, we adopt a new guideline for several reasons. First, the traditional
standard does not, as does the phrase 'least detrimental,' convey to the decision-maker
that the child in question is already a victim of his environmental circumstances, that he
is greatly at risk, and that speedy action is necessary to avoid further harm being done to
his chances of healthy psychological development. Secondly, the old guideline, in
contract and as construed by legislature, administrative agency, and court, has come to
mean something less than what is in the child's best interests. The child's interests are
often balanced against and frequently made subordinate to adult interests and rights.
Moreover, and least forthrightly, many decisions are 'in-name-only' for the best interests
of the specific child who is being placed. They are fashioned primarily to meet the
needs and wishes of competing adult claimants or to protect the general policies of a child
North American Council on Adoptable Children
The Child Advocate's Legal Guide
126
care or other administrative agency. But, even if the child's rights were, in fact and
policy, determinative and thus unequivocally superior to adult interests, the guideline
would remain inadequate. (p.54)
The rationale in Goldstein is based on a view different than most. Childhood
attachments are perceived to be important than biology.
Unlike adults, children have no psychological conception of relationship by blood-tie
until quite late in their development. For the biological parents, the facts of having
engendered, borne, or given birth to a child produce an understandable sense of
preparedness for the proprietorship and possessiveness. These considerations carry no
weight with children who are emotionally unaware of the events leading to their births.
What registers in their minds are the day-to-day interchanges with the adults who take
care of them and who, on the strength of these, become the parent figures to whom they
are attached. (p.13)
This attachment results from day-to-day attention to his needs for physical care,
nourishment, comfort, affection, and stimulation. Only a parent who provides for these
needs will build a psychological relationship to the child on the basis of the biological
one and will become his "psychological parent" in whose care the child can feel valued
and "wanted." An absent biological parent will remain, or tend to become, a stranger.
(p.17)
In addition to attachment needs, Goldstein also tries to see the world through
the child's eyes.
Emotionally and intellectually an infant and toddler cannot stretch his waiting more
than a few days without feeling overwhelmed by the absence of parents. He cannot take
care of himself physically, and his emotional and intellectual memory is not sufficiently
matured to enable him to use thinking to hold on to the parent he has lost. During such an
absence for the child under two years of age, the new adult who cares for the child's
physical needs is latched onto 'quickly' as the potential psychological parent. The
replacement, however ideal, may not be able to heal completely, without emotional
scarring, the injury sustained by the loss.
For most children under the age of five years, an absence of parents for more than two
months is equally beyond comprehension. For the younger school-age child, an absence of
six months or more may be similarly experienced. More than one year of being without
parents and without evidence that there are parental concerns and expectations is not
likely to be understood by the older school-aged child and will carry with it the
detrimental implications of the breaches in continuity we have already described. After
adolescence is fully launched, an individual's sense of time closely approaches that of
most adults. (p.40)
Goldstein proposes a system (see the protocol section) that evaluates the
child's present circumstances (even away from birth parents) to determine if
the child is unwanted or harmed. This means forcing the petitioners to
provide material evidence of the child's needs and least detrimental
alternative. The burden would be on the petitioner. A birth parent wanting
to get a child back after years in foster care or after adoption would face the
uphill battle of showing why it would help the child to be taken from the
current psychological parent.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
127
Under Goldstein's concept the operative guidelines would be:
1) Placement decisions should safeguard the child's need for
continuity of relationships;
2) Placement decisions should reflect the child's not the adult's sense
of time;
3) Child placement decisions must take into account the law's
incapacity to supervise interpersonal relationships and the limits of
knowledge to make long-range predictions;
4) The child in any contested placement should have full party status
and the right to be represented by counsel.
Despite Goldstein's suggestion to change the standard, it currently is "best
interest of the child" in most states; however, even that is largely undefined.
Of the forty-two states which require a best interests finding, only six further
define that term. An example of a statutory entry defining best interests can
be found in the Wisconsin statute:
In considering the best interests of the child under this section the
court shall consider but not be limited to the following:
(a) The likelihood of adoption after termination;
(b) The age and health of the child, both at the time of the disposition
and, if applicable, at the time the child was removed from the home;
(c) Whether the child had substantial relationships with the parent or
other family members, and whether it would be harmful to the child to
sever these relationships;
(d) The wishes of the child;
(e) The duration of the separation of the child from the parent; and
(f) Whether the child will be able to enter into a more stable and
permanent family relationship as a result of the termination, taking
into account the conditions of the child's current placement, the
likelihood of future placements; and the results of prior placements.
WI Child Code §48
Although the Wisconsin statute defines best interests, it misses other factors
which relate directly to the child's best interests such as: (1) the likelihood of
safe reunification with the birth parents within a reasonable time period;
(2) the child's need for permanency and stability; (3) the ability of parents to
provide adequately for the child's basic needs; (4) the parent's ability to secure
appropriate education for the child; and (5) a determination of who has
become the psychological parent of the child.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
128
Similar to several other states, Wisconsin looks at the likelihood of adoption
as part of the best interests evaluation. If the court concludes that a child is
"unadoptable" (see the chapter "Adoptability Issues"); it may refuse to
terminate parental rights even though there are sufficient grounds. The
likelihood of a court refusing TPR in the case of a special needs child is so
well known that attorneys defending termination cases have used lack of
adoptability as a strategy to convince the court not to free the child for
adoption. Unless the judge is aware of successful special needs adoptions the
court's beliefs or prejudices can influence the case.
Tragically, even though children perhaps are the most greatly affected parties
in termination of parental rights proceedings, the "best interests of the child"
standard is not cited within the statute as a consideration in seven states. In
these states, there is neither a best interests of the child finding required, nor a
definition offered.
Proposed Solutions
Interestingly, most states list within their dissolution or divorce statute child
custody section a definition of the best interests of the child. You could
propose that when the termination of parental rights statute or the adoption
section is amended, a definition (borrowed from the dissolution section)
could be added. While this will not solve the legal issue of first meeting the
tests of notice, efforts, and cause, it will provide the court specific guidance for
child placement. Also, attorneys in an appropriate TPR or adoption case
could propose to the court the use of the least detrimental standards, as
discussed earlier.
Although it is unlikely that the "best interest" standard will be changed to
Goldstein's "least detrimental alternative," the guideline and views of this
book can be used to seed fertile discussion of children's needs. Use the
attached sample child placement statute to evaluate the "child centeredness"
of your own state statute.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
129
Sample Protocol and Forms
Beyond the Best Interests of the Child, from Goldstein, et. al. (p. 97)
Provisions for a Child Placement Statute
Here we present some of the basic ingredients for a child placement code.
Statutory provisions have been drafted to codify the concepts, guidelines, and
conclusions of this volume.
Selected Provisions for the child placement code of Hampstead-Haven
(fictitious place)
Article 10.
Definitions
Para. 10.1
Biological Parents
The biological parents are those who physically produce the child.
Para. 10.2
Wanted Child
A wanted child is one who receives affection and nourishment on a continuing basis from
at least one adult who feels that he or she is and continues to be valued by those who take care
of him or her.
Para. 10.3
Psychological Parent
A psychological parent is one who, on a continuing day-to-day basis, through
interaction, companionship, interplay, and mutuality, fulfills the child's psychological needs
for a parent, as well as the child's physical needs. The psychological parent may be a
biological (Para. 10.1), adoptive, foster, or common-law (Para. 10.4) parent, or any other
person. There is no presumption in favor of any of these after the initial assignment at birth
(Para. 20).
Para. 10.4
Common-Law Parent-Child Relationship
A common-law parent-child relationship is a psychological parent (Para. 10.3) -
wanted child (Para 10.2) relationship which developed outside of adoption, assignment by
custody in separation or divorce proceedings, or the initial assignment at birth of a child to his
or her biological parents. (Para. 20.1).
Para. 10.5
Child's Sense of Time
A child's sense of time is based on the urgency of his or her instinctual and emotional
needs and thus differs from an adult's sense of time, as adults are better able to anticipate the
future and thus to manage delay. A child's sense of time changes as he or she develops.
Intervals of separation between parent and child that would constitute important breaks in
continuity at one age might be of reduced significance at a later age.
Para. 10.6
Least Detrimental Available Alternative
The least detrimental available alternative is that child placement and procedure for
child placement which maximizes, in accord with the child's sense of time (Para. 10.5), the
child's opportunity for being wanted (Para. 10.2) and for maintaining on a continuous,
unconditional, and permanent basis a relationship with at least one adult who is or will become
the child's psychological parent (Para. 10.3).
North American Council on Adoptable Children
The Child Advocate's Legal Guide
130
Article 20.
Initial Placement
Para. 20
Placement of Child
At birth, a child is placed with his biological parents (Para. 10.1). Unless other adults
assume or are assigned the role, they are presumed to become the child's psychological parents
(Para. 10.3).
Article 30
Intervention to Alter a Child's Placement
Para. 30.1
State Policy of Minimizing Disruption
It is the policy of this state to minimize disruptions of continuing relationships between
a psychological parent (Para. 10.3) and the child. The child's developmental needs are best
served by continuing unconditional and permanent relationships. The importance of a
relationship's duration and the significance of a disruption's duration vary with the child's
developmental stage.
Para. 30.2
Intervenor
An intervenor is any person (including the state, institutions of the state, biological
parents, and others) who seeks to disrupt a continuing relationship between psychological
parent (Para. 10.3) and child or seeks to establish an opportunity for such a relationship to
develop. Upon such interventions the court's decision must secure for the child the least
detrimental available alternative (Para. 10.6).
Para. 30.3
Burden on the Intervenor
A child is presumed to be wanted (Para. 10.2) in his or her current placement. If the
child's placement is to be altered, the intervenor, except in custody disputes in divorce or
separation, must establish both :
(i)
that the child is unwanted, and
(ii) that the child's current placement is not the least detrimental available
alternative (Para. 10.6).
In custody disputes in divorce or separation, the intervenor, that is the adult seeking custody,
must establish that he or she is the least detrimental available alternative (Para. 10.6).
Para. 30.4
Child's Party Status
Whenever an intervenor seeks to alter a child's placement the child shall be made a
party to the dispute. The child shall be represented by independent counsel.
Para. 30.5
Final Unconditional Disposal
All placements shall be unconditional and final, that is, the court shall not retain
continuing jurisdiction over a parent-child relationship or establish or enforce such conditions
as rights of visitation.
Para. 30.6
Timely Hearing and Appeal
Trials and appeals shall be conducted as rapidly as is consistent with responsible
decision making. The court shall establish a timetable for hearing, decision, and review on
appeal which, in accord with the specific child's sense of time (Para. 10.5), shall maximize
the chances of all interested parties to have their substantive claims heard while still viable,
and shall minimize the disruption of parent-child relationships (Para. 30.1).
North American Council on Adoptable Children
The Child Advocate's Legal Guide
131
Questions for Discussion
1.
What do our state TPR and adoption statutes say about the child's best
interests?
2.
Is there a definition of "best interests" provided within the termination
statute?
3.
Does the dissolution or divorce statute provide a "best interests"
definition?
4.
Could the same "best interest" definition be used for termination cases?
5.
Is there provision in state rule or case precedent for defining best
interests?
6.
Would the "least detrimental alternative" be an appropriate standard for
this state?
7.
Could it be implemented, or at least some of its viewpoints be adopted?
8.
Are children in TPR cases provided with legal (not CASA)
representation?
9.
Does our system, whether CASA or attorney representation, have an
impact in persuading the court to consider the child's best interest?
10. How many local TPR and adoption cases have been decided on the "best
interests" standard and why?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
132
Chapter Fourteen
Adoption Assistance
Statement of the Problem
Special needs children can be very costly to raise. Physical problems require
special treatment and assistive devices; mental limitations or psychological
problems require special counseling or education; and respite care or family
therapy may also be necessary. To promote adoption of these children many
states started providing adoption assistance (sometimes called adoption
subsidy) in the 1970's. The federal government started funding adoption
assistance when it passed the Adoption Assistance and Child Welfare Act of
1980, PL. 96-272.
The intent of this landmark legislation is to provide an appropriate and
nationally uniform response to children's issues and to find a way to serve
children at risk of needing protection. Until its passage, foster care, court, and
adoption assistance systems varied radically from state to state and, at times,
from county to county within the same state.
The Act provided federal assistance for services which enabled children to
remain with birth families. If children were removed, this law sought to
assure (1) eventual return to safe birth homes, or (2) timely placement with
adoptive families in permanent, loving, and culturally sensitive homes.
Adoption assistance was included as an incentive for families to adopt special
needs children.
Typical problems related to Adoption Assistance include access issues such as
qualifying a child both by disability and prior IV-E - AFDC eligibility; foster
adoptive placements where DHS tries to place without adoption assistance;
states which try to impose a means (income) test; or cases where the child's
disability only becomes apparent as the child ages, often long after adoption
finalization.
Legal Summary
PL 96-272's specific provisions are contained in the Social Security Act (42 U.S.
620 -628 and 670-679) and in the Code of Federal Regulations (45 CFR 1355-
1357). Although this Act addresses several issues and programs, including
foster care maintenance, administrative costs, court review, administrative
procedures and requirements, this chapter only discusses, the provisions
related to adoption assistance.
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
133
P.L. 96-272 requires states to establish adoption assistance (subsidy) programs
for children with special needs. It provides federal matching dollars for
adopted children previously eligible for Title IV-E foster care. In recent years
the program has grown dramatically - from no federally funded adoption
subsidies in 1980 to almost 170 million dollars supporting nearly 50,000
children in 1991. While cost of the Title IV-E adoption programs have grown
in the past 14 years, the foster care savings for the 40,700 children in programs
between 1983-87 alone was $1.6 million as reported by Sedlak and Broadhurst
(1993).
A "child with special needs" (as defined in Section 473(c) of the Social Security
Act) must meet the following conditions:
1) The child cannot or should not be returned to the home of his/her
parents, and
2) The state has determined (a) that there exists with respect to the child
a specific factor or condition (such as his or her ethnic background, age,
or membership in a minority or sibling groups, or the presence of
factors such as medical conditions or physical, mental, or emotional
handicaps) because of which it is reasonable to conclude that such child
cannot be placed with adoptive parents without providing adoption
assistance and (b) that, except where it would be against the best
interests of the child because of such factors as the existence of
significant emotional ties with prospective adoptive parents while in
the care of such parents as a foster child, a reasonable, but unsuccessful,
effort has been made to place the child with appropriate adoptive
parents without providing adoption assistance
This definition excludes children who may be disabled but were never in
foster care or on AFDC. Children adopted from foreign countries or through
direct private placements may never be able to qualify for adoption assistance.
State adoption assistance programs often supplement the federal program.
They can -depending on state law- cover some children who may not
qualify for federal help. Always check your local program.
Adoption assistance can include one time payments for legal expenses, on-
going maintenance payments up to an amount equal to local foster care
payments, Medicaid or Medical Assistance coverage, respite care expenses,
and other treatment expenses if deemed necessary. Each child's contract is
different and can be re-negotiated if the child's needs increase.
Adoption assistance usually becomes an issue at the time of adoption. Prior
to finalization, the prospective adoptive parents must be told of its
availability. If the parents decide that a subsidy would be important, a
contract is then negotiated between the state agency and the adoptive parents.
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
134
Adoptive parents can choose to reserve or to keep the adoption assistance
option open. It is advisable to do this where a child placed for adoption has
potential problems because of prenatal drug or alcohol use or early sexual
abuse. In these cases, the contract would allow the parents to ask for financial
help sometime in the future if help becomes necessary.
In certain states, such as Minnesota, there has been successful litigation on
behalf of persons who had adopted years ago but who had not been given the
opportunity to apply for adoption assistance at the time of adoption. They
have been given the opportunity to apply now, even for retroactive benefits.
Proposed Solutions
Individuals whose adoption assistance payments are cut or persons not given
the opportunity to obtain a subsidy are entitled to a "fair hearing process."
The steps are as follows:
1)
make a written application for adoption assistance;
2)
the state or county must then provide a written denial with an
explanation of the rationale for the denial;
3)
you then have the right to appeal the decision, usually within 30
days;
4)
the agency should send a "summary of the issues" with legal
cites which form the basis for the decision plus a date for the
appeal or "fair" hearing;
5)
you have the right to review the case file, including your child's
disability information (certain identifying information may still
be private);
6)
you can bring an advocate or attorney to the hearing;
7)
the hearing itself is held in front of an impartial administrative
law judge, it will be informal;
8)
bring along all evidence such as psychological evaluations,
medical reports, school assessments or IEPs (individual
educational plans), all of which demonstrate your child's
problems and your special needs;
9)
the judge will later make a decision either granting or denying
adoption assistance and a copy of the decision will be mailed to
you; and
10)
either party can appeal this decision to court if not satisfied.
Information about this fair hearing process should be shared with adoptive
parents. Those in dispute over adoption assistance payments should be
encouraged to use the appeals process.
Adoption assistance is both a federal and state program. State contributions
vary greatly. In many states, subsidy levels are significantly lower than foster
care benefits and this factor creates a huge disincentive for foster parents to
adopt their foster children. Advocates can be extremely effective in efforts to
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
135
modify state practice to allow for higher benefits. Financial statistics
demonstrate significant cost savings when foster children are adopted, even
with a subsidy, due to the savings in administrative and court costs. In
addition, the child benefits psychologically from the knowledge that he or she
has a permanent family, one that won't be lost at age eighteen. As a young
adult, that child still has parents to lean on, borrow from, call home to, seek
advice from, visit on holidays and has grandparents for his or her own
children.
Families are the people who
love you and who want to
be with you in good and bad
times. In a family you have
to stick together and help
each other whenever there
is trouble or need. It feels
wonderful to have a family of my
very own again, a family that loves me.
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
136
Sample Protocols and Forms
Model Assistance Agreement
The following Agreement has been entered into by and between:
(State Agency - Other Relevant Agencies)
(Addresses)
(Telephone #)
hereafter called the "agency (ies)" and
(Adoptive/Adopting Parent(s) Full Name(s))
(Address)
(Telephone #)
hereafter called the "adoptive parent(s),"
for the purpose of facilitating the legal adoption of
born on
and to aid the
(Child's First Name)
(Date)
adoptive family in providing proper care for this child.
This document is the:
/
/ Initial Agreement:
The prospective adoptive parent(s)
agree that he/she/they intend to
adopt
and have
(Child's First Name)
signed this document prior to
finalization of the adoption for the
purposes of receiving adoption
assistance payments and/or
services for the child under titles
XIX and XX from the time of placement.
/
/ Renewal Agreement:
This is a renewal of the Adoption
Assistance Agreement for
(Child)
adopted on
. The next
(Date)
renewal date is
.
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
137
PROVISIONS OF AGREEMENT
I.
Assistance
A.
Non-recurring Adoption Expenses (Effective January 1, 1987)
List specific items and cost of each:
B.
Monthly Cash Payment:
Yes
$
;
No
The amount of this monthly cash payment (adoption assistance)
is based on the needs of the child and the circumstances of the
adoptive parent(s) and has been determined by mutual
agreement between the adoptive parent(s) and the agency. The
amount of the payment does not exceed the foster care
maintenance payment for
if
(Child's Name)
he/she were in a foster family home in the State of
.
Adjustments in cash assistance payments may be made with the
concurrence of the adoptive parent(s) based upon changes in the
needs of
,
changes in the circumstances
(Child's Name)
of the adoptive family, or changes in the maximum allowable
adoption assistance payment. Documentation of changes in the
child's needs or family's circumstances may be required.
C.
Medical Care
1.
Medical benefits as provided under Title XIX of the Social
Security Act (Medicaid) will be available to
(Child's Name)
in accordance with the procedures of the State in which
resides.
(Child's Name)
2.
Medical payments will be provided (at State option)
by
for
(Originating State)
(specify condition, illness,
treatment, etc.)
if not provided by Title XIX, regardless of the State in
which
lives.
(Child's Name)
Specific cost of treatment (if known)
$
Dollar limitation (if any)
$
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
138
3.
Procedures for meeting cost of medical care, including
consideration of family's health insurance:
D.
Social Services
1.
Social Services as provided under Title XX of the Social
Security Act will be available to
(Child's Name)
according to the procedures of the State in which
resides.
(Child's Name)
2.
Social Services will be provided (at State option) by
for
(Originating State)
(Specify Service(s))
if not provided by Title XX regardless of the State in which
resides.
(Child's Name)
3.
How to access Title XX services: (explain here)
E.
Detail the procedures the family should follow in relation to
receipt of adoption assistance, medical care and social services
when moving to or living in a state other than originating state.
Indicate whether the interests of the adopted child are protected
through the Interstate Compact on Adoption and Medical
Assistance or through another arrangement. Be specific.
II.
Notification of Change
A.
The adoptive parent(s) will immediately notify the agency, in
writing, if they are no longer legally responsible for the support
of the child or are no longer supporting the child.
B.
The agency will notify the adoptive parent(s) in writing of
changes in adoption assistance payments resulting from
increases or decreases in foster care rates. Adjustments will be
made, if requested by the adoptive parent(s), at the time of
renewal of the Agreement.
C.
Parents will notify agency of changes of address.
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
139
III.
Renewal Agreement
(If Required by State)
A.
This Agreement is renewed
(Annually, Bi-annually, etc.)
by the adoptive parent(s) and the State agency.
B.
The agency shall notify the adoptive parent(s), in writing, 45 days
before the need for renewal and shall supply the adoptive
parent(s) with the appropriate forms.
C.
A second notice will be sent by certified mail 20 days before
renewal. If the renewal request has not been received from the
adoptive parent(s) within five (5) working days after the renewal
date, the Agreement will be terminated.
IV.
Termination
Termination will occur in any of the following circumstances:
A.
This Agreement will terminate upon the conclusion of the
terms of this Agreement.
B.
This Agreement will terminate upon the adoptive parent(s)'
request.
C.
Adoption assistance payments will terminate when the child
reaches the age of 18. Adoption assistance may be provided at
state option until the child is 21 years of age if the child has a
mental or physical handicap which warrants continuation.
D.
This Agreement will terminate upon the child's death.
E.
This Agreement will terminate upon the death of the parent(s)
of the child (one is a single parent family and both in a two-
parent family).
F.
This Agreement will terminate at the cessation of legal
responsibility of the adoptive parent(s) for the child.
G.
This Agreement will terminate if the agency determines that the
child is no longer receiving support from the adoptive parent(s).
H.
This Agreement will terminate if the family fails to participate
in the renewal process for adoption assistance. (Optional - see
Section III, Renewal Agreement.)
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
140
V.
Appeal
Adoptive parent(s) may appeal the agency's decision to reduce, change,
or terminate adoption assistance in accordance with the rules and
procedures of the state's fair hearing and appeal process. Information
may be requested from
.
This Agreement shall remain in effect regardless of the state of which the
adoptive parents are residents at any given time.
This Agreement will expire on the child's 18th birthday or
, subject to
(Specify)
(Annual, Bi-annual, etc.)
renewal, unless termination occurs as a result of one or more of the
conditions set forth in Section IV, Termination.
Effective date for Title XIX and XX:
Effective date for adoption assistance payment:
Adoptive Mother's Signature
Date
Adoptive Father's Signature
Date
Authorized Agency
Date
Representative's Signature
Title
Signed copy of the Adoption Assistance Agreement given/sent to adoptive
parent(s) on
.
(Date)
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
141
Adoption Assistance in America: A Programmatic Analysis Fifteen Years
After Federal Implementation (Tom Gilles, NACAC, 1995)
EXECUTIVE SUMMARY
Purpose and Methodology
With its enactment of The Adoption Assistance and Child Welfare Act of
1980 (Public Law 96-272) nearly fifteen years ago, the United States Congress
began to promote special needs adoption by providing federal reimbursement
for adoption assistance payments made to families that adopt special needs
children. Under 96-272, states must establish adoption assistance programs
that provide monthly maintenance payments, Medicaid coverage, selected
social services, and reimbursements for non recurring adoption costs to
families adopting eligible children.
The North American Council on Adoptable Children (NACAC), through the
support of the W.K. Kellogg Foundation, undertook this study to:
assess the general effectiveness of adoption assistance programs
around the country;
construct profiles of the children and families that receive assistance,
as well as the types and sufficiency of benefits made available to them;
analyze the impacts that various systemic policies and practices have
on the distribution of these benefits; and
highlight dominant trends and areas of programmatic concern
among assistance providers and recipients.
To address the objectives described above, NACAC solicited input from (1)
state-level adoption administrators and policymakers, (2) front-line adoption
workers, and (3) adoptive families in nineteen states and the District of
Columbia including: Arizona, California, Colorado, Illinois, Indiana, Kansas,
Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New
York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, and
Washington. In total, 27 (at least one per studied state) administrators and/or
policymakers (i.e. state adoption supervisors, state legislators, and budget
analysts), 140 workers (seven per state-five from public and two from
private agencies), and 532 families (responsible for finalizing 753 domestic
adoptive placements through licensed public or private agencies after 1990)
provided information via telephone interviews and written survey
instruments.
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
142
Basic Findings
In compiling stakeholder response, we learned that:
Adoption assistance programs are critical in promoting permanency for
special needs children.
Stakeholders were virtually unanimous in their contention that
adoption assistance programs are facilitating the permanent placement
of children who might otherwise remain unadopted.
Special needs and/or subsidized adoptions are now the rule, rather than the
exception, for most agencies across the country, particularly those in the
public sector.
On average, 78% of the agency-facilitated adoptions finalized in the
survey states in their most recent reporting year involved the provision
of some form of adoption assistance.
Seventy-one percent of workers interviewed said that at least 75% (with
many citing figures as high as 90-95%) of the adoptive placements they
finalize are subsidized.
Adoption assistance programs in America remain in an expansionary
phase.
Assistance expenditures in most states have grown roughly 15-20%
during the past year, 30-40% over the past three years, and 60-75% in the
past five years.
Despite the prevalence and growth of subsidized adoption, many special
needs children-and the families that adopt them-remain unserved by
adoption assistance programs.
Thirteen percent of the families in the sample population that adopted
special needs children were never notified in any way of their state's
adoption assistance program.
Twenty percent of the children in the sample population with
identifiable special needs (according to their respective state's individual
special needs definitions) were placed without monthly maintenance
payments, and 43% of the families that adopted them received no
reimbursement for non-recurring adoption costs.
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
143
Profiles of Adoption Assistance Recipients and Benefits Received
Children from the sample population who were placed with monthly
adoption assistance (and the families that adopted them) exhibited the
following characteristics:
Monthly Maintenance Recipients
Child Profile:
Race of children placed with monthly subsidy: 30% African-American
(71% of all African-American adoptees received monthly subsidy), less
than 1% Asian, 8% Hispanic (78% of all Hispanic adoptees received
monthly subsidy), 2% Native American, 16% mixed race (63% of all
mixed race adoptees received monthly subsidy), and 44% white (63% of
all white adoptees received monthly subsidy). [Note: Total numbers of
Asian and Native American adoptees were insufficient to derive
meaningful percentages of each group receiving monthly subsidy.]
Age (at time of placement) of children placed with monthly subsidy:
24% two years of age or less, 31% between three and five years of age,
34% between six and ten years of age, and 11% eleven years of age or
older. The average age (at time of placement) of all children placed
with monthly subsidy was 5.6 years.
Parent Profile:
Average parental age at time of placement: 40.9 years
Race of adoptive head(s) of household: 20% African-American (75% of
all adoptive households headed by African-American parents received
monthly subsidy), less than 1% Asian, 1% Hispanic, less than 1%
Native American, 8% interracial (68% of all adoptive households
headed interracially received monthly subsidy), and 71% white (57% of
all adoptive households headed by white parents received monthly
subsidy). [Note: Numbers of adoptive households headed by Asian,
Hispanic, and Native American parents were insufficient to derive
meaningful percentages of total households of each race/ethnicity
receiving monthly subsidy.]
Number of other adopted children in the home at the time of
subsidized placement: 45% no other adopted children, 28% one other
adopted child, 13% two other adopted children, and 14% three or more
other adopted children.
Total annual household income: 5% less than $15,000, 36% between
$15,000 and $35,000, 32% between $35,000 and $50,000, 20% between
$50,000 and $75,000, and 7% more than $75,000.
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
144
In terms of other benefits received, respondents provided the following
information:
75% of the special needs adoptees receive Medicaid coverage.
57% of the special needs adoptees (and/or their adoptive families)
received "concrete" services.
Opinions on Specific Programmatic Provisions and Operating Tenets
Workers and administrators were concerned about the practical
implementation of several statutory provisions contained in P.L. 96-272 and
their effect on permanency efforts for special needs children.
Respondents specifically identified policies governing the following
programmatic provisions as impacting-both positively and
negatively-adoption assistance benefit distribution across the country:
(1) "special needs" definitions; (2) "reasonable efforts" to place without
adoption assistance; (3) individualized assistance negotiations; (4)
income and resource consideration; (5) maintenance payment
determination and sufficiency; (6) annual reviews; (7) agreement
modification procedures; (8) fair hearing/appeal processes; and (9) the
general programmatic ineligibility of international and "independent"
adoptees.
"Universal" Problems
Despite significant state-by-state differentiation in systems operation,
respondents readily identified six problems that plague adoption assistance
programs across jurisdictional boundaries:
Linkage of Title IV-E eligibility to AFDC eligibility.
Administrative interviewees viewed the current linkage between IV-E
eligibility and AFDC eligibility as the single greatest impediment to
comprehensive and equitable adoption assistance offerings nationwide.
Inadequate adoption assistance training and programmatic understanding
among front-line staff.
Forty-one percent of front-line workers interviewed had never received
formal adoption assistance training of any type.
Only 46% of all front-line interviewees felt "completely familiar and
comfortable" with the workings of their home state's adoption assistance
program.
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
145
Workers' knowledge deficits detrimentally impact special needs children
and the families adopting them. Of the parents adopting special needs
children who were notified of their state's adoption assistance program,
only 65% said they received information in a "clear and understandable"
manner.
Widespread insufficiency in the provision of "concrete" services.
Fifty-eight percent of administrators, 61% of workers, and 36% of special
needs adopters said that services provided through or in conjunction
with their state's adoption assistance program are insufficient to meet
the needs of special needs children. The most commonly cited service
needs were counseling and mental health services, respite care,
tutoring/educational services, day care, and residential treatment
services.
Restricted access to adoption assistance benefits for children and families
served by private agencies.
Forty percent of administrative interviewees and 33% of front-line staff
said that children and families served by private agencies in their state
have less access to adoption assistance benefits than those served by
public (state and county) agencies.
Eighty-five percent of the families that adopted special needs children
through public agencies received monthly maintenance payments,
compared to 65% of the special needs adopters that worked with private
agencies.
Difficulties in completing subsidized adoptive placements across state lines.
Forty-five percent of interviewed administrators and 64% of surveyed
front-line workers claimed that interstate placements are "particularly
problematic" within the adoption assistance framework.
Operational barriers in "decentralized" (i.e., state supervised/county or
regionally administered) adoption assistance systems.
Operational, attitudinal, and fiscal differences between counties and
regions, as well as the staff and administrators working within them,
often lead to inequities and inconsistencies in benefit distribution and
service delivery.
Future Trends, "Hot" Topics, and Unresolved Issues
In addition to identifying a set of universal problems, administrators,
workers, and families highlighted and discussed a group of core issues, trends,
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
146
and ideas central to the future of special needs and subsidized adoption in
America, including:
Assessment of programmatic purpose: Given the changing dynamics of
special needs adoption, what is the "proper" underlying operating philosophy
of the adoption assistance program?
Respondents gravitated to two basic schools of thought when discussing
"proper" programmatic purpose and objectives: (1) adoption assistance as
a promotional tool or "enticement" to adopt; and (2) adoption assistance
as reimbursement for, and coverage of, specific, identifiable payments
and services only.
Minority race and/or ethnicity as a special need.
In attempting to control program expenditures, some administrators and
front-line workers around the country have begun to question the
validity of certain special needs eligibility criteria, most notably those tied
to the racial or ethnic status of children in substitute care.
Calls for greater emphasis on adoptive family income and resources when
determining program eligibility.
Several states have begun testing P.L. 96-272's statutory limits by openly
pressing for routine, standardized consideration of family resources
when determining adoption assistance eligibility within their
jurisdictional borders.
Increased utilization of "deferred" assistance agreements.
Interviewees reported growing usage of "deferred" subsidy agreements
(formalized, signed agreements which initially establish monthly
maintenance payment rates of $0 until a specific need for assistance
arises at some future date) by adoption assistance practitioners around
the country.
Emergence and prominence of "post-finalization" requests for adoption
assistance.
Post-finalization requests (requests for adoption assistance after adoptive
placements are finalized) now make up a significant proportion of all
assistance requests processed in many jurisdictions.
Kinship adoption and adoption assistance.
Respondents identified kinship adoption in general, and its relationship
to adoption assistance in particular, as areas which require further
analysis and greater understanding.
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
147
We hope that information contained in this report will prove useful to child
welfare officials as they attempt to better serve special needs children and the
families that adopt them.
J hey adopted me-
I adoptid them.
We are family
Michael,
Bennett,
My dad.
Tracey,
My
ister.
my brother
$
Joyce,
my mom.
Kendra,
Me.ls
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
148
Questions for Discussion
1.
Does your state have both a federal and state adoption subsidy
program?
2.
What elements are similar and/or different between the two programs?
3.
What state benefits are available?
4.
What are the dollar limits for on-going payments?
5.
Are state officials fair about determinations of eligibility?
6.
Are people with disabled but foreign-born children able to get subsidy?
7.
Is your state a willing or reluctant participant in the adoption subsidy
program?
8.
How does the fair hearing process work?
9.
If the federal contribution is block granted will your state continue the
program?
10. Are people adopting children who may have future problems because of
drug or alcohol-effect advised to reserve the right to future benefits?
The North American Council on Adoptable Children
The Child Advocate's Legal Guide
149
Chapter Fifteen
Multidisciplinary Permanency Planning Teams
Statement of the Problem
A major problem in many child welfare agencies is the long period of time many
children remain in foster care before a decision is made to seek termination of
parental rights (TPR). An ABA study found that a child spent an average of three
years in foster care before a referral was made to begin a termination action.
Because of their orientation toward reuniting the family, caseworkers are often
reluctant to request that a case be considered for termination of parental rights. The
relationship they build with the family while the child is in care one year, as well as
their excessive caseloads, make it likely the decision of termination will be put off.
There is rarely any early identification of cases for termination.
A new caseworker assigned a family where the child has already been in care for
more than two years will usually begin their efforts toward reunification without
evaluating whether the goal should be changed. Caseworkers also are uncertain
how to evaluate whether a case is appropriate for termination because of their
confusion over the legal requirements, unclear legal advice, and the lack of training
on termination procedures. Staff shortages also pose significant problems.
Another significant problem may be a poor relationship between the attorney for
the agency and the caseworkers. Attorneys often discourage caseworkers from filing
cases because the case is not "air tight" and they feel efforts to reunify were not
diligent enough. The attorney, however, provides little guidance to caseworkers on
how to meet the diligent efforts requirement. Attorneys also have little time to
prepare and present termination cases.
Legal Summary
State termination law timelines are not usually a barrier to early decisions to
terminate parental rights. Most termination grounds specify no specific time period
that the child must be in care before the action can be initiated.
For example, Iowa law has eleven grounds for termination of parental rights which
encompass most of the variations found around the country. Seven of their
grounds do not require the child to have been in care a set period: intentional
abandonment, prior termination, imminent danger, incarceration, mental illness,
substance abuse, and failure to remedy abuse. Two grounds require a six month
North American Council on Adoptable Children
The Child Advocate's Legal Guide
150
period: desertion and failure to contact. Iowa Code Ann. § 232.116(1). In other states,
the "failure to remedy abuse" ground may require a one-year period in care.
In addition, unlike other states, Iowa has two permanency grounds. If a child, three-
years old or younger who has been adjudicated a "child in need of assistance" cannot
be returned home after being placed out of the home for at least 6 of the last 12
months, the parent's rights may be terminated. Iowa Code Ann. §232.116(1)(g). For
children four years old or older, the child must have been in care for at least 12 of
the last 18 months. Iowa Code Ann. $232.116(1)(e).
In addition, federal foster care law provides incentives for agencies to make a final
decision as to whether termination is appropriate once the child has been in care 18
months.
Proposed Solutions
While there are few statutory barriers to early identification of children for whom
"free for adoption" is the appropriate goal, institutional barriers often prevent these
decisions from being made promptly. To address these problems, we recommend
three specific policy improvements: permanency planning specialists, termination
checklists, and multidisciplinary permanency planning teams.
First, a Permanency Planning Specialist can be the agency's touchstone for timely
decisions to file termination of parental rights. Having a full-time staff member
with casework experience to review these cases and evaluate the appropriateness
and likelihood of TPR can aid caseworkers in making the difficult decision to
proceed with a termination action.
The Permanency Planning Specialist can also assist caseworkers in preparing a case
for the attorney and act as a liaison between the casework and legal staff on
termination cases. By focusing on termination of parental rights cases, the
Permanency Planning Specialist can build up expertise in the practical and legal
aspects of termination which will benefit the entire staff. The Permanency Planning
Specialist can also informally train staff on termination law and procedures.
A second problem which inhibits caseworkers from making a recommendation that
a foster child should be freed for adoption is uncertainty about the necessary legal
prerequisites for termination of parental rights. Termination of parental rights law
is detailed, extensive, and often amended by the legislature. In addition, there are
many reported decisions involving cases of termination of parental rights which
must be followed. Summarizing the legal requirements in a checklist format helps
caseworkers quickly identify the viability of a termination action in a specific case.
The termination checklist ensures that caseworkers consider each potential ground
for termination as well as the special aspects of a case that might excuse certain
elements or require additional proof.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
151
A termination checklist should cover the legal elements for each ground, the rights
to participation or notice of putative fathers, and the child's prospects for adoption.
It should be designed to be completed in 15 to 20 minutes by a caseworker familiar
with the family. Most of the questions should require a yes-no checkoff and the rest
only short narrative answers. (See the chapter "TPR" for a sample.)
Because of the enormous amount of paperwork that caseworkers must already
complete, you may choose to allow the caseworker to use the termination checklist
as a decision making tool and not make it an additional form which must be
completely filled out. In this way, more experienced caseworkers can use portions of
the checklist as needed. To speed identification of children appropriate for
termination of parental rights, we recommend that the checklist be used at the point
a child has been in care for one year, or six months if there has been no contact with
a parent.
The third and most important tool to ensure that children are not remaining
unnecessarily long in temporary foster care placements is a multidisciplinary
permanency planning team. All child welfare agencies already conduct service plan
reviews every six months and court review of foster placement is now required at
least every 12 months. The advantage of a separate permanency planning review is
to focus discussion on the possibility of termination. The key difference in the
multidisciplinary permanency planning team compared to the service plan review
is the availability of an attorney to assess the legal aspects of the case.
For example, in Onondaga County, New York, the permanency planning review
panel is comprised of the Director of Children's Division, supervisors from the
Child Protective, Foster Care and Preventive Services Unit, a representative of the
county attorney's office, and the Permanency Planning Specialist who serves as
panel facilitator. The panel reviews a case once the child has been in placement for
16 months. Sixteen months was chosen because a large number of children in
Onondaga County are returned to their families after 13 to 15 months in placement.
The review of each case is limited to 15 to 30 minutes. During this time, the
caseworker presents the family's service history, barriers to reunification, and the
potential for termination of parental rights. The permanency planning specialist
schedules the reviews, notifies the caseworkers assigned to the cases chosen for
review, and maintains the minutes for the panel.
An alternative model involves participants outside the agency in the permancy
planning. For example, in Chemung County, New York, the permanency planning
committee reviews cases when the child has been in care for one year to coincide
with the required court review for extension of placement. The decision was made
to combine the 12-month service plan review with a permanency planning
committee review. The committee meetings are held in two parts. At the first part,
the supervisor, caseworker, agency attorney, child's attorney, CASA (if assigned),
foster parent, biological parent, parent's attorney, and the permanency planning
North American Council on Adoptable Children
The Child Advocate's Legal Guide
152
chair conduct the service plan review. At the second, the participants are joined by
all service providers in the case to discuss the possibility of filing a termination
action.
In preparation for this review, the caseworker is asked to complete a termination
checklist. The permanency planning chair sets up the reviews, maintains minutes,
and monitors cases for which termination is recommended.
Love is Family
North American Council on Adoptable Children
The Child Advocate's Legal Guide
153
Sample Protocols and Forms
Multidisciplinary Permanency Planning Team Protocol
The Multidisciplinary Permanency Planning Team is an internal review process
designed to review foster care cases at the 11th month of placement, or at other
times as indicated by case circumstances. The 11th month placement was selected
because it precedes the 12-month court review and because children who are in care
for 11 months have the increased likelihood of remaining in care for an extended
period.
Purpose
The goals of the Multidisciplinary Permanency Planning Team are threefold:
1) The reduction of the length of time that children spend in care by ensuring that
activities leading to the Permanency Planning Goal are occurring in a timely
manner;
2) The identification of barriers to goal achievement; and
3) An internal monitoring of casework performance relative to issues of
permanency planning.
Because the Team is composed of several levels of staff from a variety of units,
input and recommendations are made on cases where movement has been slow
and/or difficult. Additionally, this process is a needs assessment for
expanded/modified/new services.
Team
Several staff members are invited to sit on the Multidisciplinary Permanency
Planning Team on a rotating basis. Every effort is made to have representation
from the Child Protective, Foster Care, and Preventive Units. The Panel is
comprised of the Director of Children's Division, Foster Care Unit Supervisor,
Adoption Unit Supervisor, and the Permanency Planning Specialist; the latter
serves as a panel facilitator. A representative from the agency attorney's office
participates in this review in order to clarify points of law, make suggestions to
caseworkers, and advise caseworkers on "diligence of efforts" issues. Where
appropriate, this meeting is considered the first step in the termination referral
process.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
154
Procedures
The Multidisciplinary Permanency Planning Team is held twice monthly for one-
half day. Depending on the nature of the case, each review conference is limited to
15 to 30 minutes. Typically, six to eight cases are reviewed during each session.
Prior to the meeting the caseworker is given the following list of areas to address in
his/her presentation:
Original reason for placement;
Legal basis for placement;
Current legal status;
Current permanency planning goal;
Plans to change goal;
Current location and situation of parents;
Efforts to locate putative fathers;
Native American status;
Discharged or placement of siblings since this placement;
Services delivered since placement;
Current services;
Mandated family preservation efforts;
Evaluation of parents' progress in each service;
Barriers to filing of termination;
Why children can't go home now;
Services which are needed but:
1) not accepted by client
2) no slot available
3) not available in this County
Additionally, the workers are asked to bring the case record and the latest case plan.
Following the caseworker's presentation, panelists are free to ask questions and
make recommendations. If there is more than one caseworker assigned to a case, all
are invited to attend the Multidisciplinary Permanency Planning Team meeting as
are their immediate supervisors.
The process prior to the meeting is as follows:
1. Cases are identified during the 11th month of placement.
2. The facilitator notifies the caseworker(s) and supervisor(s) by memo that the case
is being considered for review. The caseworker is asked to answer a brief Yes/No
questionnaire. Contingent upon responses to the questionnaire, review of the
case will be eliminated, postponed, or scheduled.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
155
3. A memo is sent to caseworker(s) and supervisor(s) advising them of the date,
time, and place of conference. This memo includes the list of areas which will be
addressed at the meeting.
4. Caseworker(s)/supervisor(s) presents case at the conference.
5. The panel's recommendations will be noted and kept on file for review at a
future date.
6. If a termination is appropriate, a conference date will be set with the attorney
according to procedures already in place. A copy of the appointment memo is
sent to the caseworker(s), supervisor(s), and team facilitator for inclusion in panel
files.
7. If appropriate, a date for another review will be determined by the team.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
156
From Katz, Seeing Kids Through to Permanence: Courtwise (1995).
Part I: What We Must Learn
Social Work Values and Legal Principles
Despite the well-known value conflicts believed to exist between the two
professions, significant commonalties emerge when lawyer and social worker meet
in the court room. Recognizing this common ground is the first step toward
utilizing it productively.
One need not be a legal scholar to observe that our family and juvenile laws evolve
in response to society's perception of human needs. As a profession, social work is
generally more familiar with the terminology of needs than with the legal
terminology of rights. In practice, however, human needs and rights are closely
related and often are identical.
For example, social work asserts that children have a need for age-appropriate
academic and social education in order to reach their full potential as adults. This is
translated into a legal right to an appropriate public education. Social work affirms
the need of children to be treated as children rather than as adults. All states
acknowledge this need through laws protecting the rights of children not to be used
sexually, not to be exploited in the labor force, not to be held accountable for acts
they were too immature to comprehend, etc.
The laws and procedures social workers encounter in the Juvenile Court process are
very often based on what is most familiar to our profession, that is, human needs.
The following examples represent a conceptual model for integration of legal and
social work values.
Intrinsic Human Worth
Social Work is a profession permeated with Judeo/Christian social values and
ethics. At its core is a profound respect for human life which mandates that the
practitioner insist on fair and equal treatment for all people without regard to their
"worth" to society as a whole. Thus, the social worker intervenes on behalf of the
welfare mother who is denied public assistance benefits, while also advocating for
equity in public assistance policy across the board. In publicly championing the poor
and disenfranchised, social work demonstrates this philosophy in tangible ways. In
the child welfare arena, social work attempts to guarantee for abused and neglected
children the rights common to all children.
Fair and Equal Treatment Under the Law
When the social worker steps into the juvenile court arena, congruence can be
found between this social work value and a fundamental tenet of our legal system
(i.e., fair and equal treatment for all under the law). While as a practical reality we
know that this ideal is often not achieved, the clear intent, nevertheless, exists. The
North American Council on Adoptable Children
The Child Advocate's Legal Guide
157
law aims to guarantee its full protections to all children and parents, regardless of
circumstances, race, or income. In addition, due process procedural mechanisms
exist to protect all individuals charged with wrongdoing from unfair or prejudicial
treatment by those in positions of authority.
Client Self-Determination
A second fundamental value in social work is the importance of client self-
determination and active involvement in the events affecting his/her future.
Social work has long recognized the difference between "doing for" and "doing
with" and has emphasized the benefits to self-esteem that come from the client's
assertive participation.
Right and Responsibility to Participate
The judicial system mirrors this social work principle through its tenet that families
involved in Juvenile Court proceedings have a right to notice of all hearings in
their case, a right to appear, a right to know the evidence against them, and a right to
have an attorney to represent their views. Far from being helpless victims
swallowed up by a paternalistic system, the law intends for parents to be present, to
be heard, and to participate.
Person-in-Their-Environment
Third, Social Work has always viewed human beings in their social and
environmental context, rather than solely as personalities. Basic social work
training includes instruction on family systems, environmental impacts, the
interplay of external systems, and an awareness of the person's unique ethnic and
socio-economic matrix. Strengths and deficits in the client's present environment
are viewed as potential sites for social work intervention, the results of which may
be as significantly therapeutic as any clinical insights the client gains from
psychotherapy.
Externals Monitored by the Court
Clearly this is a perspective shared by our courts. The psychological state, wishes,
and beliefs of an accused abusive parent may be elicited during a hearing, but the
resulting court orders will focus primarily on the family's external observable
world. For instance, the court may order the parents to seek safer housing, sign up
for appropriate day care, participate in AA meetings, prevent a violent relative from
visiting in their home, etc. The court's recognition of the part played by the
environment in the life of families is fully congruent with basic social work belief.
Teamwork
Fourth, social work champions consultation, shared decision making, and
teamwork, both clinically and administratively. The completely autonomous social
work clinician is the exception rather than the norm. From co-therapy to co-
leadership of groups to multi-disciplinary teams, social work demonstrates a
commitment to shared input and joint decision making.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
158
Conferencing
In much the same way, the court seeks input from many sources before decisions
are made, and often asks the parties to seek outside consultation and data. Does this
child need a Day Treatment Program or can his/her needs be met in a public school
classroom? Is this father a good candidate for sexual deviancy treatment? What
negative psychological consequences would this child suffer if parental rights were
terminated? Social workers often assume a leadership role here by initiating joint
conferences of all the parties in the case, and by encouraging the sharing of
professional opinion among those involved. In addition, social work excels in
identifying appropriate community resources that address the client's needs.
Services to Parents as Well as Kids
Whenever a social worker intervenes in a family having serious parent-child
problems, professional ethics and knowledge dictate a concern for the needs and
rights of the parents as well as the children. Social work methodologies provide
tools for enhancing the parental functioning as well as therapeutically supporting
the children. Child welfare practice recognizes that concern for the parents is
inseparable from true protection of the child due to the unique interdependence of
family members throughout the family's life cycle.
Balancing Rights of Parents and Children
Similarly, every state attempts, through its family laws and juvenile codes, to
provide for children's care and protection while at the same time protecting parents'
rights to liberty and privacy in their family life. Neither parents nor children are
seen as entitled to absolute precedence except in cases of extreme brutality.
Balancing the rights of parents and children is a primary goal of laws impacting the
family. Every state attempts to achieve an appropriate balance and to respect the
ultimate integrity of the family unit.
Personal Responsibility
Social work clinical practice is built on a recognition of interactive forces, the client
on the environment and the environment on the client. Social work treatment
with involuntary clients often aims at helping them see their own power to impact
situations, positively and negatively, and to acknowledge their own part in events
that may seem to them arbitrary, unfair, and undeserved. The social worker often
represents mainstream social values such as truthfulness, hard work, and
responsibility. While generally seen as a supportive profession, social work
frequently makes use of confrontation to help clients be more accountable and
responsible.
Rights with Responsibilities
In legal terms this concept is included in the phrase "rights are always accompanied
by responsibilities." For instance, by court order a parent may have a right to
"frequent and meaningful visits" with his/her child in placement. This would be
supported by the social worker's awareness of the continuing parent-child bond as
critical to the development of the child while in placement. If, however, the parent
North American Council on Adoptable Children
The Child Advocate's Legal Guide
159
appears for the visits intoxicated, or frequently arrives an hour late, or in other
observable ways shows a lack of responsibility which impacts the child, the right to
visit can be curtailed. Conversely, a neglectful parent whose child has been
removed from his/her care, can by demonstrating greater responsibility have the
right to custody of their child restored to them by the court.
Behavior Has Meaning
In addition to listening sensitively to what clients say, social workers take in to
account what clients actually do. The principle that behavior has meaning helps
social workers confront the parent who claims deep love for a child but refuses to
provide basic necessities, care and affection. The passive, dependent mother who
insists her child comes before everything else in her life and yet returns to live with
the man who abused the child is seen as demonstrating through behavior what she
cannot say in words.
Behavior Determines Outcome
The court relies on facts that can be observed and documented. Inquiring as to what
the parent or agency will do is only the beginning of the court's review of
responsibility. Court action generally is based on what the parties actually do and
can document. Court confrontation and standards of accountability often do
attribute meaning to a parent's failure to follow through. This can extend as far as
permanently terminating the rights of an absent or uncooperative parent. Behavior
and actions are the facts the court has available upon which to base its decisions,
more than wishes, promises, or excuses.
Parent-Child Bond Vital
The social work knowledge base about child development has heavily incorporated
the teachings of such theorists as Bowlby, Spitz, and Mahler in regard to parent-child
attachment. The child's attachment to a consistent, adequate parent is known to be
the single most essential ingredient to sound personality development. Without it,
no child can grow up to be a fully developed, responsible, and caring human adult.
Interruption of the parent-child relationship for any reason is known by our
profession to be potentially catastrophic for the child and thus to be avoided if at all
possible.
Children Belong with their Parents
Under our system of law, children belong with their parents and that relationship is
especially protected. For this reason, abuse or neglect may be legally substantiated in
the first phase of adjudication, but permanent termination of parents' rights cannot
occur until the second phase of the legal process and then only if rigorous criteria
are met. The law recognizes that a marginally adequate parent is still a parent. The
legal process for dissolving a parent-child relationship is deliberately demanding.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
160
Social Workers and Attorneys: Some Differences
Rather than fundamental value conflicts between social work profession and the
legal system, problems more often occur because of professional roles and
techniques. The goals can be identical but the routes taken to reach the goals are
often at odds. Social workers' complaints about their experiences in court frequently
center on the behavior of attorneys. A clear comprehension of the assumptions
guiding the behavior of attorneys and judges can help the social worker function
more effectively and with less stress in the legal process. But first, some sociological
background.
Demographically, social workers and attorneys occupy opposite ends of a spectrum
of status, income, education, and even gender. It is still true that attorneys are more
likely to be male, earning upper middle (or higher) incomes and perceived by society
as uniquely powerful. Social workers are more likely to be female, earning modest
or middle incomes, and viewed by society as relatively powerless. Small wonder
social workers feel intimidated! This status differential then becomes magnified
because the interactions the two have together take place predominantly on the
attorney's territory.
Feeling personally and professionally overshadowed, intimidated by an unfamiliar
and imposing setting (the courtroom), social workers can be thrown off course
emotionally and can become defensive. Knowledge in psycho-dynamics and social
systems functioning show that the defensive posture is a reactive- posture, limiting
their ability to act effectively on their beliefs and convictions. Reacting defensively
is likely to spark emotional turmoil and confusion. Thus social workers are put,
and put themselves, at a severe disadvantage in relation to attorneys.
The following discussion of professional differences between social workers and
attorneys is intended to help workers prepare themselves for what they will
experience in the legal arena. The expectation is that preparation can enhance
effectiveness. The legal arena is a social system and can be learned like any other.
Social workers are, by training and perhaps by nature, adept at picking up on social
cues, making diagnoses, and using good communication skills. These skills are all
transferable to work with attorneys and courts, and it is essential that child welfare
practice encompass this dimension of expertise. Without it, social work expertise in
child abuse and neglect, attachment and bonding, grief in children and adults,
developmental psychology, substance abuse, and mental illness will never reach the
ears of the court. Critical decisions about the lives of children and their families will
be made based on sketchy and often irrelevant information if the social worker's
input is poorly or hesitantly put forward. If he/she is not credible and authoritative,
the opinions of others will prevail. If he/she is poorly prepared or careless about
procedural details, cases involving vulnerable children will be lost on technical
legal grounds; the substantive issues will go unheard.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
161
Social work knowledge can be powerful at every stage of the legal process. One
challenge of permanency planning is to make sure all parties (judge, attorneys,
parents) know what the social worker knows.
A.
One significant difference, whose origin has sparked some
fascinating conjecture, is the conciliatory vs. combative posture of social
workers and attorneys. Certainly, attorneys are trained to view winning
the case as their preeminent goal, while social work training has no real
place for such competitiveness. Metaphors of violence abound in
courthouse corridors: "We blew her out of the water." "They hurt us
with that last witness." "He smells blood and is going in for the kill."
"May the best 'man' win." "That motion is a preemptive strike." "We're
not dead yet." "Go for the jugular."
The reality of our judiciary includes the winning-losing polarity, of
course, and social workers involved in child abuse cases must function in
this milieu. One of the social work profession's great contributions to
this scene, however, can be to constantly reframe the drama: from a
simplistic win/lose melodrama into a profound and complex human
drama in which no medals are given for "winning" unless the child and
family have truly been well served. Metaphors of a well-functioning
symphony orchestra all playing from the same music or an oil painting
being gradually completed can be used to counter the win-lose
battleground analogies.
Social workers as a group are more conciliatory and more inclusive in
their approach to problem solving than attorneys, and by injecting this
viewpoint into all dealings with attorneys they can modify the
atmosphere in which cases are argued. By no means should this be
construed to endorse softness, weakness, or relinquishment of power.
Quite the opposite! It means advocating assertively for one's beliefs and
expertise, not wholly taking on the view attorneys present.
B.
The linchpin of American jurisprudence (or American legal
culture) is dispute resolution through the adversary system. The
ramifications of this cultural orientation are profound. It means that the
court will be more concerned with fairness of process than
appropriateness of outcome. The court is there to insure that it's a fair
fight, i.e. that each party gets a fair hearing rather than that the best
outcome is achieved. Although concepts like "best interest" can
moderate the harshness of result the basic thrust will remain the same.
This perspective means that attorneys are professionally bound to focus
narrowly on such matters as jurisdiction, statutory language, rules of
evidence, and procedural technicalities. These are the realities of the case
from their perspective. Social workers tend to view the legal details as a
North American Council on Adoptable Children
The Child Advocate's Legal Guide
162
nuisance and to be uncomfortable with them. The broader, intuitively
seen, canvas is the social worker's reality. Again, the process of designing
and implementing a sound permanent plan for a child has need of both;
neither is truly sufficient. Social workers must become educated in the
legal culture and give it respect, and must also continually raise the
casework issues whenever they become obscured by "legalese."
Jurisdiction and procedure are important legal issues, but it is important
to frequently remind all parties of the importance to the child of a speedy
resolution of the case, the need for permanence, and the dangers of delay.
C.
Social work values client self-determination very highly and in
many areas of social work practice one might never intervene in a clients'
affairs unilaterally. Clearly, in a child protective case, the family's right to
self-determination has been temporarily suspended by legal authorities.
As the judicial process advances, the role of the court as final
arbitrator/decision maker looms larger and more menacingly and the
decisions to be made grow weightier. What can this mean to a social
worker trained to nurture self-determination in clients? Is this a totally
alien culture? Not really, although it can appear so.
In truth, parents can shape the case plan significantly, from beginning
to end of the process. They can also decide what steps they will make to
co-operate with or sabotage the plan. They have life-changing choices to
make, for themselves and their children. Social workers can and should
emphasize the self-determination remaining to the client within the legal
process and not allow all responsibility to pass from them.
D.
In the adversarial process, representation is a concept with
different meanings for attorneys than for social workers. In a juvenile
court hearing, the attorney for an abusive parent must be bound by
his/her client's stated wishes. If this means seeking supervised visits for
the parent with the child, the attorney must do so, vigorously, simply
because his/her client wants it.
It is specifically not the attorney's professional or ethical duty to
evaluate the risk factor to the child, or to use his/her own judgment as to
the possible motivation of the parent. The attorney's job is to ascertain
what will serve the client's wishes and to present that to the court in the
most persuasive way possible, even if this conflicts with the parents' own
best interests or that of a child. For an attorney, one's personal values and
reactions would be unprofessional to take into account because these
might weaken the representation the client has a right to receive. Some
attorneys who represent parents will refuse to see even a picture of the
child, to lessen the possibility of being moved by concern for the child.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
163
Some examples of language excerpted from the State of Washington's
Rules of Professional Conduct which are a mandatory for attorneys (and
similar to those of other states):
"A lawyer shall abide by a client's decisions concerning the objectives
of representation A lawyer shall abide by a client's decision whether to
accept an offer of settlement of a matter."
"A lawyer's representation of a client, including representation by
appointment, does not constitute an endorsement of the client's
political, economic, social or moral views or activities."
How is this behavior interpreted by the social worker? Trained to use
his/her intuitive and moral sense as well as to consider the needs of all
parties, the social worker can view legal advocacy as unethical and
unconscionable. The attorney's narrow focus violates social work
principles and offends the worker's moral concern for the child's well-
being. Out of this can come contempt for the attorney and disrespect for
him/her as a colleague and a professional. In this way, communications
and negotiations which could benefit all parties often break down.
This is a serious error and can cripple the worker's ability to participate
effectively in the legal process. It is not helpful for social workers to be so
immersed in their own professional culture that they cannot-function
well within the culture of another profession.
The reality social workers must face is one of accommodation to
another way of operating without forfeiting the opportunity to impact the
outcome. If social workers can join in the legal advocacy process in a
productive way, by using legal representation fully, confronting opposing
attorneys confidently, and preparing thoroughly for court, we can insure
that our expertise is heard and considered fully.
E.
A common area of friction in which social workers can be
penalized is in attitude toward tangible proof. Attorneys are trained to
question all assertions and allegations and to view the "paper trail" as
valuable because it will be admissible in court. In other words, a parent's
signed rent receipt becomes admissible legal evidence given far greater
weight than oral reports or assertions about payment of the rent, which
are hearsay and not admissible. Sometimes social workers feel personally
insulted when they are asked to produce documentary evidence. It can
seem like a questioning of one's truthfulness without good cause. Often
it seems like unnecessary nit-picking and legal stalling.
Social workers are trained to seek the "truth" through different means:
their technical knowledge and expertise, their interviewing skills,
North American Council on Adoptable Children
The Child Advocate's Legal Guide
164
through a recognition of known dynamics and patterns, and through
highly developed insight and intuition. Social workers are comfortable
proceeding on the basis of a well-thought-out hypothesis.
Attorneys need documentation in tangible forms, to satisfy the
stringent demand of the law that assertions be proved and rules of
evidence be followed. The attorney's reliance on admissible evidence can
cause the social worker extreme frustration, largely due to this totally
different concept of what "truth" is. To the social worker, the attorney
can seem almost naive in valuing only that which will be admissible. To
the attorney, the social worker can seem arrogant by expecting others to
treat his/her pronouncements as fact, without independent
corroboration.
When the social worker makes good use of the documentation in
court, however, it becomes obvious what a powerful too written evidence
can be. An example would be a psychological evaluation report showing
how damaged a child is due to parental neglect (as opposed to the social
worker's unsupported "impression"). Another example might be copies
of letters sent to an absent parent which were neither acknowledged nor
returned to the agency. Such letters carry more weight than just a
worker's statement, "I told him to keep in touch with me but he did not."
F.
Much of what occurs in case planning and goal setting takes
place outside the courtroom in negotiating sessions between the parties.
Negotiation is a specific tool attorneys make conscious use of in their
everyday work. Social workers use negotiation too, but with far less
training and comfort. In a typical child placement case, often the parent's
attorney will demand far more than he/she believes is reasonable, simply
as a strong starting point in the bargaining. For instance, he/she will
demand 48 hour unsupervised visits beginning immediately, with no
prior evaluations or safeguards. The argument will be dramatic without
any offer of compromise. Questions of risk to the child, or any emotional
consequences, will be rebuffed and even ridiculed.
Following this impassioned plea, the attorney expects to hear the social
worker (or the attorney for the agency) demand that there be no visits
whatever until expert witnesses can guarantee the child's complete safety
and comfort and then that the visits be brief, infrequent, and closely
supervised by agency personnel. Following this expected counter-
argument, the attorney then moves into negotiating a mutually agreeable
compromise, or, failing that, asks the judge to rule.
A typical case plan outcome might include brief, supervised visits
during which the child's reactions to the parent are monitored and
documented by a professional with concurrent psychological evaluations
North American Council on Adoptable Children
The Child Advocate's Legal Guide
165
of the parent and the child to establish diagnoses and recommended
treatment plans. If all parties are then satisfied with the results, the visits
would be increased in length and be closely supervised, but with
continuing documentation of the child's reactions and regular reporting
as to the progress of treatment being carried out.
Often the plan that is developed through this intense adversarial
process is one that the social worker could have suggested much earlier.
At that earlier point, however, the parents' attorney could not have
agreed to the plan because he/she would not yet have done his/her job of
voicing the client's wishes. From the attorney's professional point of
view, it would have been unethical and a failure to not advocate for the
client, even knowing that their arguments would very likely be futile.
Social workers often mistake an attorney's initial argument as his/her
true position on the issue and become outraged by the unreasonableness
and irresponsibility it seems to reveal.
What is frequently not understood by the social worker is the
attorney's expectation that all parties will advocate for their respective
clients in this same way, including the social worker, and that out of this
adversarial process an appropriate negotiated settlement will be reached.
This is a much different process than most social workers feel comfortable
with, much more confrontive, challenging, and abrasive. Furthermore,
in the world of attorneys, it is never taken personally, but in fact is often
relished as stimulating intellectual exercise. How can a conciliatory,
enabling profession like social work stand firm in this alien world? Must
social workers learn to argue like lawyers?
Some sophistication in the area of negotiation can enable social
workers to transform sterile or tangential argument into true problem-
solving.
For example, in the early phase of case planning, shortly after a court
finding of abuse or neglect, all parties meet to draw the outlines of the
service plan to reunify the family. Rather than being "soft" or overly
sympathetic with the parents, or "hard" and punitive with the parents,
the appropriate position is to be "hard" on the problem. The problem as
it can be stated during the conference is that Johnny is in foster care which
is a traumatic, potentially life-changing event. Without rapid progress on
the part of the parents, Johnny will suffer even greater damage to his self-
esteem, his developmental tasks, and his attachment to his parents. The
problem is serious and must be solved by the intensive efforts of all.
Johnny's placement is also harmful to his parents because it is a crisis for
them as well as being a threat to the well-being of their family and the
quality of their relationship with Johnny. The longer foster care
North American Council on Adoptable Children
The Child Advocate's Legal Guide
166
continues, the greater the potential harm to all family members. The goal
is early decision-making.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
167
Questions for Discussion
1.
How long are children in foster care, on the average, before a decision is made
to terminate parental rights?
2.
Who makes the initial decision to free a child for adoption?
3.
Is it a team decision?
4.
Are permanency decisions made at the six month and twelve month reviews?
5.
At what point does the agency attorney become involved in the termination
decision?
6.
What is the supervisor's role in monitoring permanency planning for children
in foster care?
7.
Are caseworkers clear on the agency's criteria for changing a child's
permanency planning goal from reunification to adoption?
8.
Are caseworkers clear on the legal requirements of filing a termination of
parental rights action?
9.
How does the attorney evaluate a case referred for termination of parental
rights?
10. Do service providers, the child's attorney, or CASA have input in the
termination decision?
11. Is there any staff position that coordinates permanency planning decisions and
reviews?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
168
Chapter Sixteen
Helping Children and Saving Money: Data Collection and Analysis
One of the advantages of developing a project to reduce delays in freeing and placing
foster children for adoption is that it not only benefits the children, it also saves the
child welfare agency money. The cost of maintaining one child in a foster family for
one year has been estimated to be from $10,000 to $20,000. For children whose level
of care is higher, such as those in residential treatment facilities or an orphanage,
annual costs may be $25,000 to $50,000. By reducing the average length of stays in
care and the total number of children in foster care, states can save millions of
dollars.
Dollars:
For example, the ABA's Termination Barriers Project, which cost $200,000 over two-
years, saved over two million dollars in foster care costs. We calculated these
savings by estimating the cost of one year in foster care in New York State. During
the project, the New York State Legislature considered legislation to provide
housing subsidies for parents so that children could be returned home from foster
care. As part of that process, they calculated the average cost of one year of foster
care as $10,000 to $15,000. We used the more conservative estimate of $10,000 for
our calculations.
We then compared the pre- and post-project data for the average time from
placement in foster care to a final order of termination of parental rights. In
Onondaga County, the average time in placement decreased from 4.6 years to 3.2
years, a difference of 1.4 years. We also found that 137 children had termination
petitions filed in their case during the project.
To calculate the savings, we assumed that without the project, those 137 children
would have stayed in foster care for another 1.4 years without the Termination
Barriers Project. We multiplied the cost of family-foster care ($10,000/year) by the
reduction in the length of stay (1.4 years) and the number of children affected (137);
we estimated a cost savings of $1,918,000. We consider this a conservative estimate
because it does not take into account that without the project, some of these children
may have "aged out" of foster care without a chance for adoption.
To demonstrate the potential for foster care savings in your locality, determine the
average cost of a year in foster care. Do not stop at the monthly payments made
directly to foster parents to care for a child. Include the costs of (1) the caseworker,
and supervisor, (2) administrative and legal time, (3) the cost of services,
evaluations and reviews, and (4) the cost of court, judges, and clerks. Your child
welfare agency budget director may be able to give you accurate estimates. In
addition, examine your state's federal Title IV-E (foster care) reimbursement request
North American Council on Adoptable Children
The Child Advocate's Legal Guide
169
to determine the total of federal and local money spent on foster care and divide it
by the number of children in foster care in the state. An example of Iowa foster care
cost comparisons is included in the protocol section.
Data Collection
When developing your project, it is important to "build in" certain mechanisms to
measure your progress. It is very difficult to get accurate data on the length of time
children remain in foster care, as well as specific information on the length of each
step in the termination/adoption process. We recommend that you conduct some
case reviews to collect your initial and final timelines. Starting in 1995, states are
scheduled to start reporting foster care and adoption statistics via a system named
AFCAR. Final and full reporting is due in 1997.
In order to collect relevant information from our review of case files for the ABA
Termination Barriers Project, we developed an instrument for recording specific
information from each file. Because of the large number of cases we wanted to read
for the study, we focused on quantitative information that could be easily found in
the case records.
The instrument was designed to collect three different types of information. First,
we wanted data about the type of cases we were reviewing. What was the reason the
children came into care? Did the family problems include substance abuse, mental
illness, or incarceration? What grounds were alleged for termination? Second, we
wanted the date that specific events occurred in order to calculate time intervals for
the termination process. Finally, we left a section at the end for open-ended
commentary so that we could comment on specific problems and delays we found
in particular cases.
Two project members spent one week in each county reviewing the selected case
files. It took us approximately one hour per case to collect the information for the
data collection instrument. Our original goal was to examine 50 cases in each
county that had gone through the termination process in the last year. However, we
had to modify this goal due to the small number of completed termination actions
in both counties.
In Onondaga County, we chose to survey all cases for which a petition for
termination of parental rights had been filed in the last two years (51 cases). When
more than one child was named in the petition, data was taken for each child. We
used the legal files to complete the data collection instrument, although there was
some follow-up with other agency files. The child welfare agency was also able to
collect some of the routine information for the instrument (e.g. gender, race, date of
birth) from the department's database.
In Chemung County, we reviewed all cases in which a child had been freed for
adoption either by a termination order or surrender in the last five years, (12 cases).
North American Council on Adoptable Children
The Child Advocate's Legal Guide
170
To supplement our information, we also examined all cases in which a child had
been in foster care more than one year, (37 cases). We think that these cases provide
insight into the reasons why so few termination cases were filed. When more than
one child in the family was in placement, data was taken for each child. Chemung
County Department of Social Services records contain both legal and casework
documentation so we examined the entire file. Some additional information was
obtained from the caseworker assigned to the case.
The information we collected in the case reviews was analyzed using the database
capabilities of Lotus 123. We were more interested in obtaining approximate data
quickly than ensuring that our study met the rigors of statistical analysis, therefore,
our data analysis was relatively simple. The spreadsheet we developed calculated
time intervals and averages for each of the steps in the termination process. It also
provided a profile of the cases we reviewed based on many factors such as the child's
age, whether substance abuse was a family problem, and whether one or both
parents were missing at the time the petition was filed.
The database used also calculated average time intervals for all cases and for cases
exhibiting certain characteristics, such as those brought on the grounds of
permanent neglect. This information gave us a basis of comparison to determine
whether certain types of cases took longer to proceed to termination. We also
computed the percentage of cases that were appealed, the average number of
adjournments, and the percentage of cases in which a new attorney was appointed
after the proceeding had begun.
Evaluation:
At the end of our two year project, we reviewed all cases in which a termination
petition had been filed during the project period. We used the same data collection
instrument so were able to compare our initial time periods with those achieved
under project reforms.
Our analysis shows that foster children in Onondaga who should be freed for
adoption are being identified sooner. Prior to the project, children spent an average
of 36 months in care before being given a goal of "free for adoption." As a result of
the Termination Barriers Project, the average was reduced to 30 months. In
addition, the average length of time from placement to termination for children
whose parents abused drugs or alcohol was 4.9 years before the project, but was 2.8
years during the project, (43% reduction). For children with mentally ill parents, the
average time in care decreases from 8.3 to 4.8 years, (42% reduction). Children with
missing parents now wait 3.6 years to be freed for adoption, instead of 4.8 years and
children with incarcerated parents are freed in 2.8 years, compared to the average 3.1
years before the project.
As we have attempted to show, data collection is critical to justify retaining the
reforms you develop during your project. Although the Termination Barriers
North American Council on Adoptable Children
The Child Advocate's Legal Guide
171
Project in Onondaga County ended four years ago, the department of social services
has maintained funding for the Permanency Planning Specialist position, as well as
the Permanency Planning Review Panel. The institutionalization of these changes
was made possible by our documentation of progress and cost savings to the county.
Evaluation in the NACAC Collaborative Court Education Project
In the Collaborative Court Education project we wanted to track (1) progress made;
(2) difficulties encountered; (3) ways in which the context for our work changed (e.g.
new laws or sensational cases); and (4) what was learned about how to change the
court and child welfare systems so that kids moved out of foster care quickly into
permanent, stable homes.
While evaluation is sometimes portrayed as highly technical and "scientific," in our
experience a more common-sense approach seemed more useful. A courtroom
image - "How can we tell when we're making headway?" "What evidence will
indicate that we're doing good?" "What clues in our experience and our situation
will point us toward greater effectiveness?" - may be more helpful than the image
of evaluation as some kind of scientific experiment.
There are good reasons to track and reflect on signs of progress. It can help:
sustain your momentum and generate strategies for greater
effectiveness;
explain your work to others and persuade them of your effectiveness.
(This is critical to getting others, including potential volunteers, the
court and welfare systems, the media, the public in your community,
and funders to take you seriously and to join in or support your
efforts);
raise the level of practice across sites in any project, by sharing lessons
learned; and
draw attention to the need for further systems change by depicting
and defining the extent of the problem you are working to change.
Evaluation tools can take many forms. The NACAC Court Project Evaluation form
is included in the protocol section. It is particularly valuable because it uses
secondary factors to help with evaluation even when other data is unavailable.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
172
Sample Protocols and Forms
Sample Data Collection Instrument from the ABA NY Project
1. General Information
1.1. child's name
1.2. date of birth (__/__/__)
1.3. gender (M/F)
1.4. race (White/Black/Biracial/Hispanic/Indian/Other)
1.5. reason for placement
1.5.1. physical abuse (Y/N)
1.5.2. sex abuse (Y/N)
1.5.3. neglect (Y/N)
1.5.4. voluntary (Y/N)
1.6. parent (mother/father/both)
1.6.1. missing (Y/N)
1.6.2. substance abuse (Y/N)
1.6.3. developmental disability (Y/N)
1.6.4. mental illness (Y/N)
1.6.5. incarcerated (Y/N)
1.6.6. domestic violence (Y/N)
1.7. grounds for termination
1.7.1. abandonment (Y/N)
1.7.2. death (Y/N)
1.7.3. mental illness (Y/N)
1.7.4. mental retardation (Y/N)
1.7.5. permanent neglect (Y/N)
1.7.6. severe abuse (Y/N)
1.7.7. repeated abuse (Y/N)
2. Dates
2.1. initial placement (__/_/___)
2.1.1. latest placement ( / / )
2.2. decision to terminate made ( / / )
2.3. referral to attorney (___/ / )
2.4. meeting with attorney ( / / )
2.5. petition drafted ( / / )
2.6. petition filed ( / / )
2.7. service completed ( / / )
2.7.1. service by publication (Y/N)
2.8. initial appearance (__/__/__)
2.9. subsequent pre-trial court appearances (Y/N) ( / / )
( / / ) ( / / ) ( / / )
( / / ) ( / / )
2.10. pretrial conference (Y/N) ( / / )
2.11. discovery (Y/N):
North American Council on Adoptable Children
The Child Advocate's Legal Guide
173
2.12. continuances (Y/N) ( / / ) ( / / ) ( / / )
( / / ) ( / / ) ( / / )
( / / ) ( / / )
2.13. adjudication hearing
(__/_/___)
2.14. adjudication order issued (
/
/
)
2.15. disposition hearing
(__/_______)
2.16. termination order issued ( / / )
2.17. appeal (Y/N)
2.17.1. appeal filed (__/_/___)
2.17.2. appeal perfected (
/
/
)
2.17.3. briefs submitted ( / / )
2.17.4. appeal resolved ( / /
)
2.18. outcome
2.18.1.
surrender (Y/N)
2.18.2.
admission (Y/N)
2.18.3.
default (Y/N)
2.18.4.
termination ordered by court (Y/N)
2.18.5.
dismissal (Y/N)
2.18.6.
suspended judgment (Y/N) period:
2.18.7.
reserved decision (Y/N) period:
2.18.8.
pending (Y/N)
3. Open Ended Commentary (problems causing delays)
North American Council on Adoptable Children
The Child Advocate's Legal Guide
174
Collaborative Court Education Project Evaluation Format
Moving Children into Permanent Homes:
Indicators of Progress in Systems Change
Claims (Project Goals):
1.
Higher priority given to permanent resolution of foster care cases so that
kids move into permanent homes faster.
2.
Higher priority give to stabilization of kids' home lives, through fewer
moves from one home to another.
Primary indicators of progress toward goals
(strongest evidence in support of claims):
1.
Number of TPRs (Termination of Parental Rights) granted. Objective:
increase the number of TPRs.
Supplements:
Number of TPR petitions filed.
Length of time between petition filing date and grant date.
Voluntary TPRs, and involuntary TPRs - which is growing
faster?
Is there any pattern or profile to the cases where TPRs happen,
and where they don't?
2.
Average length of stay in out-of-home care. Objective: reduce the average
length of stay.
Supplements:
What's the profile of those who stay in out-of-home
care longest?
Where are there bulges or dips in the population - these
could signal "take action" points by the system.
Divide into quartiles or other clusters that may give clues to
where kids are at in the system and when kids are most likely to
get out.
3.
Average number of out-of-home care placement sites. Goal: reduce the
number of moves a child experiences.
Supplements:
Same as for average length of stay.
Who gets moved most often?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
175
4.
Number of adoptions of children formerly in out-of-home care. Objective:
increase the number of children joining permanent families through
adoption instead of staying in out-of-home care this is the next stage
beyond TPR; TPR just frees a child to be adopted).
Supplements:
Length of time between TPR and adoption.
Secondary indicators (intermediate signs of progress):
Many of these indicators can be collected directly by you, rather than forwarded to
you by systems officials. This may allow you to work with more recent data.
I.
Higher, clearer priority in court system in favor of permanent resolutions and
increased home stability. Adoption is a more visible and valued option.
a.
Judge does not have to consider a child's adoptability when deciding
whether to free a child for adoption. [Law/policy review]
b.
Judges ask less often, in hearings: "Is this child adoptable?"
[Courtroom observation]
C.
Judges ask more often: "Why don't we consider adoption in this case?"
[Courtroom observation]
d.
Laws, policies and procedures make fewer contradictory demands on
state adoption services. [Law/policy review, courtroom observation]
e.
Cases involving children are expedited, streamlined: hearings are
scheduled and conducted more quickly with fewer delays (e.g. child
cases automatically rise to top of docket; greater effort by case
participants to arrange their schedules to permit hearings to happen
quickly). [Law/policy review, courtroom observation]
f.
Improved record keeping and access to records (TPRs, length of
stay/child, # moves/child, and case documentation re: basis for
action/inaction). [Law/policy/records review]
II.
Higher, clearer priority in child welfare systems in favor of permanent
resolutions and increased home stability. Adoption is a more visible and
valued option.
a.
More counseling of birth families to consider TPR and adoption.
[Law/policy review, staff/case records review]
b.
More training of staff to consider adoption and TPR. [Law/policy
review, staff/agency records review]
C.
Policies give clearer, higher priority to TPR and adoption. [Policy
review]
d.
Increased staffing, funding, and other resources for Legal Division of
Department of Social Services to accelerate processing of TPRs. (e.g.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
176
more attorneys, paralegals, clericals). [Review laws, policies, budget,
staff chart]
e.
More staff time and other resource allocated to recruitment and
preparation for adoptive families. [Law/policy review, budget staff role
review]
f.
Lowered barriers to would-be adoptive families: lowered fees, more
culturally-appropriate outreach and orientation. [Law/policy review,
budget/staff review]
g.
More supports for adoptive families: post-placement counseling,
referral, financial help, etc. [Law/policy review, budget/staff review]
h.
More adoptive families are available, willing and qualified to adopt
waiting children. [Records review]
i.
Improved record keeping and access to records (TPRs, length of
stay/child, #moves/child, and case documentation concerning the
basis for action/inaction). [Law/policy/records review]
North American Council on Adoptable Children
The Child Advocate's Legal Guide
177
Iowa Foster Care and Adoption
Population and Expenditures
Average
Total
Average Cost
% Budget by
North American Council on Adoptable Children
Populations
Expenditures
Per Child
Category
FY 1993
Family Foster Care
2,058
$20,500,000
$9,961
23.87%
Group Care
1,312
$40,240,000
$30,671
46.86%
Shelter Care
270
$7,250,000
$26,852
8.44%
Independent Living
105
$1,580,000
$15,048
1.84%
Adoption
1,364
$4,560,000
$3,343
5.31%
Totals
5,109
$74,130,000
$14,510
FY 1994
Family Foster Care
2,247
$22,470,000
$10,000
21.22%
The Child Advocate's Legal Guide
Group Care
1,086
$43,890,000
$40,414
41.45%
Shelter Care
270
$8,130,000
$30,111
7.68%
Independent Living
110
$2,360,000
$21,455
2.23%
Adoption
1,479
$5,780,000
$3,908
5.46%
Totals
5,129
$82,630,000
$15,915
Children in Foster Care FY 1993
3,745
Foster Children with TPR and no documented
finalized adoption as of 10/92
687
% Foster Children available for adoption
18.34%
Savings if all foster children adopted Low
$4,546,579
High
$10,465,525
Analysis prepared by: North American Council on Adoptable Children
178
970 Raymond Avenue, Suite 106
St. Paul, MN 55114
612-644-3036
12-Mar-94
Questions for Discussion
1.
How fast are children in this jurisdiction getting through the system to
permanency?
2.
What child welfare data is missing and how can it be collected?
3.
What is the local cost of keeping children in foster care (including
administrative, Medicaid and direct care costs)?
4.
What are the local barriers which slow termination and adoption?
5.
Can the personnel and resources be put together to form a collaborative team to
work on barriers to permanence?
North American Council on Adoptable Children
The Child Advocate's Legal Guide
179
Chapter Seventeen
Funding Your Project
If you would like to obtain funding for a project to reduce delays in adoption, there
are a number of different funding sources that you should consider. These include:
Federal Title IV-E (foster care); Title IV-B (child welfare services); Children's Justice
Act; Family Support and Family Preservation Act; state, county, and city funding;
and private foundations.
Title IV-E of the Social Security Act, a provision of the Adoption Assistance and
Child Welfare Act of 1980 (P.L. 96-272), provides for federal funding for costs
necessary for "the proper and efficient administration" of the state plan relating to
children in foster care. The federal government will reimburse the child welfare
agency 50% of administrative costs relating to foster care and 75% of training costs
for child welfare agency staff. A project with the child welfare agency to reduce
termination and adoption delays and add new staff positions such as permanency
planning specialist or termination attorney could be partially funded through this
program. Training programs on termination law and other issues are only eligible
for reimbursement if the participants are child welfare agency employees.
The funds a state may receive through Title IV-E are an entitlement; that is, there is
no limit on the amount of federal reimbursement under this program as long as the
state or locality has contributed their share of the costs. Some states have opted to
"cap" or set a limit to their Title IV-E funds from the federal government to past
reimbursement levels. In exchange for this commitment, the state may keep any
"savings" it may reap from cost-cutting measures. While the foster care cap money
has been used to fund projects to reduce children's stay in foster care, it is not
recommended because of the uncertainty about potential increases in the number of
children who may need to enter foster care.
Title IV-B of the Social Security Act, also a provision of the Adoption Assistance and
Child Welfare Act of 1980 (P.L. 96-272), provides federal funding for child welfare
services. Unlike Title IV-E money, the amount each state receives is set by the
federal government. This money may be used for a wide range of services related to
children and families involved in the child welfare system. It potentially could be
used for special services related to reducing delays in foster care, particularly
intensive programs to reunify families. These services must be provided through
the child welfare agency or through a contract with the child welfare agency.
The Children's Justice Act (CJA) grants are distributed annually to states to fund
special programs to assist child victims of abuse. In 1994, CJA grants ranged from
$35,000 to $1,167,004 (California). The program is administered by the National
Center on Child Abuse and Neglect (NCCAN). Most proposals involve special
North American Council on Adoptable Children
The Child Advocate's Legal Guide
180
witness protection programs or multidisciplinary sex abuse teams. It is possible,
however, that a grant designed to expedite termination of severely abused children
might be considered. Court improvement projects are also funded through CJA
grants. However, only state child welfare agencies are eligible to apply.
The most recent source of federal funding in the foster care area is the Grants to
State Courts under the Family Support and Family Preservation Act. These grants
were due in December 1994, however, more than half the states asked for
extensions. They are designed to help state courts focus on the problems created by a
rapidly escalating judicial caseload, more difficult cases (e.g. drug-exposed children),
and the growing complexity of foster care and adoption court proceedings. A total of
$35 million is available for fiscal year 1995. Check to see about refunding for 1996.
These grants are entitlements and every state court system that files a valid
application will receive a grant. In the first year, court assessments will be
conducted, and in the following years reforms implemented. Only the highest court
of each state may file an application, issues such as termination delays can be
included in the application. In addition, these issues can be raised during the
assessment process.
States, counties, and municipalities have also funded projects to reduce delays in
freeing children for adoption. You may point out the potential cost-savings of such
a program in addition to the benefits for children (see chapter on "Helping Children
and Saving Money").
Finally, private foundations often fund programs to improve the lives of abused
and neglected children. Major funders in this area include the Edna McConnell
Clark Foundation, the W.K. Kellogg Foundation, the Dave Thomas Foundation
(Wendy's), and the Casey Foundation. The Foundation Grants Index is a good
resource because it indexes and analyzes recent foundation grants in 26 broad
categories, including "Children and Youth." Also, it is useful to research local
foundations that fund service programs in your community. Because foundations
prefer time-limited, results-oriented grants, a project to reduce court delays in foster
care, termination, and adoption cases may appeal to grantors.
Federal grant requests for proposals (RFP's) are found in the federal register. The
Foundation Grants Index can be found in most public libraries. Contact your State
Department of Welfare or Human Services for state RFP's.
Federal and state RFP's will tell you exactly what proposal content is required and in
what form. Follow the instructions to the letter. Good proposals have not been
funded due to missed deadlines, extra length, and unclear project goals.
Foundations generally welcome a short letter of inquiry and they will review the
letter to determine if your general ideas are within their funding priorities. It is a
good idea to call your foundation directly to discuss your proposal; they may either
encourage your application or direct you elsewhere.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
181
If you do not need a great deal of help, sometimes businesses or agencies can
provide resources. For example, many companies have in-house printing plants
and can print materials during slack periods. Agencies often have cadres of
volunteers who can sort and collate or door-knock. Don't forget to look at your own
work-places for help.
The key to effective fundraising is to formalize your group. Generally you will have
to be incorporated (very simple to do in most states - even non-lawyers can do it)
and show non-profit tax status (501C3 - also easy to do). If you cannot formally
organize, sometimes other non-profits can act as a fiscal agent for you, handling the
accounting part of your fundraising.
TOgEthEr
North American Council on Adoptable Children
The Child Advocate's Legal Guide
182
Sample Protocols and Forms
Foundation Request Letter
Date
Individual contact person
"X" Foundation
Dear
:
It has been a pleasure working with you recently. The Foundation's commitment to
waiting children is truly exciting, and we deeply appreciate your interest in our
work. As we discussed, NACAC is requesting $65,000 from the X Foundation to
fund a one-year Minority Parent Group Development Project.
The North American Council on Adoptable Children (NACAC), founded by
adoptive parents in 1974, always has recognized the effectiveness of citizen
volunteers in the adoption community. Parent Groups come together for mutual
support and often move on to a more sophisticated level, providing services to the
wider community and eventually becoming advocates for system change. It is an
essential part of NACAC's mission to provide information and support to these
groups, empowering them to work effectively in their communities. The
importance of the work of adoptive parent groups is widely recognized by
professionals and adoptive parents across the country. Yet, despite the
disproportionate number of minority children waiting for adoption, minority
parents have been historically under-represented in the parent group movement.
A disturbing fact about special needs adoption today is that there are significant
barriers facing families of color seeking to adopt. For an in-depth discussion and
research on this issue, see our 1991 report on Barriers to Same Race Placement. In
reality, minority adoptive parents often are not retained even if they are recruited
for the adoption process.
It is the overall objective of this proposal to increase the percentage of prospective
minority adoptive parents who go on to complete the adoption process. This will be
accomplished by identifying minority adoptive parent leaders and emerging groups
in eight target communities and empowering them to overcome organizational
and/or institutional barriers that prevent or discourage families of color seeking to
adopt.
We propose to do the following:
1) Identify potential minority adoptive parent leaders in eight communities which
contain large numbers of waiting minority children. NACAC, through its national
training conference and ongoing work with adoptive parents, has contact with
North American Council on Adoptable Children
The Child Advocate's Legal Guide
183
many such individuals who would be willing and able to advocate in their
communities.
Currently these individuals simply do not have the training or resources to allow
them to become advocates. NACAC has potential participants for this project in
over 20 cities throughout the country. Target communities with strong potential
leaders include: Washington, D.C., Houston, Oakland, St. Petersburg, Pittsburgh,
Minneapolis, and two locations in Los Angeles. At least one of the Los Angeles sites
and the Washington, D.C. group will reach out to the Hispanic community, and all
sites will involve African-American outreach. In addition, at least two other sites
will be identified.
We are in regular communication with staff of the U.S. Department of Health and
Human Services (HHS), Administration for Children and Families, to ensure that
we are not duplicating efforts of their recently funded minority recruitment projects.
Rather, we will work closely with HHS staff throughout the project to utilize the
experience and expertise of current and past grantees. NACAC staff regularly attend
the annual HHS Grantees' meeting, and already have ongoing relationships with
many individuals and organizations working in this area, both past and present.
We will duplicate effective recruitment and retention programs and strategies
wherever appropriate.
2)
Identified minority parent leaders will be brought together for initial training
in Minneapolis (June 1995). The eight individuals will meet with members of
NACAC's board of directors, staff, and other active minority parent leaders,
including Ray Moore of Dayton Area Minority Adoptive Parents (DAMAP).
Training will provide information, support, and skill-building techniques.
Specifically, sessions will outline a work plan that includes building and retaining
parent group members, approaching and working with public and private agencies,
and outlining components of an effective buddy program. The importance of data
collection will be emphasized, and networking with community leaders, other
service systems, and the media will be stressed.
3)
Once they have returned to their local communities, identified leaders will
work to establish a viable group of minority adoptive parents. Up to $1,250 will be
available during the first year for costs such as postage and printing, as well as fees
for incorporation. Technical assistance and support from NACAC board and staff
will be available to the leaders throughout the grant period, and it is expected that at
least one technical assistance visit per site will take place between July and
November 1995. NACAC staff will help approach public and private agencies
regarding collaboration. Staff will also provide buddy training to parent groups once
they are established in local communities.
Emerging groups will eventually form partnerships with local public or private
placement agencies. Group members will participate in new parent orientation, and
a "buddy" program will be established. A buddy program matches an experienced
North American Council on Adoptable Children
The Child Advocate's Legal Guide
184
adoptive parent with a family just beginning the adoption process. The program
recognizes that the best "tool" to recruit a new family is a successful, intact adoptive
family, and that a support community is a significant component of assuring that
success. Adoptive parents provide a "safe" source of information, reassurance, and
friendship to a family working its way through the homestudy and placement
process.
The support group as a whole will also advocate for systemic changes if there are
significant barriers to making the adoption process "user-friendly" for families of
color. (A set of handouts used with buddy training is appended.)
4)
Identified parent leaders will be brought together again to attend the NACAC
national conference in Norfolk, Virginia (August 1995). Leaders will participate in
the conference and will also meet as a small group for a full day prior to the
conference. During this time they will share experiences, exchange information and
advice, and develop work plans for the remainder of the grant period.
5)
Parent group members will be provided with written materials which explain
a variety of adoption related programs, policies, and issues, including adoption
assistance and post-legal adoption support. NACAC has developed a wide range of
resources, including a Parent Group Manual, information on subsidy, and a
curriculum for adoptive families - Family Preservation: The Second Time Around.
All of these materials are designed to make information and advice available to
ensure that potential adoptions do not fail because of a lack of needed resources.
6)
Emerging groups will approach chambers of commerce and local businesses
together in order to develop adoption resources in their community. Businesses
will be asked to sponsor adoption "parties" and other recruitment/retention
activities. Adoption parties bring together prospective adoptive parents and waiting
children in an event that is both fun for participants and an effective media
recruitment tool. These events can also be held in conjunction with National
Adoption Awareness Month in November.
7)
The success of the project will be judged by the numbers of minority families
who express interest in adoption, and the number of potential minority adoptive
families who actually finalize an adoption. Groups will work with local agencies to
collect this data both prior to the project and during each project year. We predict
that, once a buddy program is in place, there will be a significant rise in the number
of minority families who actually complete the adoption process. Each group will
provide support and "buddy" relationships with a minimum of ten families, seeing
them through the adoption process. The project total, then, will ensure a
minimum of 80 placements of special needs children with minority families.
8)
Throughout the grant period, local groups will begin to establish
relationships with other groups and organizations in their local communities.
Celebrities will be asked to urge business leaders to form local adoption support
North American Council on Adoptable Children
The Child Advocate's Legal Guide
185
committees that could raise funds for the adoption community. Thus, minority
parent groups and their programs will be funded locally once the grant period ends.
9)
NACAC staff will work with X Foundation staff to develop of a publication
similar to Adoption Works For Everyone: A Beginner's Guide to Adoption
specifically targeted to prospective African-American adoptive families. Project staff
will work with sites to develop and test appropriate material for inclusion in the
booklet. The Foundation will print and distribute the publication with funds not
included in this project proposal.
We are very excited about this project. We know the impact an active and
committed adoptive parent group can have in a community. We already know
minority adoptive parents who are willing and eager to donate time and energy to
this issue. We know what barriers prevent minority families from adopting. With
your help NACAC can provide the expertise, information, models and resources
needed to empower these leaders and their groups to eliminate barriers that keep
families and children apart.
I would be delighted to share more about specific cases or communities where we
have done similar work. Or, if you would like, you could talk directly with
individuals or groups who have been involved in such NACAC projects in the past.
We know we have the capacity to do this work, and to do it well. However, we
have never had the resources - staff time or seed monies - available to undertake a
project of this magnitude and scope. This project has the potential to have life-
changing impact for large numbers of waiting children and families of color.
Please let me know if you would like additional information or have specific
questions. And, again, thank you for your commitment to vulnerable children. We
look forward to hearing from you soon.
Sincerely,
Joe Kroll
Enclosures: Minority Parent Group Development Budget
Project Calendar
North American Council on Adoptable Children
The Child Advocate's Legal Guide
186
Chapter Eighteen
This chapter is included in the Advocates Guide as a report to the
people who participated in the Collaborative Court Education Project
and the citizens who funded it. While it may not be as helpful to other
readers, we hope that the section which details individual team efforts
will through its recitation of success, encourage other people to
organize to work for positive change.
Collaborative Court Education Project Final Report - April, 1995
Since its beginning in October, 1992, the Collaborative Court Education Project
has gone through several stages. Briefly these included: (1) recruitment of
teams; (2) basic data collection; (3) team training; (4) publications; (5) corollary
activities; (6) local team publicity; and (7) team work plan and final report
summaries.
1.
Recruitment and Selection of Interdisciplinary Team Participants
Project staff selected 24 volunteer advocacy teams from 23 jurisdictions
nationwide to participate in two, two-day training sessions. The selection
process took into account background information provided in jurisdictional
questionnaires. Selectors attempted to maintain geographical diversity
among groups and a balance between urban and rural teams.
2.
Basic Data collection
Team members were asked to submit baseline data to assist us in evaluating
long term performance. The universal nature (i.e., equally prevalent in
urban and rural areas, wealthy and poor districts, etc.) of the systemic barriers
facing children in out-of-home care in this country proved evident. In
virtually every district providing a report, 40-50% of the children in substitute
care (as of the last day of the most recent reporting period) had been there at
least two years. Lengths of time in care of greater than five years were not at
all uncommon. Clearly, significant room for improvement in permanency
planning/action processes exists in most jurisdictions.
3.
Team Training
In total, 120 persons participated in the two training events, twenty more
team members than anticipated.
Fifty-seven participants were trained in Boston on October 22-23, 1993. Local
teams represented the following states: CT, DC, FL(2), MA(3), NC, NY, OH,
PA(2). By design, the teams were both racially and professionally diverse and
North American Council on Adoptable Children
The Child Advocate's Legal Guide
187
most are composed of adoptive parents, social workers, and attorneys.
Several agency heads attended the training; as did two judges and one
psychiatrist.
The remaining 63 volunteers were trained in Chicago on November 7-8, 1993.
Local teams represented the following states: AZ, CA, IA, IL(2), MI(2), MN,
NM, NV, WA, WI. Four judges, including a Federal Court Magistrate,
attended. Since the two trainings, membership on most teams has increased
greatly.
Participants were provided information about the problems of children
caught in foster care, shown successful models of reform, and allocated time
to evaluate problems in their local area. Each team was then asked to develop
an action plan to bring back to their local jurisdictions.
4.
Publications
Collaborative Court Education Project Team Training Manual
The manual was developed to aid participants during training. Its contents
included: (1) statistics from national sources and from team members which
demonstrated national foster care/court/adoption system problems; (2)
because the teams were so diverse experientially, background materials which
allowed each profession to better understand the role and language of others,
including such articles as "Social Work Values and Legal Principals," (3) a
glossary of terms and definitions; (4) models or reform, including sample
protocols and checklists for system change; (5) information on measurement
systems to aid the teams in evaluation; and (6) an annotated bibliography of
resource materials written by the ABA National Legal Resource Center and
the National Child Welfare Resource Center.
Collaborative Court Education Project Team Training Manual
Supplement
The training manual supplement was a 75 page compilation of materials sent
to NACAC after the training events by individual team members to be shared
with other teams. The actual amount of materials submitted was so
voluminous that only one-fourth of the information submitted was
reproduced and distributed.
The Child Advocate's Legal Guide: Effective Collaborative Work to
Speed Performance for Children in Foster Care.
This book is the final product of the project and contains 18 Chapters on such
topics such as: Kinship Care, Open Adoption, TPR Law, Adoption Assistance,
North American Council on Adoptable Children
The Child Advocate's Legal Guide
188
and Funding Projects. It is intended to be a resource for advocates working to
improve foster care and adoption systems.
A National Survey of Termination of Parental Rights Laws
Because the language of the law itself can often be a barrier, volunteer law
students were recruited to research the fifty-one termination of parental
rights (TPR) statutes. A 120 question survey was developed. The results have
been included in the Advocate's Guide.
5.
Corollary Activities
Articles about the court project have been printed in:
CASA's, Current Issues in Pediatric Law.
The National Association of Black Social Workers Journal.
The ABA's Juvenile and Child Welfare Law Reporter.
NACAC's Winter, 1995 newsletter, Adoptalk.
Youth Law News, Vol. XIV, No. 6, Nov.-Dec., 1993.
CDF Reports, Summer 1994.
Presentations about the court project have been made to numerous national
organizations. These include:
(Nov. 11, 1993) - National Legal Aid and Defender Association,
Albuquerque New Mexico
(Nov. 11, 1993) - National Association of Child Advocates, New
Brunswick, NJ
(Nov. 11, 1993) - Hamline University School of Law, St. Paul, MN
(Feb. 14, 1994) - Georgia CASA Members, attorneys and Judge Virgil
Costley, Vonyers, Georgia
(Feb. 28, 1994) - Permanency Committee of the National Association of
Juvenile and Family Court Judges, Boston
(March 1, 1994) - a second presentation "Permanence or Else" for the
same group
(March 16, 1994) - Iowa Governor's Foster Care Review Board
(March 18, 1994) - HHS Grantees Meeting in Washington DC
(April 24, 1994) - American Bar Association, Children and the Law
Conference in Washington DC
(May 17, 1994) - NACAC Adoptive Parent Group Leadership Training,
Phoenix AZ
(May 18, 1994) - National Foster Parent Association - Grand Rapids, MI
(June 25, 1994) - Adoptive Families of America Conference - Mpls.,
MN
North American Council on Adoptable Children
The Child Advocate's Legal Guide
189
(July 24, 1994) - Court Project update of the Permanency Committee of
the National Association of Juvenile and Family Court Judges
(August 12, 1994) - NACAC Conference Team Reunion, San Jose, CA
(August 13, 1994) - NACAC session on the Collaborative Court
Education Project, CA
(August 14, 1994) - NACAC session on TPR results and Team Data, CA
(Oct. 16, 1994) - NACAC Adoptive Parent Group Leadership Training
(Nov. 11, 1994) - Minnesota Foster Parent's Association Conference -
St. Paul, MN
(Nov. 12, 1994) - FACE Conference - Richmond, VA
(Nov. 14, 1994) - Building Families: Ethical and Policy Issues in
Adoption - Minneapolis, MN
(Nov. 20, 1994) APCC - New York
Delaware Judiciary Training
On October 2, 1993, NACAC sponsored a one day training on foster care and
juvenile court system problems for the Delaware Family Court Judges.
Resources from the Collaborative Court Education grant were used to bring
Judge Len Edwards, a nationally known expert on juvenile issues from
California, to the training as a speaker. Judge Edwards advocated certain
systemic changes to speed the court process to benefit children. For example,
he suggested using a permanent juvenile court judge system rather than
rotating judicial assignments so a single judge can oversee a child's case from
the initial first hearing to the final disposition. He also stated that he is
willing to wield his power in his courtroom to force good legal practice. In
one situation he said that he threatened to assign a child's Guardian Ad
Litem to file a termination of parental rights when a local prosecutor refused
to file TPR's. In addition, Judge Edwards is a proponent of continuing
education for judges and feels that children's advocates can use education as a
tool to broaden the judiciary's knowledge about adoption related issues. He
cares about the children who appear before him and monitors each child's
progress from the first hearing until the child is finally adopted.
Court Guidelines
NACAC was asked to comment on the proposed "Resource Guidelines for
Improving the Juvenile and Family Courts' Handling of Child Abuse and
Neglect Cases" written by the National Council of Juvenile and Family Court
Judges. Most of our comments were incorporated in the final version.
NACAC Conference
NACAC sponsored eight law related workshops at its 1994 annual conference
in San Jose, CA. The workshops were intended to facilitate collaboration
North American Council on Adoptable Children
The Child Advocate's Legal Guide
190
between the legal and adoption professions. For the first time Continuing
Legal Education (CLEs) credits were offered as incentives to lawyers.
The keynote speaker was Judge LaDoris Cordell, a well known judge from the
San Jose area. During her presentation, Judge Cordell introduced a birth
mother and social worker, both whom had appeared in her court and had
worked together to reunite the family.
In addition, several sessions at the 1994 conference were related to the court
project. The first, a panel of team members from Iowa, New York and
Wisconsin, discussed their individual projects. Another session was
dedicated to discussion of the data used in the court project as well as the TPR
survey. A third session of the Indian Child Welfare Act was conducted by
Federal Judge Elton McCabe, a team member from New Mexico.
6.
Local Court Team Publicity
Many of the court teams have been quite successful at publicizing their
projects. For example, the Iowa team held a public meeting of the Foster Care
Review Board to deal with the falling placement rate of post-TPR children.
As a result, the Des Moines Register published a detailed story on the project.
The Jacksonville, Florida group encouraged television coverage of their
Jacksonville Zoo adoptive parent recruitment party and appeared on a local
radio show to discuss special needs adoptions. The Flint, Michigan team was
featured in an article in the foster parent newsletter about their development
of a simple booklet for birth parents which explained the steps necessary for
family reunification. In Pennsylvania, a CASA group (which developed from
their task force) has received a great deal of publicity. The New York team
presented information about the Collaborative Court Education Project at two
statewide conferences and was featured in a state newsletter. Like New York,
Arizona's project also was featured in a state employee's newsletter.
7.
Team Work Plan and Final Report Summaries
Each team participating in the collaborative Court Education Project was
asked to produce a short written plan at the end of the two day training. The
plan was to be limited in scope, attainable and time-dated with tasks assigned
to specific people. The work plans and final reports were submitted in May
and December 1994, respectively. Brief summaries of each team's work plan
and final report are listed below.
Arizona
Team Work Plan
Goal: =
To develop concise, clear formats and protocols to open lines of
communication within the system.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
191
Steps: ≈
a. bridge communications between DDD and CPS; b. obtain a
copy of the state foster care plan; C. coordinate writing of the
protocols; d. meet with the juvenile and severance judges to
authorize a database which includes date of filing of severance,
who filed, finalization date and disposition, filing of adoption,
and length of time in the system; e. obtain copies of Washington
and Iowa statutes; f. send Ratterman and Edwards information
to 24 other CASAs in the state; g. bring in key District 5 persons;
and h. arrange meeting between Attorney General (AG) and
county attorneys.
Note: ≈
The team realized that errors in communication were costing
extra years in care for some children. The county attorney
usually handled voluntary TPRs within 6 months, while the AG
handled contested cases which took 18 months. A certain
percentage of contested cases become uncontested but the AG
has kept them anyway. The team asked that these cases be
returned to the county attorney, thereby saving one year in foster
care for each child.
Final Report
The severance statue was changed to shorten times to 9 and 18
months, and an extra review step was deleted;
lines of communications were opened between AG and county
attorney;
the AG now appears at all dependencies;
IAC/MDT team now reviewing child welfare cases;
Judge O'Neil has issued a standing order that all state kids must stay
in current foster homes unless there is an order from the judge, this
order has stopped movement;
Judge O'Neil is willing to have early 3 month reviews;
they are tracking TPRs better; and
there is better statewide communication.
California
Team Work Plan
Goal: =
The judges in California will feel able to terminate parental
rights without an identified adoptive family.
Method: ≈
recruit a judge to help do judicial training.
Steps: =
a. contact Alice Bussiere to verify legal status and judges who
might help; b. involve DSS; C. set up databases with help from
UC Berkely, CASA and Foster Parent Association; C. contact
National Council of Regional Court Judges and the Foster
Grandparents Association; d. contact Judge Len Edwards, the
ABA and the Stuart Foundation.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
192
Final Report
This team organized a judges training that coincided with the NACAC
conference in San Jose on August 12th. Twelve judges participated in the
training. The team brought in the expertise of two speakers: Judge Len
Edwards, a national expert on juvenile court practice and Judge LaDoris
Cordell, a prominent judge from San Jose. The California team has been
contacted by leaders such as the head of CASA to do additional work in this
area.
Connecticut
Work Team Plan
Issue: ≈
To develop a multi-disciplinary team approach to review
permanency plans (TPR and adoption).
Goal: =
Children will spend less time in temporary foster care and the
child will have the most appropriate placement possible.
Steps: =
a. Team in place by Jan. 1, 1994, (new members, roles, protocols,
training and implementation plan); b. track the success of the
team.
Final Report
A permanency planning team has been established in
Bridgeport;
it reviews individual cases; DCF workers are now specializing,
speeding the TPR process;
the consent decree is also forcing statewide changes; and
they have had successful TPR of infants abandoned at birth.
Florida - Jacksonville
Work Team Plan
Concern: =
Getting children placed in permanent homes within 6 months
after TPR.
Goal: ≈
improve public perception of adoption by judges, attorneys,
general public, media, and prospective adoptive parents.
Steps: =
a. Recruitment party at Jax Zoo on November 20, 1993; b. plan
Adoption Day in Court for next November; C. survey persons
attending Zoo party about before and after perception of
adoption by December 1st; d. plan recruitment parties every 6
months; e. identify barriers slowing adoption; f. homefinders
people to meet regarding recruitment; g. bring adoptive and pre-
adoptive people together; h. increase parent support groups
within a year; i. get media coverage of parent groups; j. start
newsletters; k. solicit funds; 1. expand our team within three
months; m. identify problem areas in getting TPR when all
reunification processes have been tried.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
193
Final Report
This group dissolved after State Department of Welfare (HRS) team members
left and no new members were recruited. However, this team did sponsor
one very successful adoption party at the Jackson Zoo.
Florida - Sarasota
Team Work Plan
Concern: =
lack of involvement by agency lawyers.
Goal: =
permanent placements would be made.
Steps: =
a establish a five person review committee; b. involve
attorneys, private attorney citizens, and judges; C. write rough
proposal for involvement with HRS; d. get validation from
Sarasota County Board; e. collect data on children; f. do a
seminar for attorneys; g. accomplish 5 permanent placements.
Final Report
This team had gathered support from the executive director of the Bar
Association, the Welfare Department; and the director of the Guardian Ad
Litem Program. However, one member of the Bar Association Legal Aid
Society had a philosophical difference with TPR. Also, some thought the
welfare department should doing this work. As of January, 1995 they were
stalled by the reservations of these decision makers.
Illinois - Cook County
Team Work Plan
Goal: =
Reduce time spent preparing TPR petitions to one month
maximum.
Problem: =
typist needed.
Steps: =
a. recruit ASA, DEP GAL, presiding Judge for team; b. collect
data on how many cases waiting for petitions; C. find an accurate
description of process as it could be; d. send proper instruction to
house clerk; e. get some agency to pay; f. get stacked up petitions
typed; g. get petitions into court; h. call meeting within 30 days.
Note: =
If 80 kids have delay reduced by 2 months, cost savings is
$240,000. The cost of the typist is $3000, net saving is $237,000.
Final Report
the team has succeeded in speeding the backlog of 300 children
through the system;
they have pointed out delay points in the TPR system, such as it
takes 7 months from a case being identified to an appointment
with the screening committee;
the team clarified where clerical support would come from;
Although DCFS had 3 directors during the period of the project;
the team intends to continue on with new projects; and
North American Council on Adoptable Children
The Child Advocate's Legal Guide
194
there have been newsletter articles about the court project
and their team.
Illinois - Springfield
Team Work Plan
Concern: =
Lack of information gathering to make early identification of
those children for whom adoption may be appropriate
permanency goal.
Goal: =
Within 30 days of intake, sufficient information will be gathered
to enable identification of children for whom adoption may be
appropriate.
Steps: =
a. obtain new comprehensive assessment form and talk to
investigator who attended training; b. develop questionnaire
to use with each county's judge, state's attorney, caseworker and
investigator.
Final Report
The local office changed their procedures, their attorney is now
filing petitions so it is no longer done by the state's attorney;
as a result, the process is much faster;
adult adoptees can now petition the court to have a confidential
intermediary contact birth parents for information on medical
needs (seven states now have this type of confidential
intermediary law);
Illinois also has two pilot projects on search and reunion for
DSFS adoptees and birth parents.
Iowa
Team Work Plan
Goal: ≈
Each player in each individual system demonstrates an
awareness of their part in foster care/adoption service delivery
and each system will interact on an on-going basis to maintain
awareness of work of the whole. Anytime a child has a TPR,
there will be a trained pool of adoptive families
waiting/available for matching (specialists will be specifically
trained and allowed time to recruit, train, support families in the
pre- and post-adoptive stages).
Steps: =
a. identify players and define roles in the permanency process; b.
identify gaps in the system; C. identify ways to fill the gaps so
that adoptive placements are available for children following
TPR; d. develop an interview instrument to gain information
from these players.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
195
Final Report
Iowa has succeeded in convincing the governor to reinstate most
(2/3) of the adoption specialist positions which had been
dropped three years before;
the team is working to get the rest of the positions reinstated;
there has been publicity around the issue of TPR;
kids are now being placed for adoption.
Massachusetts - Boston and Western MA
Team Work Plan
Goal: ≈
Implementation of new law 303 - east and west and do training
and
measurement.
Steps: =
a. within two weeks make judicial contacts; b. distribute state
plan and training manual; C. hold regional team meetings for
development of ideas for mission statement; and d. hold
statewide team meeting and develop mission statement for
distribution.
Final Report
The two regionalized teams from Massachusetts formed a statewide team
(named 303 Implementation collaborative 303 IC). The group which meets bi-
monthly and has selected four subgroups, all focused on the common goal of
implementing Chapter 303, a new Massachusetts law passed 12/29/93 to
expedite permanence for children. This group intends to continue its work
until all children have permanent homes. They concentrated efforts on:
increasing the awareness of Chapter 303; among court
personnel.
adding members from the committee for Public Counsel
Services (CPSSCS) an organization which had opposed passage
of 303;
conducting Department of Social Service (DSS) awareness
training on permanency planning and 303 to encourage
implementation; and
to increase awareness of permanency planning and get increased
financial funding from the Legislature.
Accomplishments include:
With the support of chief Justice Mary Fitzpatrick of the Probate
Court, 303IC sponsored training for court personnel, including
judges. When the Probate Court secured additional space,
rotating judges were appointed to hear a backlog of adoption
cases.
On August 15, 1994 The Boston Globe on August 15, 1994
reported that for fiscal year 1994 adoptions numbered 1,068, twice
that of 1992.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
196
Chief Justice Poitrast of the Juvenile Court also supports this
group's efforts and the tenets of 303.
training has been provided for court personnel and CASAs and
will be offered again in the spring.
a member of 303IC has had success with the CPCS by also
becoming a member of the CPCA Juvenile Board. The
consciousness level of CPCS was raised regarding children's
issues.
The legislature, after hearing from 303IC and other people,
passed additional adoption funding of $600,000, with $100,000
earmarked for training about 303.
the Worchester sub-group met with three justices, the DSS
regional director and area directors, local CPCS, and DSS
attorneys.
the Lawrence sub-group lost members and was unable to reach
all its local goals, although the one remaining member was able
to convince Judge Herlihy to request a Juvenile Court be
established in Lawrence and allow CASAs to work to make
system changes.
the Springfield sub-group was unable to join the eastern groups
but did write letters to three judges.
the court team will continue its work together with the Kellogg
foundation as part of its $3 million permanency planning
initiative.
Michigan - Flint
Team Work Plan
Concern: =
To help biological parents clearly understand the social services
plan, their responsibility to comply with it, and the
consequences if they do not comply, and to ultimately shorten
the length of time kids spend in foster care.
Goal: =
Produce a parent targeted, 4th grade reading level, written
description of the court process, including a description of the
parent's individual responsibilities, a "how to" section on
finding support systems and services needed for renunciation
plus a check-off form to track progress.
Steps: =
a. involve judge, DSS supervisors/workers, attorney and
alternatives for private agencies; b. prepare and implement the
form; C. collect data, including raw data in files.
Final Report
This team has not made successful progress. The courts have not been
willing to become involved with their group, and the Michigan Department
of Social Services produced a book for parents so the team could not
accomplish their goal.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
197
Michigan - Midland
Team Work Plan
Concern: =
Currently, there is no system to track children now in or who
will become part of the out of home care.
Goal: =
To ensure that no child spends any more time in and out of
home care than is essential to the best interests of the child.
Steps: =
a. identify people to contact and contact them; b. hold a meeting;
C. by May 1, 1994 identify the variables and start collecting the
data.
Final Report
This team changed goals to work with schools to provide information on
adoption.
They used the FAIR school curriculum; have placed it in all
schools in the area;
they are gathering information for a resource guide on adoption
needs, which will be ready in early spring.
Minnesota
Team Work Plan
Goal: =
To clarify team members and project area and focus on
incentives for foster parents to adopt.
Steps: =
a. In two weeks identify other people for the team; b. update
team and team leader on our activities at the conference; C. meet
NACAC; and d. collect data.
Final Report
The Minnesota team conducted an analysis of foster parent, adoptive parent,
and social service interactions. They determined that to successfully help
children it is essential to build long term relationships between parties. Many
of their findings and comments were published in Adoptalk.
Nevada
Team Work Plan
Concerns: = First, lack of interagency teaming as evidenced by poor
communication, cooperation and turf issues, and second, lack
of parameters of what constitutes reasonable efforts.
Goal: =
A permanent home for every child and a treatment team that is
held accountable by the judiciary for the implementation of
reasonable efforts.
Steps: =
a. Expand the existing care plan committee to be larger and more
representative of all disciplines; b. meet; C. determine a purpose
for the group, goals and agenda; d. produce a memo regarding
the meeting and the global concerns of the team.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
198
Final Report
Nevada has enjoyed much success in opening lines of communication
between offices and professions. "Our progress can most be attributed to the
teamwork and enthusiasm exhibited by the representatives of multiple
disciplines." Judge Hardcastle has been a leader for the group. The group
divided into four subcommittees to look at different parts of the TPR process
and facilitated several recommendations/changes:
a new format for the multi disciplinary committee;
referees to maintain birth parent visitation at a higher rate
(helps with reasonable efforts issues);
a conference in Reno on the empowerment of foster parents;
18 month reviews held before a panel of state, county, CASA and
clinical people;
expansion of the role of permanency planning specialist; and
one judge to review all dispositions.
New Mexico
Team Work Plan
The team did not submit a written plan but subsequent conversations
indicate that they are interested in replicating this training for various tribal
courts and pueblos in the southwest. Team members are also interested in
doing training on the Indian Child Welfare Act in their area and elsewhere.
Final Report
The group has not continued its efforts as a team. However, Judge McCabe
taught sessions at the NACAC conference and has been recruited by Jim
Cadwell for ICWA training within this project.
New York
Team Work Plan
Concern: =
Reduce the time it takes for Erie County children to reach
permanency.
Goal: =
Reduce percentage of children in foster care for more than two
years with the goal of returning home and reduce the percentage
of children who are free for adoption but not placed.
Steps: =
a. The first dispositional hearing will result in a concrete plan for
reunification and all parties will get a copy; b. focus on a 12-16
month decision-making window; C. no extensions for more
than 6 months; d. DSS attorneys to report to judge within 15
months regarding the permanency goal for the child; e. Identify
putative father up front; f. increase efficiency of DSS
communication (i.e. the case will move from foster care to
adoption within two weeks of the termination order or
surrender); g. strengthen involvement of parents in the service
plan review; h. train attorneys and caseworkers at all levels; and
i. key experts will be asked to attend meetings as needed.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
199
Final Report
The Project was great!!! The PIP team meets monthly, for lunch in the court
house, so judges can attend. The monthly meeting provides an effective
forum and as a result:
the dispositional menu has been finalized and approved;
the amount of time needed to move foster care cases to adoption
has improved;
the percentage of kids with adoption as a goal has also increased,
and finalizations are up;
judges became aware of a scheduling problem which delayed
hearings, and rectified it; attorneys and law guardians now
discuss cases beforehand; and
they want the project to expand around the state.
North Carolina
Team Work Plan
Goal: =
Shorten the train ride between the abuse and neglect petition
and the decision to pursue TPR or reunification (ideally within
12 months).
Steps: =
a. Amend the local rules to require the 96-272 dispositional
hearing to occur at 12 months (draft, promote with judges,
distribute, and adopt); b. enlarge the team; C. meet Nov. 10, 1993;
C. develop a uniform caseplan and uniform court summary,
(draft, promote, distribute, and implement).
Final Report
This team looked at 80 or 90 files to determine the average length of time in
foster care. The team was frustrated with some of the actions taken by the
Department of Welfare and did not submit a final report.
Ohio
Team Work Plan
Goal: ≈
Identify and eliminate barriers to permanency planning.
Steps: =
a. settle issues of paternity within 6 months (identify the father
by having the judge ask the name under oath, educate judges to
identify early in the process, get blood tests, get location
information, get father to admit in court, make sure assessment
supervisor requests judge order mother to identify father); b.
participants in permanency placements will each know what his
or her specific role is within 3 months (meet with supervisors
and legal people to develop protocols, memos to all team
members regarding protocols, set first meeting for 2 weeks); C.
hold TPR hearing within 3 months of casework decisions for
TPR (copy of ABA article to the judge and attorneys with letter re
court project, ask court clerk to call attorneys to verify court dates
to avoid conflicts and unnecessary continuances).
North American Council on Adoptable Children
The Child Advocate's Legal Guide
200
Final Report
This group has struggled. Job restrictions made it hard to meet regularly.
Although the adoption support group is working on the issue of open
records, the team has not been successful at reaching all of its goals.
Pennsylvania - Pittsburgh
Team Work Plan
Goals: =
1. Participants will understand permanency planning concepts
including timely reasonable efforts to prevent placements,
reunify families and/or terminate parental rights.
2. Participants will be able to effectively use new community
resources, and
3. Participants will be able to work collaboratively with each
other to achieve early permanence for abused, neglected, or
dependent children.
Steps: =
a. set an interdisciplinary parent/professional conference
regarding permanency planning; b. include a panel discussion
by families who have been active with child protective services
and court systems; C. PPTF meeting on 11/17/93 to explain the
training; d. identify local conference participants; e. review
existing materials (meetings that matter, negotiation skills,
REDs, concrete case/legal plans, NACAC CLE book); f. define
evaluation methods; and g. define major milestones and define
strategies.
Final Report
The team is working to get the county to sponsor a conference in the spring
and to integrate the entire Permanency Planning Task Force into the team's
work. They have a "joint boldness which has allowed us to approach people
in ways that any one of us might not have done."
The group has been active in legislative efforts;
they have testified regarding permanence;
they convinced the state court to apply for DHS monies and
begin the process of state-wide evaluation of child welfare
practice;
a conference was held February 9-10, 1995 for permanency
professionals.
Pennsylvania - Chester County
Team Work Plan
Goal: ≈
Improve overall case management of juvenile dependency
hearing and subsequent judicial reviews.
Steps: =
a. Stronger advocacy role by guardian ad litem at all stages of
permanency planning process, b. written disposition of hearing
available to all parties at conclusion of each hearing. C. locate
North American Council on Adoptable Children
The Child Advocate's Legal Guide
201
files, d. be positive, as opposed to critical, and focus on our
concerns.
How to know when each strategy has been accomplished: 1.
when guardians ad litems are involved in all stages of child's
life; 2. when a written disposition of each hearing is received at
the end of each hearing; 3. when all files are located; and 4.
when the juvenile master accepts these proposed new methods.
Major milestone - a resolution of permanency within 12
months.
First steps - as a group, meet with Judge Wood to explain project
and garner input. Act on judge's suggestions, arrange to get
material from other groups at this conference which may be
useful. Invite others to join our project group. Meet with
guardians ad litem, explain need for stronger advocacy, perhaps
enlarge focus of strong advocate guardians, and explain need for
stronger advocacy to judges and guardians.
Final Report - Chester County
This team faced significant resistance from the court master: however,
there will be court reporters at all hearings who will do the
orders; and
there is now a SWAN computer program in place to track kids
in care.
Rhode Island
Work Team Plan
Goals: =
Expedite placement of children in permanent secure homes, and
ensure compliance with Rhode Island statute mandating that all
TPRs are filed within 30 days of court order issued at
dispositional hearing.
Steps: =
a. do pre- and post-data collection to evaluate success; b. involve
judges and named attorneys and social workers; C. revise
summary of fact to shorten; d. establish data collection system;
e. disseminate copies of the statute and educate social workers
regarding the law; f. CASA to track the 30 day period and file
contempt motion to comply; g. develop DCYF system to trace
the 30 days; h. judicial education; i. meet 11/15; and j. develop a
mission statement.
Final Report
As a result of the Collaborative Court Education Team work, the following
changes have occurred:
the adoption unit now has a database to track all children who
have adoption as a goal;
North American Council on Adoptable Children
The Child Advocate's Legal Guide
202
that information will be sent directly to adoption exchanges;
social worker adoption training programs have been designed
and implemented; and
training is planned for court personnel and CASA.
Washington - State
Team Work Plan
Concern: =
Long appellate process after TPR and delays in approval of the
adoption subsidy by the central office.
Goal: =
Minimize the number and length of continuances and an
average 60 day time for approval of subsidies.
Steps: =
a. track data; b. contact Court of Appeals regarding continuance;
C. maybe add Cowlits County statistics; d. contact court
administrator regarding delays in transcripts; e. collect statewide
TPR data; f. review cases regarding subsidies; g. enlist support of
Olympia adoption personnel; h. meet; and i. contact adoptive
parents for advocacy.
Final Report
The group is still active. They are performing a watch dog function and as a
result the length of time to TPR appears to be less. They have had enormous
success without much work and have branched out. In Clark County the
court stopped granting the continuances which delayed permanency.
Washington D.C.
Work Team Plan
Goal: =
Improve overall advocacy level through permanency planning
training for attorneys appointed to represent children.
Steps: =
a. Plan group day-long meeting by 11/15; b. meet with family
court judge by 11/15; C. develop list of possible donors for
computer equipment for clerks office and CCAC by 11/15; d.
review foster care statistics and third party placement statistics to
determine which kids are in different status group; e. develop
record keeping support between TPR/adoption court clerk and
counsel for child abuse and neglect office; and f. develop
training manual specifically for attorneys representing children
including data and resources regarding therapeutic resources,
adoption subsidy, etc.
Final Report
Because of family pressures, the project was suspended.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
203
Wisconsin
Work Plan
Concern: ≈
Inconsistent philosophies and goals concerning case planning.
Goal: ≈
identify the best concurrent planning for timely permanency to
lessen kids time in the system.
Steps: ≈
a. define process and timelines; b. send court the pipeline by
Nov. 17; C. expand advisory committee; d. define other
resources and their responsibilities and report; e. look for
funding; f. meet; g. set forum for FC workers; h. define the
pipeline; and i. evaluate pipeline process; j. train.
Final Report
Debra Ratterman, ABA Center on Children and the Law, evaluated
Milwaukee County at the request of the "Kids Can't Wait" court project team,
and found:
Milwaukee County has an incredibly high number of children in
placement given the size and population of the area (600,000 in the city
of Milwaukee). According to the Department of Human Services
(DHS), there are 3,700 children in out-of-home placement in the
county. For comparison, Washington, D.C., which also has a
population of about 600,000, has approximately 2,500 children in out-of-
home and that system is in such bad shape that a federal judge recently
put portions of the agency in receivership! In Houston, Texas, there
are also about 3,700 children in foster care, but that city has a
population of 1.6 million.
The number of children coming into care in Milwaukee has grown
dramatically in the last five years. In 1989, DHS received 8,600 reports
of suspected child abuse and neglect. That number grew by 20% to
10,300 reports in 1993 and the projected number of reports for 1994 is
even higher - 11,200 reports - a 9% increase in only one year. Funding
has fallen woefully behind this uncontrollable increase in the numbers
of children and families needing assistance.
The most despicable aspect of this crisis is the fact that the State of
Wisconsin has found a way to profit from the rising numbers of
children in care in Milwaukee. According to DHS, the state withholds
a portion of the county's federal Title IV-E reimbursement and uses it
as general revenue, a violation of the legislative purpose of the federal
foster care program if not technically a violation of the regulations.
Other data was equally condemning. County foster care workers
handle 100 to 120 children, twice that recommended by the Child
Welfare League of America. The average stay for a child in foster care
is four years, twice the national norm.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
204
In response to Ms. Ratterman's report, Clarence Johnson, Bureau manger of
Milwaukee County Child Welfare Services stated that "I found your
comments and recommendations to be very much on target."
On Wednesday, December 28, 1994 the Milwaukee Sentinel ran a front page
article titled "Foster Caseloads Twice as Heavy Here." It discussed the
increasing numbers of children in foster care and cited the fact that in 1986,
the tax levy required to support the Youth Services Division was $3 million;
in 1994, it is $32 million. One county's way of coping with the demand is a
policy of screening out 80% of the child protection calls it receives.
According to the Welfare League of America, the average grant per year for
one child on AFDC is $1000, for foster care is, $4800 and for orphanage care is,
$36,500. It appears that the additional 1200 (more than Washington, D.C.)
children in foster care in Milwaukee County costs Wisconsin taxpayers an
extra $5.7 million per year.
The "Kids Can't Wait" team continues its efforts to help children. It has:
helped spark an additional 387 TPRs scheduled for 1995;
an additional 123 children have become eligible for
adoption;
spun off a district attorney/department of human services
project to speed TPR;
TPR cases are now filed within 29 days of referral compared with
100 days in the past;
only 2% of cases are dismissed as compared to 11%;
cases are processed faster through the court; and
the county adoption unit has been reorganized.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
205
Factors For Success
Overall, within the Collaborative Court Education Project, there seemed to be
certain predictive factors which led to successful change. These include:
(1) collaboration; (2) system access and work time; (3) passion and dedication;
(4) powerful allies; and (5) basic knowledge of successful reform models.
1.
Collaboration
Dysfunctional systems, like people, seek scapegoats. Typically, child welfare
workers blamed the complex and slow court systems; attorneys decried social
workers and their inability to make decisions or document cases; and foster
parents were told to "butt out" and stop interfering. Building teams with
diverse members who held different world views was key to fair evaluation
of problems and development of creative solutions. Each participant
contributed certain work styles, knowledge and skills. Generally, attorneys
were more task oriented and demanded written criteria and plans; social
workers contributed an understanding and empathy for children's needs,
plus access to resources; the parents, both foster and adoptive, contributed the
passion associated with an intimate understanding of the pain suffered by
children.
2.
System access and work time
It was extremely helpful when members held positions inside welfare or
court systems. These professionals were able to convince supervisors that
court team efforts were part of existing jobs and could be done in the office.
As insiders, they knew where the barriers were and who could effectively tear
them down. Power brokers listened to them with a keener ear.
3.
Passion and Dedication
Typically, although not exclusively, it was the foster and adoptive parents
who contributed passion to the team. Although they were often frustrated
when "regular" jobs caused scheduling conflicts, they endured. Often, their
primary contribution was to organize the team, set meetings, and plan
trainings.
4.
Powerful Allies
At the initial team training, Judge Len Edwards told the group, "Judges
usually only listen to other judges, so enlist their help." As a result, several
groups recruited judges as members or supporters. These teams were able to
facilitate many changes instantly - particularly court system reforms. The
California team, comprised mostly of parents who felt outside the system, was
North American Council on Adoptable Children
The Child Advocate's Legal Guide
206
able to seed ideas for system change very effectively by sponsoring a judge's
lunch meeting concurrent with the NACAC conference. They recruited two
keynote speakers, Judge Len Edwards and Judge LaDoris Cordell, to facilitate a
discussion of juvenile court reform. This session went so well it spun off
requests from legal experts to join the court team. Child welfare supervisors
also held this key ability to influence significant reform.
5.
Knowledge of successful reform models
At the initial training sessions, team members were shown effective reform
models, two in particular. The first, a model developed by Debra Ratterman of
the ABA Center on Children and the Law in New York, utilizes standard
process and protocols which facilitate TPR and strongly promotes
collaboration and training between social workers and DSS attorneys. By
freeing children for adoption faster, she has been able to demonstrate
significant cost savings for each county.
The second model, concurrent planning, developed by Linda Katz of
Lutheran Social Services in Washington, focuses on children coming into
foster care. Using criteria to determine the likelihood of permanent family
breakdown, high scoring children were put into a two track, concurrent
planning process. These children went to foster parents who were willing to
adopt. At the same time, the biological parents were told they could lose their
children unless substantial changes occurred within a specific period of time.
They were given intensive support or treatment and encouraged to visit their
children. For those unable to change, familiarity with the foster parents, plus
the possibility of open adoption helped convince them to voluntarily
relinquish their rights. This process saves time, court costs and unneccessary
moves for the children.
Summary
Generally, most teams made significant progress toward system
improvement. It was difficult to track actual statistical difference because of
the short two-year project duration and because state child welfare data
collection is years behind. However, the multitude of papers, memos,
dispositional menus, training agendas, publicity, letters, manuals and
computer programs all testify to successful change. The work by the various
teams is just the beginning. Clearly, partial help from twenty-three
jurisdictions in eighteen states is not enough to solve the nationwide
problem of foster care drift. But it is our hope that the work will be replicated
whenever and wherever needed.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
207
Bibliography
Adoption Opportunities Grantees, Children's Bureau, U.S. Department of Health and
Human Services (1989) Progress summary reports. Washington D.C., HHS.
American Bar Association (1993) America's children at risk. Chicago, IL, ABA.
American Bar Association (1985) New Jersey project on special needs adoption. Washington
D.C., ABA.
American Bar Association, (1989) 1988 Update to the New Jersey project on special needs
adoption. Washington D.C.
American Bar Association, (1987) Strengthening adoption opportunities in New Jersey: The
northern regional report, Washington, D.C., ABA.
American Bar Association, (1981) Protecting children through the legal system, Washington,
D.C., ABA.
Barth, R., Courtney, M., Berrick, JD., & Albert, V. (1994) From child abuse to permanency
planning: Child welfare services and placements. New York, Walter de Gruyter, Inc.
Cunningham, C. & Horowitz, B. (1989) Child abuse and neglect: Cases, text and problems.
Washington D.C., ABA.
Cunningham, C. & Horowitz, B. (1989) Handling child abuse and neglect cases. Washington
D.C., ABA.
Dodson, D. (1983) The legal framework for ending foster care drift, Washington, D.C., ABA.
Downs, S. & Taylor, C. (1979) Permanent planning in foster care: Resources for training,
Portland WA, Portland State University.
Duerr Berrick, J., Barth R.P., & Needel, B. (1994) "A comparison of kinship foster homes
and foster family homes: Implication for kinship foster care as family preservation."
Children and youth services review, 16(2)F.
Edwards, L. (1994) "Improving implementation of the federal adoption assistance and
child welfare act of 1980," Juvenile and family court journal, 45(3).
Ford, M. & Kroll, J. (1990) Challenges to child welfare: Countering the call for a return to
orphanages, St. Paul MN: NACAC.
Ford, M. & Kroll, J. (1995) There is a better way: Family based alternatives to institutional
care, St. Paul MN: NACAC.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
208
George, R.M. and Wulczyn, F.H., (1992) "Foster care in child welfare: An analysis of
state's policies" Children and Youth Services Review, 16(2).
Gilles, T. (1995) Adoption assistance in america: A programmatic analysis fifteen years after
federal implementation. St. Paul, MN. NACAC.
Gilles, T. & Kroll, J. The adoption assistance and child welfare act of 1980 (Public Law 96-272):
The first ten years. St. Paul MN, NACAC.
Gleeson, J. & Craig, L.C. "Kinship care in child welfare: An analysis of state's policies,"
Children and Youth Services Review.
Goldstein, J., Freud A., & Sonit A. (1979) Beyond the best interest of the child. New York,
NY. The Free Press.
Hardin, M. & Shalleck, A. (1985) Court rules to achieve permanency for foster children.
Chicago IL, ABA.
Hardin, M. (1983) "Court review: Making it work," Child Welfare, 62(4).
Hardin, M. & Bulkley (1983) "The rights of foster parents to challenge removal and to
seek adoption of their foster children," Foster children in the courts, Chicago, IL.
Butterworth.
Hardin, M. (1983) "Legal representation of child welfare agencies," Legal response: Child
advocacy and protection, 3 (2).
Hardin, M. (1981) Termination of parental rights: A summary and comparison of grounds
from nine model acts. Washington D.C., ABA.
Horowitz, R. & Davidson, H. (1984 & 1988) Legal rights of children. New York, NY,
McGraw-Hill Inc.
Iglehart, A. (1994) "Kinship foster care: Placement, service and outcome issues."
Children and Youth Services Review / 16(2).
Kadushin, A. & Martin, J. (1988) Child Welfare Services (4th ed.). New York, NY.
MacMillian
Katz, L. (1988) "Seeing Kids through to Permanence: Courtwise" Washington and
Idaho, LSS.
Katz, L. & Robinson, C. (1991) "Foster Care Drift: A Risk Assessment Matrix" Child
Welfare, 70(3).
North American Council on Adoptable Children
The Child Advocate's Legal Guide
209
McKenziek, J. (1993) "Adoption of children with special needs, the future of children."
Adoption, 3(1). Los Angeles, CA, David & Lucile Packard Foundation.
Mid-Hudson Regional Legal Conference, (1988) Working for permanency: The family court
and the department of social services. Albany NY, Department of Social Services.
Mlyniel, W. (1983) "Prosecuting a termination of parental rights case," Foster Children in
the Courts. Chicago IL, ABA, Butterworth.
National Conference of State Legislatures, (1986) Child welfare in the states: Fifty state
survey report. Denver CO, NCSL.
New York Task Force on Permanency Planning for Children in Foster Care, (1986)
Permanency Planning: A Shared Responsibility. Rochester NY., NCSL.
Office of Inspector General, U.S. Department of Health and Human Services (1991)
Barriers to Freeing Children for Adoption. Washington D.C., HHS.
Ratterman, D. & Freedman, N. (1990) Child Welfare Law Manual for Caseworkers.
Washington D.C., ABA.
Ratterman, D. (2nd edition 1995) Child Welfare Legal Manual for
Attorneys and Law Guardians. Washington D.C., ABA.
Ratterman, D. (1991) New York Termination Barriers. Washington D.C., ABA.
Reininger, D. (1988) "Freeing children for adoption: Termination of parental rights,"
Child abuse and neglect: Protecting the child, defending the parent, representing the state. New
York NY, PLI.
Rosenthal, J. & Groze, V., (1990) "Special needs adoption: A study of intact families."
Social Service Review, 64.
Samantrai, K. (1992) "To prevent unnecessary separation of children and families:
Public law 96-272 policy and practice." Social Work 37(4)
Sedlak, A. & Broadhurst, D. (1993) Study of adoption assistance impact and outcomes: Final
report. Rockville MD, Westat, Inc.
Vick, C. (1995) "The 1994 uniform adoption act: The wrong model for positive change,"
Adoptalk. St. Paul MN, NACAC.
North American Council on Adoptable Children
The Child Advocate's Legal Guide
210