The Adoptions and Safe Families Act of 1997 (P.L. 105-89) was signed into law by President Clinton on November 19, 1997. The new law, which amends the 1980 Child Welfare Act (P.L. 96-272), clarifies that the health and safety of children served by child welfare agencies must be their paramount concern and aims to move children in foster care more quickly into permanent homes.
Among the new laws provisions:
- shortens the time-frame for a childs first permanency hearing;
- offers states financial incentives for increasing the number of adoptions;
- sets new requirements for states to petition for termination of parental rights;
- reauthorizes the Family Preservation and Support Program.
The National Association of Social Workers (NASW) did not take an official position on the Adoptions and Safe Families Act, but strongly supported the reauthorization of the Family Preservation and Support Program, the expansion of medical insurance coverage for children with special needs, and development of state standards to ensure quality services.
NASW did endorse an earlier version of the legislation, the Safe Adoptions and Family Environments Act (S.A.F.E. Act; S. 511), sponsored by Senators John H. Chafee (R-RI) and John D. Rockefeller IV (D-WV). Unlike the Adoptions and Safe Families Act, the S.A.F.E. Act included additional funding for:
- family reunification services;
- training and retention of agency staff and cross-agency training; and
- residential substance abuse treatment programs for parents and their children.
U.S. Department of Health and Human Services . The new law requires various actions by the U.S. Department of Health and Human Services (HHS), including development of:
- policy guidance or regulations on implementing the new law;
- outcome measures for state child welfare programs;
- an incentive payment system for Title IV-B and IV-E funding;
- recommendations for restructuring programs under Title IV-B and IV-E;
- a report and policy recommendations on kinship care; and
- a report and policy recommendations on substance abuse treatment for families served by child welfare agencies.
Congress. Major supporters of the Adoption and Safe Families Act, including Senator Rockefeller and Senator Mike DeWine (R-OH) have indicated that the new law merely represents a first step in improving the foster care system and have expressed a willingness to address other issues, such as the need for training and lower caseloads, in future legislation.
SUMMARY OF PROVISIONS
TITLE I: REASONABLE EFFORTS AND SAFETY REQUIREMENTS FOR FOSTER CARE AND ADOPTION PLACEMENTS
Child Health and Safety. The new law clarifies that the childs health and safety must be of paramount concern when making decisions about removal of a child from the home, reunification, and implementation of any aspect of the case plan for children in foster care.
"Reasonable Efforts" to Preserve and Reunify Families. States must continue to make reasonable efforts to preserve and reunify families. However, the reasonable effort requirement does not apply in all cases. The exceptions include cases in which a court has found that:
- a child has been subjected to "aggravated circumstances" as defined in state law (including, but not necessarily limited to, abandonment, torture, chronic abuse, and sexual abuse);
- a parent has killed or assaulted another of their children or has assaulted the child; or
- a parents rights to a sibling have been involuntarily terminated.
In cases when reasonable efforts to reunify are not required, states are required to hold a permanency hearing within 30 days and to make reasonable efforts to place the child for adoption, with a legal guardian, or other permanent placement.
Concurrent Planning. Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts to preserve or reunify the family.
Documentation of Efforts to Adopt. For every child whose permanency plan is adoption or placement in another permanent home, states are required to document the steps taken to:
- find an adoptive family or permanent home;
- place the child with the adoptive family, a fit and willing relative, a legal guardian, or in another planned living arrangement; and
- finalize the adoption or legal guardianship.
The documentation must include child-specific recruitment efforts, such as use of adoption information exchanges.
Termination of Parental Rights (TPR). States are required to file a petition to terminate parental rights immediately and, concurrently to identify, recruit, process and approve a qualified adoptive family, in the case of:
- a child who has been in foster care for 15 of the most recent 22 months;
- a child who the court has determined to be an abandoned infant (as defined in state law); or
- a court has determined that the parent assaulted the child or killed or assaulted another of their children.
In addition, states may file for termination of parental rights earlier than 15 months or for other reasons.
In determining the 15 of the most recent 22 month limit, the clock starts to run on the date of the first judicial finding of abuse or neglect or 60 days after the child is removed from the home, whichever is earlier. The requirement applies to children already in care as well as to children entering care in the future. For children already in care, states are required to phase in the filing of termination petitions beginning with children for whom the permanency plan is adoption or who have been in care the longest.
The only exceptions to the TPR filing requirement above include cases in which:
- the child is being cared for by a relative;
- a state agency has documented in the case plan (available for court review) a compelling reason that filing such a petition would not be in the best interests of the child; or
- family reunification is the goal and the state has not provided to the family of the child the services in the case plan the state deems necessary for the childs safe return.
Participation in Case Reviews and Hearings. Foster and pre-adoptive parents or relatives providing care for a child are to be given notice and an opportunity to be heard at any review or hearing held with regard to the child. This provision does not make any foster or pre-adoptive parent or relative a party to such a review or hearing, but merely requires the receipt of a notice and an opportunity to be heard.
Criminal Record Checks. Before granting final approval, states are required to conduct criminal records checks for any prospective foster or adoptive parents of a child eligible for federal subsidies. Approval must be denied in any case of a felony conviction for child abuse or neglect, spousal abuse, crimes against children (including child pornography), or crimes involving violence (including rape, sexual assault, or homicide). Approval must be denied for five years after any case of a felony conviction for physical assault, battery, or a drug-related offense.
States could opt out of this provision through written notification from the Governor to the Secretary of HHS or through enactment of state legislation.
Federal Parent Locator Service. Child welfare agencies are authorized to use the Federal Parent Locator Service to assist in locating absent parents for purposes of making or enforcing child custody or visitation orders involving such parents.
TITLE II: INCENTIVES FOR PROVIDING PERMANENT FAMILIES FOR CHILDREN
Adoption Incentive Payments. The Secretary of HHS is required to make adoption incentive payments to states in which adoptions of foster children in FY 1998 exceed the average number during FY 1995-FY 1997 or, in FY 1999 and subsequent years, in which adoptions of foster children are higher than in any previous fiscal year after FY 1996.
Adoption incentive payments are $4,000 for each adoption of a foster child above the base number, plus an additional $2,000 for a total of $6,000 per special needs adoption. For these incentive payments, $20 million is authorized for each of FYs 1999-2003
Health Care Coverage. To be eligible to receive adoption incentive payments for FY 2001 or FY 2002, states are required to provide health insurance coverage to any special needs child for whom there is an adoption assistance agreement between the state and the childs adoptive parents.
Performance Measures for State Child Welfare Programs. The Secretary of HHS, in conjunction with Governors, state legislatures, state and local public officials responsible for administering child welfare programs, and child advocates, must develop outcome measures to assess state child welfare programs and rate state performance according to these measures. HHS must submit an annual report to Congress on state performance, with recommendations for improvements. The first report is due on May 1, 1999.
Outcome measures are to be developed, to the maximum extent possible, from data available from the Adoption and Foster Care Analysis and Reporting System (AFCARS) and are to include:
- length of stay in foster care;
- number of foster care placements; and
- number of adoptions.
In addition, the Secretary of HHS, in consultation with state and local public child welfare officials and child welfare advocates, is required to develop and recommend to Congress a performance-based incentive funding system for payments under Titles IV-B and IV-E, based (to the extent feasible) on the annual reports required by this provision. No later than six months after enactment, the Secretary must report to Congress on the feasibility of conducting a study, and no later than 15 months after enactment, submit a final report on a performance-based incentive system.
Technical Assistance to Promote Adoption. HHS is authorized, but not funded, to provide technical assistance to states and localities to promote adoption of foster children. The technical assistance, at least half of which is to be provided to courts, may include:
- guidelines for expediting termination of parental rights;
- encouraged use of concurrent planning;
- specialized units and expertise in moving children toward adoption;
- risk assessment tools for early identification of children at risk of harm if returned home;
- encouraged use of fast tracking for children under age one into pre-adoptive placements; and
- programs to place children into pre-adoptive placements prior to termination of parental rights.
Interjurisdictional Adoption. States are required to assure that they will develop plans for the effective use of cross-jurisdictional resources to facilitate timely permanent placements for children awaiting adoption. In addition, states are subject to the loss of all federal Title IV-E funding if the Secretary of HHS finds that, after the date of enactment, a state with responsibility for handling the case has:
- denied or delayed the placement of a child for adoption when an approved family was available outside the jurisdiction; or
- denied an opportunity for a fair hearing to an individual whose allegation of a violation of this provision was denied by the state or not acted upon with reasonable promptness.
General Accounting Office Study. The General Accounting Office (GAO) is required to study and report to Congress on how to improve procedures and policies to facilitate timely adoptions across state and county lines.
TITLE III: ADDITIONAL IMPROVEMENTS AND REFORMS
Reauthorization and Expansion of the Family Preservation and Support Program. The Family Preservation and Support Program, renamed "Promoting Safe and Stable Families," is reauthorized through FY 2001 at the following levels: $275 million in FY 1999; $295 million in FY 2000; and $305 million in FY 2001 (increases of about $20 million each year over the current baseline). Also reauthorized are existing allocation provisions, including a one percent reserve for Indian tribes, and set-asides for court improvement grants and for evaluation, training, research, and technical assistance.
State plans are required to contain assurances that in administering and conducting programs, the safety of the children to be served will be of paramount concern. States are required to devote significant portions of their expenditures (after spending no more than 10 percent of their allotment for administrative costs) to each of the following four categories of services:
- community-based family support services;
- family preservation services;
- time-limited family reunification services; and
- adoption promotion and support services.
Time-limited family reunification services are defined as services and activities provided to children (and their parents) who have been removed from the home and placed in foster care, for up to 15 months, beginning on the date of their removal from the home. Such services and activities may include:
- individual, group, and family counseling;
- inpatient, outpatient, or residential substance abuse treatment;
- mental health services;
- assistance to address domestic violence;
- temporary child care services and therapeutic services for families, including crisis nurseries; and
Adoption promotion and support services are defined as pre- and post-adoption services and activities designed to expedite the adoption process and support adoptive families.
Permanency Hearings. States are required to hold a first dispositional hearing, reanamed a "permanency" hearing, within 12 months (formerly 18 months) of the date the child is considered to have entered foster care. Entrance is defined as the earlier of the date of the first judicial finding of child abuse or neglect or 60 days after the childs removal from the home.
The purpose of the hearing is to determine the childs permanency plan, which would include the timetable for:
- returning home;
- being placed for adoption;
- being placed with a relative;
- being referred for legal guardianship; or
- being placed in another planned, permanent living arrangement.
Health Care Coverage for Adopted Children with Special Needs. States are required to provide health insurance coverage for any child with special needs for whom there is an adoption assistance agreement between the state and the adoptive parents and who the state has determined could not be placed for adoption without medical assistance because the child has special needs for medical, mental health, or rehabilitative care. Such health insurance coverage can be provided through Medicaid or one or more state medical assistance programs, if coverage is Medicaid-comparable.
Quality Standards of Out-of-Home Care. By January 1, 1999, states must certify that they will develop and implement standards to ensure that children in foster care placements in public or private agencies receive quality services that protect the safety and health of children.
Eligibility for Adoption Assistance in Cases of Dissolved Adoptions. Children with special needs who had previously been eligible for federally subsidized adoption assistance under Title IV-E, and who again become available for adoption because of the dissolution of their adoption or death of their adoptive parents, continue to be eligible for assistance under Title IV-E in a subsequent adoption. This provision applies only to children whose subsequent adoption occurs on or after October 1, 1997.
Eligibility for Independent Living Services. Young people who are no longer eligible for federal foster care assistance because their savings and other assets exceed $1,000 will still be eligible for independent living services provided their assets do not exceed $5,000.
Child Welfare Demonstrations. The Secretary of HHS may approve up to 10 demonstration projects in each of FYs 1998 through 2002 that are likely to promote the objectives of the federal foster care and adoption program. In approving demonstrations, the Secretary must take into consideration the effect of the demonstration on any court orders in the state for violations of federal requirements under Title IV-B or IV-E and must consider applications designed to:
- identify and address barriers resulting in delays in adoptive placements for foster children;
- identify and address parental substance abuse problems that endanger children and result in foster care placements; and
- address kinship care.
Health Care Coverage. Demonstrations can be approved only for those states providing health insurance coverage to any child with special needs for whom there is in effect an adoption assistance agreement between the state and an adoptive parent or parents.
Kinship Care Report. The Secretary of HHS is required to convene an advisory panel on kinship care and submit an initial report to the advisory panel on the extent to which foster children are
placed with relatives, no later than June 1, 1998. The advisory panel will review the Secretarys initial report and submit comments by October 1, 1998. Based on these comments and other information, the Secretary will submit a final report by June 1, 1999 to the Committees on Ways and Means and Finance, containing recommendations.
TITLE IV: MISCELLANEOUS PROVISIONS
Coordination of Substance Abuse and Child Protection Services. The Secretary of HHS is required to submit a report to the Committees on Ways and Means and Finance on substance abuse services. The report must be based on information from the Substance Abuse and Mental Health Services Administration and the Administration for Children and Families and include:
- the scope of the problem of substance abuse in families served by child welfare agencies;
- the types of services provided to such families;
- the outcomes resulting from the provision of such services; and
- any recommendations for legislation to improve coordination in providing services to families.
Standby Guardianship. It is the sense of Congress that states should have laws and procedures permitting a parent who is chronically ill or near death to designate a standby guardian for their minor child, without surrendering their own parental rights. The standby guardians authority would take effect upon the parents death, mental incapacity or physical debilitation and consent.
Preservation of Reasonable Parenting. Nothing in this legislation is intended to disrupt the family unnecessarily or intrude inappropriately into family life or prohibit the use of reasonable methods of parental discipline or to prescribe a particular method of parenting.
Purchasing American-made Equipment. It is the sense of Congress that, to the greatest extent possible, all equipment and products purchased with funds provided under this Act should be American-made.
Funding. $40 million (over four years) is taken from the $2 billion federal Contingency Fund for State Welfare Programs, created by the 1996 welfare reform law. The Secretary of HHS is required to make recommendations to Congress by March 1, 1998 for improving the operation of the contingency fund.