Expedited Termination of Parental Rights: Risks and Benefits

The Historical Context

Termination of parental rights, as a component of US child welfare policy, is not a new concept, although historically, its role in the context of planning for children in foster care has ebbed and flowed. In the 1970s, foster care policy in the United States emphasized the removal of children from any unsafe environment, and children entered foster care and remained in care for extended periods of time [Guggenheim 1995]. Critics of the foster care system of that era included the United States Supreme Court, which in 1977 in Smith v. Organization of Foster Families [431 U.S. 816, 836] observed that in the New York foster care system "the median time spent in foster care . . . was over four years. Indeed, many children apparently remain in this 'limbo' indefinitely." "Foster care drift" emerged as a term to describe the experience of most children in foster care at the time -- protracted stays often involving multiple foster care placements [Shotton 1990]. It became clear that the foster care system of the 1970s was poorly serving children -- they were often separated from their families; few efforts were undertaken to reunify them with their parents; but, at the same time, there was a general reluctance to free them for adoption through termination of parental rights [Guggenheim 1995].

The federal Adoption Assistance and Child Welfare Act of 1980 was enacted in direct response to the significant problems within the foster care system. The Act, which nationalized many of the rules for foster care, was designed with three goals in mind: prevent the unnecessary placement of children in foster care; reunify families whenever possible; and reduce the time that children spent in foster care by encouraging adoption when reunification was not possible. Time frames were established to ensure that permanency plans were made for each child, including a dispositional hearing no later than 18 months after a child entered foster care. With the implementation of these provisions, the number of termination of parental rights cases increased and the number of finalized adoptions grew each year [Tatara 1993].

In the ensuing years, however, the acceptability of termination of parental rights and adoption as a permanency planning option began to decline as concerns grew that with the emphasis on adoption, inadequate efforts were being made to support and preserve birth families. The commitment to renewed efforts in the area of family preservation translated into new federal legislation in 1993 with the passage of the Family Preservation and Family Support Act. Child welfare practice and policy had undergone a shift: the willingness to pursue termination of parental rights and adoption was largely replaced by a philosophy which that in virtually all cases, families should be kept together or when separation was necessary because of protective service reasons, families should be reunited. During the late 1980s and early 1990s, adoptions nationally stagnated at 17,000 to 21,000 adoptions of children in foster care per year even as the population of children in foster care increased significantly and median stays in care lengthened [Tatara 1993]. Criticism of the emphasis on family preservation and the de-emphasis on adoption, however, began to grow within a few years. Critics pointed to unsafe conditions for children in families, "reasonable efforts" to reunify families going to unreasonable lengths in terms of effort and time, and the increasing length of time that children remained in foster care [Gelles 1997; Craig & Herbert 1997].

As the criticism of family preservation mounted and the overall policy environment placed more emphasis on individual responsibility and accountability, child welfare policy shifted once again in the mid 1990s in favor of greater use of termination of parental rights and freeing more children for adoption. Many were convinced that the focus on supporting and preserving families had endangered children and that termination of parental rights should take place more frequently and more quickly for children in foster care. The legislative result of this policy shift was The Adoption and Safe Families Act of 1997.

The New Federal Law and Termination of Parental Rights

The Adoption and Safe Families Act brought termination of parental rights to the fore as a core strategy in permanency planning for children in care. As journalists repeatedly reported as the Act was being debated and then enacted, the provisions related to termination of parental rights were the cornerstone of "speeding adoptions of abused children" [Vobeja 1997; Hess 1997]. The Act highlighted children's needs for safety, and to that end, attempted to establish procedures to ensure that children at risk of harm from their parents would have, with greater immediacy, opportunities for safe and nurturing adoptive families. The Act made two significant changes in federal law regarding termination of parental rights.

First, the new law set out certain circumstances under which "reasonable efforts" to reunify children in foster care with their birth families are not required and which, as a result, can set the stage for quickly moving forward with termination of parental rights [42 USC § 671 (a)(15)(D)]. These circumstances, which must be found by a court of competent jurisdiction, include:

1. The parent has subjected the child to "aggravated circumstances" -- as defined by state law but which may include abandonment, torture, chronic abuse, and sexual abuse.
   • the murder or voluntary manslaughter of another child of the parent;
   • attempt, conspiracy, solicitation or aiding and abetting in the murder or voluntary manslaughter of another child of the parent; or
   • a felony assault that results in serious bodily injury to the child or another child of the parent.
2. The parent has committed certain criminal acts:
3. The parent's rights to a sibling have been terminated involuntarily.

Likewise, when a court of competent jurisdiction determines an infant to be abandoned, the agency is required to immediately file a petition for termination of parental rights [42 U.S.C. § 675(e)(4)(E)], which by implication precludes the need to make "reasonable efforts" to reunify.

Second, the law mandates the filing of a petition for termination of parental rights based on certain time considerations: specifically, when a child has been in foster care under the responsibility of the state for 15 of the most recent 22 months [42 USC § 675(e)(4)(E)].

The provisions to expedite termination of parental rights, however, based on designated circumstances and designated time frames are not absolute. The law provides several exceptions to the mandate that a termination of parental rights petition be filed:

1. The state may opt not to file for termination of parental rights when the child is being cared for by a relative;
2. The state agency need not pursue termination of parental rights if it documents in the case plan a "compelling reason" that filing a termination of parental rights petition would not be in a child's best interests; and
3. In those cases in which "reasonable efforts" to reunify are required, the state agency is not required to file a termination of parental rights petition if it has not provided to the family the services necessary for the safe return of the child to them.

Will Expediting Termination of Parental Rights Under the New Federal Law Make a Significant Difference in Outcomes for Children in Foster Care?

The extent to which expedited termination of parental rights will result in improved outcomes for children in foster care is likely to be affected by four sets of factors: (1) the federal termination of parental rights framework; (2) state responses to the federal mandates; (3) the impact of adversarial approaches to achievement of permanency; and (4) the extent to which adoption-related services are provided to ensure that children who are freed for adoption are promptly placed with well-prepared adoptive families who provide them with the benefits of permanency.

1. The Federal Termination of Parental Rights Framework

In assessing the likely impact of the federal expedited termination of parental rights provisions, certain realities regarding the framework itself must be recognized. First, the mandate under the new law is to file a petition for termination of parental rights; it is not a requirement that states terminate parental rights under the designated circumstances or within the designated time frames. The distinction between filing a termination of parental rights petition and the actual termination of parental rights is an important one. Consistently, research has shown that delays in achieving permanency plans for children occur at different points in the permanency planning continuum. Certainly, delays occur with regard to the decision to pursue termination of parental rights and adoption, and the federal Act addresses this phase of the continuum.

There are, however, equally troubling delays between filing the petition for termination of parental rights and actually terminating parental rights, between termination of parental rights and the adoptive placement, and between the adoptive placement and finalization of the adoption [United States General Accounting Office 1993; McMurtry 1992]. These delays reflect critical systems issues that exist at the interface between child welfare agencies and the courts. As a consequence, if termination of parental rights is to be expedited, mandatory filings at designated times or because of designated factors will not be sufficient; the court process also must function in a way that makes timely decisions possible -- through procedures and timetables that are set out in statute, court rules, or less formal court procedures [National Council of Juvenile and Family Court Judges 1995]. These issues are being addressed by court improvement projects across the country and highlight the critical work in the judicial system that must accompany the mandates in the Act [Hardin & Lancour 1996].

Second, the number of "eligible" cases for expedited termination of parental rights as spelled out in the Act may not be as large as might be believed. The number of cases captured by the categories of designated circumstances which warrant no "reasonable efforts" to be made to reunify is likely to be somewhat limited. Although no definitive data exists regarding the reasons that children enter foster care, the Chapin Hall Center for Children estimates that 40 to 50 percent of the children who enter care do so because of neglect, approximately 30 percent enter care because of some form of abuse, and only 10 percent enter care because of sexual abuse [Hackett 1998]. As these estimates suggest, only a small percentage of children are in care because of the "aggravated circumstance" of sexual abuse, and it is likely that even fewer are in care because of torture or because their parents have murdered the child's sibling or committed a felony assault on a child. Although accounts of practice to the contrary certainly exist -- including the 1998 case in which a District of Columbia court returned custody of a child to a mother who had been convicted of murdering the child's sister [Donnelly 1998]-- the small number of egregious cases involving "aggravated circumstances" represent the "easy" cases for termination of parental rights. As a result, the federal law may, in effect, only validate termination of parental rights in the small number of cases in which there is not likely to be serious dispute about the propriety of the decision.

Termination of parental rights actions are likely to occur in greater numbers based on the time-based grounds of a child having spent 15 of the most recent 22 months in foster care. The exceptions to the requirement of filing a termination of parental rights petition in these cases, however, are so broad as to raise questions about the extent to which this provision will lead to significant increases in the number of termination of parental rights petitions. First, states may choose not to file for termination of parental rights when the child is being cared for by a relative. Kinship care of children is the fastest growing segment of out-of-home placement [Gleeson 1996]. Data suggest that in many parts of the country, as many as one-half of the children in foster care are being cared for by relatives [Dubovitz, et al. 1994], and research suggests that in many communities caseworkers in overwhelming numbers believe that kinship foster parents have little or no interest in adoption [Thornton 1991] . The exemption of kinship care from the expedited termination of parental rights provision, as a result, could significantly diminish the number of cases subject to the federal mandate.

Second, a state child welfare agency may avoid the mandate by documenting in the case plan a "compelling reason" that filing a termination of parental rights petition would not be in a child's best interests. States will be free to define the circumstances constituting a "compelling reason", and it is possible that states will take a very broad view of such reasons. In New York State, for example, it has been proposed that the state statute include as a compelling reason that the child is "not adoptable." Such an approach, which implicitly suggests that a child with special needs and/or of older age is "unadoptable", could well exempt large numbers of children -- including those most in need of adoption -- from the expedited termination of parental rights mandates.

Finally, in those cases in which "reasonable efforts" are required to reunify, the agency is not required to file a termination of parental rights petition if it has not provided to the family the services necessary for the safe return of the child to them. This provision was designed to protect families from termination of parental rights actions when they have not been given a fair opportunity to resolve the problems that brought their children into care [Sullivan 1998]. The exception, nevertheless, exempts agencies from doing what they are otherwise required to do under federal law on the basis that they already have failed to do what they were required to do under federal law.

2. State Responses to Federal Expedited Termination of Parental Rights Mandates

In addition to the issues related to the federal framework itself, the effectiveness of the expedited termination of parental rights provisions of the federal law will also hinge on the extent to which states make the requisite changes in their laws to comply with the new federal mandates. Historically, state statutes governing termination of parental rights, though somewhat variable, have shared certain elements. First, state statutes commonly require that the state prove certain things: current parental unfitness that is not amenable to intervention; that services were provided to the parents in an attempt to remedy the problems that led to the child's entry into foster care; and that the parent either did not use the services or did not show adequate progress. Second, state statutes typically require a showing that termination of parental rights is in the best interest of the child. Finally, uniformly, the evidence supporting these elements is required to be clear and convincing [Grisso, 1986; Schetky & Benedek 1992]. With regard to current state laws regarding "expedited" or "early" termination of parental rights, there is significant variation. Some states allow expedited termination of parental rights under specified circumstances. Other states do not allow expedited termination of parental rights under any circumstances. Their laws either mandate a waiting period following the child's entry into foster care or require proof that reasonable efforts have been made to reunite the family and have failed. Other states have very broad termination of parental rights provisions that make it unclear whether expedited termination of parental rights is permitted [Hardin & Lancour 1996].

As a result, in many states, new legal grounds will need to be created to permit courts of competent jurisdiction to terminate parental rights in accordance with the federally designated circumstances for expedited termination of parental rights. In many states, statutes also will need to be revised to reflect the federal time frames for filing a termination of parental rights petition.

An example of an area in which state law changes may be needed is in cases of abandonment. Currently, all states recognize abandonment as a basis for termination of parental rights [Hardin & Lancour 1996]. There are, however, substantive variations in state law, particularly in the definition of the behavior that constitutes abandonment and differences in the time period that constitutes "abandonment". In some states, the definition is quite specific while in others extremely broad; in some states, the time period is relatively short while in others longer, with additional time periods required for searches for absent parents. Because federal law only broadly references abandonment, the definitional differences presumably could continue, although the extent to which expedited termination of parental rights would be available on the grounds of abandonment may vary radically from state to state. The time frames, however, must be brought into compliance with federal mandates.

3. The Implications of An Adversarial Approach to Achieving Permanency

The federal provisions that address expediting termination of parental rights are based on the assumption of an adversarial process in which the rights of parents will be involuntarily terminated. Because the involuntary termination of parental rights impinges on constitutional rights as recognized by the United States Supreme Court, the process must incorporate certain legal protections, including representation of the parties and demonstration by clear and convincing proof of current parental unfitness that is not amenable to remediation. The adversarial process through which a birth parent is stripped of all rights to her child necessarily carries with it financial and psychological burdens: (1) the court, attorney, expert witness, and other costs associated with litigation and, in some cases, appeals and (2) the emotional toll on birth parents, children, and agency staff exacted by a process designed to prove the parent a failure [Borgman 1981].

The federal mandates do not specifically address the role that voluntary relinquishment may play as an alternative for exploration before the agency is mandated to pursue a course of action to involuntarily terminate parental rights. It also, however, does not preclude such a consideration in the context of concurrent planning and/or mediation with families whose children are in foster care. Particularly in those case in which reasonable efforts are required and termination of parental rights may be sought on time-based grounds, there are potential benefits in providing parents with an opportunity to consider a range of options voluntarily prior to positioning the matter in an adversarial mode [Sandt 1997]. In addition to savings in time and money that nonadversarial approaches may make possible, such approaches as mediation and voluntary relinquishment may provide a stronger foundation for permanency for children. Research suggests that adoption practice involving involuntary termination of parental rights may create serious problems for many children [Borgman 1981]. One study, which compared outcomes for children in foster care freed for adoption through involuntary termination of parental rights with outcomes for children in foster care freed through voluntary relinquishment, found that "the adversary nature of the [involuntary] proceedings and their length left the child[ren] in a limbo of anxiety and heightened loyalty conflicts in relation to the parents, grief about losing them, and hostility toward the agency seeking termination" [Borgman 1981:402-403]. A significant number of children in this study who were freed for adoption through involuntary termination successfully resisted their adoptions and returned to foster care after their adoptions disrupted; by contrast, the more stable adoptions were associated with voluntary relinquishment of parental rights which parents and children alike seemed to view in a positive light [Borgman 1981].

Similarly, absent in the federal law is a recognition of flexibility within permanency planning options. The permanency alternatives in the law are cast as a dichotomy: reunification with birth family or termination of parental rights with the complete severance of the parent-child relationship. In practice, it has become increasingly evident that in many cases, particulary those in which reasonable efforts are required and those in which children are older and have relationships with birth family members, it is not only possible but in children's best interest to maintain ties with their birth families following adoption [Melina & Roszia 1993; Etter 1993]. An emphasis on expediting the complete severance of the child's connection with her birth family may work against positive outcomes for children in much the same way that involuntary terminations of parental rights may heighten children's sense of loss and exacerbate loyalty conflicts [Borgman 1982] . Similarly, an overemphasis on expediting the involuntary termination of parental rights may foreclose opportunities for parents to consider voluntary relinquishment and cooperative adoption arrangements that allow some level of ongoing relationship with their children [Etter 1993; Gross 1993].

4. Expedited Termination of Parental Rights and Adoption-Related Services

The Adoption and Safe Families Act, as is evident in the expedited termination of parental rights provisions and in the adoption incentive payments the law provides to states to increase the number of adoptions [42 U.S.C. § 473A], intends to promote adoption "demand" within the foster care system. The emphasis on greater numbers of adoptions is in keeping with President Clinton's December 1996 proclamation of his Administration's goal of doubling the number of children annually who are adopted or placed permanently with families by the year 2002 [United States Department of Health and Human Services 1997].

Quite apart from the new federal law and the Presidential announcement of Adoption 2002, the "demand" side of adoption within the foster care system has expanded over the past several years. As the number of children in foster care has increased, the number of children needing adoption planning and services has escalated, estimated currently to be 100,000 children [United States Department of Health and Human Services 1997]. Finalized adoptions, however, have not kept pace with the heightened demand -- the number of adoptions finalized each year reflects increasingly smaller percentages of children in care who need adoptive families.

If the new law, despite the potential barriers, achieves its goal of freeing more children for adoption through expediting termination of parental rights, there will be a further increase in the number of children in foster care who are in need of adoption planning and services. The growth in adoption demand, already being experienced across the country [North American Council on Adoptable Children 1997; Barth 1996], raises critical questions about the "supply" side of adoption for children in foster care -- the recruitment of an adequate number of well-prepared adoptive families and the provision of ongoing support services following placement and adoption finalization to ensure stability and permanency. While attention has been given to further stimulating demand through expedited termination of parental rights, there has not been equivalent attention paid to enhancing supply through family recruitment, preparation, and post-adoption support.

The Adoption and Safe Families Act does require, when a termination of parental rights petition has been filed, that the child welfare agency "concurrently identify, recruit, process, and approve an adoptive family for the child" [42 USC § 675(e)(4)(E)] and that the agency make "reasonable efforts" to find a family for a child who cannot return home [42 USC §§ 671(a)(15)(F); 675(1)(E) ]. Although worthy goals, these provisions fail to take into account critical realities associated with the "supply" side of adoption:

• the needed resources to ensure the capacity of child welfare agencies to recruit, "process" and approve a sufficient number of families for all children freed for adoption;
• the preparation of prospective adoptive families so that they understand and are ready to meet the special needs of children in foster care whose physical, mental health and developmental status may be compromised, who may have significant medical problems such as those associated with prenatal alcohol and drug exposure or HIV infection, who may be older and have histories of significant abuse or neglect, or who may be members of sibling groups; and
• post-adoption services to support families and assist them in resolving issues that, if left unattended, could lead to disruption, the child's return to foster care, and the need to "re-place" the child with another family.

While some children may well benefit from expedited termination of parental rights in the absence of any additional services, the lack of significant attention to family recruitment, preparation, and post-placement support raises serious concerns. Placing primary, if not exclusive, emphasis on expediting termination of parental rights may result in two populations of children who do not realize the benefits of permanency: a group of legal orphans in foster care disconnected from any permanent family whatsoever and a growing group of children affected by adoption disruption who return to foster care and wait to be "re-placed" with other adoptive families.

In conclusion, let me make a few summary observations:

The Adoption and Safe Families Act of 1997 prominently focuses on expedited termination of parental rights as a strategy for freeing more children in foster care for adoption. The intent of the law is to solve problems associated with children's prolonged stays in foster care which deprive them of the permanency of family and, in many cases, subject them to further emotional and developmental risk. There are, however, questions as to whether expediting termination of parental rights will foster improved outcomes for children. Even assuming that the federal framework and changes in state law support the application of these provisions to greater numbers of children in care, there remain issues regarding the ultimate impact of involuntary termination of parental rights procedures and the complete severance of relationships between children and their birth families. There also are important considerations related to the creation of greater adoption demand when insufficient attention is being paid to the supply-side issues of family recruitment, preparation and ongoing support. While expedited termination of parental may indeed solve the short-term problem of too many children remaining too long in foster care without a definitive permanency plan, it may also sow the seeds of a new predicament related to longer-term stability and permanency for children.