Expedited Termination of Parental Rights: Risks and Benefits (page 2)
This speech was presented at the Dave Thomas Center for Adoption Law, Columbus, Ohio on February 9, 1999
Good morning! It is a pleasure to be here this morning and participate in this exciting conference!
The topic which I have been asked to address is expedited termination of parental rights -- the benefits and risks. In my mind, I have framed the question as: Expediting termination of parental rights -- does it Solve a Problem or Sow the Seeds of a New Predicament?
Expediting termination of parental rights -- and I will use shorthand this morning and refer to it as TPR -- has become a focal point of debate in child welfare policy, particularly with the passage of The Adoption and Safe Families Act of 1997. One point of view holds expedited termination of parental rights to be a critical component in what is often referred to as a "sea change" in child welfare practice and policy -- a purported shift from an undue emphasis on family preservation and family support to a true commitment to child safety and permanency. Others, however, raise questions about the extent to which a focus on expediting termination of parental rights will significantly improve outcomes for children in foster care. They contend that more and quicker terminations of parental rights will not ensure permanency for children, particularly if there is not equal emphasis on recruitment and preparation of adoptive parents and post-adoption support services.
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:
- 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.
- The parent has committed certain criminal acts:
- 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:
- The state may opt not to file for termination of parental rights when the child is being cared for by a relative;
- 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
- 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.
Reprinted with the permission of the Evan B. Donaldson Adoption Institute. © 2007 Evan B. Donaldson Adoption Institute. All rights reserved.
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