Expedited Termination of Parental Rights: Risks and Benefits (page 3)
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.
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.
Reprinted with the permission of the Evan B. Donaldson Adoption Institute. © 2007 Evan B. Donaldson Adoption Institute. All rights reserved.
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