ASFA Overview

The words “Adoption and Safe Families Act” or “ASFA” may be used when referring to either the Federal law or New York State law. For the purposes of these training materials all references are to the New York State Adoption and Safe Families Act (ASFA) The Federal Law was enacted November 17, 1997. The New York State enabling legislation went into effect February I 1, 1999 and affected immediately all children already in care and all JD and PINS cases. The system really has two parts:

  • the social services process and
  • the legal process.

The purpose of ASFA is to speed up the legal process. The primary purpose of the law was to shorter the length of time a child spends in foster care and speed up the process of freeing children for adoption. ASFA places primary importance upon the safety of the child. This is a change from the focus upon keeping the family together and/or having the goal of reunification of the family, regardless of how long or what the probability of that reunification was going to be. AFSA was intended to correct such problems as:

  • children remaining in foster care for years, and in some cases most of their lives
  • a case being heard by different judges over the life of the case
  • the necessity of the social services system to provide a wide variety of services even in light of the failure of the parent to successfully complete the offered programs
  • persons with criminal backgrounds able to be foster and adoptive parents (now applicants must have their fingerprints taken and criminal records searched)

The ASFA Date – ASFA has specific dates, often referred to as “the ASFA date.”

  • In Article 10 (abuse and neglect) cases the ASFA date is:
    • the date of finding of abuse or neglect, or
    • after 60 days after the removal of the child from the home and temporary placement, whichever is earlier.
  • In PINS and JD cases. ASFA date is: the date of the removal from the home plus 60 days; this has been deemed to include remands
  • In Voluntary Placements, the ASFA date is: the date of the removal from the home plus 60 days.

Foster Care Review/Permanency Hearing – Prior to ASFA, the time between reviews of a case could be up to 18 months apart. With ASFA, the reviews are to be held within 12 months. In some designated felonies, the reviews may be up to 18 months apart. In addition, some terminology regarding reviews has changed. In the past, when it was time to review the status of a foster child, an Extension of Placement Hearing occurred. Now, the review is called a Permanency Hearing. The definition of permanency is a safe, consistent, nurturing, permanent home in which a child can grow to adulthood. A Permanency Hearing must be held within 12 months of the placement of the child. Any subsequent hearings will be at 12 months. The goal of the permanency hearing is to insure that a Permanency Plan will be in place for the child

The Permanency Plan – A written Permanency Plan must be included with the petition to review the placement. The Permanency Plan must consider the five choices for the termination of a child’s stay in foster care. The five alternatives for permanency are:

  • The child will be returned to the parent
  • The child will be placed for adoption and a termination of parental rights petition filed
  • The child will be referred for legal guardianship
  • The child will be permanently placed with a fit and willing relative
  • The child will be placed in another planned permanent living arrangement if a compelling reason has been documented so that the court can determine that it would not be in the child’s best interest to be placed according to the prior 4 alternatives.

Note: It should also be noted that setting up a program such as Independent Living Skills does not constitute a Permanency Plan.

Reasonable Efforts/No Reasonable Efforts – The Department of Social Services (DSS) is required to make Reasonable Efforts to either prevent the removal of the child from his or her home or bring about the safe return of the child to his or her home after removal. Under the appropriate circumstance, the Court can issue an order relieving the DSS of having to make reasonable efforts to bring about the safe return of a child to his or her home. If the court dispenses with the need for reasonable efforts, then there may also be no need to prove diligent efforts to reunite the parent and child. This is called making a “no reasonable efforts” decision/ruling.

The court may be asked to issue a “no reasonable efforts” order, stating that the agency does not have to make all reasonable efforts to maintain the children in the home or to maintain the legal tie of the child to the parent. Before ASFA, agencies had to make ALL reasonable efforts to maintain the “family ties.” One issue the court MUST consider in the “no reasonable efforts” order is whether domestic abuse has occurred in the home. In addition, if the following are proven by clear and convincing evidence, the Court will issue a “no reasonable efforts” decision:

  • severe and repeated abuse
  • sexual abuse
  • murder of a sibling
  • voluntary manslaughter of another child
  • attempted murder of a sibling or attempted voluntary manslaughter of another child
  • solicitation of a child
  • assault in the 1st and 2nd 1egree
  • prior involuntary termination of a sibling and
  • some cases involving aggravated circumstances and/or certain types of criminal convictions.

Every order must have language indicating whether “reasonable efforts” are to be made and saying why that decision was made.

Termination of Parental Rights (TPR) – A termination of parental rights petition must be filed if: (1) the child has been in care 15 of the past 22 months, (2) the child has been abandoned, i.e., no contact by the parent within the past 6 months, or (3) the parent has been convicted of one of the enumerated crimes (listed above) UNLESS

  • the child is in the care of a relative
  • there are compelling reasons that termination are not in the best interests of the child
  • the agency has not provided services (unless the services are not LEGALLY required)

Compelling reasons for not filing a termination petition – (This section conflicts with the federal ASFA so may be changed or invalidated)

  • The child is in care on a JD or PINS petition and the review of the specific facts and circumstances of the child’s placement demonstrate that the appropriate goal is either a return to the parent or guardian or independent living
  • There is a permanency goal other than adoption because of the best interests of the child, such as a situation where the child’s therapist feel it would emotionally harmful to the child or where a safe return to a parent is imminent
  • The child is 14 or older and will not consent to an adoption.
  • Insufficient legal grounds for a TPR
  • The child has not been in care for 12 months.
  • The child has not been abandoned.
  • An Article 10 disposition is still pending and  a review of the specific facts and circumstances of the child’s placement demonstrate that the appropriate goal is discharge to parent or guardian
  • Any other reason, such as “best interest of the child,” which can be clearly documented.

Hearing Notice Requirements – Because, under the ASFA, termination of parental rights can occur when a child is in foster care for 15 of the 22 months ( 15/22 rule), there must be notice given to parents to insure they are aware of this when the child enters foster care. Foster parents, pre-adoptive parents and relatives with custody must also be notified about proceedings and given an opportunity to be heard. At any time prior to termination, the court may issue an order to suspend the judgment. ASFA also gives foster parents, pre-adoptive parents or relatives providing foster care notice of the permanency hearings and the opportunity to be heard. However, such persons are not granted party status unless they would have party status under the current law, when the child has been in their home for a year or for any FCA I 055-a (Abuse and Neglect) matter.

Source: The New York State CASA Volunteer Operations Information Compendium with Examples, CASA Advocates for Children of New York State, 99 Pine St. C102, Albany, NY 12207-2776

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