Federal Legislation on Permanency

A. DEFINING PERMANENCY FOR CHILDREN:

“Permanency” means that a child has a safe, stable, custodial environment in which to grow up, and a life-long relationship with a nurturing caregiver. The concept of permanency has assumed a central place in American child welfare law and policy because permanency establishes the foundation for a child’s healthy development. The basic needs of children include safety and protection; a sense of identity; validation of themselves as important and valued persons; stability and continuity of caregivers; an opportunity to learn and grow cognitively, physically and emotionally; and a protected custodial environment that is legally secure. Permanency, as epitomized by a safe, stable relationship with a nurturing caregiver, allows these basic needs to be met.

Permanency can be achieved in a number of ways. A child can be protected within his or her own home, or through reunification with his rehabilitated parents. Extended family can provide short or long term legally sanctioned care for the youngster through adoption or guardianship. Or, alternatively, a child can be adopted by non-relatives. Adoption is generally considered the optimal form of permanence when the biological parents are unable to provide a safe, stable, and nurturing home. However achieved, permanency is a cornerstone of American child welfare policy.

B. MAJOR FEDERAL LEGISLATIVE SUPPORTS FOR ACHIEVING PERMANENCY:

Public Law 96-272, The Adoption Assistance and Child Welfare Act of 1980. This was the first Federal statute to discourage excessive reliance on foster care placement and promote greater use of services to assist and rehabilitate families, preventing out of home placements. It introduced the concept of permanency planning and incorporated specified time frames for decision making for children and families.

Public Law 103-66, The Family Preservation and Family Support Services Program established in 1993 and amended in 1997, focused primarily on the front-end of the child welfare system by providing additional funding for preventive services and crisis services for children and families at risk. Implementation required active involvement of a broad community of stakeholders to focus on needs and services for children and families. The law also created the Court Improvement Program, and provided resources to state courts for the first time, to ensure that courts were responding to the needs of children in foster care. In effect, this legislation highlighted family services and prevention as a national priority, and provided opportunities for state agencies and courts to plan child welfare reforms.

Multiethnic Placement Act (MEPA), (P.L. 103-382) and the Interethnic Placement Provisions (IEP), (P.L. 104-188). Enacted in 1994, MEPA outlawed discriminatory practices, and, in 1996, the IEP clarified the original legislation and created sanctions for states and agencies which fail to comply with the act. MEPA forbids the delay or denial of a foster or adoptive placement solely on the basis of the race, color or national origin of the prospective foster parent, adoptive parent or the child involved. It also compels states to make diligent efforts to recruit and retain foster and adoptive families that reflect the racial and ethnic diversity of the children for whom homes are needed.

With the Interethnic Placement Provisions, Congress subsequently clarified MEPA and repealed that section of the law containing “permissible consideration” language which could have been used to obfuscate the law’s intent. The amendment also dictates a penalty structure and corrective action planning for any state or private agency, which receives federal funds, that violates the amended section of the act. These two statutes are noteworthy for child welfare because they not only required changes in laws and policy; they also required changes in child welfare practice to facilitate more timely placement of children into foster and adoptive homes.

Adoption and Safe Families Act of 1997 (ASFA) (P.L. 105-89). Enacted as an amendment to titles IV-B and IV-E, ASFA is the most comprehensive piece of legislation addressing critical permanency issues in child welfare and the law. The law was a bipartisan action to ensure that children’s safety would be the paramount concern of all child welfare decision-making and to promote the adoption of children who cannot return safely to their own homes. The purposes of ASFA were to shorten the length of time a child spends in foster care, speed up the process of freeing children for adoption, clarify reasonable efforts requirements and hold states and counties accountable.

Safe and Timely Interstate Placement of Foster Children Act of 2006, P.L. 109-239 The law amends Titles IV-B and IV-E of the Social Security Act (the Act) and encourages States to improve protections for children and holds them accountable for the safe and timely placement of children across State lines. Includes two amendments related to child welfare hearings. The first requires all states to institute a court rule mandating that foster, kinship, and pre-adoptive parents be notified of any court proceeding that affects children in their care. The second gives these parents “a right” to participate in these hearings. (see http://www.abanet.org/child/welfare-5.pdf for more)

C. PERMANENCY PLACEMENT OPTIONS UNDER ASFA:

  • Return to Parent: Timeframe must be specified in the plan, all services must be explored and offered, all relevant information must be presented to the court, and non-safety issues preventing reunification identified.
  • Termination of Parental Rights with Placement for Adoption: Adoptive resources recruitment begun as soon as TPR filed, current caretakers or relatives provided information and support re; adoption option and surrender and/or open adoption explored.
  • Referred for Legal Guardianship: Transfers right to protection, education, care and control, custody and decision making; limited state supervision; adoption thoroughly explored first; future interactions between guardian and biological parents discussed; financial ability to care for child and available supports explored.
  • Permanent Relative Placement: Adoption and guardianship explored first; determination made this is best plan weighed against more permanent options, quality of the relationship. Long term commitment and ability to meet child’s needs assessed.
  • Alternate Planned Permanent Living Arrangement: Compelling reasons must be documented such as a significant bond with parent, but parent can’t care for child due to disability. Long term foster care is not an appropriate option under ASFA.

Source: Adapted from “Legal Issues Under ASFA”, Erie County ABA Permanency Planning Project and  from “ADOPTION 2002: Guidelines for Public Policy and State Legislation Governing Permanence for Children

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