On February 11, 1999, New York State enacted chapter 7 of the Laws of 1999 to comply with the requirements of the 1997 federal Adoption and Safe Families Act (“ASFA”). In mandating state legislation, the federal intention was to speed up the process by which those children in foster care, who can not be returned safely to their biological families, are freed for adoption. This statute has a profound effect on the entire foster care and child welfare system in the state of New York. The ASFA affects both agency and private adoption practice in several ways, which are the focus of this chapter. Of perhaps greatest significance to the process is that fingerprinting of prospective adoptive parents is now mandated. If a prospective adoptive parent has specific criminal convictions, he or she will be disqualified from adopting.
Certain provisions of ASFA provide assistance to foster parents who are interested in adopting their foster children. The statute mandates time frames for foster care agencies to free foster children for adoption. This will increase the numbers of children available for adoption through the foster care route. The statute also gives foster parents a voice in the process of deciding the best plan for a safe permanent home for children in foster care. Although not directly mentioned in the New York statute, the federal statute requires that | foster care agencies not discriminate against out-of-state placements for adoption of foster children. Those sections of New York State’s ASFA provisions that are most directly relevant to adoption practice are summarized in the sections below.
II. FINGERPRINTING AND CRIMINAL RECORD CHECKS OF ADOPTIVE PARENTS
Criminal record checks must be done on all prospective adoptive parents, and on all persons in the household over 18 years of age, as part of the process to qualify as approved adoptive parents in agency adoptions. Fingerprints and criminal record checks of prospective adoptive parents are mandated in the pre-certification process in private adoption. When foster parents are adopting, the fingerprinting process will already have occurred as part of the qualification to become foster parents. The fingerprints are kept on file and any criminal convictions are tracked. The foster parent who has been fingerprinted and tracked as a foster parent need not be fingerprinted again as part of the adoption process. In both private and agency adoptions, the prospective adoptive parent will not qualify if:
- The proposed parent has ever had a felony conviction for child abuse, neglect, spousal abuse, a crime against a child or child pornography;
- The proposed adoptive parent has ever had a felony conviction involving violence including rape, sexual assault or homicide and all crimes designated as violent felonies by the New York State Penal Law. If the felony conviction is for physical assault or battery, then adoption will only be denied if such a conviction occurred within the last five years;
- The proposed adoptive parent has had a felony conviction for any drug-related offense within the last five years.
An adoptive parent’s application must be put on hold by an agency if the adoptive parent has any of the above criminal charges pending. The same list of disqualifying convictions is applied by agencies to persons seeking to become foster parents, whether they wish ultimately to adopt or not. If children are foster children in a foster home where the foster parent is convicted of any of the disqualifying crimes, the children will be removed and the foster parent will no longer be permitted to provide foster care for children. In agency adoptions, agencies have discretion to deny adoptive parent status if the adoptive parent has any other criminal conviction other than the ones above or if anyone in the household over the age of 18 has any criminal conviction. The agency will do a safety assessment to determine if the conviction has any relevancy to the safety of the child.
III. PERMANENCY HEARINGS FOR CHILDREN IN FOSTER CARE
Concerned with the issue of achieving safe permanent homes for children who have extended stays in foster care, the law requires that the court take a careful look at the foster child’s situation. The court must consider as one possibility, amongst others, that the child should be freed for adoption. All children foster care must be provided with a “permanency hearing” within 12 months of the child’s placement in foster care. The 12 months is calculated as starting 60 days after the child was removed from the home or as starting from the date of a court finding of abuse or neglect, whichever is sooner. A subsequent permanency hearing is held every 12 months for as long as the child remains in foster care. Hearings also occur for foster children who have been freed for adoption, but have yet to be adopted.
At the permanency hearing, the court must determine the appropriateness of the agency’s permanency plan for the child. One permanency option that the court can consider is placing the child in an adoptive setting and having the foster care agency take legal steps to file a termination petition to end the parental rights of the biological parents. This option is likely to be considered in situations where it appears that, despite the agency’s offers of services to the biological parent, he or she will not or cannot provide a safe, loving home for the child. Other permanent options may be considered for the child as well. Even if the agency was not intending to file for termination of parental rights, the judge can order the agency to file a termination petition or the judge can order the law guardian for the child to file a petition. At the first permanency hearing held after the child has been in foster care one year, it is likely that the parties will discuss the upcoming 15-month time frame, which mandates the filing of a termination petition as described in section V below. There may well be a discussion about the biological parents’ success, or lack thereof, in resolving the problems that have caused the child to be in care, and the resulting likelihood that adoption may be an appropriate option for the child.
This permanency hearing may be an important event for foster parents who wish to consider adoption of their foster child. All foster and pre-adoptive parents and all relatives providing care for a child must be provided with notice of all court permanency hearings. They are to be given an opportunity to be heard by the court on the issue of the plan for the child, including the possibility that the child could be freed for adoption. Foster parents should consider appearing in court for the child’s permanency hearing, particu1arly if they are interested in adopting the child.
IV. ACCELERATED PERMANENCY OPTION
Foster care agencies have an obligation to assist biological families with services for a period of time, usually in excess of a year, before the agency can petition to terminate parental rights and place the child for adoption. Under ASFA, family court is now empowered to make a finding, in earlier stages of a foster care placement, that efforts will not be made by the agency to return the child to the home after a child has come into care. This option is only available in very specific factual circumstances. In these cases, foster children may be identified and freed for adoption sooner than otherwise. Foster parents who are interested in adoption and believe that the child’s situation may fall into one of the categories below may want to speak to the foster care agency about this possibility. The circumstances in which the court could consider this possibility are narrowly limited to three categories of situations:
- Aggravated circumstances: This category involves cases of serious physical and sexual abuse of a child, which results in a foster care placement;
- Criminal convictions: This category involves cases where the parent has been criminally convicted of serious violent crimes against a child that he or she was legally responsible for, or against the parent’s own child. The crimes include murder or voluntary manslaughter in the first or second degree and attempting, soliciting, conspiring or facilitating the murder or manslaughter of the child. Also included are parental convictions for assault in the first or second degree or the crime of aggravated assault upon a person less than 11 years old where the child sustained serious physical injury;
- Prior involuntary termination of a sibling: This category involves cases where the parental rights of the parent have been involuntarily terminated in the past regarding a sibling or half sibling of the child currently in foster care.
V. THE MANDATORY FILING OF TERMINATION OF PARENTAL RIGHTS PETITIONS REGARDING BIOLOGICAL PARENTS OF CHILDREN IN FOSTER CARE
The ASFA requires local departments of social services and foster care agencies to act more quickly to bring petitions to terminate the parental rights of biological parents whose children have remained in foster care and free the children for adoption. Foster care agencies are mandated to file a petition to terminate parental rights and thus free a child for adoption in three specific circumstances:
- Where a child has remained in foster care 15 out of the most recent 22 months, calculated as starting at the time of a finding of abuse or neglect or 60 days after temporary placement in foster care, whichever is sooner; or
- Where a court has determined a child to be abandoned, generally after six months of no contact by the biological parent; or
- Where a child’s parent has been criminally convicted of the crimes that are listed in section IV. below
This first mandate, to file a termination petition if the child has been in care for more than 15 of the last 22 months, is quite significant for foster parents who wish to adopt. Foster children will be freed for adoption more quickly than in the past and in larger numbers. Although agencies may have legal grounds to file to terminate parental rights after the child has been in care a year or more, many agencies routinely give the parents more than a year to resolve their problems. The statute mandates that unless one of the exceptions below applies, the agency must begin the process to free the child for adoption after the child has remained in care 15 months. There are three significant exceptions to the mandate to file to free a foster child for adoption. If the agency documents one of these exceptions, the need not file to terminate the parental rights of the biological parent. The three exceptions are the following:
- The child is in the care of a relative;
- The agency documents in the most recent case plan a “compelling reason” why it is not in the child’s best interests to have a termination petition filed; and
- The agency has not yet provided the services that are necessary to attempt to reunify the biological family.
Of these three exceptions to the rule, the possibility of a “compelling reason” why it is not in the child’s best interests to be adopted is the most common reason that an agency chooses in deciding not to attempt to free the child for adoption. These “compelling reasons” can include such situations as the following:
- The child is in foster care due to a Person In Need of Supervision or Juvenile Delinquency order and has certain needs for supervision that can only be met in a foster care setting;
- The child has a permanency goal other than adoption, such as a return to the biological parent, and the child is likely to be released from foster care soon;
- The child is 14 years or older and will not consent to an adoption;
- There are insufficient legal grounds for a termination of parental rights action against the parent;
- The neglect or abuse action against the parent is still pending.
There is likely to be discussion at the first permanency hearing for a child who has been in foster care for a year about the likelihood that adoption may be considered as the best alternative for the child. There may be particular focus at that time on the upcoming mandate for filing a termination petition and the possibility that one of the exceptions may apply. Section III above describes the permanency hearing in more detail.
Significantly, if the agency is required to file the termination and does not file, or if the court orders the agency to file to terminate the parental rights and the agency does not file, the foster parents may file the termination petition themselves. If that occurs, the agency is mandated to join the petition. It may be quite expensive and tedious for a foster parent to take on the task of filing the termination petition, which may or may not result in the child actually being freed for adoption. A foster parent considering such a decision should obtain good legal advice. An attorney for a foster parent in this situation may well wish to consult with the agency attorney about the circumstances before filing a termination petition on behalf of the foster parent. The child’s attorney can also file to terminate the parental rights of the biological parent, but only if the court orders the child’s attorney to file a petition.
VI. OTHER ASFA EFFECTS ON ADOPTION
The Adoption and Safe Families Act provides some monetary incentives to local districts to increase the number of foster children that are adopted. Some of the financial incentives can be used to provide post-adoption services to foster families who adopt foster children. The statute mandates that medical assistance payments shall be made for all “special needs” children who are being adopted and for those “hard to place” children who are being adopted by retired persons. Although the New York State statute does not specifically mention the requirement, the federal Adoption and Safe Families Act mandates that agencies are not to delay adoption placements in situations involving cross-jurisdictional adoptions.
It is likely that the number of foster children who are surrendered by their biological parents for adoption will increase in light of the requirements of ASFA. An increase in biological surrenders means an increase in the discussion of conditional surrenders and “open adoptions.” Foster parents should be aware of this possibility and be prepared to advocate a well thought through position regarding issues such as the child having ongoing contact with the biological parent.
The following is a list of “ASFA” Considerations for Foster Parents Who may Wish to Adopt:
- Is the child in a situation that would qualify for expedited permanency, such as a situation involving placement due to parental physical or sexual abuse or where the biological parent’s right to other children have been terminated?
- Will it be an advantage for the foster parent to appear in court for the child’s permanency hearing, and what should the foster parent advocate for at such a hearing? Will the judge consider ordering the agency or the law guardian to file a termination of parental rights petition?
- Will the agency be filing to terminate parental rights within the time frames required by ASFA? If the agency is filing to terminate parental rights, should the foster parent consider filing an expedited adoption petition at this time?
- If the agency is not filing to terminate parental rights within the time frame established by ASPA, what is the exception that it is claiming? Can the foster parents provide any information to the agency that would help in the determination to file a termination petition or the decision that an exception to the mandate to file exists?
- Should the foster parents themselves consider filing to terminate the parental rights of the biological parent? Should the foster parents support a law guardian’s request to file a termination petition?
- In light of ASFA mandates, would the biological parent consider a surrender of the child for adoption? Should the surrender be conditional? What conditions would be in the child’s best interests? What conditions might be difficult or impossible for the adoptive family?