Federal laws Affecting State Proceedings

Chapter 38: Federal Laws Affecting State Proceedings

38.1. Introduction
38.2. Child Abuse Prevention and Treatment Act
38.3. Adoption Assistance and Child Welfare Act
38.4. Adoption and Safe Families Act
38.5. Foster Care Independence Act
38.6. Promoting Safe and Stable Families Amendments of 2001
38.7. Safe and Timely Interstate Placement of Foster Children Act of 2006
38.8. Child and Family Services Improvement Act of 2006
38.9. Multiethnic Placement Act
38.10. Court Improvement Program
38.11. Child and Family Services Reviews
38.1 Introduction

Since 1974, federal law has played a major role in the development of state law and policy on child abuse and neglect proceedings. Some laws, such as the Indian Child Welfare Act, discussed in Chapter 39, apply directly to state court proceedings. Most of the laws in this area affect the states because they grant or deny federal funds depending on the state’s compliance with certain conditions.

The federal law on child abuse and neglect is found primarily in Title IV-B and Title IV-E of the Social Security Act. Title VI-B and Title IV-E offer funds to the states for family preservation and support services, child welfare services, state administrative costs in administering child welfare programs, foster care payments, and adoption subsidies. Seventy-five percent of the funds used to support children in foster care in New Mexico is federal money which, under the legislation passed by Congress over the past 25 years, is available only if the state meets eligibility requirements. Similarly, these funds can be withdrawn if requirements are not met.

38.2 Child Abuse Prevention and Treatment Act

Congress began to take an active role in the child welfare system with the adoption of the Child Abuse Prevention and Treatment Act of 1974 (CAPTA), P.L. 93-247, 88 Stat. 4, 42 U.S.C. §§5101–5107. The Act created the National Center on Child Abuse and Neglect, authorized financial assistance to public agencies and private nonprofit agencies for demonstration programs designed to prevent, identify, and treat child abuse and neglect, and provided for grants to states to assist the states in developing, strengthening, and carrying out child abuse and neglect prevention and treatment programs.

CAPTA has been amended a number of times over the years and contains a number of requirements that states must meet as a condition of receiving funds under the Act. States are, for example, required to provide for the reporting of abuse or neglect, immunity for persons reporting abuse or neglect, prompt investigation of reports, and methods for preserving confidentiality of records. The Act also requires that states establish citizen review panels, the requirements for which are outlined in the law, and that provisions be in place requiring that guardians ad litem, who have received training appropriate to the role, be appointed to represent children in abuse and neglect proceedings. Fingerprinting and criminal background record checks are required for prospective foster and adoptive parents and for other adults living in the household. 42 U.S.C. §5106a(b)(2).

When CAPTA was passed, it required that state programs assisted under Title IV-B of the Social Security Act, which was adopted in 1968, meet these same conditions. This requirement remains in effect. Title IV-B, which provides funding for child welfare services and, since 1993, family preservation and family support services, continues to be subject to the conditions listed in CAPTA. 42 U.S.C. §5106a(b)(2)(D). (Title IV-B is found in 42 U.S.C. §§620-629g.)

38.3 Adoption Assistance and Child Welfare Act

While CAPTA brought some attention to the prevention and treatment of child abuse and neglect, less attention was being paid to the child’s long-term need for permanency. It became apparent that children were drifting from foster home to foster home. The Adoption Assistance and Child Welfare Act of 1980, P.L. 96-272, 94 Stat. 500, 42 U.S.C. §§670-676 (and amending §§620-628), was the next major effort to address the needs of children who suffered from abuse or neglect. The Act was intended to protect children when they were in foster care, to shorten the time children spent in foster care and to encourage permanency planning for children through the reunification of families when possible and termination of parental rights and adoption when not.

P.L. 96-272 established Title IV-E of the Social Security Act, which makes federal financial assistance available to states with foster care systems that meet the Act’s requirements. In particular, Title IV-E provided for federal participation in foster care maintenance payments, as well as subsidies for the adoption of children with special needs. The Act also provided for the withdrawal or reduction of financial assistance from states that did not comply with federal requirements. See 42 U.S.C. §§670-676.

For a state to be eligible for payments under the Act, it had to have a state plan in place. The plan had to provide that, in each case, reasonable efforts would be made (1) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (2) to make it possible for the child to return to his home. The plan also had to provide for the development of a case plan for each child receiving foster care maintenance payments, as well as for a case review system for the child. As part of the case review system, the status of the child had to be reviewed by a court at least every six months and the child had to be assured of a dispositional hearing by the court no later than 18 months after the original placement, and periodically thereafter.

Besides having a state plan in place, the state could only make foster care maintenance payments with respect to any given child if the removal from the home was the result of a judicial determination to the effect that continuation therein would be contrary to the welfare of the child. The court also had to find that reasonable efforts to maintain the child in the home or, after removal, to return the child home were made.

These Title IV-E provisions and requirements remain in place today with a number of additions and modifications made by the Adoption and Safe Families Act in 1997, as well as more recent legislation. One of the most significant changes is that the requirement for a dispositional hearing no later than 18 months after the original placement has been changed to a requirement that a permanency hearing be held within 12 months of the date the child is considered to have entered foster care and at least every 12 months thereafter. A permanency plan must be determined at this hearing. See §38.4 below.

38.4 Adoption and Safe Families Act

The Adoption and Safe Families Act (ASFA), P.L. 105-89, 111 Stat. 2115, amending 42 U.S.C. §§671-675, was passed in 1997 to improve the safety of children and to promote adoption and other permanent homes for children who need them, as well as to continue to support families. Stating that the child’s health and safety were of paramount concern, the law made changes in and clarified some of the policies established under the Adoption Assistance and Child Welfare Act of 1980. It contained a wide range of provisions, from reauthorization of existing programs to providing adoption incentives for states.

ASFA regulations were announced by the U.S. Health and Human Services Department on January 25, 2000, and went into effect on March 27. States had 12 months in which to meet some of the requirements, but most had to be met right away. See 65 F.R. 4020 (January 25, 2000), amending 45 C.F.R. Parts 1355, 1356, and 1357. This chapter will focus on the provisions of the ASFA regulations that affect judicial abuse and neglect proceedings.

A state must meet certain requirements in order to comply with foster care program provisions of the Title IV-E state plan or to be eligible to receive federal financial participation for foster care maintenance payments. While some requirements affect state plan compliance alone, others affect the child’s eligibility for Title IV-E foster care payments.

Reasonable Efforts Generally. The state must make reasonable efforts to:

maintain the family unit and prevent the unnecessary removal of a child from his or her home, as long as the child’s safety is assured;
effect the safe reunification of the child and family (if temporary out-of-home placement is necessary to ensure the immediate safety of the child); and
make and finalize alternate permanency plans in a timely manner when reunification is not appropriate or possible. 45 C.F.R. §1356.21(b).
“Contrary to Welfare” Determination in First Court Ruling. A child’s removal from the home must be the result of a judicial determination that continuation in the home would be contrary to the welfare of the child, or that placement outside the home would be in the best interest of the child. This determination must be made in the first court ruling that sanctions (even temporarily) the removal of the child from the home. If this “contrary to the welfare” determination is not made in the first court ruling, the child is not eligible for Title IV-E foster care payments for the duration of that stay in foster care. The omission cannot be remedied. 45 C.F.R. §1356.21(c).
Reasonable Efforts to Prevent Removal. When a child is removed from his or her home, a judicial determination as to whether reasonable efforts were made, or were not required, to prevent removal must be made no later than 60 days from the date the child is removed from his home. If this determination is not made, the child is not eligible for Title IV-E foster care payments for the duration of that stay in foster care. 45 C.F.R. §1356.21(b)(1).
Reasonable Efforts Not Required. Reasonable efforts to prevent removal or to reunify the family are not required where the state agency has obtained a judicial determination that such efforts are not required because:

The parent has subjected the child to aggravated circumstances (as defined in state law);
The parent has been convicted of murder or voluntary manslaughter of another child of the parent, aiding or abetting, attempting, conspiring or soliciting to commit murder or voluntary manslaughter, or a felony assault that results in serious bodily injury to the child or to another child of the parent; or
Parental rights have been terminated involuntarily with respect to a sibling. 45 C.F.R. §1356.21(b)(3).
Foster Care Placement; Limit on Court Role. To satisfy the requirements for a case plan for each child (see §38.3 on P.L. 96-272), the state agency must promulgate policy materials and instructions for use by staff to determine the appropriateness and necessity for the foster care placement of the child. Federal financial participation in foster care payments is not available when a court orders a placement with a specific foster care provider. 45 C.F.R. §1356.21(g).
Permanency Hearing; Deadline. Previously, the Adoption Assistance and Child Welfare Act required that states hold dispositional hearings within 18 months after placement of a child in foster care. ASFA repeals this provision and establishes a permanency planning hearing. This hearing must occur within 12 months of the date a child “is considered to have entered foster care,” or within 30 days of a judicial determination that reasonable efforts to reunify the child and family are not required. A child “is considered to have entered foster care” on the earlier of the date of the first judicial finding of abuse or neglect or the date that is 60 days after the child is removed from the home. 45 C.F.R. §1355.20(a).
Permanency Plan Set at Hearing. The court must determine the permanency plan, or goal, for the child at the permanency hearing. 45 C.F.R. §§1355.20 and 1356.21(h). (This hearing to determine the permanency plan does not have to be the “permanency hearing” described in state law. Under ASFA, the court can hold a hearing on the permanency plan any time, which must be at least every twelve months.)
Permissible plans. Permissible permanency plans, or goals, under ASFA are:

Reunification;
Adoption;
Legal guardianship;
Placement permanently with a fit and willing relative; or
Another planned permanent living arrangement, but only if the state agency has documented to the court a compelling reason why none of the other options would be in the child’s best interest. 45 C.F.R. §1355.20
Reasonable Efforts to Finalize Plan. The state agency must obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan that is in effect (whether the plan is reunification, adoption, legal guardianship, placement with a fit and willing relative, or placement in another planned permanent living arrangement). This determination must be made within 12 months of the date the child is considered to have entered foster care, and at least once every twelve months thereafter while the child is in foster care. If the determination is not made, the child becomes ineligible for Title IV-E payments after the end of the twelfth month following the date he or she is considered to have entered foster care, and remains ineligible until such a determination is made. 45 C.F.R. §1356.21(b)(2).
TPR Required; Deadline for Filing. The state must file or join in a petition to terminate parental rights if the child has been in foster care for 15 of the most recent 22 months. The petition must be filed by the end of the child’s 15th month in foster care. 45 C.F.R. §1356.21(i)(1)(i).

This 15 month period runs from the date on which the child is considered to have entered foster care, that is, the date on which the child was adjudicated an abused or neglected child or the date 60 days after the child was removed from the home, whichever comes first. 45 C.F.R. §1355.20(a).
TPR Within 60 days of Felony Determination. If the parent has been convicted of one of the felonies listed in the regulations, the petition to terminate must be filed within 60 days of a judicial determination that reasonable efforts to reunify the child and parent are not required. 45 C.F.R. §1356.21(i)(1)(iii)
TPR Within 60 days of Abandoned Infant Determination. If a child is determined by the court to be an “abandoned infant” (as defined by state law), the petition to terminate must be filed within 60 days of the judicial determination that the infant is abandoned. 45 C.F.R. §1356.21(i)(1)(ii).
Exceptions to TPR Requirement. The state agency may elect not to file for TPR if:

at the agency’s option, the child is being cared for by a relative;
the agency has documented in the case plan (which must be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the individual child, or
the agency has not provided to the family services that the state deems necessary for the safe return of the child to the home, when reasonable efforts to reunify the family are required. 45 C.F.R. §1356.21(i)(2).
Recruiting Adoptive Family Begins at Filing for TPR. When the state files a petition to terminate parental rights, it must concurrently begin to recruit, identify, process and approve a qualified adoptive family on behalf of the child, regardless of age. 45 C.F.R. §1356.21(i)(3).
Specific Findings on “Contrary to Welfare” and “Reasonable Efforts” Required. Judicial determinations that remaining in the home would be contrary to the welfare of the child and that reasonable efforts were made to prevent removal and to finalize the permanency plan in effect, as well as judicial determinations that reasonable efforts are not required, must be:

explicitly documented,
made on a case-by-case basis, and
stated in the court order.
A transcript of the court proceeding is the only other documentation that will be accepted to verify that these determinations have been made. Affidavits, nunc pro tunc orders, and references to state law are not acceptable. 45 C.F.R. §1356.21(d).

38.5 Foster Care Independence Act

The Foster Care Independence Act, P.L. 106-169 (also known as the Chafee Act), was signed into law on December 14, 1999, creating the John H. Chafee Foster Care Independence Program, which is run through the states under Title IV-E. An Independent Living program that helped older foster children earn high school diplomas, participate in vocational training or education and learn daily living skills such as budgeting, career planning and securing housing and employment existed before the Chafee Act was passed but it focused on youth under the age of 18. The Chafee Act doubled the annual appropriations to the states for the program and requires that a portion of the funds be used for assistance to young people ages 18 to 21 who exit foster care. The intent is to provide states with funding for programs that provide financial, housing, counseling, employment, education, and other support and services to former foster care recipients to complement their own efforts to achieve self-sufficiency. 42 U.S.C. §677.

The Promoting Safe and Stable Families Amendments of 2001, P.L. 107-133, 115 Stat. 2413, enacted in January 2002, authorize vouchers for “education and training, including postsecondary training and education, to youths who have aged out of foster care.” See 42 U.S.C. §677(a)(6), added in 2002. Among other things, the law provides that states may allow youths participating in the voucher program on the date they turn 21 to remain eligible until they turn 23, as long as they are enrolled in a postsecondary education or training program and are making satisfactory progress toward completion of the program. Vouchers may not exceed the lesser of $5,000 per year or the total cost of attendance. 42 U.S.C. §677(i). (The extent to which the state receives these funds depends on actual congressional appropriations from year to year, as well as on the manner in which funds are distributed or allocated to the states.)

38.6 Promoting Safe and Stable Families Amendments of 2001

Besides authorizing vouchers for the Chafee Foster Care Independence Program, the Promoting Safe and Stable Families Amendments of 2001 made a number of amendments to Title IV-B of the Social Security Act, specifically 42 U.S.C. §629 through §629h. Public Law 107-133 also authorized appropriations for FFY 2002 through 2006 to promote family support and preservation, as well as time-limited family reunification and adoption. 42 U.S.C. §629.

38.7 Safe and Timely Interstate Placement of Foster Children Act of 2006

The Safe and Timely Interstate Placement of Foster Children Act was enacted July 3, 2006 to encourage the “safe and expedited placement of children into safe, permanent homes across State lines.” P.L. 109-239, §2, 120 Stat. 508. The Act amends Titles IV-B and IV-E in a number of ways intended to improve the orderly and timely interstate placement of children. It also requires that the court determine at permanency hearings whether a child’s out-of-state placement continues to be appropriate and in the children’s best interest. 42 U.S.C. §675(5)(C).

This legislation also includes a number of provisions unrelated to interstate placement. One is that the state provide for a child’s health and education records to be provided to the child at no cost when the child leaves foster care by reason of having attained the age of majority. 42 U.S.C. §675(5)(D). Another is that, as a condition of receiving federal Court Improvement Project dollars (see §38.10 below), the highest court in the state must have a rule that foster parents, pre-adoptive parents and relative caregivers are notified of proceedings respecting the child. 25 U.S.C. §629h(b). This relates to the Title IV-E requirement that the state have a procedure for assuring that foster parents, pre-adoptive parents and relative caregivers are provided notice of, and a right to be heard in, in the proceedings. 25 U.S.C. §675(5)(G). Federal guidelines interpret the word “proceedings” to mean permanency hearings and periodic judicial reviews. Program Instruction ACYF-CB-PI-07-03, which can be found at the Children’s Bureau website, http://www.acf.hhs.gov/programs/cb.

38.8 Child and Family Services Improvement Act of 2006

The Child and Family Services Improvement Act, P.L. 109-288, enacted September 28, 2006 reauthorizes the Promoting Safe and Stable Families program for another five years. The legislation also makes a number of changes to Titles IV-B and IV-E, including the following:

The state’s case review system must include procedural safeguards to assure that in any permanency hearing with respect to the child, including any hearing regarding the transition of the child from foster care to independent living, the court consult, in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child. 42 U.S.C. §475(5)(C). (Federal guidelines interpret this requirement to permit the child’s views to be reported by, for example, the child’s GAL or attorney. Child Welfare Policy Manual §8.3C.2c (10/17/07)
The state must put into place procedures for the child welfare system to respond to disasters. 42 U.S.C. §622(b)(16).
State plans for child welfare services must describe standards for the content and frequency of caseworker visits with children in foster care that, at a minimum, ensure that children are visited on a monthly basis and that the visits focus on issues pertinent to case planning and service delivery to ensure the children’s safety, permanency and well-being. 42 U.S.C. §622(b)(17).
38.9 Multiethnic Placement Act

The Howard M. Metzenbaum Multiethnic Placement Act, P.L. 103-382, 108 Stat. 4056, was adopted in 1994 and modified in 1996 by the interethnic adoption provisions of the Small Business Job Protection Act, P.L. 104-188, 110 Stat. 1903. The Multiethnic Placement Act was passed to promote the best interests of children by: (1) decreasing the length of time that children wait to be adopted; (2) preventing discrimination in the placement of children on the basis of race, color, or national origin; and (3) facilitating the identification and recruitment of foster and adoptive families that can meet children’s needs. MEPA, as amended, is found in 42 U.S.C. §§622(b)(7), 671(a)(18) and 1996b.

The Act amended the requirements for states to meet in order to receive Title IV-B funding. The state’s plan for child welfare services must provide for the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of children in the state for whom foster and adoptive homes are needed. 42 U.S.C. §622(b)(7).

The state’s plan for foster care and adoption assistance under Title IV-E must also comply with MEPA. The plan must provide that neither the state nor any other entity in the state that receives funds from the federal government and is involved in adoption or foster care placements may discriminate on the basis of the race, color, or national origin of the adoptive or foster parent, or of the child. 42 U.S.C. §671(a)(18).

The 1996 legislation amended the civil rights laws to prohibit persons and governments involved in adoption or foster care placements from:

Denying to any individual the opportunity to become an adoptive or foster parent on the basis of race, color, or national origin of the individual or of the child; or
Delaying or denying the placement of a child for adoption or into foster care on the basis of the race, color, or national origin of the adoptive or foster parent, or the child.
However, this law is not to be construed to affect the application of the Indian Child Welfare Act. 42 U.S.C. §1996b(3).

38.10 Court Improvement Program

The Omnibus Budget Reconciliation Act of 1993, P.L. 103-66, provided for grants to state courts to assess and improve the handling of proceedings relating to foster care and adoption. These grants were intended to enable courts:

to conduct assessments of the role, responsibilities, and effectiveness of state courts in carrying out state laws requiring proceedings that implement Title IV-B and IV-E, that determine the advisability or appropriateness of foster care placement, that determine whether to terminate parental rights and that determine whether to approve the adoption or other permanent placement of a child; and
to implement changes deemed necessary as a result of the assessments.
Funding for court improvement grants was initially authorized for four years; congressional legislation has since extended the authorization through federal fiscal year 2011. In 2006, Congress not only extended authorization through 2011, but added two new grant programs. One grant is for improved data collection to ensure that the safety, permanency, and well-being needs of children are met in a timely and complete manner. The other is for the training of judges, attorneys and other legal personnel in child welfare cases, including cross-training with the child welfare agency. 42 U.S.C. §629h.

The New Mexico Court Improvement Project was made possible by the Omnibus Budget Reconciliation Act. Grant money was first awarded to the New Mexico Administrative Office of the Courts, on behalf of the Supreme Court, in 1995. The Court Improvement Project continues to receive federal funds to implement and evaluate its ongoing initiatives and is now receiving training and data grants as well as the basic grant that it has been receiving since the inception of the program.

38.11 Child and Family Service Reviews

In 1994, Congress amended the Social Security Act to authorize the U.S. Department of Health and Human Services (HHS) to review state child and family service programs to ensure conformity with the requirements of Titles IV-B and IV E. In 2000, the HHS published a rule to establish a new approach to monitoring state programs. Under the rule, states are assessed for substantial conformity with certain federal requirements for child protective, foster care, adoption, family preservation and family support, and independent living services. The Children’s Bureau within HHS administers the review system, which is known as the Child and Family Service Reviews, or CFSRs.

The CFSRs look at the extent to which the states are achieving the following outcomes for families and children receiving services:

Safety

Children are, first and foremost, protected from abuse and neglect.
Children are safely maintained in their homes whenever possible and appropriate.
Permanency

Children have permanency and stability in their living situations.
The continuity of family relationships and connections is preserved for families.
Well-Being

Families have enhanced capacity to provide for their children’s needs.
Children receive appropriate services to meet their educational needs.
Children receive adequate services to meet their physical and mental health needs.
Each CFSR is a two-stage process consisting of a statewide assessment and an onsite review. At the end of the onsite review, states determined not to have achieved substantial conformity in all the areas assessed must develop and implement a Program Improvement Plan, or PIP, addressing the areas of nonconformity. States that do not achieve their required improvements face financial penalties. (This information was excerpted from the Child and Family Services Reviews Fact Sheet, available at http://www.acf.hhs.gov/programs/cb.)

The first round of CFSRs was completed nationally in 2004 and the second round began in 2007. New Mexico was one of the first states reviewed in this second round, and the state submitted its proposed PIP to the Children’s Bureau in November 2007.