The Adoption and Safe Families Act (ASFA) of 1997 - PL. 105-89

ASFA is a federal law and rules have been implemented by the U.S. Department of Health and Human Services, Administration for Children and Families to interpret the provisions of ASFA. Missouri relies on federal funding from Title IV-E of the Social Security Act to fund foster care and other programs related to children. Initially, much of the requirements of ASFA were not a part of Missouri law per se, however, many of the provisions of ASFA now have been enacted in Missouri. Failure to comply with the requirements will result in reduction or loss of federal funding.

Core Requirements

The first court order removing the child from the home must contain a judicial determination that continuation of the child in the home is contrary to the welfare of the child. The best practice is to make this finding in the initial ex parte order placing the child in alternative care. See Rule 123.01.

Within 60 days of removal of the child from home, there must be a judicial determination of ”reasonable efforts” to prevent removal. Section 211.183. This time period coincides with the requirement that the adjudicatory hearing be held within 60 days of the removal of the child from home as required by Section 211.032.4. However, the best practice is to make this finding in the initial ex parte order placing the child in alternative care or in the order issued after the mandatory protective custody hearing, which must be held within 3 days of removal, excluding Saturdays, Sundays and legal holidays. Section 211.032.3. See also Rules 123.01 and 123.04.

Within one year of the child entering foster care and annually thereafter, there must be a permanency hearing and a judicial determination related to reasonable efforts to finalize the permanency plan. Section 210.720.1. Certain situations permit the Children's Division to be relieved of the obligation to make reasonable efforts to reunify the family. Section 211.183. Certain situations require a Termination of Parental Rights petition be filed to expedite permanency. 211.447.2. See also the TPR Mandatory filing chart in these materials.

Some Suggestions

The Children’s Division holds a Family Support Team Meeting within three days of removal in each case. To expedite getting cases to hearing, the juvenile officer should be prepared to:

(1) Serve summonses to all parties at the three day meeting to avoid delays caused by overburdened process servers;

(2) Present a social service plan or written service agreement to the parents at the three day meeting so as to expedite the process of reunification/permanency;

(3) Have forms related to explanation of right to counsel and appointed counsel, and if counsel is desired, have financial and income and expense statement forms to be filled out at the three day meeting so hearings are not delayed if parents appear in court without counsel and desire appointed counsel.

Contrary to Welfare Findings

A court finding that ”continuation of the child in the home is contrary to the welfare of the child” must be made in the first court order on the child’s removal. If this is not done, the child is not eligible for Title IV-E funding. Note the finding must be based on some type of evidence. Since the first court order is entered ex parte, the evidence on which the judge bases the finding may be documentary evidence since there is no testimony. It is suggested the Children’s Division request for custody, the CS 33 authorization of a law enforcement officer or physician and the juvenile officer’s 24 hour temporary protective custody authorization be submitted to the judge at the time the initial order is sought. The order should refer to the above documents and any other documents supporting the judicial determination that continuation of the child in the home is contrary to the welfare of the child.

Reasonable Efforts to Prevent Removal

A judicial determination and court finding that ”reasonable efforts have been made to prevent the child’s removal from home” must be made within 60 days of the child’s actual removal. Again, this must be a judicial determination and the requirement is not satisfied by the mere filing of an ”affidavit of efforts” or similar document. On the other hand, the judge may receive evidence in support of a finding in any way that evidence may be received under state law including the admission into evidence of documents, affidavits of efforts or other supporting reports. The judge may use those documents to make a judicial determination of reasonable efforts to prevent removal from home, but the documents may not in and of themselves constitute the judicial determination.

In order to insure reasonable efforts findings are made within 60 days, they also should be made in the first court order. In addition, Section 211.183 requires the reasonable efforts findings be made in any order of removal. Thus, reasonable efforts findings will be in all subsequent orders also.

Certain situations permit a removal without reasonable efforts and in those situations, Section 211.183 specifies that the Children’s Division may be ”deemed to have made reasonable efforts” such as when an emergency situation prevents the division from making reasonable efforts to prevent removal. In this type of situation, the affidavit of efforts and other documentary evidence or testimony on which the judge makes a finding clearly should detail the nature of the emergency. It is not sufficient for the court to simply recite that the removal was based upon an emergency situation in which reasonable efforts could not be made. The court should specify particularly the facts constituting the emergency and then make the finding that reasonable efforts were deemed to have been made. In addition, certain aggravated circumstances permit the court to waive the necessity for the division to make reasonable efforts to reunify the family. These aggravated circumstances are set forth in Section 211.183.7. In the event the court finds the division is not required to make reasonable efforts, the court must proceed immediately to a permanency hearing, which must be held within 30 days. Section 211.183.8.

Permanency Hearings

A permanency hearing must be held within 12 months from the child’s removal. Section 210.720.1. This is not 12 months from the adjudicatory or dispositional judgment. A full hearing is required and the parties must be allowed to participate. At the permanency hearing, the court must make a decision and order regarding the permanency plan for the child.

Approved Types of Permanency

ASFA recognizes the following as appropriate permanency plans:

(1) Reunification with parent;

(2) Adoption;

(3) Legal guardianship;

(4) Permanent placement with a fit and willing relative;

(5) Planned, permanent living arrangement other than numbers 1 through 4 but this permanency plan must be based upon a compelling reason for doing so which is demonstrated at the permanency hearing.

ASFA gives three specific examples of compelling reasons for a permanency plan other than reunification, adoption, legal guardianship or permanent placement with a relative. The three examples given by ASFA as constituting compelling reasons to place the child in some other planned, permanent living arrangement are:

(1) An older teen who specifically requests that emancipation be established as his permanency plan;

(2) A parent and child who have a significant bond but the parent is unable to care for the child because of an emotional or physical disability and the foster parents have committed to raising the child to age of majority and to facilitate visitation with the disabled parent; or

(3) An Indian tribe has identified another planned permanent living arrangement for the child. These are not intended to be exclusive.

Mandatory Filing of Termination of Parental Rights Petition

ASFA directed the states to enact grounds for termination of parental rights such that if those grounds exist, a petition for termination of parental rights must be filed. In Missouri, those grounds are set forth at Section 211.447.2. Those three grounds are:

(1) Child has been in foster care for 15 of the most recent 22 months;

(2) An infant (any child one year of age or under at the time of the filing of the TPR petition) has been abandoned; and

(3) A court of competent jurisdiction has determined that the parent whose rights are to be terminated has aided, abetted, attempted, conspired, solicited to commit or actually committed the murder or voluntary manslaughter of another child of the parent or a felony assault resulting in serious bodily injury to the child who is the subject of the proceedings or to another child of the parent. Note that foster care for 15 of the most recent 22 months is only a filing ”trigger” and is not itself a separate, stand alone ground for termination of parental rights.

Even if those three grounds exist, the filing of a TPR petition may be excused if one or more of three conditions set forth in Section 211.447.3 exist. Those conditions are:

(1) The child is being cared for by a relative;  

(2) A compelling reason exists for determining that filing a TPR petition would not be in the best interests of the child as documented by the permanency plan; or

(3) The family has not been provided reasonable efforts pursuant to Section 211.183.

ASFA sets forth some examples of compelling reasons for not filing a TPR petition even if one or more of the three mandatory filing grounds exist. Compelling reasons given as examples in ASFA include:

(1) Adoption is not the appropriate permanency goal for the child;  

(2) No grounds exist upon which to file a TPR petition;  

(3) The child is an unaccompanied refugee minor as defined in 45 CFR 400.100; or

(4) There are international legal obligations or compelling foreign policy reasons that preclude termination of parental rights.

Indian Child Welfare Act

ASFA does not supersede the Indian Child Welfare Act. Therefore, states must continue to comply with the requirements of the act.