Children’s Legal Bulletin - Fall 2002

                                    The Adoption and Safe Family Act of 1997:* Has it Met its Promise to New Jersey’s Children?

Introduction

When Congress enacted the Adoption and Safe Families Act of 1997 (ASFA) our nation’s child welfare system was once again in crisis. Data in the 1990s documented the rise of placements and long stays of children in out-of-home care without a permanency plan.  Many questioned the value of prolonged attempts by child protection service agencies to rehabilitate the parents.[1] Action was needed. The new federal law required timely decision making and attempted to address the question of how long states must pursue the goal of family reunification under the “reasonable efforts” standard,[2] before pursuing an alternative permanent home.

On March 31, 1999, New Jersey enacted legislative amendments to comply with ASFA.  Emphasis was placed on safety and health of the children.  The timeframes within which New Jersey’s child protective services agency, the Division of Youth and Family Services (DYFS) must act to achieve permanency for children placed into foster care were expedited.  Decisions focused on long-term goals were moved to the forefront.  At that time, the Association for Children of New Jersey (ACNJ) viewed the statutory changes as an opportunity for New Jersey’s DYFS system to become more responsive to the complex needs of children and families.  We still do.

Have children in New Jersey benefited from the ASFA amendments?  What has been the impact of the law on families, the courts, and the child welfare system?  Has it created long-term change or simply another limited reform effort?  What new issues and problems have been identified?  This article reviews the State’s progress and reflects on what is left to be done

Pre ASFA

In the mid-1980s, crack cocaine and parental cocaine use become widespread, especially among women.  “Between 1986 and 1996, an estimated eighty percent of child abuse and neglect cases [nationally] involved single mothers with substance abuse problems.”[3]  In 1998, the General Accounting Office (GAO) estimated that there were between 500,000 and 600,000 children living in foster care placements nationwide. One major cause of this increase was parental drug usage.[4] 

In terms of increased substance abuse statistics, New Jersey’s mirrored the rest of the county.  In 1994, ACNJ completed a study looking at DYFS efforts to prevent placement of children into foster care.[5]  As part of the analysis, ACNJ staff reviewed 115 case records of children entering placements between 1992 and 1994 in six (6) district offices.  Focus groups were conducted with case managers and parents of children in placement. The study concluded “[t]he parents of the children who entered placement were highly dysfunctional, multi-problem families, with little community or family support.  Parental substance abuse was epidemic.”[6]

In the early 1990s, the federal government provided funding for state court systems to assess and improve the quality and timeliness of court decision-making and monitoring of children entering into the child welfare system.  New Jersey was one of two states that engaged the services of a nonprofit child advocacy organization to conduct this assessment.  ACNJ conducted its assessment under the auspicious of the New Jersey Statewide Court Improvement Oversight Committee.  The final report was issued in 1996 and used by the Oversight Committee as a guide to identify goals and recommendations to improve the court processing of DYFS cases.[7]   

One phase of the ACNJ assessment involved the gathering of information from five New Jersey counties.  Surveys and interviews were done of attorneys, foster parents, child placement review board volunteers, DYFS workers and court staff.  Focus groups were conducted involving children, parents, foster parents, court volunteers and attorneys.  Project staff also observed court proceeding and child placement review board hearings, and reviewed case records.

The results, while not encouraging, were not unexpected.  The difficult nature of these cases and the lack of sufficient resources in and outside the court limited judges’ effectiveness in achieving timely permanency for children in placement, whether reunification or some other per-manent plan. Moreover, the effectiveness of the court was dependent upon the effectiveness of the other entities with which the court interacts and upon the sufficiency of resources dedicated to making the court system work.  These other entities (DYFS, the Office of the Attorney General, and the Office of the Public Defender) suffered from lack of resources as well.

ACNJ’s Assessment found that “[t]he legal representation provided to the parties in child welfare cases [was] not as strong or effective as it could be.”[8] Many of the issues facing the attorneys representing DYFS, parents’ attorneys and law guardians were the same issues facing the judges and court staff: difficulty of the cases, inadequate resources and support services, lack of standards and training, and high caseloads.  In many cases, by the time permanency was considered, the options were limited.  Moreover, in cases where DYFS filed a termination of parental rights complaint, parents and children were represented by pro bono attorneys assigned from an alphabetical list in each vicinage. Attorneys assigned to these cases by the judge might not have any background in DYFS cases or even in family law.

New Jersey Takes Action

An increasing number of very young children needing permanent placements in New Jersey caused the Division to pilot Fost-Adopt placements in 1996.  Fost-Adopt parents make a commitment up front to adopt the foster child placed in their home should the child not be reunited with the birth family.  ACNJ was involved in the initial implementation, providing training and evaluating the 3-year pilot.  A copy of the evaluation is available from ACNJ’s office.[9]  Initially offered in only 3 counties, Fost-Adopt placements are now an option statewide. 

Children under the age of 6 are eligible for Fost-Adopt if their parents demonstrate characteristics that severely impede their ability to adequately care for them.  DYFS must determine that it is more likely than not that the child will not be returned to the birth family.  Such a determination does not eliminate the Division’s obligation to work with the family towards reunification. However, Fost-Adopt placements offer a positive permanency option for children who meet the aforementioned criteria. In these specialized placements, the foster parents make a commitment to adopt the child placed into their home should reunification efforts be unsuccessful. 

With the Fost-Adopt Project grant came the introduction of concurrent planning to the New Jersey child welfare system.  Concurrent planning contemplates pursuing several goals simultaneously, rather than consecutively, and discussing all options with the parents upfront.  It requires a full assessment of the family at the time of placement and focuses on outcomes rather than process.[10]  The concept of concurrent planning was piloted in several counties, with plans to expand statewide. The enactment of ASFA moved concurrent planning in a different direction.

Enter ASFA

Permanency denotes the idea that every child needs permanence for stability, security, attachment and trust. This stability is necessary to ensure healthy development into a productive independent member of society.  Attachment and trust are necessary for children to become socialized and develop caring and empathy. “Without attachment and trust, children become like primitive animals, ready to attack/defend in order to survive.”[11]

Foster care by comparison is temporary in nature.  The authority for the child is split between three entities: the State which has ultimate responsibility, the birth parents who still retain parental rights and should be consulted to the extent possible, and the foster parents who are responsible for the child’s daily care.  Children in foster care often experience many moves and many losses, therefore living in a state of uncertainty. 

Both ASFA and its predecessor the Adoption Assistance and Child Welfare Act of 1980 “reflect the prevailing wisdom that children in foster care should be quickly placed in permanent homes because the instability of foster care damages children’s psychological and social development.”[12]  The repeated experience of separation and loss resulting from moving through a succession of foster homes before reaching a permanent home increases the risk that a child will develop serious behavioral and/or emotional difficulties. Thus, the expedited timeframes mandated by ASFA for making permanency decisions were welcome.

Decisions should be made within the child’s, not the adults’ sense of time. Therefore, all concerned should be moving quickly to identify and provide services to resolve the problems that bring the children into placement.  Permanency planning should begin with DYFS providing sufficient services as soon as the child and family come into contact with the Division.  These efforts- whether family preservation, reunification or alternative permanent arrangements- require a balance of child safety, family preservation and perman-ency. They require an appropriate individual response to each child and family.

What is good for the child might appear “unfair” to the parents.  That is why honest and full disclosure is so important.  Studies have confirmed that social workers and judges often avoid terminating the child- parent relationship, even when doing so would ultimately benefit the child.[13]  “After a time in foster care, the balance of harm shifts, with reunification becoming less likely or beneficial and permanent placement more urgent.”[14]  Fortunately New Jersey courts have recognized that balance shift. “[I]t is clear that throughout the evolution of statutes in this State concerning the protection of children, that parental rights, though fundamentally important, are not recognized as absolute.  Such rights are tempered, if not balanced, by the State’s paramount interest, as parens patriae, to protect the ‘best interests’ of children and protect their health and safety.”[15]

 ASFA Timeframes Are Appropriate

Congress intended that the ASFA provisions would create the expectation that biological parents have a fixed period of time to correct the problem that caused their children to be placed into foster homes.[16] Some advocates have expressed concerns that fear of serious consequences for inaction may influence parents to “give up” prematurely, thus never regain custody of their children.  Others have found that the threat of serious consequences has caused parents and families to mobilize family resources, allowing the children to return to parents or relatives much sooner than they would have in the past.  With the shift to definitive time frames must be the acknowledgment that a small portion of parents cannot ensure even the most basic needs for their child.  DYFS must do a complete and honest assessment, and move forward to find adoptive homes for these children so as to avoid further harm to the children through the lingering in the foster care system. 

If timely reunification cannot be achieved, ASFA requires that another permanent family be sought for the child.  The Division can file a guardianship complaint as soon as any one of the five standards for termination of parental rights (TPR) is met in a particular case or 60 days after a judicial determination that no reasonable efforts are required to reunify the family.  DYFS must file TPR when a child remains in placement for 15 of the most recent 22 months, unless a statutory exception is met.[17]  The law allows exceptions to filing for TPR which include: 1) a relative is caring for the child, and a permanent plan can be created through that relative without terminating parental rights; 2) DYFS has documented a compelling reason why termination is not in the best interests of the child; or 3) DYFS has not provided services necessary for family reunifi-cation.[18]  Thus the time period to work with the parent can be lengthened when appropriate. And in New Jersey, DYFS must still prove its case by clear and convincing evidence for parental rights to be terminated.

Some critics of ASFA have legitimately expressed concern that while the shorter times frames might help motivate a drug-abusing parent into recovery; the treatment may take longer than statutory time frames.  ASFA allows for additional time before a TPR complaint is filed.[19] Also a parent can place their child with a relative and avoid TPR, creating a permanent plan for their child in the event the parent relapses and begins using drugs again.

The Division must identify a compelling reason in making the decision not to file a complaint seeking TPR and document it in the child’s case record.  The compelling reasons must be based on the unique facts and circumstances of each case.  Each child's individual situation should receive careful attention, so that all permanency options are considered. The regulations prohibit categorically defining a class of children for whom compelling reasons exist, such as children over a certain age. 

The agency should have sound reasons for declining to file a TPR or placing a child in a planned permanent living arrangement… The permanency planning process, including compelling reasons de-terminations, should be thorough to provide the child with the safest, most stable placement possible.[20]

 The New Jersey Department of Human Services has proposed regulations setting forth criteria to be considered in determining whether the particular case satisfies the compelling reason exception not to file for TPR pursuant to N.J.S.A. 30:4C-15.3.[21]  The comment period has ended and the final regulations should be published soon.

If reunification efforts fail and the permanency goal becomes adoption, the permanency plan must provide for timely termination of parental rights.  ASFA does not specify how long it should take to resolve litigation to terminate parental rights, but the spirit of ASFA requires that the termination proceeding should be completed within a reasonable period.[22] New Jersey law already addresses this problem inasmuch as N.J.S.A.30:4C-15.2 requires that the final hearing in a termination of parental rights proceeding be held within 3 months from the time the complaint is filed. 

 New Jersey’s Response to ASFA

Case Filings and Disposition

ASFA mandated that DYFS review its entire inventory of placement cases to ensure that a permanent plan was implemented for each child.  In New Jersey, statutory amendments to comply with ASFA resulted in increased court filings.  From 1997 and 2001, the number of children for which termination of parental rights was granted doubled.[23]  With minor exception, the average length of time to dispose of guardianship cases in 2001 was 8-13 months.[24]  This is a vast improvement from years past when guardianship litigation typically extended to 2 years and beyond.

Adoption Statistics[25]

Between 1997 and 2001, placements of children in adoptive homes nearly doubled.

Year             Placements    Finalizations

1997             666              597

1998             800              818

1999             807              707

2000             977              915

2001             1184             1039

The vast majority of children have special needs, meaning that the child is over 8 years old, part of a sibling group, or a child of any age with serious emotional or medical problems. Last year 94% adopted through DYFS qualified for an adoption subsidy.[26]

Court Staffing and Volunteers

The Administrative Office of the Courts (AOC) has worked with the Court Improvement Oversight Committee to integrate the processing of cases within the three child welfare dockets, promote better communication and coordination among those involved in the litigation process, and to improve the Family Automated Case Tracking System (FACTS).  The Children in Court Processing Manual, approved by the Judicial Council in December 2001, was developed to promote uniform case management statewide.[27]

Additional judges were assigned to handle the DYFS cases. Training was provided on ASFA and related issues, including permanency, concurrent planning, and substance abusing parents.  Using the Essex Children’s Model Court Committee as a prototype, most counties have formed Model Children in Court Advisory Committees comprised of individuals directly involved in these cases within that particular county.  These committees meet to troubleshoot problems and identify areas needing improvement.  Some provide training to the attorneys, DYFS staff and court staff.  The interest from the AOC and judges in these case types has substantially increased to the benefit of children in foster care placements.

Court volunteers have done their part, too.  Child Placement Review Boards (CPR Boards), statutorily created in 1978, continue to review all cases involving New Jersey children in out-of-home place-ments.[28]  Now celebrating 25 years, the CPR Boards have implemented the new mandates into the review process and are in the process of assessing how best to continue helping children in placement.

In 1998 there were five New Jersey Court Appointed Special Advocates (CASA) programs operating in six counties.  There are now ten programs, with more than 430 volunteers, covering twelve counties. CASA of New Jersey, the statewide organization established in January 2000, is helping to develop and expand these county programs. Statewide standards and guidelines have been developed and approved by the Judicial Council.[29] 

Legal Representation

Progress has been made through ASFA. The 1998 amendments to New Jersey statutes provided the funding and authorization for the Law Guardian Program to continue providing legal representation to children when Title 30 termination of parental rights complaints are initiated. Prior to the amendments, pro bono attorneys handled these cases.  More law guardians and investigators were hired. 

Private attorneys who contract with the Office of the Public Defender to represent indigent parents now continue representation of the parent if the case proceeds to termination of parental rights.[30]  The Parental Representation Unit (PRU), established in 1999, provides a centralized system to assign counsel to parents, and training and litigation support for the attorneys.  New Jersey law now requires training and supervision.[31]  The PRU provides three to four trainings each year, of which attorneys must attend at least one to remain eligible for case assignments.  New Jersey’s Institute for Continuing Legal Education (ICLE) now offers seminars on How to Handle a DYFS Case. 

The shortened timeframes set forth in the amendments make adherence to procedural safeguards more critical.  Child welfare cases are undoubtedly challenging cases for any attorney, whether that attorney is representing the Division, a parent or a child.  The attorneys play an important role in shaping the case and moving it towards timely resolution. The fees for the contract lawyers have been increased somewhat, but are still insufficient to attract and keep the needed number of lawyers to meet the demand. 

The courts are doing their part to protect the rights of parents. The New Jersey Superior Court Appellate Division recently directed that judges handling DYFS matters ensure that all DYFS litigation proceedings comply with court rules and make the findings required by the applicable statutes. Statutory mandates and rules of evidence must be honored. “The court’s authority to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards.”[32]

 Other Options to Help Resolve Cases

Mediation

ACNJ’s 1996 Court Assessment found that in 70% of the cases observed in court, the review took 10 minutes or less.  This is not sufficient time for any parent attending to understand and participate in a meaningful way.  Typically there was no in-depth discussion of the case.[33]  One way to address this problem is utilization of mediation, which has been piloted in several vicinages.[34]

In mediation, the families are part of the process rather than viewed as the problem.  It provides an opportunity for the parties to sit down and talk to each other, and clear up misunderstanding.  “Mediation levels the playing field and gives all participants an opportunity to speak and interact in a nonthreatening environment.”[35] 

While mediated solutions may not appear to be vastly different from those imposed in court, there is a critical difference.  The parties have participated in the discussion, and therefore appreciate the rationale behind the terms of the agreement.  There is greater flexibility to create custom solutions, thus increasing the likelihood that there will be compliance.

Kinship Legal Guardianship

Effective January 2002, New Jersey has another option to establish permanency for children who cannot reside with their parents due to long-term incapacity or inability to perform the regular and expected functions of care and support of their children.[36]  It is available to families whether or not DYFS is involved. The kinship legal guardian has a legal, biological, or psychological relationship to the child and must have taken care of the child for at least the twelve (12) consecutive months prior to filing a petition with the court.  Once appointed by the court, the kinship legal guardian has the authority and responsibility of a parent. The biological parent retains rights to visitation, the right to consent to adoption and the duty to support.

This arrangement can be used to resolve Title 9 or Title 30 DYFS litigation.  Though less permanent than adoption, kinship legal guardianship is far more secure than long-term foster care. Through its Permanency Initiative, DYFS can place a child in a kinship home initially if the caregiver commits to completing the approval requirements within a timely manner.  Should reunification with the parents not occur, then the caregiver can become a kinship legal guardian, and the child will remain in this initial placement.

What’s Left to Do?

The children and families entering New Jersey's child welfare system are younger and have multiple, more complex problems than in past years.  Escalating caseloads, lack of available relevant services, and increasingly more complex cases make this area of practice particularly demanding. A thoughtful, well-informed, decision-making process at the onset should make the decisions needed to be made at the end of the process less difficult.

Services Need Improvement

New Jersey’s child welfare system was plagued with an inadequate service delivery system in 1994.[37]  The lack of services for parents and children was also identified as significant issue throughout ACNJ’s Court Assessment Project as well.[38] Timely and relevant services to parents seeking reunification with their children have become even more critical. 

 Children entering foster care today have greater emotional, behavioral and medical needs. Serious health related problems due to prenatal drug exposure are more prevalent.  Other areas such as educational needs go unmet, as safety and permanency priorities take over.  These priorities are important, but we must not forget the child’s other needs, all protected by the Child Placement Bill of Rights.[39]

Judges must still make the tough decisions within the existing system.  The child’s right to a safe environment and a future must come first.  We can still work to include other stakeholders into the discussions regarding how to improve the child welfare system.  These stakeholders include school systems, public assistance programs, housing organizations, as well as the business and faith communities.  This is what we have learned since 1998.  As each problem or barrier is identified and discussed, those within the system recognize that the solutions require help from those previously viewed as "outsiders." 

Incarcerated Parents

Incarcerated parents bring additional obstacles, but still need to be involved in the litigation process as quickly as possible.  Incarcerated parents may have relatives or kin available to provide temporary and/or permanent plans for their children.  The delay in identifying relatives causes a delay in the permanency planning for the child. 

These parents need to be informed about the court process and advised about options, yet they are not always in court for reviews.  Whether the parent is brought to court or participates via telephone conference, the parent needs to be formally advised of the allegations being made, his/her right to counsel and permanency options that the Division may be pursuing for his/her child(ren).  Protecting the parent’s rights and ensuring an accurate and thorough judicial process is vital to achieving timely permanency and thus the well being of the child.

The Division’s requirement to provide reasonable efforts for reunification still exists, although this is somewhat more complicated when the parent is incarcerated.  There are certain crimes which exempt DYFS from providing reasonable efforts due to the aggravating circumstances.[40]   The caseworker must explore what services might be available in prison and explore relatives as an option for another permanency plan.

Involvement of foster parents

ACNJ’s Court Assessment Project identified foster parents as an untapped resource.  Many are supportive of parents and willing to assist in facilitating visitation and in keeping parents informed regarding their child’s growth and progress in school.  ASFA made foster parents a part of the process.  Although not parties, foster parents are entitled to notice and an opportunity to be heard.[41] 

This has occurred in a variety of ways.  Some foster parents are invited to participate in the entire hearing; others are only invited to make a statement at the beginning of the court review.  Some have contact with the birth families on their own; others have no contact.  Many are frustrated by their lack of knowledge of the system and options as to how they might help.  In many cases, the role of foster parents has not been maximized fully.

Conclusion

Nationally, “an increasing number of children have been placed in permanent homes through adoption during the last several years.”[42] However the GAO reported to Congress that “the important information about ASFA’s impact on children in foster care is still unavailable.”[43]  For its June 2002 Report to Congress, the GAO surveyed all states and conducted site visits in six states.  Most of the six states visited by the writers of the Report “reported that ASFA has played an important role in helping them focus on achieving permanency for children within the first year that they enter foster care.”[44] Steps have been taken to improve data collection and evaluation data from 18 demonstration waiver projects around the country should be available in the next few years.[45]

While other states are struggling, New Jersey appears to have embraced the ASFA mandates.  The commitment and energy of all entities has been impressive. Support for families has been strengthened through the new kinship legal guardianship option. The number of adoptions in New Jersey has more than doubled since 1997. Thanks to the innovative efforts of Eileen Crummy, Administrator of the Division’s Office of Adoption Operations, and her staff 1367 children have been adopted this year.

The Court process has been strengthened.  There are stronger and timelier checkpoints so fewer children fall between the cracks.  There are early indications that the length of time children remain in placement has decreased.  How do we ensure that these are meaningful, long-lasing, reforms?

This is not a glamorous business. Much has been accomplished, but there is a lot of hard work still to do. Broad-based community services must be developed and coordinated.  Fragmented services are not helpful. “A focus on crisis instead of prevention means that many needs go unmet until they explode into much harder issues to deal with…”[46] 

The focus should be on positive outcomes for families, not solely the court process.  We need to examine the earlier stages of DYFS involvement with families. Perhaps the entire DYFS system, including cases in which the children remain in the home with DYFS supervision, needs to be assessed.  It may no longer be effective to adequately address the current needs of New Jersey’s troubled families.

Rather than plucking fallen children out of the stream, perhaps we need to revisit why they are falling in at all. DYFS cannot and should not be the “safety net” for families in trouble. “It costs a lot to maintain fragmented, duplicative services from division to division, or to assign multiple personnel to assist the same family.  In many cases this money could be better invested in services.”[47] 

 Author: Mary E. Coogan, Director, Children’s Legal Resource Center.  Check out our website at www.kidlaw.org

*Special thanks to Stephanie Macholtz, a law student at Seton Hall Law School for her assistance with the research and writing of this article.