LESSENING THE STING OF ASFA: THE REHABILITATION‐RELAPSE DILEMMA BROUGHT ABOUT BY DRUG ADDICTION AND TERMINATION OF PARENTAL RIGHTS

Congress passed the Adoption and Safe Families Act of 1997 (ASFA) as a response to children waiting in foster homes for years without permanent placement. In addressing the problem of permanency, however, Congress set a strict limit on how long a child could be in foster care (15 out of the most recent 22 months) before a state must either commence a proceeding to terminate parental rights or else lose valuable federal funding. Due to health care funding schemes and quality of treatment, this requirement, in particular, negatively impacts parents currently in drug rehabilitation whose parental rights may be permanently terminated before a realistic chance to recover is permitted. Although ASFA requires that states make “reasonable efforts” to keep families united, it does not define “reasonable efforts,” leaving parental rights and family unity subject to a chaotic interpretation of this requirement from state to state. “Reasonable efforts” should be interpreted to take into account current drug addiction and recovery research and drug court programs should be used to facilitate this goal. Research has shown that focusing on adequate treatment saves states money and improves the lives of children and their families, reducing the need for reliance on termination of parental rights.     

A Survey: Children’s Rights Post Termination of Parental Rights and Pre-Adoption

This survey of the statutory provisions and case law of all 50 states and the District of Columbia includes the rights of children to parental support, inheritance, and familial association remaining upon termination of parental rights. A majority of states terminate all the child’s rights at the time parental rights are severed. However, a number of states by explicit statutes or statutory construction have determined that a child’s rights to parental support survives termination of parental rights. This survey examines the prevailing law in each state and suggests statutory reforms to protect the legal status and rights of children.     

Breaking The Cycle Of Intergenerational Child Maltreatment: A Case For Active Efforts For Dependent Minor Parents And Their Children In State Custody

Dependent minor parents placed in foster care with their children often face significant hurdles. These parents are responsible to make caregiving decisions for their children, while they themselves fall under the caregiving responsibility of the state child welfare system. As such, dependent minor parents live in a “twilight zone” – they hold full parental rights, but limited rights as teenagers. For a number of reasons, the children of minor parents in foster care often come into state custody. When two generations are in foster care at the same time, states must balance the safety and best interests of the children with the rights of minor parents to care for their own children. Currently, the state child welfare system is only required to provide “reasonable efforts” to reunify parents with children when they have been removed from their care for abuse, neglect, or dependency. However, dependent minor parents in state custody often require more supportive services in order to successfully reunify with their children than in a typical child welfare case. This article places the circumstance just described in the context of dependent minor parents’ constitutionally protected rights, and advocates for a higher standard which would require states to provide “active efforts” to protect and preserve these young families.     

TRADE‐OFFS IN FORMULATING A CONSISTENT NATIONAL POLICY ON ADOPTION*

Just as the courts must consider the trade‐off between the best interest of the child and parental rights in involuntary termination of parental rights, policy on international adoption must consider the trade‐offs between the best interest of the child and the long‐term interests of the nation. We argue that countries that suspend international adoptions do not maximize social welfare. A consistent national policy to maximize the well‐being of the children and society at large would be to devote resources today to the oversight of international adoption in accord with child protections under the Hague Convention, while at the same time developing a domestic system of care that provides for the physical and developmental needs of orphaned children in the context of permanent families.     

WHEN JAIL FAILS: AMENDING THE ASFA TO REDUCE ITS NEGATIVE IMPACT ON CHILDREN OF INCARCERATED PARENTS

The Adoption and Safe Families Act (ASFA) requires states begin termination proceedings when a child resides in foster care for fifteen out of the last twenty‐two months. Many states interpret this to mean that an incarcerated parent is unfit when they leave their child in foster care just because they are separated from their children. Parents and children can still have meaningful relationships even when separated. Thus, parental unfitness should depend on many factors such as the relationship with the child, age of the child, and ability to provide support for the child—not just the time spent away from the child. This Note advocates for the amendment of ASFA to include factors courts should consider when terminating the parental rights of incarcerated parents and encouraged states to focus not on a time frame for termination, but rather consideration of circumstances relevant to each individual family. States should incorporate the factors into their state laws. Further, states should actively work with prisoners and their children to help maintain contact and if possible, reunify families after incarcerations. These services will help prevent the need for termination after a parent completes their sentence and will help to reduce recidivism.     

MAKING A MOUNTAIN OUT OF A MOLEHILL: A LAW AND ECONOMICS DEFENSE OF SAME‐SEX FOSTER CARE ADOPTIONS

This article explores the methods by which homosexual partners can adopt children from foster care, primarily via the stepparent adoption method because most jurisdictions do not recognize same‐sex marriage or civil unions. In establishing that the children in foster care constitute a market not in equilibrium, I explore the significant barriers to entry that homosexual partners must overcome in order to adopt a child, including the biased rules of intestate succession, the inability of homosexuals to secure health insurance or other governmental subsidies for their nonbiological, adopted children, and the apparent misconception that homosexual parenting negatively affects the well‐being of the child. By deconstructing the barriers to entry in the foster care market for children, children will be afforded the opportunity to maximize their utility through permanency, and homosexual parents and the general public can maximize their utility through the reallocation of assets away from the foster care market, given that more children are likely to be adopted once homosexuals are granted unfettered adoption rights. The reallocation of assets away from the foster care market increases social efficiency, which is desired by all.     

Representation and participation in child care proceedings: what about the voice of the parents?

In Ireland, the Constitution guarantees very strong rights to parents and the family, and there has been a long and unfortunate history of failures to adequately protect children at risk. As a result, there has been much discussion in recent years about the need to improve legal mechanisms designed to protect the rights of children. By comparison, little attention has been given to establishing whether the theoretically strong rights of parents translate into strongly protected rights in practice. This paper presents new empirical evidence on the manner in which child care proceedings in Ireland balance the rights and interests of children and parents, including the rates at which orders are granted, the frequency of and conditions in which legal representation is provided, and the extent to which parents are able to actively participate in proceedings. A number of systemic issues are identified that restrict the capacity of the system to emphasise parental rights and hear the voice of parents to the extent that would be expected when looking at the legal provisions in isolation.     

Rights,responsibilities and regulation – the three Rs of education: a consideration of the state's control over parental choice in education

Education is both a right and a responsibility. International instruments such as the International covenant on civil and political rights and the International convention on the rights of the child affirm the right of all children to education. This right is spelt out in the education legislation of all states and territories in Australia. Education is not only free but is compulsory for all children between certain ages. The obligation is imposed on parents (in accordance with definitions contained therein) to ensure that their children are both enrolled at and attend school. However, parental choice of education provider is allowed within each jurisdiction by way of state, private or church schools, all of which are registered and regulated to varying degrees by the state. The legislation of each jurisdiction also makes some degree of provision for parents who choose to opt out their children from any formal education setting and to educate them at home. Home education is also subject to state regulation. The assumption by the state of the responsibility for education guides this policy and legislation. The argument for state control of all education, no matter how and by whom it is provided, is that the state has an overriding interest in ensuring the economic well-being of its citizens and the growth of its intellectual capital. The state acknowledges that the responsibility for education is shared with parents, primarily by providing penalties for parents who fail to ensure enrolment and attendance of their children at a school. There is evidence that more and more parents in developed countries worldwide are choosing to educate their children at home, and anecdotal evidence suggests that Australia is part of this trend. To this end, this article critically examines the balance and relationship between the exercise of parental choice and responsibility in education, and state regulation and control. It does so by examining the means by which the legislation of different jurisdictions allows for choice in the exercise of the right to education, with particular reference to home education, places limitations on that choice and imposes control on the delivery of education outside state schools.     

Who needs Daddy Warbucks: The Kinship Guardianship Assistance Program should apply to children of those who surrender their parental rights

Families who find themselves in the middle of child protective proceedings have three possible outcomes: (1) the family can reunify; (2) parents voluntarily surrender their parental rights; or (3) the parents have their rights terminated. While it seems we should support children in the second and third scenarios equally, having funding sources such as the Kinship Guardianship Assistance Program (KinGAP) only available to children of parents whose rights are terminated, does the opposite. This Note proposes amending the eligibility requirements of KinGAP to include children of parents who surrender their parental rights which would encourage positive safe placements for children.     

Long-Term Follow-Up of Young Children Placed in Foster Care: Subsequent Placements and Exposure to Family Violence

This study examined the quality or characteristics of permanent placements at 6 years of age for 254 children who had been removed from their homes prior to attaining 3.5 years of age (mean = 13 months). Although the primary objective when removing children is protection, subsequent permanent placements are prioritized by federal legislation with a stable family environment, especially one with the biological parent(s), being preferred. Three a priori comparisons (i.e., reunified vs. nonreunified, adopted vs. foster care, relative vs. nonrelative foster care) were conducted for caregiver and child reports of exposure to family violence. The results indicate that both reunified children and their parents report more family violence (witnessed and child victimization) than do nonreunified children and their caregivers. Adoptive parents did report that they used more minor violence in disciplining their children than did foster caregivers, but their children reported witnessing significantly less physical violence in the home. Recognizing that the development of children removed from their homes because of maltreatment is likely a function of both the maltreatment as well as the quality of subsequent family experiences (i.e., violence exposure), implications of the findings for determining placements are discussed.     

The foster family in Poland,a custodial and educational environment (XX – the early XXI centuries)

ABSTRACT

A thorough study of the sources made it possible to conduct a retrospective analysis as well as outline normative and legal principles of the foster family in Poland as one of the main forms of child custody in the XX – early XXI centuries rooted in national traditions and social legacy. Foster family formation and early functioning indicate that its value depends on who is entrusted with a child to care for, what child is to be placed in foster care, what kind of support a foster family could expect, what control is exercised over it. The second half of the XX – the early XXI centuries mark the evolution of the legal and regulatory framework underlying foster care, one of the main institutional forms of child custody in Poland. It appears that the foster family provides a child with proper living conditions and a favourable environment for its education and socialisation, closest possible to those in a natural family. To this end, the state is to make sure that potential foster parents are properly trained. The development of foster care speeds up in the 1970’s and 1990’s. We have discovered that at the turn of the century, foster family functioning, provision of care and adequate conditions for a child’s development and upbringing etc. are defined by the social policy of the state. Of great significance for the international community is the Polish experience regarding the requirements for foster family candidates, children’s placement in such families, material assistance, foster parent salary calculations; the amount of money biological parents must pay for their child’s placement in a foster family. In modern Poland the foster family is an important social institution which promotes the development of a child deprived of parental care and is prioritized over other institutional forms of care.     

All hat and no cattle: How house bill 2926 paves the way for progress in the reinstatement of parental rights,but falls short of providing parents with an accessible resource

Texas' foster care system is overpopulated, underfunded, and doing a grave disservice to the children in its care. Specifically, the foster care system is violating the constitutional rights of children regarding how they must be taken care of while in the State's custody. Parents whose custodial rights were involuntarily terminated now have a clear path for petitioning to regain their rights thanks to Texas House Bill 2926. Much of House Bill 2926's value is lost in the legalese used to write it, which is the problem my proposed solution, The 2926 Project, aims to remedy.     

UNINTENDED CONSEQUENCES OF BARGAINING FOR ADOPTION ASSISTANCE PAYMENTS

Families that adopt children who are in foster care may receive monthly adoption assistance payments to offset the cost of raising the adopted child. The amount of the adoption assistance payment is the subject of bargaining between the family and the child welfare authority. This article uses a bargaining model to highlight factors that, in addition to the expected costs of raising the child, might influence the outcome of bargaining over adoption assistance payments. Findings indicate that married parents who adopt children already in their care have an advantage in bargaining, and single women who adopt their kin or foster children have a disadvantage in bargaining.     

Threats to Perceptions of Fairness in the Termination of Parental Rights

Termination of parental rights (TPR) proceedings are among the most important family court activities. This study contributes to knowledge of the TPR process by illustrating practices employed in TPR proceedings and considering ways that certain practices can hinder perceptions of fairness. TPR court records from one state were analyzed using inductive coding procedures. The analysis identified nine categories of threats to perceptions of fairness in the TPR process. Findings have implications for procedural justice and the legitimacy of child welfare practice.     

New York State of Mind: Parental Incarceration and Children's Visitation in New York State

The incarceration of a parent has a variety of negative effects on a child's psychological, academic, and developmental success. Children can end up in foster care as a result of the state terminating parental rights due to the parent's incarceration. Despite imprisonment of their parent(s), maintenance of visitation with the parent(s) is still important for their children. However, not all prisons have visitation programs that are suitable to visiting children. This Note proposes a model state statute that will recognize the importance of visitation, implement “child friendly” visitation programs, facilitate training for prison staff, and provide transportation for children in major cities to the prison facilities.     

CHILDREN'S RIGHTS IN EUROPEAN LEGAL PROCEEDINGS: WHY ARE FAMILY PRACTICES SO DIFFERENT FROM LEGAL THEORIES?

Debates about child custody following parental separation often have been framed in terms of a battle between the competing rights of different family members. In the United States, advocates of mothers’ rights square off against proponents of fathers’ rights, with each side claiming to truly represent children's rights. Of course, not all advocates lay claim to children's rights in contact and custody disputes merely as a tactical maneuver. Some experts believe that children are entitled to (and benefit from) their own, independent legal advocate in custody cases. In theory, at least, the position that children lay claim to a third set of independent rights is strongly held in Europe, more strongly than in many U.S. states, because of the adoption of United Nations Convention on the Rights of the Child in Europe, but not in the United States. In this article, we examine children's rights in custody disputes from a European perspective, particularly children's legal right to contact with their parents, as well as the children's right to be heard in custody and contact disputes. We find that, despite differences in legal theory, tradition, and family demographics, European countries ultimately face a familiar reality: Custody and contact disputes are, in reality, more about renegotiating family relationships than they are a matter of a mother's, father's, or child's rights.     

BURDEN OF PROOF BEGONE

This article examines the tendency of emergency child removal decisions—by social workers, police officers, and judges—to become self-reinforcing and self-perpetuating in subsequent child protective proceedings. This snowball effect, as one court has referred to it, is widely acknowledged by lawyers who practice in juvenile court, yet is largely unknown beyond those circles. The article explores the causes and consequnces of this phenomenon in the age of the 1997 federal Adoption and Safe Families Act (ASFA), which converts every day that a child spends in foster care into one more tick of the clock in a countdown toward termination of parental rights. The article provides some background on the law and practice of emergency child removal in the United States today, analyzes the factors that make initial removals outcome determinative in many child protection cases, considers the implications of this phenomenon in light of ASFA, and identifies possible solutions.     

BURDEN OF PROOF BEGONE

This article examines the tendency of emergency child removal decisions—by social workers, police officers, and judges—to become self-reinforcing and self-perpetuating in subsequent child protective proceedings. This "snow-ball effect," as one court has referred to it, is widely acknowledged by lawyers who practice in juvenile court yet is largely unknown beyond those circles. The article explores the causes and consequences of this phenomenon in the age of ASFA (the 1997 federal Adoption and Safe Families Act), which converts every day that a child spends in foster care into one more tick of the clock in a countdown toward termination of parental rights. This article provides some background on the law and practice of emergency child removal in the United States today, analyzes the factors that make initial removals outcome determinative in many child protection cases, considers the implications of this phenomenon in light of ASFA, and identifies possible solutions.     

Surrogacy,Identity, Parentage and Childrenʼs Rights – Through the Eyes of a Child

In this article I will focus on two important aspects of children's rights which are impacted by artificial reproductive technology (particularly surrogacy); being the rights to identity and the rights to legal parentage. The United Nations Convention on the Rights of the Child acknowledges the importance of a child's right to identity, to be protected from discrimination on the basis of the status or beliefs of the child's parents, legal guardians or family members. For many children born through surrogacy arrangements, they may have only one or no legally recognized parent. The adults caring for them may have parental responsibility orders but this falls well short of providing children with the benefits and protections that legal parentage does. The issue of identity can be complex. Increasingly, states have recognized the importance of children knowing the circumstances of their birth and being able to access biological and genetic information including medical information. From a child's perspective the issues of identity and parenthood are intertwined. Given the importance of identity, more needs to be done to ensure that identifying information about children born as a result of artificial reproductive technology is properly stored and readily accessible for these children. Denying a child legal parentage when there are no concerns about the care being provided by their parents cannot be justified when considered from a children's rights perspective.     

STATEWIDE SPECIAL EDUCATION SURROGATE PARENT PROGRAMS: ENSURING QUALITY ADVOCACY TO ALL FOSTER CHILDREN WITH SPECIAL EDUCATION NEEDS

The Individuals with Disabilities Education Improvement Act (IDEIA) protects foster children's rights to have a special education decision maker. For foster children who do not have a natural or adoptive parent or a responsible adult in their life to take on this role, IDEIA requires that a special education surrogate parent be appointed by appropriate procedures. Under IDEIA, these procedures are delegated to the states. Each state must ensure that local education agencies (LEAs) delineate methods for recruiting and maintaining a pool of available special education surrogate parents. Due to differing state laws and LEA procedures, there are many discrepancies in the quality and availability of special education surrogate parents. To combat these problems, this Note proposes principles for administrative regulations establishing statewide special education surrogate parent programs by examining existing statewide programs. Administered through a state's Department of Education in collaboration with child welfare agencies, statewide special education surrogate parent programs guarantee well‐qualified decision makers who will advocate for all children eligible for special education services.