Although each state is empowered to handle child protection in its own way, federal law plays a powerful role in the process. The federal government, through the power of the purse, sets out a number of guidelines for states to follow. There are significant financial incentives for states to comply with the federal requirements.
As mentioned in an earlier section, federal involvement in child protection is a relatively recent phenomenon. As late as 1973, there was little or no federal involvement in child protection. In 1974, Congress adopted the Child Abuse Protection Act (CAPTA), which provided financial assistance to the states for both foster care and the investigation of suspected child abuse and neglect.
By the late 1970s, more than 500,000 children were living apart from their families.(1) The foster care system was overloaded. Children were forgotten and shuffled from foster home to foster home. In1977, the United States Supreme Court expressed concern over "foster care drift" in Smith v. Organization of Foster Families for Equality and Reform.(2) There, the Court noted that "many children apparently remain in this 'limbo' indefinitely."(3) In 1980, in response to the mounting criticisms of the foster care system, Congress passed the Adoption Assistance and Child Welfare Act of 1980 ["CWA"](4).
One commentator stated the following:
"Congress passed the CWA to provide children with more permanent placements than foster care permitted. It sought to prevent unnecessary foster care placements, to encourage permanency planning for children, and to reunify families where possible. . . [H]eralded by child advocates across the country, [the CWA was based on a family preservation philosophy and, thus, actually promoted the rights of the entire family]. . .The key provision of the CWA was the requirement that states must make "reasonable efforts to reunify the child with the family." This requirement--that the state has an affirmative obligation to preserve and strengthen the ties between children and their parents--has been codified in Arizona law(6) and remains a fundamental principle of the child protection system. What, in fact, constitutes "reasonable efforts," however, is hotly debated and often is the central issue in Juvenile Court dependency hearings. In addition to the principle of "reasonable efforts" the CWA also mandated, for the first time, that children who are removed from their families are entitled to representation either through a Guardian Ad Litem, a Court Appointed Special Advocate [CASA], or through litigation counsel."This philosophy has as its starting point the belief that a child's biological family is the placement of first preference and that "reasonable efforts" must be made to preserve this family as long as the child is safe. Where these efforts fail and the child must be removed, the family preservation philosophy holds that reasonable efforts must still be made to reunify the child with the family. This pro-family sentiment was a great change from the child-rescue philosophy of the 1970s, which neglected or failed to recognize the harm that separation can cause to both children and their parents."(5)
Despite the passage of the CWA, the average length of stay in foster care remained unacceptably lengthy. As a result, Congress passed the Adoption and Safe Families Act of 1997 (ASFA), which aspires to speed up achieving permanency for children.(7) Among other things, ASFA revised the "reasonable efforts" requirements in cases of extreme abuse and mandated time lines within which the states must establish a permanent plan for each child. ASFA, essentially, encourages states to hasten efforts to terminate parental rights. For example, when children have been in foster care for 15 of the previous 22 months, ASFA requires states to commence proceedings to permanently terminate parental rights [often referred to as TPR or a severance] . In addition, ASFA offers significant financial bonuses to states that successfully place children in adoptive homes.
The requirement for a termination hearing has changed the face of child protection proceedings. In essence, Congress has said that parents no longer have an unlimited time frame in which to get their acts together. If they cannot make the home minimally adequate (in the eyes of the state and court) within the ASFA time frame, they may lose their children forever.(8) There are three exceptions to the ASFA requirement that the State file a termination proceeding:
1. the child is being cared for by a relative (if the state elects to include this exception);The ASFA mandate requires only that the state commence a TPR proceeding; it does not mandate the result. In other words, the Juvenile Court is free to make findings either that the state requirements for termination have not been proven or that, even if proven, termination is not in the best interests of the child. Thus, the state need not be successful in terminating parental rights to meet the requirements of federal law.2. the state documents and makes available to the court a "compelling reason" that seeking termination would not be in the best interests of the child; or
3. The state determines that certain services identified in the child's case plan are necessary for the child's safe return home, but that it has failed to provide them according to the schedule specified in the case plan.(9)
Even though the State is not required to be successful in terminating parental rights, the state has a financial incentive--in the form of adoption bonuses--to be successful. Moreover, once a proceeding is filed, it has a life of it's own. Human nature being what it is, the State's case managers and the state's attorney will try to win.
There are many other federal influences on child protection law. The most important are the federal supports for the services offered to parents and children to reunify the family. Federal funds for medical assistance, housing, therapy, and training are all significant factors in determining whether or not some families can be reunified.
While there is no space here to go into detail, the availability of specific categories of support--either to individuals or to the states--certainly has impact on the "reasonable efforts" made by the states.
1 Bailie, Kathleen A., The Other "Neglected" Parties in Child Protective Proceedings: Parents In Poverty and the Role of the Lawyers Who Represent Them, 66 Fordham L. Rev. 2285, 2289 (1999).4Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 500.
5Bailie, supra note 1 at 2289-2291.
6 ARS §8-845C; see also Mary Ellen C. v. ADES, 287 Ariz. 185 (App.Div.1, 1999) (right to parent is a fundamental right, which the state has a duty to preserve).
7Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115.
8 Arizona has taken that time mandate one step further. Arizona law now requires that the state hold a permanency planning hearing within one year of the date that a child was taken into state care. If the resulting plan is for termination of parental rights or for guardianship, then the state must file a proceeding to carry out that plan within ten days thereafter.
9ASFA, §302(4), 42 U.S.C. §675(5)(E)