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2. FEDERAL LEGISLATIVE SUPPORT FOR INTERJURISDICTIONAL PLACEMENTS
While States are responsible for crafting and administering laws and policies to govern foster care services, placements with relatives, termination of parental rights, and adoption of children, the Federal government, through provisions in Federal laws regarding adoption assistance, foster care, and other child welfare programs, establishes parameters within which State laws must function as a condition for receiving Federal funds. The following sections summarize three Federal laws directly relevant to permanency planning and interjurisdictional placements of children in foster care.
One of the first interjurisdictional issues to be addressed in Federal legislation was placement of tribal children when they came into legal custody of the child welfare system. The Indian Child Welfare Act (ICWA) was passed in 1978 in response to the high number of Indian children being removed from their homes by child welfare agencies; many were being placed with non-Indian foster and adoptive families. Congress passed ICWA to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. ยง 1902).
ICWA's Federal requirements apply to all State child welfare agencies and courts involved in custody and placement decisions for Indian children who are members of or eligible for membership in a federally recognized tribe. Some of ICWA's key measures are:
- Establishes minimum Federal standards for the removal of Indian children from their families, including "active" efforts to prevent the breakup of Indian families and setting a "beyond a reasonable doubt" standard of proof for terminating Indian parents' parental rights.
- Requires identification of Indian children by the State Child Welfare services agency and notification of Indian parents and Tribes of State proceedings involving Indian children.
- Specifies preferences for adoptive placements stating that in any adoptive placement
of an Indian child under State law, a preference shall be given, in the absence of good
cause to the contrary, to a placement with:
- A member of the child's extended family;
- Other members of the Indian child's tribe; or
- Other Indian families.
- Specifies criteria and preferences for foster care or preadoptive placements stating
that children accepted for foster care or preadoptive placement shall be placed in the
least restrictive setting which most approximates a family and in which their special
needs, if any, may be met. Children shall also be placed within reasonable proximity
to their birth families' homes, taking into account any special needs of the children. In
any foster care or preadoptive placement, a preference shall be given, in the absence
of good cause to the contrary, to a placement with:
- A member of the Indian child's extended family;
- A foster home licensed, approved, or specified by the Indian child's tribe;
- An Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
- An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.
- Permits use of Tribal courts in child welfare matters; Tribal right to intervene in State proceedings or a transfer of proceedings to the jurisdiction of the Tribe. Creates exclusive tribal jurisdiction over all Indian child custody proceedings when requested by tribe, parent, or Indian "custodian."
- Requires State and Federal courts to give full faith and credit to tribal court decrees.
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In response to widespread concerns about the child welfare system and the length of time children were spending in foster care, Congress passed the 1980 Adoption Assistance and Child Welfare Act (PL 96-272), which provides Federal funds to States for foster care and adoptive placements of children. The Act included a cornerstone provision requiring States to demonstrate reasonable efforts to prevent children's removal from their birth families and return those who had been removed as quickly as possible. The Act also required six-month reviews of all children in foster care to promote steady progress toward achievement of permanent placements of children in safe and appropriate homes.
To support adoption of children from foster care, federally funded adoption assistance maintenance payments (often called adoption subsidies) were first made available through this Act using funds from title IV-E of the Social Security Act. These payments are available to families who adopt children who meet established eligibility criteria, including an income eligibility guideline related to the children's families of origin, children's eligibility for payments under the Supplemental Security Income (SSI) program, or children identified as having "special needs." Under the provisions of this Act, children with special needs are defined as those who cannot or should not be returned to their biological parents' homes, have a special condition which makes it reasonable to conclude they cannot be placed with adoptive parents without providing adoption assistance, and have not been able to be placed for adoption without assistance. Further description of how States have defined special needs is contained in Section 3.2 of this report. In FY 2004, 70 percent of children adopted from foster care were eligible to receive a federally funded adoption subsidy, and an additional 19 percent were eligible to receive a State subsidy.
The 1980 Adoption Assistance and Child Welfare Act also provides for Medicaid coverage for children who are eligible to receive Federal foster care or adoption assistance maintenance payments. The Act directs States to protect the interests of children receiving Federal title IV-E adoption assistance by ensuring that adoptive families receive needed services and benefits from this Federal program, regardless of whether they adopted a child from within their State of residence or another State.
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The Adoption and Safe Families Act (ASFA) of 1997 focused extensively on the need for achieving timely permanent placements, especially adoption, for children in foster care who could not safely reunite with their birth parents. ASFA contained specific provisions to encourage and facilitate timely permanency for children in foster care, including provisions to:
- Clarify the meaning of reasonable efforts to preserve and reunify families (from PL 96-272) to emphasize safety of the child as the paramount concern.
- Allow for simultaneous exploration of family reunification and other permanency options (often called concurrent permanency planning).
- Require States to file for termination of parental rights once children have been in foster care for 15 of the most recent 22 months, except in certain allowable circumstances.
- Expedite termination of parental rights in specific situations of severe inflicted harm to children.
- Require States to document efforts to find adoptive or other permanent placements for children, including placements with fit and willing relatives. Efforts to find adoptive placements should include child-specific recruitment strategies and may involve the use of State, regional, or national adoption exchanges, including electronic exchange systems.
- Give preference when making placement decisions to adult relatives over non-relative caregivers when relative caregivers meet all relevant State child protection standards.
- Ensure States develop plans for effective use of cross-jurisdictional resources to facilitate timely adoptive or other permanent placements for waiting children.
- Provide Adoption Incentive Payments to reward States that increase the number of foster children placed for adoption each year above established baselines.
The key provision in ASFA that forced States to address challenges related to interjurisdictional placements made States ineligible for certain Federal funds if they were found to have "denied or delayed the placement of a child for adoption when an approved family is available outside of the jurisdiction with responsibility for handling the case of the child." This requirement, in conjunction with ASFA's emphasis on expeditious permanent placements and adoption in general, has led to increased interest in resolving the barriers to placement of children across State and county lines.
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In 2003, Congress reaffirmed its commitment to ensuring children in the nation's foster care system are moved as quickly as possible into permanent homes. The Keeping Children and Families Safe Act reauthorized the Adoption Opportunities Act, the Child Abuse Prevention and Treatment Act (CAPTA), and related child welfare legislation. Recognizing that interjurisdictional placements are an under-used resource for children awaiting adoption, and that significant barriers may contribute to a lengthy interstate adoption process, the 2003 reauthorization included a grant program to support State and local innovations that could improve interjurisdictional adoption outcomes. In addition, the Act required U.S. DHHS to conduct research into the dynamics of successful adoptions and interjurisdictional adoptions.
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The Safe and Timely Interstate Placement of Foster Children Act of 2006, signed July 3, 2006, improves protections for children and holds States accountable for the safe and timely placement of children across State lines. It establishes new grants for timely interstate home study incentive payments to States that have approved plans and that have completed, and provided the Secretary a report on, such studies. It also amends the definition "case review system" to: (1) increase the required frequency of State caseworker visits to a child who is placed in foster care outside the State in which the child's parents reside; (2) require a child's health and education record to be supplied to the child at no cost when he/she leaves foster care by reason of having attained the age of majority under State law; and (3) provide for a foster parent's right (currently, opportunity) to be heard in any proceeding (currently, review or hearing) respecting their foster child. It requires State courts to ensure that foster parents, pre-adoptive parents, and relative caregivers of a child in foster care are notified of any such proceeding. The law also provides for consideration of out-of-state placements in permanency hearings, case plans, and case reviews and requires each plan for child welfare services to include the assurance that the State will eliminate legal barriers to facilitate timely adoptive or permanent placements for children.
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The Adam Walsh Child Safety and Protection Act, signed on July 27, 2006 provides broad new authority to protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, and promote Internet safety. One provision requires States to complete criminal records checks (including fingerprint checks) on prospective foster or adoptive parents before approval of any child's placement with such individuals and eliminates authority under title IV-E allowing States to "opt-out" of such criminal background checks; change which has long been a priority for the President.
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