Permanency is about locating and supporting a lifetime family that provides young people with safe, stable, and committed parenting, unconditional love and lifelong support, and legal family membership status. Without permanent family connections, young people may face a number of challenges and risk, and statistically experience poor outcomes as they continue to develop. It is the moral and professional responsibility of child welfare agencies, in partnership with the larger community, to identify caring adults who can offer young people permanent physical, legal, and emotional safety and security.[i]
Adults tend to see children as miniature versions of themselves, blank slates to be shaped and formed into the acceptable young men and women parents hope they will become. Infants develop strong and lasting feelings about their world, depending upon whether needs are met or not. As the child develops, these feelings will color all later experiences. Many adults fail to appreciate the importance of a time when language is not available to explain things, the early years of life. Understanding and inhabiting the mind of a child, especially a baby, is difficult for a mature mind.
This same ignorance allows adults to brush off the devastating impact of ruptured attachments and bonds. When a child is removed from his or her birth home, shuffled through a series of brief placements, left to languish in temporary care, and, worst of all, emancipated to so-called independent living, we act complacent. The adult may comfort himself with the notion that children are adaptable. “He’ll be all right. He’s just a kid. He’ll get over any hurt when he finally gets into a loving environment.” But what if a permanent home never comes? Or, what if the child learns never to trust love and turns off?
Children in temporary care are at risk. Throughout the 20th century in the United States, if a child became seriously abused or neglected, they were removed from their family and placed in an institution or in foster care. Intended to be temporary, it was not. The foster care system failed to take seriously the vital importance of early relationships, allowing children to languish overlong in temporary care and age out of a system that had removed them from one home but could not find another. They were our most vulnerable citizens and we failed them.
The UN Convention on the Rights of the Child, promulgated in 1990, states early in its Preamble: “…The family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community…The child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love, and understanding…” While most would agree with that statement, the United States has still not signed this international agreement on the rights of children. The only other country not to have signed is Somalia.
The Adoption and Safe Families Act was passed in 1997 to minimize the delays in temporary care. This law stipulates that reunification with the birth family should be pursued vigorously, but it also sets certain time limits. In cases where reunification is deemed inadvisable from the start, it need not be pursued at all. In other situations, the permanency plan can be changed from reunification to another permanency option after six months. In any case, a termination of parental rights (TPR) must be filed after a child has been in foster care for 12 consecutive months or 15 of the past 22 months. At the same time, federal and state subsidies are provided to encourage adoption.
ASFA made a basic change in the law. Reversing previous assumptions, ASFA put the rights of the child before those of the birth parents and other adults. As Rhode Island Republican Senator John Chafee said, “We will not continue the current system of always putting the needs and rights of the biological parents first. It's time we recognize that some families simply cannot and should not be kept together.”
What rights does ASFA give to foster children? By identifying “health and safety” needs, ASFA is indicating that the child’s basic needs supersede the less basic needs of the parent to raise a child. What does “health and safety” truly mean? How broadly can we interpret that phrase? ASFA itself provides two clues. First, ASFA is clearly attempting to identify and protect the basic needs, without which a child cannot grow up sane and whole. Second, and more convincing are the specific mandated details: the deadlines, the urgency of timely permanency plans (reunification and adoption), and the incentives for adoption.
Following ASFA, the underlying concept of basic needs can be summarized in practical terms. These basic needs endow the child with three primary rights: The right to safe surroundings. The right to maintain significant relationships. The right to a permanent home.
The right to safe surroundings. ASFA declares that the health and safety of the child are paramount, and that this consideration must dominate all others. The right to safe surroundings is elemental and obvious. Kulp lists nine rights that she feels must be available to children if they are to have a chance to grow up to be loving and productive human beings. Preeminent among them is “the right to food, safety, supervision, and protection.”[ii]
Children have the right to be free of abuse and neglect. The welfare department is required to investigate physical abuse, sexual abuse and neglect. Neglect may well be the more devastating and is too often ignored because it often goes unreported and is harder to substantiate.
When the safety and health of the child are at stake, all voices must be fully heard. To protect the child, welfare departments and the courts must have full knowledge. The legal parent, the Court-appointed Special Advocate (CASA) or Guardian ad Litem (GAL), and the foster parents are important players. Prior to ASFA, these parties were often ignored. Now ASFA states that birth parents, foster parents, CASAs and GALs must all be fully heard.
The right to maintain significant relationships. Certain people are the medium through which our needs are met. These people are not interchangeable. When a child has come to depend on a specific person to meet basic needs, that person and the needs become identical in the child’s mind. To take away the person is to take away the secure feeling that basic needs will be met. While the argument might be made that the child will learn in time that others can meet those basic needs, there is risk that the child will turn his emotions off and refuse to attach again, rather than face future rejection. The DSM-V lists frequent changes in foster care as a factor in the diagnosis of Reactive Attachment Disorder. Based upon their needs, all children in care have the right to the preservation of significant relationships.
We are not solitary individuals, adrift among but separated from our fellows. We exist only in relation to one another. We need each other for survival, for food and shelter, for healing and safety. Equally vital are a child’s need for companionship, love and the sense of well-being that comes from personal contact.
Kin are important. If and when the child is removed from the home of his legal parents, relatives who are available, acceptable and willing to care for the child should be given priority. However, to locate blood relatives after time has passed and bonding with a foster family has occurred, and then to attempt to transfer the child to unknown relatives, is irresponsible and can be harmful. Bonding takes precedence over “kin-come-lately.”
Bonding is not some “warm fuzzy” notion described by a well-meaning child advocate. Bonding is a significant attachment. To be given the importance it deserves, bonding needs to be well-defined, and the consequences of its interruption need to be made clear. What happens when bonding is disrupted? Chapters 6 through 9 offer strong statistical evidence that shows a significant increase in mental illness, crime and homelessness.
The right to a permanent home: Children need stability and permanence. A child cannot grow and develop without a firm and unchanging base. Even a less-than-best home is preferable to being shuffled around, never knowing where one belongs. Children can adjust to most situations. They cannot adjust to the moving base of a temporary home, not knowing what happens next, not knowing where they will be tomorrow. Directions to a destination are useless if one does not have a starting point. In the face of uncertainty, the child can only hang on and wait for stability.
One year in a child’s life is already a long time. Recognizing this as the maximum interlude allowable for impermanence, ASFA requires that a termination of parental rights be filed within that time and no later. The choice between reunification with the legal parents or adoption must be made wisely but quickly, within “child time.” Delay abuses the child.
Despite the fact that some states list permanent foster care, legal guardianship and independent living as permanency plans, true permanency comes in only two forms: Reunification and Adoption. To improve reunification outcomes, ASFA expanded family preservation and support services.
ASFA recognized the relationship between time and bonding and the potential harm done when bonding is disrupted. The timelines of ASFA follow the normal way that humans attach to one another over time.
States are required to file a termination of parental rights for children who have been in foster care for 12 consecutive months, or for 15 out of the last 22 months.
Permanency Hearings must be held at least every 12 months, and sooner when appropriate. The permanency plan can be changed as early as six months if reunification is not working.
All important parties have a right to be heard. This includes birth and foster parents who at times have not even received notice of hearings.
ASFA addressed reunification. When a child is removed from his birth home, ASFA requires a strong effort to remedy the problems and reunify the child in a timely manner. Until and unless proven otherwise, the birth parents remain the first and best option for permanence.
In order to save time, however, ASFA clarified those circumstances where there was little or no hope of reunification. This allows for a termination of parental rights to occur earlier, thus shortening the time a child would spend in temporary care.
ASFA included incentives for permanency, providing new financial and other inducements to achieve permanent homes.
- States are now required to document their efforts to move children toward adoption.
- States receive incentives to improve adoption rates.
- Interstate boundaries that had delayed adoption have been eased.
- Subsidies for adoptive children have been extended.
- Health care coverage for adoptive children has been expanded.
The child is going through a process that will determine what kind of adult he or she will become, and to what extent he or she will be capable of working and loving. The very pathways of life are being fashioned. Basic needs for health and safety and a secure attachment provide the foundation for growth.
When society removes a child from an unsafe home, that society assumes an obligation to make the situation better, to make the birth home a safe one or to find an alternate permanent placement for the child. As society’s most vulnerable citizens, foster children should have a primary claim on our collective conscience. The Adoption and Safe Families Act provided a significant legislative framework for abused and neglected children to achieve genuine permanence within a reasonable time.
Chapter 4: The Promise of AFSA Notes
[i] Permanency Planning Today, NRCPFC, Summer/Fall Newsletter, 2013.
[ii] Jodee Kulp, Families at Risk, (Minneapolis: Better Endings, 1993), 214.