WORKING TO ENSURE THAT INDIVIDUALS WHO CAN SAFELY PARENT HAVE AN OPPORTUNITY TO BE PROSPECTIVE FOSTER AND ADOPTIVE PARENTS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Unfair Roadblock: The federal Adoption and Safe Families Act (ASFA) set national standards for the placement of children in the child welfare system, emphasizing safety, permanency, and the child’s well-being. One of its provisions mandates that states perform criminal record checks on prospective parents and bar individuals with certain convictions from being foster or adoptive parents. Any family member with a criminal record can be disqualified from caring for a child whose parent is in prison. ASFA allows states to substitute its own rules for the federal requirements and make individualized determinations about the suitability of applicants. Unfortunately, some states have adopted the federal standard without any allowance for individualized consideration of the prospective parent’s suitability or the interests of the child.

This tool kit provides materials advocates can use to seek reform of these laws, including:

THE PROBLEM/WHAT NEEDS TO BE CHANGED

The Adoptive and Safe Families Act (ASFA), passed in 1997, requires states to enact legislation incorporating its provisions in order to continue to receive federal funding for child welfare programs. ASFA requires criminal record checks for prospective foster parents or guardians and requires that states bar for life individuals convicted of the following offenses:

  • child abuse or neglect

  • spousal abuse

  • crimes against children, including child pornography

  • violent crimes, including rape, sexual assault or homicide (but not other types of physical assault or battery)

 

ASFA also requires that states bar for five years anyone convicted of the following offense:

  • physical assault

  • battery

  • drug-related felonies

However, the Act allows states to opt out of these requirements and substitute their own rules by passing a state law that does so, or the governor of the state may notify the Secretary of Health and Human Services in writing that the state has elected to be exempt from these requirements.

While many states have opted out of the federal requirement, fifteen states have adopted the federal standard or even expanded the list of crimes for which individuals must be barred from becoming foster and adoptive parents. In these states, individuals with criminal records have been denied the opportunity to become parents, and children have been removed from safe and loving homes without individualized determinations that the removal is truly in their best interest. The “one-size-fits-all” nature of ASFA denies potential parents the right to present evidence that, despite their prior convictions, they are fit and capable caregivers.


BENEFITS OF ‘OPTING OUT’ FROM THE FEDERAL GUIDELINES

Important benefits result from changing state policies to allow individualized determinations about the suitability of an applicant with a criminal record to be an adoptive or foster parent. Allowing individuals who can show sufficient evidence of rehabilitation to be foster and adoptive parents expands the eligible pool of individuals who can provide loving homes for children in need of a nurturing environment. Many of these individuals have a unique understanding of the difficulties faced by these children and can provide them with the support and guidance they need. Indeed, many people with criminal records are already providing excellent care, and it would be very damaging to the children to wrench those care-givers away.

Some states, such as New York, quickly passed laws that barred individuals with certain criminal records from becoming foster or adoptive parents, with little forethought of the consequences. As a result, many children were abruptly removed from homes where they had been provided good care for years. Realizing the shortsightedness of the measures, New York legislators amended the law to allow individuals with criminal histories to prove their ability and fitness to become adoptive or foster parents.


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WHAT YOU CAN DO

If your state has not opted out of the federal guidelines, you can advocate for amendment of your state’s ASFA laws to require individualized determinations about the suitability of applicants with a criminal record. If your state also bars individuals from becoming adoptive or foster parents because of the criminal record of a household member, these provisions should likewise be revised in favor of individualized determinations. Note that while some states have the same standards for adoptive and foster parents, others have separate standards for each. A detailed description of every state’s laws regarding adoption and foster parenting can be found in the Legal Action Center’s report, After Prison: Roadblocks to Reentry.

When advocating for changes to your state ASFA laws, you can consider the factors other states are using to make individualized determinations:

  • Time elapsed since completion of sentence or probation

  • Evidence of rehabilitation, supported by credible documentation, like Certificate of Rehabilitation

  • Extent of criminal record, frequency of criminal activity

  • Nature of the offense(s), relation of the crime(s) to parenting

  • Mitigating circumstances, such as age, at time of offense

  • Extent of involvement in the charged offense

  • Similarity between the victim and the individuals served by child welfare agency

  • Character evidence, demonstrated good moral character

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MODEL STATE ASFA LAWS

States looking to reform their own Adoption and Safe Families Act (ASFA) laws to allow for individualized determinations instead of automatic bars to adoption or foster parenting may want to consider the language used by the following states:

Florida

  • Florida Statute Annotated, §§ 435.04 and .07 Exemptions From Disqualification

In Florida, suitability to be a foster or adoptive parent is considered on an individualized basis for those convicted of misdemeanors and/or felonies more than three years old. In determining whether an applicant is fit to serve as an adoptive or foster parent, the Department of Children and Family Services will consider the following factors: evidence of rehabilitation; the surrounding circumstances of the incident; nature of harm caused to the victim; applicant’s history since the incident; and any other evidence that the applicant will not pose a danger.

Click here to see Florida’s statutory language.

Hawaii

  • Hawaii § 346-19.7 Prospective adoptive parents; standards and home studies

    In Hawaii, the Department of Human Services determines whether the criminal record presents a “risk to the health, safety, or well-being of the children in care.” Prospective adoptive parents have an opportunity to meet with the Department and rebut the findings.

    Click here to see Hawaii’s statutory language.

Texas

  • Texas Admin. Code tit. 40, § 700.1504. Approval of Foster and/or Adoptive Home Study

In Texas, individual determinations for both foster care and adoption are based on an evaluation of the applicant’s “total situation.” The Texas Department of Protective and Regulatory Services (TDPRS) evaluates applicants based on their ability to care for specific children needing placement. TDPRS approves home studies based on an evaluation of the applicants' total situation, their flexibility in all areas of life, their sensitivity and understanding of children's needs, and their ability to meet the developmental, maintenance, and protection needs of children in TDPRS's managing conservatorship.

Click here to see Texas’ statutory language.

Utah

  • Utah Code tit. 62A , § 62A-2-120. Criminal background checks

Utah requires a “comprehensive review” (which looks at many of the enumerated factors discussed in this toolkit), after which the department either approves or does not approve a foster care license based on whether or not granting approval would likely create a risk of harm to a child or vulnerable adult.

Click here to see Utah’s statutory language: [Michelle, please insert to “Utah Statute”]

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ACTION ALERT

If your state is considering legislation to amend your state’s ASFA law to allow individualized determinations of applicants with criminal records to determine if they would be good parents, alerting supportive groups and individuals and asking them to contact their legislators to support the legislation is an effective way to bring about change. Click here for a model Action Alert you can shape for your specific needs and use to seek grass roots support.

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SAMPLE LETTER

Click here for a model Sample Letter you can send along with the Action Alert to help your grass roots supporters write to their elected officials urging them to support legislation that amends your state’s ASFA law to allow individualized determinations of applicants with criminal records to determine if they would be good parents. Once again you can shape this Sample Letter to meet your specific needs.

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