United States General Accounting Office

GAO Report to the Chairman, Subcommittee

on Human Resources, Committee on

Ways and Means, House of

Representatives

December 1999 FOSTER CARE

States’ Early

Experiences

Implementing the

Adoption and Safe

Families Act

GAO/HEHS-00-1

GAO United States

General Accounting Office

Washington, D.C. 20548

Health, Education, and

Human Services Division

B-282539 

December 22, 1999

The Honorable Nancy L. Johnson

Chairman, Subcommittee on Human Resources

Committee on Ways and Means

House of Representatives

Dear Madam Chairman:

The Adoption and Safe Families Act of 1997 (ASFA) (P.L. 105-89, 111 Stat.

2115), which amended the foster care provisions of the Social Security

Act, was enacted in November 1997, prompting fundamental changes in

the way our nation’s foster care system is managed. Prior to the changes,

some foster children languished in temporary, out-of-home care while

prolonged attempts were made to reunite them with their biological

families. Under the amended provisions, states are required to find these

children a safe, permanent home more quickly. In particular, two key

provisions affect those children who are unable to safely return home

within a reasonable time.1

 First, the provision clarifying the circumstances

under which states are not required to try to prevent a child’s removal

from home or to return a foster child home2

 allows states to forgo services

to preserve or reunite the biological family.3

 Second, the provision on

terminating parental rights establishes a time frame for states to begin

proceedings to terminate parental rights for certain foster children for

whom adoption is appropriate.4

 As a result of these two provisions, states

must make the difficult decision between the need to preserve parental

rights and the need to give the child the opportunity to live in a permanent

home within a reasonable time.

Because states had to make major changes in laws, policies, procedures,

and practices to comply with the act, you asked us to report on states’

early efforts to implement these two provisions. In particular, you asked

us to describe (1) how states have responded to ASFA regarding legal,

administrative, and other changes that social workers may need to make in

their day-to-day practice of handling child welfare cases; (2) the status of

1

The full text of these provisions, as amended by ASFA, appears in app. II.

2

42 U.S.C. 671(a)(15)(D).

3

Starting or continuing services to keep a family together may not be appropriate when doing so places

the child’s safety in jeopardy, such as when a parent has murdered another child. In these egregious

circumstances, ASFA allows states to bypass services that must usually be provided to the biological

family and more quickly find the child another permanent home.

4

42 U.S.C. 675(5)(E).

Page 1 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

states’ implementation of the two provisions related to making timely

permanency decisions for those foster children who are unable to safely

return home; and (3) the actions the Department of Health and Human

Services (HHS) has taken to assist states and monitor the implementation

of these two provisions. To address these issues, we reviewed available

nationwide data on state efforts to implement the new law. To obtain

information about states’ progress in implementing the two provisions, we

administered a survey to all 50 states and the District of Columbia. We also

interviewed federal, state, and local officials and other child welfare

experts and visited the state child welfare agency and one county in each

of three states with large foster care populations—California, Florida, and

Missouri. We conducted our work between December 1998 and

October 1999 in accordance with generally accepted government auditing

standards. (A more detailed description of our scope and methodology

appears in app. I.)

Results in Brief In response to the passage of ASFA, states enacted their own enabling

legislation and developed administrative policies and procedures. States

also are making changes in social work practices to implement the two

foster care provisions. By July 1999, all states had laws that mirrored the

federal legislation or were more stringent than federal law; some states

had legislation already in place before passage of ASFA. States also

promulgated policies and regulations, initiated staff training, and took

other administrative actions to implement changes to state law. Our work

in three states indicates that some changes in social work practice

occurred both before and after ASFA was enacted, such as concurrently

rather than sequentially pursuing alternate permanency options for the

child such as adoption.

Preliminary data suggest that some states have made progress in making

more timely permanency decisions about children who cannot safely

return home within a reasonable time; other states have lagged behind. In

implementing the provision on not requiring efforts to prevent a child’s

removal from home or to return a foster child home, most states reported

that the courts are considering whether efforts to preserve or reunite the

family should be required when there are egregious circumstances.

However, child welfare agency officials anticipate that few children will be

affected by this provision because such cases are rare. Regarding the

provision on terminating parental rights, 27 states were on schedule to

meet the mandated timetable for reexamining cases and determining

whether adoption would be appropriate for children already in foster care

Page 2 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

when the law was enacted. In the 12 states that had data available on

actions taken for individual children, the states had begun proceedings to

terminate parental rights for over a third of the cases reexamined. These

states also had exempted about 60 percent of the reexamined cases,

having determined that adoption would be inappropriate. For almost all

the exempted cases, there was a compelling reason why terminating

parental rights was not in the child’s best interests, or the child was under

the care of a relative.

Since the passage of ASFA, HHS has continued or begun a number of actions

to assist states and monitor implementation of these two foster care

provisions. HHS’ actions to help states include

• offering technical assistance on the states’ statutory changes needed to

implement the act;

• continuing to make available HHS’ National Resource Centers to help state

and local child welfare agencies change social work practices; and

• publishing instructions to guide states’ administrative procedures.

To monitor state implementation of ASFA, HHS reviewed states’ enabling

legislation to ensure conformance with the federal law. To assess state

progress in implementing the provision on terminating parental rights, HHS

collected information from states such as the status of implementing the

provision for children who were already in care when ASFA was enacted.

HHS plans to use a new, results-oriented monitoring approach consisting of

child and family services program reviews that focus on child outcomes

related to safety, permanency, and well-being. Moreover, HHS intends to

use this new approach to determine state compliance with the ASFA

amendments and cover key elements of the provision on terminating

parental rights. In that regard, HHS expects that its efforts to address issues

specific to ASFA will provide compliance and program information to

agency officials and policymakers.

Background The foster care system has grown dramatically in the past 2 decades, with

the number of children in foster care nearly doubling since the mid-1980s,

to an estimated 520,000 children in 1998. More children entered foster care

each year than exited. Children also spent a longer time in temporary

out-of-home care; increasingly more children stayed in foster care for 5

years or longer. Concerns about children’s long stays in foster care

without being placed in a permanent home culminated in the passage of

the Adoption and Safe Families Act of 1997, which emphasized the child

Page 3 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

welfare system’s goals of safety, permanency, and child and family

well-being. Policymakers believed that child welfare practitioners had

been misinterpreting the relationship between child safety and the

requirement that states must make “reasonable efforts” to prevent removal

from home or to return a child home.5

 Long stays in foster care were often

the result of well-intentioned practices to preserve the family through

prolonged and extensive services, but without adequate consideration of

the child’s need for a permanent home. In these situations, adoption or an

alternate permanent home was rarely considered until the child had been

in out-of-home care for 18 months.6

Two key provisions, which were introduced by ASFA, particularly affect

those children who are unable to safely return home within a reasonable

time. First, states need not pursue efforts to prevent removal from home

or to return a child home if a parent has already lost parental rights to that

child’s sibling; has committed specific types of felonies, including murder

or voluntary manslaughter of the child’s sibling; or has subjected the child

to aggravated circumstances such as abandonment, torture, chronic abuse,

and sexual abuse. In these egregious situations, the courts may determine

that services to preserve or reunite the family—that is, the “reasonable

efforts” requirement established in Public Law 96-272—are not required.

Once the court makes such a determination, the state must begin within 30

days to find the child an alternate permanent home.

Second, states must begin the process of terminating parental rights by

filing a petition with the courts if an infant has been abandoned; the parent

committed any of the felonies included in the first provision; or the child

has been in foster care 15 of the last 22 months. States may exempt

children from this requirement if the child is placed with a relative; the

state has not provided services needed to make the home safe for the

child’s return; or there is a compelling reason why filing a petition to

terminate parental rights is not in the child’s best interests. As states begin

the process of terminating parental rights, they must also find the child a

qualified adoptive family. Federal law requires states to apply this

provision at 6-month intervals to one-third of all children who were in

5

Established under the Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272), the term

“reasonable efforts” is not defined in law or in federal regulations and has been interpreted in a wide

variety of ways by states and the courts. According to HHS, services offered or provided to the family,

such as family counseling, respite care, and substance abuse treatment, have often been considered to

constitute reasonable efforts to prevent a child from being removed from home or to return a child

home.

6

HHS, Adoption 2002: A Response to the Presidential Executive Memorandum on Adoption Issued on

December 14, 1996 (Washington, D.C.: HHS, Feb. 1997). Prior to ASFA, courts decided on the child’s

permanency goal at the 18-month dispositional hearing. ASFA requires this hearing to occur within 12

months after the child enters foster care and calls it a “permanency” hearing.

Page 4 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

foster care when ASFA was enacted until the state has completed its entire

caseload. States must complete this process no later than 18 months after

the state’s first legislative session following passage of ASFA.

7

State and local agencies have primary responsibility for the welfare of

children in their state. Child welfare agencies respond to reports of abuse

and neglect and may identify and provide social services needed by the

family to keep it together. If the child’s removal is warranted, however, the

child is placed in foster care, which may include placement with a relative.

Child welfare agencies then provide services to improve circumstances in

the child’s home and try to reunite the family. If a child cannot safely

return home, the child welfare agency attempts to find an alternate

permanent home, such as with relatives, an adoptive family, or a legal

guardian. State courts review the child welfare agency’s actions for

individual children and their families. Court-appointed special advocates,

guardians ad litem,

8

 or both, represent the child in court. Legal

representatives for the parents and the child welfare agency also may

participate in court hearings. At these hearings, a judge decides whether a

child should be placed in foster care and, if so, for how long, and where

the child will reside permanently. HHS administers the federal child welfare

programs that help fund states’ programs and services. In this capacity,

HHS provides technical assistance to states, funds National Resource

Centers,9

 and monitors states’ compliance with federal statutes and

regulations.

7

ASFA refers to the timetable for states to apply the provision on terminating parental rights as the

“Transition Rules” (42 U.S.C. 625 note). To illustrate the timetable for children who were already in

foster care when ASFA was enacted, suppose a state’s first legislative session that began after ASFA

was enacted ended on June 30, 1998. The state must then apply the provision to the first one-third of

its caseload by Jan. 1, 1999, the second one-third by July 1, 1999, and the entire caseload by Jan. 1,

2000.

8

Court-appointed special advocates are usually volunteers who are trained to assist the court and

oversee a child’s case. A guardian ad litem is an attorney or trained volunteer who represents the child

in court, investigates the case, and monitors case progress.

9

HHS contracts with various organizations around the country to function as National Resource

Centers specializing in different areas of child welfare, such as permanency planning, organizational

improvement, and youth development. The purpose of the resource centers is to provide training,

technical assistance, and consultation to state and local child welfare agencies to help strengthen their

capacity to integrate policy and practice and improve service delivery and child outcomes.

Page 5 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

States Have Made

Statutory and

Administrative

Changes; Social Work

Practices Are

Evolving

States have made legal and administrative changes to implement ASFA,

including the two amendments on not requiring efforts to prevent a child’s

removal from home or to return a child home and on terminating parental

rights. In addition, state child welfare agencies are moving to make

changes in social work practices to implement these provisions. By

July 1999, all states had laws to implement these two provisions. Some

states already had statutes covering these issues, and other states enacted

laws in response to ASFA. States also have promulgated policies and

regulations, initiated staff training, and taken other administrative actions

to implement changes to state law. Changes to social work practices were,

in some locations, already under way before ASFA. Depending on their

existing situations, child welfare agencies are beginning to make new or

additional changes in practices to reflect new state laws and policies.

State Legislative

Responses to Key

Provisions Differed

States responded differently to the need for state legislation to implement

the two key provisions introduced by ASFA. By July 1999, all states that did

not already have laws consistent with ASFA had enacted such legislation.

Nearly all states also passed new legislation related to both provisions.

According to a National Conference of State Legislatures publication,10

most states’ legislation essentially mirrored the language in federal law.

However, some states exercised the discretion allowed under federal law

and enacted laws that emphasized the safety of foster children to a greater

degree than under ASFA. For example, several states shortened the time

frame for initiating the process of terminating parental rights for foster

children from the 15-month limit established by ASFA to 12 months. Still

other states expanded the termination of parental rights requirement for

abandoned infants to include all abandoned children. In contrast,

relatively few states enacted additional circumstances beyond those in the

federal law for when efforts to prevent removal of a child from home or to

return a child home are not required.

The National Conference of State Legislatures also reported that several

states required little or no legislative changes because existing state

statutes already were consistent with one or both of the key provisions

introduced by ASFA. For example, California had state laws in place

stipulating the grounds—similar to those introduced by ASFA—under

which services to reunite a family need not be provided; the state opted to

add another reason related to child abductions to its legislation.11 New

10Steve Christian, “1998 State Legislative Responses to the Adoption and Safe Families Act of 1997,”

State Legislative Report, 24(5) (Mar. 1999).

11California Welfare and Institutions Code 361.5(b) (1999).

Page 6 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

Jersey already had in statute the termination of parental rights

requirement for abandoned children and most of the felonies listed in the

federal law; new state legislation added the 15-month time limit and the

remaining felonies. No state attempted to define in statute the compelling

reasons why initiating proceedings to terminate parental rights would not

be in a child’s best interests. However, a few states’ legislation provided

examples of compelling reasons, such as when the children are juvenile

delinquents, are older and do not want to be adopted, or have a

permanency goal other than adoption.

Administrative Actions

Taken to Implement State

ASFA Legislation

According to two 1998 nationwide surveys,12 state child welfare agencies

were taking a variety of administrative actions to implement the federal

legislation within the first year after ASFA was enacted. Most states had put

new policies into effect or were in the process of promulgating regulations

and policies. Many states had begun to train staff both within the child

welfare agency—including managers, supervisors, and child welfare

workers—and outside the agency, such as attorneys, judges, and

guardians ad litem, on the statutory and policy changes. Moreover, some

states were coordinating activities with the courts to reduce delays and

streamline court procedures. Our nationwide survey and work in three

states found that states are also exploring changes to their management

information systems to track children’s time in foster care and in relation

to the time limits established by ASFA. At the time of our review, most

states could not readily provide data on actions taken for children affected

by either of the two key provisions.13 However, many states reported that

they were in the process of modifying their systems to track such data.

In the three states we visited, additional administrative activities were

under way, but not always in response to the legislative changes brought

about by ASFA. Florida’s child welfare agency planned to add 125 new

attorneys, paralegal staff, and administrative staff statewide to meet

anticipated workload increases resulting from the provision on

terminating parental rights. In Missouri, the child welfare agency

submitted a budget request for 160 additional workers in the three largest

metropolitan areas. The impetus, however, was an ongoing effort to

achieve a reduction in workers’ caseloads in accordance with professional

standards. Nevertheless, state officials expect the additional resources will

12Both the American Public Human Services Association and the Child Welfare League of America

surveyed state child welfare agencies during the summer of 1998.

13Neither the act nor HHS required states to collect or report specific data related to either of the two

provisions introduced by ASFA.

Page 7 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

help the local offices to comply with the ASFA changes. Moreover,

Missouri’s child welfare agency did increase efforts to recruit as well as

retain adoptive families in response to the requirement to concurrently

begin efforts to find an adoptive family for a child while initiating the

process to terminate parental rights. In contrast, California had already

begun to focus attention on adoptive family recruitment and retention

strategies in 1996 as a result of the Governor’s Adoptions Initiative to

increase the number of adoptions of foster children statewide.

Changes in Social Work

Practices Are Ongoing

In two of the states we visited, some state-initiated changes to their child

welfare systems predated ASFA and were consistent with the overall intent

of the federal legislation. As a result, state and local child welfare agencies

began to change social work practices before ASFA’s enactment in these

two states. For example, under the Governor’s Adoptions Initiative in

California, the state instituted a new process and procedures for child

welfare workers to work toward reuniting the family while concurrently

rather than sequentially pursuing alternate permanency options for the

child such as adoption.14 This new social work practice model was viewed

as one way to more quickly find a permanent home for foster children. In

1994, Missouri initiated a new process for its child welfare workers to

expedite permanency decisions. This process launched a team approach

to case management and decision-making whereby all the key

decisionmakers—including the child welfare worker and supervisor,

parents, foster care provider, guardian ad litem, and juvenile officer of the

court—make up a family support team. This team completes the

assessment of service needs and develops, monitors, reviews, and revises

the case plan on a defined, periodic basis.

Despite earlier changes, child welfare workers will need to incorporate

into day-to-day practice specific requirements established by ASFA and

document these actions within established time frames. According to child

welfare officials in the three states we visited, these procedural changes

are in process. For example, Missouri completed expansion of its new

child welfare process statewide in July 1999 and, in response to ASFA,

modified the process to include concurrent planning to help meet

mandated timelines. In practice, child welfare workers now must inform

parents at each family support team meeting that they risk losing parental

14ASFA allows states to undertake efforts to place a child for adoption or with a legal guardian while

concurrently pursuing efforts to preserve or reunite the family. Known as “concurrent planning,” the

use of this social work practice model appears to be expanding nationwide. According to the American

Public Human Services Association’s 1998 survey, at least 32 states were using concurrent planning as

one way to move children more quickly into permanent homes.

Page 8 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

rights if their child cannot safely return home after 15 months. In the

county we visited in Florida, we found no changes in social work practice

related to the provision on terminating parental rights; however, the child

welfare agency’s attorneys have begun to more proactively identify cases

for which efforts to prevent removal from home or to return a child home

may not be warranted. State and local agency officials in the three states

also identified a need to modify or reinforce other social work practices to

implement these two key provisions, such as focusing earlier on finding a

child a permanent home and establishing effective working relationships

with agency attorneys.

Early Observations

Point to More Timely

Permanency

Decisions Since ASFA

Some states have made more timely permanency decisions since ASFA by

deciding to forgo services to keep families together in egregious situations

and by meeting mandated time frames to begin the process of terminating

parental rights for some children who were already in foster care when

ASFA was enacted. Other states lagged behind, were unable to report on

actions taken, or both. In implementing the provision on not requiring

efforts to prevent a child’s removal from home or to return a child home,

most states reported that the courts are considering this provision for the

few children likely to be affected. Regarding the second provision on

terminating parental rights, over a third of the children’s cases reviewed in

the 12 states that provided data have had proceedings initiated to

terminate parental rights. As permitted under the law, these states also

found that adoption was not appropriate for a substantial portion of the

reviewed cases. In these cases, the reasons cited for exempting a child

from this requirement were that the child had a compelling reason why

moving to terminate parental rights was not in his or her best interests or

the child was under the care of a relative.

Most States Consider the

Provision to Not Require

Efforts to Prevent Removal

From Home or to Return a

Child Home, but Few

Children Likely Affected

Most states reported that, as the courts reviewed foster care cases, they

considered the provision for when efforts to prevent removal from home

or to return a child home are not required. However, only two states were

able to report the number of children—zero and four children,

respectively—who have been exempted from efforts to prevent removal

from home or to return them home. Moreover, agency officials in the three

states we visited believed that only a small percentage—estimated at 3 to

10 percent—of the caseload had the egregious characteristics that would

warrant such a determination. In Contra Costa County, California, for

example, state statute has had similar provisions in place since the 1980s.

According to county officials, the most common circumstances for not

Page 9 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

requiring reunification services include children who have siblings that

had not reunited with their family or that had parental rights terminated,

and children with chronically addicted parents who have made no effort to

address their substance abuse and comply with their treatment plan.

States’ Progress Varied on

the Requirement to

Reexamine Foster Care

Caseload

Most states had begun the process of reexamining their caseload of foster

children who were already in care when ASFA was enacted. For the

children whose cases had been reviewed, the state was to either file a

petition to begin the process of terminating parental rights or to document

an exemption if adoption was inappropriate. We determined that the first

states were required to complete these actions for their entire caseload by

September 1999 and the last few states by December 2000. As of July 1999,

states were at various stages of meeting their respective timetables as set

by ASFA. Of the 47 states responding to our survey, we determined that 27

states were on or ahead of schedule, 14 states were not, 4 states’ status

was unknown because they had not tracked their progress, and 2 states

did not provide sufficient information to determine progress.

States are required to complete the necessary actions, in 6-month

intervals, for at least one-third of their caseload of foster children already

in care when ASFA was enacted. When we compared the required

completion dates for each phase—based on the date that the states’ first

legislative session following passage of ASFA ended—and the phases states

reported as completed, we found that states generally made more progress

in completing the first one-third phase than in competing the second

phase, as illustrated in figure 1. Of the 47 states responding to our survey

as of July 1999, 22 of the 36 states that needed to complete the first

one-third phase reported that they had completed this much of their

caseload. In addition, 13 of the 30 states that needed to complete the

second one-third phase had met that requirement. No state was required to

have finished all three phases at the time of our survey, but three states

reported that they had completed the required actions for their entire

caseload.

Page 10 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

Figure 1: States’ Progress in

Completing the Three Phases of Foster

Care Caseload Review, as of July 1999

Number of States

0

5

10

15

20

25

30

35

40

First One-Third Second

One-Third

Proportion of Existing Caseload

Should Have Been Completed

Reported as Complete

Third One-Third

36

22

30

13

0

3

Note: Of the 47 responding states, 11 states did not have to complete any of the one-third phases

as of July 1999 because their legislatures adjourned in late 1998 or 1999. Nevertheless, 4 of

these 11 states reported completing at least the first phase.

Source: GAO survey, based on responses from 47 states.

Child welfare agencies reexamined the cases of children who were already

in care when ASFA was enacted and began the process of terminating

parental rights for some children. In the 12 states that reported data,15 over

a third of the cases reviewed—or about 19,100 children—resulted in the

state’s filing a petition to terminate parental rights. These states also said

they exempted about 60 percent of the cases reviewed—or 32,300

children—after determining that adoption would be inappropriate. For the

foster children reviewed, the percentages of children who had a petition

filed or were being exempted varied across the 12 states, as shown in

figure 2.

15At the time of our survey, most states could not readily provide data on the actions taken for

individual children. Neither ASFA nor HHS required states to collect or report the data we requested,

but many states reported that they were in the process of modifying their systems to provide such data

in the future.

Page 11 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

Figure 2: Results of Reviews for Foster Children in 12 States, as of March 1999

Percentage of Foster Children

0

20

40

60

80

100

Arizona

Delaware

Florida

Illinois

Iowa

Maine

Maryland

Mississippi

Missouri

South Carolina

Utah

Vermont

39

61

69

31

51 49

72

28

36

64

72

28

75

25

62

38 38

62

42

58

70

30

94

6

Exempted From the Requirement to Begin Terminating Parental Rights

Filed a Petition to Terminate Parental Rights

Source: GAO survey.

Reasons for Exempting

Children

In the 12 states that had data available, about 70 percent of the cases of

exempted children had a compelling reason why terminating parental

rights was not in the child’s best interests. According to child welfare

officials in the three states we visited and available data in Broward

County, Florida, the most common compelling reasons for exempting

children have been and will likely continue to be that

• the parents are in compliance with or nearing completion of the services

outlined in the case plan and the family is expected to reunite imminently

or within 30 days;

• the child is over a specified age (such as 12 years or older), does not want

to be adopted, and has another permanency option; and

Page 12 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

• the child suffers from severe emotional or behavioral problems or a

developmental disability, and needs ongoing treatment in a residential

setting or needs to be stabilized.

For about 30 percent of the exempted children in the 12 states that had

data available, the states also reported exempting children who were

under the care of a relative. According to child welfare officials in two of

the counties we visited, their agencies chose to exempt all foster children

who were in the care of relatives, after reviewing each case individually.

Moreover, child welfare officials in the two respective states expected this

generally to be the case throughout the state. Child welfare officials told

us that a child in the care of relatives could still exit the foster care system

through other permanency options. Several states have initiated or are

experimenting with placing children permanently with their caregivers

when they are relatives by using adoption and guardianship arrangements.

Under the Governor’s Adoptions Initiative in California, for example, birth

parents can voluntarily relinquish their parental rights—which can be

accomplished more quickly than involuntary termination of parental

rights—and maintain ties to their children after adoption by relatives. In

Illinois, the state is experimenting with offering relatives who are

caregivers a subsidy when they either adopt the child or become the

child’s legal guardian.

The law provides a third type of exemption when the state has not

provided the necessary services to make the home safe for the child’s

return. According to child welfare officials in the three states we visited,

their agencies have so far exempted few, if any, children—and are unlikely

to exempt children—for this reason. No children in Contra Costa County,

California, no children in Broward County, Florida, and two children in

Jackson County, Missouri, have been exempted for this reason. Moreover,

child welfare officials in the three states did not expect to exempt children

because services had not been provided. In two of the states, officials

indicated that state law requires them to provide reunification services

unless the court orders them not to. Nevertheless, agencies have not

explicitly ruled out using this exemption.

Page 13 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

HHS Has Assisted

State Implementation

of ASFA; Future

Monitoring Efforts

Are Under

Development

HHS has taken action on a number of fronts to assist states and oversee the

implementation of ASFA. HHS’ actions to help states include providing

technical assistance to states on the statutory changes; contracting with

entities to function as National Resource Centers to help state and local

child welfare agencies change social work practice; and issuing

instructions to guide state administration of new requirements. HHS

monitoring activities to date include assessing and certifying states’

enabling legislation and collecting information about states’

implementation of the provision on terminating parental rights. In the

future, HHS plans to use a new, results-oriented monitoring approach to

establish states’ compliance with the amendments made by ASFA.

HHS Initiated Actions to

Help States Implement

ASFA

HHS regional staff and National Resource Centers provided technical

assistance to states as they formulated new state statutes, determined

their implementation schedule, and adapted social work practices. For

example, all HHS regional offices held conferences on ASFA that included

training on the act’s requirements and timelines and information sharing

among states. The National Resource Center for Permanency Planning at

Hunter College in New York City responded to requests for assistance in

calculating when state actions must be completed to implement the ASFA

amendment on terminating parental rights and in applying concurrent

planning to social work practice. The National Child Welfare Resource

Center for Organizational Improvement at the University of Southern

Maine also provided training and technical assistance to states on

designing a concurrent planning system as well as interagency

collaboration between the agency and the courts. Moreover, HHS

contracted with the National Conference of State Legislatures to analyze

states’ legislative responses to ASFA and to assist states as they implement

their new laws. To further assist states as they continue to implement the

act, HHS disseminated in September 1999 guidelines to help states examine

their existing statutes and current child welfare policy and practice. In

October 1999, HHS funded a new National Resource Center on Child

Welfare Services and Information Technology. This new center is to assist

state and local child welfare agencies as well as family and juvenile courts

in developing and improving information systems to better manage their

programs, improve decision-making, and meet the goals of ASFA.

To guide states’ implementation of the new law, HHS issued instructions in

August 1998 on the timelines for states to comply with the provision on

terminating parental rights. In particular, the instructions set out for states

the methodology for determining the applicable effective dates, including

Page 14 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

the requirement for states to phase-in over an 18-month period actions to

terminate parental rights for those foster children who were already in

care when ASFA was enacted.16 On September 18, 1998, HHS published

proposed regulations that cover, among other issues, the two provisions

established by ASFA on not requiring efforts to prevent removal from home

or to return a child home and on terminating parental rights.17 At the time

of our review, HHS planned to publish the final regulations by late

December 1999.

HHS also provided guidance to and identified technical resources for states

about continuing their efforts to improve court processes related to

handling foster care and adoption proceedings. In addition to the two

provisions related to making timely permanency decisions for foster

children who are unable to safety return home, section 305(a) of ASFA

reauthorized the State Court Improvement Program.18 Under this program,

state courts collaborate with the other organizations and individuals

involved in the lives of foster children—such as the state child welfare

agency, attorneys, and guardians ad litem—to assess court processes and

capacities and to implement reforms that address the courts’ specific

needs. In February 1999, HHS instructed state courts to comply with all the

requirements established by ASFA as they implement system reforms.

HHS Will Use New,

Results-Oriented

Monitoring Approach

HHS has monitored states’ efforts to make statutory changes that allow

them to implement ASFA and has collected information about states’

progress in implementing the provision on terminating parental rights. HHS

tracked the status of states’ enabling legislation to ensure that new state

statutes were timely and conformed with all ASFA amendments. By October

1999, according to HHS officials, regional staff had certified enabling

legislation for 43 states as conforming to the requirements established by

ASFA. The remaining states were either under review or not in compliance

with federal law but taking corrective action. To assess state

implementation of the new provision on terminating parental rights, HHS

directed states to provide descriptive information as part of their planning

requirements for child welfare services. By June 1999, states had

submitted information on the status of applying the provision to

appropriate foster children. States also were to describe the capacity of

16The dates for applying the provision on terminating parental rights vary for each state. These dates

depend on when the child entered foster care, how long the child has been in care, and when the state

legislature was in session.

1763 Fed. Reg. 50,058.

18The State Court Improvement Program was initially established under section 13712 of the Omnibus

Budget Reconciliation Act of 1993 (P.L. 103-66).

Page 15 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

the state child welfare agency and judicial system to implement and meet

the provision’s requirement for children who have been in care for 15 of

the last 22 months. To minimize the reporting burden on states at this early

juncture, HHS did not require states to provide specific data and had no

plans to aggregate information across states. Instead, according to HHS

officials, having states provide descriptive information would enable

regional staff to broadly assess their respective states’ progress and

identify areas that may warrant technical assistance or immediate

attention.

HHS plans to use a new, results-oriented approach to monitor states’ child

welfare programs, including compliance with ASFA amendments.19 Under

this approach, new child and family services reviews will focus on the

results that these programs achieve. In the past, review procedures

focused almost entirely on the accuracy and completeness of case files to

determine whether required legal processes and protections were being

carried out. The new monitoring approach will evaluate state programs in

two areas—child and family outcomes related to child safety, permanency,

and child and family well-being; and the characteristics of the state agency

that directly affect its capacity to deliver services leading to improved

outcomes. In addition, the program reviews will determine whether a

state’s foster care system complies with applicable federal laws, including

the ASFA amendments.

While HHS plans to implement the new monitoring system in the near

future, it has not conducted compliance reviews since 1994, except for

testing the new program reviews in a limited number of states. Moreover,

HHS has not monitored states’ progress in meeting mandated timetables for

applying the provision on terminating parental rights for children who

were already in foster care when ASFA was enacted. According to HHS

officials, more specific criteria and data collection requirements to assess

states’ compliance with the amendments will be incorporated into

protocols for conducting the program reviews. The new monitoring

system should go into effect 9 months after regulations are final, which is

expected to occur in late December 1999. At that time, the process for

addressing issues of noncompliance would entail giving states the

opportunity to take corrective action within agreed-upon time frames. By

the time the new monitoring system goes into effect, however, nearly all

19Section 203 of the Social Security Act Amendments of 1994 (P.L. 103-432) established requirements

for HHS to develop a new child welfare review system to evaluate state programs and provide states

with technical assistance and opportunities to take corrective action before financial penalties are

assessed. Under the old review system, HHS relied on financial reviews and penalties as the exclusive

form of enforcement.

Page 16 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

states will likely have completed implementing the provision on

terminating parental rights for foster children who were already in care

when ASFA was enacted. For foster children who entered care after the

passage of ASFA, HHS intends to use this new monitoring approach to cover

key elements of this ASFA amendment. HHS’ efforts to address issues

specific to ASFA are expected to provide both compliance and program

information to agency officials and policymakers.

Comments From HHS

and State Agencies

We gave a draft of this report for comment to HHS and state child welfare

agencies in the three states we visited. We received comments from HHS,

California, Florida, and Missouri. HHS commented that our report confirms

the work of the administration, HHS, and the states to implement the

requirements established by ASFA. HHS also provided additional information

on its efforts to assist states as they implement various aspects of ASFA. In

particular, HHS said that the report should include a discussion of recent

HHS-distributed guidelines as a technical assistance tool for state child

welfare agencies and courts, national child welfare organizations, and

child advocacy groups, which we have done. HHS also said that the report

presumes that adoption is the only permanency option. While we believe

that the provision on terminating parental rights emphasizes adoption, we

have added information about other permanency options, where

appropriate. HHS also provided technical comments, which we

incorporated where appropriate. Appendix III contains HHS’ comments.

In their comments, all three states agreed with our findings.

We are sending copies of this report to the Honorable Donna E. Shalala,

Secretary of Health and Human Services; state child welfare directors; and

other interested parties. We will make copies available to others on

request.

Page 17 GAO/HEHS-00-1 Adoption and Safe Families Act
B-282539 

If you or your staff have any questions about this report, please call me at

(202) 512-7215. Other GAO contacts and staff acknowledgments are listed in

appendix IV.

Sincerely yours,

Cynthia M. Fagnoni

Director, Education, Workforce, and

 Income Security Issues

Page 18 GAO/HEHS-00-1 Adoption and Safe Families Act
Page 19 GAO/HEHS-00-1 Adoption and Safe Families Act
Contents

Letter 1

Appendix I 

Scope and

Methodology

22

Appendix II 

Key Provisions of the

Social Security Act as

Amended by ASFA

25

Provision on Not Requiring Efforts to Prevent Removal From or

to Return a Child Home

25

Provision on Terminating Parental Rights 26

Appendix III 

Comments From the

Department of Health

and Human Services

28

Appendix IV 

GAO Contacts and

Staff

Acknowledgments

32

Figures Figure 1: States’ Progress in Completing the Three Phases of

Foster Care Caseload Review, as of July 1999

11

Figure 2: Results of Reviews for Foster Children in 12 States, as

of March 1999

12

Abbreviations

ASFA Adoption and Safe Families Act of 1997

HHS Department of Health and Human Services

Page 20 GAO/HEHS-00-1 Adoption and Safe Families Act
Page 21 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix I 

Scope and Methodology

To determine what legal, administrative, and social work practice changes

states have made in response to ASFA, we reviewed nationwide information

collected by national child welfare organizations and visited three states.

In particular, we reviewed data and analyses compiled by the National

Conference of State Legislatures on states’ legislative responses to the two

key provisions established by ASFA on not requiring efforts to prevent

removal from home or to return a child home and on terminating parental

rights. To identify administrative changes, we reviewed the results of two

nationwide surveys conducted by the American Public Human Services

Administration and the Child Welfare League of America, respectively, on

states’ early efforts to implement ASFA. We did not verify the data received

from these three organizations. To gain insight into states’ efforts to put

statutory and administrative changes into practice, in June 1999 we

attended the First National Roundtable on Implementing ASFA in Portland,

Maine. In addition, we reviewed relevant literature and interviewed child

welfare experts from the National Resource Centers and other national

nonprofit organizations about implementation issues related to ASFA.

To obtain information about changes in social work practices as well as

explore legal and procedural changes in greater detail, we visited the state

child welfare agency and one county-level child welfare agency in each of

three states—California, Florida, and Missouri. We selected these states

because of their large populations of foster children in the federal title

IV-E foster care program, their geographic location in different regions of

the country, and their mix of state- and county-administered child welfare

systems.20 Moreover, because their legislatures met soon after the passage

of ASFA, we expected these states to have had an opportunity to begin

applying the provision on terminating parental rights for their foster

children who were already in care when the law was enacted. In each

state, we also selected one county that comprised a large share of the

state’s foster care population. In a county-administered state like

California, counties have considerable autonomy to establish their own

policies and procedures within broad state guidelines. In

state-administered states such as Florida and Missouri, child welfare

workers located in local county or district offices put state policies and

procedures into day-to-day practice. We visited Contra Costa County in

California, Broward County in Florida, and Jackson County in Missouri.

To determine the status of states’ early implementation of the two key

provisions, we surveyed all 50 states and the District of Columbia. The

20California has a state-supervised, county-administered child welfare system; Florida has a

state-administered system, but its local districts have considerable autonomy; and Missouri has a

state-administered system.

Page 22 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix I 

Scope and Methodology

survey focused on the number of affected children—particularly those

who were already in foster care when the law was enacted—and related

actions. We discussed development of the survey instrument with program

managers and data analysts from several state child welfare agencies as

well as senior officials at the National Resource Center for Permanency

Planning at Hunter College in New York City. We also pretested the survey

instrument in California and Missouri. In early June 1999, we sent a copy

of the survey to the child welfare director in each of the 50 states and the

District of Columbia. We received responses from 46 state agencies and

the District of Columbia. We did not verify the information obtained

through the survey, except that we contacted state respondents to clarify

responses, as needed. In addition, we obtained more detailed and

qualitative information from our state and county visits.

To determine states’ progress in meeting mandated time frames for

applying the provision on terminating parental rights for the caseload of

foster children who were already in care when ASFA was enacted, we relied

primarily on two data sources. First, from the National Conference of

State Legislatures and state contacts, we identified the start date of each

state’s first legislative session that occurred after passage of the act. On

the basis of these dates, we calculated the dates that states were required

to complete each of the three mandated phases. Second, our survey on

states’ early implementation of the two provisions asked states to identify

which phases they had completed and the respective completion dates.

We visited the three states—California, Florida, and Missouri—to obtain

firsthand information about their implementation of the two key

provisions established by ASFA. In each state, we interviewed state and

county-level officials from the child welfare agency as well as the agency

or office responsible for filing petitions to terminate parental rights.

Depending on the state or county, representatives from these entities were

within the child welfare agency, attorney general’s office, or were juvenile

officers of the court. We obtained information and reviewed relevant

documents about the agencies’ approach to implementing the two

provisions; ongoing or existing initiatives to reform their child welfare

systems; adoption recruitment and retention efforts; administrative

changes related to capacity, management, and oversight activities; and

early results. At the state level, we primarily focused on legal and

administrative changes. At the local level, we also obtained information

about local implementation of state-level changes and their views on the

social work practice changes that had occurred or were needed.

Page 23 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix I 

Scope and Methodology

To identify actions HHS has taken to assist states and monitor

implementation of the two provisions, we interviewed cognizant officials

at HHS headquarters and at several regional offices. We also reviewed

relevant reports, guidance, and proposed regulations.

Page 24 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix II 

Key Provisions of the Social Security Act as

Amended by ASFA

This appendix provides excerpts from the United States Code on the two

ASFA provisions addressed in this report (amended language is in bold

lettering).

Provision on Not

Requiring Efforts to

Prevent Removal

From or to Return a

Child Home

Sec. 471 (42 U.S.C. 671). State plan for foster care and adoption assistance.

(a) Requisite features of State plan. In order for a State to be eligible for

[federal payments for foster care and adoption assistance], it shall have a

plan approved by the Secretary which—. . .

(15) provides that—

(A) in determining reasonable efforts to be made with respect to a child, as

described in this paragraph, and in making such reasonable efforts, the

child’s health and safety shall be the paramount concern;

(B) except as provided in subparagraph (D), reasonable efforts shall be

made to preserve and reunify families—

(i) prior to the placement of a child in foster care, to prevent or eliminate

the need for removing the child from the child’s home; and

(ii) to make it possible for a child to safely return to the child’s home;

(C) if continuation of reasonable efforts of the type described in

subparagraph (B) is determined to be inconsistent with the permanency

plan for the child, reasonable efforts shall be made to place the child in a

timely manner in accordance with the permanency plan, and to complete

whatever steps are necessary to finalize the permanent placement of the

child;

(D) reasonable efforts of the type described in subparagraph (B)

shall not be required to be made with respect to a parent of a child

if a court of competent jurisdiction has determined that—

(i) the parent has subjected the child to aggravated circumstances

(as defined in State law, which definition may include but need not

be limited to abandonment, torture, chronic abuse, and sexual

abuse);

(ii) the parent has—

Page 25 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix II 

Key Provisions of the Social Security Act as

Amended by ASFA

(I) committed murder (which would have been an offense under

section 1111(a) of title 18, United States Code, if the offense had

occurred in the special maritime or territorial jurisdiction of the

United States) of another child of the parent;

(II) committed voluntary manslaughter (which would have been an

offense under section 1112(a) of title 18, United States Code, if

the offense had occurred in the special maritime or territorial

jurisdiction of the United States) of another child of the parent;

(III) aided or abetted, attempted, conspired, or solicited to commit

such a murder or such a voluntary manslaughter; or

(IV) committed a felony assault that results in serious bodily

injury to the child or another child of the parent; or

(iii) the parental rights of the parent to a sibling have been

terminated involuntarily;

(E) if reasonable efforts of the type described in subparagraph (B) are not

made with respect to a child as a result of a determination made by a court

of competent jurisdiction in accordance with subparagraph (D)—

(i) a permanency hearing (as described in section 475(5)(C)) shall be held

for the child within 30 days after the determination; and

(ii) reasonable efforts shall be made to place the child in a timely manner

in accordance with the permanency plan, and to complete whatever steps

are necessary to finalize the permanent placement of the child; and

(F) reasonable efforts to place a child for adoption or with a legal guardian

may be made concurrently with reasonable efforts of the type described in

subparagraph (B);

(16) provides for . . . a case review system which meets the requirements

in [the definitions section] with respect to each such child; . . . .

Provision on

Terminating Parental

Rights

Sec. 475 (42 U.S.C. 675). Definitions.

As used in [the program providing federal payments for foster care and

adoption assistance] or [child welfare services]; . . .

Page 26 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix II 

Key Provisions of the Social Security Act as

Amended by ASFA

(5) The term “case review system” means a procedure for assuring

that—. . .

(E) in the case of a child who has been in foster care under the

responsibility of the State for 15 of the most recent 22 months, or,

if a court of competent jurisdiction has determined a child to be an

abandoned infant (as defined under State law) or has made a

determination that the parent has committed murder of another

child of the parent, committed voluntary manslaughter of another

child of the parent, aided or abetted, attempted, conspired, or

solicited to commit such a murder or such a voluntary

manslaughter, or committed a felony assault that has resulted in

serious bodily injury to the child or to another child of the parent,

the State shall file a petition to terminate the parental rights of

the child’s parents (or, if such a petition has been filed by another

party, seek to be joined as a party to the petition), and,

concurrently, to identify, recruit, process, and approve a qualified

family for an adoption, unless—

(i) at the option of the State, the child is being cared for by a

relative;

(ii) a State agency has documented in the case plan (which shall be

available for court review) a compelling reason for determining

that filing such a petition would not be in the best interests of the

child; or

(iii) the State has not provided to the family of the child,

consistent with the time period in the State case plan, such

services as the State deems necessary for the safe return of the

child to the child’s home, if reasonable efforts of the type

described in section 471(a)(15)(B)(ii) are required to be made

with respect to the child; . . .

Page 27 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix III 

Comments From the Department of Health

and Human Services

Page 28 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix III 

Comments From the Department of Health

and Human Services

Page 29 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix III 

Comments From the Department of Health

and Human Services

Page 30 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix III 

Comments From the Department of Health

and Human Services

Page 31 GAO/HEHS-00-1 Adoption and Safe Families Act
Appendix IV 

GAO Contacts and Staff Acknowledgments

GAO Contacts David D. Bellis, (202) 512-7278

Karen E. Lyons, (916) 486-6442

Staff

Acknowledgments

In addition to those named above, Kerry Gail Dunn, Rodina S. Tungol,

Craig H. Winslow, Jon K. Ling, and Elizabeth Jarvis-Shean also made key

contributions to this report.

(116029) Page 32 GAO/HEHS-00-1 Adoption and Safe Families Act
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