Is twenty-two months beyond the best interest of the child? ASFA's guidelines for the termination of parental rights.

• Author: Hort, Katherine A.

INTRODUCTION

Chris Congdon was two years old when he and his three-year-old brother were placed in foster care. (1) The boys' mother, Christine DiPerna, was mildly retarded and suffered from depression. (2) Their father was a diabetic-asthmatic with a weak heart. (3) He was also a schizophrenic (4) who had been arrested so often the town police knew him by name. (5)

Chris already had been back and forth between parental custody and foster homes when, at age five, he went to live with Sue Luebbert and her husband Christopher Hill. (6) Upon his arrival, the couple promised Chris he would never have to go to another foster home. He could stay with them until he returned to his natural parents. (7) Within days he was calling them mom and dad. (8)

Chris's foster family encouraged the involvement of his natural parents. (9) Once, Luebbert and Chris arrived at the Child Welfare Office to visit with Chris's mother only to find they missed her due to a scheduling mistake. Luebbert later located DiPerna in a nearby coffee shop. (10) For Chris's sixth birthday, Luebbert and Hill drove him nearly 200 miles to celebrate at his brother's foster home. (11) In addition, they often picked up Chris's parents so they could attend Chris's open houses at school. (12)

Three years later, Chris and his brother were still in foster care despite DiPerna and Congdon's efforts to rehabilitate and regain custody of their children. (13) Around this time, Chris told his Sunday school class the Bible story he best remembered was the story of King Solomon. (14) Finally, in February of 1996, Chris's caseworker told him the judge was going to cut all legal ties between him and his parents. (15)

On August 13, 1997, five years after Chris came to live with Luebbert and Hill, DiPerna and Congdon's parental rights were terminated. (16) Luebbert and DiPerna, both of whom Chris called mom, cried. Luebbert said, "There are no winners in this, this is only about people getting on with their lives," (17) Situations like this highlight the dilemmas the foster care system must address when balancing deference to the biological family with a child's need for a permanent home.

On November 19, 1997, the Adoption and Safe Families Act ("ASFA" or "the Act") was signed into federal law. (18) ASFA promised to overhaul the failing foster care system (19) by shortening the time children spent in foster care. Many children languished in foster care because long term goals were not established, maintained, or carried out. (20) This is referred to as "foster care drift." (21) ASFA contains a provision mandating that the state file for the termination of parental rights after a child has spent fifteen of the past twenty-two months in foster care (the "15/22 provision"). (22) There are three exceptions to this provision: (1) if the child is living with a relative ("kinship placement"); (2) if the state agency has documented a compelling reason why filing is not in the best interest of the child; and (3) if the state has failed to provide the family with the services necessary to safely reunite the child with her parents. (23) The standard governing the decision to reunify parent and child is one of "reasonable efforts" (24) and the Act requires a state's compliance to be eligible for federal child welfare money. (25) Thus, states have had to pass legislation complementary to ASFA. (26) The legislative responses of states have differed greatly. (27) This Note considers Illinois's and New York's enactments because they are the states with the starkest decline in the number of children entering foster care. (28)

Illinois has gone beyond ASFA's requirements by incorporating the fifteen out of twenty-two month exception into a new basis for parental unfitness. (29) An Illinois court may find a parent unfit based solely on the child's placement in foster care for fifteen out of the past twenty-two months. (30) Although the statute includes the same three exceptions as the federal act, the new unfitness standard lightens the state's burden in proving a parent is unfit. (31)

By contrast, New York has more or less adopted ASFA in full. (32) This allows it to rely more heavily on the various exceptions to the "15/22" requirement. (33) Because the exceptions are broad, they can be applied to many foster care cases. Through reliance on the exceptions and judicial discretion, New York can easily delay parental termination beyond the twenty-two month period if deemed appropriate. Although both states' statutes have the 15/22 rule and the exceptions, Illinois's inclusion of the new unfitness standard goes far beyond what the federal ASFA mandates, and this Note argues, makes it too easy to terminates parental rights. Although ASFA is designed to limit foster care drift, Illinois's unfitness standard goes too far.

Part I of this Note discusses the legal precedents, child development theories, and policies regarding "reasonable efforts" and parental termination that led to the enactment of ASFA. Part II examines Illinois's and New York's different responses to ASFA. This Part also introduces the debate over "congregate care" as an alternative for those children who may never be returned to a parent's care, but whom are unlikely to be adopted. Part III argues the New York system is more workable than the Illinois system given the complexities of the foster care system.

This Note concludes by arguing the federal government's rigid time frame for parental termination is overly simplistic because it makes it difficult for decision makers to account for various individual circumstances. A state foster care system is far too complicated to function effectively without the use of the exceptions like those embraced by New York. Illinois's statute makes it too easy to terminate parental rights. However, this Note suggests that despite policies dictating faster termination, there always will be children who are wards of the state. Foster care may not be the solution for all of them, and this Note suggests a reconsideration of group homes as an alternative.

1. HISTORY OF CHILD WELFARE LEADING UP TO ASFA

   The proper role of the government in regulating child welfare is affected by prevailing notions of federalism and family autonomy. This Part examines historical conceptions of the government's role in the intimate family sphere. Foster care systems were traditionally administered by the states but changing demands on the foster care system led to federal involvement starting in the 1970s. Federal oversight expanded significantly in 1980 with the passage of the Adoption Assistance and Child Welfare Act ("AACWA") (34) and continued with ASFA. It was with these measures that the "best interest of the child" standard came to govern parental termination decisions. This part also introduces the highly influential book, Beyond the Best Interest of the Child, that, by emphasizing the need for stability in the rearing of young children, led to an emphasis on permanent placements for children.

   1. Family Law as a State Issue

      Although not necessarily revolutionary on its face, a federal act addressing child welfare signaled a significant shift in traditional child welfare policy because family law had historically been treated as a state issue. (35) The framers of the Constitution designed a government of dual sovereignty in which states would have significant control over the "lives, liberties and properties of the people," whereas the federal government would have power only over national issues. (36) Those powers were to be limited and enumerated by the Constitution. (37) However, through the Commerce Clause, the Constitution does grant Congress some power over local affairs. (38) Although the potential elasticity of the Commerce Clause was evident at the founding, the reach of the clause became apparent during the New Deal. (39)

      Congress' power under the Commerce Clause had been interpreted by the United States Supreme Court as virtually limitless (40) until the recent case of United State v. Lopez, (41) in which the Court invalidated the Gun-Free School Zones Act. (42) This federal act criminalized handgun possession in proximity to a school. The Lopez Court held that the statute exceeded Congress' authority under the Commerce Clause. Specifically, Chief Justice Rehnquist wrote, "[U]nder the Government's ... reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents ... it is difficult to perceive any limitation on federal power." (43) Thus, Congress' legislation of family affairs would seem to "signal the falling of the final outpost of federalism." (44) Lopez would seem to assert that legislation pertaining to child welfare belongs under state regulation. (45)

      Although family law traditionally has been the domain of the states, a desperate need for change (46) prompted the federal government's interference. Furthermore, the financial incentives offered through ASFA raise issues of conditional spending power. In South Dakota v. Dole, (47) the Supreme Court held Congress is entitled to influence state policy through the conditional grant of federal funds. (48) In his opinion, Chief Justice Rehnquist emphasized the scope of the spending power is limited:

      The spending power is of course not unlimited, but is instead subject to several general restrictions.... [First] the exercise of the spending power must be in pursuit of the general welfare. In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. Second ... [if] Congress desires to condition the States' receipt of federal funds, it must do so unambiguously.... Third, our cases have suggested (without significant elaboration) that conditions on federal...