The Adoption and Safe Families Act: Proposing a “Best Efforts” Standard to Eliminate the Ultimate Obstacle for Family Reunification

• DOI: http://doi.org/10.1111/fcre.12250
• Date: 01 October 2016
• Author: Brittany Lercara
• Published date: 01 October 2016

THE ADOPTION AND SAFE FAMILIES ACT: PROPOSING A “BEST

EFFORTS” STANDARD TO ELIMINATE THE ULTIMATE OBSTACLE

FOR FAMILY REUNIFICATION

Brittany Lercara

The Adoption and Safe Families Act of 1997 (ASFA) was enacted in an attempt to expedite the child’s permanency plan by

pushing for adoption of children in foster care. The ASFA requires the U.S. Department of Health to make reasonable efforts

to reunify and preserve existing families while rewarding the states for increased adoption of foster care children. The ASFA

was enacted to ensure the best interests of the child are to remain paramount, but in practice, the ASFA is furthering the best

interests of the state. This Note proposes amendment of the ASFA to increase the obligation of the Department of Social Serv-

ices (DSS) to make its best efforts to preserve and reunify the existing family unit, while also imposing a penalty if the DSS

fails to do so.

Key Points for the Family Court Community:

Children are frequently placed in foster care due to deprivation of necessities as a result of poverty.

Children placed in foster care are often separated from their siblings.

The Adoption and Safe Families Act of 1997 requires the U.S. Department of Health and Human Services to attempt

to place children in pre-adoptive foster homes.

The term “best interests” must be defined within the Adoption and Safe Families Act of 1997 to promote uniformity

among the states.

Reunification as a permanency goal requires active contribution and participation from government agencies, the court

and the family for success.

The state should be penalized if it is determined they have not worked in the best interest of the child.

Keywords: Adoption and Safe Families Act of 1997; Best Efforts; Best Interests of the Child; Child; Family; Foster

Care; Natural Parents; Permanency; Reunification; and Reasonable Efforts.

I. INTRODUCTION

1

Roger and Jessica Burke were married in March 1999, when Jessica discovered she was pregnant

with the couple’s first child, Kevin. Over the next two years, Roger and Jessica had another child

named Carla. For a short time, the Burke’s were a typical happy and loving family. In February 2004,

when Mrs. Burke believed her husband had been unfaithful, she filed for divorce. The divorce took an

emotional toll on all members of the family. In a fit of rage and desire for revenge, Mrs. Burke went to

the courthouse and filed a petition for a protective order, falsely alleging that Mr. Burke had physically

abused their two young children. The court ordered a forensic evaluation and ultimately Carla and

Kevin, ages two and four, were removed from their home and their natural parents’ care.

2

At the time of the initial accusations, Mrs. Burke was suffering from mental health issues leaving

her incapable of caring for the children on her own. Mr. and Mrs. Burke did not provide substitute

housing for their children once the court removed them from their home; consequently, Kevin and

Carla were placed in foster care. Because the state was unable to place the children together in the

same foster home, the children were separated.

3

Kevin was placed with the Davis foster family and

Carla with the Tucker foster family.

After years in foster care, Kevin had no desire to reunite with his natural parents. He was angry

and blamed his natural parents for the separation. His foster parents, the Davises, had their own

Correspondence: brittanylercara@gmail.com

FAMILY COURT REVIEW, Vol. 54 No. 4, October 2016 657–670

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C2016 Association of Family and Conciliation Courts