Aggravated Circumstances, Reasonable Efforts, and ASFA

90 Pages Posted: 7 Dec 2008

Date Written: December 5, 2008

Abstract

This article seeks to identify circumstances that justify a state's refusal to provide reasonable efforts to reunite parents with their abused or neglected children. While the article focuses on the aggravated circumstances exception to the federal reasonable efforts requirement, it offers an analytical approach useful to any decision-maker charged with protecting the health and safety of an abused or neglected child. Since 1980, federal legislation has explicitly required states receiving federal foster care dollars to make reasonable efforts to reunite parents with children removed because of abuse or neglect. In 1997, Congress responded to widespread concerns that these efforts were responsible for children being returned to unsafe homes or being left in foster care limbo. Congress's response, the Adoption and Safe Families Act of 1997 (ASFA), identifies three exceptions to the reasonable efforts requirement, one of which is aggravated circumstances. This article uses the aggravated circumstance exception to identify situations where reunification efforts should be denied.

ASFA's exceptions, including aggravated circumstances, recognize the harm that results from making efforts to reunite in situations not appropriate for reunification. The reasonable efforts provision recognizes the harm that results from disrupting the parent-child relationship. To best protect a child against both of these harms, a court should first consider all relevant circumstances, including the effects of the parental conduct, any derivative harm to the child, and any remedial efforts by the parents. Before denying reasonable efforts to reunite, the court should also determine that the past or current harm or parental conduct is sufficient to trigger an ASFA exception; determine that reunification efforts are likely to inflict a very serious harm - either a return to a dangerous home or a stay in foster care that is too long; and identify a nexus between the triggering harm and the predicted harm.

Keywords: children, abuse and neglect,, Adoption and Safe Families Act, reasonable efforts, aggravated circumstances

JEL Classification: K10

Suggested Citation

Bean, Kathleen S., Aggravated Circumstances, Reasonable Efforts, and ASFA (December 5, 2008). Boston College Third World Law Journal, 2009. Available at SSRN: https://ssrn.com/abstract=1312042

Kathleen S. Bean (Contact Author)

Kathleen S. Bean ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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