February 2021
1
Office of the Assistant Secretary for Planning and Evaluation
U.S. Department of Health and Human Services
OFFICE OF HUMAN SERVICES POLICY
Freeing Children for Adoption within
the Adoption and Safe Families Act
Timeline:
Part 1 The Numbers
Authors: Laura Radel and Emily Madden
_________________________________________________________
KEY FINDINGS
States vary tremendously in both the proportion of children entering foster care
who experience termination of parental rights (TPR) within five years of entry
(ranging from nine percent to 44 percent) and in the proportion of TPRs that
occur within 17 months (ranging from 16 percent to 89 percent). The 17-month
time point approximates the requirement in federal law that child welfare
agencies file a petition to terminate parental rights once a child has been in
foster care 15 of the previous 22 months.
Of children exiting before spending 17 months in foster care, 77 percent exit to
a parent or relative’s care (either with or without guardianship).
After the 17-month point, 25 percent experience reunification or relative care
exits, and 47 percent of exits are to adoptions.
White and multiracial children are more likely than children of other races to
experience TPR, while Asian and Hispanic children are most likely to have
TPR occur within 17 months.
_________________________________________________________
Permanency, that is ensuring children have long term, enduring connections to family or
other caring adults, is one of the three primary goals of the child welfare system, along with
safety and child well-being. Child welfare systems have long been concerned about
permanency outcomes of children entering foster care because stability in relationships with
caring adults form the basis for healthy child development (Wadell, et al 2004). Increases in
the number of children entering care in recent years in part due to the ongoing substance
use crisis have raised new concerns about how long children remain in temporary care.
The number of children in foster care rose from 2013 to 2017 after more than a decade of
consistent declines (ACF 2020a). In addition, achieving timely permanency for children is the
federally monitored program outcome state child welfare agencies most consistently struggle
to meet (ACF 2020b).
This research explores how frequently states make exceptions to the federal requirement
that child welfare agencies initiate the legal process to terminate parents’ rights once a child
2
has been in foster care for 15 of the previous 22 months, and highlights issues behind
states’ difficulties in achieving timely permanency for children. Three data sources are used
to gain insights into these issues:
1. Q
uantitative federal analysis of administrative data from the Adoption and Foster
Care Analysis and Reporting System (AFCARS)
2. Content analysis of monitoring reports and program improvement plans from t
he
most recent round of Child and Family Services Reviews (CFSRs)
3. Interviews with state adoption officials and stakeholders in three states: Illinois, Utah
and Wisconsin
This report highlights quantitative findings from AFCARS data. A companion report (
Freeing
Children for Adoption within Adoption and Safe Families Act Timeline: Part 2, State
Perspectives), focuses on qualitative findings from CFSRs and key informant interviews.
The quant
itative analyses follow a cohort of children who entered foster care in 2013, over
200,000 children in total, and track their exits through the end of 2017. Methodological
details may be found at the end of this report. The analyses presented here relate to
analyses of permanency featured in a recent Information Memorandum published by the
Children’s Bureau, ACYF-CB-IM-21-01, Achieving Permanency for the Well-being of
Children and Youth (issued January 5, 2021). The analyses in the Information Memorandum
focus on aggregate national findings. This report complements those in the Information
Memorandum with an expanded focus on variation among the states and how those
variations relate to policy and practice.
Background on Federal Termination of Parental Rights (TPR)
Requirements
The Adoption and Safe Families Act (ASFA, P.L. 105-89) was enacted in 1997 and at the
time represented the most significant overhaul of federal child welfare law since the
establishment of the federal title IV-E (of the Social Security Act) foster care and adoption
assistance programs in 1980. The law codified in
federal statute the core child welfare system values of
safety, permanency, and child well-being. The
permanency goal was intended to ensure that children
and youth achieve a permanent family connection,
preferably with their birth families but with adoptive
families if birth families cannot address safety issues
within a reasonable period of time. ASFA addressed
concerns that too many children drifted for long
periods in the child welfare system without resolution
of their cases and suffered emotionally and
developmentally as a result (Spar and Shuman 2004).
As involved observers have noted, at the time ASFA
was being considered a broad groupmembers of Congress, the Clinton administration,
and many outside observersexpressed concern about the growth in foster care caseloads,
a pattern of children lingering in care too long, and the obstacles to adoption that prevented
children who could never go home from ever achieving a place within a permanent family
(Golden and Macomber 2009, p. 9). Among the law’s major provisions related to
permanency is a requirement that, with limited exceptions, states must file a petition to
terminate parental rights once a child has been in foster care for 15 of the previous 22
months. This is often referred to as the 15/22 rule. Termination of parental rights is
necessary before another family may adopt the child. States may make exceptions to the
timeline, that is, grant extensions, on an individual basis if the child is living with a relative, if
Federal child welfare law
requires that, as a condition of
the title IV-E Foster Care
Program, a state file or join a
petition to terminate parental
rights once a child has been in
foster care for 15 of the previous
22 months. This is often referred
to as the 15/22 rule. Exceptions
are permitted in limited
circumstances.
3
services intended to address the conditions that led to the child’s foster care placement have
not been delivered, or if the state documents a “compelling reason” why termination of
parental rights is not in the child’s best interests.
As shown in Figure 1, in the years immediately following ASFA’s enactment in 1997, the
annual number of adoptions from foster care increased rapidly and then settled into a new
equilibrium of between 50,000 and 60,000 adoptions per year. The numbers have been
rising again since 2014 and topped 60,000 in both 2018 and 2019 (ACF 2020b). Today,
there are more children who have been adopted from foster care and are receiving federal
adoption assistance subsidies than there are children currently in foster care. The shift in the
foster care and permanency program toward a predominance of children in adoptive homes
has progressed steadily since ASFA was enacted (Rolock, et al. 2017). Wildeman and
colleagues (2020) have estimated that approximately one percent of U.S. children
experience TPR during childhood and that the likelihood of TPR doubled between 2000
(shortly after ASFA was enacted) and 2016.
Figure 1. Adoptions with Public Agency Involvement, 1998-2019
Source: AFCARS
While the number of adoptions grew following ASFA, states continued to struggle to achieve
timely permanency for children. A Government Accountability Office (GAO) study in 2001
found that in most states that had data available to track the phenomenon, “the number of
children exempted from the [15/22] provision greatly exceeded the number of children to
whom it was applied” (GAO 2002). More recently, current results of ACF’s Child and Family
Services Reviews (CFSRs) documented continuing challenges to timely adoption
1
. In the
round of reviews that ended in 2018, only seven states were rated as having a strength on
the review item regarding timely TPRs (ACF 2020).
1
Child and Family Services Reviews, conducted for each state roughly every five years, determine the extent to
which states are in compliance with federal child welfare laws and regulations. States found not to be in
substantial compliance are required to implement a Program Improvement Plan describing corrective actions
they will take to improve performance. ACF completed its third round of CFSRs in 2018 and no state was
determined to be in substantial compliance with all of the seven outcomes and seven systemic factors addressed
in the reviews. More information on the CFSRs may be found at:
https://www.acf.hhs.gov/cb/monitoring/child-
family-services-reviews/round3
4
While there is widespread agreement on the
importance of permanency in children’s lives,
there is considerably more disagreement
regarding whether the child welfare system
inappropriately contributes to impermanence
by taking too many children into foster care
who could remain safely with their families
and not doing enough to address families’
problems before seeking permanent
alternatives. Some observers argue that
further efforts are needed to terminate
parental rights expeditiously, in some cases
long in advance even of current ASFA
timelines, and to move more children into
adoptive homes as quickly as possible (Riley
2018; Zill 2011). As of 2011, 18 states had
enacted state level TPR timelines shorter than
those required in ASFA (Vesnecki 2011). For
instance, Alabama expects the child welfare
agency to request TPR once a child has been
in care 12 months, Arizona may request TPR
at nine months under some circumstances,
and Oklahoma has a timeline of six of 22
months for children who were under the age
of four at the time of placement (Child Welfare
Information Gateway 2016). Other efforts to
expedite adoptions have also been
implemented in some states, such as
streamlining the parental appeals process
(Keith and Flango 2002). However, work by
Wulczyn and colleagues (2016) finds that the
existence of state adoption “fast track
statutes” are not by themselves associated
with higher adoption rates in practice. If those
statutes are used infrequently, as is the norm
where they exist, they have little practical
effect. (For these and other key data used in
this report, complete state-by-state statistics
can be found in the appendix table.)
States Vary Widely in the
Frequency and Timing of TPR
States vary in how frequently they
terminate parental rights of children in
foster care. As shown in Figure 2, the
proportion of children who entered foster care
in FY 2013 who experienced TPR by the end
of FY 2017 ranged from a low of nine percent
in Wyoming to a high of 44 percent in Maine
2
.
The median among states is 22 percent.
2
Specific statistics for each state may be found in the appendix table.
Source: AFCARS, children entering care in FY 2013
who experienced TPR by September 20, 2017.
Figure 2. States vary in the
proportion of children entering
foster care who experience
termination of parental rights
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Twelve states had TPR rates below 20 percent, and seven states had rates over 35 percent.
Myriad factors may be involved in the variations among states. Several hypotheses
may be posed to explain the range among states in the likelihood of TPR. States that bring
into care only the most seriously endangered children may be less able to reunify families
and thus conduct more TPRs. States with fewer service resources may have more difficulty
addressing the family problems that led to the child’s entry. State child welfare agencies and
judges may vary in the extent to which they value both reunifications and other relative
placements in relation to adoptions when children remain in care for extended periods. The
age distribution of states’ foster care populations may also be a factor, since younger
children are more likely than older children to experience TPR. States that serve a
disproportionate number of older youth in foster care will likely have lower rates of TPR, and
those whose foster care populations include a disproportionate number of infants will likely
have higher rates of TPR. The age distribution of a state’s foster care population relates to
policy factors such as the extent to which the state uses its child welfare system to serve
mentally ill or delinquent youth and the extent to which it makes efforts to serve drug
exposed infants while in their parents’ care rather than routinely placing those infants in
foster care. No research has tested any of these possible explanations of differing TPR rates
among states.
Timeliness of terminations of parental rights also vary substantially. Figure 3 shows
the proportion of TPRs that occurred within 17 months of the child’s foster care entry in each
state, that is, approximately in line with the ASFA timeline. States shown in lighter shades of
blue had lower proportions of children whose TPRs were timely, while those in darker
shades of blue had larger proportions of timely TPRs. Nationally, 54 percent of TPRs occur
timely. However, states vary substantially in the percentage of TPRs that occur according to
federal timeframes. In seven states, 70 percent or more of TPRs happened within 17
months. On the other end of the distribution, in seven states and DC, more than 70 percent
of TPRs took place more than 17 months after entry. AFCARS data do not include
information on whether specific exceptions to the TPR requirements are documented for
children who remain in care without TPR. Whether exceptions are documented or not,
clearly many children are de facto exempted from the timelines, and the volume of these
exceptions vary among the states.
Figure 3. Over half of TPRs nationally (54 percent) occur within 17 months
of foster care entry but rates vary widely among states
Source: AFCARS, proportion of children experiencing TPR within 17 months among children entering care in FY 2013
6
Many parents face substantial barriers to reunification and find it difficult to
accomplish the requirements of their case plans within the ASFA timelines. Many note
that parents with substance use disorders (SUDs) are particularly hard pressed to
demonstrate recovery to caseworkers’ and judges’ satisfaction within the timelines (DHHS,
1999; Rockhill et al. 2008). Berger and colleagues (2010) found that families with
caseworker-perceived alcohol or drug problems were more likely to experience TPR, though
differences disappeared after controlling for other factors. Hong and colleagues (2014) found
that mothers with “mixed” progress in SUD treatment were less likely to experience TPR
than those who made no significant progress. There has also been some reluctance to
terminate parental rights when a parent’s incarceration rather than maltreatment is the
primary impediment to reunification and the parent expects to resume parenting upon
release sometime after the 15-month point (Zavez 2008; Gentry 1998). However, some
states’ child welfare statutes specifically address length of parental incarceration as grounds
for TPR. For instance, Ohio’s statute permits TPR if the parent is unable to care for the child
for more than 18 months due to incarceration. A similar provision in Iowa’s law specifies
TPR should occur if a parent is to be incarcerated for at least five years (Child Welfare
Information Gateway 2016).
The law provides potential exceptions for children living with relatives. One of the
permitted exceptions to TPR at the 15 of 22 months point is if the child is living with a
relative. While reasons for exceptions are not documented in AFCARS, our analysis
examined how frequently children who remained in care were living with relatives and thus
would have been potentially eligible for this exception. Nationally, 30 percent of children in
care beyond 17 months and who have not experienced TPR were living in relative foster
homes. However, as with so many aspects of child welfare practice, the proportion living in
relative foster homes at the point the 15/22 rule should have been invoked varies widely by
state. Figure 4 shows this variation. States with higher proportions of children living in
relative care are shown in darker shades of blue. In six states, fewer than 10 percent of
children in foster care beyond 17 months were living with relatives. On the other end of the
distribution, in seven states 40 percent or more lived with relatives.
Figure 4. Nationally, 30 percent of children in foster care without TPR
after 17 months are living with relatives
Source: AFCARS, proportion of children living with relatives in the first report after reaching 17 months in care
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Timeliness of TPR varies by the age at which the child entered care. As shown in figure
5, timely TPRs are most likely for children who enter care as infants (under age one) and
adolescents (age 14 and over). Some states have established more aggressive TPR
timelines for infants. These shorter timelines are justified on the basis of young children’s
developmental needs, particularly with respect to developing attachment to a caregiver.
States also find it easier to recruit adoptive parents for infants than for children at even
somewhat older ages. For the oldest youth in foster care, TPRs either happened rapidly, or
not at all because they emancipated before being adopted.
Figure 5. TPRs are most timely for children entering foster care as infants
or adolescents
Source: AFCARS
TPR is most likely for White and multiracial children and least likely for Asian and
Hispanic children. With respect to race and ethnicity, multiracial and White children are
more likely than children of other races to experience TPR. Data for children of all races is
shown in Table 1. Over 30 percent of multiracial children and more than one-quarter of
White children who entered foster care (27.1 percent) had parental rights terminated within
the five-year observation window, as compared with 22.7 percent of American Indian
children, 21.5 percent of Black children, 17.9 percent of Hispanic children, and 16.2 percent
of Asian children who entered care. Differences by race and ethnicity are also seen in the
timeliness of TPR. TPRs were most likely to be timely for Asian and Hispanic children (67.3
percent and 58.6 percent, respectively) and least likely to be timely for American Indian
children (40.8 percent).
Table 1. TPR Experiences by Race/Ethnicity
Race/Ethnicity Proportion of Children Who
Experienced TPR within 5
Years
Proportion of TPRs that Occurred
within 17 Months
White 27.1% 55.6%
American Indian 22.7% 40.8%
Black 21.5% 49.7%
Hispanic 17.9% 58.6%
Asian 16.2% 67.3%
Multiracial 30.4% 53.0%
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Figure 6 describes exit reasons for children in the study cohort. On the left of the chart,
children are divided into three groups based on their length of stay in foster care: children
who exited in less than 17 months, children who exited between 18 months and 5 years, and
those still in care after 5 years. On the right side, children are divided according to their exit
types. The lines flowing from left to right reflect the number of children from each length of
stay group exiting to each exit typereunification, living with other relatives, adoption,
emancipation, guardianship and other (which includes transfer to another agency and death
of the child). TPR is required only for adoption exits. For all other exit types the parental
relationship remains intact legally, though custody is transferred.
Figure 6: Reunifications predominate among foster care exits prior to 17
months while adoptions are more common for those in care longer
Reunification becomes substantially less frequent after the 17-month mark. Overall, 47
percent of children exited to reunification, with four in five reunifications occurring before 17
months had passed. Adoptions were the exit type for 22 percent of children, and one in five
of those exits occurred before 17 months. Guardianships occurred in more equal numbers in
the two time periods, while exits to live with relatives without guardianships mostly occurred
in the early months. While reunifications may still occur after the point at which a child has
spent 17 months in care, they are greatly reduced compared to earlier in a child’s foster care
stay. Of children who exit foster care before the 17-month point, 67 percent reunify with
parent(s) and 10 percent exit to relative care. Of children in care beyond 17 months, 23
percent reunify and two percent exit to relative care. Also, seven percent of exits prior to 17
months and 49 percent of exits after 17 months are to adoptions. At the end of the study’s 5-
year observation period nearly 17,000 children (eight percent of the total cohort) were still in
Source: AFCARS, exit type for children who entered foster care in FY 2013 and had exited by September 30, 2017.
9
care, including five percent of the cohort who had been in care continuously and four percent
who had left care at some point and re-entered.
Conclusion
Over 20 years after ASFA’s passage, many states still struggle with permanency decisions
for children who remain in foster care longer than 15 months. These analyses have
demonstrated that there is considerable variation in the frequency with which states
ultimately terminate the parental rights of children in foster care and move them to adoptive
homes, as well as the timelines on which they do so. These numbers tell the “what” about
the frequency and timing of children’s exits from foster care to permanency and the extent to
which they experience TPR. However, numerical data do not explain the mechanisms
behind decision-making and delays or how and why states’ practices differ.
Some argue that child welfare agencies separate families unnecessarily, fail to address the
issues that led to separation, and then terminate parental rights for too many children for
insufficiently good reason. They believe the federal requirement that states seek to terminate
parental rights after a child has been in foster care for 15 of the previous 22 months is
arbitrary and unfairly deprives children of their birth families. Others believe caseworkers,
their supervisors, and judges insufficiently value children’s safety and well-being, and press
for even shorter timelines to determine children’s permanent family associations. After many
years of struggling with the balance between children’s needs and parents’ rights, child
welfare agencies continue to be buffeted by these discordant views on current practice, both
among their leadership and staff as well as from outside stakeholders.
Exceptions to the ASFA timelines were intended by Congress to provide more time to
parents in cases where reunification is possible within a reasonable timeframe. Yet in three
of four cases in which exceptions are used, either explicitly or implicitly, permanency is
delayed without enabling a family reunification outcome. In the end, TPR and adoption
occurs, or the child remains in care indefinitely (in this analysis, for at least five years).
Neither delayed adoption nor long term foster care and possible emancipation without
permanency are preferred outcomes for children. This suggests improvements to practice
are needed both to improve timely reunification and to better target exceptions so they may
be used to facilitate, rather than delay, desired permanency and well-being for children in
foster care.
Existing administrative data allows us to track whether a TPR happened for children in foster
care and when it occurred. However, these data do not provide insights into whether this
most serious of actions a family court can take was necessary or could have been avoided,
or what the consequences of TPR are for children, their birth families, or their adoptive
families.
To explore the how’s and why’s of TPR delays beyond ASFA timelines, this research also
explored monitoring reports and interviewed adoption practitioners and stakeholders in three
states. Findings from that portion of the study may be found in the companion report to this
one entitled,
Freeing Children for Adoption within Adoption and Safe Families Act Timelines:
Part 2 State Perspectives.
10
Methods
Data from the Administration for Children and Families’ Adoption and Foster Care Analysis
and Reporting System (AFCARS) were used to document permanency outcomes and
timelines for a cohort of children who entered foster care for the first time during Fiscal Year
(FY) 2013. Children’s placements and discharges were followed for approximately five
years, through the end of FY 2017. By that point 92 percent of the children had exited foster
care. The cohort totals 205,674 children, of whom 25 percent experienced termination of
parental rights (TPR) during the period of observation.
A cutoff of 17 months was used to look at whether TPRs were conducted timely. This is the
same standard ACF uses in CFSRs to determine whether TPRs are occurring timely and
takes into account determinations of when foster care officially begins. While the ASFA
timeline refers to when the TPR petition must be filed, AFCARS data specify only the date
on which TPR is completed. Thus, our measure of whether the TPR complies with the ASFA
timeline is inexact. Federal rules do not make requirements for how quickly a judge is to act
on the TPR petition once filed and there may be weeks or months of difference between the
filing of the petition and the judicial action to complete it. AFCARS data was also used to
determine whether children in foster care were living with relatives at the time they reached
the 15 of 22 months mark. The first recorded placement after the child had been in foster
care for 17 months was used to make this determination.
References
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Appendix 1: Key Statistics on Termination of Parental Rights, By State
State
Proportion of children
entering foster care in
2013 who experienced
TPR within 5 years of
entry
Proportion of TPRs
that occurred before
17 months
Proportion of
children without
TPR at 17 months
who were living
with relatives
Alabama 17.4% 36.0% 17.6%
Alaska 39.7% 28.2% 18.2%
Arizona 37.1% 62.0% 42.5%
Arkansas 22.6% 79.4% 18.5%
California 23.3% 53.5% 39.8%
Colorado 19.8% 84.3% 18.6%
Connecticut 26.8% 40.7% 41.0%
Delaware 20.4% 57.4% 02.8%
District of Columbia 32.7% 17.2% 20.5%
Florida 28.3% 65.9% 42.6%
Georgia 21.3% 40.9% 22.4%
Hawaii 15.8% 46.4% 56.2%
Idaho 21.2% 69.4% 43.9%
Illinois 29.1% 15.6% 37.2%
Indiana 14.6% 34.6% 27.2%
Iowa 25.1% 78.1% 17.0%
Kansas 29.8% 45.0% 29.1%
Kentucky 21.8% 24.7% 03.5%
Louisiana 22.4% 46.2% 34.0%
Maine 44.2% 58.8% 35.5%
Maryland 14.0% 23.0% 37.0%
Massachusetts 18.0% 40.9% 30.6%
Michigan 35.6% 68.9% 23.1%
Minnesota 19.4% 82.8% 29.7%
Mississippi 15.1% 29.6% 31.3%
Missouri 21.8% 29.9% 26.0%
Montana 22.3% 48.6% 37.8%
Nebraska 22.3% 41.1% 24.5%
Nevada 25.3% 31.7% 34.7%
New Hampshire 21.3% 35.4% 10.6%
New Jersey 23.6% 31.5% 40.3%
New Mexico 23.7% 54.8% 13.5%
New York 19.8% 30.2% 26.3%
North Carolina 26.4% 44.7% 23.5%
North Dakota 21.5% 37.9% 17.5%
Ohio 19.3% 55.0% 18.9%
Oklahoma 38.2% 43.5% 31.3%
Oregon 21.4% 38.3% 28.0%
Pennsylvania 26.9% 37.9% 36.9%
Rhode Island 21.2% 22.2% 27.7%
South Carolina 18.3% 49.6% 34.9%
13
State
Proportion of children
entering foster care in
2013 who experienced
TPR within 5 years of
entry
Proportion of TPRs
that occurred before
17 months
Proportion of
children without
TPR at 17 months
who were living
with relatives
South Dakota 16.8% 68.1% 10.1%
Tennessee 19.9% 49.6% 06.3%
Texas 36.9% 89.5% 09.7%
Utah 29.4% 87.8% 27.1%
Vermont 36.2% 50.8% 30.0%
Virginia 28.5% 64.3% 7.3%
Washington 28.9% 33.0% 34.2%
West Virginia 30.1% 85.0% 10.2%
Wisconsin 17.7% 31.7% 30.1%
Wyoming 8.9% 25.0% 04.9%
US Total 25.2% 54.4% 42.3%