Impact Feature Issue on Children with Disabilities in the Child Welfare System

Child Welfare Legislation Affecting Children with Disabilities

The following summarizes some of the federal laws that apply to children with disabilities who have been removed from their families either temporarily or permanently, or who are in families that can benefit from prevention or intervention efforts in order to continue parenting their children with disabilities. On the following page is information about another significant federal law, CAPTA.

  • Adoption and Safe Families Act of 1997 (ASFA, P.L. 105-89). ASFA has three primary goals: child safety, permanency, and child well-being. ASFA marks the shift away from “family preservation” in the child welfare field to a focus on accountability and outcomes. A significant aspect of the legislation directs child welfare workers and agencies to make what is termed “reasonable efforts” to prevent unnecessary removal of a child and to reunify children with their parent(s). Specific criteria were also set for cases in which child welfare professionals were not required to provide reasonable efforts (e.g. parent has murdered or attempted to kill a child, or has had parental rights to another child terminated). Another key aspect of the ASFA legislation is the minimum timelines for reunification. When a child has been removed from their caregiver, in addition to temporary custody hearings, a permanency hearing must be held within 12 months. For children remaining in foster care for 15 or 22 months, it’s mandatory for child welfare professionals to file for termination of parental rights. Exceptions to these timeframes include the child is in the care of a relative, the child welfare agency documents a compelling reason why filing is not in the best interest of the child, and the child welfare agency has not provided to the child’s family the services deemed necessary to return the child to a safe home consistent with the time period in the case plan. States can legislate shorter reunification times. Sections specifically addressing children with special needs include provision for health insurance coverage for children with special needs for whom there is in effect an adoption assistance agreement or whom the State has determined cannot be placed with an adoptive parent(s) without medical assistance because the child has special needs for medical, mental health, or rehabilitative care; and provision for adoption assistance payments to continue for children with special needs who were eligible at the time of an adoption that has now been dissolved – the eligibililty may continue into the next adoption.In relation to children with disabilities, it is also important to note that the timeframes for reunification in this legislation can present a hardship. For children with disabilities it often takes considerable time to locate or create services tailored to meet the individual’s needs. If a parent needs to participate in those services in order to work toward reunification, the time it takes to begin services still counts against their 12- or 22-month permanency timeframe. In cases such as these, child welfare workers would need to advocate in court for the parent to have additional time for reunification because these circumstances are beyond the control of the parent.

(Information based on “Major Federal Legislation Concerned with Child Protection, Child Welfare, and Adoption” from the National Clearinghouse on Child Abuse and Neglect Information, http://nccanch.acf.hhs.gov/pubs/otherpubs/fedlegis.pdf, and on text of the Act at http://frwebgate.access.gpo.gov)

  • Social Security Act Adoption Assistance.Title IV-E is the federally funded adoption assistance program that provides financial support to adoptive parents of children with special needs. The definition of special needs, under section 473(c) of the Act, varies by state but must meet three criteria: (a) the child cannot or should not be returned to his/her parental home, (b) there is a specific factor or condition that makes it reasonable to conclude that adoption assistance will be necessary to facilitate adoption – possible factors include presence of a disability; and (c) reasonable but unsuccessful efforts have been made to place the child without adoption assistance. For children identified by a State as “special needs,” those who meet the requirements forTitle XVI Supplemental Security Income benefits at the time of adoption are among those eligible for adoption assistance; children eligible for SSI have significant disabilities (these commonly include Down syndrome, deafness, blindness, and cerebral palsy).(Information based on “Title IV-E Eligibility & Benefits” and “Adoption Subsidy Definitions­–United States” from the North American Council on Adoptable Children )
  • Foster Care Independence Act of 1999 (P.L. 106-169).The Foster Care Independence Act and the Chafee Program provide for permanency planning specific to the needs of adolescents in out-of-home care. They provide financial assistance to states for child welfare agencies delivering independent living training to youth, transitional living programs for emancipated youth, and Medicaid coverage extending to age 21.(Information based on “Foster Care Independence Act of 1999” from the Child Welfare League of America)