This Article identifies circumstances that justify a state’s refusal to provide reasonable efforts to reunite parents with their abused or neglected children. 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. 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. This Article uses the aggravated circumstances 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.
Kathleen S. Bean,
Aggravated Circumstances, Reasonable Efforts, and ASFA,
B.C. Third World L.J.