Preventing Undue Terminations: A Critical Evaluation of the Length-of-time-out-of-custody Ground for Termination of Parental Rights

New York University Law Review

Volumn 71, Issue 5, 1996, Pages 1251-1299

  Hand, Jennifer Ayres ^a  

^a NONE

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EID: 1542611675     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (230)

1. See, e.g., Santosky v. Kramer, 455 U.S. 745, 752-61 (1982) (discussing liberty interests in parent-child relationship); Stanley v. Illinois, 405 U.S. 645, 651-52 (1972) (same).
2. See Mark I. Soler et al., Representing the Child Client (MB) No. 16, ¶ 4.14[2] (July 1996) ("[T]ermination is, in effect, a death sentence for the parent-child relationship.").
3. Stanley, 405 U.S. at 651.
4. Santosky, 455 U.S. at 760 n.11 (alteration in original) (quoting In re K.S., 515 P.2d 130, 133 (Colo. Ct. App. 1973)).
5. See 2 Ann M. Haralambie, Handling Child Custody, Abuse and Adoption Cases §§ 13.08, .10, .13, .16 (1993).
6. For a discussion of the prevalence of this ground, see infra notes 64-65 and accompanying text.
7. Richard P. Kusserow, Inspector General, U.S. Dep't of Health & Human Servs., Barriers to Freeing Children for Adoption 1 (1991) (emphasis added).
8. See LaShawn A. v. Dixon, 762 F. Supp. 959, 966 (D.D.C. 1991) ("Thirty-seven percent of children in the District's foster care system have been in care for four or more years . . . ."); Children's Defense Fund, Children Without Homes 6 (1978) (citing survey of 140 counties in which 13% of children had been in foster care for over four years and 20% had been in foster care for over six years). Note, however, that the average lengths of stay in foster care have declined since 1977. See Richard P. Barth et al., From Child Abuse to Permanency Planning 4 (1994) (citing data from Voluntary Cooperative Information System (VCIS)). In 1987, half of the children in foster care had been in care for 2.4 years. See id. at 5. In 1989, half of the children were in foster care for 1.4 years. See id. For a detailed analysis of time-in-foster-care studies, see id. at 79-104.
9. See LaShawn A. v. Dixon, 762 F. Supp. 959, 966 (D.D.C. 1991) ("Thirty-seven percent of children in the District's foster care system have been in care for four or more years . . . ."); Children's Defense Fund, Children Without Homes 6 (1978) (citing survey of 140 counties in which 13% of children had been in foster care for over four years and 20% had been in foster care for over six years). Note, however, that the average lengths of stay in foster care have declined since 1977. See Richard P. Barth et al., From Child Abuse to Permanency Planning 4 (1994) (citing data from Voluntary Cooperative Information System (VCIS)). In 1987, half of the children in foster care had been in care for 2.4 years. See id. at 5. In 1989, half of the children were in foster care for 1.4 years. See id. For a detailed analysis of time-in-foster-care studies, see id. at 79-104.
10. For a discussion of the terms "foster care drift" and "permanency," see infra notes 27-33 and accompanying text.
11. See Wallace J. Mlyniec, Prosecuting a Termination of Parental Rights Case, in Foster Children in the Courts 193, 194 (Mark Hardin ed., 1983) (noting development of state statutory and common law governing termination proceedings).
12. Foster parents or guardians ad litem may also be able to petition for termination, depending on the jurisdiction. See Soler et al., supra note 2, ¶ 4.14[5] (enumerating state agencies, natural parents, adoptive parents, guardians ad litem, and foster parents as possible petitioners).
13. See id., ¶ 4.14[2].
14. See 2 Haralambie, supra note 5, § 14.01.
15. This Note will address TPR only in the context of foster care. While the biological parent may voluntarily relinquish her parental rights without placing the child in foster care, such as when a parent gives a child up for adoption, see Mlyniec, supra note 10, at 196-97, termination is a court action brought against the parents who do not wish to relinquish their rights. In such a situation, the child usually has been taken out of the biological parent's home and placed in foster care for her safety. A termination proceeding also may occur without the child being in foster care - for example, when the child is living with a stepparent who wishes to adopt. Another, more dramatic, situation outside the foster care system entails a child "switched at birth," such as the highly publicized termination case that Kimberly Mays brought against her biological parents after she discovered that the parents by whom she had been raised had accidentally taken her home from the hospital in place of their own biological daughter. See generally Andrew L. Shapiro, Children in Court-The New Crusade, 257 The Nation 301, 301 (1993) (discussing suits by children to "divorce" their parents).
16. See David Fanshel & Eugene B. Shinn, Children in Foster Care 45-51 (1978) (listing varied reasons for foster care placement); Martha J. Cox & Roger D. Cox, The Foster Care System: An Introduction, in Foster Care: Current Issues, Policies, and Practices at x, xviii (Martha J. Cox & Roger D. Cox eds., Child and Family Policy Series No. IV, 1985) (same); Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 427 (1983) (same). In recent years there has been an increased number of infants entering foster care due to in utero drug exposure. See Barth et al., supra note 8, at 6-7; see also Children's Defense Fund, The State of America's Children 1991, at 122-24 (1991) (citing increase in number of infants born drug exposed and concurrent increase in foster care caseload).
17. See David Fanshel & Eugene B. Shinn, Children in Foster Care 45-51 (1978) (listing varied reasons for foster care placement); Martha J. Cox & Roger D. Cox, The Foster Care System: An Introduction, in Foster Care: Current Issues, Policies, and Practices at x, xviii (Martha J. Cox & Roger D. Cox eds., Child and Family Policy Series No. IV, 1985) (same); Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 427 (1983) (same). In recent years there has been an increased number of infants entering foster care due to in utero drug exposure. See Barth et al., supra note 8, at 6-7; see also Children's Defense Fund, The State of America's Children 1991, at 122-24 (1991) (citing increase in number of infants born drug exposed and concurrent increase in foster care caseload).
18. See David Fanshel & Eugene B. Shinn, Children in Foster Care 45-51 (1978) (listing varied reasons for foster care placement); Martha J. Cox & Roger D. Cox, The Foster Care System: An Introduction, in Foster Care: Current Issues, Policies, and Practices at x, xviii (Martha J. Cox & Roger D. Cox eds., Child and Family Policy Series No. IV, 1985) (same); Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 427 (1983) (same). In recent years there has been an increased number of infants entering foster care due to in utero drug exposure. See Barth et al., supra note 8, at 6-7; see also Children's Defense Fund, The State of America's Children 1991, at 122-24 (1991) (citing increase in number of infants born drug exposed and concurrent increase in foster care caseload).
19. See David Fanshel & Eugene B. Shinn, Children in Foster Care 45-51 (1978) (listing varied reasons for foster care placement); Martha J. Cox & Roger D. Cox, The Foster Care System: An Introduction, in Foster Care: Current Issues, Policies, and Practices at x, xviii (Martha J. Cox & Roger D. Cox eds., Child and Family Policy Series No. IV, 1985) (same); Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 427 (1983) (same). In recent years there has been an increased number of infants entering foster care due to in utero drug exposure. See Barth et al., supra note 8, at 6-7; see also Children's Defense Fund, The State of America's Children 1991, at 122-24 (1991) (citing increase in number of infants born drug exposed and concurrent increase in foster care caseload).
20. See David Fanshel & Eugene B. Shinn, Children in Foster Care 45-51 (1978) (listing varied reasons for foster care placement); Martha J. Cox & Roger D. Cox, The Foster Care System: An Introduction, in Foster Care: Current Issues, Policies, and Practices at x, xviii (Martha J. Cox & Roger D. Cox eds., Child and Family Policy Series No. IV, 1985) (same); Marsha Garrison, Why Terminate Parental Rights?, 35 Stan. L. Rev. 423, 427 (1983) (same). In recent years there has been an increased number of infants entering foster care due to in utero drug exposure. See Barth et al., supra note 8, at 6-7; see also Children's Defense Fund, The State of America's Children 1991, at 122-24 (1991) (citing increase in number of infants born drug exposed and concurrent increase in foster care caseload).
21. It has been estimated that nationally less than 5% of children in foster care have been placed voluntarily, see Kevin M. Ryan, Stemming the Tide of Foster Care Runaways: A Due Process Perspective, 42 Cath. U. L. Rev. 271, 299 n.155 (1993), although state statistics on state-classified voluntary placements have ranged from 2% to 95%, see Garrison, supra note 15, at 427 n.19 (citing National Comm'n on Children in Need of Parents, Who Knows? Who Cares? Forgotten Children in Foster Care 6 (1979)). Some commentators suggest that "voluntary" placements are not truly voluntary. See, e.g., id. Frequently they are the only form of "service" provided to a family in crisis, see id. at 433 & n.49, or are a form of "plea bargain . . . to avoid the initiation of neglect proceedings," id. at 427 n.19.
22. See Garrison, supra note 15, at 427.
23. See id. at 428. Federal law requires that in order to receive funds the state must develop a "plan" for each child that achieves "placement in the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents' home, consistent with the best interest and special needs of the child." 42 U.S.C. § 675(5)(A) (1994).
24. Placement with relatives is considered to be the "least restrictive setting," Cox & Cox, supra note 15, at xiii, and is gaining acceptance as a placement option, see Barth et al., supra note 8, at 122-23. There has been resistance, however, to placing children with relatives. See id. at 196-97 (noting skepticism regarding quality of care and costs associated with kin placement). Some doubt the ability of kin to protect the child from an abusive relative. See id. at 197.
25. 42 U.S.C. § 672 (1994) (describing funding obligations of state).
26. See infra note 49 and accompanying text.
27. See Mark Hardin, Legal Placement Options to Achieve Permanence for Children in Foster Care, in Foster Children in the Courts, supra note 10, at 128, 140-41 (discussing means by which child may exit foster care). In addition, options such as long-term foster care and guardianship may permit the child to remain legally in foster care for an extended period of time without severing the biological parent's legal ties. See id. at 129 (describing number of long-term placement options).
28. See Kusserow, supra note 7, at 5-6 (stating that legal rights between parents and children are severed prior to entering adoption process).
29. See Soler et al., supra note 2, ¶ 4.14[4] (discussing grounds for termination).
30. See infra note 89 and accompanying text.
31. For a detailed discussion of the "reasonable efforts" standard, see infra notes 47, 83-88 and accompanying text and Part II.B.3-.4. Note that states' reasonable efforts requirements are often driven by federal law: in order to get federal funds for foster care services, states must require the child welfare agency to show that it made reasonable efforts towards preventing the removal of the child from the home and towards reunifying the family once the child has been removed. See 42 U.S.C. § 671(a)(15) (1994). Federal law, however, does not specify that reasonable efforts should be a condition to termination of parental rights. This is purely a matter of state law.
32. See Anthony N. Maluccio & Edith Fein, Permanency Planning Revisited, in Foster Care: Current Issues, Policies, and Practices, supra note 15, at 113, 116 (discussing emergence of permanency planning); see also Kusserow, supra note 7, at 1 ("The Adoption Assistance and Child Welfare Act of 1980[ ] gave statutory recognition to permanency planning procedures.").
33. See Garrison, supra note 15, at 423-24, 426. Foster care drift was first documented in Henry S. Maas & Richard E. Engler, Jr., Children in Need of Parents 1 (1959) (reporting on 10-month national survey of children in foster care).
34. See Barth et al., supra note 8, at 81 (describing negative aspects of foster care system); Cox & Cox, supra note 15, at xi (same); Garrison, supra note 15, at 423 (same). Maas and Engler found that in six of the nine communities they examined, 25% or more of the children in foster care had had four or more placements. See Maas & Engler, supra note 28, app. at 422. The trend in multiple placements has been attributed to lack of care in matching children with appropriate families, inadequate foster parent training, and agency fears that the foster parents will become "too attached" to the child. See Garrison, supra note 15, at 429-30. Some have pointed to the 1950s perception that many children in foster care were unadoptable as another cause of "drift." See id. at 438 ("Healthy white foundlings were slated for adoption because they were most in demand; older, nonwhite, and chronically ill children were slated for foster care - even if their natural parents were willing to relinquish them permanently - largely because they were not in demand."); see also Joseph H. Reid, Action Called For - Recommendations, in Maas & Engler, supra note 28, at 378, 383 ("Only a very small percentage of [children in foster care] may now be considered 'readily adoptable' - that is, . . . under five years of age, white, average or above in intelligence, with no irremediable physical disabilities and no serious personality problems."). The permanency movement has made strides in changing the view that older, minority, or chronically ill children are "unadoptable." See Elizabeth S. Cole, Advocating for Adoption Services, in Foster Children in the Courts, supra note 10, at 453, 453-54 (citing efforts of Child Welfare League of America and Council on Adoptable Children).
35. See Kusserow, supra note 7, at 1 (describing philosophy of permanency planning).
36. For detailed descriptions of an intensive preventive initiative - family preservation services - see Children's Defense Fund, supra note 15, at 127-30, and Child Care and Child Welfare: Joint Hearing Before the Subcomm. on Human Resources of the Comm. on Ways and Means and the Subcomm. on Early Childhood, Youth, and Families of the Comm. on Econ. and Educ. Opportunities, 104th Cong., 1st Sess. 106 (1995) (testimony of Carol S. Bevan, Vice President for Research and Public Policy, National Council for Adoption).
37. See Kusserow, supra note 7, at 2 (noting that both state and federal policies favor family reunification). In California roughly two-thirds of children in foster care exit the system by returning to their parents. See Barth et al., supra note 8, at 261.
38. See Kusserow, supra note 7, at 2 (noting that "the purpose of permanency planning is to insure that children leave foster care as safely and rapidly as possible"). For a critical perspective on this policy, see Garrison, supra note 15, at 442-43: [T]he permanency program has focused less effort on the admittedly difficult task of improving foster care than on getting as many children as possible out of foster care. Toward this . . . end, the program has called for . . . termination of parental rights to free the child for adoption in those cases in which it appears that the parents will not be able to resume custody in the near future.
39. See Joseph Goldstein et al., Beyond the Best Interests of the Child (1973) [hereinafter Goldstein et al., Beyond the Best Interests]; Joseph Goldstein et al., Before the Best Interests of the Child (1979). For discussions of the influence of Goldstein, Freud, and Solnit, see Garrison, supra note 15, at 446-47 ("Every subsequent proposal to reform the child welfare system has drawn its vocabulary and central ideas from [the] framework [established by Goldstein, Freud, and Solnit]."); Nadine Taub, Assessing the Impact of Goldstein, Freud, and Solnit's Proposals: An Introductory Overview, 12 N.Y.U. Rev. L. & Soc. Change 485, 485 (1983-1984) (observing that every subsequent proposal for reform of child welfare system has drawn its vocabulary and central ideas from Goldstein, Freud, and Solnit's conceptual framework).
40. See Joseph Goldstein et al., Beyond the Best Interests of the Child (1973) [hereinafter Goldstein et al., Beyond the Best Interests]; Joseph Goldstein et al., Before the Best Interests of the Child (1979). For discussions of the influence of Goldstein, Freud, and Solnit, see Garrison, supra note 15, at 446-47 ("Every subsequent proposal to reform the child welfare system has drawn its vocabulary and central ideas from [the] framework [established by Goldstein, Freud, and Solnit]."); Nadine Taub, Assessing the Impact of Goldstein, Freud, and Solnit's Proposals: An Introductory Overview, 12 N.Y.U. Rev. L. & Soc. Change 485, 485 (1983-1984) (observing that every subsequent proposal for reform of child welfare system has drawn its vocabulary and central ideas from Goldstein, Freud, and Solnit's conceptual framework).
41. See Joseph Goldstein et al., Beyond the Best Interests of the Child (1973) [hereinafter Goldstein et al., Beyond the Best Interests]; Joseph Goldstein et al., Before the Best Interests of the Child (1979). For discussions of the influence of Goldstein, Freud, and Solnit, see Garrison, supra note 15, at 446-47 ("Every subsequent proposal to reform the child welfare system has drawn its vocabulary and central ideas from [the] framework [established by Goldstein, Freud, and Solnit]."); Nadine Taub, Assessing the Impact of Goldstein, Freud, and Solnit's Proposals: An Introductory Overview, 12 N.Y.U. Rev. L. & Soc. Change 485, 485 (1983-1984) (observing that every subsequent proposal for reform of child welfare system has drawn its vocabulary and central ideas from Goldstein, Freud, and Solnit's conceptual framework).
42. See Joseph Goldstein et al., Beyond the Best Interests of the Child (1973) [hereinafter Goldstein et al., Beyond the Best Interests]; Joseph Goldstein et al., Before the Best Interests of the Child (1979). For discussions of the influence of Goldstein, Freud, and Solnit, see Garrison, supra note 15, at 446-47 ("Every subsequent proposal to reform the child welfare system has drawn its vocabulary and central ideas from [the] framework [established by Goldstein, Freud, and Solnit]."); Nadine Taub, Assessing the Impact of Goldstein, Freud, and Solnit's Proposals: An Introductory Overview, 12 N.Y.U. Rev. L. & Soc. Change 485, 485 (1983-1984) (observing that every subsequent proposal for reform of child welfare system has drawn its vocabulary and central ideas from Goldstein, Freud, and Solnit's conceptual framework).
43. See Goldstein et al., Beyond the Best Interests, supra note 34, at 31; see also id. at 34 ("[C]ontinuity is a guideline because emotional attachments are tenuous and vulnerable in early life and need stability of external arrangements for their development.").
44. See id. at 7. For criticism of Goldstein, Freud, and Solnit's methodology, see infra note 99 and accompanying text.
45. Goldstein et al., Beyond the Best Interests, supra note 34, at 17-20.
46. Id. at 11.
47. See id. at 40-42.
48. See id. at 24-26. In addition, Goldstein, Freud, and Solnit critiqued the laws governing custody disputes in divorce, going so far as to argue that the "non-custodial parent should have no legally enforceable right to visit the child." Id. at 38. Interestingly enough, although the law was quick to embrace Goldstein, Freud, and Solnit's ideas regarding foster care, it never adopted their recommendations regarding divorce custody. See Garrison, supra note 15, at 453.
49. See Goldstein et al., Beyond the Best Interests, supra note 34, at 25.
50. Id. at 99.
51. See id. at 41-42 (noting that child's sensitivity to breaches in continuity is factor in determining "with what urgency the law should act"); see also id. at 101 (proposing model statute in which "trials and appeals shall be conducted as rapidly as is consistent with responsible decisionmaking").
52. In particular, New York, California, and South Carolina responded to the permanency movement. See Martha J. Cox & Roger D. Cox, A History of Policy for Dependent and Neglected Children, in Foster Care: Current Issues, Policies, and Practices, supra note 15, at 1, 21; see also Children's Defense Fund, supra note 8, at 161 (describing New York's early efforts). See generally Garrison, supra note 15, at 449-50 ("Goldstein, Freud, and Solnit's premises have strongly influenced recent state foster care legislation and several model acts dealing with termination of parental rights.").
53. Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 500 (codified in scattered sections of 42 U.S.C.). For a detailed discussion of the influence of permanency principles on the Child Welfare Act, see Judge Leonard P. Edwards, Improving Implementation of the Federal Adoption Assistance and Child Welfare Act of 1980, 45 Juv. & Fam. Ct. J. 3, 3 (1994).
54. S. Rep. No. 336, 96th Cong., 1st Sess. 1 (1979), reprinted in 1980 U.S.C.C.A.N. 1448, 1450. Permanency advocates also worked to alter the conception that certain children were "unadoptable." In particular, the permanency movement successfully changed the view that older, minority, or chronically ill children were "unadoptable." See Reid, supra note 29, at 383 (noting that some families are willing to adopt children who are not "readily adoptable"); see also Garrison, supra note 15, at 443-44 (discussing shift towards adoption of foster children).
55. 42 U.S.C. § 671(a)(15) (1994). For a further discussion of the provisions of the Child Welfare Act, see MaryLee Allen et al., A Guide to the Adoption Assistance and Child Welfare Act of 1980, in Foster Children in the Courts, supra note 10, at 575, 575-85. For detailed discussions of the much litigated "reasonable efforts" standard, see Debra Ratterman et al., American Bar Ass'n, Reasonable Efforts to Prevent Foster Placement: A Guide to Implementation 4 (2d ed. 1987); Alice C. Shotton, Making Reasonable Efforts in Child Abuse and Neglect Cases: Ten Years Later, 26 Cal. W. L. Rev. 223 (1989-1990); Rorie Sherman, Suits Seek to Reform Foster Care, Nat'l L.J., June 27, 1994, at A1.
56. 42 U.S.C. § 671(a)(15) (1994). For a further discussion of the provisions of the Child Welfare Act, see MaryLee Allen et al., A Guide to the Adoption Assistance and Child Welfare Act of 1980, in Foster Children in the Courts, supra note 10, at 575, 575-85. For detailed discussions of the much litigated "reasonable efforts" standard, see Debra Ratterman et al., American Bar Ass'n, Reasonable Efforts to Prevent Foster Placement: A Guide to Implementation 4 (2d ed. 1987); Alice C. Shotton, Making Reasonable Efforts in Child Abuse and Neglect Cases: Ten Years Later, 26 Cal. W. L. Rev. 223 (1989-1990); Rorie Sherman, Suits Seek to Reform Foster Care, Nat'l L.J., June 27, 1994, at A1.
57. 42 U.S.C. § 671(a)(15) (1994). For a further discussion of the provisions of the Child Welfare Act, see MaryLee Allen et al., A Guide to the Adoption Assistance and Child Welfare Act of 1980, in Foster Children in the Courts, supra note 10, at 575, 575-85. For detailed discussions of the much litigated "reasonable efforts" standard, see Debra Ratterman et al., American Bar Ass'n, Reasonable Efforts to Prevent Foster Placement: A Guide to Implementation 4 (2d ed. 1987); Alice C. Shotton, Making Reasonable Efforts in Child Abuse and Neglect Cases: Ten Years Later, 26 Cal. W. L. Rev. 223 (1989-1990); Rorie Sherman, Suits Seek to Reform Foster Care, Nat'l L.J., June 27, 1994, at A1.
58. 42 U.S.C. § 671(a)(15) (1994). For a further discussion of the provisions of the Child Welfare Act, see MaryLee Allen et al., A Guide to the Adoption Assistance and Child Welfare Act of 1980, in Foster Children in the Courts, supra note 10, at 575, 575-85. For detailed discussions of the much litigated "reasonable efforts" standard, see Debra Ratterman et al., American Bar Ass'n, Reasonable Efforts to Prevent Foster Placement: A Guide to Implementation 4 (2d ed. 1987); Alice C. Shotton, Making Reasonable Efforts in Child Abuse and Neglect Cases: Ten Years Later, 26 Cal. W. L. Rev. 223 (1989-1990); Rorie Sherman, Suits Seek to Reform Foster Care, Nat'l L.J., June 27, 1994, at A1.
59. See 42 U.S.C. § 671(a)(16) (1994).
60. See 42 U.S.C. § 675(5)(B), (C) (1994) (requiring review of child's case every six months and requiring hearing regarding permanent plan after 18 months).
61. Maas & Engler, supra note 28.
62. See Reid, supra note 29, at 383 ("[O]ne of the first priorities is to clarify each child's legal status and to sever parental rights in all situations where it is obvious that the parents will never take responsibility for the child.").
63. See id. at 393-94 (citing New York as example of state that passed TPR legislation permitting social agencies to petition for termination of parental rights whenever parents failed to visit their children for more than one year and evidence was produced of agency's attempt to work cooperatively with parents).
64. These advocates also pressed for legislation on the federal level, resulting in the enactment of the Child Welfare Act. See supra notes 44-45 and accompanying text.
65. See, e.g., Michael S. Wald, State Intervention on Behalf of "Neglected" Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan. L. Rev. 623, 690-700 (1976) (proposing specific state TPR legislation).
66. See, e.g., Children's Defense Fund, supra note 8, at 81-85 (setting forth priority issues to be addressed by state TPR legislation); National Comm'n on Children in Need of Parents, supra note 16, at 10 (criticizing lack of state legislation and proposing standards).
67. See Mark Hardin & Patricia Tazzara, A Comparison of Model Acts on Parental Rights Termination, 7 Fam. L. Rep. (BNA) No. 35, § 4, at 4025 (July 14, 1981) (summarizing nine model acts).
68. See generally North Am. Council on Adoptable Children, A Numerical Analysis of All Fifty-One State Termination of Parental Rights Statutes 1, 3 (on file with author) (analyzing 1993 statutory language). States continue to tinker with these statutes, adding new provisions and clarifying old ones. In 1994, 21 states modified already existing TPR legislation. See National Conference of State Legislatures, NCSL 1994 State Legislative Summary 67-69 (1994) (listing state legislation).
69. See, e.g., Hardin & Tazzara, supra note 56, at 4030 (listing "general considerations or goals" of nine model termination of parental rights acts).
70. See, e.g., Wald, supra note 54, at 667-72 (relying on Goldstein, Freud, and Solnit's theories in arguing harm of foster care drift); see also Hardin & Tazzara, supra note 56, at 4030 (describing general considerations of the National Council of Juvenile Court Judges Termination of Parental Rights Statute as including acknowledgment "that time perception of children differs from adults").
71. See, e.g., Wald, supra note 54, at 662 n.158 (citing the following studies: David D. Fanshel, The Exit of Children from Foster Care: An Interim Report, 50 Child Welfare 65, 68 (1971); Shirley Jenkins, Duration of Foster Care: Some Relevant Antecedent Variables, 46 Child Welfare 450, 451 (1967)).
72. See, e.g., Wald, supra note 54, at 662 n.158 (citing the following studies: David D. Fanshel, The Exit of Children from Foster Care: An Interim Report, 50 Child Welfare 65, 68 (1971); Shirley Jenkins, Duration of Foster Care: Some Relevant Antecedent Variables, 46 Child Welfare 450, 451 (1967)).
73. As of 1989, 16 states had established expedited tracks for terminating parental rights in special circumstances: Arizona, California, Georgia, Hawaii, Illinois, Iowa, Louisiana, Maine, Michigan, Minnesota, Montana, North Carolina, Oklahoma, Pennsylvania, Rhode Island, and Wisconsin. See Tommy Neal, National Conference of State Legislatures, Termination of Parental Rights app. A-1 (1989) (summarizing state TPR statutes); see also Kusserow, supra note 7, at 17-18 (detailing various state initiatives to improve efficiency of termination process).
74. As of 1989, 13 states had established time frames for completing the actual termination proceeding: Alabama, Arkansas, California, Florida, Iowa, Michigan, Missouri, Montana, Nevada, New Hampshire, Rhode Island, Tennessee, and West Virginia. See Neal, supra note 61, app. A-2 (summarizing state TPR statutes).
75. See, e.g., Cal. Weif. & Inst. Code § 361 (West 1984 & Supp. 1996); see also Kusserow, supra note 7, at 17 (describing California system).
76. See 2 Haralambie, supra note 5, § 13.17 (describing length-of-time-out-of-custody ground); Soler et al., supra note 2, ¶ 4.14[4][e] (same). New York calls this ground "permanent neglect." N.Y. Soc. Serv. Law § 384-b(7)(a) (McKinney 1992).
77. See Soler et al., supra note 2, ¶ 4.14[4][e].
78. See Ariz. Rev. Stat. Ann. § 8-533(B)(7) (Supp. 1995) (nine months or eighteen months, depending on parent's behavior during that time); Ark. Code Ann. § 9-27-341(b)(2)(A) (Michie Supp. 1995) (twelve months); Cal. Fam. Code § 7828 (West 1994) (one year); Del. Code Ann. tit. 13, § 1103(a)(5)(a)(1) (1993) (one year; six months for infant or if other factors are present); Ga. Code Ann. § 15-11-81(b)(4)(C) (1994) (one year); Ill. Ann. Stat. ch. 750, para. 50/1(D)(m) (Smith-Hurd Supp. 1996) (twelve months); Ind. Code Ann. § 31-6-5-4(c) (Burns Supp. 1996) (six months); Iowa Code Ann. § 232.116(1)(d), (e), (g) (West Supp. 1994) (six or twelve months, depending on certain factors); Kan. Stat. Ann. § 38-1585(a)(5), (6) (Supp. 1994) (one year if parent substantially neglects or willfully refuses to carry out reasonable plan; two years if parent fails to carry out reasonable plan and there is substantial probability that she will not carry out such plan in near future); La. Children's Code Ann. art. 1015(5) (West 1995) (one year); Me. Rev. Stat. Ann. tit. 22, § 4055(1-A)(E) (West Supp. 1995) (twelve months); Md. Code Ann., Fam. Law §§ 5-312(b), -313(a)(3) (1991 & Supp. 1995) (six months; one year); Mass. Gen. Laws Ann. ch. 210, § 3(c)(iv), (v) (West Supp. 1996) (twelve of last fifteen consecutive months if child four years or older; six of last twelve consecutive months if child younger than four); Minn. Stat. Ann. § 260.221(1)(b)(5)(i) (West Supp. 1996) (one year); Miss. Code Ann. § 93-15-103(3)(c) (1972) (one year); Mo. Rev. Stat. § 211.447(2)(3) (1994) (one year); Mont. Code Ann. § 41-3-410 (1995) (one year if parent substantially neglects or willfully refuses to remedy circumstances that cause child to be out of her custody; two years if parent is unable to remedy circumstances and there is substantial likelihood that she will not be capable of exercising proper and effective parental care and control in near future); Neb. Rev. Stat. § 43-292(7) (1993) (eighteen months); Nev. Rev. Stat. §§ 128.105, .109(1)-(2) (1957) (eighteen of any twenty-four consecutive months gives rise to presumption of ground that parent has demonstrated only token efforts to care for child; six months is evidence of ground of failure of parental adjustment); N.M. Stat. Ann. §§ 22A-5-15(B)(3), 32A-4-28(B)(3) (Michie 1995) ("extended period of time"); N.Y. Soc. Serv. Law § 384-b(4)(d), (7)(a) (McKinney 1992) (one year); N.C. Gen. Stat. § 7A-289.32(3) (1995) (twelve months); Ohio Rev. Code Ann. § 2151.414(E)(1) (Baldwin 1994) (six months); Okla. Stat. tit. 10, § 7006-1.1(A)(3) (Supp. 1995) (three months); Or. Rev. Stat. § 419B.504(5) (1995) ("extended duration of time"); 23 Pa. Cons. Stat. Ann. § 2511(a)(5) (1991) (six months); R.I. Gen. Laws § 15-7-7(1)(c) (Supp. 1995) (twelve months); S.C. Code Ann. § 20-7-1572(2) (Law. Co-op. 1976) (six months); Tenn. Code Ann. § 36-1-113(g)(3)(A) (Supp. 1995) (six months); Tex. Fam. Code Ann. § 161.001(1)(N) (West 1996) (one year); Utah Code Ann. § 78-3a-408(3) (Supp. 1996) (six months); Va. Code Ann. § 16.1-283(C) (Michie 1996) (twelve months); Wash. Rev. Code Ann. § 13.34.180 (West Supp. 1996) (six-month minimum; twelve months to give rise to rebuttable presumption that there is little likelihood that conditions that led to removal will be remedied so that child can be returned to parent in near future); Wis. Stat. § 48.415(2) (1993-1994) (one year; six months for child less than three years old).
79. See Hardin & Tazzara, supra note 56, at 4025-30 (listing length of time out of custody as ground in eight out of nine model acts discussed).
80. Wald, supra note 54, at 690.
81. See id. at 636-700 (proposing that termination be based on two factors: length of time child has been in foster care and likelihood that termination will harm rather than help child).
82. Id. at 691. It should be noted that Professor Wald included in his proposal extensive safeguards to protect against unwarranted termination. For further discussion of these safeguards, see infra notes 83, 112, 134, 141 and accompanying text.
83. See Okla. Stat. tit. 10, § 7006-1.1(A)(3) (Supp. 1995).
84. See Kan. Stat. Ann. § 38-1585(a)(6) (Supp. 1994).
85. See, e.g., Ariz. Rev. Stat. Ann. § 8-533(B)(7) (Supp. 1995) (requiring 18 months where parent is "unable to remedy the circumstances which cause the child to be in an out-of-home placement" but requiring only nine months where "parent has substantially neglected or willfully refused to remedy" those circumstances).
86. See, e.g., Del. Code Ann. tit. 13, § 1103(a)(5)(a)(1) (1993) (lowering length of time from one year to six months if child "comes into care as an infant"); Wis. Stat. § 48.415(2)(c) (1993-1994) (requiring one year for child of three years or older; six months for child less than three years old).
87. See, e.g., Del. Code Ann. tit. 13, § 1103(a)(5)(a)(1) (1993) (lowering length of time from one year to six months if there is history of previous placement, neglect, abuse, or lack of care; if parent has been convicted of felony involving child; or if parent is incapable of discharging parental responsibilities because of extended or repeated incarceration).
88. See, e.g., Ariz. Rev. Stat. Ann. § 8-533(B)(7) (Supp. 1995) (requiring cumulative total of 9 months or 18 months, depending on circumstances); Wis. Stat. § 48.415(2)(c) (1993-1994) (requiring cumulative total of one year or six months, depending on age of child); cf. Cal. Fam. Code § 7828(d) (West 1994) (placing child in custody of parent on nonpermanent, trial basis does not "interrupt the running of the one-year period").
89. N.Y. Soc. Serv. Law § 384-b(7)(a) (McKinney 1992); see also Va. Code Ann. § 16.1-283(C)(1) (Michie 1996) (requiring finding that parent "failed to maintain contact with and to provide or substantially plan for the future of the child").
90. Ariz. Rev. Stat. Ann. § 8-533(B)(7)(a), (b) (Supp. 1995); see also Mo. Rev. Stat. § 211.447(2)(3) (1994) (requiring finding that "conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist"); Okla. Stat. tit. 10, § 7006-1.1(A)(3)(d) (Supp. 1995) (requiring parent's failure to show that "the condition which led to the making of [finding of deprivation] has been corrected"); 23 Pa. Cons. Stat. Ann. § 2511(a)(5) (1991) (requiring finding that "conditions which led to the removal or placement of the child continue to exist"); Va. Code Ann. § 16.1-283(C)(2) (Michie 1996) (requiring finding that parent has been "unwilling or unable . . . to remedy substantially the conditions which led to the child's foster care placement").
91. See, e.g., N.Y. Soc. Serv. Law § 384-b(4)(d), (7)(a) (McKinney 1992) (allowing termination of parental rights in cases involving "permanently neglected" children where parent has or parents have continuously failed to maintain contact with or plan for future of child); Okla. Stat. tit. 10, § 7006-1.1(A)(3) (Supp. 1995) (allowing termination of parental rights where child is judged to be deprived due to acts or omissions of parent and where parent has failed to correct such condition); Va. Code Ann. § 16.1-283(C) (Michie 1996) (providing for termination of parental rights where parent has failed to maintain contact with child, to provide or plan for child's future, or to remedy conditions that led to foster placement).
92. See, e.g., Ariz. Rev. Stat. Ann. § 8-533(B)(7)(b) (Supp. 1995) (requiring finding of substantial likelihood that parent will not be capable of providing proper care in near future); Cal. Fam. Code § 7828(a)(2) (West 1994) (requiring finding that parents are likely to fail in future); Del. Code Ann. tit. 13, § 1103(a)(5)(a)(2) (1993) (requiring finding that conditions that led to foster care placement likely will not be remedied in near future to enable parent to properly discharge responsibilities); Mo. Rev. Stat. § 211.447(2)(3) (1994) (same); 23 Pa. Cons. Stat. Ann. § 2511(a)(5) (1991) (requiring that services available to parent will be unlikely to help remedy conditions that led to foster placement); Wis. Stat. § 48.415(2) (1993-1994) (requiring "substantial likelihood" that parent will not meet conditions necessary for return of child to home).
93. See Santosky v. Kramer, 455 U.S. 745, 768-70 (1982).
94. See 2 Haralambie, supra note 5, § 13.17 ("This ground addresses the problem of the parent whose rights cannot be terminated under other grounds but whose child would otherwise be relegated to the uncertain life of long-term foster care.").
95. See Ariz. Rev. Stat. Ann. § 8-533(B)(7) (Supp. 1995) (requiring finding that agency "has made a diligent effort to provide appropriate remedial services"); Ark. Code Ann. § 9-27-341(b)(2)(A) (Michie Supp. 1995) (requiring showing of "meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal"); Cal. Fam. Code § 7828(e) (West 1994) (requiring court to "make a determination that reasonable services have been provided or offered to the parents which were designed to aid the parents to overcome the problems which led to the deprivation or continued loss of custody"); La. Children's Code Ann. art. 1015(5)(c) (West 1995) (requiring showing that "department has made every reasonable effort to reunite the child with his parents"); Me. Rev. Stat. Ann. tit. 22, § 4055(1-A)(E) (West Supp. 1995) (requiring showing that "parents have been offered or received services to correct the situation"); Mass. Gen. L. ch. 210, § 3(c)(iv), (v) (Supp. 1996) (requiring showing that "parents were offered or received services intended to correct the circumstance and refused or were unable to utilize such services on a regular and consistent basis"); Minn. Stat. Ann. § 260.221 (b)(5) (West 1992) (requiring showing that "reasonable efforts have been made . . . to rehabilitate the parent and reunite the family"); Miss. Code Ann. § 93-15-103(3)(c) (1972) (requiring that "agency has made diligent efforts to develop and implement a plan for return of the child to its parents"); Neb. Rev. Stat. § 43-292(7) (1993) (requiring showing of parental failure "in spite of reasonable efforts and services to the parents ordered by the court or offered" by agency); Nev. Rev. Stat. § 128.109(3) (1957) ("The presumptions specified . . . must not be overcome or otherwise affected by evidence of failure of the state to provide services to the family."); N.Y. Soc. Serv. Law § 384-b(7)(a) (McKinney 1992) (requiring finding that agency has made "diligent efforts to encourage and strengthen the parental relationship"); N.C. Gen. Stat. § 7A-289.32(3) (1995) (presuming "diligent efforts" of agency); Ohio Rev. Code Ann. § 2151.414(E)(1) (Baldwin 1994) (requiring showing of parental failure "notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home"); Or. Rev. Stat. § 419B.504(5) (1995) (requiring "reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected"); R.I. Gen. Laws § 15-7-7(1)(c) (Supp. 1995) (requiring showing that "parents were offered or received services to correct the situation which led to the child being placed"); Tex. Fam. Code Ann. § 161.001(1)(N)(i) (West 1996) (requiring that agency make "reasonable efforts to return the child to the parent"); Utah Code Ann. § 78-3a-403 (Supp. 1996) (requiring showing of parental failure "notwithstanding reasonable and appropriate efforts" by agency to return child home); Va. Code Ann. § 16.1-283(C)(1), (2) (Michie 1996) (requiring showing of parental failure "notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies"); Wash. Rev. Code Ann. § 13.34.180(4) (West Supp. 1996) (requiring that services "have been offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided"); Wis. Stat. § 48.415(2)(b) (1993-1994) (requiring showing that agency "made a diligent effort to provide the services ordered by the court"). Some states require that courts consider the agency's efforts at reunification but do not make reasonable efforts an absolute prerequisite. See Kan. Stat. Ann. § 38-1583(b)(7) (1993) (requiring court to "consider . . . reasonable efforts by appropriate public or private child caring agencies"); Md. Code Ann., Fam. Law § 5-313(c)(1) (1991) (requiring court to "consider . . . the timeliness, nature, and extent of the services offered by the child placement agency to facilitate reunion of the child with the natural parent"); Mo. Rev. Stat. § 211.447(2)(3)(a), (b) (1994) (requiring court to "consider and make findings" on whether agency "made progress in complying" with terms of social service plan and success or failure of agency in its efforts "to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child");
96. See, e.g., In re Hanks, 553 A.2d 1171, 1179 (Del. 1989) ("[W]hen termination of parental rights is based primarily on the ground that a parent was unable to plan adequately for a child's needs 'the trial court is required to make appropriate findings of fact and conclusions of law as to the State's bona fide efforts to meet its own obligations.'" (quoting In re Burns, 519 A.2d 638, 649 (Del. 1986))); In re T.C., 522 N.W.2d 106, 108 (Iowa Ct. App. 1994) ("Reasonable efforts to reunite the parent and child are required prior to termination."); see also David J. Herring, Inclusion of the Reasonable Efforts Requirement in Termination of Parental Rights Statutes: Punishing the Child for the Failures of the State Child Welfare System, 54 U. Pitt. L. Rev. 139, 174 & n.102 (1992) (discussing In re Burns and citing other state cases that imply reasonable efforts standard).
97. See Herring, supra note 84, at 155-60 (noting different stages at which reasonable efforts requirement can be incorporated in state statutes); Shotton, supra note 47, at 226 (commenting that federal regulations do not specify when reasonable efforts determination must be made).
98. See supra note 26.
99. This Note uses the phrases "dependency process" and "dependency system" to refer to all stages of the state's supervision of a child who is under its custody for reasons of "parental misconduct or negligence, or other [parental] inadequacies." Soler et al., supra note 2, ¶ 4.01[1].
100. But see Herring, supra note 84, at 143-44 (arguing that such an incentive is weak); see also infra notes 147-51 and accompanying text.
101. See, e.g., Del. Code Ann. tit. 13, § 1103(a) (1993) (allowing initiation of termination "whenever it appears to be in the child's best interest" and other statutory ground exists); Mo. Rev. Stat. § 211.447(2) (1994) (requiring finding that termination is in "best interests of the child"); N.Y. Fam. Ct. Act § 631 (McKinney 1983) (allowing disposition to be made "solely on the basis of the best interests of the child"); Okla. Stat. tit. 10, § 7006-1.1(A)(3)(c) (Supp. 1995) (requiring finding that "termination of parental rights is in the best interests of the child"); 23 Pa. Cons. Stat. Ann. § 2511(a)(5) (1991) (requiring showing that "termination of the parental rights would best serve the needs and welfare of the child"); Va. Code Ann. § 16.1-283(C) (Michie 1996) (requiring finding that termination is "in the best interests of the child"). As of 1989, 41 states required that the court consider the best interests of the child in termination proceedings. See Neal, supra note 61, at 2.
102. See 2 Haralambie, supra note 5, § 13.31.
103. See infra notes 128-30 and accompanying text.
104. See Deborah Shapiro, Agencies and Foster Children 210-12 (1976) (explaining greater likelihood of black and Puerto Rican children remaining in foster care system); Anthony N. Maluccio, Biological Families and Foster Care: Initiatives and Obstacles, in Foster Care: Current Issues, Policies, and Practices, supra note 15, at 147, 148-49 (commenting that modern child welfare system is not much different than its nineteenth-century predecessor, which characterized immigrants as "dangerous classes" and was responsible for moving thousands of poor children of immigrants from streets of New York City to midwestern farms).
105. See Deborah Shapiro, Agencies and Foster Children 210-12 (1976) (explaining greater likelihood of black and Puerto Rican children remaining in foster care system); Anthony N. Maluccio, Biological Families and Foster Care: Initiatives and Obstacles, in Foster Care: Current Issues, Policies, and Practices, supra note 15, at 147, 148-49 (commenting that modern child welfare system is not much different than its nineteenth-century predecessor, which characterized immigrants as "dangerous classes" and was responsible for moving thousands of poor children of immigrants from streets of New York City to midwestern farms).
106. See Garrison, supra note 15, at 432-33 (reporting that "60-80% of the children in foster care come from families receiving public assistance, and almost all come from the bottom rung of the economic ladder" (footnote omitted)); Martin Guggenheim, The Political and Legal Implications of the Psychological Parenting Theory, 12 N.Y.U. Rev. L. & Soc. Change 549, 550 (1983-1984) ("[T]he overwhelming percentage of families who are involved in child protective proceedings - proceedings whose purpose it is to 'involuntarily' separate children from parents to 'help the children' - are poor and nonwhite.").
107. As one commentator has observed: [M]iddle and upper income families can obtain substitute care at the home of a friend or relative or at a boarding school, or they can employ services, such as day care or housekeeping assistance, that obviate the need for child care outside the home. But for the marginal family that cannot obtain such private services, public child care - foster care placement - is usually the only alternative. Garrison, supra note 15, at 433; see also Guggenheim, supra note 93, at 549 ("[F]amilies with adequate economic means manage to cope during crises without resorting to public institutions for support.").
108. See Carol B. Stack, Cultural Perspectives on Child Welfare, 12 N.Y.U. Rev. L. & Soc. Change 539, 543-44 (1983-1984) (noting varied forms of kinship support for children in Native American and African American communities).
109. See id. at 540.
110. See id. at 545-47. When a parent's rights are terminated, so too are the rights of the corresponding grandparents. See Soler et al., supra note 2, ¶ 4.14[2].
111. For a summary of criticism regarding the psychological parent theory, see Matthew B. Johnson, Examining Risks to Children in the Context of Parental Rights Termination Proceedings, 22 N.Y.U. Rev. L. & Soc. Change 397, 405-11 (1996).
112. See, e.g., Everett Waters & Donna M. Noyes, Psychological Parenting vs. Attachment Theory: The Child's Best Interests and the Risks in Doing the Right Things for the Wrong Reasons, 12 N.Y.U. Rev. L. & Soc. Change 505, 510-11 (1983-1984) (criticizing research on which Goldstein, Freud, and Solnit rely).
113. This notion traces its roots to the work of psychologist and psychoanalyst John Bowlby, who reframed attachment theory in terms of motivational, rather than psychoanalytic, theory. See Waters & Noyes, supra note 99, at 508-09. Contemporary attachment theory posits that children can maintain a number of significant attachments to caring adults. For an overview of studies reaching this conclusion, see Peggy Cooper Davis, The Good Mother: A New Look at Psychological Parent Theory, 22 N.Y.U. Rev. L. & Soc. Change 347, 354-62 (1996); see also Committee on the Family of the Group for the Advancement of Psychiatry, New Trends in Child Custody Determinations 80-81 (1980) (discussing importance of child's network of attachments as opposed to sole attachment to one psychological parent). Contemporary attachment theory highlights the environmental factors that may contribute to a child's response to separation. See Waters & Noyes, supra note 99, at 509-10. In addition, attachment theorists distinguish between the breaking of an existing bond with a parental figure and the lack of opportunity to ever form such a bond, arguing that the latter is more destructive and results in more problems later in life. See, e.g., Michael Rutter, Maternal Deprivation Reassessed 102-09 (2d ed. 1981).
114. This notion traces its roots to the work of psychologist and psychoanalyst John Bowlby, who reframed attachment theory in terms of motivational, rather than psychoanalytic, theory. See Waters & Noyes, supra note 99, at 508-09. Contemporary attachment theory posits that children can maintain a number of significant attachments to caring adults. For an overview of studies reaching this conclusion, see Peggy Cooper Davis, The Good Mother: A New Look at Psychological Parent Theory, 22 N.Y.U. Rev. L. & Soc. Change 347, 354-62 (1996); see also Committee on the Family of the Group for the Advancement of Psychiatry, New Trends in Child Custody Determinations 80-81 (1980) (discussing importance of child's network of attachments as opposed to sole attachment to one psychological parent). Contemporary attachment theory highlights the environmental factors that may contribute to a child's response to separation. See Waters & Noyes, supra note 99, at 509-10. In addition, attachment theorists distinguish between the breaking of an existing bond with a parental figure and the lack of opportunity to ever form such a bond, arguing that the latter is more destructive and results in more problems later in life. See, e.g., Michael Rutter, Maternal Deprivation Reassessed 102-09 (2d ed. 1981).
115. This notion traces its roots to the work of psychologist and psychoanalyst John Bowlby, who reframed attachment theory in terms of motivational, rather than psychoanalytic, theory. See Waters & Noyes, supra note 99, at 508-09. Contemporary attachment theory posits that children can maintain a number of significant attachments to caring adults. For an overview of studies reaching this conclusion, see Peggy Cooper Davis, The Good Mother: A New Look at Psychological Parent Theory, 22 N.Y.U. Rev. L. & Soc. Change
116. See, e.g., Garrison, supra note 15, at 444-46.
117. See id. at 444 (discussing guardianship orders and long-term foster care); Taub, supra note 34, at 491-92 (discussing permanent guardianship and open adoption). For a detailed description of long-term placement options, see generally Hardin, supra note 22, at 128-92.
118. 609 N.Y.S.2d 268 (App. Div. 1994).
119. See id. at 269.
120. See id.
121. See id. at 269-70.
122. See id. at 270.
123. See id. at 269.
124. N.Y. Soc. Serv. Law § 384-b(5) (McKinney 1992) requires a showing of actual or implied intent to abandon the child in order to terminate on the ground of abandonment. Although there had been extended periods where the mother did not maintain contact with the children, at the time of the termination proceeding she had reentered their lives. See Desire Star H., 609 N.Y.S.2d at 269.
125. See also St. Vincent's Services ex rel. Joseph Bernard H. v. Jean H., 621 N.Y.S.2d 664 (App. Div. 1995), a case involving a child initially placed in foster care because of his mother's alcohol abuse. The mother's rights were terminated under New York's length-of-time-out-of-custody statute because of her failure to overcome her alcohol problem and because she had only sporadically contacted her son, who had developed strong bonds with his foster parents with whom he had lived since infancy. See id. at 664-65.
126. In fact, one of the initial architects of the length-of-time-out-of-custody ground, Professor Wald, discouraged use of that ground when termination would be detrimental to a child because of a close parent-child relationship, a child is placed with a relative who does not wish to adopt, a child is in a residential treatment center but termination is not needed to place the child in a permanent family environment, or a "permanent placement is not feasible or desired by the child." Wald, supra note 54, at 691, 696-99, 706.
127. 581 N.Y.S.2d 11 (1992).
128. See id. at 12.
129. See id.
130. See id.
131. See id. at 13.
132. See id.
133. See id.
134. see id. at 13-14.
135. Id. at 14.
136. See Davis, supra note 101, at 349 n.11 (surveying such studies); see also Martin Guggenheim, The Effects of Recent Trends to Accelerate the Termination of Parental Rights of Children in Foster Care - An Empirical Analysis in Two States, 29 Fam. L.Q. 121, 135 (1995) (citing Juvenile Justice Standards Project, Institute of Judicial Admin.-ABA Joint Comm'n on Juvenile Justice Standards, Standards Relating to Abuse and Neglect, Standard 8.4 commentary at 173 (1981)).
137. See Santosky v. Kramer, 455 U.S. 745, 765 n.15 (1982) ("Even when a child's natural home is imperfect, permanent removal from that home will not necessarily improve his welfare."); see also Garrison, supra note 15, at 473 ("[T]he permanency program's solution to the problem of foster care drift will probably hurt the interests of foster children more than it will help them.").
138. See supra note 29; see also Cole, supra note 29, at 455 (noting that "majority of children who are adopted continue to be problem-free infants or preschool white children"); Guggenheim, supra note 122, at 134 n.29 (citing 1992 New York State report claiming that "the population of children awaiting adoption after termination includes many children who, because of their age and other characteristics, are unlikely ever to be adopted").
139. See Del. Code Ann. tit. 13, § 1103(a)(5)(a)(1) (1993) (reducing statutory length of time where child is an infant); Iowa Code Ann. § 232.116(1)(e), (g) (West 1994) (reducing statutory length of time where child is three or younger); Me. Rev. Stat. Ann. tit. 22, § 4055(2) (West Supp. 1995) ("In deciding to terminate parental rights, the court shall consider the needs of the child, including the child's age . . . ."); Mass. Gen. Laws Ann. ch. 210, § 3(c)(iv), (v) (West Supp. 1996) (reducing statutory length of time where child is younger than four); Wis. Stat. § 48.415(2)(c) (1993-1994) (reducing statutory length of time where child is younger than three). Other states, while not considering the age of the child, do consider the length of time the child has stayed in the current foster home. See Nev. Rev. Stat. § 128.108(4) (1957) (mandating consideration of length of time child has lived in "stable, satisfactory foster home"); R.I. Gen. Laws § 15-7-7(3) (Supp. 1995) (same); Utah Code Ann. § 78-3a-410(3) (Supp. 1996) (same).
140. See, e.g., Del. Code Ann. tit. 13, § 722(a) (1993) (requiring court to consider the "interaction and interrelationship of the child with his or her parents . . . or persons who may significantly affect the child's best interests"); Me. Rev. Stat. Ann. tit. 22, § 4055(2) (West Supp. 1995) (requiring consideration of child's attachment to "relevant persons"); Md. Code Ann., Fam. Law § 5-312(c)(2)(i) (1991) (requiring consideration of "child's feelings toward and emotional ties with the child's natural parents" and foster family); Mass. Gen. Laws Ann. ch. 210, § 3(c)(vii) (West Supp. 1996) (requiring consideration of child's "strong, positive bond with his substitute caretaker"); Miss. Code Ann. § 93-15-103(1) (1972) (requiring consideration of "strength of the child's bonds to his natural parents"); Mo. Rev. Stat. § 211.447(3)(1) (1994) (requiring consideration of "emotional ties to the birth parent" where appropriate and applicable to case); Nev. Rev. Stat. § 128.108(1) (1957) (requiring consideration of "love, affection and other emotional ties existing between the child and the parents, and the child's ties with the foster family"); N.M. Stat. Ann. §§ 32A-4-28(B)(3)(b), (c), -5-15(B)(3)(b), (c) (Michie 1995) (requiring showing that "parent-child relationship has disintegrated" and that "psychological parent-child relationship has developed between the substitute family and the child"); Ohio Rev. Code Ann. § 2151.414(D)(2) (Baldwin 1994) (requiring consideration of "interaction and interrelationship of the child with his parents, siblings, relatives, foster parents and out-of-home providers"); R.I. Gen. Laws § 15-7-7(3) (Supp. 1995) (requiring consideration of whether "child has been integrated into the foster family"); Tenn. Code Ann. § 36-1-113(h)(4) (Supp. 1995) (requiring consideration of whether "meaningful relationship has otherwise been established between the parent . . . and child"); Utah Code Ann. § 78-3a-410(1) (Supp. 1996) (requiring consideration of "love, affection, and other emotional ties existing between the child and the parents, and the child's ties with the foster family"). Note that some have challenged any direct comparison between the biological and foster parents on constitutional grounds. See, e.g., In re C.O.W., 519 A.2d 711, 713-14 (D.C. 1987) (considering appellant's argument that D.C. Code permitting comparison between natural and foster parents violates Due Process Clause of Fifth Amendment). Courts, however, have found that consideration of the child's bonds with the foster parent is permissible as long as it falls short of a "direct comparison" of the foster parent to the biological parent. See, e.g., id. at 714-15.
141. See, e.g., In re T.J.O., 527 N.W.2d 417, 421-22 (Iowa Ct. App. 1994) (considering child's bonds with foster parents and parents). See supra text accompanying note 90 for an explanation of the dispositional stage of the termination proceeding.
142. Robert H. Mnookin, Foster Care - In Whose Best Interest?, 43 Harv. Educ. Rev. 599, 619 (1973) (discussing best interests standard in context of initial removal of child from parental custody); see also Martin Guggenheim, The Best Interests of the Child: Much Ado About Nothing?, in Child, Parent, and State 27, 27 (S. Randall Humm et al. eds., 1994) (cataloging "defects" of best interests standard).
143. Robert H. Mnookin, Foster Care - In Whose Best Interest?, 43 Harv. Educ. Rev. 599, 619 (1973) (discussing best interests standard in context of initial removal of child from parental custody); see also Martin Guggenheim, The Best Interests of the Child: Much Ado About Nothing?, in Child, Parent, and State 27, 27 (S. Randall Humm et al. eds., 1994) (cataloging "defects" of best interests standard).
144. Peggy C. Davis, "There Is a Book Out . . .": An Analysis of Judicial Absorption of Legislative Facts, 100 Harv. L. Rev. 1539, 1541 (1987).
145. See id. at 1546-92.
146. Moreover, Professor Davis also has argued that "subtle, systemic factors" unique to the judicial role "are likely to produce bias in child protective decisionmaking." Peggy C. Davis & Gautam Barua, Custodial Choices for Children at Risk: Bias, Sequentiality, and the Law, 2 U. Chi. L. Sch. Roundtable 139, 143 (1995). Davis and Barua reject the notion that judges are intentionally biased, see id. ("We do not imagine decisionmakers as thoughtless libertarians or as arrogant paternalists."), and instead point to bias-producing elements in the structure of child welfare proceedings. They argue that "custodial decisions made at one stage of a child protective proceeding are likely to influence decisions at the next stage," id. at 146, that decisionmakers tend to prefer the status quo to change, see id. at 148-50 (citing empirical evidence regarding choice behavior), that "resource disparities often affect the extent to which the attention of the court is called to [relevant] facts and theories," id. at 150, and that judges' vulnerability to public feedback makes them more adverse to "a wrongful decision not to intervene [than] a wrongful decision to intervene," id. at 152. Applying these factors to a termination case predicts judicial bias in favor of termination. The judge would prefer the status quo of the child's remaining out of the parent's custody, the state would be likely to have more resources than the parent and thus be able to draw more attention to its evidence, and the judge would be more vulnerable to criticism about harm to the child that resulted from a decision not to terminate than a decision to terminate.
147. See Guggenheim, supra note 122, at 132 (presenting study of terminations and adoptions in Michigan and New York City); see also Peggy C. Davis, Use and Abuse of the Power to Sever Family Bonds, 12 N.Y.U. Rev. L. & Soc. Change 557, 566-67 (1983-1984) (reviewing study of 29 children, only 12 of whom were adopted); cf. Garrison, supra note 15, at 473 (noting that "termination of parental rights by no means ensures a child a more stable placement").
148. See supra note 122 and accompanying text.
149. See supra note 112 and accompanying text.
150. Guggenheim, supra note 122, at 135. Another commentator has gone slightly further, stating that "termination of parental rights is not a wise option unless there is a prospective adoptive parent available for the child." Patrick R. Tamilia, A Response to Elimination of the Reasonable Efforts Required Prior to Termination of Parental Rights Status, 54 U. Pitt. L. Rev. 211, 217 (1992).
151. See, e.g., Ariz. Rev. Stat. Ann. § 8-533 (1989 & Supp. 1995) (omitting consideration of likelihood of child's adoption in termination of parental rights); Del. Code Ann. tit. 13, § 1103 (1993) (same); Mo. Rev. Stat. § 211.447 (1994) (same); N.Y. Soc. Serv. Law § 384-b (McKinney 1992) (same); Okla. Stat. tit. 10, § 7006-1.1 (Supp. 1995) (same); Or. Rev. Stat. § 419B.504 (1995) (same).
152. One such advocate has included "the question of whether a child is adoptable" in a list of "barriers and delays" to freeing children for adoption, Kusserow, supra note 7, at ii, and has further noted that judges "frequently have more limited views of which children can be adopted than experience indicates is true," id. at 16.
153. For a discussion of the problem of "unadoptability," see supra note 29.
154. See Kusserow, supra note 7, at 16 (noting that "judges without experience in juvenile matters" may have misperceptions about which children can be adopted).
155. See supra note 29.
156. Professor Wald's original proposal included the requirement of maximum efforts to keep families together. See Wald, supra note 54, at 692. Professor Wald also advocated providing counsel and other procedural safeguards to parents. See id.
157. The Supreme Court has held that termination affects a fundamental liberty interest of the parent, thus triggering certain due process protections. See Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). The Court has held, for example, that parents are entitled to a hearing before they can lose custody. See Stanley v. Illinois, 405 U.S. 645, 658 (1972). The Court also has held that the state must prove its case in termination proceedings by at least "clear and convincing" evidence. Santosky, 455 U.S. at 748. Although the Supreme Court has refrained from entitling parents to a right to counsel in termination proceedings, it has suggested that parents should be given counsel in certain cases and that such determination should be decided on a case-by-case basis. See Lassiter v. Department of Social Servs., 452 U.S. 18, 31-32 (1981). See generally Soler et al., supra note 2, ¶ 4.14[3] (discussing constitutional protections for parents in termination proceedings). Although the Court has not decided the issue of whether reasonable efforts are constitutionally required, some commentators argue that under the test set out in Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), due process does not require the state to make reasonable efforts at family reunification. See, e.g., Herring, supra note 84, at 163-70 (discussing whether due process calls for reasonable efforts as precondition to termination of parental rights).
158. N.Y. Soc. Serv. Law § 384-b(1)(a)(iii) (McKinney 1992).
159. See 42 U.S.C. § 671(a)(15) (1994).
160. See Shotton, supra note 47, at 226 (discussing lack of guidelines for when judges should make reasonable efforts determinations).
161. Of the states that have length-of-time-out-of-custody statutes, Delaware, Georgia, Illinois, Indiana, Iowa, Montana, New Mexico, Oklahoma, Pennsylvania, and South Carolina do not have statutory reasonable efforts requirements. See supra notes 83-84.
162. Herring, supra note 84, at 143.
163. Id. at 195.
164. See id. at 204 ("In an ideal world, in conjunction with removing the reasonable efforts requirement from TPR statues [sic], state legislatures would enact child welfare statutes that require the courts to enforce the reasonable efforts requirement actively at all the key stages of a civil child protection proceeding prior to the TPR stage.").
165. Reliance on the court's consideration of whether future services realistically would lead to reunification as outlined by Herring would be a poor substitute for the prior provision of reasonable efforts. Requiring speculation about what might happen in the future asks the court to go beyond its already difficult task of balancing interests and become a prognosticator of future events. Besides demanding the near impossible, such a scheme opens up tremendous opportunity for judicial bias. Moreover, the fact that the parent had not been able to regain custody at the time of the termination hearing might weigh heavily in the court's future predictions even if such inability had been due largely to lack of reasonable efforts.
166. Herring claims that the "strongest argument for inclusion of the reasonable efforts requirement at the TPR stage is that, theoretically, it will provide an incentive for the child welfare agency to make reasonable efforts at every stage of a case." Herring, supra note 84, at 143. He rejects the argument that the reasonable efforts requirement provides such an incentive, however, "[s]ince only a small fraction . . . of the child welfare cases that enter the judicial system ever proceed to the TPR stage." Id.
167. See Garrison, supra note 15, at 428-29.
168. See, e.g., Shirley M. Vasaly, Foster Care in Five States 32 (1976). This study showed that in Iowa only 65%, and in Massachusetts less than 65%, of the biological mothers surveyed had been contacted by the child welfare agency in the previous six months. Id. Contacts between the agency and the parents drop sharply after the child had been in placement for one year. See Shapiro, supra note 92, at 73-75.
169. See, e.g., Alan R. Gruber, Foster Home Care in Massachusetts 49 (1973) (stating that 37.5% of parents reported that agency caseworker informed them that visiting their child was inappropriate).
170. See, e.g., In re Verona Jonice N., 581 N.Y.S.2d 11, 12 (App. Div. 1992) (finding that caseworker, by his own admission, failed to "do anything" to help mother obtain housing, despite her request for letter that would assist her in getting Section 8 housing); see also Shotton, supra note 47, at 248-49 (describing cases in which agencies failed to provide assistance in finding housing).
171. See, e.g., In re Amber "W", 481 N.Y.S.2d 886, 888-89, 890 (App. Div. 1984) (agency refused to allow mother to visit with her daughter on Christmas day); cf. Shotton, supra note 47, at 249-50 (citing study that found that frequency of visits was determined by "agency policy and resources, where the child is placed, the cooperation of the foster parents, and caseworker attitudes" and not by wishes of parents).
172. See, e.g., Amber "W", 481 N.Y.S.2d at 890 ("Although [the agency] did attempt to supply transportation, it located [the child] in minimally accessible homes.").
173. See, e.g., In re Sean "F", 547 N.Y.S.2d 938, 940-41 (App. Div. 1989) (agency failed to provide mother with "services to help her cope with her husband's alcohol abuse"); cf. Shotton, supra note 47, at 241-45 (discussing extent to which courts demand that agencies' reasonable efforts be specifically tailored to circumstances of individual case).
174. See, e.g., In re Kimberly "I", 421 N.Y.S.2d 649, 651 (App. Div. 1979) (finding that agency gave "little help" to biological mother).
175. See Shotton, supra note 47, at 223.
176. No state with a length-of-time-out-of-custody ground gives a comprehensive definition of what reasonable efforts entails. Some states, however, have outlined a few considerations. See, e.g., Me. Rev. Stat. Ann. tit. 22, § 4041(1) (West 1964) (requiring reunification plan that includes reasons for child's removal, necessary changes for child to return home, services available to parents, visitation schedule, and reunification timetable); Minn. Stat. Ann. § 257.071 (West Supp. 1996) (requiring case plan describing, among other things, reasons for child's removal, actions necessary to correct problems, and timetable); Wash. Rev. Code Ann. § 13.34.130(3) (West Supp. 1996) (requiring plan specifying steps to be taken to return child home); see also Kusserow, supra note 7, at 11 ("Few States have in statute a specific definition of what constitutes 'reasonable efforts to reunite.'"); North Am. Council on Adoptable Children, supra note 57, at 3 (reporting that six states have specific steps and time lines for reasonable efforts).
177. See Kusserow, supra note 7, at 11 ("Without such a definition, State agencies and courts are left without guidance concerning the legally adequate level of help which they must provide to families in order to guarantee that parental rights to due process have been met."); see also Shotton, supra note 47, at 225 (noting that lack of definition has been "significant obstacle" to successful implementation of child welfare reform).
178. See Shotton, supra note 47, at 227 ("[M]any judges simply ignore the reasonable efforts requirement or else make positive findings based on inaccurate or incomplete information."); cf. id. at 241 ("Many child welfare workers want to know what their duty under the reasonable efforts requirement is in engaging families to accept services.").
179. Edwards, supra note 45, at 13; see also Shotton, supra note 47, at 227 ("For many judges, determining whether reasonable efforts have been made involves little more than checking a box on a court form, with no discussion of the issue.").
180. See supra Part II.A.
181. Ohio Rev. Code Ann. § 2151.414(D)(2) (Baldwin 1994). Delaware also provides a list of factors to be considered in determining the child's best interests. See Del. Code Ann. tit. 13, § 722(a) (1993) (listing six relevant factors including desires of child's parents, desires of child, child's relationship with others in household, child's adjustment to her environment, health of all individuals involved, and prior and current actions of parents). Despite the benefits that the Delaware statutory criteria provide, they are somewhat problematic in that they are judicially implied from the state's custody-dispute statute. See In re Burns, 519 A.2d 638, 644 (Del. 1986) (holding that statutory criteria listed in Del. Code Ann. tit. 13, § 722(a) for the determination of child's best interests in custody action "apply with equal force" to termination proceeding). As a result, factors that are uniquely important in termination cases, such as the likelihood of the child's adoption, are not included among the criteria. Delaware and other states would benefit from a statutory scheme, such as that of Ohio, that tailors specific best interests criteria for consideration solely in termination proceedings. For examples of other state statutes that specify factors to be considered in the best interests determination, see, e.g., Me. Rev. Stat. Ann. tit. 22, § 4055(2) (West Supp. 1995) (requiring consideration of child's needs, including age, attachments to persons, periods of attachments and separation, ability to integrate, and physical and emotional needs); Md. Code Ann., Fam. Law §§ 5-312(c), -313(c) (1991) (requiring consideration of child's emotional ties and adjustment to current environment); Nev. Rev. Stat. § 128.108 (1957) (requiring consideration of child's emotional ties and comparison between natural and foster parents); R.I. Gen. Laws § 15-7-7(3) (Supp. 1995) (requiring consideration of child's needs, including level of integration into foster home); Tenn. Code Ann. § 36-1-113(h) (Supp. 1995) (requiring consideration of parent's actions and child's emotional needs); Utah Code Ann. § 78-3a-410 (Supp. 1996) (requiring consideration of child's emotional ties and relationship with parents and foster parents).
182. It should be noted, however, that a statute that permits comparison between the biological and foster parents might be subject to constitutional challenge. See supra note 126.
183. See R.I. Gen. Laws § 15-7-7(3) (Supp. 1995).
184. See id. § 15-7-7(7) (requiring also that state file report describing permanent plans for child).
185. see Cal. Welf. & Inst. Code § 366.22(a) (West Supp. 1996); R.I. Gen. Laws § 15-7-7(7) (Supp. 1995). In California, the court is required to direct the agency to prepare this assessment for a hearing that is held once a child has been in foster care for 18 months. See Cal. Welf. & Inst. Code § 366.22(b) (West Supp. 1996).
186. Cal. Welf. & Inst. Code § 366.22(b)(3) (West Supp. 1996).
187. Id. § 366.22(b)(4).
188. Id. § 366.22(b)(5).
189. The California statute does not require the court to consider the factors listed but only to order the child welfare agency to prepare a report evaluating such factors. In incorporating these or similar factors into a length-of-time-out-of-custody statute, a solution that would limit judicial bias more effectively would require the court itself to consider each factor.
190. Admittedly, such a design relies on agency caseworkers' willingness to place even "hard to place" children in adoptive homes and not label such children as "unadoptable." That the agency would have to report specific findings to the court, however, might ameliorate the problem of agency bias. Furthermore, agencies could develop policies to minimize bias and maximize the chances of adoption for children for whom it will be difficult to find adoptive parents. Some child welfare agencies, for instance, have developed criteria for identifying children whose parents' rights are most likely to be terminated. The agency can then work to place such children in potentially adoptive homes from the outset. See Linda Katz & Chris Robinson, Foster Care Drift: A Risk-Assessment Matrix, 70 Child Welfare 347, 347-49 (1991) (proposing method of identifying children who have least chance of returning to their families).
191. See, e.g., Del. Code Ann. tit. 13, § 1103(a)(5)(a)(1) (1993) (lowering length of time from one year to six months if child "comes into care as an infant"); Wis. Stat. § 48.415(2)(c) (1993-1994) (lowering length of time from one year for child of three years or older to six months for child less than three years old).
192. See Wis. Stat. § 48.415(2)(c) (1993-1994).
193. For an overview of the importance of the developmental stages developed by Erikson and Piaget to child abuse and neglect issues, see 2 Haralambie, supra note 5, §§ 24.01-.07.
194. See supra note 101; see also 2 Haralambie, supra note 5, § 24.06-.07 (giving overview of attachment theory and its application to child welfare cases).
195. See supra note 66.
196. The American Bar Association (ABA) has explicitly rejected time requirements under two years, concluding that parents would not reasonably be able to remedy their situation in less time. See Standards Relating to Abuse and Neglect, Standard 8.3 commentary at 167 (Juvenile Justice Standards Project, Institute of Judicial Admin.-ABA Joint Comm'n on Juvenile Justice Standards 1981). While two years may be an excessive amount of time in some instances - especially if the child was placed as an infant - the ABA's position suggests that three months may be too short.
197. See supra notes 162-64 and accompanying text.
198. For a discussion of the importance of tailoring reasonable efforts to the "strengths and needs" of the family, see Margaret Beyer, Too Little, Too Late: Designing Family Support to Succeed, 22 N.Y.U. Rev. L. & Soc. Change 311, 315-18 (1996). Beyer also emphasizes that the standard for returning the child to the home should be one of minimal adequacy, not optimality. See id. at 318-23.
199. For a discussion of these factors and others, see Ratterman et al., supra note 47, at 10-13. 185 Beyer also emphasizes the importance of "immediate and frequent" visitation in working towards reunification of the biological family. See Beyer, supra note 183, at 336. 186 See 45 C.F.R. § 1357.15(e)(2) (1986) (listing available services). Minnesota provides a good example of a statutory definition of reasonable efforts; Minn. Stat. § 260.012(b) (1992), which cross-references a specific list of services, contained in Minn. Stat. § 256F.03(5) (Supp. 1996), that may be provided, including counseling, life-management skills services, and mental health services.
200. See Herring, supra note 84, at 203-04.
201. See generally Edwards, supra note 45, at 19 (arguing for more active judicial involvement in enforcing reasonable efforts standards). 189 See, e.g., Linda Katz, Effective Permanency Planning for Children in Foster Care, 35 Soc. Work 220, 220 (1990) (describing model project that increased permanency in Washington and Idaho).
202. This is the case even in states that do not make reasonable efforts a prerequisite to termination because those states must still require reasonable efforts at reunification in order to receive federal funding.
203. See generally Peg McCartt Hess & Gail Folaron, Ambivalences: A Challenge to Permanency for Children, 70 Child Welfare 403 (1991) (describing ambivalence of caseworkers regarding reunification of child with parent).
204. See Soler et al., supra note 2, ¶ 4.06[4] (noting that primary decisionmaking power rests with agency).
205. See Theodore J. Stein, Child Welfare and the Law 60 (1991) ("Agencies recruit foster parents, license their homes, pay a board rate for each child placed in the home, generally provide training for foster parents, and offer services to help them deal with the children placed in their care.").
206. See supra notes 152-59 and accompanying text; see also Herring, supra note 84, at 180 n.117 (citing Federal Adoption Program: Hearing Before the Subcomm. of Human Resources of the House Comm. on Ways and Means, 102d Cong., 1st Sess. 79, 111 (1991) (report of Department of Health & Human Servs. Office of Inspector Gen., Barrier to Freeing Children for Adoption), as stating that more than 75% of respondents in state survey reported that primary barrier to permanency was failure of child welfare agencies to meet reasonable efforts standards).
207. See Robert Pear, Many States Fail to Meet Mandates on Child Welfare, N.Y. Times, Mar. 17, 1996, at A1 (quoting statistic from executive director of Child Welfare League of America that social workers often handle 50 to 70 cases each).
208. See Hess & Folaron, supra note 191, at 416-17 (noting that regulations and courts frequently do not provide agencies with timetables for case plans).
209. Paul Johnson & Katharine Cahn, Improving Child Welfare Practice Through Improvements in Attorney-Social Worker Relationships, 54 U. Pitt. L. Rev. 229, 236 (1992). Caseworkers also may delay filing termination petitions due to fear of the adversarial nature of the termination proceeding and the possibility that they will come under attack. See Herring, supra note 84, at 180.
210. 2 Haralambie, supra note 5, § 13.20 (discussing use of such strategy by attorney for petitioner).
211. See Johnson & Cahn, supra note 197, at 236 ("[W]ithout specific consequences for delay, parents who were making only minimal progress were able to obtain extensions [to their court-ordered plans] easily."). For a description of the foster care review hearing, see supra note 49 and accompanying text.
212. See Wendy Chavkin et al., Drug-Using Families and Child Protection: Results of a Study and Implications for Change, 54 U. Pitt. L. Rev. 295, 311 (1992) (citing Richard Famularo et al., Parental Compliance to Court-Ordered Treatment Interventions in Cases of Child Maltreatment, 13 Child Abuse & Neglect 507, 512 (1989)).
213. See Wendy Chavkin et al., Drug-Using Families and Child Protection: Results of a Study and Implications for Change, 54 U. Pitt. L. Rev. 295, 311 (1992) (citing Richard Famularo et al., Parental Compliance to Court-Ordered Treatment Interventions in Cases of Child Maltreatment, 13 Child Abuse & Neglect 507, 512 (1989)).
214. Id. at 297.
215. See id. at 297, 319-20.
216. Id. at 320.
217. See id. at 319 ("These problems are likely to be exacerbated by the uncertainty about continued custody of the child . . . ."). The fact that many caseworkers are not trained in alcohol and drug abuse treatment will also exacerbate those problems. See Elizabeth M. Tracy & Kathleen J. Farkas, Preparing Practitioners for Child Welfare Practice with Substance-Abusing Families, 73 Child Welfare 57, 57 (1994).
218. Professor Garrison suggests that guardianship and long-term foster care that permit visitation with the biological parent and other relatives may actually be preferable to outright termination. See Garrison, supra note 15, at 425 ("[A]vailable evidence suggests that, even for a child who will never again live with his natural parents and whose contacts with them are infrequent, permanent placement that permits continued contact is better than adoption or any other placement that entails a total loss of contact with the natural parent."). Garrison argues that such an arrangement could be made permanent by foreclosing the possibility of the parent regaining custody or the foster parent relinquishing custody without a court order. See id. at 444 & n.103.
219. This reasoning assumes that the state requires a showing of reasonable efforts as a prerequisite to termination, as recommended in Part II.C.
220. Moreover, the provision of services might in and of itself provide a strong counter-vailing force against possible allegiance to the foster family and ambivalence toward the biological parents. Not only would the agency, in spite of any ambivalence it had towards the parent, be obligated to provide reasonable efforts earlier on, but also in so doing it might develop a loyalty to the parent. If the parent responded to the early provision of services, the agency would have reason to reconsider its ambivalence about the parent rather than simply to write her off.
221. Such a division is unlikely to eliminate all conflicting incentives, however. Even if the tasks of family preservation and termination of parental rights were divided within the agency, at the supervisory level the agency would have to take on both roles.
222. It should be noted here that even though the possibility of a stable environment would remain for the child where the agency let a case slip through the cracks, this would not lessen the incentive for the agency to provide reasonable efforts early on. Failing to file a termination petition where the agency deemed it necessary clearly would be an error. Caseworkers and lawyers who allowed this to occur likely would be censured by their supervisors and the court.
223. As an initial matter it bears mentioning that although parents in termination cases are not automatically guaranteed representation by counsel, see Lassiter v. Department of Social Servs., 452 U.S. 18, 31-32 (1981), courts should appoint counsel in almost every case for the reasons discussed in this section.
224. See Soler et al., supra note 2, ¶ 4.06[1] (concluding that children have no such constitutional right by analogizing to Lassiter).
225. See id.
226. This argument presumes that the lawyer for the child will not act in an unethical manner by allowing any personal biases she holds for or against the biological parent to affect her representation of her client. A great deal has been written recently on the ethical role of the lawyer for the child in child-protection proceedings. See, e.g., Special Issue, Ethical Issues in the Legal Representation of Children, 64 Fordham L. Rev. 1279 (1996) (presenting more than 20 articles regarding legal representation of children). The issues involved in the ethical representation of the child-client are numerous and complex. For instance: Should a lawyer ever be able to substitute her own judgment for the wishes of her child-client? What if the child is preverbal or otherwise impaired in a way that makes her unable to express her wishes to her lawyer? What if the child can verbalize her wishes, but the attorney believes that they are the result of immature thinking or coercion by another party? What is the scope of positions for which an attorney is legally permitted to advocate in a given situation? This Note does not attempt to resolve these intricate questions, which have been debated at length in other forums. Rather, it merely suggests the useful role that a generally unbiased lawyer for the child can serve in encouraging reasonable efforts in the context of the time-cap model.
227. Commentators have pointed out that "[m]uch of the work of the attorney [for the child] in dependency cases is done outside of the courtroom." Soler et al., supra note 2, ¶ 4.06[4]. Nevertheless, resort to the court can be necessary to ensure that services are provided. See id. ¶ 4.07[3]. One forceful exposition of the child's need for a lawyer early on in the placement states: [T]he child's attorney should make intensive efforts on behalf of the child as soon as the case is initiated. Too often, a meaningful attempt to champion the child will not be made until the end of the proceeding. By that time, the state may have moved to terminate parental rights and it may be too late to obtain a favorable result for the child. From the child's viewpoint, then, early resolution of the matter is essential. Successful early advocacy for the child-client can obviate the need for intensive, and often unavailing, late efforts. Id. ¶ 4.01[1] (citation omitted).
228. Id. ¶ 4.06[1].
229. See id. ¶ 4.06[2] (highlighting potential for conflict of interest where child is represented by lawyer for agency); see also Christopher N. Wu, Conflicts of Interest in the Representation of Children in Dependency Cases, 64 Fordham L. Rev. 1857, 1865-68 (1996) (pointing to two jurisdictions, California and Oregon, which allow dual representation of agency and child in dependency cases, and discussing potential conflicts of interest that might arise from such rule).
230. In fiscal year 1994, $2,898,862,000 was awarded under Title IV-E to support children in foster care. See Facsimile Transmission from Jim Rich, Administration for Children & Families, Office of Program Support, Department of Health & Human Services, to Peter Rosenthal, Staff Editor, New York University Law Review 2 (Sept. 10, 1996) (on file with the New York University Law Review).