November/December 2001Vol. 2, No. 6Federal Court Rules that Children May Sue Under ASFA

A Federal court has ruled that a child in foster care may sue a State for failing to start adoption proceedings for the child within the timeframes specified by the Adoption and Safe Families Act.

In his June 25, 2001, decision, Hon. Rudolph T. Randa of the U.S. District Court of the Eastern District of Wisconsin found that children in foster care have enforceable Federal rights under the Federal Adoption and Safe Families Act of 1997 (ASFA).

ASFA provides generally that any child who has been in foster care for 15 of the most recent 22 months is entitled to State action on behalf of the child, by seeking an adoptive home and filing a petition terminating parental rights or by making an exception if termination of parental rights is not in the child's best interest. Despite Wisconsin's contention that ASFA provisions were too vague to be judicially enforceable, the judge ruled that the rights to initiate the adoption process in accordance with ASFA are within the competency of the Federal courts to enforce.

The class action lawsuit, Jeanine B. v. Scott McCallum, was brought by Children's Rights, a national non-profit advocacy group for children, and the ACLU of Wisconsin Foundation. According to the Children's Rights press release, as many as 75 percent (5,138) of the approximately 6,850 children in the custody of Bureau of Milwaukee Child Welfare have been in foster care more than the required 15 months, but the State prepares few cases for adoption as required by ASFA.

Changes are currently underway in the administration of the Milwaukee County child welfare system to address some of the problems raised in this case. In two May press releases, Susan Dreyfus, Administrator of the Wisconsin Division of Children and Family Services, announced the transition of responsibility for the child welfare services in Milwaukee County from the Milwaukee County Department of Human Services to four community non-profit agencies. One of the agencies, Children's Service Society of Wisconsin, will assume responsibility for completing timely, quality adoptions for children whose parents have had their parental rights terminated. Contracted agencies hired staff over the summer and completed the transition September 30.

"I am confident that the selected agencies are up to the task," said Dreyfus. "These agencies share hundreds of years of child welfare experience in Milwaukee County and Wisconsin. They are totally dedicated to high performance on behalf of our children and bring a breadth and depth of management experience."

Access a copy of the Federal case law at a local law library or online through paid subscription to Westlaw.com or Lexis.com.

For the text of the Adoption and Safe Families Act (P.L.105-89 visit Thomas, a service of the Library of Congress (http://thomas.loc.gov).