Relative Placement Preference Under ASFA

Published Date Written by Erik L. Smith

In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513. Decided October 25, 2006.


The child was born abused and dependent and placed with foster parents when two weeks old. The foster parents had a "foster-to-adopt" license. [1] No relative named by the parents wanted custody. At that time, the parents did not mention the married, paternal grandfather. When the parents did not satisfy the case plan, a permanent custody hearing was scheduled. The paternal grandfather and his wife learned of the child when she was six months old, visited her monthly for five months, and then moved for custody. The juvenile court considered that placement possibility, but concluded that the child's best interest demanded the child remain in foster care, even though the grandfather and his wife could provide a legally secure placement. [2] The juvenile court relied strongly on R.C. 2151.414(D)(1), requiring the court consider the child's interactions and relationships with relatives, foster caregivers, and others. The juvenile court granted permanent custody to the agency, concluding that because the child had "developed a very strong bond and attachment with his foster parents," it was "in the child's best interest for permanent custody to be granted so that the placement of the child in the current foster home can be maintained." [3]


The Appellate Court held that the trial court did not properly consider placement with the grandfather, and should have extended temporary custody to let him and his wife keep visiting. [4] The Appellate Court focused on factor (D)(4) of R.C. 2151.414: "The child's need for a legally secure permanent placement and whether that placement can be achieved without a grant of permanent custody to the agency." [5]


The Ohio Supreme Court reversed, holding that R.C. 2151.414 did not require the juvenile court to find by clear and convincing evidence that no suitable relative was available for placement. Rather, the statute required weighing all of the statutory factors, without needing to give special weight to any of them. [6] The juvenile court considered the grandparent placement, but found factor (D)(1), relating to the child's relationship with the foster parents and relatives to be most significant, and that keeping the child with the foster parents would best serve the child's interests. [7] Moreover, none of the relatives the parents named at the time of the removal wanted custody. [8] Thus, the juvenile court properly considered all of the R.C. 2151.414(D) factors in determining the child's best interest. [9]



I disagree. The Supreme Court ignored 42 U.S.C. 671(a)(19) of the Federal Adoption and Safe Families Act (AFSA): "The State shall consider giving preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards." [10] ASFA applies to juvenile custody proceedings in state courts. Because states must incorporate ASFA to receive federal funding, the Act's requirements are fundamental and need not be independently raised by the parties.


Nothing limits (a)(19)'s application to the initial removal placement. The purpose of the relative preference under ASFA, before and after permanent custody, is to help keep children from becoming too attached to their unrelated foster family, especially when the child is placed at a very young age. [11] And R.C. 5103.161 requires the agency consider giving preference to a relative when determining an adoptive placement, after finding that the placement would be in the child's best interest. Clearly, then Section (a)(19) applies at all stages of the proceeding, not just at the initial temporary custody decision.


Accordingly, neither the juvenile court nor the agency can determine that the child's best interest require the child remain with the foster parents so that the "placement of the child in the current foster home can be maintained." Rather, the decision must be based on the child's best interest after having considered the preference for the relative placement. Nothing in Schaefer showed the agency and the juvenile court having considered a preference for the grandparents who had a relationship with the child. Instead, the Supreme Court concluded that the juvenile court properly applied and interpreted R.C. 2151.414.


R.C. 2151.414 does not address a relative placement "preference." The juvenile court did not find the grandfather or his wife unqualified for a placement under state standards. Because 2151.414 requires only that the child's interactions with relatives be considered, without contemplating a placement preference, the statute subverts ASFA.



The congressional intent behind ASFA is clear. Section (a)(19) states not just that the state shall consider a relative placement, but shall consider a relative placement "preference." If a court need give no special weight to factor (D)(4) or to a relative placement preference, then continuity of care will almost always defeat suitable relatives where the child has been in foster care for a year, despite the relatives trying to form a relationship with the child and to keep her in the family, as ASFA intends. That makes the "preference" language of (a)(19) superfluous and instead establishes a preference for foster parents. A preference is not a preference if a court need only consider a "placement." To give (a)(19) purpose, it must mean that placement with a suitable relative, where timely available, best serves the child, especially where the child is a year old or less and has a relationship with the relatives. The relative placement was timely available here. The child was only a year old and was forming a significant relationship with her suitable relatives.


The court strongly emphasized that the parents did not suggest the grandparents initially. But the relative placement preference should still have existed after the child was a year old and the relative had been forming a relationship with the child for several months. Fulfilling the intent of (a)(19) required, at the very least, extending temporary custody to foster that growing relationship. Instead, the agency sought permanent custody so an adoption could occur. Justice required the trial court assume at least a rebuttable preference for the grandparent placement.


And we cannot ignore the reality of the initial questioning of the parents. It cannot be too surprising that parents who are shamed, traumatized, or emotionally unaffected by the removal of their children do not immediately name a willing relative. And an agency truly considering a relative placement preference would ask about both sets of grandparents when taking initial custody. Even if AFSA only intends for state courts to "consider" a preference, nothing showed that the juvenile court did that, as opposed to considering just a "placement."


The following evil lurks: The state removes an abused child from the parents near or at birth, relying solely on the parents word at the time about suitable relatives instead of inquiring about grandparents. To encourage foster care participation, the state lets individuals get foster-care-to-adopt licenses. If no suitable relative appears right away, the foster parents can rely on the continuity of care factor to ensure an adoption, as no preference will be given to suitable relatives thereafter. Both the State and the foster parents are motivated to achieve adoption rather than placement with a suitable family member.


The Supreme Court essentially held that R.C. 2151.414 satisfied ASFA. But the purpose of the relative preference under ASFA, before and after permanent custody, is to help keep children from becoming too attached to their unrelated foster family, especially when the child is placed at a very young age. [12] Here, the child became overly attached to the foster parents due precisely to having been placed at a very young age. The juvenile court and the agency then disregarded the relative placement preference for that reason. Because that opposes the purpose of the preference consideration under ASFA and because no relative preference is incorporated into R.C. 2151.414, I disagree with the decision. 

Schaefer, at par. 15. 
Id., at pars. 20-23. 
Id., at pars. 23 and 56. 
Id., at pars. 28-29. The Appellate Court also considered whether a least restrictive alternate to termination of parental rights should have been considered. I do not deal with that issue. 
Id., at par. 54, 56. 
Id., at par. 63. 
Id., at par. 56. 
Id., at par. 64. 
Id., at pars. 64-65. 
42 U.S.C. 671(a)(19). 
See, T.F. v. D.F.S., 120 P.3d 992 (Wy. 2005) at par. 26 citing Smith v. Organization of Foster Families, 430 U.S. 816 (1977). 
See, T.F. v. D.F.S., 120 P.3d 992 (Wy. 2005) at par. 26 citing Smith v. Organization of Foster Families, 430 U.S. 816 (1977). 

The Ohio Putative Father Registry–the WHAT?

I am a single man. Yet I had been in Ohio for over a year before hearing of the Ohio Putative Father Registry, and then only in a Probate Law class. The professor was covering how a child could be adopted without the birth father's consent. "ORC 3701.061: A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section 3107 of the Revised Code." That section required the man sign the Putative Father Registry within thirty days after the birth to get notice of the adoption.


Ohio Putative Father Registry: The Basics

Unwed fathers are entitled to notice of petitions to adopt their biological children. Yet many fathers lose this right by not registering timely with the Ohio putative father registry (PFR).1R.C. 3107.062. Because adoptions are probate proceedings, lawyers practicing juvenile, domestic relations, or traditional probate law may not understand how the Ohio PFR applies.  At initial consultations then, attorneys may omit counseling fathers about the registry and refer them to attorneys with more specialized experience. But the strict registration deadline, and often unknown deadline date, demand that the father register immediately. Thus the attorney should consider counseling the client about the PFR and help him register that day before referring him. This article gives the information needed to do that.

Preventing Your Infant Child From Being Adopted Without Your Consent


Consult an adoption law or family law attorney. Otherwise: An unwed father has no absolute right to veto an adoption. You must take action to preserve your rights. Whether the mother is considering adoption or not, an unwed father should, as soon as possible and preferably before the birth:

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