Introduction

When children come into foster care, their lives are turned upside down. Children often change schools, communities, friends, and homes. Little children miss out on crucial bonding time with their parents and teenagers struggle with the lack of a home while dealing with all the difficulties of being a teenager. Children need permanency and stability. It is vital to their growth, proper development, and mental health. They need to know a roadmap for the future, and they need to have a place where they belong.

Permanency can mean returning to their home if it is safe, adoption, or other arrangements like a permanent guardianship. The problem is that it takes time to find a solution. Leaving a child in foster care for months or years can be detrimental to their development and lead to higher rates of crime, teen pregnancies, and mental health issues, as well as lower performance in school and lower economic success.[i]

To encourage a faster resolution, the federal Adoption and Safe Families Act (ASFA) established a timeline for permanency for children in child protection cases. If a child is in the custody of the state for 15 of the most recent 22 months, then the state shall file for termination of parental rights.[ii]

Until last legislative session, Idaho’s statutes mimicked this timeline. The Child Protective Act (CPA) was amended to shorten the timeframes to file for termination of parental rights from 15 months to 12 months.[iii] Review hearings were increased from a minimum of every six months to every two months.[iv]

Whether these changes will result in a reduction in timelines and faster permanency for children remains to be seen.

Permanency Options

In Idaho, the Child Protective Act prioritizes permanency for children. In part, the Act’s policy is to “take such actions as may be necessary to provide the child with permanency.”[v] Permanency is not defined in Idaho statute but a permanency plan is a plan for a child’s continuous residence and maintenance of nurturing relationships during the child’s minority.[vi] Permanency for children is most typically achieved through reunification with the family, termination of parental rights and adoption, or permanent guardianship.

Child protection cases start when a child is in danger of abuse, neglect, abandonment, or an unstable home. A petition for jurisdiction is filed, and one or more evidentiary hearings are held to determine if the court has jurisdiction. [vii] The court then orders a case plan for the parents to follow to eliminate concerns regarding the child’s welfare and best interests.[viii] If those concerns can be eliminated, reunification occurs and the child is returned home (usually in phases) and the case is dismissed. 

If a child cannot be safely returned home, then the court must consider another permanency option, like adoption or guardianship.

An adoption occurs when a child’s parents cannot improve the situation at home so that the court can safely return the child to the parents’ care. A trial is held to determine if there are grounds to terminate the parents’ parental rights and if it is in the child’s best interests to do so.[ix] One of the grounds for termination of parental rights is if the parents have not complied with the case plan and the child has remained in the care of the state for longer than 15 of the past 22 months.[x] If termination is granted, the child is then eligible for adoption.

Guardianships occur when alternative arrangements are made to return the child to the home, but a parent does not lose their parental rights to the child. 

Barriers to Timely Permanency

One of the major reasons for ASFA was to promote more timely permanency for children. After more than 20 years, evidence shows a clear shift to more adoptions than reunifications after a child has been in the care of the state for at least 17 of the most recent 22 months.[xi]

Despite the federal law, permanency, as a goal, has been difficult for many states to achieve. As of 2021, only seven states were had timely termination of parental rights trials as a strength in their cases.[xii] Historically, Idaho had almost 70 percent of its cases filed within seventeen months of a child’s removal from a home.[xiii] Timely permanency can be hard to achieve due to many factors, including: the individual nature of the cases; if the parents have been diligently working on the case plan; shortages in services; busy court calendars; and local practices.[xiv]

While the shortening of timeframes is a step toward faster permanency, Idaho still faces various barriers to actually reducing the time it takes to achieve permanency for a child. Recent changes to Idaho Code may not be enough.

Court Calendars Are Busier 

With court hearings going from a minimum of once every six months to once every two months, child protection calendars have gotten a lot busier which delays termination of parental rights trials. The time saved by filing for termination at 12 months instead of 15 months quickly gets eaten up by the longer waiting periods for scheduling a trial.   

Timelines Are Not Consistent

While the legislature shortened the timeframes for filing for permanency for the child, they did not change the timeframes for filing for termination of parental rights.

In the Child Protective Act, the Department of Health and Welfare must file for termination if the child has been in the custody of the department for 12 of the most recent 22 months.[xv] However, the petition to terminate parental rights has to be filed prior to the last day of the 15 month.[xvi] The amended statute originally stated that filing was based on the child being in care for 15 months and that the petition had to be filed on the last day of the 15^th month.[xvii] So, in effect, the timeline in CPA cases did not actually change. 

The grounds for termination did not change. 

Time in foster care alone, is not grounds for termination of parental rights. There has to be a showing of the parents’ failure to comply with the court’s orders.

A ground for termination of parental rights may be if the parent neglects the child by not complying with the case plan and the child has been in the state’s care fifteen of the past 22 months and has not returned to the care of the parents by the filing of the petition.[xviii] The statute was amended to define neglect as the parent has failed to comply with the court’s orders, the child has been in the custody of the department for 12 of the most recent 22 months, and reunification has not occurred by the last day of the 15 month in which the child has been in custody.[xix] What this means in actuality is that the child has to wait 15 months for termination to take place to meet this basis for termination even though a petition for termination has to be filed at 12 months. Therefore, there is no change to the previous timeframe. 

Even if the statutes were amended to match the 12-month timeframe, other states have seen less than impressive results from faster termination provisions. Some states report that expedited processes were rarely used in practice. Other researchers have found that expedited adoption provisions have little impact in practice because of their infrequent use.[xx] So it remains unclear whether the shorter timeframes will reduce the time it takes to achieve permanency for a child.

More Contested Trials and Appeals 

Reducing the timeframe for termination of parental rights is not without controversy. There remains consistent debate across the nation regarding permanency for children in CPA cases.[xxi] Do child protection cases move too fast or too slow? Do they cause more harm than good? Do they give enough opportunities to parents to reunify with the child? The debate can be nuanced and long. Idaho has many decades of precedent related to grounds for termination and the best interests of a child on a 15-month timeline. Accelerating the termination schedule to 12 months without adjusting the grounds for termination to match sends mixed signals to the magistrates. It will likely result in increases in the length of trials, as well as increased appeals, which can greatly delay permanency for children. Even if all the statutes match the 12-month timeframe, Idaho can expect more delays in permanency from more contested trials and more appeals. 

Delays in Services

The shorter timeframes to termination of parental rights will likely exacerbate problems caused by parents having long waits for supportive services. Throughout the state, wait lists for counseling, therapies, drug treatment, and other services are often very long. This can delay necessary services that would assist families with reunification within a fifteen-month timeframe. At best, the reduced timeframe leaves very little room for parents to make any mistakes during a case if they want to reunify their family.

Overusing Exceptions 

One aspect of the ASFA and Idaho statute is that termination can be delayed if there are compelling reasons to do so.[xxii] This is meant to account for the individual nature of cases and allow for flexibility. But this is the exception.

Busy court calendars and scarce resources may make many attorneys and magistrates uncomfortable shifting from fifteen months to twelve months before filing for termination, causing them to rely more on the compelling reason exception.

More specific criteria and even statutory limits on extensions could be a solution to relying too heavily on the compelling reason exception. For example, Utah has a formal process for seeking an exception to its timeframe for termination. Utah has a timeframe of only twelve months to file for termination but allows only two extensions on this timeframe of up to three months each.[xxiii] In contrast, neither Wisconsin nor Illinois have written guidance on exceptions and both states have high variability in permanency timeframes at the local level.[xxiv] To compare, Utah has a much higher percentage of cases that end in permanency within seventeenth-months than Illinois or Wisconsin.[xxv]

In Idaho, exceptions for compelling reasons exist but Idaho does not have any limit on how many times a court can find compelling reasons in a child protection case. Therefore, the use of extensions on timeframes for termination is in each judge’s discretion and may be overused if a judge is uncomfortable with the shorter timeframes for permanency.

Conclusion

Idaho’s recent change to timeframes for permanency in child protection cases is a clear attempt to reduce the time that children are in the care of the state and lead to faster permanency options for children. While there is some precedent to expect that this change will lead to permanency through adoption sooner, the recent changes may not actually decrease the timeframe for permanency for children due to other factors in these cases. Court calendars have only gotten busier and trial dates are set further out. Additionally, the changes to the statutes are not uniform. Federal and state precedent and local practices will likely be another barrier to speeding up permanency for children. These shorter timeframes will lead to smaller windows of opportunity for parents to utilize supportive services during their cases. These factors may prompt more use of the compelling reasons exception to delay termination of parental rights. If Idaho wants to see faster permanency outcomes in child protection cases, some adjustments will need to be made, like making the twelve-month timeframe uniform across the entire Child Protective Act and more restrictions or uniform guidance on how and when exceptions to the timeframe may apply.

This article does not reflect the legal position of the Office of the Attorney General of Idaho.

Jason Chandler graduated from the University of Utah in 2015. He has a master’s degree in public administration and Juris Doctor. He has worked in the Bingham County Prosecutor’s Office and currently works in Pocatello as a Deputy Attorney General. He lives with his wife and four children in Blackfoot.

[i] Berger, Cancian, Noyes, Permanency and the Educational and Economic Attainment of Former Foster Children in Early Adulthood, 3 Am. Sociological Rev. 83(4) (2018).

[ii] Adoption and Safe Families Act, 42 U.S.C. § 675(5)(e) (1997).

[iii] Idaho Code § 16-1622(g). 

[iv] Idaho Code § 16-1622(a).

[v] Idaho Code § 16-1601(3).

[vi] Idaho Code § 16-1602(34).

[vii] Idaho Code §§ 16-1603; 16-1615; 16-1619.

[viii] Idaho Code § 16-1621.

[ix] Idaho Code § 16-1601(3).

[x] Idaho Code § 16-2002(3)(b).

[xi] U.S. Dept. of Health and Human Services, Freeing Children for Adoption within The Safe Families Act Timeline, Part 1:8 (February 11, 2021), available at: https://aspe.hhs.gov/reports/freeing-children-adoption-within-adoption-safe-families-act-timeline.

[xii] Id. at 4. 

[xiii] Id. at 5. 

[xiv] Id. at 1. 

[xv] Idaho Code § 16-1622(g).

[xvi] Id.

[xvii] H.R. 1090, 68th Leg. (Idaho 2025).

[xviii] Idaho Code §§ 16-2002(3)(b)(iii); 16-2005(1)(a)(ii). 

[xix] Idaho Code § 16-2002(1)(b).

[xx] U.S. Dept. of Health and Human Services, Freeing Children for Adoption within The Safe Families Act Timeline, Part 2:5 (February 11, 2021), available at: https://aspe.hhs.gov/reports/freeing-children-adoption-within-adoption-safe-families-act-timeline.

[xxi] Id. at 9.

[xxii] Idaho Code  § 16-1622(g). 

[xxiii] U.S. Dept. of Health and Human Services, Freeing Children for Adoption within The Safe Families Act Timeline, Part 2:6 (February 11, 2021), available at: https://aspe.hhs.gov/reports/freeing-children-adoption-within-adoption-safe-families-act-timeline.

[xxiv] Id. at 7. 

[xxv] Id.