9.7.3 Criteria for Compelling Reasons Determination for Not Filing TPR include, but are not limited to

The decision whether compelling reasons exists must be decided on a case by case basis after considering all of the facts and circumstances of the case. Federal Law prohibits states from developing a standard, exclusive list of compelling reasons for not filing for termination of parental rights (TPR) that exempts groups of children.

Federal regulations set out some examples of cases where it is or may not be in the best interests of the child to file a petition for termination parental rights.

Examples of such cases:

  1. There are no legal grounds for filing a TPR;

    This determination could not be made without legal and supervisory case review and documentation of the finding in the case record. In addition this finding should require a case plan revision with specific actions to make reasonable effort, and frequent (every three to six months) review of progress.

  2. Adoption is not the appropriate permanency goal for the child;

    This example could also include cases where:

    • Reunification is the goal;
    • The child has a permanency goal other than adoption (i.e., permanency with a kin/relative through guardianship and is expected to achieve that goal within 12 months of establishing the goal;
    • The child objects to being adopted. The legal age to consent is 14 years of age;
    • The child has severe emotional or behavioral problems or a serious medical condition and reunification remains an appropriate goal; or
    • The parent is terminally ill, does not want parental rights terminated and has designated the child’s present caretaker, with the caretaker’s agreement, as the child’s permanent caretaker.
  3. The child is an unaccompanied refugee minor as defined in 45 Code of Federal Regulations 400.111, as a person who has not yet attained 18 years of age (or a higher age established by the State of resettlement in its child welfare plan under the IV-B of the Social Security Act for the availability of child welfare services to any other child in the State); who entered the United States unaccompanied by and not destined to (a) a parent or (b) a close non parental adult relative who is willing and able to care for the child or (c) an adult with a clear and court-verifiable claim to custody of the minor, and who no parent(s) in the United States. Limitation:  No child may be considered by a State to be unaccompanied for the purpose of this part unless such child was identified by INS at the time of entry as unaccompanied, except that a child who was correctly classified as unaccompanied by a State in accordance with Action Transmittal SSA-AT-79 until the status is terminated in accordance with federal law and the director may approve the classification of a child through documentation of a child  prior to the effective date of this definition may continue to be so classified as unaccompanied at the time of entry; or
  4. There are international legal obligations or compelling foreign policy reasons that would preclude terminating parental rights.

The determination of compelling reasons is made by the Children’s Division. The court may conduct its own independent review and issue an order under Section 210.720, RSMo directing that a petition be filed. However, for ASFA compliance, federal law only requires that CD make the determination of compelling reasons and document those reasons in the permanency plan. Those reasons must be made available to the court and the other parties to the case.

Federal law requires CD to document its compelling reasons “in the case plan” if the worker, in consultation with his/her supervisor, has determined that compelling reasons exist for not filing for a petition for termination of parental rights. There must be specific reasons in the CS-1 case plan and on the Family Support Team (FST) Information screen in FACES documenting compelling reasons in detail. It is best practice for documentation to list the specific factual basis for its reasons why it is not the best interests of the child to file a petition for terminating parental rights. For example, using the compelling reason of a child with severe emotional, behavioral, or medical problems, the worker should document in the case record with supported clinical evidence on the child’s severe emotional, behavioral or medical issues and the need for placement in residential treatment or other intensive treatment. The record should provide evidence that the parent is actively involved in the child’s life and is planning for the child’s return home. If the child objects to being adopted, the Children’s Service Worker must document evidence in the case record that the child has participated in specific counseling to discuss all permanency options and understands all the permanency options.

Chapter Memoranda History: (prior to 1/31/07)

Memoranda History: