ASFA’s Compelling Reasons Not to File a TPR Petition

Under the Adoption and Safe Families Act, a state child welfare agency generally must file a petition to terminate parental rights once a child has spent 15 of the most recent 22 months in foster care. Federal law recognizes three ASFA compelling reasons not to file a TPR petition: the child is being cared for by a relative, the agency has documented in the case plan a compelling reason that filing would not be in the child’s best interest, or the state has not provided the family with the reunification services the case plan required.¹ Each one has real content, and each one has limits.

How the 15/22 Clock Runs Before Any Exception Matters

The 15/22 rule came out of the 1997 Adoption and Safe Families Act, and its purpose was to stop children from drifting through foster care without a permanent plan.² The “22 months” language matters because the clock is not a straight run from the day the child entered care. If the child went home for a stretch and later re-entered the system, the time at home does not count toward the 15.

Federal regulations also carve out time that does not count against the parent. Trial home visits, where the child returns to the parent’s household while technically remaining under agency supervision, are excluded. So are runaway episodes.³ A child who has been involved with the system for 18 calendar months may still be short of 15 countable months once those exclusions are applied. Before arguing an exception, check the arithmetic.

Separately, the statute forces a termination petition, without waiting for 15 months, when a court has found that the child was abandoned as an infant or that the parent committed murder, voluntary manslaughter, or a felony assault causing serious bodily injury to another of the parent’s children.¹ In those cases the exceptions below become much harder to invoke.

Exception One: The Child Is Placed With a Relative

The first statutory carve-out applies when the child is living with a relative rather than in a traditional foster placement. Grandparents, aunts, uncles, and adult siblings are the usual kinship caregivers. When the child is already in a stable home with someone they know, terminating the parent’s legal rights can create disruption without giving the child anything they didn’t already have. Guardianship or a continued kinship arrangement can deliver permanency without severing the parent-child relationship.

There is an important qualifier that parents and even some attorneys miss. The statute makes this exception available “at the option of the State.”¹ A state can choose not to recognize a relative placement as grounds for skipping the filing and proceed with a TPR petition even when the child is with a grandmother. Whether the exception is available depends on state statute and agency policy.

The definition of “relative” also comes from state law rather than federal law. Some states limit the term to people connected by blood, marriage, or adoption within a specified degree. Others include fictive kin, meaning adults who are not biologically related but have a significant, established bond with the child, such as a godparent or a longstanding family friend who has functioned as a caregiver. Whether a fictive kin placement qualifies is a state-law question.

Exception Two: A Documented Compelling Reason

The second exception is the broadest, and the one most often used. It allows the agency to hold off on filing when the case plan documents a compelling reason that termination would not be in the child’s best interest.¹ Unlike the relative placement exception, it is not at the state’s option; every state must recognize it. The reason has to be written into the child’s case plan and be available for the court to review at the permanency hearing.

Federal law does not spell out an exhaustive list of what qualifies. Several categories come up repeatedly.

An Older Child Who Does Not Want To Be Adopted

A teenager who refuses to cooperate with an adoption is a common compelling reason. Many states give children above a certain age, often 14, a formal right to object to termination or adoption, and some treat that objection as effectively dispositive. Courts recognize that an older child’s stated preference to keep a legal tie to a biological parent carries real weight, particularly when the alternative is aging out of care with no family relationships at all.

A Parent Close to Finishing the Case Plan

When a parent has made genuine, documented progress and is close to completing every requirement in the reunification plan, the agency can note that in the case plan and hold off on filing. If a parent has finished substance abuse treatment, kept steady work, and needs only a short time to secure housing, filing a termination petition in that window would be counterproductive. Courts look for concrete evidence of near-completion, not vague promises. The file needs to show what has been accomplished and what remains.

A Parent-Child Bond That Would Be Damaging To Sever

A well-documented psychological bond can qualify when expert evidence shows that severing the relationship would cause the child significant emotional harm. This is not a caseworker’s opinion. Courts expect testimony from a qualified evaluator, typically a licensed psychologist or clinical social worker with training in child development and family dynamics. A credible bonding evaluation involves direct observation of parent-child interaction, appropriate psychological testing, collateral interviews, and a written analysis grounded in the behavioral science literature. Reports without a clear methodology are routinely challenged and sometimes excluded.

Preserving Sibling Relationships

If terminating a parent’s rights would separate siblings who share a strong bond, sibling preservation can be the compelling reason. This tends to come up when one child in the group would likely be adopted but the others would not, or when termination would end contact between brothers and sisters. Courts weigh the strength of the sibling relationship, whether the children were raised together, and whether the emotional cost of separation outweighs the benefit of legal permanence through adoption. This ground is applied sparingly and needs concrete evidence of the bond.

Exception Three: The Agency Did Not Provide Required Services

The third exception exists so the state cannot punish parents for its own failures. If the agency did not deliver the reunification services the case plan called for, the 15/22 timeline does not trigger the filing requirement.¹ The exception is tied to cases where reasonable efforts to reunify were supposed to be made in the first place.

What counts as a failure to provide services? Common examples include not referring a parent to the substance abuse treatment the case plan specified, not arranging visitation despite a court order requiring it, failing to offer mental health counseling or parenting education, and not helping with transportation the parent needs to reach services. If the case plan says the agency will do something and it doesn’t happen, the agency cannot then rely on the calendar to force termination. Courts examine the documentation carefully, and a pattern of missed referrals or unfulfilled commitments can stop a petition in its tracks.

This exception protects a parent only when the agency’s failure actually blocked their progress. If the agency skipped a referral but the parent independently completed equivalent services, the argument weakens. The strongest cases involve situations where the parent had no realistic way to comply because the agency never opened the door.

Building the Documentation the Exception Depends On

A judge will not recognize an exception on general assurances. The case file needs specific, dated, verifiable material. What courts typically expect:

Visitation records showing consistent attendance, the length of each visit, and observations about the quality of parent-child interaction.
Certificates, progress reports, or discharge summaries from substance abuse treatment, parenting classes, mental health counseling, and any other required programs.
Drug screening results with dates and the testing facility identified.
A written bonding evaluation from a licensed psychologist or clinical social worker who observed the parent and child directly, used appropriate testing, gathered collateral information, and grounded conclusions in the literature.
Housing and employment verification, such as leases, pay stubs, or employer letters.

Positive milestones need to be in the agency’s official record system. Caseworkers sometimes know about a parent’s progress but do not document it, and what is not in the file effectively does not exist when a judge reviews the case plan. Parents and their attorneys should confirm independently that accomplishments are recorded rather than assume the caseworker has entered them.

For bonding evaluations in particular, the evaluator’s qualifications matter as much as the conclusion. An evaluation without a clear methodology, or one that reads as advocacy rather than assessment, is vulnerable to challenge and may be given little weight.

How the Exception Gets on the Record

Exceptions are formally established at permanency hearings. Federal law requires the first permanency hearing no later than 12 months after the child enters foster care, with follow-up hearings at least every 12 months for as long as the child remains in care.⁴ Many states hold them more often.

At the hearing, the judge reviews the case plan documentation, hears from the agency, the parent’s attorney, and often the child’s guardian ad litem, and decides whether the proposed exception meets federal and state standards. The compelling reason has to be written into the case plan itself, not just argued orally. If the judge approves the exception and enters an order, the filing requirement is waived for that review period, and the family gets additional time to work toward reunification or an alternative permanency arrangement such as guardianship.

If the court declines to recognize an exception, the agency must file the termination petition. Parents can appeal, and appellate courts review both the factual findings and the legal conclusions. Appeal deadlines are short, often 30 days or less from the date of the order, so acting quickly matters.

Situations Where the Exceptions Are Harder To Reach

Two categories of case shrink the space these exceptions occupy.

The first is aggravated circumstances. Federal law identifies situations where the state is not even required to make reasonable efforts to reunify before filing for termination. When a court finds aggravated circumstances, the reasonable efforts exception disappears and the others become much harder to invoke.⁵ The federal categories include:

Abandonment, torture, chronic abuse, sexual abuse, or other aggravated circumstances as defined by state law.
Murder or voluntary manslaughter of another child of the parent, or aiding, attempting, or conspiring in such an act.
Felony assault causing serious bodily injury to the child or another of the parent’s children.
Prior involuntary termination of the parent’s rights to a sibling of the child.

The second is incarceration. Federal law contains no specific exception for an incarcerated parent, even one serving a multi-year sentence that overlaps the entire 15-month window. Incarceration can feed into the compelling-reasons analysis or raise questions about whether the agency provided adequate services, but it is not a standalone ground. Some states have added their own exceptions covering incarceration when the parent stays meaningfully involved through letters, calls, and other available contact. Others treat incarceration as no excuse for disengagement. Where reunification services required by the case plan cannot be delivered inside a correctional facility, the reasonable efforts exception can become relevant if the agency made no effort to identify prison-based programs or adapt the plan to the parent’s circumstances.

A separate framework applies when the child is an Indian child under the Indian Child Welfare Act. Federal policy guidance confirms that Indian children are not generally exempt from the 15/22 filing requirement, but ICWA layers on requirements that go well beyond ASFA, including active efforts rather than reasonable efforts, and a beyond-a-reasonable-doubt evidentiary standard for termination supported by qualified expert testimony.⁶⁷ Any exception argument in an ICWA case has to be built within that stricter framework.

One last practical point. ASFA is a spending-clause statute tied to federal Title IV-E funding rather than a direct mandate enforced against individual families. Consequences for noncompliance fall on the agency, and even those are excused when a qualifying exception is documented.¹ The system has more flexibility than the 15-month language suggests, and competent advocacy is what turns that flexibility into an actual outcome for a family.

1
Office of the Law Revision Counsel. 42 USC 675 – Definitions
2
Child Welfare Information Gateway. Adoption and Safe Families Act of 1997 – PL 105-89
3
eCFR. 45 CFR 1356.21 – Foster Care Maintenance Payments Program
4
Office of the Law Revision Counsel. 42 USC 675 – Definitions
5
Office of the Law Revision Counsel. 42 USC 671 – State Plan for Foster Care and Adoption Assistance
6
Office of the Law Revision Counsel. 25 USC 1912 – Pending Court Proceedings
7
Child Welfare Policy Manual. Section 9 – Policy Questions and Answers