It’s time to repeal the law that turns child welfare into the ultimate middle-class entitlement: Step right up and take a poor person’s child for your very own.
How we got stuck with ASFA
Third, the child welfare establishment spread a related myth: They claimed that an earlier federal law, the Adoption Assistance and Child Welfare Act of 1980, requiring “reasonable efforts” – and nothing more - to keep families together, supposedly led to some children being left in dangerous homes and other children languishing in foster care.
This, too, is false. The problem of children languishing in foster care had been documented for decades before 1980; it was a major focus of the first story I wrote about foster care in my earlier career as a journalist – in 1976.
The Adoption Assistance and Child Welfare Act of 1980 was passed to prevent children from languishing in foster care. But it did nothing to change the federal financial incentives that encourage foster care and discourage better alternatives. And the reasonable efforts clause – to this day – has never been enforced.
For example: Because federal funding is linked to claiming that reasonable efforts have been made, in Michigan 40% of judges admitted to lying and certifying such efforts had been made when they didn’t even believe it themselves.
So after a brief decline in the early 1980s, the number of children taken from their parents kept right on increasing in almost every year after that law was passed. And though the federal government’s annual Child Maltreatment reports show that known cases of child abuse peaked in 1993, entries into foster care still kept going up.
The reason children languished in foster care was not reasonable efforts, but the lack of reasonable efforts. That's why children continue to languish in foster care today. There were no efforts to curb needless removal and once in foster care the children were filed away and forgotten as overwhelmed caseworkers rushed on to the next case.
Don’t say the O word!
So suddenly, the Republicans started framing the issue in terms of adoption. They told us millions of childless middle-class Americans were desperate to adopt foster children, but a Vast Family Preservation Conspiracy supposedly was trapping the children in foster care.
A lot of Republicans knew better, but they didn’t care; they were fine with orphanages. For them, ASFA was the backdoor to the orphanage. A lot of Democrats were suckered by all the treacly talk about adoption. ASFA passed nearly unanimously.
By 2000, one of the authors of ASFA, the late Richard Gelles, dean of the School of Social Policy and Practice at the University of Pennsylvania - and a supporter of orphanagesw -- couldn’t resist a little gloating. As he explained to the New York City publication Child Welfare Watch:
Initially, this was just supposed to be a safe families bill, not really an adoption bill at all. The adoption component was a way of sanitizing the bill, to make it more appealing to a broader group of people. Adoption is a very popular concept in the country right now. [Emphasis added.]
What does ASFA do?
● ASFA blows huge holes in what little was left of the “reasonable efforts” requirement.● With limited exceptions, ASFA demands that states move to terminate children’s rights to their parents (which is what “termination of parental rights” really means) for any child in foster care for 15 of the previous 22 months - regardless of whether the child should ever have been taken at all, and regardless of whether the passage of time was the parents’ fault.
As Jerry Milner, Associate Commissioner of the Children’s Bureau in the Department of Health and Human Services and his Special Assistant David Kelly write in the latest issue of Children’s Bureau Express:
In more recent times in public child welfare—with the passage of laws that place short time limits on efforts to help families regain custody of their children—we have created more legal orphans than children entering care without living parents. The underlying philosophies behind such laws placed value in getting tough on parents facing difficulties and has disproportionately affected poor parents, Black parents, and Native parents. We have fed a culture of blame.
This should give us considerable pause.
We have effectively tied parenting and family relationships to a calendar, and in so doing, one of the most sacred life experiences and purposes a human being can serve has been placed on a timer.
● ASFA pays states bounties of thousands of dollars per child for adoptions over a baseline number. Since the states can keep the money even if the adoption fails, it encourages quick-and-dirty slipshod placements.
● But even more important than any single provision, ASFA sent a message to the child welfare frontlines: You should falsely equate child removal with child safety and rush to take away more children. (That’s what Gelles meant by “a safe families bill” that was “sanitized” by the adoption provisions.) And, of course, it sent that message to a system permeated with class bias and racial bias.
So even as child abuse continued to decline, the number of children in foster care on any given day kept increasing, peaking in 1999. It didn’t fall below the number when ASFA became law until 2003. The number of children taken away over the course of a year kept increasing until 2006. There were a few years of slow declines, then an increase and now the number is declining again. (Details and sources here.)
So ASFA’s true effect was to make the system bigger, tear apart even more families needlessly, and consign more children to the very chaos from which they supposedly were going to be saved.
Worst of all, every year more children lose their rights to their parents than are adopted. The result: A sharp increase in children aging out of the system with no home at all, separated from their birth parents, but without an adoptive home. In many cases, these were children whose rights to their parents had been terminated, making them, as Milner and Kelly remind us, legal orphans.
ASFA and safety
How ASFA plays out case-by-case
(Though one ASFA proponent claims the law includes a provision allowing judges to intervene at this stage if a state failed to make “reasonable efforts” that is flat-out false. The state itself would have to confess to this failure in order to invoke the “reasonable efforts” exception and not file a termination petition. Judges get involved only after the petition has been filed and the case has gone to trial.)
ASFA has been responsible for the massive destruction of black and brown families. More than 2 million children’s parents’ rights have been terminated ... since ASFA was enacted. … It is an unpleasant truth that many of the organizations whose collective voice is condemning racist police practices now have for decades celebrated the approach enshrined in law by ASFA, some by explicitly celebrating adoption and others using the euphemism “permanency.”
How to fix it
Imagine what would have happened if, instead of passing a racist, regressive law such as ASFA, we’d put our effort into actually enforcing that earlier law, the Adoption Assistance and Child Welfare Act of 1980. Think how many fewer children would have languished in foster care – because they wouldn’t have been taken at all and, for those who were taken, workers would have had more time to reunite them or, when genuinely necessary, get them adopted.
As Milner and Kelly write:
During this time of reckoning, veils are being lifted and society is becoming increasingly aware of barriers to equity and the impact of laws that may appear neutral on their surface but cause harmful consequences. Child welfare legislation should not escape scrutiny. ... [W]e should pay thoughtful attention to the design and impact of our laws—old and new—to determine if they represent the knowledge we have about what families and children need to thrive and when they need it.
● Enforce “reasonable efforts.”