Erin Carrington Smith, 2023 J.D. Candidate, University of Baltimore School of Law
By Erin Carrington Smith, 2023 J.D. Candidate, University of Baltimore School of Law
November 19, 2022, marked 25 years since the passage of the Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (“ASFA”). The law was designed, in part, to address the problem of children languishing in foster care with no permanency plan. To some degree, ASFA is a success, reducing the average time children spend in foster care. This comes with a price, however, by increasing the rate at which parental rights are terminated and placing a clear emphasis on adoption over reunification as the preferred permanency plan for children in foster care. After a quarter of a century, it is time to take a close look at the damage ASFA has caused by prioritizing adoption, and how reform or repeal can stop this harm.
ASFA emphasizes adoption over reunification in three important ways. First, it requires that if a child is in foster care for 15 out of the prior 22 months, the state shall begin termination proceedings against that child’s parents. This timeline has been critiqued as arbitrary and callous in nature. For example, if a parent is incarcerated for 18 months, the state can automatically terminate parental rights, even if the reason for incarceration has nothing to do with the child. Further, if a parent is struggling with mental health concerns or a substance use disorder, this is not generally a realistic timeframe for the parent to demonstrate satisfactory improvement to avoid termination. The timeline does not consider whether parents are making progress towards meeting their goals; it simply places families on a conveyor belt towards termination.
Second, ASFA allows for “concurrent planning,” meaning that states can simultaneously begin planning for adoption even while they are working towards family reunification. What’s more, ASFA offers financial rewards to states that meet certain adoption quotas but does not similarly reward family reunification. Under this model, parents are meant to collaborate with case workers toward reunification goals while those same caseworkers are free – and incentivized – to concurrently work towards finding an adoptive family for the children. Even with the best intentions of a social worker, the inherent bias created when you incentivize adoptions renders concurrent planning untenable and undermines the goal of reunification.
Finally, ASFA allows states to bypass requirements that they make reasonable efforts towards reunifying families under certain “aggravated circumstances.” Aggravated circumstances include, for example if a parent has had their rights to a prior child terminated, regardless of how long ago that termination occurred. Imagine a scenario where a teenager loses parental rights to their child because they are young, unemployed, and not in a position to properly care for that child. If that same teenager, 20 years later, has contact with child welfare authorities, the agency would not have to make reasonable efforts to keep the parent and a totally different child together, even though the parent might now be stably housed, gainfully employed, and otherwise capable of caring for the child.
Beyond ASFA’s technical flaws, the law is also a relic of its time. ASFA was passed amid an intense moral panic over “crack babies” and their “unfit” mothers. The severe public judgment of substance use disorder in low-income, Black communities resulted in punitive responses including the removal of many children without providing support for their mothers. This approach stands in stark contrast to the empathy demonstrated to the mostly white mothers affected by the opioid crisis and the policies that followed. ASFA’s castigatory provisions have continued to be implemented most harshly in Black and brown communities, with Black women more likely to have their rights terminated than similarly situated white mothers.
As a result of this disproportionate impact on marginalized communities and the overall harm the law has caused families across the board, many impacted parents, advocates, and scholars have called for ASFA’s repeal. In the interim, a proposed federal bill, The 21st Century Children and Families Act, would curb many of ASFA’s most problematic proposals. First, it would prevent termination of parental rights based solely on incarceration or immigration detention, if the parent is actively engaged in services intended to address the underlying reason for state involvement or if a child is placed with kin. It would also extend the timeline for termination so that states could only petition for termination if a child was in foster care for 24 consecutive months and make such filing discretionary rather than mandatory. These changes, among others, are important “non-reformist reforms” in that they “reduce the power of an oppressive system while illuminating the system’s inability to solve the crises it creates.”
In the past 25 years, more than one million children have had their legal relationships with their parents terminated. While some extreme cases exist where children cannot safely be reunified with their families, ASFA is not designed to address this problem. Instead, ASFA is an adoption incentive program that bases termination decisions on a strict timeline regardless of the risk of harm to the children involved. Rather than assess risk, support families, and make thoughtful decisions about how best to proceed, ASFA simply sets a stopwatch. After 25 years, it’s time to stop the clock on ASFA and the damage it inflicts on families.