Some laws are built on false premises, and revamping them can take a long time. The federal Adoption and Safe Families Act (ASFA), signed into law by President Bill Clinton on November 19, 1997, is one such law.
On its 25th anniversary later this month, family advocates are pressing for a thorough overhaul of the harmful system built on ASFA's faulty premise: that cutting kids off from their families and "freeing" foster children for adoption is better than reunifying them with parents who love them.
Though much less widely discussed than the crime bill or welfare reform legislation also passed in the late 1990s, ASFA demonized the same targets: poor people, especially poor people of color. Remember three strikes and you're out? Under ASFA, families often get no strikes. For them, the termination-of-rights clock starts ticking the minute a state takes a child into foster care. A family's time is up if the child is still in foster care after 15 months, regardless of the reason for the removal in the first place.
For more than 80 percent of parents, the reason for removal involves neglect, not abuse. Often the so-called neglect has to do with poverty, disability, homelessness, incarceration, or the parents' own status as victims of violence. Being incarcerated, by itself, is grounds for rights termination in many states. Instead of presuming (as constitutional jurisprudence does) that children's best interests are aligned with their families' interests and that parents should be treated as fit to raise their children unless the state shows clear and convincing evidence to the contrary, ASFA forces parents to prove their fitness within 15 months of the date their children were taken into foster care. It doesn't matter if the help they needed was unavailable.
Some parents don't even get 15 months. In several states, much shorter timelines are allowed. For New Jersey father Davis Travis, for instance, merely being married to a person who had been reported for having alcohol on her breath—and then allowing his wife to see the children at Christmas, contrary to a caseworker's demand—was deemed reason enough for his children to be taken from him forever.
Since 2000, ASFA's consequences for more than 200,000 foster children have been especially dire. Instead of assuring these children "permanence" (a buzzword enshrined in the law), ASFA has created an unconscionable number of legal orphans: unadopted children who leave foster care with no family relationships. That doesn't just mean they're cut off from mom or dad. Termination means their ties to siblings, grandparents, aunts, uncles, and cousins are severed as well.
"What benefit is that?" asks University of Michigan Law Professor Vivek Sankaran. He cites a father of one of his students—a former foster youth—who came to the young woman's law school graduation. The father had been incarcerated while his daughter was in foster care for eight years. But he stayed in touch with her and even helped pay for her education after he was released.
Most states would have terminated his rights. By luck (and despite very high termination of rights rates), Michigan did not terminate his. Sankaran believes the termination of children's rights to their families should only occur when courts find the termination "strictly necessary." He points to a 2018 Utah Supreme Court opinion along those lines.
A federal legislative fix is clearly overdue. Fortunately, a good one has been proposed that would address most, though not all, of the tragic cases ASFA has spawned. The 21st Century Children and Families Act, introduced by Rep. Karen Bass (D–Calif.), would eliminate fast-track terminations of incarcerated parents' rights, requiring the state to make a preliminary showing that the parents' rights must be permanently severed in order to protect the child from serious harm. Instead of 15 months and a time's up mentality, the proposed revamp of ASFA would require two years of attempted reunification before termination-of-rights actions would be allowed.
While this bill does not amount to the full repeal that some family advocates desire, it would shift the harsh anti-family presumptions that pervade ASFA. Albeit 25 years too late, this change would begin to confine use of what is called the family death penalty—the irrevocable severance of parental rights—to parents who are genuinely and permanently unfit to care for children.
Realigning federal priorities to help kids keep their precious familial ties whenever possible is the anniversary celebration that ASFA deserves.