Adoption and Safe Families Act is The ‘Crime Bill’ of Child Welfare

As we move into a new Democratic administration, ending family separation inflicted by the so-called child welfare system should be a top priority. Specifically, the Biden administration should refuse to sanction the federal government’s endorsement of arbitrary timelines that permanently tear families apart. That means repealing the Adoption and Safe Families Act of 1997. 

ASFA was developed at a time when our country was hysterical about “crack babies” and resentful of their poor, mostly Black, parents. Media coverage focused on these selfish, drug-addicted parents who were giving birth to permanently damaged infants. As a result, many children were spending years in foster care with little pressure on systems to reunify them with parents or find them an adoptive home. 

The law ties federal child welfare funding to a requirement that, with a few exceptions, states move to terminate the rights of parents whose children have been in foster care for 15 of the past 22 months. After that period, the children become eligible for adoption. 

The COVID-19 pandemic has shone a light on the arbitrary and unfair nature of this timeline and which parents are most unlikely to meet it. Parents who are unable to visit with their children or participate in services recommended by CPS in furtherance of reunification during the pandemic are unsure whether their parental rights will be terminated. Even in normal times, for incarcerated parents whose ability to visit with their children or access services is out of their control, this timeline is usually out of reach.  

This is true regardless of whether the crime for which the parents are incarcerated had anything to do with the children. Many parents are held pre-trial because of their inability to pay cash bail before entering jails, which are even less likely to have services than prisons. Similarly, for many parents who are struggling with addiction — where relapse is often a part of recovery — this timeline is simply unrealistic. 

Worse yet, ASFA allows states to forego reasonable efforts toward reunification altogether if there are “aggravated circumstances.” Yet, this term is also unfairly broad. While murder, sexual abuse of another child, or prior termination of the parent’s rights to another child are listed as examples, Congress made clear that this list was not exhaustive. Today, many parents may have had their parental rights terminated due to hardships earlier in their lives and have had children later under completely different circumstances. 

Many lose their children simply for being poor. I know this because I defended these parents in court for years. Imagine a 16-year-old who was not well-equipped to parent as a teenager and therefore had her parental rights terminated. Once an adult, in a wholly different personal and financial position than she was as a youth, if she found herself in contact with the child welfare system, the state would still not be required to make reasonable efforts.

Regardless of a parent’s progress or the triviality of the current allegations, the state may bypass reasonable efforts entirely using this gaping loophole. And as others have argued, “vagueness of the aggravated circumstances exception contributes to the likelihood that life-altering decisions will be arbitrary, capricious, and discriminatory.”

ASFA was a bipartisan effort championed by many Democrats during the Bill Clinton presidency. The Biden administration and Congress have the opportunity to take a closer look at ASFA and make its reform or repeal bipartisan as well — particularly in the midst of a period of reflection and revelations about the societal harms of punitive laws more broadly. 

The overwhelming bipartisan support for the First Step Act shows that politicians have come to understand how misguided their earlier efforts like the 1994 Crime Bill were. ASFA is the Crime Bill for family law and a movement has grown calling for ASFA’s repeal. This Congress should respond in kind.

While the drafters’ intentions may have been noble, in effect, many of ASFA’s provisions have served primarily to stereotype and punish parents. As we now know, the “crack baby” hysteria was unwarranted, since most of those children grew up healthy, despite exposure. Yet we continue to make the same mistakes today by labeling parents struggling with addiction, as well as the incarcerated, as “bad parents” — and punishing them by taking their children. 

In so doing, we brand their children with the title of “foster child,” immediately conjuring up images of broken, traumatized children who have been failed by their monster parents. But it is our society that is failing. We still have a system that favors family destruction despite clear data that, even when parents have not been perfect, children are irreparably damaged when they are separated from them. We continue to prioritize a system that we know leads to worse outcomes for those children, because we have created an entire industry that is financially dependent on taking children from their parents. ASFA is primarily to blame, and it’s got to go.

It is time for our leaders to recognize that, just like the 1994 Crime Bill, ASFA has wreaked havoc on the poor and communities of color. In a post-Trump era, we have an opportunity to start fresh and engage in meaningful reflection about our punitive culture and the unintended consequences that resulted. If we truly care about kids, we have to stop focusing on punishing their parents.