Throughout the 1990s, the number of children in foster care surged, reaching a peak of 567,000 children in 1999. The rise occurred in the wake of the crack and cocaine epidemic, which forced tough choices on child welfare systems that were often ill-equipped to help keep families together.
But there was another more systemic reason. For the thousands of children in foster care who would never go home, states were desperately slow to find them another home. Instead children and youth languished in foster care for years. Often this meant bouncing through multiple families, never finding one they could call their own. In 1998, nearly a third of all children in foster care had been there for at least three years.
Enter the Adoption and Safe Families Act (ASFA), a bipartisan bill that had the blessing of the Clinton administration as an attempt to speed up foster children’s paths to permanent homes — either with relatives or adoptive parents. The law drew from state efforts started a decade before in Ohio, where legislators had limited the time a child could remain in foster care.
“I was very concerned about a child’s sense of time,” said Cassie Statuto Bevan, currently a social work professor at the University of Pennsylvania, who was then one of the key staffers developing ASFA for the House Ways and Means Committee. “ASFA established that child safety was the primary concern.”
Since ASFA’s introduction of timelines for permanency and incentives for adoption, more than 1 million foster children have been adopted, according to Maureen Flatley, who was among those at the table crafting the bill and has spent the last 20 years working on a number of pieces of child welfare legislation with lawmakers.
“Twenty years out from ASFA’s implements, it’s the perfect time to take a step back from where it started,” Flatley said. “One million kids have been adopted in the last 20 years.”
Meanwhile, the number of youth languishing for years in foster care has been decimated. In 2017, only 9 percent of youth in care had spent three to four years in care and 6 percent had spent five or more years. In 1999, those numbers had been 15 percent and 17 percent respectively.
Still, even some of ASFA’s original proponents and key architects wonder whether the bill did enough to help families, or prevent youth from aging out.
The Push for Permanency
The expectation within ASFA was that the broader goal of speeding up permanency would be accomplished, in part, by increasing adoptions. At the time, intercountry adoption numbers were steadily climbing before peaking in 2004 at nearly 23,000, making it difficult for kids in foster care to draw attention from the pool of prospective adoptive parents looking overseas.
The law was a culmination of bipartisan efforts, including a desire by President Bill Clinton and First Lady Hillary Clinton to change foster care. A year before ASFA became law, her oft-quoted book “It Takes a Village” included the following thoughts:
“As a law professor and a staff attorney at the Children’s Defense Fund, as well as in my private practice, I saw firsthand the results of our failure to invest in children at the most critical states of their lives. Too often, the best interests of children seemed not to be a priority on either individual or national agendas. The consequences are there for any of us to see: children’s potential lost to spirit-crushing poverty, children’s health lost to unaffordable care, children’s hearts lost in divorce and custody fights, children’s futures lost in an overburdened foster care system, children’s lives lost to abuse and violence, our society lost to itself as we fail our children.”
ASFA was designed to push states toward increasing adoptions. To get there it included a controversial timeline known as the 15/22 rule. If a child has been in foster care for 15 out of the last 22 months, states must move to terminate the biological parent’s parental rights — thus “freeing” the child for adoption. Three exceptions to that rule are allowed: if a child is living with kinship relatives; the agency documents a compelling reason that parental termination is not in a child’s best interest; and when the state has failed to provide services for reunification.
A small adoption incentive system was introduced to reward states that increased the number of kids adopted from their state system. The calculations have changed throughout the years, but the basic concept has remained: keep increasing the number of foster youth adoptions, and continue to receive incentive awards from the federal government.
ASFA also established the Promoting Safe and Stable Families (PSSF) program, providing states with funding for adoption promotion and support services and time-limited family reunification services. Funding for PSSF included $50 million in 1999 and increased annually until 2002, when the program was reauthorized for $305 million per year. Last year, PSSF was funded at $385 million.
It is beyond dispute that the trends envisioned by ASFA — more adoptions, and less foster care — have occurred. The number of youth adopted from care has steadily risen since ASFA’s passage: up from roughly 38,000 in 1998 to nearly 60,000 in 2017, according to federal data.
This increase in adoptions has contributed to a decrease in the number of youth who stay in care for long periods. In 1998, the average time spent in foster care was 32.6 months. About a third of all foster youth lived in care for three or more years. By 2017, the average stay was down to 20.1 months, with 15 percent of youths remaining in care for three or more years.
It is difficult to tease out how much of this trend is attributable to ASFA. Some states had already passed similar legislation and national time-in-care statistics were already starting to decline.
“You see this relationship in other things we do, when trying to discern whether federal policy drives change or it’s already happening in the states,” said Nick Gwyn, current Democratic staff director for the House Ways and Means Subcommittee on Human Resources. “I think it’s not one or the other. There was some movement in that direction, and that was accelerated with ASFA.”
The path to permanency from foster care has slowed for the first time since ASFA’s passage, according to the the most federal data on foster youth, which was released this month. For the first time in decades, the number of children reunified with their parents is below 50 percent.
And while the number of finalized adoptions continues to increase – up 14 percent since 2012 and nearly reaching 60,000 in 2017 – the increase in adoptions has been significantly outpaced by the increase in kids being slated for that outcome. Since 2012, the number of youth deemed to be “waiting for adoption” is up 23 percent, from 100,379 to 123,437. And the percent of children in foster care whose parents’ rights have been terminated has also jumped in that time frame, up 20 percent.
Dissent and Regrets
Some critics of ASFA, and even the law’s principal crafters, contend that it didn’t do enough to lower the number of youth aging out of foster care. In 2017, 19,945 youth emancipated from foster care, while in 1998, there were 17,310 youth who emancipated. And, they say, ASFA should have put more resources behind keeping families together or reuniting them.
“The act’s financial incentives have disrupted families permanently by the speedy termination of parental rights, without the accompanying move from foster care to adoptive homes,” said Texas Tech University law professor DeLeith Gossett, in a report published in 2018 by the Memphis Law Review. “The programs that the Adoption and Safe Families Act govern thwart its very purpose as children continue to languish in foster care waiting for permanent adoptive homes, often until they age out of the system into negative life outcomes.”
Bevan, who helped write the law, agreed.
“ASFA was blamed for leaving a lot of children as orphans and that certainly wasn’t the intention of ASFA,” she said. “There has been concern we moved to permanency but didn’t pay attention to the parent’s needs.”
She said she holds out hope that the recent passage of the Family First Prevention Services Act which includes more federal funds for services aimed at preventing the use of foster care, will help improve some of those service gaps.
“I hope Family First helps with funding evidence-based training,” Bevan said. “We haven’t looked at primary prevention. If we can’t improve services and make sure they’re effective, we haven’t made the impact we needed to make.”
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