This is a moment that should not be wasted. Seemingly everyone who wants to be on Martin Luther King Jr.’s side of the arc of justice has issued uncommonly strong criticism of structural racism in the United States, including many who have played an outsize role in shaping America’s child welfare system.
These statements, however, have thus far only been focused on the need to change the means by which we exercise the police power in this country. It is, perhaps, too easy for child welfare organizations to attack a problem they have not played a significant role in creating. But these same groups have not yet turned their eyes inward to ask whether and how the system they helped build is also deeply shaped by racism.
This is a moment that also must focus on how we exercise the parens patriae power in this country (the power of the state to protect the vulnerable). This starts with a major overhaul of the Adoption and Safe Families Act, often referred to by its initials ASFA, which was signed into law in 1997.
With certain exceptions that states too often ignore, ASFA requires that child welfare agencies seek to terminate the parental rights of children whenever they have been in foster for 15 of the most recent 22 months. Courts are instructed to terminate parental rights unless the parent can show that the conditions that led to the removal initially no longer exist. The law has been responsible for the massive destruction of black and brown families. More than 2 million children’s parents’ rights have been terminated by American courts since ASFA was enacted.
This is not about the intentions of those who developed the system we have. It is about listening to the people it harms. 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.”
But the goal of permanency, in and of itself, does not distinguish between the few parents who have demonstrated a complete unsuitability to raise children from the vast majority of parents whose children end up and then remain in foster care for entirely different reasons.
The Adoption and Safe Families Act is the epitome of a racist law no different from the welfare “reform” bill passed the year before it. Nor is it different from the notorious 1986 crime bill passed by Congress, which subjected someone caught distributing 5 grams of crack cocaine to a mandatory minimum five-year federal prison sentence while the distribution of 500 grams for powder cocaine – 100 times the amount of crack cocaine – carried the same sentence.
Is the fact that the United States leads the world in incarcerating prisoners deeply racist? How, one might ask, could it be when so many white men and women are also serving sentences rejected by the rest of the world as excessive and inhumane? Can ASFA be racist when juvenile courts also use it to destroy white families? In both instances, the answer is yes.
Without our history of racism and the legacy of slavery, the penal sanctions imposed in this country would never have been enacted. It is through the lens of racism that legislators and voters supported the death penalty, life in prison without parole, and three-strikes laws that result in three-time pickpockets being sentenced to life in prison. That these laws also are applied to white people in no way diminishes their racist origins.
Similarly, it is undeniable that poor white families are far too often permanently destroyed by the rigid implementation of ASFA. But that doesn’t make the law any less racist, and its origins deserve careful attention. ASFA’s theoretical underpinning is a highly disputed social science theory advanced by the celebrated theorists Joseph Goldstein, Anna Freud and Albert Solnit.
They argued that children cannot maintain ties with parent-figures when they have not been in their custody for a year or two, and therefore courts should banish the noncustodial parent from the children’s lives. This was meant to apply to all court cases involving children, including the public child welfare system and the private family law field of divorce, custody and visitation.
The family law courts have rejected this theory categorically. Walk into any family court in this country serving privileged families and their children and you will find a commitment to the principle that children deserve to maintain as much contact with their parents throughout their lifetime as feasible, whether they live with them or not.
But our child welfare courts have done the opposite. They celebrate the permanent banishment of parents from children’s lives as an example of advancing the best interests of children. This was done in the case of 71,254 children in 2018 alone. Very few of the parents whose legal relationship to their children has been extinguished ever did anything to their children that justified forbidding them ever again to raise them.
Instead, these families were ended because of a rigid application of the timelines set forth in ASFA, which unreasonably requires that parents be able to regain custody of their children within one year or forever forfeit their parental rights.
What accounts for these diametrically opposite systems of justice? Take a careful look at the demographics of the foster care populations in Detroit, Los Angeles, New York or Philadelphia. The answer is staring us in the face. Across the United States, black children are 2.4 times more likely than white children to experience the termination of parental rights. In Wisconsin, New Jersey, Illinois, New York, Minnesota, Iowa, South Dakota and Wyoming, black children are at least four times more likely than white children to see their parents’ rights terminated.
Let the recently posted words of Casey Family Programs on America’s criminal justice and policing systems become our mantra in the coming days:
The seeds of systemic racism will try to change the conversation to a focus on law and order and cause many across America to once again forget that what we are witnessing is the collective cry for equal justice and equal protection under the law for all people in America.
Let us not be distracted. Let us not allow this moment for systemic change to once again be delayed because we are in pain or because some among us do not want to see the change that we seek.
Rephrased for our purposes: The seeds of systemic racism will try to change the conversation to a focus on an anemic approach to child welfare that emphasizes a narrow concept of “permanency” at the expense of family and community, and causes many across America to once again forget that what we are witnessing is the collective cry for equal justice and equal protection under the law for all people in America.
Let us not be distracted. It’s time to replace ASFA with a set of rules that applies equally to all members of American society. Black families matter.
Martin Guggenheim is a professor of clinical law at the New York University School of Law.