The Adoption and Safe Families Act (ASFA) — bipartisan legislation signed into law by President Bill Clinton to great fanfare —– recently turned 25. The law sought to expedite adoptions from foster care at a time when children spent years on average in foster care, and it garnered support by portraying their parents as irredeemable, forever unfit for parenting.
“It’s time we recognize that some families simply cannot and should not be kept together,” former Senator John Chafee (R-R.I.), a lead sponsor of ASFA, said on the Senate floor in 1997.
The family of a mother I’ll call Bianca was supposedly one of those families. I met Bianca in Rhode Island, Senator Chafee’s home state, while conducting research on low-income mothers’ experiences with child welfare systems. Her family’s experience shows us where ASFA’s push to sever family ties gets us — and how truly supporting children requires a different approach.
Primarily, ASFA limits the time parents have to address family challenges before child protection agencies must petition a court to terminate parents’ legal rights to their children, which in every state is a prerequisite for adoption. With some notable exceptions, states must move to terminate parental rights after a child has been in foster care for 15 of the past 22 months.
In 2014, the child protection agency was planning to terminate Bianca’s parental rights to her daughter, a bright, gregarious five-year-old. The agency had requested a trial date on the termination, with Bianca’s caseworker telling the court that “this child is in desperate need for permanency,” and that she was “very bonded to her foster parents and her foster siblings.” The agency had recently severed Bianca’s rights to three older children.
Six months later, the agency abruptly changed its tune, suggesting that Bianca reunify with her daughter and with a newborn son. “Things appear to be going well,” the caseworker wrote, adding that there were “no concerns regarding visits” between Bianca and her children. With Bianca securing a spot in supportive housing, the two younger children went home the following month.
By the following year, the caseworker noted, both were “healthy and well,” and “appear happy and bonded with their mother.” Just a year after the agency planned to terminate Bianca’s rights permanently, it closed her case.
Was Bianca’s family — in Senator Chafee’s words — one that could not and should not be kept together? Had the agency succeeded in its original plan to terminate, her daughter would likely have been adopted, with little or no contact with her mother. Today, she is almost 14, living happily with Bianca, her younger brother, and two other younger siblings. She loves music — playing the ukulele and the violin — and enjoys sleepovers with her friends.
Meanwhile, after being adopted, Bianca’s eldest son entered juvenile detention. She’d signed the termination paperwork so her son could be out of state custody. But years later, he was now back in the system. Her other two children were promised visits with her, but that didn’t occur. One of them, six years old when adopted, hasn’t seen his siblings or mother in eight years.
Simply filing to terminate parental rights is a trauma in itself that can set parents back even before the termination is adjudicated, creating a self-fulfilling prophecy.
Under ASFA, unnecessary, devastating, and permanent family separations like these have become far too common. One in 100 U.S. children experiences the termination of both parents’ rights during childhood. For Black children and Native American children, these rates are even higher. Parents facing termination are typically dealing with setbacks related to poverty, trauma, substance use, and other adverse conditions, but they often do not receive adequate support to address the challenges they face, like the housing that supported Bianca in caring for her children at home.
And simply filing to terminate parental rights is a trauma in itself that can set parents back even before the termination is adjudicated, creating a self-fulfilling prophecy. “As soon as they said TPR, I started to give up,” another mother, navigating the state’s attempt to sever her rights, told me. “I said, ‘Not until you said you were going to TPR on me did I even think about using.’” As her children’s cases progressed towards adoption, her caseworker wrote that she “presented as depressed” and “expressed feeling very hopeless about her children returning home.” This mother repeatedly tested positive for cocaine in the months that followed, reversing a pattern of negative screens.
Child welfare experts are increasingly recognizing that we must reverse course. Even federal officials now emphasize that it isn’t in children’s best interests to “sever parental attachments and familial connections in an effort to achieve ‘timely permanency.’” This is not only an issue of child welfare but racial justice. Just as mandatory minimum sentencing laws facilitated the disproportionate removal of Black men from their families and communities, ASFA’s timelines have done the same to Black children.
As the new Congress convenes, Rep. Sheila Cherfilus-McCormick plans to reintroduce legislation that would update ASFA to put the focus back on safe families. This legislation, initially introduced by then-Rep. Karen Bass in 2021, would provide greater flexibility on termination timelines, and states moving to sever parental rights would need to demonstrate that they provided families with the support necessary to address the reasons for foster care. This is a good start.
Public policy can keep children from spending their childhoods in foster care by providing parents with what they need to raise their children. Current laws instead rush us into severing familial ties, breaking up far too many families like Bianca’s.