Although it took longer than in many other aspects of American life, the racial justice reckoning finally may be having an effect on child welfare. As America is forced to take a new look at other draconian, racially biased laws of the 1990s – the “crime bill” and a law to “end welfare as we know it” – there now are calls to repeal the so-called Adoption and Safe Families Act. ASFA targeted the same population, poor people of color (recall the hysteria over “crack babies”), through a series of steps to encourage removal of their children and rush to keep them from their parents forever.
But some of those who might support repeal are made nervous by a single data point: the average length of stay in foster care. I’ll address why I believe that hesitation is based on a faulty premise and discuss ways to reduce the length of stay in foster care, without hurting children as ASFA does. But first we need to review why it should be repealed.
The passage of the Adoption and Safe Families Act was followed by:
● Nearly a decade of increases in the number of children torn from their families – just as some of its proponents intended. That’s because ASFA included a provision that falsely equated child safety with child removal – inserting repeatedly into the law the inarguable proposition that such safety should be “paramount” – but doing so in a way that wrongly implied that this had not always been the case.
While working on writing ASFA, the late professor Richard Gelles made this explicit, referring to prior law’s requirement to make “reasonable efforts” to keep families together as “two words that kill” and demanding that they be replaced with “child safety.”
A few years after its passage, Gelles couldn’t resist a little gloating. As he explained to the New York City publication Child WelfareWatch:
“Initially, this was just supposed to be a safe families bill, not really an adoption bill at all. The adoption component was a way of sanitizing the bill,to make it more appealing to a broader group of people. Adoption is a very popular concept in the country right now.”
● A rush to terminate children’s rights to their parents (a more accurate term than termination of parental rights). With certain exceptions, ASFA demands that states seek termination if a child has been in foster care for 15 of the previous 22 months. And contrary to what has been claimed elsewhere, judges have no right to stop agencies from pulling that trigger. They can only deny the request after a hearing.
If a child is taken away during her or his first year of life, odds are nearly 2 in 3 she will not return within the next four years, according to data shared with me by the U.S. Children’s Bureau. The 46% of those children who are adopted, and perhaps many others, will never go home again.
● A scandal over “quick-trigger adoptions” in Kentucky, as a result of another provision of the law: Bonuses (a better term is bounties) paid to states for every finalized adoption over a baseline number.
● An increase – in every year but one – in the number of children “aging out” of foster care with no home at all, compared with the number before ASFA became law.
But, say proponents, and those hesitant about repeal, at least the Adoption and Safe Families Act supposedly reduced the time children spend in foster care.
Maybe, maybe not.
There is no dispute that average length of stay has gone down. We know that in 1998, one year after ASFA passed, the average length of stay in foster care was 32.6 months. In 2019 it was 19.6 months.
But take a closer look at the data and there is a surprising pattern. The steepest decrease in length of stay, by far, took place over just six years, from 2006 to 2012. This coincided with a significant decline in entries to care during those years, as the pressure that the law’s mentality put on the system began to wear off. Entries declined from 305,000 in 2006 to 251,000 in 2012.
So did ASFA cause the average length of stay to decline? Or was it the fact that, with fewer new cases to absorb, the workforce had more time to focus on existing cases because they were taking fewer kids?
We don’t know. But if it’s the latter, it suggests that, without the increase in removals spurred by ASFA, average length of stay might have declined more quickly.
But let’s assume, for a moment, that the decline in average length of stay since 1998 is related. To assume that the only way to reduce length of stay is to needlessly inflict the horrifying trauma of family destruction on thousands more families is like assuming the only way to cure an infection in a limb is to amputate the limb.
Had the authors of the Adoption and Safe Families Act really been interested in reducing time in foster care, they would have focused their incentives on reunification and on guardianship, which does not require termination of children’s rights to their parents and can be achieved more quickly. Guardianship also emphasizes what the Children’s Bureau calls “relational permanency” over paper permanency.
Furthermore, if ASFA were repealed, the mechanism to insure reducing average length of stay the right way already exists. It’s the law that was on the books before and remains there today: the Adoption Assistance and Child Welfare Act of 1980.
For starters, the federal government could, for the first time, actually enforce the provision of that law requiring states to make “reasonable efforts” to avoid tearing apart families and to reunite them once in foster care. This provision has become such a sick joke that judges feel free to admit that they lie and certify that reasonable efforts have been made even when they don’t believe it – because checking that box on a form is required for states to claim federal foster care reimbursement.
The 1980 law also was the first to impose timelines on states, requiring reviews every six months. But its timelines do not presume that tearing apart the family forever and placing the child with strangers is the best answer, and require the family to prove otherwise. Rather, these timelines simply set deadlines for bringing a case to the best conclusion, be it reunification, guardianship or adoption. But, like “reasonable efforts” the timelines were never enforced – and, unlike the Adoption and Safe Families Act, they included no financial incentive for states to follow them.
Freed from the pressure to prefer adoption over all other forms of permanence, states also might be less likely to rush into quick-and-dirty slipshod placements that fail. Because child welfare almost never asks questions to which it doesn’t want to know the answers, we don’t know how often that happens. But it’s less likely to happen if child welfare systems are not pressured and bribed to exalt adoption over other forms of permanence.
We need to repeal ASFA. Then, the federal government needs to enforce the Adoption Assistance and Child Welfare Act of 1980 and see what it can do.
Richard Wexler is the executive director of the National Coalition for Child Protection Reform.
