A new memorandum from the federal government’s top child welfare leaders argues that the field has been getting one of its most important goals — permanency — all wrong. After examining the latest research — including new analyses of federal data conducted by the U.S. Children’s Bureau itself — the memorandum concludes that an obsession with permanency-on-paper and a rush to meet arbitrary timelines is denying children the permanency that really matters — “relational permanency.”
“Legal permanence alone doesn’t guarantee secure attachments and lifelong relationships,” the memorandum says. It elaborates:
The relational aspects of permanency are critically important and fundamental to overall well-being. … Children do not need to have previous attachments severed in order to form new ones. In fact, they will be better positioned to develop new relationships if we work to preserve their original connections, sparing them from additional grief and loss.
The Children’s Bureau’s analysis is supported by research showing that when the child welfare system rushes to terminate parental rights prematurely, it actually prolongs the time on average that children remain in foster care and increases the chance that they will emerge from the system with no family at all.
But as often happens, the science is running ahead of the law — in particular one law, the Adoption and Safe Families Act of 1997, or ASFA. That law conflated child removal with child safety, placed one form of permanence — adoption — ahead of all others, and established timelines based on 1950s-era theories about attachment that even at the time were outdated. Passed in the wake of the now debunked “crack baby” scare, and at the same time as nefarious federal laws on crime and welfare, it reflected the racial and class biases that were ascendant at the time and that to this day continue to inflict harm on children, youth and families.
We’ve learned a lot in 24 years, not just about attachment, but also about bias. As one child welfare group after another asserts a commitment to champion racial equity, the incoming Biden administration can seize this moment to bring federal law up to date.
We believe ASFA should be repealed and our foster system reenvisioned. But short of a full repeal, there are steps that can bring ASFA and other federal laws up to date, improve children’s chances of achieving true permanency and help eliminate some of the biases that still permeate child welfare.
Raise the standard for separation of families. The Supreme Court has made clear that the Constitution does not allow the government to intrude on fundamental rights — such as the right to family integrity — except when there is a compelling reason and the intrusion is as limited as possible. This means family separation is only constitutional when necessary to protect a child from significant harm. Yet federal funds are made available for any eligible case in which it is claimed that remaining in the home would be “contrary to the welfare of the child.” That standard invites bias and overreach, and allows children to be separated due to poverty. The law should be changed to allow reimbursement only when removal is necessary to protect children from imminent risk of serious harm.
Shift ASFA’s “default position” away from favoring termination and toward recognizing the importance of family attachment. If a child has been in foster care for 15 of the previous 22 months, ASFA establishes a presumption, with limited exceptions, that the best option for the child is to be separated from her or his parents forever. Some states have enacted even more draconian laws.
But the burden of proof always should rest with those who believe children don’t belong with their families. Arbitrary deadlines favoring termination should be replaced with strictly-enforced plans for reviewing what outcome would best serve each individual child’s needs, without a presumption that adoption is the preferred outcome.
Stop favoring adoption over other permanency options. Right now the federal government pays states bonuses for finalized adoptions over a baseline number. It also pays bonuses for guardianships, though in some cases the bonuses are lower. But states get no extra incentive for reunifying families. Incentives should be equalized for all forms of permanency.
Ensure that meaningful family preservation and reunification efforts are a condition for federal funding. Current law requires states to make “reasonable efforts” to keep families together. This has never been enforced. Congress should raise the requirement to “active efforts” — the standard now required for Native American children under the Indian Child Welfare Act. To put teeth into the requirement, Congress should allow families to sue to have the right to these efforts enforced.
Ensure a path to post-termination contact. When the termination of parental rights is genuinely necessary, require that states provide contact between children and their birth families unless a court finds this is counter to the child’s best interests. The Children’s Bureau memorandum put it best: “Children in foster care should not have to choose between families.” When couples divorce, the noncustodial parent is not automatically cut-off from all contact with the children. The same standard should apply after termination.
In the memorandum, the Children’s Bureau declares that the value of preserving families “must be the compass that guides our path to achieving the permanency goals of reunification, adoption and guardianship so that the well-being of every child is also achieved.”
ASFA is like a magnet that sends the needle of a compass spinning and leads us in the wrong direction. Congress and the Biden administration now have the chance to remove the magnet and set child welfare back on the right course.
Both authors are members of United Family Advocates, an organization that supports bipartisan child welfare reforms for families.
