Here we are with the second part of an ongoing series about the Adoption and Safe Families Act (ASFA) and attachment. We’re asking how ASFA —the federal law that seeks to speed up permanency for children, jibes with attachment theory — the biological need that children have to “attach” to a trusted adult. Children who have a primary, trusted adult caregiver know they can explore the world safely and return home; healthy attachments improve cognitive development, the ability to relate to others, and the ability to regulate emotions. As Professor Shanta Trevedi notes, removal of a child from a parent to whom he or she is attached can cause serious emotional distress and result in later problems including aggression and depression.1
Anyone who’s worked in child welfare for very long has seen the effects of attachment disruption and poor attachment on children. There’s the six year-old who is abused by the parent and placed in foster care but who desperately wants to return to his mother. There’s the 15 year-old who has bounced from placement to placement and disrupts every living situation. We have the “legal orphan” whose relationship with his or her parents has been terminated but who does not have a permanent family and is resistant to adoption or guardianship.2 Research shows that a child’s attachment issues can even affect the next generation: mothers who were abused as children and whose trauma was not addressed are more likely to have trouble forming a healthy attachment with their own children.3
So what does this have to do with ASFA? In the late 1990s, ASFA emerged as part of an international movement4 to prioritize adoption as the preferred outcome for children who could not return home. Critics of the then-existing focus on family preservation and family reunification hailed this move as a solution to children languishing in abusive homes or in foster care for years with no relief. As noted last week, ASFA’s “fish or cut bait” approach emphasized early decision-making regarding reunification or alternative permanency, establishing tighter timelines for establishing permanency and authorizing states to dispense with reunification efforts in cases of serious abuse and serious criminal activity directed at a child or his or her sibling.
As noted last week, ASFA seems to have reduced the number of children in foster care, reduced the average length of time those children stay in care, and increased the percentage of children who have a solid “permanency plan” reflecting one of ASFA’s preferred outcomes: reunification, adoption, or permanent guardianship, preferably with relatives. While these steps were helpful, the past 25 years has shown that they are insufficient to create a system that truly protects the child’s right to healthy attachments.
First, ASFA mentions nothing about attachment. Rather, it is completely focused on the action or inaction of parents. If parents have done very bad things to this child or a sibling, the agency should begin actions to terminate the parents’ rights. The hierarchy of non-reunification permanency in ASFA — adoption, legal guardianship, placement with a fit and willing relative — seems arbitrary and not based on a consideration of the child’s existing relationships. The directive for states to seek termination of parental rights after 22 months — unless the child is staying with a relative, there are other “compelling reasons” not to do so, or the state hasn’t provided reunification services — again appear focused on the agency’s and parents’ actions or inactions rather than on the needs of the child for healthy attachment.
None of this is to say that the law should not take into account the actions or omissions of the parent or agency. After all, the rights of parents to raise their children without unnecessary government intrusion is a fundamental one, and when due to maltreatment the government intervenes, it has a duty to provide services to keep the family together or reunite them when it is safe to do so. What ASFA seeks to do, but does not do well, is to clearly define the circumstances under which the child’s right to healthy attachments permanently overcomes the parent’s right to care and control of their child.
The “aggravated circumstances” provisions of ASFA outline situations in which society might well determine that a child’s right to a safe, permanent, and stable home trumps any parental right to maintain the relationship. Thus, if a parent has killed or severely abused a child or a sibling of the child, or has already suffered an involuntary termination of parental rights (TPR) determination on another child, ASFA suggests that states not pursue reunification. Richard Gelles, former Dean of the School of Social Work at the University of Pennsylvania, believed these “suggestions” should be mandatory.5 While he had a point, the simple list here of egregious activity does not take into account a particular child’s relationship with a parent. For example, there are mothers who, for reasons of substance addiction, have lost children to TPR in the past. A child who is born to a mother who is in recovery, and who can develop a healthy attachment to that mother, should not necessarily lose that right to a loving parent.
Nor does ASFA’s hierarchy take into account the relationships that develop between children and foster parents. Over 20 years, I have witnessed child welfare agencies “react” to ASFA’s requirements by moving children from stable foster placements to relative placements with strangers or to “adoptive” homes based on the perception that ASFA requires such. Were we to have a system centered on the child’s right to healthy attachments, ASFA might instead clearly require the child welfare agency to consider as its long-term goal the stability of a placement with a foster parent with whom the child has formed a solid attachment.6
Parkinson (fn 4) noted that modern permanency planning is often framed as a conflict of rights between parents and children. I would counter that it too often is not considered as a conflict of rights — the parent’s right to care for the child vs. the child’s right to a caring parental figure. Rather, the law continues to focus too much on what the parent has done or not done and too little on the child’s fundamental need for healthy attachments.
Next week, we’ll take a shot at re-writing federal child welfare law from an attachment-centered perspective.
S. Trevedi, “The Harm of Child Removal” (2019). 43 N.Y.U. Rev. L. & Soc. Change 523.
The Dave Thomas Foundation estimates there are over 100,000 “legal orphans” in the US at any given time.
See, e.g., N. Berthelot et al, “Intergenerational Transmission of Attachment in Abused and Neglected Mothers: The Role of Trauma-Specific Reflective Functioning” (2015) 36(2) Infant Mental Health J. 200.
See, e.g., P. Parkinson, “Child Protection, Permanency Planning and Children's Right to Family Life” (2003) 17 Intl. J. Policy & Fam. 147 (discussing ASFA and similar laws in multiple countries).
I spoke with Dean Gelles about this issue shortly before his untimely death.
See R. Hegar, Foster Children’s and Parents’ Right to a Family” (1983) 57 Social Service Review 429.