The child welfare pendulum swings

.... on ASFA, babies, and bathwater

The United States can’t seem to settle on consistent child welfare and protection policy. In one era the focus is on preserving families; in the next, it’s on protecting children from abuse and getting them permanent homes. The latest red herring in this battle between two ideals is opposition to the Adoption and Safe Families Act (“ASFA).

Back in 1997, a bipartisan Congress passed ASFA. As the Washington Post recently described it, at its adoption the law “reflected a genuine commitment to the well-being of children and concern over them spending long months and even years in different foster care homes. Adoption was positioned as a positive and permanent solution for children in temporary care placements.” ASFA passed easily because children who had suffered severe abuse were lingering for years in foster care with no permanent families. Between 1985 and 1999, the number of children in foster care doubled, from 276,000 to 568,000. As one source explains, the law was enacted because “there was concern that some states and judges interpreted the [then-existing] federal child welfare laws as requiring family preservation and reunification at all costs, including in cases where the child's health or safety was in jeopardy.” Children who could not return to their abusive parents were spending years in foster care and, without a permanent family, often “graduated” from foster care to homelessness and other struggles.

ASFA’s provisions are intended to speed permanency for children, especially when those children have suffered severe abuse — especially physical and sexual abuse. It fast-tracks permanency other than reunification with parents for children whose parents have committed repeated abuse or abuse amounting to “aggravated circumstances,” and it forces states to move toward termination of parental rights if a child has been in care for 15 of the past 22 months. There is some indication that ASFA has increased the number of children permanently placed with relatives. In my experience, however, the law has not significantly changed outcomes for most children in foster care, the vast majority of whom are reunited with family. There are now around 400,000 children in US foster care, about a third of whom are placed with relatives. The median length of stay in foster care in 2000 was 12 months; more recently, that figure is more like 15 months.

Current criticism, however, doesn’t center on whether ASFA has achieved its purposes of reducing time in care or increasing safe, stable permanency for children. Rather, the Act has been targeted as a racist law that was “part of a larger scheme to criminalize poverty and further dismantle the Black family;” as stereotyping and punishing parents; and as creating “an unconscionable number of legal orphans.” What we are witnessing is a significant shift among child welfare academics and some practitioners towards keeping families together. That’s an admirable goal, and one that is already the focus of most state and county child welfare systems as well as federal law and funding. Of course, some of the loudest voices opposed to ASFA are also opposed to the entire child protection system and believe it should be abolished entirely.

It’s possible to keep families together while speeding up the time to adoption or other permanency for the more than 100,000 children in care with an adoption permanency plan. Currently, over 50% of those children wait more than two years in foster care to find a permanent adoptive home, and almost a third of them wait three years or more. Repealing ASFA and replacing it with a law that would require the agency to provide two years of reunification services, as some advocate, would merely prolong children’s time in foster care and would prioritize parental rights over the right of the child to a safe, loving, permanent family.

Realizing the aspirations of ASFA means moving children to permanency more quickly, whether that permanency is with their families of origin, with relatives, or in a loving, adoptive home. Federal law should light a fire under child welfare agencies on behalf of those thousands of children who are or will be legal orphans unless we find them a permanent adoptive or relative home. As a system, we can support struggling families to ensure that children do not suffer the trauma of removal to foster care, and we can provide sufficient services to get most children home in a timely manner. But for children who have suffered severe abuse or who are lingering in foster care for years, ASFA can be a valuable tool to provide those children with a family of their own.