ASFA: The racist child welfare law from the 1990s that almost no one talks about*

*-UPDATE, DECEMBER, 2022: Until now. In 2022, upon the occasion of ASFA's 25th anniversary, a lot of people wrote about the harm it's done.  Here's a sample.

It’s time to repeal the law that turns child welfare into the ultimate middle-class entitlement: Step right up and take a poor person’s child for your very own.

           Pandering to our worst instincts about race and class is nothing new.  In the mid-1990s Congress passed three laws rooted in racism. It wasn’t just Republicans. All of the laws had the enthusiastic support of Democratic President Bill Clinton.

           The three laws combined devastated poor Black communities.  Many on the Left have now figured that out – when it comes to two of those laws, a 1994 “crime law” that accelerated America’s love affair with mass incarceration, and the 1996 welfare law that ripped away financial support for impoverished, struggling Americans.  Both laws, of course, disproportionately affect people of color.

           But there was a third bill, equally racist in its origins, equally harmful in its effects, that has largely evaded this recent reckoning.  That’s no surprise. It’s one more example of the classic problem of much of the American Left: Many of my fellow liberals will renounce everything they claim to believe in if you just whisper the words “child abuse” in their ears.

           That’s how we got the so-called Adoption and Safe Families Act of 1997 (ASFA).       

How we got stuck with ASFA

           A series of trends coincided to bring us to ASFA.  One, of course, was the fearmongering and racism that pervaded 1990s politics. This was the era when House Speaker Newt Gingrich championed both ending welfare and putting poor people’s children into orphanages.

           Second was fear on the part of America’s foster-care industrial complex that the federal funds gravy train might be ending.  In 1993, for the first time, Congress put a little bit of real money behind help to keep families together. It was still a pittance compared with the giant open-ended entitlement for foster care, but suddenly scare stories started turning up in newspapers around the country about children left at home supposedly because of a fanatical desire to preserve families.

           One story in particular captured enormous national attention. The Chicago Tribune scapegoated family preservation for the death of a little boy named Joseph Wallace. Not only was that untrue, a family preservation worker nearly saved Joseph’s life.  The Tribune figured this out – eventually. But by then it was too late.  Even though the internet was in its infancy, for a variety of reasons, discussed in detail here, the story went viral. 

          

 Third, the child welfare establishment spread a related myth: They claimed that an earlier federal law, the Adoption Assistance and Child Welfare Act of 1980, requiring “reasonable efforts” – and nothing more -  to keep families together, supposedly led to some children being left in dangerous homes and other children languishing in foster care.

This, too, is false. The problem of children languishing in foster care had been documented for decades before 1980; it was a major focus of the first story I wrote about foster care in my earlier career as a journalist – in 1976.

The Adoption Assistance and Child Welfare Act of 1980 was passed to prevent children from languishing in foster care.  But it did nothing to change the federal financial incentives that encourage foster care and discourage better alternatives. And the reasonable efforts clause – to this day – has never been enforced.

For example: Because federal funding is linked to claiming that reasonable efforts have been made, in Michigan 40% of judges admitted to lying and certifying such efforts had been made when they didn’t even believe it themselves.

So after a brief decline in the early 1980s, the number of children taken from their parents kept right on increasing in almost every year after that law was passed.  And though the federal government’s annual Child Maltreatment reports show that known cases of child abuse peaked in 1993, entries into foster care still kept going up. 

The reason children languished in foster care was not reasonable efforts, but the lack of reasonable efforts.  That's why children continue to languish in foster care today.  There were no efforts to curb needless removal and once in foster care the children were filed away and forgotten as overwhelmed caseworkers rushed on to the next case. 

Don’t say the O word!

             Meanwhile, in 1994, soon-to-be House Speaker Gingrich made that notorious proposal to force poor people’s children into orphanages.  Republican polling guru Frank Luntz sent House Republicans a memo telling them they could get what they wanted – if they stopped using the O word.

So suddenly, the Republicans started framing the issue in terms of adoption.  They told us millions of childless middle-class Americans were desperate to adopt foster children, but a Vast Family Preservation Conspiracy supposedly was trapping the children in foster care.

A lot of Republicans knew better, but they didn’t care; they were fine with orphanages.  For them, ASFA was the backdoor to the orphanage. A lot of Democrats were suckered by all the treacly talk about adoption.  ASFA passed nearly unanimously.

By 2000, one of the authors of ASFA, the late Richard Gelles, dean of the School of Social Policy and Practice at the University of Pennsylvania - and a supporter of orphanagesw -- couldn’t resist a little gloating.  As he explained to the New York City publication Child Welfare Watch:

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. [Emphasis added.] 

What does ASFA do?

● ASFA blows huge holes in what little was left of the “reasonable efforts” requirement.         

● With limited exceptions, ASFA demands that states move to terminate children’s rights to their parents (which is what “termination of parental rights” really means) for any child in foster care for 15 of the previous 22 months -  regardless of whether the child should ever have been taken at all, and regardless of whether the passage of time was the parents’ fault. 

As Jerry Milner, Associate Commissioner of the Children’s Bureau in the Department of Health and Human Services and his Special Assistant David Kelly write in the latest issue of Children’s Bureau Express:

 In more recent times in public child welfare—with the passage of laws that place short time limits on efforts to help families regain custody of their children—we have created more legal orphans than children entering care without living parents. The underlying philosophies behind such laws placed value in getting tough on parents facing difficulties and has disproportionately affected poor parents, Black parents, and Native parents. We have fed a culture of blame.

 This should give us considerable pause.

 We have effectively tied parenting and family relationships to a calendar, and in so doing, one of the most sacred life experiences and purposes a human being can serve has been placed on a timer.

          ● ASFA pays states bounties of thousands of dollars per child for adoptions over a baseline number.  Since the states can keep the money even if the adoption fails, it encourages quick-and-dirty slipshod placements.

● But even more important than any single provision, ASFA sent a message to the child welfare frontlines: You should falsely equate child removal with child safety and rush to take away more children. (That’s what Gelles meant by “a safe families bill” that was “sanitized” by the adoption provisions.) And, of course, it sent that message to a system permeated with class bias and racial bias.

 So even as child abuse continued to decline, the number of children in foster care on any given day kept increasing, peaking in 1999.  It didn’t fall below the number when ASFA became law until 2003.  The number of children taken away over the course of a year kept increasing until 2006.  There were a few years of slow declines, then an increase and now the number is declining again. (Details and sources here.)

So ASFA’s true effect was to make the system bigger, tear apart even more families needlessly, and consign more children to the very chaos from which they supposedly were going to be saved.

Legal orphans

           As for all those promised adoptions, the army of childless yuppies never showed up.  Adoptions increased modestly – continuing a trend that had begun before ASFA passed. But the average annual increase in adoptions over the year before typically equals about four-tenths-of-one-percent of the number of children in foster care on any given day.  And we have no reliable data on how many of these adoptions fail, with the adoptive parents giving up on the children and sending them back into the system.  What little we do know is disturbing.

           

Worst of all, every year more children lose their rights to their parents than are adopted.  The result: A sharp increase in children aging out of the system with no home at all, separated from their birth parents, but without an adoptive home.  In many cases, these were children whose rights to their parents had been terminated, making them, as Milner and Kelly remind us, legal orphans.

           We estimate that between 1997 and 2019, because of ASFA at least 121,000 more children aged out of foster care with no permanent home than would have aged out had there been no ASFA. 

ASFA and safety

             Those clinging to ASFA also try to smear anyone who opposes this racist law with  the Big Lie of American child welfare – that anyone who opposes ASFA would, as one backer of the law put it, “put the rights of parents over the safety of children.”

           On the contrary, there is abundant evidence that, almost always, family preservation is safer than foster care. The high rate of abuse in foster care itself is one likely reason that, in typical cases, children left in their own homes typically do better even than comparably-maltreated children placed in foster care.  And, of course, ASFA’s enshrinement of a take-the-child-and-run mentality overloads systems so workers have even less time to find the few children in real danger.

           ASFA makes all vulnerable children less safe.

           But then there’s nothing new about hiding an agenda that oppresses poor people of color behind myths about safety.  Newt “bring back the orphanage” Gingrich does the same thing to justify oppressive police tactics such as stop-and-frisk. 

How ASFA plays out case-by-case

           ASFA exploits the child welfare system’s worst instincts. Here’s how it works for child protective services agencies (or, as they should be called, family police agencies). Not all of this process was created by ASFA, of course, but all was worsened by it:

           ● First take away children because the parents are poor.  Although any poor family is a potential target, racism ensures that poor families of color are even more vulnerable.

           ● Then place the children with white, middle-class foster parents who really want to adopt the child.

           ● Through a process called “concurrent planning” – encouraged by ASFA – tell the foster parents their first obligation is to help reunite the family. But if, by some chance, they fail at that then they get what they really want: Someone else’s children.  

           ● Give the middle-class foster parents all sorts of help denied to the poor parents, such as a significant monthly payment – tax free – other “allowances” and sometimes even childcare.

           ● Because you really prefer those middle-class foster parents, stall and stall for 15 months.

           ● Then, invoke the provision of ASFA, which, with some exceptions requires states to petition for termination of children’s rights to their parents after 15 months.           

(Though one ASFA proponent claims the law includes a provision allowing judges to intervene at this stage if a state failed to make “reasonable efforts” that is flat-out false.  The state itself would have to confess to this failure in order to invoke the “reasonable efforts” exception and not file a termination petition.  Judges get involved only after the petition has been filed and the case has gone to trial.)

             Result: The child welfare system becomes the ultimate middle-class entitlement: step right up and take a poor person’s child for your very own.

 As Prof. Martin Guggenheim, co-director of the Family Defense Clinic at New York University School of Law (and NCCPR’s President) explains:

 ASFA has been responsible for the massive destruction of black and brown families. More than 2 million children’s parents’ rights have been terminated ... since ASFA was enacted. … It is an unpleasant truth that many of the organizations whose collective voice is condemning racist police practices now have for decades celebrated the approach enshrined in law by ASFA, some by explicitly celebrating adoption and others using the euphemism “permanency.”

             The Movement for Black Lives also has condemned the law, as have many other organizations advocating for racial justice.

How to fix it

 We can fix this if we learn the right lessons from the past 23 years.

Imagine what would have happened if, instead of passing a racist, regressive law such as ASFA, we’d put our effort into actually enforcing that earlier law, the Adoption Assistance and Child Welfare Act of 1980.  Think how many fewer children would have languished in foster care – because they wouldn’t have been taken at all and, for those who were taken, workers would have had more time to reunite them or, when genuinely necessary, get them adopted.

As Milner and Kelly write:

 During this time of reckoning, veils are being lifted and society is becoming increasingly aware of barriers to equity and the impact of laws that may appear neutral on their surface but cause harmful consequences. Child welfare legislation should not escape scrutiny. ... [W]e should pay thoughtful attention to the design and impact of our laws—old and new—to determine if they represent the knowledge we have about what families and children need to thrive and when they need it.

 So we know how to fix this. In fact, it’s a simple two-step process:

 ● Repeal ASFA.

● Enforce “reasonable efforts.”