When the Clinton administration passed the Adoption and Safe Families Act (ASFA) in 1997, it intended to drastically reduce the number of children stuck for long periods of time in foster care. One of the safeguards it put in place was a timeline: If a child was in the foster care system for 15 of 22 consecutive months, states would be required to file for termination of parental rights — with an exception made if the child welfare agency provides a “compelling reason” as to why the parent should retain their rights, though a judge would have the power to overturn that appeal.
Courts can terminate parental rights when child welfare agencies present evidence that a parent is not able to care for their child, including because of neglect, abuse, maltreatment and crimes against children. But there are a much broader range of reasons a child ends up in foster care, and critics have long urged lawmakers to re-examine how this timeline places more stress on both parents and children, and in some cases prematurely separates children from their families.
Roughly 1 in 100 children in the U.S. have their parents’ rights terminated by age 18, according to an expanded 2019 analysis by Cornell and Rutgers Universities, and Black, brown and Indigenous families, as well as low-income families, disproportionately lose these rights.
“[ASFA] wasn’t designed to protect those families. It was designed to be harmful to those families,” said Joyce McMillan, a longtime advocate who wants the law repealed. “Look at those kids whose [parents’] rights are terminated. The system doesn’t fight for children. The system does not parent,” she added, referring to the higher likelihood of negative life outcomes for foster children.
A new House bill introduced in November aims to build in better protections for different marginalized groups in the system, as well as give more time for parents to get their kids back in their care. While some advocates want to remove the timeline altogether, the bill seeks to expand it to at least relieve some of that pressure, they said.
How does this system work?
Child welfare and family law experts who spoke with the PBS NewsHour called the termination of parental rights a “death penalty,” because there are few pathways to restoring those rights.
If parents’ rights are terminated, they can file a petition to reinstate them, but this is an option only available in 22 states. And even then, this is only possible if the child has not yet been adopted, and the barriers to winning a case vary by state.
The timeline welfare agencies use to terminate parental rights begins as soon as a child is removed and put into the state’s care. During that time, the parent is tasked with a “reunification plan” ordered by a judge, which can include things like parenting classes, earning a GED, or finding stable housing. Currently, there are no exceptions for incarcerated parents and parents in immigration detention.
The law offers incentives for getting children into permanent living situations quickly — states get more federal funding if they adopt more children out of the system. States also receive federal money for permanent legal guardianships, but the award often is lower than it is for adoption. There are not any financial incentives for states if they establish a permanent living situation through family reunification.
Children not only lose a connection to their parents when rights are terminated, but to extended family as well. If no adoptive family is lined up after parental rights are terminated, then the child becomes a legal orphan.
Ashley Albert, who lost parental rights to her three children and now advocates for parents like herself, felt like she faced an impossible decision: Risk never seeing her children again by fighting for her parental rights in court — a battle she said her court-appointed lawyer told her she’d never win — or surrender her rights and sign an open adoption agreement so she could still have a chance to visit her children in a limited capacity.
“Signing the open adoption agreement papers was pitiful, incomprehensible and demoralizing,” Albert said. “I was pressured by people I thought were supporting me.”
Family law experts told the PBS Newshour that it is rare to win a termination case, and often they have to advise clients to take an open adoption agreement, calling it a “plea deal,” even if there is not a family lined up for an adoption.
“The perception is that certain families aren’t going to be willing to adopt if the child is not ‘free for adoption,’” said Sarah Katz, a family law professor at Temple University. “We’ve terminated the rights of the only people who have any ties to this child and made them a ‘free agent’ literally like in the words of sports training. But the problem is that doesn’t mean that an adoptive family comes forward for every kid.”
Adoptions out of the system have generally increased since the law passed, but more than 23,000 children still age out of the system each year without any family ties, according to the Nation Foster Youth Institute. According to the Children’s Bureau, an estimated 63,800 children in the United States had parents who lost their parental rights and became legal orphans waiting for adoption by the end of 2020. In total, 117,000 children were in the child welfare system without any legal ties to family and waiting to be adopted.
Tara Urs, who litigates termination cases for King County, said decision makers in the system often hold underlying biases that adoption is just simply better for children that both ignore childhood development research and perpetuate racial and classist stereotypes of white middle-class suburbia being the safer, better place for children to be raised.
What does the new bill say?
The new House bill, introduced by Rep. Karen Bass, D-Calif., would extend the 1997 timeline from 15 of 22 consecutive months to 24 months. It also prohibits incarceration, immigration detention and substance abuse recovery from being the sole cause for termination and requires states to provide proof that they provided adequate support for the parent who faces termination proceedings.
Other provisions include protections for LGBTQ+ children and fewer barriers for LGBTQ adults to adopt. The bill also asks states to consider the child’s race, culture, gender identity and sexual orientation when finding an adoptive family to ensure the child goes to a safe home.
Bass told the NewsHour that her legislation is meant to correct “well-intended legislation” that had unintended consequences. She said while she understands the argument for not having a timeline, she doesn’t want kids to languish in foster care. She added that in order to make legislative change, she has to advocate for something that is “doable” and does not think a bill that got rid of timelines completely would get votes.
Bass’s legislation also does not address the current financial incentives for states to prioritize adoption over kinship, guardianship and reunification. While some advocates say Bass’s legislation may be a step in the right direction, others still believe that the timeline should be abolished altogether.
McMillan said kids are still aging out of foster care and the timeline forces them to age out without any connection to their families. Albert said that there can’t be a timeline on healing, especially for parents who are struggling with mental health, substance abuse or other trauma.
“Healing is not one-size-fits-all,” she said.
Albert, who grew up in the foster care system herself in King County, Washington, struggled to work through the trauma she experienced as a kid, and like many who grow up in the system, she had also experienced homelessness, mental health issues, and incarceration.
Before rights were terminated, Albert had fought to keep her three children under her care. They were in foster care for several months while she pleaded her case to child protection services. Ultimately, however, two of them were adopted by separate families.
“I thought adoption was for parents that didn’t want their kids, like they didn’t show up at all,” Albert said. “I didn’t understand how I was going to get my children adopted when I was showing up.”
Sixto Cancel, CEO of Think of Us, a child welfare policy think tank, said that many parents continued to work against the timeline despite a pandemic. He said parents couldn’t visit their children because of social distancing, but they were still being held liable for not complying with the case plan given to them before the pandemic began. Now, they are facing their rights being terminated.
Maureen Flatley, who helped write both ASFA and the new bill, said 24 months is a “very reasonable number” and lines up with family assistance provisions in the Family First Act, a child welfare bill passed in 2018. She told the NewsHour that the initial 15 of 22 month timeline was not based on empirical evidence that showed why that time frame worked.
In a January report, the Administration of Children and Families, which is part of the Department of Health and Human Services, wrote that the division does not want children in foster care longer than what is needed to keep them safe, but also does not believe it’s in the best interest of the child to terminate parental rights to adhere to a timeline that could lead to “shortcuts in practice that can be harmful to children and families.”
The agency said the focus should be on nurturing the parent-child relationship while the child is in foster care, so that healing can occur and families can reunite safely. And in cases where a guardianship or adoption is determined to be the best long-term plan for the child, agencies should consider how they can safely preserve the child’s ties to biological family members. “Children in foster care should not have to choose between families,” the report said.
The cycle of harm in the system
When a child is removed from the household, parents don’t have enough time to process the trauma of their child being taken away. They are then expected to complete a list of tasks from a judge that may not help the parent directly resolve the root issues at hand. This can add further stress for parents, and even push them into unhealthy coping mechanisms, Katz said.
Parents may have to attend parenting classes, substance abuse treatment, therapy, and court hearings. If they don’t have a car, they’ll have to rely on public transportation, which makes commutes longer. If they have to take time off work, they may lose wages and face housing and food instability, which could prevent them from getting their kids back. If they miss an appointment, they could be seen as neglectful as well.
“You’ve shattered their world, you’ve taken their children away, and now you’re asking them to pick up the pieces and fix it in a period of basically a year or a little over a year?,” Katz said. “It’s simply not not realistic.”
D’Andre Cunningham, an attorney who represents incarcerated parents and who has litigated child welfare cases for King County, said agencies often hold struggling parents to a standard that is set by parents with more resources and financial stability.
Families are investigated by child welfare to determine if there is maltreatment, neglect or risk of maltreatment or neglect. The majority of child welfare investigations find that allegations of neglect, abandonment, and maltreatment are not substantiated, according to the Children’s Bureau. Cunningham said, more often, it’s symptoms of poverty and systemic racism that translate as risks of harm.
In a study that examined contact with the child welfare system in the 20 most populous counties in the country, more than 50 percent of investigations in 11 counties were Black families. Investigations in King County were the lowest for Black families at 32.9 percent, but Black people only make up about 7 percent of the county’s population.
Black children made up 23 percent of children in foster care in 2020, despite making up 14 percent of the population. By comparison, white children made up 43 percent of children in foster care and 50 percent of the population.
“We normally only see privileged families when there’s actual abuse, actual maltreatment or actual abandonment,” Cunningham said, adding that low-income communities and communities of color are already more heavily surveilled by systems, so a mistake that would seem normal for a middle-class white parent could result in an investigation for a low-income parent or parent of color.
Advocates argue that if the money given to foster families was given to biological parents directly, the issues that led to a CPS investigation could be solved with a lot less stress on both children and parents.
“[We should be] looking at people’s individual needs and finding resources and creating pathways and being a resource and a support. If you’re not that, you’re not part of the solution, you’re part of the problem. And in that case, [the child welfare system is] not just part of the problem, they are the problem,” McMillan said.