Comment: U.S. adoption policy has harmed families, children

The current system, a 25-year-old political solution, often unnecessarily servers ties to birth parents.

By Mical Raz / Special To The Washington Post

Twenty-five years ago, President Bill Clinton signed the Adoption and Safe Families Act. Passed in 1997, with broad bipartisan support, ASFA 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.

Today, adoption is in the news again, especially with the Supreme Court’s Dobbs decision, which ended the legal right to an abortion. Indeed, the debate about adoption has long been intertwined with debates on abortion. Conservatives have positioned adoption as a bipartisan common ground priority. Democrats also embraced adoption, eager to support children who needed homes; but also keen to promote a noncontroversial “answer” to the problem of abortion.

Yet this focus on adoption has put parental rights at risk. With the passage of ASFA and a renewed focus on child welfare, more children were removed from their homes of origin and permanently placed in new homes. ASFA, as many legal scholars and activists have argued, has destabilized families and communities, often with the greatest harm done to poor families and families of color. Adapting key views of antiabortion pro-adoption activists, and circumventing unpopular discussions over how to effectively address poverty and addiction, a broad coalition of policymakers and child advocates have shaped a system that devalues families.

In the 1970s, increased mandatory reporting and expanded definitions of abuse helped set the stage for a growing number of children hurriedly removed from their homes and placed in foster care, where they were often abused. The process was expensive, inefficient and often dangerous for children.

The 1980 Adoption Assistance and Child Welfare Act (AACWA) was designed to reduce the number of children in foster care, through family preservation efforts on the front end of the system, and support for adoptions on the back end. Foster care rolls declined only briefly. Implementation was particularly tricky. By the mid-1980s, as the Reagan administration cut funding for social programs for families and turned its attention to the drug wars, child removals increased and support for family preservation efforts dwindled. Opponents of family preservation argued that it had been tried and failed.

In the 1990s, the Clinton administration adopted Republican-inspired work requirements for welfare eligibility, spurring debates over the fate of children in struggling families. Infamously, in 1994 then-House Minority Whip Newt Gingrich, R-Ga., suggested that some children of poor mothers would be better off in orphanages, indicating that institutional care would be an important component of welfare reform. Softened with focus-group tested words, the Republican idea of removing children from poor families would help lay the groundwork for the passage of ASFA.

Adoption advocates seized the moment as an opportunity. The National Council for Adoption (NCFA), a powerful adoption advocacy organization, often described as a “trade association” for private adoption agencies, worked to broaden support for adoption as an important component of the child welfare system. Between 1993 and ‘95, the NCFA co-organized a series of conferences highlighting adoption as a solution to the foster care crisis. This was a clear departure from previous approaches that highlighted family preservation as the goal for child welfare intervention. NCFA explicitly portrayed these conferences as a response to Republican policy goals as articulated in the 1994 “Contract with America” and to ongoing debates over orphanages and adoption.

NCFA’s vice president for policy, Carol “Cassie” Statuto-Bevin, gave testimony on behalf of the NCFA and shared the conference’s main recommendations at congressional hearings on child welfare in February 1995. She subsequently became the lead congressional staffer for ASFA and the main force in developing the House version of the ASFA bill and popularizing an adoption-centered view of child welfare.

Thus, key components of ASFA began with a blueprint of Republican policy priorities, developed into professional language by child welfare experts, published in a report by Statuto-Bevin and then endorsed by bipartisan legislators and a Democratic president.

Adoption became a key priority for the Clinton administration. In 1996, Clinton announced his Adoption 2002 plan to double the number of children adopted from the public child welfare system by 2002. Clinton also embraced tax credits for adoption, which had been a Republican priority in the “Contract with America.” First lady Hillary Clinton, a staunch child welfare supporter, eagerly backed adoption initiatives, stating plainly: “instead of yelling at one another about abortion, we should spend our energy making adoptions easier.”

Many of those who helped ensure ASFA’s passage were passionate advocates for children. Some were appalled by how long children waited in foster care, how they were bounced between placements and sometimes experienced abuse or neglect. Many believed adoption was a positive solution, particularly for children already removed from their homes and in need of care.

But without the consideration of children’s biological parents — and without their testimony in hearings — those parents were framed as expendable barriers to adoption rather than key partners in caring for children.

Just one Democrat voted against the House bill to establish the ASFA. Rep. Patsy Mink pointed out that Clinton’s 1996 welfare reform would collide with ASFA and leave many more children vulnerable to being removed from their families. Without a robust social safety net, she cautioned, more families would be impoverished, and then child welfare agencies would be compelled to remove these children and place them in foster care. Mink warned that it was unjustified for “the national government to establish adoption as a penalty due to poverty of the parents.”

But ASFA became law; and had elements that did just that. It required states to move forward with termination of parental rights if children spent 15 out of the previous 22 months in care outside the home, regardless of whether child abuse or neglect had even occurred. The timeline was an arbitrary compromise between legislators, with dire consequences for families. Contemporary memos indicate that ASFA specifically was designed to place the onus on states to justify why they did not terminate parental rights.

A quarter-century later, the impact of ASFA is clear. Parents, predominantly Black, poor, and many struggling with addiction, have experienced the ultimate loss, or what has been termed by advocates the “civil death penalty”: the permanent severing of legal ties with their children. The timelines to termination do not align with what is currently known about addiction, and do not allow parents the possibility for redemption.

ASFA increased the number of adoptions from foster care, but it did not address the main reasons that children end up in foster care; a system that faults parents for their struggles, and offers few material resources and supports. Terminations of parental rights are practically commonplace; 1 in 100 children will experience this parental loss. It also created an unknown number of legal orphans: children who no longer had parents, due to termination of parental rights, but also had not been adopted, and might never be.

ASFA has become a key component of a system that disproportionately targets poor families and families of color, leading to excess investigations, child removal, foster care placements and culminating in the termination of parental rights; what advocates have termed the family policing system.

It is imperative to remember the bill’s origins and recognize that it was designed to serve an antiabortion, pro-adoption political agenda, supported by private adoption agencies and incentivized by federal subsidies for adoption. These interventions have created real harm to families and children.

On this anniversary of ASFA, we should relieve ourselves of outdated notions of providing “new families” for children, and instead work vigilantly to support communities and families in which all children can thrive.

Mical Raz is a professor of history and health policy at the University of Rochester, and a practicing physician.

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