This month marks the 25th anniversary of the Adoption and Safe Families Act of 1997. Promoted as a way to rescue children—especially Black children—languishing in America’s overloaded foster system, ASFA has had the opposite impact. By speeding up termination of parents’ rights, it has dramatically increased the chances that Black families, which are disproportionately separated by state child welfare authorities, will be permanently torn apart. The dissolution of children’s legal relationship with their parents is known as the civil death penalty because it is the ultimate punishment family courts can impose. ASFA was marketed using racist rhetoric that vilified impoverished Black mothers and demeaned their bonds with their children. Its passage was part of a legislative assault on government assistance to Black families that held out adoption as the solution to Black children’s hardships. I have investigated the harms the child welfare system inflicts on Black families for more than two decades and have witnessed how ASFA intensifies the system’s targeting of Black communities for disruption. It is time to repeal this destructive law.
ASFA played an integral, though largely overlooked, role in the Clinton-era federal consolidation of welfare retrenchment and carceral expansion. In the late 1990s, Congress passed back-to-back major legislation that simultaneously intensified law enforcement surveillance of Black communities, stripped away support for struggling parents, and sped their children into adoptive homes. First came the controversial Violent Crime Control and Law Enforcement Act of 1994, which imposed harsher prison sentences for federal offenses and showered states with funds to expand their police forces and build more prisons. In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act, ending the federal guarantee of cash assistance to families living in poverty and giving states wide latitude to decide how to implement extensive welfare reform policies.
A year later, President Bill Clinton signed ASFA after directing the federal government to take steps to double the number of foster children adopted annually by 2002. ASFA prioritized getting foster children adopted over reunifying them with their families through a set of mandates and incentives to state child welfare departments. Falsely equating permanency with adoption, the law loosened the requirement that agencies make “reasonable efforts” to keep families together and established swifter timetables for terminating parents’ rights, shifting the presumption in favor of termination when children have spent more than 15 of the previous 22 months in state custody. Some states have established even shorter timelines for termination. ASFA also offers financial incentives to states to increase the number of children adopted out of the foster system, with no comparable incentives to increase family preservation. By 2014, the federal government had handed states $424 million in adoption incentive bonuses, exceeding the amount saved in foster care costs. The coinciding passage of the welfare and adoption laws marked the first time in modern U.S. history that the federal government mandated that states protect children from parental neglect—centered on taking them from their families—but failed to guarantee a minimum economic safety net for impoverished families.
Racist mythology about Black families, such as the “welfare queen” and the “crack baby,” helped to fuel these punitive bipartisan measures. When ASFA’s backers argued for increasing adoptions to reduce the mushrooming foster population, Black children were four times as likely as white children to be removed from their homes and made up the largest group in the foster system. Advocates portrayed Black families’ ties as the chief impediment to permanency for children in foster care. The solution, they argued, was to “free” Black children from their mothers by permanently extinguishing their legal bonds to make them available for adoption. Some transracial adoption advocates portrayed expedited terminations of Black mothers’ rights as a means for facilitating adoptions of Black children by white couples.
ASFA dealt a devastating blow to Black families. As a 2021 study concluded, Black children experience “exceptionally high rates” of traumatic child welfare interventions, including termination of their parents’ rights. Chicago, where virtually all the children in foster care were Black, felt its immediate impact: According to the Chicago Reporter, by 1999, just two short years after ASFA’s enactment, “terminations grew from 958 to 3,743 in that period, meaning that three out of every five cases ended with parents losing custody.” High incarceration rates intersect with ASFA to put Black families at risk of legal demolition. Imprisonment itself constitutes statutory grounds for termination of parental rights in some states, and some judges consider the law’s swift timetable for termination proceedings as sufficient grounds for ending incarcerated parents’ ties to their children forever. A 2003 study discovered that the number of cases terminating incarcerated parents’ rights more than doubled in a few years after ASFA became law. Many children who are legally severed from their families but never adopted “age out” of the foster system, abandoned by the state and vulnerable to homelessness, poverty, and incarceration.
In recent years, scholars, activists, and media have increasingly exposed the child welfare system’s unjust separation of families, as well as its historical and present-day role in state oppression of Black communities. Repealing ASFA is a critical step toward ending this legacy and reimagining a humane and equitable way to support families and keep children safe.