ASFA 25 Years Later: Time for Repeal

All children deserve to be loved and cared for and the research is clear that connections to family and community are critical to a child’s health and well-being. What’s less clear is how our society prioritizes and invests in promoting policies and building communities that are supportive of families. Since 1997, the rights of more than two million children’s parents have been terminated by courts across the United States. The legal severing of these familial bonds was enabled by the bipartisan passage of the Adoption and Safe Families Act (ASFA)¹, which ties federal funding to a requirement that, with limited exceptions, states terminate the rights of parents whose children have been in foster care for 15 of the most recent 22 months.²

Centered on white supremacist ideologies entrenched in the history and institutional practices of the child welfare system, ASFA has exacerbated the regulation and forcible separation experienced by Black communities and families, as well as Indigenous and other families of color. Black children are 2.4 times more likely to have their parents’ rights terminated than White children nationwide, and in Wisconsin, New Jersey, Illinois, New York, Minnesota, Iowa, South Dakota, and Wyoming, Black children are a least four times more likely than White children to have their ties to their parents severed through termination.

In the vast majority of cases, forced family separation and ultimately, the termination of parental rights, stems from allegations of “neglect,” or in reality, poverty rather than serious abuse. As noted by Elisa Minoff in Entangled Roots: The Role of Race in Policies that Separate Families, “Racism has always played a central role in the publicly funded systems that separate families…racism has both motivated policies that separate children from their parents and it has been institutionalized in the systems that carry on these policies.” ASFA was part of a larger scheme to criminalize poverty and further dismantle the Black family. ASFA’s passage coincided with the War on Drugs, mass incarceration, and the drain of social safety nets, all of which demonized Black parents and further propagated the “need” for a dominant culture of “saving” children through family separation.³

Far from a focus on separation, what is needed now more than ever, is a deep commitment to family integrity and to partnering with communities to build a continuum of supports that strengthen families in ways that they define. Drawing on lessons learned from interviews with families in combination with what the research tells us, we know this continuum of support must include high-quality health care, direct cash assistance, subsidized childcare, stable housing, and nutrition programs.

Twelve years after the passage of ASFA, CSSP and the Urban Institute published a compendium of essays examining the law’s impact on children, families, and the child welfare system’s performance. Many essays in the collection focus on improvements necessary and “unfinished business” regarding ASFA’s implementation. However now, at ASFA’s 25th anniversary, an acknowledgement of the structural inequities inherent in the child welfare system that regulates and surveils families and the way that ASFA perpetuates these current harms is necessary. Rather than focusing on improvements in an already broken and unjust system, ASFA must be repealed.

¹Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified as amended in scattered sections of 42 U.S.C.). 

² Guggenheim, M. (2021). How racial politics led directly to the enactment of the Adoption and Safe Families Act of 1997: The worst law affecting families ever enacted by Congress. Columbia Journal of Race and Law, 11(3), 711-732.

³ Roberts, D. E. (2014). Child protection as surveillance of African American families. The Journal of Social Welfare & Family Law, 36(4), 426–437.