REPEAL ASFA

Our opportunities to grow and nurture our world vision have been suffocated by the imagination of others. These imaginations have built oppressive systems that have sucked nourishment from our world and traded domination for liberation and personal responsibility for cooperative interdependence. They build and manipulate massive, faceless institutions-- the prison, family regulation, immigration, and public assistance systems to name a few, and make them seem like the inevitable result of existence. They are not inevitable. They are the manifestation of white and colonial fantasies that become laws, that create smoke screens of noble purpose, that cover dark realities of manipulation, oppression, and inequity.

When we consider the Adoption and Safe Families Act, we situate our analysis not only in the elements of the law, but also the dominant imagination that allowed it to exist and survive with very little opposition.  One starting point is looking at Senator John Chafee (R-RI), a lead senate sponsor for the legislation, who on the eve of the eve of the passage of the ASFA told the New York Times, “It’s time we recognize that some families simply cannot and should not be kept together.”[1] He spoke these words when nearly half of the children in the family regulation system were Black, most were poor, and the federal government was rapidly draining social safety nets. 

We believe that the families Chaffee imagined were not his own. He was from a family to which the entire power and might of the United States was dedicated to keeping together. In his direct ancestry were multiple governors, law professors, and senators. He attended the most elite institutions of the Northeast and went on to live the life he was pre destined to live-- ascending from congressperson to governor to secretary of the navy to senator.[2] He had been bequeathed generational wealth and social status from the blood, sweat and tears of our families--literally achieving social and political capital from the backs of our ancestors.  He would likely utter the words that “some families should not be kept together” with a strong sense that his would continue to accumulate wealth and status, while we would inherit destructive foster system histories.

Unfortunately, Chafee was not alone in his imagination of deserving families.  His speech was a regurgitation of mainstream political rhetoric that was seeded in racism, misogyny and capitalism, long manufactured by the pushers of chattel slavery, political borders, and other vile story tellers. He did, however, add the additional layer of neoliberal storytelling that would promote a narrative of “personal responsibility” over our families.

This specific narrative had been brewing for many decades, but really becomes a pillar of political propaganda in the 1970s. With the specter of the Black liberation movement squarely before it, the United States made an intentional decision[3] to abandon the belief that the government could or should play a role in leveling the playing field between the rich and poor, thereby invisibilizing decades of the U.S. government's segregated aid-giving strategies like the New Deal, and 1944 GI Bill--strategies that built a gold plated escalator devoted to the accession of whites to the middle class.[4]  This erasure, in part, created fertile ground for neoliberalism to fill the gap with the notion of a “free market”. 

The “free-market” would be the leading protagonist of the economic story told by the neoliberalists.  This “free market” would be color blind, race blind, gender blind, and class blind.  It would enter the final act of the 20th century with a bold message about “personal accountability”—a message that venerated the market and justified the government’s abdication of its responsibilities to support their most marginalized members of society.

Many of us recall being told that the “free market” was the greatest arbiter of equality, and that we could leave access to basic life necessities in the hands of the “free market”. That those who worked hard would get what they worked for. That those who did not work hard--well, they would not get what they did not work for.  We came to learn that for our communities, for Black folks, for brown folks, social mobility was in our hands, and ours alone. The free market neither gave a hand up nor beat a person down. If something bad happened in someone’s life, it was their fault. Glaringly missing from this grotesque fairy tale spun by racial capitalism were the inherited advantages and disadvantages of history, of decades of infusion of social and economic capital into white communities, and the political power that followed.[5]

From the 1970s on, the US would continue to privatize access to the basic life necessities--such as housing and higher education—the government provisions of which were otherwise the bedrock of the momentous buildup of wealth in white communities.[6]  They would use language to pathologize us for accessing what little government assistance was left and blame us for the harms of living under centuries of oppression, calling Black, brown and low-income mothers “crackheads” and “welfare queens,” push them into systems, and turn their backs on families and communities. They would disappear adults into the prison system and children into the family regulation system.[7] When they put mamas in cages, mamas would send their children to live with their parents only to be told that their children could not live with their grandparents. The free market, white institutions, governments, pundits, the medical establishment, academia, and others--placed the blame for the fallout in our community squarely on those of us who suffered the most harm.

With this history and with these lies, it is unsurprising that ASFA passed with little political controversy or fanfare.  For all intents and purposes, it embodies the sentiment, imagination, and consciousness of the moment—that the government does not have an ongoing responsibility to support families, that if something bad happens to our families it is solely our fault, and that we—alone-- are responsible for decades of political neglect.  The Adoption and Safe Families Act reflected these ideas by:[8]

1. demanding that every child welfare system across the country move toward termination of parental rights proceedings after a child has been in foster care for fifteen of the past twenty-two months;[9]

2. insisting that every child welfare system skip efforts to keep families together and move directly to termination of parental rights as soon as a child enters the foster system, if “aggravated circumstances” exist;[10]

3. establishing unprecedented federal incentives to states to permanently separate families and terminate their legal ties, with no comparable financial incentive to reunify or keep families together.

The adoption of this law was swift. By July 1999, all states had laws that mirrored the federal legislation or were more stringent than the federal law.[11]  A formerly incarcerated mother and ASFA activist in New York State, Christina Voight, reflects that at the time of the law’s passage, everyone, from the mothers caged to the family regulation agents to the agencies themselves had no idea how ASFA would actually unfold.[12] The law was literally written on the backs of families.

Since ASFA was enacted, more than one million children have been permanently separated from their parents.[13] That’s about the population of Rhode Island. It is more than the entire city of Boston.  The annual number of family dissolution and adoptions have increased by 57 percent from the time ASFA was enacted through fiscal year 2004.[14]  Moreover, between 1997 and 2019, because of ASFA, at least 121,000 more children aged out of the family regulation system with no permanent home than would have aged out had there been no ASFA, giving America the distinction of having the largest number of legal orphans out of anywhere in the world.[15]

Too many of us have believed what they told us about the system--the myth of personal responsibility creates false paths of redemption.  Many of us were told that we were being selfless and doing something good if we gave up on our case, our children, and relinquished them to the system. Yet some of us have since found our children, spoken with our children who are adults now, and we have learned that this system was not good for them. It was not as some of us perceived it to be. It was not as the system described. It was certainly not redemption.

We organize over 20 years after the passage of ASFA, 20 years into surviving and thriving in spite of the horror it has inflicted on children, families and communities. We write this and continue to be stunned by the amount of money this law has funneled into family regulation systems across the country. Money that was stolen from communities. In 2017 alone, states were given $2.658 billion in federal Title IV-E adoption assistance budget to fund other families to care for our children.[16] From 1999 to 2014 the federal government gave states $423,754,125 as an award for dissolving our families and adopting out our children.[17] Over the course of 20 years, the federal government alone (not including state governments) has spent tens of billions of dollars on paying other families to permanently raise our children and the children of the families we support.[18] These numbers far outpace the money or energy that as invested in us, our families, our communities, and our advocacy.   Can you imagine what we could be doing for our families if we had that type of investment?

ASFA is a continuation of many troubling histories in the United States where normative judgements around who were worthy families and who were not, who were worthy communities and who were not.  It was backed by and billions and billions of dollars and wreaked and continues to wreak havoc on so many communities.[19]  It has trapped so many people’s perspective of what is possible, and it must end.

[1]Katharine Q. Seelye, Clinton to Approve Sweeping Shift in Adoption, New York Times, Nov. 17, 1997, available at https://www.nytimes.com/1997/11/17/us/clinton-to-approve-sweeping-shift-in-adoption.html

[2] Wikipedia entry for John Chaffee, https://en.wikipedia.org/wiki/John_Chafee (last visited January 3, 2021).

[3] Moyers on Democracy, The Powell Memo: A Call to Arms for Corporations, Sept. 14, 2012, https://billmoyers.com/content/the-powell-memo-a-call-to-arms-for-corporations/, last visited Jan. 4, 2021.

[4] Symposium, Beyond Neoliberalism, Neoliberalism and Race, Darrick Hamilton, Summer 2019, https://democracyjournal.org/magazine/53/neoliberalism-and-race/; Ira Katz Nelson, When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America (2006).

[5] Symposium, Beyond Neoliberalism, Neoliberalism and Race, Darrick Hamilton, Summer 2019, https://democracyjournal.org/magazine/53/neoliberalism-and-race/

[6]The US of course continues to support and subsidize the accumulation of white wealth through many means, such as the tax code, but has managed to invisiblize the massive government assistance largely white and wealthy people receive. Ford Foundation, Jocelyn Harmon and Jeremie Greer, How the US Tax Code Drives Inequality, April 13, 2017, https://www.fordfoundation.org/just-matters/equals-change-blog/posts/how-the-us-tax-code-drives-inequality-and-what-we-can-do-to-fix-it/.

[7] Time for Change Foundation Stop Stealing Our Babies Community Town Hall, Aug. 25, 2020, Ingrid Archie Guest Speaker, available at https://www.facebook.com/watch/live/?v=942945716197667&ref=watch_permalink.

[8] Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115

[9] There are limited exceptions to this timeline.  One such exception is that the court can use its discretion when it serves the best interests of the child, to extend the timeline. As authors who have practiced for years in New York, and people who have directly experienced ASFA, we  have not observed use of this provision.  Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115

[10] Aggravated circumstances ranges from past criminal convictions to the mere fact that a parent has had lost their termination trial in the past. Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115

[11]Government Accountability Office, Foster Care:

States' Early Experiences Implementing the Adoption and Safe Families Act (Dec 22, 1999), https://www.gao.gov/products/hehs-00-1.

[12]Movement for Family Power interview with Christina Voight, Dec. 21, 2020.

[13] Kim Phagan-Hansell, One Million Adoptions Later: Adoption and Safe Families Act at 20, The Imprint, Nov. 28, 2018, https://imprintnews.org/adoption/one-million-adoptions-later-adoption-safe-families-act-at-20/32582.

[14]  Government Accountability Office Testimony before the Before the Subcommittee on Human Resources Committee on Ways and Means House of Representatives, States Focusing on Finding Permanent Homes for Children, but Long-Standing Barriers Remain, April 8, 2004. https://www.gao.gov/assets/110/109829.pdf.

[15]NCCPR Child Welfare Blog, ASFA: The racist child welfare law from the 1990s that almost no one talks about, Nov. 8, 2020, https://www.nccprblog.org/2020/11/asfa-racist-child-welfare-law-from.html.

[16]Congressional Research Service, Child Welfare: An Overview of Federal Programs and Their Current Funding, Dec 2, 2018, https://www.everycrsreport.com/files/20180102_R43458_9a7c2ce137b54096617803ba8c171c543c4575b0.pdf.

[17] Congressional Research Service, Child Welfare: The Adoption Incentive Program and Its Reauthorization, July 15, 2014, https://www.everycrsreport.com/reports/R43025.html#:~:text=Child%20Welfare%3A%20The%20Adoption%20Incentive%20Program%20and%20Its%20Reauthorization,-April%2018%2C%202013&text=Under%20the%20Adoption%20Incentive%20program,need%20of%20new%20permanent%20families.

[18]  We estimate the total cost to be much higher, as these numbers do not include the cost of family investigation and child removal that proceed permanent dissolution. 

[19] Latagia Copeland Tyronce, MSW, CADAS, Yes, the Adoption and Safe Families Act (ASFA) Can and Should Be Repealed!, Medium, Dec 24, 2018.https://medium.com/latagia-copeland-tyronces-tagi-s-world/yes-the-adoption-and-safe-families-act-asfa-can-and-should-be-repealed-9c18ac391997