The federal law that effectively abolished the reasonable efforts requirement, the so-called Adoption and Safe Families Act (ASFA), also requires states to seek termination of parental rights for many children in foster care for 15 of the most recent 22 months. Some state laws are even more draconian.
Yet in many jurisdictions it can take at least 12 months for a judge to decide if the initial placement was justified in the first place. In many of those cases, the child never should have been taken at all. In still others, the family policing agency that took the children did nothing to help the family reunite.
Thus, while a very small number of children in foster care may need to be adopted, ASFA encourages the indiscriminate adoption of children without regard to whether they could have remained safely in their own, loving homes – or, when that is genuinely not possible, whether there are better means to achieve permanence.
Under ASFA, this is further encouraged by a huge financial incentive: bounties of $5,000 to $10,000 for every adoption over a target number (there also now are similar, but lower, payments for guardianships). There also is tremendous political and media pressure to increase adoptions.
In the early 1990s, NCCPR’s President, Prof. Martin Guggenheim of New York University School of Law, examined two states which expedited termination proceedings. He found that as the number of children freed for adoption soared, the number of actual adoptions increased far more slowly. The result: A generation of legal orphans, who have no ties whatsoever to their birth parents, but aren’t being placed for adoption either.
Guggenheim found that, contrary to the unsupported rhetoric of critics of family preservation, the one “reform” taken most seriously since the 1970s has been termination of children’s rights to their parents (which is what “termination of parental rights” really means).[1]
The study was prescient. Nationwide, since ASFA was passed, terminations have far outrun adoptions.[2] As a result, the number of children aging out of foster care with no permanent home is more than 124,000 higher than it would have been had ASFA not passed.[3]
Furthermore, although abuse in adoptive homes is rare – like abuse in birth parent homes – ASFA’s encouragement of quick-and-dirty, slipshod placements increases that risk.
Even the group that calls itself Children’s Rights, a group that favored ASFA and was hostile to family preservation, said “… Congress should realize that far too many states … when they do, for example, raise their adoption numbers, are doing so by including many clearly inadequate families … along with the genuinely committed, loving families who want to make a home for these children, just to ‘succeed’ by boosting their numbers.”[4]
Even if all the children now awaiting adoption could be placed, that doesn’t mean the placements will last. The ongoing effort to plunge headlong into adoption continues in the absence of reliable data about how often placements “disrupt” when parents who adopt a child – especially a “special needs” child – change their minds. But the evidence we do have is alarming.
Even before the effects of ASFA were felt, it was estimated that 10 to 25 percent of so-called “forever families” don’t turn out to be forever after all – the adoptive parents change their minds.[5] That number has probably increased in the years since states started to increase pressure to place more children in order to obtain the bounties handed out under ASFA – bounties which are paid whether the adoption actually lasts or not.
We have long predicted that each time adoptions level off, the pressure to increase them again – and cash in on the bounties – is likely to have another pernicious effect: It is likely to prompt agencies to target the children most in demand by prospective adoptive parents: Healthy infants from poor families.
For examples of such targeting, see The Pittsburgh Post-Gazette series, “When The Bough Breaks,” and the scandal in Kentucky, where even an organization that once zealously supported a take-the-child-and-run approach reversed itself and condemned what it called “quick trigger adoptions.”[6]
Says a former head of Los Angeles County’s child welfare system: “What you have now is an incentive to initially remove the child, and an incentive to adopt them out. I think when you put those two together, there is a problem.”[7]
A study from the federal government’s Children’s Bureau shows that our prediction was correct.
That study found that if a child is taken away during her or his first year of life, odds are nearly 2 in 3 s/he will not return within the next four years. Forty-six percent of those children are adopted, and even among the rest, if they haven’t gone home in four years, odds are it will never happen.8
Reunification rates are higher for older children. Is that because parents of infants are especially evil? Or is that because ASFA did exactly as we predicted: turn the American “child welfare” system into the ultimate middle-class entitlement: Step right up and take a poor person’s child for your very own?
Equating permanence with adoption and only adoption prioritizes paper permanence over what the Children’s Bureau calls “relational permanency” – the web of close relationships that give a child love and security. Guardianship, for example, provides such permanence without requiring termination of parental rights. The very notion that permanence should require children to surrender not only their birth parents but their entire extended families, and sometimes friends, communities, and even siblings makes sense only if it’s seen as something done for the convenience of those who adopt, not the children.
The argument that there are a small number of children trapped in foster care who should be adopted and the argument that there are many more children trapped in foster care who should be in their own homes, and still others who should be in other forms of permanent placement, are not mutually exclusive.
But the claim that family preservation impedes adoption is nonsense. So is the claim that it was extremely difficult to terminate
children’s rights to their parents before the law was changed. All that is needed is minimal competence on the part of child protective workers.
This was demonstrated decades ago by an American Bar Association project in Upstate New York. They taught lawyers and workers how to present a decent case in court. Without offering one iota of additional help to families before moving to terminate, the termination rate soared.9 (We are not saying this is good – only that it’s all that it took.)
As long as the rush to cash in on adoption bounties causes a further neglect of efforts to keep families in their own homes, it will only make things worse.
Contrary to critics’ claims, most people in child protection work are almost obsessed with a substitute care fantasy, in which children are rescued from their “evil” birth parents and placed in substitute settings, which, in the imagination of the workers, are always ideal.
This can be seen in what child welfare systems choose to celebrate – and the macabre way they celebrate it.
While paying lip service to the idea that their “first goal” is keeping families together, hundreds of child welfare agencies organize annual events to celebrate adoptions – often featuring mass adoption ceremonies at the local courthouse.
But when a foster child is adopted, it means that first, child welfare imposed what is widely referred to as the system’s “death penalty” – termination of those children’s rights to the parents they were born with. Those mass adoption ceremonies are child welfare’s equivalent of turning an execution into a public carnival – a practice abandoned in the criminal justice arena nearly a century ago.10
Far fewer agencies celebrate the reunification of children with their birth parents – and many of those celebrations came only after pressure from family preservation advocates.
For most workers and most agencies, termination of parental rights is the dessert in the child welfare meal, family preservation is the broccoli. ASFA gives workers and agencies all the dessert they want without ensuring that they eat their broccoli first.11
Updated July 23, 2022
1. Martin Guggenheim, “The Effects of Recent Trends to Accelerate the Termination of Parental Rights of Children in Foster Care – An Empirical Analysis in Two States,” Family Law Quarterly, p.139. //2. 1997 to 2003: U.S. Department of Health and Human Services, Adoptions of Children with Public Child Welfare Agency Involvement By State FY 1995-FY 2003; 2004 to 2013:U.S. Dept. of Health and Human Services, Trends in Foster Care and Adoption, July 21, 2014. 2014 – 2019, Trends in Foster Care and Adoption, Sept. 30, 2019 //3. For full details and citations, see our publication ASFA, “Aging Out” and the Growth in Legal Orphans //4. Statement of Marcia Lowry, Testimony Before the Subcommittee on Human Resources of the House Committee on Ways and Means, Nov. 06, 2003. //5. Child Welfare Information Gateway, Adoption Disruption and Dissolution, June, 2012. //6. Valarie Honeycutt Spears, “Report: State unjustly terminates parental rights for federal money,” Lexington Herald-Leader, April 16, 2006, and numerous other stories. //7. Troy Anderson, “Government Bonuses Accelerate Adoptions,” Daily News of Los Angeles, December 8, 2003. //8. U.S. Department of Health and Human Services, Children’s Bureau, Informational Memorandum: Achieving Permanency for the Well-being of Children and Youth, Jan. 5, 2021 //9. Debra Ratterman of the ABA’s National Legal Resource Center for Child Advocacy and Protection described the project at the 1991 Annual Conference of the New York State Citizens Coalition for Children. //10. For more about Adoption Day ceremonies as public executions, see this post to NCCPR’s Child Welfare Blog. //11. For details about what we have come to call National Child Welfare Hypocrisy Day, see this post to the NCCPR Child Welfare Blog.
National Coalition For Child Protection Reform 