Federally
Mandated Destruction of the Black Family:
The Adoption and Safe Families Act
I. INTRODUCTION
When it comes to matters of the
home, the constitutional provisions of the Fourteenth Amendment give substantial
deference to the independence of the familial unit to make its own
decisions.
[1] There are instances, however, where the
government deems it necessary to intrude upon the independence of the familial
unit. This intrusion is especially
evident in the foster care system.
Although the system by its very definition requires some governmental
intervention for the welfare of the child, the goal of foster care should be
assistance and eventually reunification to allow the family to function as an
independent entity. The Adoption
and Safe Families Act (ASFA) represents a stark deviation from that goal. With black children representing an
overwhelming percentage of the foster care population, the ASFA represents
federally mandated destruction of black families. The ASFA devalues the essentialness of
preserving the familial bond with regard to black children. It advocates earlier termination of
parental rights and makes adoption, instead of reunification, its priority.
This comment criticizes ASFA and its
aim of removing black children from their homes as a means to achieve permanency
in their lives. Preservation of
black families is essential to the advancement of the black community. Legislation must be directed at
addressing the underlying social ills that are at the root of foster care
dependence. Instead, under the
pretext of advancing child welfare, ASFA promotes destruction of black familial
bonds and represents a serious threat to black communities.
This comment begins by providing a
brief history of child welfare legislation in the United States. It discuses the political tide of the
country and political justifications for the creation of ASFA. It examines its specific provisions and
details how the legislation disproportionately impacts black children and
families. This comment also
examines the socio-economic factors of extreme poverty, incarceration, and
substance abuse that plague black communities, and advocates dealing with these
situations through a holistic approach that works in conjunction with familial
reunification efforts instead of against them. Finally, this comment argues that the
termination of parental rights has constitutional implications. The legislation has an impact on
substantive and procedural due process as well as equal protection rights. Although the comment does not attempt to
pose a solution to the child welfare system, it does advocate a shift in the
focus of the system. The familial
bond is essential to black children, and family preservation and reunification
should be the goal of any child welfare system.
II. BRIEF History of Child Welfare Policy
In historical terms, state
intervention for the protection of children is a recent development,
particularly as it relates to children of color.
[2] Although the institution of slavery
dismantled black families, it also fostered a unique system that maintained and
cared for black children who were separated from their biological parents.
[3] When children were stripped from their
parents and sold away to other plantations, the slave community as a whole took
on the responsibility of ensuring these children were cared for.
[4] After emancipation from slavery and the
ratification of the Thirteenth Amendment, black children were not welcomed into
the formal child welfare system.
[5]
They were excluded from the late
nineteenth-century orphanages established to rescue destitute immigrant
children.
[6] Furthermore, Jim Crow laws prevented
black children from being cared for by the institutions of white society that
tried to place orphans in adoptive homes.
[7] Even after such discriminatory laws were
dismantled, black children were still denied access to most formal child welfare
institutions because they were undesirable to white adoptive parents.
[8] A few "colored orphan asylums" existed,
but they were overcrowded and generally inferior.
[9] Black people were forced to rely
primarily on other resources such as extended family networks and churches to
take care of children whose parents were unable to meet their needs.
[10] It was not until the late twentieth
century that the child welfare system allowed blacks to participate in services
that had long been reserved for the white community.
[11]
The Adoption Assistance and Child
Welfare Act of 1980 (AACWA) served as the beginning of pivotal federal
legislation in the modern day child welfare arena. The AACWA was the first attempt at
providing federal funds to reduce the amount of time children spent in foster
care.
[12] The government provided financial
incentives for states to change child welfare policies and attempt to move
children out of foster care and encourage permanent placement through
reunification and adoption.
[13] This policy was influenced by the theory
that disruption of the parent-child relationship caused a great deal of
emotional damage.
[14] Therefore, the policy encouraged
permanent placement with a family, either biological or adoptive, as opposed to
the child becoming “trapped in the system” and spending a long period of time in
foster care.
[15]
With its emphasis on family
preservation, the AACWA made kinship foster care a viable addition to the child
welfare system.
[16] Kinship foster care occurs when
relatives become foster parents for children in state custody.
[17] In 1979, the Supreme Court in Miller v. Youakim established kinship
foster care as a means to deal with the increasing foster care population.
[18] The
Court ruled that
kin are entitled to receive the same federal financial support for foster care
as non-kin foster parents.
[19] Kinship care and the concept of extended
family child rearing originated in Africa and have been relied on by black
families throughout history.
[20] The child welfare system began to
embrace this concept because it found there was less trauma and disruption in
the lives of children placed with kin as opposed to children placed with
non-kin.
[21] There was also evidence that the "sense
of family identity, self-esteem, social status, community ties, and continuity
of family relationships" in kinship arrangements was important to a child.
[22] The child welfare system therefore
determined that children do better within their own families and that placement
with kin should be given priority when possible.
[23]
In addition to allowing for kinship
care, the AACWA required “reasonable efforts” to reunify families.
[24] Although the Act provided little
guidance as to what constituted “reasonable efforts,” most states determined
that such efforts included delivering social services.
[25] Caseworkers attempted to create an
individualized approach with both soft and concrete services to treat
families.
[26] Their services included instituting a
plan of “positive parent-child interaction and problem solving” within the home,
as well as ensuring the basic needs such as adequate food, safe housing and paid
utilities had been met.
[27] Termination of parental rights was
allowed only when the state’s “reasonable efforts” to preserve the familial
structure failed.
[28]
Child welfare as it relates to foster care is intrinsically linked to
general welfare policy in this country.
[29] Although initially the AACWA was a
success, with the foster care population decreasing by over fifty percent, from
500,000 to 243,000, between 1980 and 1982,
[30]
the decrease came right before a period in our history when homelessness,
substance abuse and HIV began to overwhelm the country.
[31] By 1983, the foster care population
again began to rise and by 1998 it had more than doubled.
[32] Expenditures for social service programs
increased dramatically.
[33] Frustrated with the increasing economic
and social cost of the welfare system, the country deemed efforts, including
child welfare policies like the AACWA failures.
[34]
Tensions grew as the political tide
was quickly turning to the right.
“Individual responsibility” became a prevailing political value,
replacing the idea of “social responsibility” that was at the core of the
AACWA.
[35] In the general welfare arena,
politicians vehemently attacked public assistance programs, and their attacks
included a very strong racial element.
[36] They proliferated the racist notion that
black people were “living off” the system.
[37] Images of the black welfare queen and
the black crack addicted mother spread throughout the media.
[38] These images supported the position that
assistance programs were not helping people in need rehabilitate themselves;
they were providing a means for poor blacks to continue their destructive
lifestyles.
[39]
This burgeoning political
transformation and desire to decrease reliance on welfare programs swept the
country. It prompted Congress to
enact the Personal Responsibility and Work Opportunity Reconciliation Act of
1996, otherwise known as the Welfare Reform Act (“the Act”).
[40] The Act was designed to eliminate
federal entitlements and cut government expenditures and essentially dismantled
the federally funded Aid to Families with Dependent Children (AFDC) program.
[41]
Although the Welfare Reform Act was
created to drastically cut social welfare expenditures, it left entitlements for
foster care and adoption assistance programs uncapped.
[42] The increasingly pervasive belief was
that it was better to place children out of the home instead of working to
correct the social ills that required states to intrude into the home in the
first place. Newt Gingrich, the
Republican Speaker of the House at that time, echoed this sentiment when he
argued that government funds going to children born to welfare mothers should be
diverted to programs that would put their babies up for adoption or place them
in orphanages.
[43] Reflections of this sentiment are
apparent in the Adoption and Safe Families Act of 1997
(ASFA).
III. The
Adoption and Safe Families Act of 1997
The ASFA made adoption the core
means of achieving permanence in the lives of children in the foster care
system. Although the previous
legislation, the AACWA, favored permanent placement and created some incentives
for adoption, it still funded and focused on solutions that prevented child
removal. The AACWA’s initiatives
were aimed at achieving permanence through “reasonable efforts” for
reunification and maintaining the familial structure.
[44] ASFA, however, effectively eliminated
the “reasonable efforts” requirement and focused on adoption as the best
solution to ensure permanent placement of children in foster care.
[45]
Maintaining the foster care system
is a major expense, requiring a great deal of government resources.
[46] This expense increases significantly
when government programs to rehabilitate families become a meaningful part of
the foster care system.
[47] When it created the ASFA, Congress, in
effect, concluded that reunification efforts were not worth the expense and
began strongly pushing adoption for foster care children.
[48] The House Report from the ASFA
recognized “that adoption is an effective way to assure that children grow up in
loving families and that they become happy and productive citizens as adults.”
[49] With a new focus on finding foster care
children permanent adoptive homes instead of rehabilitating families, Congress
exponentially reduced its expenditures.
[50] The ASFA’s focus on termination of
parental rights and assistance for adoption, has nothing to do with protecting
children from abuse or neglect. To
reduce costs, Congress shifted its focus from the concerns of the family as a
whole, to reducing the amount of time a child needs state support.
“The Adoption and Safe Families Act is
designed to force states to quickly seek a hearing on termination, to facilitate
permanent adoptions, rather than waste time and money on temporary
solutions!”
[51] Therefore, after parental unfitness has
been established, under the ASFA, states are required to hold permanency
hearings and file a petition to terminate parental rights after a child has been
in foster care for fifteen months.
[52] After the state files a petition to
terminate, a Juvenile Court Judge determines if it is in the best interest of
the child for the parental rights to be terminated.
[53] If the judge determines that termination
is in the child’s best interest, the child’s parents are no longer responsible
and have no legal rights to their child.
[54] The parents lose the right to
participate in the child’s upbringing and to interact with the child in any
way. After termination, the child
permanently loses any legal connection to his or her natural family.
Additionally, ASFA provides
financial incentives to states that place children in adoptive homes.
[55] To accomplish this goal, Congress
abandoned the social policy that placing black children in black homes was
important to the development of black children.
[56] Instead, through the Multi-Ethnic
Placement Act (MEPA)
[57]
and the Inter-Ethnic Adoption Act
[58],
Congress denied federal funding to agencies that placed children according to
their race or took race into consideration when making placement decisions. Congress’s justification for the change
in policy was that race-matching policies, “damage black children by not only
denying them placements with white adoptive parents, but also by causing them to
languish in foster care.”
[59]
IV. The
ASFA disproportionately affects the Black Community
Although the ASFA refers to child
welfare policies generally, it has a disproportionate impact on black children
and the black community. Black
children represent an overwhelmingly disproportionate number of children in the
foster care system, comprising forty percent of the foster care population but
only fifteen percent of the general population under the age of eighteen.
[60] For every 1,000 white children in the
U.S., five were in foster care as of September 20, 2000. Compared with twenty-one black foster
care children for every 1,000 black children in the U.S.
[61] In cities where there is a sizeable
minority and foster care population, the percentages are even more
staggering. For example, Chicago
has a foster care population that is ninety-five percent black.
[62] In New York City in 1997, of the 42,000
children in the foster care system, only 1,300 were white children.
[63] These statistics reveal the foster care
system is generally a population of black children, and any social policy
addressing the system must take this into consideration.
Contrary to popular opinion, most
children are not in foster care because they have been seriously abused. Instead, neglect is the most prevalent
reason children enter foster care.
[64] There are substantial differences
between abuse and neglect. Child
abuse is an act of commission, in which parents or others act violently or
cruelly toward the child.
[65] In contrast, child neglect is an act of
omission and is often related to poverty.
[66] Children who are considered neglected
are usually chronically deprived of basic needs, such as food, clothing and
adequate shelter or adequate parenting practices including hygiene, health care,
safety precautions, and minimal nurturing and attention.
[67]
Statistics illustrate there is a
strong correlation between foster care placement and poverty.
[68] A 1998 study reported that abuse and
neglect are reported to be twenty-two times higher among families with incomes
less than $15,000 per year than with families with incomes of more than $30,000
a year.
[69] This is especially significant because
half of all black children are born into poverty in the United States.
[70] Furthermore, black children are more
than three times as likely as whites to live in extreme poverty.
[71]
Extreme poverty itself is
responsible for creating circumstances that lead to neglect. For example, “poor nutrition, serious
health problems, hazardous housing, inadequate heat and utilities and
neighborhood crime” all can result from living in extreme poverty.
[72] Child welfare authorities can remove
children from poverty stricken homes if they can demonstrate parental
carelessness will increase the likelihood that these hazards will result in
actual harm to the child.
[73]
Black children are much more
susceptible to state intrusion since they often live in poverty and as a result
are frequently forced to interact with government agencies. The state must have probable cause to
enter the homes of most American families.
If the family is receiving public assistance, however, such privacy
rights are substantially eroded because, in order to receive assistance, you
must allow state social workers to enter your home.
[74]
In addition to public assistance,
under-privileged black families lead more public lives than their middle-class,
white counterparts. Instead of
visiting private doctors, these families are more likely to visit public clinics
or emergency rooms for routine medical care.
[75] They are more likely to encounter public
building inspectors, instead of hiring contractors to repair their homes, and
they often run their errands using public transportation instead of private
vehicles.
[76] Because these families interact with
public and governmental agencies so regularly their problems are more visible to
child protection authorities.
[77] This results in their children being
placed in the foster care system more frequently.
Poverty alone, however, does not
explain the overrepresentation of black children in foster care population. It is the convergence of both race and
class bias that leave black children particularly susceptible to foster care
placement. Child protective
agencies are far more likely to place black children in foster care then they
are to place white children in foster care.
[78] With black families, foster care is used
as a solution to the problems of the home, instead of offering government
assistance that is less traumatic to the family.
[79] A 2002 study by the Minnesota Department
of Human Services found that only forty percent of black families receive family
centered prevention based counseling compared with sixty percent of white
families.
[80] Additionally, the U.S. Department of
Health and Human Services reported that black children were more likely than
whites to be in foster care placement.
[81] In 1998, fifty-six percent of black
children who entered the child welfare system were placed in foster care, nearly
double the percentage for white children.
[82]
Instead of the state keeping the
child in the home and providing counseling and in-home services to the family,
black children were placed in foster care even when they faced the same issues
as white children.
[83] Even under identical circumstances, most
white children in the child welfare system are allowed to stay with their
families, while black children are ripped from their families and placed in
foster care.
Removing children from families due
to maternal substance abuse has led to an increase in the number of black
children in the foster care system.
[84] The system of detecting and reporting
drug use during pregnancy, which leads to the removal of the newborn from the
care of its mother, is plagued by race bias.
[85] A study in Pennelas County Florida of
reporting of prenatal drug usage found that despite similar rates of drug use,
black patients were ten times more likely to be reported to child protective
authorities for drug usage during pregnancy than white patients.
[86] The desire to remove these children from
the care of their mothers can be attributed to pervasive stereotypical images of
black crack babies and pregnant black crack addicts.
[87] This racist stereotyping ultimately
contributes to the disproportionate number of black children in the foster care
system.
Finally, incarceration requires
black children to enter the foster care system and places incarcerated black
parents in danger of having their parental rights terminated.
[88] In 2000, 1.5 million children had at
least one parent in prison and a disproportionately high percentage of these
parents were black.
[89] In general, children of incarcerated
fathers do not end up in the foster care system because they continue to reside
with their mothers.
[90] In contrast, when mothers are
incarcerated, their children are frequently placed in foster care.
[91] Although kinship foster care is a viable
option to avoid placing the child outside the familial context, oftentimes the
extended family is unable to support the needs of the child, and state foster
care placement outside the family becomes the only option.
[92]
Nearly eighty percent of
incarcerated women are mothers who have two or more children that they had the
primary responsibility of caring for prior to incarceration.
[93] Some of these women have children who
were forced to enter the foster care system for the first time after their
incarceration.
[94] The percentage of incarcerated mothers
is particularly devastating to the black community; nearly half of all
imprisoned parents are black.
[95] Black women are six times more
likely to be incarcerated than their white counterparts.
[96] Felony conviction or incarceration is an
appropriate ground for a judge to terminate parental rights.
[97] While these incarcerated mothers are
serving their sentences they cannot “rehabilitate and resume custody” of their
children and demonstrate their ability to parent.
[98] This makes it easier for a judge to
terminate their parental rights and place children of incarcerated black mothers
up for adoption.
V. The ASFA Devalues and Dehumanizes the Black
Family
Historically, the Supreme Court has held the view that the family is a
private institution where individuals are free to pursue their goals without the
threat of government intrusion.
[99] The Constitutional basis for family
privacy is rooted in the guarantee of “liberty” in the Due Process Clause of the
Fourteenth Amendment.
[100] Family privacy protects the
rights of parents to claim authority over their children and provide the
“personal, financial, or custodial responsibility” for their growth into
adulthood.
[101] As far back as 1943, the Supreme Court stated, “[i]t is
cardinal with us that the custody, care and nurture of a child reside first in
the parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder.”
[102] These “obligations” include preparing
the child to participate in social and political life when he or she reaches
adulthood.
[103]
The law clearly protects the rights of parents to participate in the
nurturing and rearing of their children.
In the context of divorce, even if a parent was neglectful or abusive
prior to the divorce, he is still entitled to be a part of his child’s
life. The goal is to make divorce
less onerous on the child.
[104] A court may even prevent a custodial
parent from relocating out of state to allow the child’s relationship with both
parents to continue after the divorce.
[105] Although a stepparent may obtain rights
with respect to his or her stepchild, these rights do not interfere or replace
the rights that the law grants to a natural parent. There is a general understanding that
the maintenance of family and biological parental ties are beneficial to the
child.
The ASFA reveals, however, that
Congress places no such value in maintaining the bonds between a black child and
her biological parents. Deeply
rooted stereotypes about black family dysfunction place no value on the
relationship between poor, black parents and their children.
[106] With the proliferation of images such as
the black welfare queen and crack addicted mother, black mothers are
characterized as “deviant and uncaring.”
[107] They are criticized for “transferring a
degenerate lifestyle of welfare dependency and crime to their children.”
[108] Black fathers are simply seen as absent
from the lives of their children.
[109] These racist stereotypes about black
family dysfunction are indiscriminately applied and make it difficult to imagine
poor, black parents actually caring for their children. With legislation like the ASFA, the
child welfare system becomes a misnomer.
It focuses on punishing what white America has deemed “disgraceful
parenting” instead of deciding what is actually best for the child. The attempt to penalize “bad mothers”
and bad parenting ultimately hurts the child.
[110] Separating a child from its familial
bond is extremely destructive.