(Click here to access the website version of this newsletter.)
“We will not continue the current system of always putting the needs and rights of the biological parents first. ... It's time we recognize that some families simply cannot and should not be kept together.”
I stumbled upon this quote several years ago while doing some research on family preservation policies in the United States, and it has bugged me ever since. It was spoken by none other than former Rhode Island Senator John H. Chafee, a man whose name is associated with some of the most important resources available to foster youth, such as California’s Chafee Grant. He said this, I might add, on the floor of the US Senate, moments before the passage of one of the most important pieces of legislation in the history of US child welfare: the Adoption and Safe Families Act (ASFA) of 1997.
I will not be coy: the ASFA was disastrous for many families. It has been described as the “crime bill” of child welfare, given its disproportionate impact on low-income (particularly Black) families. It marked the end of the US’s brief and incomplete flirtation with family preservation policies, meaning efforts to keep families together rather than sending kids into foster care. Perhaps most ominously, it is responsible for what folks have taken to calling the “death penalty for families.”
It is this last bit that will be the focus of today’s newsletter: the death penalty for families. I’m talking, of course, about the practice of terminating parental rights (TPR).
You probably hear all the time about there being so many kids in foster care waiting to be adopted (approximately 109,000 as of 2022). You have likely seen heart-wrenching stories in the news about children waiting to find their “forever home.” What is often not talked about is why these kids are up for adoption in the first place, considering that historically, foster care was never meant to serve as a vehicle for adoption. The reason, or at least one of the primary reasons, is the growth of TPR cases. The numbers, frankly, are staggering.
In 2022, approximately 64,600 kids in the system had parents who had their parental rights terminated. Between 2015 and 2019, the “parents of about 327,000 children lost their rights.” Between 2000 and 2016, roughly 1 of 100 children in the United States would experience the termination of parental rights by the time they turn 18, according to a 2020 study. The same study found that the “risk that a child will experience the loss of their legal relationship with their parents roughly doubled from 2000 to 2016.”
Like virtually everything in the child welfare system, TPR disproportionately impacts Black and Indigenous families. According to Human Rights Watch, in FY 2019, for every 10,000 children of the respective race/ethnicity, approximately 10.2 Black children and 14.6 Indigenous children were legally orphaned, compared to 8.3 white children.
To highlight this racial disparity more clearly, below is a chart from a study (mentioned in the previous paragraph) that illustrates the cumulative prevalence of having parental rights terminated by race and ethnicity, from 2000 to 2016:
You may be asking yourself: how is this even possible? How are so many families impacted by this law? Well the answer lies in a ridiculously short and arbitrary timeline spelled out in the Adoption and Safe Families Act. Essentially, the law stipulates that if a child has been in foster care for 15 of the past 22 months, a state can begin the process of involuntarily terminating their parent’s parental rights. There are other considerations, of course. For example, states must also utilize “reasonable efforts” to reunite families, a contested concept that necessitates its own newsletter to fully unpack. But by and large, this artificially-imposed timeline injects unnecessary urgency into the process, urgency that is very rarely (if ever) present to keep families together, at least in a legal sense.
But what cases typically result in the TPR? Surely, you might ask, a parent that horrifically abuses their child should have no business being a parent, right? Well, abuse has been described as the “red herring” of child protection, drawing a disproportionate amount of attention and thus driving policy. That remains the case with TPR. According to a joint NBC-ProPublica analysis, “just 15% of children whose parents’ rights were severed around the country from 2015 to 2019 had been removed from their homes because of concerns about physical or sexual abuse.”
The folks that are impacted by the use of TPR are incarcerated parents, particularly those incarcerated due to drug-related offenses. In 2010, a trio of researchers reviewed TPR cases files from the immediate aftermath of implementation of the ASFA and found the following:
TPR was granted in 81.5 percent of the cases involving parents incarcerated due to drug-related offenses.
TPR was granted in 92.9 percent of the cases in which the mother was incarcerated.
TPR was granted for 91.4 percent of the incarcerated fathers.
When both parents were incarcerated, TPR was granted in 100 percent of the cases.
In several states, simple possession of a controlled substance carries sentences of up to 3 years (or more). Heck, in Georgia, possessing more than one ounce of marijuana carries a sentence of up to 10 years, far exceeding the 15 months a parent has before the state can terminate their rights. I don’t know about you, but I am very uncomfortable with the idea that an entire family could be permanently dismantled as a result of smoking some weed.
Also, given that the country is still struggling with a devastating opioid epidemic, we should perhaps discuss whether addiction is grounds for terminating one’s parental rights. Failure to do so (and failure to address the opioid epidemic) would mean more and more states might look like West Virginia, the national leader in the termination of parental rights. In FY 2019, West Virginia terminated the parental rights of about 43.7 out of every 10,000 children in the state, and many of these cases were connected to substance abuse.
All of this is to say that we are funneling kids into foster care for reasons of poverty, substance abuse, and incarceration, and then giving their parents 15 months to figure things out before they permanently lose their children. Sometimes folks don’t even get fifteen months. According to that aforementioned joint NBC-ProPublica investigation, between 2015 and 2019, roughly one-fifth of TPR cases happened in less than a year.
While the evidence is mixed, one possible factor contributing to the speed and frequency with which states terminate parental rights might be monetary: states get financial incentives to promote adoption. According to the Administration for Children and Families, states are entitled to the following incentives:
$5,000 per child for improving the number of foster child adoptions;
$4,000 per child for improving the number of foster child guardianships.
$7,500 per child for improving the number of pre-adolescent adoptions and pre-adolescent foster child guardianships; and
$10,000 per child for improving the number of older child adoptions and older foster child guardianships.
Over time, these incentives add up. From 1998 to 2022, states have received tens of millions from the federal government to promote adoption. Cumulatively, California has received $84,397,460 in this span; Mississippi received $14,437,000. All told, the federal government has spent about $1 billion promoting adoption over the last few decades. No such incentive program exists to promote family preservation or reunification, in case you’re wondering.
Perhaps most chilling of all this is how TPR is weaponized against families. In her book Investigating Families: Motherhood in the Shadow of Child Protective Services, Kelly Fong writes the following:
“Like criminal courts, family courts cannot accommodate every case taken to trial. Given this limited capacity, prosecutors offer plea deals, and CPS offers termination deals. In Rhode Island, I saw how these deals were false choices, not driven by child well-being considerations but manufactured by the system to encourage parents to agree to termination. Sometimes, CPS pitted mothers’ older children against their younger children, forcing tough decisions.” (184)
She describes how some mothers were coerced into relinquishing an older child for adoption in order to keep their newborn. If this isn’t bad enough, Fong also writes the following: “CPS also uses promises of visitation after termination to entice parents to agree, presenting parents with an impossible choice. They could sign the papers and be guaranteed visits with their children, perhaps four a year. Or they could decline and go to trial—but if they lost, they could get no visitation whatsoever.”
To add just one more example of just how awful the practice of TPR can be, take a look at this excerpt from a 2009 article written by Daniel Hatcher:
“...in North Carolina, an incarcerated father obtained an early release date through good behavior in the hopes of regaining custody of his young daughter. The child welfare agency developed plans for reunification, yet simultaneously sought to terminate parental rights because the father did not pay child support to reimburse the cost of foster care. Although no child support order was in place to give him knowledge of any obligation to pay, and his only income from laboring in a prison kitchen was forty cents a day, the father lost his daughter for a government debt of $72.80.”
I shouldn’t need to say it, but I’ll say it anyway: you shouldn’t permanently lose your child for failing to pay such a trivial amount (or any amount, actually).
I’d be remiss if I didn’t at least mention this: the Adoption and Safe Families Act was passed with ostensibly good intentions. Kids were lingering in foster care year after year, languishing without a permanent place to call home. Evidence suggests that permanency contributes to better outcomes for children in out-of-home placements. Plus there is a moral component: children shouldn’t just bounce around the system. As a response, policymakers thought the best approach would be to permanently dismantle families. Or, as Senator Chafee put it, they thought it best to codify into the law the sentiment that “some families simply cannot and should not be kept together.”
This approach was criticized at the time, but the criticism grew substantially over time. One child welfare consultant, Maureen Flatley, who contributed to crafting the law, has recently been quoted as saying that not only should ASFA be revamped, but that “we can’t pretend anymore that adoption is just some magic panacea.”
Whatever you believe, whatever your political persuasion, you should be incensed by this practice. If you believe in limited government, nothing exemplifies government overreach more than the power to permanently revoke someone's parental rights, especially with such an unscientific and artificial timeline. If you believe that the government has a responsibility to improve the lives of the governed, the swift termination of parental rights contradicts the principles of a just and compassionate society, given that the most marginalized communities in our country are often on the receiving end of these policies.
Poor parents should still have the right to parent their children. Parents with criminal histories should still have the right to parent their children. Parents who have struggled with substance abuse should still have the right to parent their children. Before we conclude that some families cannot be kept together, as the venerable Senator Chafee states, we should incentivize states to provide the necessary resources to help parents be parents. Put simply: we should support families instead of swiftly separating them.
I’ll end it here. As always, thank you so very much for reading! I’ll see you in two weeks.
Current Read(s):
I’m reading a bit of fiction this week by working my way through a classic: Darkness at Noon by Arthur Koestler. I am writing this after only having read a few chapters, so I’ll just copy and paste the summary I found on the publisher’s website:
"From a prison cell in an unnamed country run by a totalitarian government Rubashov reflects. Once a powerful player in the regime, mercilessly dispensing with anyone who got in the way of his party’s aims, Rubashov has had the tables turned on him. He has been arrested and he’ll be interrogated, probably tortured and certainly executed."
What’s going on in the world of child welfare?:
Biden-Harris Administration Finalizes Rule Expanding Public Agencies Ability to Fund Legal Representation on Behalf of Families Involved in Child Welfare (HHS) — For families involved in the child welfare system, it sometimes feels as if the whole system is arrayed against them. This new rule would allow federal funds to be used to give these families legal representation.
Guaranteed Income Pilot Program (Inland Southern California United Way) — Former foster youth in San Bernardino and Riverside counties can apply to participate in a new basic income program, so for my subscribers in this area, spread the word!
California Former Foster Youth Will Lose Access to Free Cell Phones (The Imprint) — Changes to a popular program for former foster youth will lead to many losing access to free phones and thus an essential tool needed for work, school, and life.
Do Children Have the Right to Hug Their Parents (The New Yorker) — What an article. For the children of incarcerated parents, the increasing use of digital technologies are raising the cost of keeping in contact and reducing the frequency of in-person visitation. The winners in this arrangement are private companies and carceral facilities themselves, who get a cut for facilitating these digital visits.
Former Foster Kids Relieved Trauma, Fought for New Program and Compelled Kansas Lawmakers to Act (Kansas Reflector) — New legislation in Kansas will “allow foster kids who are 16 or older to choose to stay with a family member or close friend.”
The Child Welfare System is Hurting Kids It Was Designed to Protect. Why? (Crain’s Chicago Business) — The Illinois Department of Children & Family Services has long faced criticism for its failures in child welfare, including a 1991 consent decree aimed at improving conditions, which remains largely unmet. Despite recent efforts and increased budgets, significant issues such as racial disparities, mismanagement, and inadequate care persist.
Oregon Lawmaker, Advocates Comment on Foster Care After Fox 12 Investigation (Fox 12 Oregon) — Approximately 88% of allegations regarding abuse and neglect perpetuated by foster parents towards their foster children are determined to be unfounded in the state of Oregon. Frankly, I find this hard to believe. I know from personal experience how incredibly challenging it is to convince the system that you are being mistreated by your foster parents.
Opinion: I Am Serving a Life Sentence at San Quentin. I Know Budget Cuts Will Hurt Foster Youth (San Diego Union Tribune) — The state of California is experiencing a historic budget crisis, and as a result, several essential programs that impact foster youth are at risk of being eliminated. A former foster child serving a life sentence in San Quentin attests to how important these programs are for foster youth.
Child Care at a Standstill: Price and Landscape Analysis (Child Care Aware of America) — I have seen several articles over the past few days that mention this new, rather chilling, report. Among other damning findings, this analysis found that the price of center-based child care has exceed the cost of rent in all fifty states.