21st Century Children and Families Act

Whether it gets through or not, it is a step in the right direction. New legislation authored by California Rep. Karen Bass (D), would drastically change that standard: Under the 21st Century Children and Families Act, states could not even attempt to permanently sever children from their parents until they’d been in foster care for two full years consecutively, barring extreme circumstances — and even then it would be up to the states, and no longer a federal mandate. The reason that this is important is that the 1997 Adoption and Safe Families Act (ASFA) requires states to terminate parental rights when a child has been in foster care for 15 of 22 consecutive months. Granted this is just a tiny step.

“This bill is an important first step in moving away from cookie-cutter timelines that have caused devastating harm to children and families for decades,” said Kathleen Creamer, managing attorney of the family advocacy unit for Community Legal Services in Philadelphia.

Existing exemptions would be maintained for certain “aggravated” circumstances, such as when parents have committed sexual abuse or have been involved with the death of another child. But the legislation would free parents from the federal timeline when their custody rights are threatened due to incarceration or immigration detention — or in cases where they are actively working with the court to overcome hurdles in their lives to successfully bring the family back together. Parents are not subjected to the federal timeline if their children are placed with relatives.

Under the bill, if a state so chooses, it could eliminate all timeline requirements, except in cases involving aggravated circumstances. 

Bass announced her landmark legislation in a news release Thursday. “It’s time to update old child welfare laws,” she said. “More needs to be done to improve foster kids’ options for stability in their lives. Premature modification of parental rights too often leaves children in foster care with no legal family.”

The legislation is at the earliest possible stage, and far from guaranteed, with many elements that could lead to controversy, including strengthening the rights of prospective LGBTQ parents. The bill could also be challenged by representatives of the adoption industry, policy watchers said.

“With respect to the timelines, we’ll be looking at those proposed changes carefully and considering how they affect children and families involved in foster care, especially BIPOC children and families, given the systemic discrimination they face,” said Mary Boo, executive director of the North American Council on Adoptable Children.

Children removed from their homes following allegations of abuse or neglect remain in foster care while their parents address the issues that landed them there, issues typically arising from extreme poverty. Under family and dependency court oversight, local child welfare systems must mitigate the circumstances that led to the child’s removal into foster care, offering the parents therapy, anger management, parenting classes and drug treatment, as well as the time necessary to overcome situational crises such as homelessness or illness.

Charles Redding barbecues for his two children last Easter at the home of a relative in St. Paul, Minnesota.
The family is now in dependency court fighting to stay together.

But that time is often not enough. The pandemic has brought heightened scrutiny to the “cruelty” of federal timelines. Parents such as Charles Redding of Minnesota have fought to regain custody of their children when circumstances are stacked against them to no fault of their own. Redding, for instance, had emerged from jail with no computer to attend court-mandated hearings and online classes, and the local center where he needed to go for drug testing suspended services. Earlier this year, Redding’s two children sobbed through a virtual court appearance, imploring a Hennepin County juvenile court judge to give their dad more time to secure stable housing for them to live together.

David Kelly, a former official in the U.S. Children’s Bureau, called the bill introduced this week “a critical, long overdue step toward justice for families,” adding: “I hope it proves a galvanizing moment for realizing the family children need most is their own.”

Bass is a longstanding champion of children and parents caught up in the foster care system — families who are disproportionately Black and Native American. She is among those emphasizing that the bar for reunification is often too high, and the impact of permanent family separation too damaging to continue the federal standards as they currently exist.

“The changes that I’m proposing today focus the foster care system on the child and the idea that children should be at the center of our efforts,” Bass stated. 

Her legislation would require that before moving to terminate parental rights, states must describe the steps they took and services they provided to help keep a family together. It would also mandate data collection on the accessibility and availability of those services. 

Shanta Trivedi, director of the Sayra and Neil Meyerhoff Center for Families, Children and the Courts at the University of Baltimore said that while states are already required under law to provide services under a “reasonable efforts” standard, the proposed law will ensure that protocol is followed for every family.

“This puts teeth into the ‘reasonable efforts’ requirement that were previously absent,” Trivedi said. 

The bill has another key element: It adds sexual orientation, gender identity and religion to federal nondiscrimination protections that previously only included race and ethnicity. Under the proposed law, states and agencies they contract with could not “deny to any person the opportunity to become an adoptive or a foster parent” based on those additional factors. The provision would directly challenge laws in nearly a dozen states that permit faith-based providers to exclude members of the LGBTQ community by following religious ideology in choosing which foster and adoptive parents, or even which youth in foster care, they will and will not serve.

The legislation proposed by Bass retains current legal requirements that adoptions cannot be delayed to match children with families of the same race, gender, culture and religion. But it instructs states to consider such factors if that is requested by the child or their birth parent.

When the Adoption and Safe Families Act became law decades ago, nearly a third of all foster children had been in the system for at least three years. The timeline was designed to push those cases in the direction of adoptions or guardianships so that children didn’t languish with uncertain futures. 

Since then, adoptions from foster care have more than doubled — from 30,000 in 1998 to 66,000 in 2019. Over the past decade, federal statistics show that the number of children awaiting adoption has also increased, by more than 20%. 

The attempt to rewrite ASFA comes at a time when some are pushing for its outright repeal, including Jerry Milner, the Trump-era head of the U.S. Children’s Bureau. Along with Kelly, his former deputy, Milner now leads a consulting group helping state and local systems interested in significant reforms of their child welfare systems, including the strengthening of family bonds so children can avoid permanent family separation. 

Critics of the current timeline that pushes for termination of parental rights after 15 months describe it as arbitrary and unjust to the families who mostly come from communities of color where daily life and the weight of historic and systemic injustice can bear down on home life. Advocates for parents say the federal timeline also penalizes people in recovery for substance abuse or seeking treatment for mental health challenges — complex healing that can take time and involve relapse and setbacks. 

In a February 2021 op-ed, Creamer and Chris Gottlieb, co-director of the NYU School of Law Family Defense Clinic, described the social context around the original law: “Passed in the wake of the now-debunked ‘crack baby’ scare, and at the same time as nefarious federal laws on crime and welfare, it reflected the racial and class biases that were ascendant at the time and that to this day continue to inflict harm on children, youth and families.” 

Under the proposed legislation, a 24-month timeline was selected to align with the Family First Prevention Services Act, a 2018 law that overhauled the federal child welfare system to decrease reliance on group homes and emphasize foster care prevention. But as it is currently worded in the Bass bill, states could choose not to abide by the two-year timeline — the legislation as written uses the word “may” — not “shall” — while continuing to receive federal funds for the children who remain in foster care. 

“We are hopeful that this is just the beginning of making sure that states have the flexibility they need to embrace and uphold family integrity,” said Shereen White, director of policy and advocacy for the national nonprofit Children’s Rights.  

Child welfare policy consultant Maureen Flatley, who helped craft both the original Adoption and Safe Families Act and Bass’ new bill, said the additional protections for parents would not only help more children reunify with their families, it could reduce the number of young adults who leave foster care alone and disconnected from stable housing, income or a support system. 

Flatley said while the timelines can succeed at creating a greater sense of urgency around permanency for foster youth, roughly 22,000 youth still age out of foster care each year with no legal family ties. Meanwhile, many of their parents may simply have needed more time to complete court-ordered service plans.

“By maintaining those family connections and those relationships, we may be able to mitigate and limit the number of kids who are aging out alone,” Flatley said. 

Under the 1997 Adoption and Safe Families Act, states have received financial incentives to push foster children along the adoption path, despite critics’ objections. Bass’s bill does not address adoption incentives, instead taking aim at timelines that lead to the termination of parental rights — a critical first step for children to be adopted.

Still, even staunch detractors of the existing law applauded Bass’s attempt to update it through a social justice lens. 

“I don’t know what the chances are for passage, but the fact that we can even have this discussion shows that the racial justice reckoning finally is reaching child welfare,” said Richard Wexler, an outspoken foster care critic and executive director of the National Coalition for Child Protection Reform. “If it passes, it will improve the lives of, ultimately, millions of children.”

Thanks to The Imprint for this blog.

Believing in Colorblindness is a Privilege

Colin Kaepernick with his parents, Teresa Kaepernick, Rick Kaepernick and girlfriend, Nessa Diab

Read the link to Colin’s story at the end of this blog to understand more completely why his photo is here.

Articles that mention adoption always catch my attention. Today, I saw one in the Huffington Post – Like Colin Kaepernick, I Wish My Adoptive Family Had Talked About Race by Melissa Guida-Richards. She was adopted from Colombia in 1993 and her adoptive parents were one of many that believed in the colorblind ideology. Her adoptive parents believed that giving a child a loving home was all that was necessary. 

For most of her life, the family didn’t talk about her race and ethnicity. Actually, she was not aware of her true racial identity until she was 19 and found her adoption paperwork. Her parents had believed that if they raised her as Latina, she would be treated differently than the rest of the family. However, people often questioned her about where she was from ― particularly when her adoptive family wasn’t around. When she was out in public with her white parents, she found that she was included under their umbrella of privilege. But the moment she was out on her own, people treated her differently.

Many BIPOC adoptees eventually learn that the world is divided into how they are perceived with their adoptive families versus when they are alone. And this is especially true in today’s climate where an Asian adoptee shopping for groceries can be attacked, a Black adoptee pulled over by police is potentially in danger, or a Latina adoptee walking in their town is told to go back to their own country. Adoptive families can think that it will never happen to their child, but for most transracial adoptees, it does. It’s just part of the reality of being a person of color.

Transracial adoptees do not have the privilege of believing in colorblindness. It can be fatal for a Black adoptee to “forget” that they are Black. If that adoptee approaches a police officer the same way their white parents do, they could find themselves in danger. When adoptive parents do not properly prepare their transracial adoptee for a racialized world, they are left playing a game of catch-up that they hopefully can win before it costs them their very life.

Current policies disallow considering race when placing children in adoptive homes. This is due to laws like the Multiethnic Placement Act (MEPA), which prevents child welfare agencies that receive federal funding from denying or delaying a child’s placement based on race. MEPA was amended in 1996 to establish that states could be fined for using race in placement decisions. While MEPA also requires agencies to “diligently recruit families that reflect the racial diversity of the children in need of homes,” it does not fine states that fail to do so.

Currently over 70% of adoptive parents are white and over half of adopted children are of a different race than their adoptive parents. One key issue with MEPA was that, while it made it significantly easier for white middle-class adoptive parents to adopt children of other races, it neglected to require anti-racism and transracial adoption education before or after placement.

The adoption industry perpetuates the idea that adoption ends in a beautiful happily ever after. When we think of adoption as an ending, we forget that it has a lasting, constant impact throughout the adopted person’s life, not just their childhood. Race should not be an afterthought in adoption. Adoptees are often pressured to be grateful and simply be happy that they have a family, to forget all of the challenges and trauma they experience.

When you are a person of color, you know how the world sees and treats you, and when your family refuses to be open to simple conversations about ethnicity and race, you start to wonder what’s so negative about acknowledging your identity. It impacts how you see yourself and how you believe your family sees you.

The author found that her adoptive family avoiding conversations of racial differences led to her having feelings of rejection and shame. She struggled to understand how her parents and relatives could love all of her, when they refused to acknowledge a big piece of her identity. Adoptive parents need to get comfortable having uncomfortable conversations about race. Race may be a construct but its ramifications are very real.

At the beginning of her essay, the author also mentions Kaepernick’s interview in Ebony magazine. Worth the quick read.