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.

Adoption-Related Complex Trauma

Also called Cumulative Trauma – The research is definitive. Adopted kids are not only traumatized by the original separation from their parents, they may also have been traumatized by the events that led to them being put up for adoption. In addition to that, foster care itself is considered an adverse childhood experience.

I recently wrote a blog titled “It’s Simply NOT the Same.” Though the traumas may originate similarly, the outcomes are not the same because just like any other person, no two adoptees are exactly alike. That should not prevent any of us from trying to understand that adoptees carry wounds, even if the adoptee is unaware that the wounds are deep within them.

It is not uncommon for an adopted person and/or the adoptive family to seek mental health services due to the effect of the adoptee experiencing traumatic events. Unfortunately, for psychology and psychiatry clinicians, adoption related training is rare. In my all things adoption group, the advice is often to seek out an adoption competent therapist for good reason.

“What does an adopted baby know ? She knows her mother, she knows her loss, sadness and hurt, she knows that those who hold her today may be gone tomorrow and that she will be the only one left to pick up the pieces that no one seems to think are broken.”
~ Karl Stenske, 2012

The reasons a child is put up for adoption or relinquished are many – an unwanted or unplanned pregnancy, often compounded or driven by a lack of financial resources (poverty) or no familial support to care for a child. Becoming a single parent may simply seem too daunting to an unwed expectant mother. Sadly, for some, a chronic/terminal illness or certain diseases may lead the mother to believe she cannot provide proper care for her baby. Certainly, prolonged substance addiction and/or severe mental health issues (which may be related to addiction) can cause parental rights to be forcefully terminated by child welfare authorities. Adoptees who come out of the child welfare system (legal termination of parental rights by a court of law) cannot legally be returned to their birth families due to safety or other reasons that are considered serious.

Adoption is not always a success. Disruptions and dissolutions do sometimes occur.

Disruptions can happen after the adoption has been finalized when the adoptive parents then experience difficulties with their adopted child. The adoptive parents may have difficulty finding support and the resources they require to deal with the issues that come up.

Risk factors leading to a higher rate of disruptions are: older age when adopted, existing emotional and behavioral issues, having a strong attachment to their birth mother, having been a victim of pre-adoption sexual abuse, suffering from a lack of social support from relatives causing the adoption to occur, unrealistic expectations surrounding the adoption and the child on the part of hopeful adoptive parents, and a lack of adequate preparation and ongoing support for the adoptive family prior to and after the placement.

A devastating occurrence is a dissolution or breakdown. This applies to an adoption in which the legal relationship between the adoptive parents and the adoptive child is severed, either voluntary or involuntarily. Usually this will result in the entry or re-entry of the child into the foster care system, or less commonly a second chance adoption, or even the private transfer of the child from the adoptive parents to a non-vetted receiving parent.

Adoption has been subject to both positive and negative assumptions related to the practice and this is of no surprise to anyone who has studied the practice of adoption for a period of time.

There are 6 main assumptions about the practice of adoption –

[1] Adoption is a joyous event for all involved – known as the Unicorns and Rainbows Fantasy in adoption centric communities; [2] adoption parallels genetic birth experience and a biological family life – which close observation and mixed families (who have both biological and adopted children often belie); [3] once adopted, all of the child’s problems disappear and there will be no additional challenges – rarely true – and often attachment or bonding fail to occur; [4] creating a family through adoption is “false,” only biological families are “real” – this goes too far in making a case because many adults create chosen families – the truth is as regards children, family is those persons we grow up with – believing we are related to them – in my case, both of my parents were adopted and all of my “relations” growing up were non-genetic and non-biological but I have a life history with them and continue to have contact with aunts, an uncle and cousins I obtained through my parents’ adoptions; [5] the adoptive life is better than the biological life the child had or would have had – never a known assumption – more accurately, the adoptee’s life is different than that child would have had, if they had not been adopted; and, [6] closed adoptions are in the best interest of the child – this one was promoted with the intention of shielding adoptive parents from original parents who regretted the surrender, from the child who might yearn for their original family and often in some cases to shield a person operating unscrupulously, such as the baby thief Georgia Tann who sold ill-gotten children. Popular media has reinforced both the positive and the negative messages about adoption and many myths and stereotypes regarding adoptive families and birth parents are believed in society as a whole.

The term “adoption-related complex trauma” is rarely used in discussing symptoms and behaviors. It is more common to see terms such as “developmental trauma” or “complex trauma” to describe the psychological effects found within the adopted population.

The terms complex trauma and complex post-traumatic stress disorder have been used to describe the experience of multiple and/or chronic and prolonged, developmentally adverse traumatic events, most often of an personal nature such as sexual, physical, verbal abuse or of a societal nature such as war or community violence. These exposures often have occurred within the child’s caregiving environment and may include physical, emotional and/or other forms of neglect and maltreatment that begin early in childhood. In the case of infant adoptions, the trauma is non-verbal but stored in the body of that baby – not conscious but recorded.

Some of this content has been sourced from a long dissertation titled Treatment Considerations For Adoption-related Complex Trauma. Anyone interested is encouraged to read more at the link.