ASFA and the Disappearing Parental Rights of Prisoners

Was your child placed in foster care when you were incarcerated? Perhaps your mother (or another blood relative) was told she "didn't qualify" to adopt your child? Were your parental rights terminated, and your child adopted away from your family, perhaps by a family with no understanding of your child's culture?

 The following article was written by a professional in the child welfare system in our region who asked to remain anonymous

Was your child placed in foster care when you were incarcerated? Perhaps your mother (or another blood relative) was told she “didn’t qualify” to adopt your child? Were your parental rights terminated, and your child adopted away from your family, perhaps by a family with no understanding of your child’s culture?

We have been so focused on the devastation mandatory minimums and other harsh sentencing laws have wrecked on prisoners, that few realized the devastating consequences of another far-reaching piece of (federal) legislation that particularly affects women prisoners’ with children: the 1997 Adoptions and Safe Families Act (ASFA). In practice, both ASFA and current sentencing policies target the poor and people of color.

Under the 1997 Adoptions and Safe Families Act (ASFA), parents with children in foster care must demonstrate the ability to personally provide adequate care for their children within 12 months or face termination of their parental rights. ASFA also mandates which family situations call for reasonable reunification efforts and which simply do not require social workers to provide services to reunite the child with his or her parent(s).

Under ASFA any parent incarcerated for more than a few months is in a situation that does not require efforts at reunification. In practical terms, an incarcerated parent whose child is in foster care will be subject to termination of parental rights proceedings, thus making the child a legal orphan and “freeing” the child for adoption. Traditionally, in poor and minority communities, blood relatives have stepped forward to adopt these children, ensuring that they remain within the extended family. But another provision of ASFA requires criminal records checks for prospective foster and adoptive parents, which can present an insurmountable barrier to many seeking to keep a child within the extended family. Any family member with a police record can be “disqualified” from providing foster care or from adopting the child. Some criminal convictions disqualify forever, others disqualify for 5 or 10 years after completion of all parole or probation supervision.

Each state has its own list of kinship “disqualifications” (i.e. convictions that disqualify a family member from taking custody of a child) based upon the requirements of ASFA. For example, “never approve” convictions that permanently disqualify a family member from caring for a child in state custody include: murder, rape, assault (child or spouse), sex crimes, child sex crimes, sexual abuse, and child pornography. But in some states, “never approve” status is attached to a variety of more surprising convictions, such as criminal non-support; robbery I, II, and III; intimidation; unlawful use of a weapon; unlawful use of an electric weapon, tear gas or mace; “attempt” crimes; conspiracy; hindering prosecution; and riot.

The list of crimes that result in “temporary” disqualification of a family member from assuming custody of a child is even broader. Ten (10) year disqualification can be based on prior convictions including: bribe receiving or giving; perjury; false swearing; failure to appear I and II; interfering with a police officer; interfering with a police animal; forgery I, II, and III; Mischief I and II; and tree spiking. Five (5) year disqualification convictions include: most Schedule I, II, and III drug convictions; assault (not child or spouse); obstructing government or judicial administration; resisting arrest; interfering with legislative operation; unlawful lobbying; abuse of venerated objects; disorderly conduct; and DUII.

Under ASFA, states receive millions of dollars in federal financial incentives to increase the number of children adopted each year. Thus it becomes counterproductive, from the state’s point of view, to provide services to enhance or improve parent/child relationships while the parent is in prison, or to approve “ASFA exceptions” to enable “disqualified” grandparents or other blood relatives to keep children within the family while their parent(s) is incarcerated. Instead, ASFA incentive dollars pay states to increase adoptions, and funds the large adoption subsidies paid to primarily white families who adopt the children taken away from poor and minority families.

Many incarcerated parents fail to realize that once their parental rights to one child have been terminated under ASFA, that termination itself becomes grounds for subsequent termination of parental rights to other biological children who may come into foster care later. This can be especially hard on women prisoners, the vast majority of whom have children.

While foster or adoptive families are paid ASFA subsidies to help cover the cost-of-care for children in their custody, relatives who do manage to hang onto grandchildren (keeping them safely out of the general foster care system) often find their grandchild/nephew/cousin is “non-4E eligible” and are told they don’t qualify for foster care payments (of $350 to $1000 + per month). Penalized for hanging onto their children/grandchildren, these families usually qualify only for non-needy relative grants amounting to approximately $150 per month even though in order to care for them, their home may still have to meet a higher foster care certification standard.

National policies that target minority children for adoption and assimilation into the dominant culture are nothing new in the United States. As late as the 1960’s it was common practice for social workers and Bureau of Indian Affairs (BIA) officials to forcibly remove Native American children from their extended families and put them in foster care or in government boarding schools where the education system punished them for speaking their own language, and tried to force their assimilation into the dominant white culture. In this way, many Indian children were adopted away from their families, or were cut off forever from any meaningful connection with their culture. Many tribes were decimated in numbers through loss of their children to non-Native families.

In the 1970’s, the people of the First Nations protected their children through the passage of the Federal Indian Child Welfare Act (ICWA). But for other poor and minority children there is no similar protection. Under ASFA incentives, juvenile courts and social workers continue where government boarding schools of earlier generations left off, “freeing” children for adoption and justifying their actions as being in the best interest of the children. The loss of this generation of children, not to prison but to adoption and social planning, is especially devastating to African American families and communities that only a few generations ago suffered under slavery and watched helplessly as their children were literally auctioned away.

Sentencing policies that are tilted toward imprisoning people of color interlock with federal adoption policies that provide incentives for “freeing” more children for adoption. Both policies carry out the same racist agenda. This agenda ensured the warehousing of a whole generation of people of color under mandatory minimum sentencing laws. Now, our children’s children are made legal orphans available for adoption because their parents are in prison, often sentenced under draconian drug laws, while many family members who want them and could raise them face disqualification on grounds of old criminal convictions.

While official America continues to deny the reality of racism, and seeks to convince us that these policies are simply for locking up criminals and preventing child abuse and neglect—make no mistake, these are policies of choice. Those in power refuse to consider viable alternatives that can strengthen communities, such as:

  • Change sentencing policies, especially for non-violent offenses
  • Provide drug treatment, social services, education, and children's programs
  • Build prison facilities that allow small children to continue to live with their incarcerated parent
  • Reform overly harsh kinship disqualification rules, and offer them equal support services as those received by non-kin caregivers
  • Allow adoption workers to routinely consider race, ethnicity, color or national origin in making the best adoption placement decisions for individual children, so that children continue to be raised in their culture of origin. (currently, the Multi Ethnic Placement Act—MEPA, and the Inter Ethnic Placement Act—IEPA, makes it illegal to even discuss a child’s needs in this context.)

Plainly, this nation chooses to incarcerate, to terminate parental rights, to create legal orphans and adopt out  children of color rather than change the way it does business. And in the end, this results in cultural genocide.

This article originally appeared in the Summer 2001 issue of Justice Matters.