By Jessa Royer, 2L, Howard University School of Law
Before my internship with Community Legal Services (CLS), I felt this pull towards policy and prison reform, focusing on people of color. I have learned that, to address the U.S. jail and prison systems, we must all think about and consider the children that are funneled into the system at an early age – typically children of color. We must think about how their childhood trauma, their experiences with poverty, their school experiences, etc., contribute to their likelihood of incarceration as an adult and what we can do to prevent it.
In my second week at CLS, I was given the perfect project: research to compile a draft of amendments to the Adoption and Safe Families Act.
The Adoption and Safe Families Act (AFSA) was enacted in 1997, during the Clinton Era. The original goal was to prioritize adoption to ensure permanency, stability, and supportive parent-child relationships when the U.S. was trying to be tough on crime— particularly, this Act was tough on parents. But, instead, it had disastrous consequences for children and families across the U.S.
I took on researching how ASFA has negatively affected families and has ultimately torn so many families apart. I jumped on this opportunity to re-envision the child welfare system and further my knowledge of the prison pipeline, the intersection between poverty, family separation, and incarceration. There’s a very good reason the child welfare system is referred to as the “family policing system.” Frequently, departments such as Child Protective Services, similar to police officers, harm rather than protect Black and brown families and fail to consider the structural, historical, and racial causes of hardships. Working on this project was an excellent opportunity to acquaint myself with an Act that had so much impact and that I had never even heard of before coming to CLS.
Specifically, I looked at the timeline that AFSA gives parents to complete the specific programs required to reunify with their children and the impact that this timeline has on incarcerated parents. First, AFSA provides a timeframe of 15-22 months, depending on the state, for parents to show Family Court that they can successfully parent. The timeline starts after their children are removed and placed in a stranger foster home, kinship (with willing family members), or group home. Reunification within that time can be nearly impossible for struggling parents, especially parents who are convicted and incarcerated for over 22 months, and parents waiting for trial for long periods. Another issue comes when the mother is the primary provider. It is not uncommon for fathers to not be assigned an attorney to reunite with their children.
If the child and parent don’t reunify within this specified period, the next step is for the court to consider adoption and usually terminate the parental rights. Parents and children often don’t have contact until the child reaches adult age. What makes it worse is that the state receives a monetary incentive for increased adoptions from the federal government, which drives the adoptions processes forward and incentivizes the separation of families and family trauma.
Second, we looked at how COVID affected reunification efforts. For example, during the last year, many parents struggled to get to virtual court hearings. Hearings went from every three months to every six months to reduce court overflow, but it left many parents uncertain about when they would see their children again. COVID also affected parents’ wait times for inpatient centers, drug and alcohol programs, and access to parenting classes. Many of these classes were only virtual or had limited class sizes.
Finally, we looked at how the court decides what's in the child's best interests and how the court defines “reasonable efforts” made by the department to help parents reunify with their children. The court decides what’s in the child’s best interest based on the state, the child's age, the parental circumstances, and the efforts of the parent to complete suggested programs. However, the court does not consider the parent's best interests when deciding to terminate parental rights.
“Reasonable efforts” are defined by the judge and entirely at the judge's discretion. The department must offer services to the parent during the specified period to aid the parent in reunifying with their children. Reasonable efforts could be as small as transportation to hearings or certain things like referrals for housing, drug and alcohol screening, parenting classes, or therapy sessions. Typically, a judge is hesitant to find that a department didn’t make reasonable efforts towards reunification not to reprimand such a big state or city department. The department should also be offering these services to incarcerated parents. Still, often there are barriers in access, such as lack of programs available or funds for transportation outside of the prison to such classes.
What I knew already, and found through research, was shocking. For example, it is well known that incarceration rates are higher for people of color. Still, I had no idea that Black children represent 26% of the foster care population, while only representing 13% of the U.S. population. The racial disparities in Philadelphia and rates of removal are incredibly high compared to other cities. According to the York Daily Record, the rate of child removal is nearly 22%, compared to 11% nationwide.
I also had no idea about the number of children in foster care and that the foster care population has risen by almost 250% since the creation of AFSA. It’s interesting to me that, as the foster care system grew, so did the number of incarcerated people in the U.S. Our systems must shift from the default of adoption and termination to family attachment and stability.
This project got me thinking, and I learned so much along the way. There are so many avenues to go down: What about homeless parents? What about parents who lost their job during the pandemic? They’re at a higher risk all because of an event that is entirely out of their hands. Going forward, we must all move with compassion and understanding instead of disparaging parents and families that are doing their best to make ends meet. I feel blessed to have worked with an organization that centers the family and their needs and have been a part of such an essential and potentially transformative project.