The Adoption and Safe Families Act is not worth saving: The case for repeal

• Published date: 01 April 2023
• Author: Shanta Trivedi
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/fcre.12711

SPECIAL ISSUE ARTICLE

The Adoption and Safe Families Act is not worth

saving: The case for repeal

Shanta Trivedi

School of Law, University of Baltimore, Baltimore, Maryland, USA

Correspondence

Shanta Trivedi, School of Law, University of

Baltimore, 1420 N. Charles St., Baltimore, MD

11201, USA.

Email: strivedi@ubalt.edu

Abstract

The controlling federal family regulation law, the Adoption

and Safe Families Act of 1997 (“ASFA”), has long been criti-

cized for unnecessarily terminating the rights of parents and

leaving thousands of children in its wake without legal par-

ents or any prospect for adoption. Critics highlight the irrep-

arable destruction ASFA has caused the Black community,

and many suggest that this result is by design, not dispro-

portionate impact. As a result, a growing movement of

impacted parents, advocates, and scholars have called for

ASFA's total repeal. This article draws on the work of these

parents, advocates, and scholars to argue that a law whose

foundation is built on inherently prejudicial policies cannot

be repaired; it must be dismantled in its entirety. Disman-

tling is necessary not only for practical legal reasons, but

also because of the symbolic importance of repeal to those

most impacted by the law and its attendant policies. Laws

have expressive value, and as such, the repeal of harmful

laws demonstrates our priorities, our beliefs and who we

Shanta Trivedi is an Assistant Professor of Law and Faculty Director of the Sayra & Neil Meyerhoff Center for Children, Families, and the Courts at the

University of Baltimore School of Law. This article draws on two earlier full-length pieces, The Harm of Child Removal, 43 N.Y.U. REV.L.&SOC.CHANGE523

(2019) and My Family Belongs to Me: A Child's Constitutional Right to Family Integrity,56H

ARV. C.R.-C.L. L. REV. 267 (2021) and a co-authored piece with

Matthew I. Fraidin, A Role for Communities in Reasonable Efforts to Prevent Removal, 12 Colum. J. Race & L. 29 (2022). I am grateful first and foremost to the

Repeal ASFA Campaign Steering Committee, the Movement for Family Power, Just Making a Change for Families, the Parents' Legislative Action Network,

Rise, and the many impacted parents, community organizations and advocates leading the call to repeal ASFA. “Thank you”seems insufficient to Dorothy

Roberts and Marty Guggenheim for their lifetime of work dedicated to preserving families and their trailblazing scholarship upon which this article is built.

Thanks also to my colleagues Daniel E Hatcher and Jane Murphy for this opportunity and to Jana Singer for her excellent editing. I am grateful for the

feedback received at the NYU Clinical Law Review Writers Workshop, the Children and Law Workshop and suggestions from Dionne L. Koller, Margaret E.

Johnson that greatly improved this draft. This article would not have been completed without Clare Huntington's detailed and generous feedback or

without Erin Carrington Smith's impeccable research assistance.

DOI: 10.1111/fcre.12711

© 2023 Association of Family and Conciliation Courts.

Family Court Rev. 2023;61:315–340. wileyonlinelibrary.com/journal/fcre 315

are as a society. This article examines previous attempts at

reform to demonstrate that any attempt to amend ASFA

would be insufficient to address its fundamental flaws.

Finally, the article concludes by proposing a path forward

that is led by impacted families, respects the right to family

integrity and recognizes the importance of supporting and

investing in communities.

KEYWORDS

adoption, child welfare, children, dependency, family court, foster

care, parents, poverty, racial justice, social justice, termination of

parental rights

Key points for the family court community

•The Adoption and Safe Families Act is built on a founda-

tion of inherently prejudicial policies.

•ASFA's structure also undermines efforts to keep families

together.

•A growing community of impacted people, activists,

advocates and scholars believe that ASFA should be rep-

ealed becuase of its destructive impact on low-income

parents and communities of color.

•Other efforts at reform have only increased the abilty of

the state to surveil and punish.

•Laws have expressive value and many believe that

repealing a harmful law is crucial to healing communities

that have been harmed.

•To truly begin to atone for the harms of the past, we

must envision a path forward that shifts power, invests

in the community and is completely transforms our

approach to “child welfare.”

•Impacted parents must lead the effort towards change

and allies and advocates should listen, learn, act with

humility and support.

[B]ad laws, if they exist, should be repealed as soon as possible. –Abraham Lincoln

1

1

Abraham Lincoln, The Perpetuation of Our Political Institutions (Address by Abraham Lincoln before the Young Men's Lyceum of Springfield),6J.OFTHE ABRAHAM

LINCOLN ASS'N6, 10 (1984).

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