How the Adoption and Safe Families Act (ASFA) Destroyed Parental Rights Without Due Process

The Adoption and Safe Families Act (ASFA) was designed to speed up the termination of parental rights so children could be adopted by foster families. However, ASFA failed to provide parents with any additional protections, such as the right to a jury trial. When a constitutional right is reduced, the restriction is supposed to be narrowly tailored—the smallest restriction possible and subject to checks and balances. However, Congress and the President routinely pass laws without first checking with the Supreme Court to see whether these new laws are constitutional and narrowly tailored. States also rarely have new laws reviewed by state courts to see if they are constitutional and narrowly tailored. Who helped push ASFA through Congress? First Lady Hillary Clinton, who had previously worked as an attorney in private practice. She met with the Association of Family and Conciliation Courts (AFCC)—the network of judges, attorneys, minor’s counsel, social workers, and psychologists who would ultimately receive much of ASFA’s funding. She played a pivotal role in ASFA’s passage and served as honorary chairperson of the AFCC Second World Congress less than four years later.

ASFA is a prime example of a law that was not properly restricted. It delivered a fatal blow to the fundamental liberty interest parents have in the “care, control, and companionship” of their children, while offering no proportional due‑process protections in return.

Before retiring, California Judge Hector Ramon expressed deep concern that juveniles were being brought into what was essentially criminal court and given adult‑level consequences without adult‑level protections, such as jury trial rights. ASFA created a similar injustice for parents: it brought them into court and imposed the harshest possible sentence—the permanent loss of their child (#TPR)—without the safeguard of a jury.

ASFA also failed for another reason. The AFCC members who pushed ASFA through Congress, did not have the resources to support their own vision. They imagined a world full of loving, stable adoptive families—but those families did not exist in the numbers required. As Texas Tech law professor DeLeith Gossett wrote in a 2018 Memphis Law Review report, ASFA’s financial incentives “disrupted families permanently by the speedy termination of parental rights, without the accompanying move from foster care to adoptive homes.” Children languished in foster care, often aging out into negative life outcomes. Gossett noted that ASFA was even blamed for leaving many children as orphans—an outcome far from its stated intention. Note that Gossett was writing from Texas—the only state that already had jury‑trial protections in both family and juvenile dependency courts when ASFA was implemented. 

Imagine the devastation in states like California, where parents had no such protection. Too many California children lost their parents because of ASFA, and too many of those children were later placed with “fit” adoptive parents who then re‑listed them for “second‑chance adoptions” or privately transferred them to someone else—even while receiving monthly adoption subsidies adding on to loss these children already sustained. There are far worse outcomes by adoptive parents (Jennifer and Sarah Hart, Mendocino, CA).

ASFA amended Title IV‑E of the Social Security Act, which reimburses California for complying with it. The newer Family First Prevention Services Act also reimburses states, but this time for placing children with relatives. Three years later, California still has not fully implemented it. As long as ASFA reimbursements continue flowing for separating children from their families, California will continue doing so. Yet Family First is working elsewhere. More than 13 million grandchildren are being raised by grandparents, who are legally presumed to act in their grandchildren’s best interest. These grandparents save taxpayers an estimated $6 billion per year simply by keeping children out of foster care—and they may be the only hope for reversing the generational damage caused by family and dependency courts.