Tammy and her wife, Kathy, are white. The Florida residents became foster parents to Tiffany, who is black, when she was born and continued to care for her until the age of 3. That’s when they applied to adopt her. Tiffany’s aunt expressed no interest in caring for her despite living close by and having already adopted the child’s older brother.
The state nevertheless approved Tiffany’s aunt as the adoptive placement instead of Tammy and Kathy because her aunt is “kin,” a choice almost always favored by child welfare agencies and courts these days. Why? When the couple sued the state over the decision, a witness for Florida’s Department of Children and Families said the quiet part out loud. Asked about what qualified her to judge that a three-year bond with the only women Tiffany had known as her parents was less important than being cared for by someone who shared her DNA, the caseworker said, “I have education in agriculture, which deals with breeding in livestock and the importance of genetics in that.”
All other things being equal, of course, it makes sense for a child who has been abused or neglected by his or her parents to be cared for by a grandparent or an aunt. But there are many cases where all other things are not equal. To rip a child away from the only parents he or she has known to be taken out of state or placed with relatives, even a second cousin, he or she has never met doesn’t make sense to anyone who has ever met a child, let alone anyone who understands the importance of secure attachment to a child’s development. But our child welfare system has become infected by a biological determinism so singularly focused on race-matching that employees sound like they are talking about breeding farm animals rather than making decisions in the best interests of children.
Tammy and Kathy ultimately won their case, but thousands of other long-term foster parents are being rejected as permanent placements. Tim Keller, senior vice president and legal director at the Center for the Rights of Abused Children, said that such cases make up about a third of those in his legal clinic right now. “There has been a big shift in the legal culture all of the sudden to put family first and above all other potential options even when [a] child is in a safe, stable, secure foster home for years,” he said.
Mollie Warren, the director of Family and Children Services for Boulder County, Colorado, recently explained in an interview the change in thinking. “We have so many conversations about the best interest of the child around being adopted by … the foster family that they have lived with for the last two years, which is often the entirety of their life, versus perhaps we’ve been able to locate a kinship family that the child doesn’t know,” she said. Warren added that “we have looked at that situation through too small of a lens.” She argued that we need instead to think about that child when he or she is older as well as “their parents, their extended family, their community, their ancestors.”
Their ancestors? Really? You have children who have been severely abused or chronically neglected, and the plan is to make decisions about the best home for them by taking the spirits of their dead ancestors into consideration?
Warren promotes a new absurd policy to match this absurd rhetoric. According to the Adoption and Safe Families Act, a state is supposed to move to terminate parental rights after a child has been in foster care for 15 of the past 22 months. This is a drastic step generally taken only after years of attempts to rehabilitate the parents from substance abuse, severe mental health issues, or other problems that make them unwilling or unable to care for their children.
Warren explains that Colorado is pushing something it calls the “assignment of parental rights.” Instead of terminating parental rights and allowing a child to be adopted, biological parents can assign parental rights temporarily to a foster parent and then at a time of their choosing, a month, a year, or even a decade later, they can take those foster parents to court to get the children back. There are regular hearings every two years, but the biological parent can go to court more often. The foster parents must pay their own legal fees, and the state has nothing to do with the arrangement once the allocation of parental responsibilities is final.
Imagine entering into what is basically a co-parenting relationship with adults who have been deemed so neglectful or abusive that they have had their children removed from their care for years. But for Warren, the goal here is not the stability of the children or the idea that they would know that they have a permanent home. It’s fixing racism. “My county is deeply committed to honoring families, respecting families, family preservation whenever possible, and race-equity work,” Warren explained. And because there are racial disparities in the foster care system, Warren’s solution is to ensure that the termination of parental rights doesn’t happen.
The county gets about 6,000 calls regarding abuse and neglect every year. It terminates the parental rights of about 16 families per year. One might guess those cases have to be pretty egregious. But even in those instances, apparently, Warren believes that the cure is worse than the disease. “I think we have to start asking if the intervention is more harmful than the abuse.” The idea that terminating the parental rights of 16 parents a year whose cases have risen to this level is worse than letting them be adopted outright is a shocking claim from the head of any child welfare agency.
Walter Olson, a senior fellow at the Cato Institute and an adoptive parent himself, appreciates Warren’s attempts to understand whether the process itself may be harmful. But not weighing the benefits of permanency to a child seems bizarre. “Adoptive parents may not be perfect, but every child deserves at some point for their life to regain the normality of having one decision-maker in their lives,” Olson said. “If you’re going to put best interest of child first, then sometimes you will ignore the joys or sorrows of adoptive parents.” But by the same token, it means you will also have to bypass the joys and sorrows of the biological parents. “She seems unwilling to do that,” Olson said.
Nor is Warren alone. In 2019, both houses of the New York legislature passed the Preserving Family Bonds Act, which would let birth parents whose rights have been terminated by the court apply to visit their children. The governor vetoed the bill, but the effects on adoptive children could have been devastating. Who knows when an abusive or neglectful parent might show up demanding to see a child who has been legally adopted for years? And, of course, the process would demote adoptive families to a kind of second-class status. Under what circumstances do courts force other parents to let their children see another adult they deem unfit? Meanwhile, a bill recently introduced in Congress called the 21st Century Children and Families Act would end the federal requirement to terminate parental rights.
Olson correctly noted that the country seems to be “retreating on many fronts from adoption.” The idea, he said, that “only blood relatives should be responsible for a child” is the default position for most of human history and in the world today. “In most of the world, people have begged in the streets because the idea of making that your child” was unacceptable. “Adoption that didn’t include bloodlines was weird and wrong.” By contrast, he said, “modern liberalism deemphasized the importance of blood ties.
Though the zeitgeist is moving away particularly from transracial adoption, the law is still on the side of children who need safe, loving, and permanent homes. Unfortunately, much of the child welfare system is governed not by law but by the ideological commitments of agency heads and judges — which is why Warren seems able to change her county’s policies unilaterally without much oversight.
There are some attempts to push back on these policies. Another couple whose situation was similar to Kathy and Tammy’s were rejected for an adoption placement in favor of a relative by Florida’s Department of Children and Families even though they had cared for the child for years. The agency claimed it must always prioritize kin.
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The couple sued, and the Florida Division of Administrative Hearings held that the agency rule was invalid because the Department of Children and Families stepped over its boundaries when it created a policy that was not authorized by the law. It is a small but important victory in the fight to ensure that courts are prioritizing the best interests of children when making decisions about foster care and adoption, not the feelings of the parents who have abused them, let alone their community or their ancestors.
Children are not animals to be herded. They are people with needs for love, safety, and security. Our child welfare system should reflect that.
Naomi Schaefer Riley is a senior fellow at the American Enterprise Institute and the Independent Women’s Forum. She is the author of No Way to Treat a Child: How the Foster Care System, Family Courts, and Racial Activists Are Wrecking Young Lives.