The Case for Repeal: How Washington Built a Family-Separation Machine and Called It Child Welfare

For decades, federal policy has rewarded removal, accelerated termination, and called the result child protection.

There is a sentence buried at the center of this investigation that should stop every member of Congress cold: since the Adoption and Safe Families Act took effect, the federal government has paid states more than one billion dollars to accelerate permanent family separation, while spending many times more on removal and post-removal placement than on keeping families together in the first place. That is not a slogan. That is the architecture. It is the ledger beneath the language of “permanency,” the fiscal machinery beneath the court hearings, the invisible incentive system beneath the caseworker’s knock at the door. For more than twenty-five years, America has operated a child welfare system that tells the public it is rescuing children, tells judges it is pursuing stability, tells parents it is offering services, and then pays states only when the system moves children away from their families and toward adoption or guardianship.

The Adoption and Safe Families Act, known as ASFA, was sold in 1997 as a hard-headed answer to a real problem. Children were lingering too long in foster care, politicians said, and the system needed deadlines, urgency, and consequences. The law’s public face was child safety. Its political promise was permanency. Its emotional appeal was obvious: no child should grow up in legal limbo. But the statute Congress passed did not simply encourage states to move faster when children were unsafe. It rewired the financial incentives of child welfare by rewarding adoption and legal guardianship while offering no comparable federal incentive for successful reunification. In plain English, the system pays when a child exits foster care into a new legal family, but not when a child safely returns home to the family the state disrupted.

That single design choice has shaped a generation of child welfare practice. Under 42 U.S.C. § 673b, states receive federal incentive payments for foster child adoptions and guardianships above baseline numbers. The payment tiers are straightforward: thousands of dollars for qualifying adoptions and guardianships, including higher amounts for older children. The reunification equivalent is zero. Not less. Not delayed. Not conditional. Zero. A state can invest months into helping a parent secure housing, transportation, treatment, family support, and legal stability, and if the child safely returns home, there is no adoption-style federal bonus. But if parental rights are terminated and the child is moved into an adoptive placement above the baseline, the state enters a payment stream the federal government has maintained for decades.

The result is not merely a moral problem. It is an operational one. Systems respond to incentives, especially bureaucratic systems that survive on appropriations, compliance metrics, and programmatic funding. ASFA did not have to order state agencies to prefer adoption over reunification in every case. It simply made adoption financially legible and reunification financially invisible. Congress created a machine where one outcome counts, pays, and can be reported as success, while the other outcome, family restoration, is treated like a humanitarian side effect rather than the central measure of justice.

The defenders of ASFA will argue that the law contains exceptions, that agencies are supposed to provide reasonable efforts, that courts review the facts, and that termination of parental rights is not automatic. On paper, that is true. In the field, the clock rules. ASFA’s famous 15-out-of-22-month timeline requires states to file for termination of parental rights when a child has been in foster care for fifteen of the previous twenty-two months, unless an exception applies. That deadline sounds administrative until you understand what it does to poor families. Fifteen months is not a neutral period when a parent is waiting on housing vouchers, treatment slots, transportation, disability services, domestic violence safety planning, or court-ordered visitation controlled by the very agency seeking termination. Fifteen months is not neutral when the state removes first, investigates later, and then measures parental “progress” inside a maze the parent did not design and cannot afford to navigate.

What ASFA created was a legal conveyor belt dressed up as urgency. The state removes a child. The parent enters a service plan. The service plan depends on access to resources the parent may not have. The clock starts immediately. If the parent cannot comply quickly enough, whether because of poverty, bureaucracy, trauma, disability, lack of counsel, agency delay, or simple logistical impossibility, the state can convert temporary foster care into permanent legal severance. The most extreme civil penalty in American family law, the permanent destruction of the parent-child legal relationship, becomes tied to a timeline that often punishes poverty as if it were abandonment.

The federal spending numbers reveal the truth more clearly than any press release. In FY2023, Title IV-E foster care maintenance accounted for roughly $5.1 billion in federal spending for removal and out-of-home placement. Title IV-E adoption and guardianship assistance accounted for roughly $4.3 billion in post-termination permanent placement subsidies. Title IV-E prevention services under the Family First Prevention Services Act, the reform Congress touted as a pivot toward keeping families intact, stood at a fraction of that amount. Depending on which streams are counted, federal removal and placement spending outweighed prevention-focused spending by roughly fifteen-to-one to twenty-to-one. The sharper 23-to-1 figure compares adoption assistance to Title IV-E prevention services specifically, and while that ratio should be attributed carefully, the underlying story is not in dispute. Washington funds the back end of family destruction far more heavily than the front end of family preservation.

This is the poverty tax calculation hiding in plain sight. A family may need rent support, childcare, transportation, food stability, a safe bed, utility assistance, or a few months of intensive in-home services. Those interventions are often cheap compared with foster care. Yet the system routinely refuses direct support, then spends vastly more after removal. The family that needed a few thousand dollars in stabilization may be replaced by a foster care case costing tens of thousands of dollars per year once administrative overhead, court costs, contracted services, Medicaid, case management, and placement payments are included. When the child remains in care long enough, the ASFA clock converts that temporary crisis into a termination case. The government will not reliably pay to prevent the fire, but it will finance the ashes.

Congress already knows the system is not performing. Federal child and family services reviews have shown declining performance over multiple rounds. According to the research brief, no state has ever passed the federal Child and Family Services Reviews. Average measures met dropped substantially from Round 1 to Round 4, and in the current review cycle, a staggering share of reviewed states met zero of the core performance outcomes. That should have triggered emergency hearings years ago. Instead, the same federal government that documents failure keeps renewing the basic structure and feeding the same incentives.

The GAO findings make the picture even uglier. When Congress expanded adoption assistance through the Fostering Connections Act, states generated hundreds of millions in adoption-related savings. The Family First Prevention Services Act later required those savings to be reinvested in child welfare services, including post-adoption and prevention supports. GAO reviewed the numbers and found a massive accountability gap. Out of roughly $843 million in adoption savings generated between FY2015 and FY2019, only about $516 million was reported as reinvested. Preventive services received only a small fraction of the possible funds, and nine states reportedly spent zero on post-adoption or guardianship services. That is the scandal inside the scandal: Congress expanded the money, states realized savings, federal law required reinvestment, and hundreds of millions remained insufficiently accounted for in the very system claiming it needed more resources to protect children.

HHS oversight did not solve it. GAO found that federal oversight was hindered by poor data and inadequate guidance. States lacked clear direction on spending deadlines, and HHS disagreed with stronger data collection requirements. This is how bureaucratic failure becomes permanent. Congress passes a law. Agencies interpret it loosely. States adapt to the loopholes. Oversight bodies issue recommendations. HHS agrees in part, resists in part, and the money keeps moving. Meanwhile, families in crisis do not experience “guidance gaps.” They experience removals, court dates, service plans, missed visits, and termination petitions.

The adoption numbers themselves now expose ASFA’s collapse on its own terms. The law was built around adoption as the signature permanency outcome. Yet foster care adoptions have fallen for six consecutive years, reaching the lowest levels in decades. The brief records a peak around FY2019, followed by steep declines through FY2023 and FY2024. If ASFA’s defenders want to measure the law by adoption production, the production line is failing. If they want to measure it by child welfare outcomes, federal reviews show no state has passed. If they want to measure it by family preservation, the funding structure shows preservation is not the priority. By every honest metric, the statute has become a machine that damages families, underperforms for children, and evades accountability.

The most brutal evidence is the gap between terminations and adoptions. AFCARS-based analysis cited in the brief shows that terminations of parental rights have generally exceeded foster care adoptions by thousands of children per year. That means the system is not simply moving children from unsafe homes into permanent adoptive families. It is often destroying the original legal family faster than it can create a new one. The excess becomes a growing population of children who are legally free but not adopted, children whose parents’ rights have been severed but whose promised permanency never arrives. These children are the legal orphans of ASFA, the human residue of a policy that confuses cutting legal ties with creating family stability.

The numbers require precision because the stakes are too high for sloppy claims. The brief flags that there is no single official HHS cumulative count of all terminations of parental rights since 1997. Some advocacy sources cite more than two million. A more conservative peer-reviewed estimate is one million-plus. A reasonable math-derived range using annual data places the likely figure between roughly 1.5 million and 2 million. The exact number matters for publication defensibility, but the core finding does not depend on the highest estimate. Even the most cautious version means ASFA-era America has permanently severed the legal rights of more than one million parents from their children. That is not a narrow child protection tool. That is one of the largest state-driven family dissolution projects in modern American life.

The public hears “termination of parental rights” and often imagines the worst possible cases: severe abuse, sadistic violence, parents who cannot or will not protect their children. Those cases exist, and no serious critic denies that some children must be protected from dangerous adults. But the ASFA problem is structural. The law does not operate only in extreme cases. It operates inside a child welfare system where poverty is routinely coded as neglect, where housing instability becomes a safety concern, where missed appointments become noncompliance, where lack of transportation becomes parental failure, and where bureaucratic delay can be blamed on the parent once the clock runs out. The termination machine does not need to prove that every parent is monstrous. It only needs to show that the parent failed the plan within the time allowed.

This is why racial disparity is not incidental to ASFA. The system targets the families already most exposed to surveillance: poor families, Black families, Native families, disabled parents, domestic violence survivors, and families living under the daily supervision of schools, hospitals, shelters, public benefit offices, mandated reporters, and police. The brief’s racial disparity section shows that Native American and Alaska Native children face the highest lifetime termination rates, with Black children also facing far higher rates than white children nationally. In several states, Black children face termination rates four times or more than white children. That is not a statistical footnote. That is the system’s fingerprint.

ASFA did not invent racialized family separation, but it modernized it. For Native families, the history runs through boarding schools, forced assimilation, relocation, adoption projects, the Sixties Scoop, and state noncompliance with the Indian Child Welfare Act. For Black families, it runs through slavery, apprenticeship laws, poorhouses, juvenile courts, welfare surveillance, the Moynihan-era pathologizing of Black motherhood, the punitive turn in public benefits, and the family policing system Dorothy Roberts has spent decades documenting. ASFA sits at the intersection of these histories. It takes families already marked by race and poverty, subjects them to surveillance, removes children under the language of safety, and then rewards the state for moving those children into legally permanent alternatives.

This is where the language of “child welfare” becomes dangerous. It suggests benevolence. It suggests rescue. It suggests that the state is reluctantly intervening only when families fail. But the funding architecture tells a different story. The state is not a neutral referee. It is a funded participant. It receives federal reimbursement for foster care maintenance. It receives adoption and guardianship assistance streams. It receives incentives for certain permanency outcomes. It works with contractors, foster agencies, residential treatment providers, attorneys, evaluators, therapists, visitation supervisors, and adoption intermediaries who all draw income from the continuation of cases. The longer the child remains in the system, the more institutions touch the file. The more institutions touch the file, the more normal the case becomes. By the time termination is filed, the system can present itself as the only stable thing in the child’s life, even if the system created much of the instability.

The reform world increasingly understands this. The ABA End TPR Initiative has challenged the assumption that adoption should sit automatically atop the permanency hierarchy. Scholars such as Dorothy Roberts, Martin Guggenheim, Shanta Trivedi, and major organizations such as CSSP, NCCPR, Human Rights Watch, and the ACLU have called for deep structural changes, with some calling for full repeal of ASFA. Their proposals differ in emphasis, but they converge on a few unavoidable points. Reunification must be funded as a successful outcome. The 15/22-month trigger must be repealed or radically limited. Prevention must be funded at parity with removal. Adoption incentives must be clawed back or restructured when placements dissolve. Poverty must be removed from the neglect pipeline. Due process must become real, not ceremonial.

The legal argument is also evolving. The brief identifies Monell theory as one possible constitutional pathway. Under Monell v. Department of Social Services, municipalities and local governments can be liable under 42 U.S.C. § 1983 when constitutional violations flow from an official policy or custom. Applied to ASFA, the argument would be that state child welfare agencies operate under official policies built around ASFA compliance, especially the 15/22-month termination trigger, and that those policies violate the fundamental liberty interest parents and children have in their family relationship. The Supreme Court has long recognized that parents have a profound constitutional interest in the care and custody of their children. The question is whether a state policy that converts poverty, delay, and bureaucratic noncompliance into termination can survive serious due process scrutiny.

This path is legally difficult. ASFA is a Spending Clause statute, meaning states accept federal funds voluntarily, at least in theory. That gives states and the federal government a defense: no state is forced to participate. But that defense cuts both ways. If states voluntarily adopt ASFA-compliance policies, and those policies generate unconstitutional family separations, then state agencies cannot simply hide behind Washington. They chose the money. They built the policy. They enforced the clock. They filed the termination petitions. The constitutional injury lands on the family, not on a budget spreadsheet.

The strongest future cases will likely come from parents whose rights were terminated under timeline-driven policies rather than individualized proof of unfitness. They will come from cases where agencies failed to provide meaningful reunification services before filing for termination. They will come from states that treat ASFA’s timeline as a near-automatic mandate. They will come from children who were made legally free and then never adopted. They will come from the legal orphans ASFA produced after promising them permanency.

The international comparison makes America’s extremism impossible to ignore. The United States is unusual among peer democracies because it combines irrevocable termination of parental rights, financial incentives for adoption over reunification, and an automatic time-based termination trigger. Other countries use different permanency tools. England and Wales use placement orders, but parents can still seek revocation before the final adoption order. Germany rarely uses nonconsensual adoption in the American sense. Australia dramatically reduced adoptions and relies more heavily on permanent care orders that can provide stability without fully erasing the birth family’s legal existence. Canada varies by province, but it does not operate under a comparable federal adoption incentive and mandatory time-trigger structure. America’s model is not inevitable. It is a policy choice.

Australia’s experience is especially important because it destroys the false binary at the heart of ASFA politics. The choice is not between leaving children in danger and permanently erasing their families. There are legal tools between reunification and adoption. Guardianship, kinship care, customary adoption, permanent care orders, open adoption arrangements, and culturally grounded family care models can provide stability without pretending that a child’s original family must be legally annihilated for the child to be safe. The American system’s obsession with termination is not a universal child safety principle. It is a domestic legal habit reinforced by federal funding.

The cost-benefit case for repeal is devastating. Foster care is expensive. The brief cites conservative per-child annual costs in the tens of thousands, with broader stacked costs reaching much higher once overhead, courts, Medicaid, administration, and contracted services are included. Total child welfare spending across federal, state, and local systems runs into the tens of billions annually. Meanwhile, family preservation programs can cost a fraction of a single year of foster care. A Michigan reunification program cited in the research reportedly cost about $6,700 per family with strong success rates. Compare that with one year of foster care, and the absurdity becomes obvious. The system often refuses the cheaper intervention before removal, then pays the higher cost after removal, then invokes the passage of time as evidence that the child cannot go home.

The long-term outcomes for foster care alumni expose the human cost of this policy. The brief cites alumni outcome data showing elevated poverty, homelessness, lack of health insurance, incarceration, low college completion, substance use disorder, and employment instability. These are not individual moral failures. They are predictable outcomes of a system that removes children from families, moves them through placements, severs legal ties, and then too often releases them into adulthood without the permanent family the system promised. When a child ages out after termination, the state has accomplished the most extreme legal act possible against the original family while failing to deliver the substitute it used to justify that act.

That is the hidden cruelty of legal orphanhood. A child whose parent’s rights are terminated does not simply lose a bad parent. The child may lose siblings, grandparents, cousins, tribal identity, inheritance rights, medical history, cultural belonging, and the possibility of legally recognized restoration. In Native cases, the loss can extend beyond family to sovereignty and community continuity. In Black families, the loss repeats a long history of state systems treating poverty and surveillance contact as evidence of parental deficiency. ASFA turns these losses into administrative milestones.

The defenders of the current system will point to the Family First Prevention Services Act as proof that Congress has already corrected course. But FFPSA has not reversed the underlying imbalance. The brief describes it as the prevention law that has not fixed prevention. It was billed as a major financing reform, but years after enactment, prevention spending remains tiny compared with the removal apparatus. Evidence-based program restrictions narrowed eligibility. Medicaid already covered some services, creating a payer-of-last-resort problem. Only a limited number of children were served nationally under the prevention provisions in FY2023, years after implementation. Growth from a near-zero baseline can look impressive in a press release while remaining marginal in the actual budget.

Congress is now considering another move in the wrong direction: expanding adoption subsidies through the Adoption Tax Credit Refundability Act. Making the federal adoption tax credit fully refundable may help some families afford adoption, but that is exactly the problem if done without restructuring the front end of the system. It subsidizes demand for adoption without fixing the supply pipeline that moves children into adoptability through termination. It does nothing to repeal the 15/22-month trigger. It does nothing to create a reunification incentive. It does nothing to fund prevention at parity. It does nothing to ensure that poverty is not converted into neglect. It makes adoption easier while leaving the family-separation machine intact.

The political coalition behind adoption subsidies often frames the issue as compassion. But compassion cannot be measured only from the perspective of adoptive demand. A just system must ask how the child became legally available. It must ask whether the birth family received meaningful support. It must ask whether kin were located and resourced. It must ask whether poverty was mistaken for danger. It must ask whether the parent had competent counsel. It must ask whether the child wanted legal severance. It must ask whether the adoption later dissolved. Any adoption policy that skips those questions is not child-centered. It is market-centered.

Dissolved adoptions are the system’s invisible failure. Once an adoption finalizes, the public success story is complete. The child has permanency. The state can count the outcome. Incentive payments are secure. But some adoptions disrupt before finalization, and some dissolve after finalization. The brief cites research ranges showing disruption and dissolution are real, especially in harder cases and cases without prior relationships. Yet there is no federal clawback provision when an adoption dissolves. If a child re-enters foster care after adoption dissolution, the state may be able to collect again when a later permanency outcome occurs. In business terms, the system externalizes failure. In human terms, the child loses two families.

No serious accountability structure would allow this. If a contractor were paid to build a bridge and the bridge collapsed within three years, the government would investigate, claw back funds, sue for damages, or bar the contractor from future work. But when the state receives incentive payments for an adoption that later dissolves, the federal structure does not claw back the money. The child absorbs the failure. The birth family absorbs the irreversible loss. The adoptive family may exit. The agency continues. The incentive structure remains untouched.

This is why repeal must be on the table. Reform is not enough if reform merely adds a prevention ribbon to a removal engine. The central problem is not that ASFA is poorly administered. The central problem is that ASFA’s core logic is wrong. It treats speed as justice. It treats termination as permanency. It treats adoption as the preferred cure for state-created instability. It treats reunification as emotionally desirable but fiscally irrelevant. It treats poverty as a case-plan obstacle rather than a policy failure. It treats the child’s bond with family as a legal interest that can be extinguished on a government timeline.

A serious repeal framework would begin by ending the mandatory 15/22-month termination trigger and replacing it with individualized fitness hearings where the state must prove current unfitness, not merely delayed compliance. It would amend federal incentive law so states are rewarded for safe reunification at least as strongly as adoption and guardianship. It would require annual eligibility reviews for adoption assistance and stronger post-permanency tracking. It would impose clawbacks when incentivized adoptions dissolve. It would fund prevention at parity with removal. It would prohibit removal or termination based on poverty-related conditions unless the state first offered concrete support and proved that support could not mitigate the safety concern. It would require high-quality counsel for parents and children from the earliest investigation stage, not after the machine is already moving.

It would also require Congress to stop hiding behind state agencies. ASFA is federal law. Title IV-E is federal money. Adoption incentives are federal design. CFSRs are federal oversight. GAO warnings are federal evidence. HHS guidance failures are federal responsibility. For a quarter-century, Washington has treated child welfare as a state-administered problem while retaining control over the fiscal architecture that shapes state behavior. That arrangement allows Congress to claim compassion, states to claim compliance, agencies to claim discretion, and families to receive the consequences.

The newest federal legislation prohibiting removal solely due to poverty is a meaningful step, but it does not touch ASFA’s core. A poverty-only removal ban is necessary, but not sufficient. Poverty rarely appears alone in a case file. It appears as unstable housing, missed appointments, untreated health needs, lack of transportation, inadequate childcare, unsafe neighborhood conditions, food insecurity, or inability to comply with services scheduled during work hours. If the law prohibits removal “solely” because of poverty but allows poverty to be repackaged as neglect, the pipeline survives with better wording.

The same is true of reasonable efforts. The phrase sounds protective, but it often functions as a ritual. Courts routinely find that agencies made reasonable efforts even when the services offered were generic, delayed, inaccessible, culturally inappropriate, or poorly matched to the actual barrier. A parent who needs rent assistance may receive parenting classes. A parent who needs transportation may receive a visitation schedule they cannot reach. A parent who needs domestic violence protection may be penalized for the consequences of abuse. A parent who needs time may be told the clock has expired. The law calls this process. Families experience it as theater.

The deeper question is whether the United States is willing to admit that child welfare has become a family regulation system for the poor. Middle-class and wealthy parents experience family crisis through private therapists, relatives, paid childcare, lawyers, treatment programs, and second chances. Poor parents experience the same crisis through mandated reporters, investigations, court orders, service plans, and the threat of permanent legal severance. The difference is not love. It is exposure. It is money. It is whether the state sees a family as supportable or disposable.

ASFA made disposability efficient. It created a timeline. It funded the preferred exits. It allowed politicians to say they were saving children from drift. But children are still drifting. Adoptions are falling. Federal reviews are failing. Prevention remains underfunded. Legal orphans accumulate. Racial disparities persist. Dissolved adoptions remain under-accounted. States continue receiving money for outcomes that do not prove child well-being. Congress keeps appropriating funds into a structure that its own oversight data cannot defend.

The case for repeal is not anti-child. It is anti-fraud. It is anti-bureaucratic cruelty. It is anti-incentive laundering. It is a demand that the government stop calling family destruction “permanency” when it has not proven that destruction was necessary, when it has not funded less destructive alternatives, and when it cannot guarantee the permanent family it promises in return.

The American child welfare system does not need another branding campaign. It does not need another blue-ribbon commission that discovers poverty matters, race matters, counsel matters, services matter, and incentives matter. It does not need another prevention pilot buried under a mountain of removal funding. It needs Congress to confront the statute at the center of the machine.

ASFA was passed in the name of children. It has survived through the language of safety. It has been defended by the politics of adoption. But after more than twenty-five years, the record is no longer theoretical. The system pays for separation. It underfunds preservation. It terminates more children from their parents than it can place into adoptive homes. It produces legal orphans. It fails federal reviews. It deepens racial disparity. It allows financial rewards without meaningful clawbacks. It spends billions after removal and pennies before crisis.

That is not child welfare. That is a federally financed family-separation economy.

And Congress built it.

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