Academic journal article Child Welfare

When Rights Collide: A Critique of the Adoption and Safe Families Act from a Justice Perspective

Academic journal article Child Welfare

When Rights Collide: A Critique of the Adoption and Safe Families Act from a Justice Perspective

Article excerpt

The institution of the Adoption and Safe Families Act of 1997 (ASFA) was a major revision of existing child welfare policies established by the earlier Adoption Assistance and Child Welfare Act of 1980, representing the shift from a focus on the preservation and reunification of the biological family to an emphasis on the health and safety of children and accelerated permanent placements (Child Welfare Information Gateway, 2012; P.L. 96-272, 1980; P.L. 105-89, 1997). The two primary groups of children most negatively affected by the former policy's focus on family preservation were those returned to unsafe environments and the growing number of children languishing in foster care while prolonged efforts were made to rehabilitate their biological families (Barth, Wulczyn, & Crea, 2005). ASFA attempted to address both of these issues and represented a tipping of the scale toward promotion of child well-being, away from a historical focus on preserving parental rights, limiting state intrusion into family life and a limited recognition of children's rights in general.

While ASFA was designed to address these potential threats to child well-being, implementation of this policy and the inherent tension between child and parental rights highlights disparities and a seeming disadvantage to the extremely poor and other marginalized groups in society, thus increasing the likelihood of new injustices for parents and consequently the family unit including the very children it aims to protect. The parents most often affected by this policy are more likely to struggle to meet their family's basic needs due to a lack of resources and income, to have mental health and health difficulties that impair parenting abilities, to more frequently interface with the system in a manner that would increase likelihood of outside scrutiny, and to be less likely to have familial supports to either help prevent child maltreatment from occurring or prevent the need for foster care via provision of relative placement (Wilkinson-Hagen, 2004).

Numerous studies have shown that poverty is one of the most robust predictors for child maltreatment as well as entry into foster care (Children's Defense Fund, 2005; Lindsey, 1991). All of this begs the question: If inequality as evidenced by extreme poverty and all it entails leads to child maltreatment and increased likelihood of placement in foster care, then how can we expect micro level interventions to effectively remedy this societally influenced problem? Further, are the odds of reunification in the child welfare system unfairly set against the poor? If so, then there is a need to change child welfare policies and social institutions to more accurately reflect the underlying causes of this societal ill and address barriers to change, particularly if there is any hope to create a just means of serving children and parents equally.

This paper will critique ASFA using an application of Rawls' theory of justice or justice as fairness (1999) with specific regard to the policy's shift from family reunification to an emphasis on child health and safety, accelerated permanency and the promotion of adoptions, and whether this is a just framework given the inequalities experienced by the families involved in the child welfare system. Additionally, the dilemma of whether justice can be served for children in this capacity if the effects are unjust for their parents will also be addressed. As Rawls stated in his seminal work, A Theory of Justice (2001), "each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override" (p.3). Based on this, Rawls asserts that our laws, policies and social institutions must be arranged to ensure justice and fair treatment to all, and he does not disregard the needs of those whose interests are sacrificed to serve another group (Rawls, 2001; Worsfold, 1974). His non-utilitarian theory of justice is one of the most widely applied theories to issues of social welfare because it is concerned with the implications of decisions for even the most vulnerable members of society, not just the majority or those in positions of power (Wakefield, 1988; Worsfold, 1974). …

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