Vanderbilt Law Review

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The foster care system in the United States is universally regarded as a disaster: too many children languishing for too many years, bouncing from foster home to foster home, or worse yet, returning to the abusive or neglectful home only to face more danger. The failures of the federal foster care system have spurred members of Congress to advocate reform.

Answering the call for reform, Congress overwhelmingly passed and, on November 19, 1997, President Clinton signed into law the Adoption and Safe Families Act of 1997 ("ASFA"). One of the primary purposes of the ASFA is to correct many of the perceived deficiencies of its predecessor, the Adoption Assistance and Child Welfare Act of 1980 ("AACWA"). The AACWA's requirement that states use "reasonable efforts" to reunite foster children with their biological parents drew the sharpest criticism as going too far to ensure family preservation. The ASFA "clarifies" the reasonable efforts requirement, providing that the child's safety shall be the paramount concern in all foster care decisions.

Although this statute remedies some of the AACWA's deficiencies, the ASFA also creates new problems. Of particular concern is the provision that requires states to seek the termination of parental rights, with few exceptions, in the case of any child who has been in foster care for fifteen of the most recent twenty-two months. While this provision intends to create permanency for children in foster care, it may instead terminate rights of parents who with assistance could provide a stable home, without guaranteeing that the child will be placed in a permanent home. Indeed, just as the pendulum swung too far towards reunification in 1980, in 1998 the pendulum is swinging too far towards termination."

This Note argues that the swing of the pendulum in either direction is inconsistent with a child's best interests. Part II examines the failures of the AACWA and the "solution" embodied in the ASFA. Part III discusses the shortcomings of the ASFA and argues that its strong endorsement of adoption is both short-sighted and inconsistent with a "best interests of the child" analysis. Part IV discusses kinship foster care, in which extended family members of the child serve as foster parents, as a solution to the swinging pendulum. Finally, Part V makes suggestions for a federal kinship care policy.

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