Race, Tribe and Child Welfare: How Identity Policy Trumps Children’s Needs

rainbow children
Image: nataliekuna.com

Our country has a terrible history with regard to our African-American and Native American citizens. Centuries of racism have led to consequences that last until today, and racism continues to be a fact of life affecting minorities around the nation. But attempts to address historical wrongs can end up further victimizing the very people we are trying to help. A case in point is the Indian Child Welfare Act. While the recognition of these unintended consequences is spreading, some activists are trying to replicate the same harmful “protections” for African American children.

“The removal of Indian children from their natural homes and tribal setting has been and continues to be a national crisis,” according to a report issued in 1976. And indeed, it was estimated that 25% to 35% of Native American children had been removed from their homes and placed in foster homes, adoptive homes, or institutions. About 90% were being raised by non-Indians.

To put an end to “the wholesale separation of Indian children from their families” Congress passed the Indian Child Welfare Act (ICWA) in 1978. ICWA recognized tribal sovereignty over custodial decisions about Native American children, required that child welfare agencies make “active efforts” (defined as greater than the “reasonable efforts” required for other children) to keep Native American children with their families, and established a hierarchy of preferred placements, with family or tribe members as the preferred placements.

Unfortunately, ICWA in practice has had unintended consequences, depriving Native American children of the rights given to other children and putting the wishes of the tribe above the interests of the child, as I described in a recent post.  Because of ICWA, 26-month Lauryn Whiteshield and her twin sister were removed from a non-Indian foster family with whom they had spent more than a year and placed with her grandfather and his wife, despite her long history of child neglect and the fact that there were five other children in the household. But Lauryn never reached her third birthday. Her step-grandmother threw her down an embankment and killed her.

Ironically, a law designed to prevent family separations has turned into a vehicle that separates children from the only family they have known. Two-year-old Andy had lived with his foster parents for almost his entire life. But when they filed to adopt him, tribal officials intervened because of his Navajo and Cherokee ancestry. They wanted to send him to New Mexico to live with strangers and a Texas judge agreed, even though Andy’s birth parents approved of the adoption.

Andy’s foster parents appealed successfully, and eventually the tribe changed its mind. But Texas, Louisiana and Indiana filed a lawsuit along with the foster parents of Andy and two other children, to ensure that no more children would be threatened with removal from their families because of their race. On October 4, 2018, a federal judge in Texas agreed,  ruling that ICWA’s requirement of differential treatment based on race violated Native American children’s right to equal protection under the law. (See analyses by the Chronicle of Social Change and the Goldwater Institute.) The decision has been appealed and the appeals court has issued a stay of the Texas judge’s ruling.

Like Native American children, African-American children have been overrepresented in foster care, adoption, and involvement in child welfare systems. According to federal data, black children were 13.8 percent of the total child population in the United States in 2014. Yet, they constituted 22.6 percent of those identified as victims of maltreatment, and 24.3 percent of the children in foster care.

In order to address the racial disparity in child welfare, agencies around the country have adopted strategies like family group decision making, workforce retraining for “cultural competence,” and attempts to recruit a more diverse workforce. It is not clear that any of these approaches have been successful, in part because disproportional representation in child welfare may be due more to the historical effects of past racism than to a racist child welfare system, as I described in an earlier post.

There is no direct evidence that any of these policies have been harmful, although analysts have certainly expressed concern that artificially trying to equalize the proportion of black and white children removed from their homes could result in less protection for black children. However, things could get a lot worse. Black children could suffer similar consequences as Native American children are suffering if states decide to implement ICWA-like “protections” for them.

And indeed, two Minnesota legislators have proposed the Minnesota African American Preservation Act (MAAPA). Based on ICWA, MAAPA would set a higher bar for removing African American children from their homes than white children. Instead of requiring “reasonable efforts” to prevent removal and to reunify family as current law requires, MAAPA would require “active efforts,” the same term used in ICWA. MAAPA specifically defines these efforts  and states that they must be greater than the reasonable efforts required for other children.

MAAPA would create a new bureaucracy paid for by taxpayers to oversee the new requirements. An “African American Child Well-being Department” within the Department of Human Services would receive notification of all cases involving African-American children and “directly  oversee, review, and consult on case plans and services” offered to these children. The law would also create an African American Child Welfare Oversight Council “to help formulate policies and procedures relating to African
American child welfare services, to ensure that African American families are provided with all possible services and opportunities to care for their children in their homes.” MAAPA would also authorize a set of grants to fund services specifically for African-American families.

So what would the consequences be for African-American children? Like ICWA for Indian children, MAAPA would establish a substandard set of protections for African-American children.   The higher bar for child removal and the lower bar for family reunification could well result in more children being left in, or returned to, homes where they are in danger.

The creation of new bureaucracies based on race would create a fragmented child welfare system based upon the belief that black children and families are fundamentally different from others. Moreover, it might divert funding away from desperately needed uses like adequate staffing and pay for child welfare social workers.

There has been a lot of talk about identity politics and its effect on recent elections and party preferences. ICWA and MAAPA are examples of what might be called “identity policy,” in which people are treated differently based on their genetic ancestry. This is not the right direction for our country.

ICWA is under attack because it sets up a separate–and inferior–set of protections for Indian children. MAAPA would do the same thing for African American children. By all means, let us do what we can to eliminate discrimination by child protective services. But denying these children the right to equal protection under law is exactly the wrong way to help them.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

at causes children to be separated from they only family they recognize. Two sisters, aged 14 and 15, are fighting to stay in the home where they have lived since 2010, while the tribe (in which they were only enrolled in 2012 by their mother) is fighting for their removal. https://www.record-eagle.com/news/local_news/foster-children-face-uncertain-future/article_5813c8b6-838c-5eb6-b07b-e87ac7819b5c.html

https://www.gofundme.com/foster-kids-civil-rights-lawsuit?viewupdates=1&rcid=r01-153876288175-a63810f367b240b2&utm_source=internal&utm_medium=email&utm_content=cta_button&utm_campaign=upd_n

Since I wrote that post, a judge has agreed that…

Yet, ICWA has become Some ICWA supporters argue that it is not being implemented fully, which is why Indian children continue to be removed from their homes at a higher rate than white children. A similar movement has taken place among the child welfare establishment, The movement to erase the “disproportionality” in the representation of black and white children in child welfare systems has many similarities to what motivated passage of ICWA.

Sadly, these so-called advocates have failed to understand the fact that….

They seem to want equal representation, even if it means that more black children will suffer and die from abuse and neglect.

Child Welfare Myths: Black/White Disproportionality in Child Welfare is due to Racist Child Welfare System

Graph: http://www.childrends.org

According to federal data, black children were 13.8 percent of the total child population in the United States in 2014. Yet, they constituted 22.6 percent of those identified as victims of maltreatment, and 24.3 percent of the children in foster care. In Minnesota, the disparities appear to be even greater. Citing these disparities, two legislators have proposed the Minnesota African American Preservation Act.

The Act would create an “African American Child Well-being Department” within the Department of Human Services to receive notification of all cases involving African-American children and “directly  oversee, review, and consult on case plans and services” offered to these children. It would also create an African American Child Welfare Oversight Council.  Similar to the Indian Child Welfare Act, it would set a higher bar for removing African American children from their homes than white children and require greater efforts to reunify children once removed from their families.

The bill’s sponsors argue that racial disparities in child welfare are caused by differential treatment of minority families in terms of how allegations of maltreatment are investigated, resolved, and responded to. This is belief, which was supported by early research, has become accepted by the child welfare establishment.

The idea of racial bias in child welfare found support in the first two National Incidence Studies of Child Abuse and Neglect, which were published in the 1980s and 1990s. These studies, which attempt to count all episodes of abuse and neglect rather than just those that are reported and substantiated, suggested that there was no difference in black and white child maltreatment rates. The study authors suggested that black families received differential treatment by child welfare systems, resulting in their over-representation in these systems.

Starting about 2004, a coalition of foundations, nonprofits, and academics formed around the idea that this disproportional representation of black children in child welfare stemmed from a racist system. This coalition launched a well-funded campaign to reduce the representation of black children in child welfare and especially foster care. They issued reports, held conferences, and provided training and technical assistance to help states analyze their disproportionality problems.

As a result of this work, agencies around the country have adopted strategies like staff retraining, creating special administrative structures to advance racial equity, and special data collection efforts. As a social worker in the District of Columbia, I was subjected to multiple, often poor-quality trainings that tried to help me discover my hidden biases so that they would not affect my treatment of families. 

The fact that child welfare workers in many jurisdictions are disproportionately African American has not influenced the consensus in favor of such strategies, as pointed out in an excellent article by Naomi Schaefer Riley. When I pointed out in a training class that most District of Columbia child welfare social workers were African-American, I was told that did not matter, as Black social workers could be as racist as white ones.

But a cascade of new research has cast grave doubts on the accepted theory of disproportionality. The third (larger and more rigorous) National Incidence Study published in 2010 estimated that black child maltreatment rates are almost twice as high than those of whites. Further analysis showed that this difference was present in the earlier study, but due to small sample sizes, the differences were not statistically significant and hence not reported.

conference, convened in 2011 by Harvard, Chapin Hall at the University of Chicago, the National Council of Juvenile and Family Court Judges and the National Court Appointed Special Advocates, brought together leading scholars on child welfare and race in front of an audience of child welfare leaders from around the country. A research brief summarizing the conference that was published by Chapin Hall concluded that “there is a significant black/white maltreatment gap, one that roughly parallels the gap in official maltreatment reports. This evidence contradicts the belief that black children are included at high rates in the child welfare system because of bias.”

The brief’s authors based their conclusions on the National Incidence Study as well as other empirical work reinforcing the conclusion that child maltreatment rates are significantly higher for black children. They suggested that the higher rate of maltreatment among African-Americans stems from the history of slavery and racism, which led to higher poverty and concentration in impoverished neighborhoods characterized by crime, substance abuse, unemployment, and limited community services.

In other words, disproportionality is rooted in racism. But It’s not a racist child welfare system that results in disproportional representation of black children in the child welfare system. Rather, it is the racist history of our country that has created the difference in child maltreatment which in turn resulted in disproportional representation.

The researchers concluded that trying to reduce racial bias in the system is not the way to address the inequity between blacks and whites in child welfare. Instead, we need to address the underlying social conditions. And until we can do that, we need to protect children, both by preventing maltreatment and by providing appropriate protective services.

Since the Harvard conference, the evidence continues to accumulate that black and white maltreatment rates differ. A recent study published in the journal Pediatrics concluded that the child abuse fatality rate for children aged four and under was 8.0 per thousand African-American children, compared with 2.7 per 100,000 white children.

Unfortunately, many child welfare agencies, advocates, and legislators, including the sponsors of the Minnesota legislation, are either unaware of, or do not want to recognize, the new consensus among researchers. As The Los Angeles Times put it:

“Many left the [Harvard/Chapin Hall] conference believing that any caseworker bias against black families accounted for only a small portion of the disparity in foster care rates … Yet, Los Angeles County officials pressed forward with programs that assumed that racial bias was a significant cause for the high rate of [foster care placement] of black children.”

As I have written in the past, Native American children have been victimized by a similar type of reasoning. The Indian Child Welfare Act has been responsible for separating Indian children from loving foster families and placing them with relatives they do not know. On some occasions, these relatives have hurt or killed them.

This focus on reducing alleged systemic bias may do more harm than simply wasting child welfare resources on bureaucracy and training. If black children are more likely to be maltreated, equalizing black and white representation in the child welfare system would leave many black children in danger of years of suffering or even death. As Naomi Schaefer Riley put it, “No it’s not racist to save minority children’s lives.”