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.”

 

 

New book debunks prevailing child welfare myths

After the Cradle FallsA new book by two leading child welfare researchers aims to elucidate the complex world of child welfare for the general public and policymakers.  In After the Cradle Falls, Melissa Jonson-Reid and Brett Drake of Washington University provide a useful primer for the child welfare field. While they may be overly optimistic in assuming that a lay audience will pick up this book, it will certainly be useful for policymakers, journalists, students and advocates who want a general overview of child abuse and neglect, child welfare systems, and proposals for change.

Jonson-Reid and Drake make a particularly valuable contribution by highlighting myths and common misconceptions that are rife in the child welfare field. Among the common myths they debunk are the following:

  • “Neglect” is just another word for poverty, and parents become embroiled with Child Protective Services just because they are poor. Johnson-Reid and Blake explain that while poverty increases the risk of neglect, most parents who are poor do not neglect their children. Neglect is much more serious than a missed dental appointment or a messy house. Some neglect cases are extremely severe, even fatal. But even less severe cases can result in devastating lifetime consequences on brain development and the ability to form relationships.
  • Racial disproportionality in child welfare involvement is caused by racist decision-making by Child Protective Services (CPS). There is no dispute that African-American children are overrepresented in child welfare services and foster care compared to their share of the population. But Jonson-Reid and Drake conclude that “it is hard to find current empirical data that suggest that widespread bias within today’s CPS system is a significant driver of current disproportionality.” It would have helped if they had included the key research finding that actually debunked the myth about racism and disproportionality. As I have explained elsewhere, research has conclusively shown that higher Black representation in the child welfare system reflects higher rates of maltreatment in African-American families. This Black/White maltreatment gap may in turn reflect the relationship between race and poverty, as Jonson-Reid and Drake suggest.
  • State and local agencies have an incentive to take more kids into foster care. This trope was mentioned over and over again by supporters of the Family First and Prevention Services Act (FFPSA), which was signed into law on February 9, 2018. Jonson-Reid and Drake rightly give it short shrift. They explain that states are required to make “reasonable efforts” to keep children with their families and can be sanctioned by the federal government if they fail to document that they have made such efforts.  The authors could have cited some other key evidence against this myth.  For example, only about half of children in foster care are eligible for federal foster care support under Title IV-E of the Social Security Act and the federal government pays only part (50 to 83% depending on the state) of the cost. States and localities spent about $8 billion on foster care in FY 2014, 47% of their total child welfare spending, so it is hard to understand how they could have an incentive to place children in foster care. Moreover, states have access to other federal funds for services to intact families, such as TANF, Title IV-B, and the Social Services Block Grant.
  • Child welfare systems should prevent abuse and neglect. As the authors point out, child welfare systems (which they refer to as CPS, a term that I prefer to reserve for the investigation function only) have no truly preventative role. They are charged with responding to abuse and neglect after they have already occurred. This common misconception is particularly important in relation to the recent debate on FFPSA. Despite its name, the Act does not fund prevention; rather it funds treatment, or services to parents who have already maltreated their children. Obscuring the distinction between prevention and treatment prevents an honest and clear-headed debate about the appropriate allocation of resources between these purposes.
  • Child welfare is a broken system: Jonson-Reid and Drake argue that rather than being broken, the child welfare system has never been completed. They compare it to a fire department that will will send out a fire truck only 60% of the time, and often after the house has been consumed by flames. When a truck does respond, the firefighters may have minimal training in firefighting. A firefighter might show up without a truck and will have to wait until a truck with water is found. An injured person, instead of being taken into a hospital, may be placed in the home of someone who has no idea what treatment they need.
  • Child welfare can be fixed in a cost-neutral manner. Jonson-Reid and Drake point out that reform efforts (such as privatization or differential response) have often aimed to do more with less or the same amount of resources and have thus either done harm or failed to make a difference. They argue that any real improvement would raise costs but but could result in big long-run savings. They point out that we spend only $30 billion a year on child welfare when the long-term costs of child maltreatment have been estimated at $250 to $500 billion for each year’s cohort of victims.

The last myth is particularly poignant in view of the recent passage of FFPSA. It expands the use of federal Title IV-E funds to  services to parents at risk of losing their children  to foster care. But it  finances some of this new spending by taking money from other key functions of child welfare. like congregate care placements (necessary both for therapeutic reasons and to make up for the foster parent shortage), and foster care payments to kin, who will now not be allowed these payments if the parent is receiving federally-funded services.

Jonson-Reid and Drake end with an extensive list of suggestions for changing programming, policy and law. These include primary (or universal) prevention such as poverty reduction and educating parents about positive parenting, systemic improvements to child welfare (such as completing the system), and improving and expanding treatment for children and families. The list is somewhat overwhelming, but gives policymakers and advocates many options for where to start addressing this massive and complex problem.

After the Cradle Falls is a realistic and informed discussion of child welfare. It will be a useful resource to those who are open minded enough to accept the conclusions of science and common sense even when they conflict with the facile platitudes of ideologues, which have all too often had a disproportionate influence on policy and practice.