Across the nation, advocates and state legislators are seeking solutions to improve racial disparities in child welfare, and in some instances, are targeting efforts specifically towards improving outcomes for African American children and their families – who are one of the most disproportionally impacted demographics throughout U.S. child welfare history. One of these efforts is taking place in Minnesota’s State Legislature with the consideration of the African American Family Preservation Act. The purposes of this bill are to: “(1) protect the best interests of African American children, and (2) promote the stability and security of African American families by establishing minimum standards to prevent arbitrary and unnecessary removal of African American children from their families.” The legislation goes on to propose several ways of accomplishing these two goals, such as to allow – when necessary –parents, guardians and social workers to petition the court for reinstatement of parental rights, which is a power currently only granted to the county attorney.
Though each component of the piece of legislation is crucial, one particular section stands out amongst the others: Section 4 reads that local social service agencies are required to “make active efforts to prevent out-of-home placement of African American children, eliminate the need for a child’s removal from the home, and reunify a child and family as soon as practicable.” Applying this standard would revolutionize the responsibility of Minnesota’s child welfare agencies to serve African American children and families. Although this is revolutionary, the idea to hold child welfare agencies accountable to making active efforts – rather than reasonable efforts –is not a new one.
The idea of applying an active efforts standard is borrowed from the Indian Child Welfare Act (ICWA). Prior to the passage of ICWA in 1978, there were no federal protections in place to keep Native children with Native families. The lack of federal protections, combined with the fact that the U.S. government failed to recognize these children as part of separate nations led to excessive removal of Native children from their families, homes and communities, with many of them being placed in boarding schools as an assimilation effort. In fact, before ICWA’s implementation, data suggest that approximately 75 – 80 percent of Native families living on reservations had at least one child removed from their home by a public or private child welfare agency. Though the passage of ICWA brought about many changes to how child welfare agencies interact with tribes, perhaps one of the most important is the switch in both policy and practice regarding the standard of removal. Rather than having Native families adhere to the standard policy of ensuring that child welfare agencies have made reasonable efforts to keep the child at home, these agencies have to prove that active efforts were made to keep the child at home.
More than just a symbolic change, the active efforts standard is one which allows the court to hold child welfare agencies accountable to African American children and families. A Child Welfare Information Gateway report explains that, while every state has a broad definition of what constitutes reasonable efforts, a court generally looks to ensure that the efforts made were accessible, available and culturally appropriate services specifically designed to improve the capacity of families to provide their children with safe and stable homes. Meanwhile, ICWA mandates that state child welfare agencies make active efforts, such as early participation and consultation with the child’s tribe in all case planning decisions, in order to provide services to the family in order to prevent removal of an Indian child from the parents or from Indian custody. Additionally, active efforts are required to reunify an Indian child with their parent or Indian custody after removal.
Unfortunately, despite being labeled the “gold standard” in child welfare practice, ICWA efforts face widespread issues with non-compliance and Native children continue to be disproportionately represented in the child welfare system. For this reason, Minnesota’s legislation contains several proposed accountability measures, such as the creation of both the African American Child Welfare Oversight Council and the African American Child Well-Being Department within the Department of Human Services. The proposed purpose of this department would be to assess each case involving an African American family to ensure that removal from the home and placement in foster care is a last resort. Another section of the legislation proposes the creation of African American Child Welfare grants, which are to be made available to African American-led organizations, service providers and programs that serve African American children and families. Advocates, parents and policymakers who support the bill are hopeful that measures such as these will help to curb issues of non-compliance.
The critical nature of the African American Family Preservation Act becomes amplified when held against a backdrop of heartbreaking data: According to 2016 data in Minnesota’s Child Maltreatment Report, African American families account for nearly 20 percent of child maltreatment cases, despite only being about 6 percent of the overall population. African American children are at a slightly more than three times greater likelihood than white children to be reported to child protection and to be removed from their homes. By requiring that agencies and caseworkers make active efforts, thereby enacting a higher standard in order to “preserve the family, prevent breakup of the family, and reunify the family,” this bill has the potential to radically shift the outcomes of Minnesota’s African American children and families for generations to come.
Click here for the latest updates on tracking the status of the African American Family Preservation Act.
Erika Feinman is a program and research assistant at CSSP.