Proponents say the failure to address racism in the child welfare system leaves families in jeopardy
When Black Minnesotans gathered for a live-streamed public meeting last spring, accounts of trauma inflicted on their families by child welfare authorities seemed never-ending.
As state lawmakers and community leaders listened in, they described losing children to foster care and their desperate fights to stay connected, barriers to becoming licensed caregivers, and wrongful terminations of parental rights. Black children had been placed with white foster parents instead of kin — rebuffed grandparents and aunties who had been willing to step in when hardship and a lack of resources overwhelmed their relatives’ ability to parent.
Systemic problems were also called out: social workers’ lack of cultural competence, racial bias among mandated reporters, authorities who mistake poverty for neglect, and poor access to legal representation for accused parents who can’t afford their own lawyers.
At the March virtual town hall, organizer Thomas Berry of the Black Civic Network issued a “call to arms” in support of pending legislation — the Minnesota African American Family Preservation Act.
“It’s on us, as African Americans or American descendants of enslavement,” Berry said, “to make sure that our children are not only being taken care of right by us, but also, by the county, the state, and any other entity outside of our families.”
Yet for the third consecutive time, legislation to address these historic grievances has stalled out in the Minnesota Legislature. HF 1151 was heard in committees in the House, but has no chance of passing next year because no hearings were set in the Republican-controlled state Senate. In the next two-year session, the bill is still able to move through the Legislature without needing to be re-introduced.
“A hearing in the Senate is the bare minimum that this legislation and children and families who need this bill deserve,” said Nathaniel Leonard, a spokesperson for one of the bill’s authors Rep. Esther Agbaje. “Our hope is to build support and pressure for a hearing during the interim.” The bill was referred to the Data Practices and Civil Law committee chaired by Sen. Andrew Mathews (R), who did not respond to several requests for comment.
Data back up the accounts described in the March town hall. In an extreme example of statistics that can be found to varying degrees across the country, in Hennepin County, Minnesota’s Black children are nearly six times as likely as white children to be removed from their homes and taken into foster care.
Once in the child welfare system in one of the largest and most diverse counties in the state, Black parents are nearly five times more likely to have their custody rights permanently terminated by the civil courts, according to a Hennepin County fact sheet titled “Keeping African American Families Whole.”
These rates are exceeded by the impact on Native American families, who have a unique pathway through the child welfare system under the Indian Child Welfare Act. The landmark 1978 federal law was created in the wake of genocide and the forced attendance at white-run boarding schools. It requires social workers to go to extra lengths to keep parents accused of abuse or neglect connected to their children, and tribes have the right to take jurisdiction from the state courts, keeping Native American kids close to their kin and community.
For years, Minnesota activists and elected officials have been fighting for similar protection for Americans of African descent. But according to critics of the legislation, achieving that could be a fraught battle: Because unlike Native Americans, African Americans do not have rights as tribal peoples of a separate nation within the U.S. border.
Still others caution that the law to protect Black families, as it has been proposed, could be unconstitutional. In an op-ed published last year by The Wall Street Journal, Walter Olson, a senior fellow with the libertarian Cato Institute, called out the effort as unfair to children of other races.
“If state child‐services agencies wield too much power to break up families — and maybe they do — why not revamp the law to protect all parents and children, of whatever race, from government interventions of this sort?” Olson wrote. “If it’s good practice not to put children into foster care without checking out the possibility of an extended‐family placement, or to ‘strictly limit’ the termination of parental rights, why wouldn’t that also be a good idea for American children of Vietnamese, Guatemalan, Syrian or Irish descent?”
Although versions of the bill continue to stall out, this year 18 state lawmakers signed on as co-authors of HF 1151, introduced in February. The Minnesota African American Family Preservation Act sought to “prevent any unnecessary removal of African American children” while promoting “the stability and security” of their families. Its lead authors are members of the Democratic-Farmer-Labor Party: Agbaje in the House, along with Senators Bobby Joe Champion and Omar Fateh.
The most recent version of the legislation defined an African American child as “having origins in Africa including a child of two or more races who has at least one parent with origins in Africa.” Their “best interests” include supporting “the child’s sense of belonging to family, extended family, kin, and cultural community.”
Key provisions included:
- Requiring child welfare authorities to make “active efforts” rather than the current “reasonable efforts” to keep African American families intact or to reunify them as quickly as possible through services and other social work supports.
- Barring the termination of parental rights of African American parents “based solely on a failure to complete case plan requirements,” and allowing appeals of parental rights terminations within a 60-day window.
- Providing “cultural competency training” to child protection workers, supervisors, attorneys and judges in the juvenile and family law courts.
Kelis Houston, the founder of the nonprofit Village Arms, worked with lawmakers in both houses to help craft the statewide legislation.
“We talk about walking while Black, sleeping while Black, driving while Black, but I talk about parenting while Black as well,” Houston said. “They’re aware that anything they say or do, can and will be used against them.”
But Republicans in the Senate are unmoved, Houston said: “They just aren’t interested in hearing anything specifically about African Americans here.”
To ensure that changes, Minneapolis-based Village Arms has been working since last year with Hennepin County on a three-year pilot program, enacting the statewide bill’s provisions, even before it is enacted.
Following a 2019 settlement agreement in a federal class action lawsuit naming Hennepin County and the Minnesota Department of Human Services, local officials have acknowledged that long-standing policies and practices have perpetuated inequity. They’ve declared racism “a public health crisis” and stated publicly: “we recognize it is our responsibility to change course.”
As head of the county-contracted “family liaison program,” Houston is responsible for building trust and connection between the African American community and Hennepin County child welfare workers, explaining the system and guiding parents through the often bewildering and terrifying mix of court hearings, mandated services and monitored visits. Her group also elevates the voices of family members in their relatives’ cases, helping social workers “build a more complete picture of a family’s network of support,” the county reports. Those efforts surround families “with the people who care about them and their children’s well-being the most.”
The job is a tall order. Houston said she gets countless calls from families seeking help navigating Minnesota’s child welfare system, among them a woman working frantically to adopt her 6-year-old niece.
Brianna Robinson-Harris told The Imprint she’s been misled and discounted by the county, while the white foster family that her niece was placed with has received preferential treatment. (The foster family could not be contacted for this story.)
Her efforts began in 2019, when Robinson-Harris responded to a letter seeking a relative’s home for her niece because the girl’s mother could not care for her. Robinson-Harris had multiple phone calls and meetings with a caseworker, expressing her willingness to adopt the girl, she said. When told by the caseworker the child would need her own bedroom, Robinson-Harris said she and her husband moved into a larger home, and waited to hear about next steps.
When the pandemic hit, her involvement with the case was put on hold. And next she knew, her niece was on an adoption track with another family.
“I was heartbroken,” Robinson-Harris said.
The distraught aunt hired a private attorney to file a motion to intervene, but during her court hearing, she said the judge informed her officials weren’t aware she wanted to foster her niece. The judge concluded it was too late, saying that the girl had been moved too many times in foster care already and — although Robinson-Harris is a mental health practitioner — he believed she was likely to suffer additional trauma if she had to adjust to yet another home.
Robinson-Harris’ motion was denied, and she said the white foster parents who have been trying to adopt her niece have barred her from contacting the girl. Undeterred, she has since won an appeal, and is waiting on the courts to determine if she will be allowed to adopt her niece. So far, she’s spent $28,000 in legal fees.
“From the minute I met with Olmsted County in my home, I felt like they judged us,” Robinson-Harris said. “They asked us numerous questions and when I would ask them questions, they wouldn’t give me straight answers. I felt like they did not try hard enough to seek out family. I felt like If I was white things would have been different.”
Across the country, race and socioeconomic status impact decisions at every stage of the child welfare system, and racial disparities are evident from initial reporting, screening, and assessment of child maltreatment claims until children are ultimately reunified with their parents or legal custody rights are permanently severed.
Along with Native American children, Black children are more likely to be put in foster care than to receive in-home services, and more likely to experience multiple placements and be put in group homes while in foster care, according to the National Conference of State Legislatures and numerous other studies. They are also less likely to receive a permanent placement, less likely to be reunited with family, and more likely to experience poor social, behavioral and educational outcomes.
This remains the case even though child welfare cases across the country — far more often than not — center on parental neglect related to poverty, not physical or sexual abuse.
The stalled bill aimed at interrupting those long-standing patterns in Minnesota has garnered support from nearly 20 organizations — from the Black Civic Network to the ICWA Law Center, which fights for the rights of Indigenous families. But it has failed to make headway, despite the powerful protest movement that has spread across the globe since last year’s murder of George Floyd by a white Minneapolis police officer.
Some argue that despite its good intentions, the bill faces challenges in attempting to mirror ICWA — a law some legal experts consider the “gold standard” of child welfare practice for its focus on keeping families together, even though enforcement is poorly tracked and disproportionality among Native American children in foster care remains high.
According to an index published by the National Council of Juvenile and Family Court Judges, in 2019, Indigenous children in Minnesota were represented in foster care at more than 15 times their numbers in the general population, the highest rates in the nation. The statewide figure for Black children is more than 1.5 times the general population rate.
Thus, modeling the African American Family Preservation Act after ICWA presents some challenges — legally, and in its questionable potential for impact, some child welfare experts say. Both require more rigorous efforts before children can be separated from parents and kin, requiring social workers to make “active” rather than “reasonable” efforts.
But there’s a key difference in the populations served: Native Americans are tribal members, and tribes can bring their children home from state and county-run child welfare systems.
“ICWA is unique as child welfare policy because it is based on citizenship and applies to children who are citizens of a federally recognized American Indian or Alaska Native tribal government,” said Sarah Kastelic, executive director of the Oregon-based National Indian Child Welfare Association. “This unique political status of American Indian and Alaska Native people is the foundation for Congress’s authority to enact a law like ICWA,” a law that “reaffirms the inherent rights of tribal nations acknowledged through hundreds of years of federal court decisions, laws and administrative policies.”
In contrast, she added, legislation based on a person’s racial background “risks violating” the equal protection clause of the Constitution.
“No matter what problems they solve, laws granting different rights to different races are unconstitutional,” Olson wrote in agreement. “Perhaps the sponsors of the Minnesota bill will consider rescuing the constitutionality of their ideas by making them universal.”
Robinson-Harris sees it differently. After battling for even minimal contact with her niece, she’s convinced the African American Family Preservation Act is desperately needed. Throughout her niece’s case, she felt the white foster parents were given preferential treatment because they had more money, a bigger home and greater access to resources.
Robinson-Harris said if the legislation had been enacted, “the county would not have had a choice but to place my niece with family and someone of the same race.”
Supporters of the bill contend that America must reckon with its racism and inequity, and how the history of African Americans in the U.S. — arriving here as enslaved people whose families were brutally torn apart — should guarantee their descendants’ protections.
“The African American Family Preservation Act looks to right the wrongs of the past and present by keeping the family intact,” said Berry of the Black Civic Network, who is also a family liaison. “Safety for the child is as important as family lineage. The idea of a law that would keep Black children connected to their lineage is a specific form of reparations long overdue.”
Houston of Village Arms remains hopeful.
She said the ongoing accountability for historic racism and injustice sparked by Floyd’s murder — and interest from the state and local child welfare agencies — could push the legislation forward in the next session.
“The climate is changing a bit and I am hopeful every session that this bill will pass and am holding on to that,” she said. Noting that there have been no formal letters of opposition, she added that she is planning to come back and fight for the bill “every year until it’s passed.”