Advocates for Native American and LGBTQ foster youth have filed suit against the Trump Administration after federal officials tossed out a long-awaited plan to collect more data about these most vulnerable young people to inform services and improve their outcomes.
The suit, brought Thursday in federal District Court in San Francisco by a coalition of seven groups, said the reversal in data collection violated the law because the administration didn’t provide a reasoned explanation for the change. Named in the suit were the U.S. Department of Health and Human Services and the Administration for Children and Families.
“Stripping away data for LGBTQ+ and American Indian and Alaska Native youth impacts two populations who are over-represented in foster care and face some of the worst outcomes, including high rates of homelessness and trafficking,” said Currey Cook, a director at Lambda Legal, a national LGBTQ civil rights organization representing the plaintiffs.
In May, the Administration for Children and Families cut the number of data points it would collect on foster children by about a third, from 273 to 181. Among those eliminated were questions on tribal membership of children and their relatives, efforts by Indian child welfare agencies to identify kin guardians and voluntary information on teens’ sexual orientation.
Those data points were added in December 2016 after more than a decade of work to improve information gathered by the national Adoption and Foster Care Analysis and Reporting System, which had not been updated since its inception in 1993. However, their implementation was delayed several years and will not take effect until 2022 at the earliest.
Without more robust data on how many Native children are in foster care, tribal organizations say they struggle to identify youth and provide adequate services.
“We strongly believe in interlocking responsibilities, and for us to exercise more responsibility toward our children, we need to have this information,” said Abby Abinanti, chief judge of the Yurok Tribal Court in Northern California. “We are culturally required to respond, but without this information, we can’t.”
In its decision to “streamline” data collection, the federal agency said it was acting to reduce the financial burden on states of updating outmoded data systems and setting them up to collect complex and sensitive information. It also cited a 2017 Trump executive order requiring federal agencies to “to alleviate unnecessary regulatory burdens” and found that the data points eliminated were not essential.
Plaintiffs in the lawsuit argue that federal money is already available to help state child welfare systems modernize their data collection and that the agencies have been securely gathering sensitive information for years without issue. They also argue that the federal agency did not give sufficient weight to the benefits of collecting the data.
“System failures often reflect trying to do things in a way that’s easy for the system but not what is best for a child or a family or a community,” said Shannon Smith, executive director of the Indian Child Welfare Act Law Center in Minneapolis. “It’s really important that we understand who these children are and what their needs are, and that may be complex, but it’s needed to make sure their individual voices are heard and represented.”
Plaintiffs say that also means keeping track of the number of LGBTQ-identified foster youth, who research has shown are at higher risk of placement disruption, homelessness and trafficking. While no national numbers on the proportion of LGBTQ foster youth exist, the figure could be as high as 1 in 5 foster youth, according to a 2014 study in Los Angeles funded in part by a grant from the federal Administration for Children and Families.
“We have to keep track of our LGBTQ youth on a regular basis, otherwise they are left underrepresented, left on the streets, and left alone in careless hands,” said Krystina Edwards, a trangender woman who experienced homelessness as a teenager. She found refuge at the Ruth Ellis Center, a Detroit nonprofit that serves homeless and LGBTQ youth.
“If it was not for keeping track of youth who were in foster care, I wouldn’t have been placed into care and given opportunities to thrive,” Edwards said. “I’m tired of seeing girls who look like me placed at risk, and I don’t think it’s fair to say we aren’t supposed to keep track of these numbers because of confidentiality when we keep track of them for other youth in care.”
The federal government has 60 days to respond to the lawsuit. The plaintiffs said they were “hopeful” that a judge would agree with them and vacate the new rule trimming down data collection. Still, even if they won, they acknowledged that a court battle and a delayed start to updating state systems mean the data would likely not be available for several more years.
In the meantime, because the data collection, for now, remains halted, states and tribal organizations will have limited visibility into whether LGBTQ and Native youth are benefitting from efforts to reform foster care, including the landmark Family First Act, which directs funding toward services meant to preserve families and increase placements with kin.
“If you don’t have data, it’s hard to even evaluate if what you did made any difference – you’re just shooting in the dark,” said David Simmons, director of government affairs and advocacy at the National Indian Child Welfare Association. “That hasn’t been a very successful approach.”
