Weeks after hearing from advocates and government officials about racism in the American child welfare system, the United Nations Committee on the Elimination of Racial Discrimination said Congress should consider changing or eliminating several major laws pertaining to child protection investigations, foster care and adoption.
The committee, often referred to as CERD, said it was “concerned at the disproportionate number of children of racial and ethnic minorities removed from their families and placed in foster care, in particular children of African descent and Indigenous children.”
In a summary of observations from its recent session on the United States, CERD recommended that Congress and the Biden administration should move to amend or repeal laws and policies that “have a disparate impact on families of racial and ethnic minorities.” The committee singled out a few specifically:
- Child Abuse Prevention and Treatment Act (CAPTA), which was passed in 1974 and, among other things, required each state to establish mandated reporting by professionals who come in contact with children.
- Adoption Assistance and Child Welfare Act, passed in 1980, which established the multibillion-dollar federal entitlement for foster care and adoption.
- Adoption and Safe Families Act (ASFA), passed in 1997, which for the first time required states to move toward termination of parental rights if a child had been in foster care for 15 of the past 22 months.
The committee “encourages the State party to hold hearings, including Congressional hearings, to hear from families who are affected by the child welfare system.”
During its mid-August meeting, the committee heard from the Biden administration and several critics of federal child welfare policy, a month after receiving a report on racial injustice in the system produced by the nonprofit Children’s Rights and the Columbia Law School Human Rights Institute.
Jessica Swafford Marcella, who represented the Biden administration at the August meeting, acknowledged that “racial disparities occur at nearly every decision-making point along the child welfare continuum.”
But she declined to endorse or even discuss changes or elimination of any existing federal laws. The three that ended up in CERD’s final comments were all raised by the other U.S. delegation, which included Shereen White of Children’s Rights, Joyce McMillan of JMac for Families, and Angela Olivia Burton of the New York State Office of Indigent Legal Services.
“The administration and Congress should seize upon CERD’s concluding observations as an historic opportunity for the U.S. to move beyond acknowledging racial discrimination in the child welfare system, and finally make change happen,” said White, who is the director of policy and advocacy for Children’s Rights. “The Committee has taken the guesswork out of next steps and outlined an immediate path forward. We are hopeful that this will result in meaningful government action in 2023.”
Title IV-E was revamped in 2018 with the Family First Prevention Services Act, which expanded the scope of the entitlement to fund the prevention of foster care, instead of only supporting states only for family separation. Most states have only recently gained approval to draw those funds down, but critics of the law say the prevention efforts allowed under it are limited to services (parenting, substance abuse and mental health) and do not help families that need housing stability or assistance with other poverty-related struggles.
A bill introduced last year by Rep. Karen Bass (D-Calif.) would rewrite ASFA to require states to wait 24 months to move toward termination of parental rights, with clear exceptions for cases involving aggravated circumstances.
Both chambers of Congress have been working on an overdue reauthorization of CAPTA for the past few years. If and when they complete that work, it is likely to include increased efforts to educate and guide mandated reporters. The Senate reauthorization bill includes what would be the first requirement in federal law that both parents and children are provided legal counsel in child welfare cases.