Disproportionality and Disparity in Child Welfare

8/1/2017

The overrepresentation of African-American and Native American children in the child welfare system is a troubling and complex phenomenon. Thirty-three percent of kids in foster care are African-American, but they make up only 15 percent of the child population.

Yet federal studies indicate that child abuse and neglect is actually lower for black families than it is for whites. Lawmakers in a number of states are requiring answers, and social service agencies are doing some difficult soul searching. One of the major questions is whether the nation's child welfare system undermines the strength of families, particularly families of color.

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State Legislative Initiatives
STATE CITATION SUMMARY

California

 

2006 Cal. Stats., SB 678, Chap. 838

Sets forth legislative findings pertaining to the importance of children to the continued existence and integrity of Indian tribes and the state’s interest in protecting the essential tribal relations and best interest of Indian children. Codifies provisions of the federal Indian Child Welfare Act (ICWA), including provisions regarding tribal jurisdiction, notice of and intervention in child custody proceedings, entitlement of tribal acts and proceedings to full faith and credit, right of indigent parents or custodians to court-appointed counsel, active efforts, evidentiary standards, placement preferences and unsealing of adoption records. In a dependency proceeding involving a child who would otherwise be an Indian child based on the definition in ICWA but for the status of the child’s tribe, authorized the court to permit the tribe to participate in the proceeding upon request of the tribe. Provided that what constitutes active efforts to prevent the involuntary placement of an Indian child shall be assessed on a case-by-case basis, taking into account the prevailing social and cultural values, conditions and way of life of the child’s tribe. Allows a tribe to petition the court to terminate the guardianship of an Indian child upon a finding that it is in the child’s best interest to do so.  Clarifies that an Indian child’s tribe has a right to intervene in proceedings at any time. Establishes criteria for denial of a petition to transfer a proceeding involving an Indian child to a tribal court. Provides that socioeconomic conditions and the perceived adequacy of tribal social services or judicial systems may not be considered in a determination that good cause exists. Requires that a record of each foster care or adoptive placement of an Indian child be maintained in perpetuity by the Department of Social Services (DSS). Clarifies that the director of the DSS may enter into agreements with Indian tribes regarding the care and custody of Indian children, including agreements that provide for the orderly transfer of jurisdiction on a case-by-case basis, for exclusive tribal or state jurisdiction, or for concurrent jurisdiction.

California

2009 Cal. Stats., AB 1325, Chap. 287

Requires the juvenile court and social workers to consider and recommend tribal customary adoption as an additional permanent placement option, without termination of parental rights, for a dependent child. Establishes that a tribal customary adoption order has the same force and effect as an order of adoption. Requires the Judicial Council to adopt rules and necessary forms to implement tribal customary adoption as a permanent plan for Indian children.

Colorado

 

2002 Colo. Sess. Laws, HB 1064

Creates an Indian child welfare law for Colorado and amended relevant sections of the Colorado Children's Code to ensure compliance with the federal Act.  The legislature recognized that, in order to achieve the goals of the federal Act, it is necessary for the state to determine whether children who are the subject of child welfare proceedings in the state court system are Indian children.  Ensures that timely and appropriate notice is given to the child's family and tribe.  In addition, the state has formed an Indian Child Welfare Act Team, which is comprised of officials from around the state who monitor efforts made in relation to ICWA.

Colorado

2010 Colo. Sess. Laws, HB 1106, Chap. 278

Sec.2. Determines that, in child welfare cases, a child’s best interests shall be the primary consideration for a court or county department in making determinations concerning the placement of a child for adoption. States that an agency responsible for placing children in out-of-home care shall use good-faith efforts and due diligence to recruit and retain prospective foster and adoptive families from communities that reflect the racial, ethnic and cultural backgrounds of the children in the agency’s care. Concerning the placement of a child for adoption, a court, county department or licensed child placement agency may consider the racial or ethnic background, color or national origin of the child or a family who has submitted an application to adopt. 

Florida

 

2006 Fla. Laws, SB 1080, Chap. 86

Requires the Department of Children and Families to adopt rules to ensure that the provisions of the federal Indian Child Welfare Act (ICWA ) and the Multi-Ethnic Placement Act, as amended, are enforced in the state. Encourages the department to enter into agreements with Indian tribes to facilitate the implementation of ICWA. During the 2003 session, three Florida African-American legislators began to work with church and civic groups to promote the adoption of Black children through television ads and a streamlined adoption process.  The project works to encourage more African-Americans to become volunteers in the state’s Guardian Ad Litem program and also includes outreach to churches, fraternal organizations, civic groups and others in an effort to recruit Black families to formally adopt and informally “adopt” African-American foster children. Florida lawmakers also enacted the “One Church, One Child of Florida Corporation Act” in an attempt to expedite the adoption of Black children out of Florida’s foster care system by utilizing the resources of Black churches to help find permanent homes for Black children available for adoption.  Encourages the State to develop, monitor and evaluate projects designed to address problems associated with the child welfare system, especially those affecting Black children.  A number of other states and localities have adopted similar programs, including Illinois and New York City. (Fla. Stat. 409.1755).

Illinois 2014 Ill Laws, SB 121, Act No. 693 Amends the African-American Family Commission Act, requires the Commission to advise the Governor and General Assembly, as well as work directly with State agencies, to improve and expand existing policies, services, programs, and opportunities for African-American families and to promote research efforts to document the impact of certain policies and programs on African-American families.

Illinois

 

2004 Ill. Laws, SB 3208, PA 93-0867

Renames the African-American Family Commission, created by Executive Order in 1994; the new name is the Illinois African-American Family Commission. (The commission is charged with monitoring existing legislation and programs that affect African-American families, assisting state agencies with designing programs to enhance the social and economic well-being of such families, and facilitating the participation of African-Americans in the development, implementation, and planning of community-based services.) The law also does the following: Expands the role of the commission to include establishing working relationships with the departments on Aging, Children and Family Services, Commerce and Economic Opportunity, Corrections, Human Services, Public Aid, Public Health, Transportation, and all other agencies that have an effect on African-American children and families. The purpose of establishing these relationships is to engage those agencies in the commission’s efforts to preserve and strengthen African-American families. Requires the commission to monitor existing legislation and programs and assist state agencies in developing programs, services, public policy and research strategies to expand the social and economic well-being of African-American children and families. Requires the commission to facilitate the participation of African-Americans in developing, implementing and planning community-based services. Outlines commission membership and terms. Funds the commission through appropriations made to the previously mentioned state agencies. Requires an annual report to the governor and the General Assembly on progress toward the commission’s goals and objectives.

Indiana 2007 Ind. Acts, HB 1001

Sec. 173. Establishes the Commission on Disproportionality in Youth Services to develop and provide an implementation plan to evaluate and address disproportionate representation of youth of color in the use of youth services.  Establishes the membership of the commission as well as the responsibilities. 

Iowa

 

2003 Iowa Acts, SF 354, Chap. 153

Clarifies state policies and procedures regarding implementation of ICWA, partly in response to concerns about disparate treatment of Indian families, extremely disproportionate representation of Indian children in foster care and reports of non-compliance with the federal Indian Child Welfare Act by both courts and child welfare officials. Specifies that state policy requires full cooperation with Indian tribes and tribal citizens to ensure the intent and provisions of ICWA are enforced.  Requires notice to the tribe and family at every stage of a child welfare proceeding to help parties understand and participate in the legal process.

Iowa

2003 Iowa Acts, SF 453, Chap. 178

Requires the Department of Human Services to implement a system redesign for child welfare and juvenile justice to make the transition to an outcomes-based system for children. Requires the outcomes-based system to be based on federal and state child welfare outcomes regarding safety, permanency, child and family well-being, public safety, accountability and rehabilitation. Requires the development of a stakeholder panel to provide input into the planning, design, implementation and evaluation. Requires a six-member legislative committee to monitor the service system redesign. Appropriates $2.2 million.  The Child Welfare Redesign includes two Children of Color Projects an African-American project in central Iowa and a Native American project in northwest Iowa.  Both projects aim to reduce the disproportionate number of minority children in the child welfare system. 

Maine

 

2005 Me. Laws, LD 415, Chap. 118

Establishes a committee to examine the extent to which the state complies with the federal Indian Child Welfare Act of 1978 (ICWA) and to identify ways in which to improve compliance. Sets committee membership and required a report, by December 7, 2005, to the Joint Standing Committee on Judiciary and the Legislative Council. The report must include findings and recommendations and suggested legislation.

Michigan

 

2005 Mich. Pub. Acts, SB 271, Act 147

Sec. 548. Requires a task force to study the disproportionate representation of African-American and other children of color in the child welfare and juvenile justice systems in Michigan. Requires a report to the Department of Human Services with administrative and legislative recommendations for appropriate services to reduce disparities and bias and improve long-term outcomes for children of color in the systems. Requires the Department of Human Services to report to the Legislature by December 31, 2005.

Minnesota

 

2001 Minn. Laws, 1st Special Session, HF4, Chap. 9 Art. 11, sec. 15. (Minn. Statutes Section 3.9225)

In 2001, Minnesota legislators mandated a Children’s Services study of outcomes for African-American children in Minnesota’s child welfare system.  Documents racial disparities in the state’s child welfare system and developed a series of recommendations including an evaluation of county practices to eliminate disparities; increases monitoring and evaluation, emphasizes culturally competent practice; works in partnership with the African-American community and advocates for supports for African-American families.  The Minnesota Department of Human Services currently supports a “Children of Color Outreach” project which coordinates efforts to eliminate the disproportionate representation of children of color in child welfare by supporting research, community partnerships and policy changes.  Council on Black Minnesotans - The Council was created by the Minnesota legislature in 1980 to advise the Governor and legislature on issues confronting the state's Black populations including a review and recommendations on out-of-home placement of Black children. There is also a Commission on Minnesotan African-American Children (COMAC) that works on issues related to Black children not being placed in Black foster and adoptive homes. Minnesota also has an Ombudsman for Children of Color and at least two other councils with similar roles – the Indian Affairs Council and the Hispanic Affairs Council.

Minnesota

2005 Minn. Laws, 1st Special Session, HF 139A, Chap 4, Art. 3, Sec. 8

Allows the Commissioner of Human Services to authorize projects to test tribal delivery of child welfare services to American Indian children and their parents and custodians living on the reservation. Authorizes grants to Indian tribes for that purpose.

Minnesota

2010 Minn. Laws, HB 2912, Chap. 303

Requires tribal notification regarding Native American children who are referred for treatment for severe emotional disturbance in a residential or treatment foster care setting. Permits the tribe’s representative to participate on the screening team.

Montana

 

2005 Mont. Laws, SB 86, Chap. 349

Defines terms related to the implementation of ICWA and clarifies the role of a qualified expert witness in cases involving Indian children in proceedings subject to ICWA.

New Mexico

 

2005 N.M. Laws, SB 233, Chap. 189

Sec. 37. Specifies the following placement preferences for Indian children taken into state custody: a member of the child’s extended family, a foster home licensed and specified by the child’s tribe, an Indian foster home licensed or approved by an authorized non-Indian licensing authority, or an institution for children approved by the child’s tribe or operated by an Indian organization.

New Mexico

2005 N.M. Laws, SB 225, Chap. 26

Clarifies that the Safe Haven for Infants Act is not intended to abridge the rights or obligations created by ICWA. Requires that a hospital ask a person leaving an infant whether the infant has a parent who is a member of an Indian tribe. Requires the hospital to provide the Department of Children, Youth and Families with all available information regarding an infant left pursuant to the Safe Haven for Infants Act. Provides that a parent of an infant left at a hospital shall have standing to participate in all proceedings regarding the child.

Oregon

2009 Or. Laws, SB 630, Chap. 707

Creates the Task Force on Disproportionality in Child Welfare Foster Care for the purpose of studying and addressing racial disproportionality in the child welfare foster care system.

South Dakota

 

2006 S.D. Sess. Laws, HB 1051, Chapter 144

Allows notice of child custody proceedings subject to the Indian Child Welfare Act to be given to the designated tribal agent for Indian children taken into temporary custody. Defines designated tribal agent as designated by the tribe.

South Dakota

2005 S.D. Sess. Laws, HB 1226, Chap. 139

Requires that, in any proceeding to which ICWA applies, the state’s attorney notify the parent or Indian custodian and Indian child’s tribe of the pending proceedings and of their right of intervention. Specifies requirements related to the form, timing and content of the notice.

South Dakota

2004 S.D. Sess. Laws, SB 211, Chap. 2

Establishes the Governor’s Commission on the Indian Child Welfare Act to study the requirements of the federal In­dian Child Welfare Act, including compliance with the requirements for notice, placement, expert witness testimony, intervention, transfer of jurisdiction, and active efforts, and the means by which Indian tribes can assist in pursuing the policies of the act.  Requires the governor to appoint an independent reviewer to analyze compliance with the act by the Department of Social Services, the state attorneys, the Unified Judicial System, and private agencies involved in foster care and adoption. The independent reviewer also will analyze the means by which Indian tribes can assist the state and private agencies in achieving compliance.  Specifies commission membership and duties. Requires the commission to review the efforts of the Department of Social Services to enter into agreements with Indian tribes regarding licensing of foster homes, access to federal funding, and contracting of child protection services.  Requires the commission to explore and evaluate options to address and resolve identified issues and barriers that prevent or hinder compliance and make recommendations to improve compliance with the federal Indian Child Welfare Act.  Opens records and transcripts to the commission pertaining to apparent, alleged or adjudicated abused or neglected children, with provisions for confidentiality.

Texas

 

2005 Tex. Gen. Laws, SB 6, Chap. 268

Sec. 1.54. Requires the Health and Human Services Commission and Department of Family and Protective Services to analyze data regarding child removals and other enforcement actions during state fiscal years 2004 and 2005 to determine whether enforcement actions were disproportionately initiated against any racial or ethnic group. Requires a report no later than January 1, 2006. Requires a remediation plan to prevent racial or ethnic disparities and an evaluation of policies and procedures if the results of the analysis indicate disparate treatment of racial or ethnic groups. Requires a report on the evaluation and remediation plan by July 1, 2006.

Texas 2007 Tex. Gen. Laws, SB 758

Sec. 51. Expands the implementation of the remediation plan required under Section 1.54, Chapter 268, Acts of the 79th Legislature, Regular Session, 2005, to address racial or ethnic disparities in foster care.

Texas

2011 Tex. Gen. Laws, SB 501, Chap. 121

Establishes the  “Interagency Council for Addressing Disproportionality” to examine the level of disproportionate involvement of children who are members of a racial or ethnic minority group in child welfare, juvenile justice and mental health systems.  Includes examination of analysis of issues relating to the disproportionate delivery of various educational services to children in the education system.  Recommendations made by Council to reduce the involvement of such children in the child welfare, juvenile justice and mental health systems, improve the children’s success in the educational system and assist the Health and Human Services Commission in eliminating health and health access disparities in Texas among racial, multicultural, disadvantaged, ethnic and regional populations.  The Council is to include representatives from agencies including: the Texas Education Agency, the Center for Elimination of Disproportionality and Disparities within the Health and Human Services Commission, the Department of Aging and Disability Services, the Texas Youth Commission, The Department of Family and Protective Services, the Office of Court Administration of the Texas Judicial System, the Permanent Judicial Commission for Children, Youth and Families, and a former foster youth.  The Council is directed to review the delivery of public and private child welfare, juvenile justice and mental health services to evaluate the disproportionate rates of use of the services by children who are members of a racial or ethnic minority group.  Further, the Council is to prepare a report consisting of the Council’s findings and recommendations and to present an implementation plan to the legislature no later than December 1, 2012.

Washington

 

2007 Wash. Laws, HB 1472, Chap. 465

Directs the secretary of the department of social and health services to convene an advisory committee to analyze and make recommendations on the disproportionate representation of children of color in Washington's child welfare system. The department shall collaborate with the Washington institute for public policy and private sector entities to develop a methodology for the advisory committee to follow in conducting a baseline analysis of data from the child welfare system to determine whether racial disproportionality and racial disparity exist in this system. Requires the Washington institute for public policy to serve as technical staff for the advisory committee. In determining whether racial disproportionality or racial disparity exists, the committee shall utilize existing research and evaluations conducted within Washington state, nationally, and in other states and localities that have similarly analyzed the prevalence of racial disproportionality and disparity in child welfare. Provides that, at a minimum, the advisory committee shall examine and analyze:(1) The level of involvement of children of color at each stage in the state's child welfare system, including the points of entry and exit, and each point at which a treatment decision is made;(2) The number of children of color in low-income or single-parent families involved in the state's child welfare system;(3) The family structures of families involved in the state's child welfare system; and (4) The outcomes for children in the existing child welfare system. This analysis shall be disaggregated by racial and ethnic group, and by geographic region. Requires that, not later than January 1, 2008, the secretary shall report the results of the analysis conducted under this act and shall describe the remediation plan required under this act to the appropriate committees of the legislature with jurisdiction over policy and fiscal matters relating to children, families, and human services. Beginning January 1, 2010, the secretary shall report annually to the appropriate committees of the legislature on the implementation of the remediation plan, including any measurable progress made in reducing and eliminating racial disproportionality and disparity in the state's child welfare system.

Washington

2006 Wash. Laws, HB 3182, Chap. 90

Recognizes the ability of the Indian tribes within the state to enter into agreements with the state to license agencies located on or near the federally recognized Indian reservation to receive children for control, care, and maintenance outside their own homes, or to place, receive, arrange the placement of, or assist in the placement of children for foster care.  Authorizes the department to enter into written agreements with Indian tribes within the state to define the terms under which the tribe may license agencies. Provides that the department and its employees are immune from civil liability for damages arising from such agreements.

Washington

2009 Wash. Laws, HB 2106,
Chap. 520

Requires that the Department of Social and Health Services restructure the administration and delivery of child welfare services by converting its current contracts with providers that deliver out-of-home care and case management services into performance-based contracts. Creates the Child Welfare Transformation Design Committee to establish a transition plan containing recommendations for the provision of child welfare services, including a model for performance-based contracts to be used by the department, a method by which clients will access community-based services and methods to address the effects of racial disproportionality.

Wisconsin

2009 Wis. Laws, SB 288, Act 94

Incorporates jurisdictional provisions of the federal Indian Child Welfare Act and its minimum standards for custody proceedings into the provisions of the Children’s Code related to children in need of protection or services, termination of parental rights, foster care, adoption proceedings, out-of-home placement and provisions of the Juvenile Justice Code services proceedings, other than proceedings based on the commission of a crime or emergency removal from the home. Includes expert witnesses.

Wisconsin

2010 Wis. Laws, SB 6470,
Chap. 288

Addresses the burden of proof required in dependency matters affecting Native American children. Stipulates that courts are prohibited from placing a Native American child in out-of-home care unless the court finds, by clear and convincing evidence, including the testimony of expert witnesses, that the continued custody of the child by the parent would likely result in serious emotional or physical damage.

Source: NCSL's Child Welfare Enacted Legislation Database, Powered by StateNet, a product of LexisNexis.

About This NCSL Project

The Denver-based child welfare project staff focuses on state policy, tracking legislation and providing research and policy analysis, consultation, and technical assistance specifically geared to the legislative audience. Denver staff can be reached at (303) 364-7700 or childwelfare@ncsl.org.

NCSL staff in Washington, D.C. track and analyze federal legislation and policy and represent state legislatures on child welfare issues before Congress and the Administration. Staff in D.C. can be reached at (202) 624-5400 or cyf-info@ncsl.org.