Should foster-care decisions aim for a demographic balance? Or should they follow where the evidence of neglect and abuse actually is — even if that means some groups appear in the system more often than others?
According to the Department of Children, Youth, and Families (DCYF), 10,509 children were in the Minnesota Foster care system in 2023. This is down from over 11,000 in 2022 and from over 15,000 in 2019. Relative to their population in the state, Native and African American children made up a disproportionate share of the foster care system.
As DCYF explains,
In 2023, American Indian children were around 16 times more likely than white children to be in out-of-home care. African American children and children who identified as Hispanic of any race were both around two times more likely than white children to be in out-of-home care. Children who identify as two or more races were around eight times more likely than white children to be in out-of-home care, based on Minnesota population data from U.S. Census estimates.
Such long-standing discrepancies are what a 2024 Minnesota law seeks to correct. Modelled after the Indian Child Welfare Act (ICWA), the Minnesota African American Family Preservation Child Welfare Disproportionality Act (MAAFPCWDA) requires social services to take “active efforts” to prevent out-of-home placement of African American and disproportionately represented children. In case of removal, social services must take “active efforts” to reunify children with the parents or custodian.
Certainly, efforts to prevent needlessly separating children from their parents are commendable. However, since active efforts “set a higher standard for the responsible social services agency than reasonable efforts to preserve the child’s family, prevent the child’s out-of-home placement, and reunify with the child’s family,” the law effectively creates two distinct standards of protection based solely on ethnic and socio-economic factors. This makes it arbitrarily harder to remove certain children from abusive homes.
In addition to raising standards for removal, the law requires social services to provide “culturally informed, strength-based, community-involved, and community-based services to the child and the child’s family.” Culturally informed, while appealing in principle, could mean different things to different people, blurring standards for protection. More importantly, what is culturally informed may not reflect what is in the child’s best interests.
If indeed social workers wield unfounded power to break up families, shouldn’t these extra protections extend to every child in the state? As of January 1, 2025, Minneapolis and St. Paul are the first to implement the phased rollout of MAAFPCWDA. The law will become effective statewide on January 1, 2027.
If you, or someone you know, is involved in the foster care system and could be affected by this law, American Experiment would like to hear from you. Please email us at [email protected].
Why the law could hurt children — The ICWA experience
Unlike ICWA, MAAFPCWDA covers a broader group of children. A child can be disproportionately represented based on “race, culture, ethnicity, disability status, or low-income socio-economic status.” This makes the law less binding than ICWA, but also more expansive. So, if ICWA prevents the removal of children from abusive homes, MAAFPCWDA would have a similar negative impact but on a larger scale.
Congress passed ICWA in 1978 to protect against the breaking up of intact Native American families. ICWA, like MAAFPCWDA, requires that child welfare officers take”active efforts” to
- Prevent the out-of-home placement of Native American children,
- return children to their parents,
- and prioritize Native American families in the temporary or permanent out-of-home placement of Native American children.
ICWA also has higher evidentiary requirements. For instance, while child welfare agencies must provide “clear and convincing” evidence of abuse and neglect to terminate the parental rights of biological parents for all other children, for Native Americans, ICWA requires the state to “prove beyond a reasonable doubt”—a much higher standard to meet.
What is the result? Native American children stay in the foster care system longer compared to other children. In 2023, approximately 32 percent of children identifying as Native American stayed in the system for 2 years or more. For children identifying as African American, the share was 22 percent. For those identifying as White, it was 18 percent. Often, child welfare Agencies place American children in foster care with non-Native American families, only to move them later. This increases instability.
Native American children are also more likely to return to abusive homes. Cato, for instance, documented a 2016 Minnesota situation whereby,
social workers took three Duluth children, ages 7, 8, and 9, into protective custody so often that they stopped counting the number of days spent in state care after it reached 500. Officers reported that the home was soaked in urine, with the family sleeping on the floor among piles of rotting food. Had the children been of any other race, they would have been rescued from their alcoholic, neglectful parents. But because they were Indian, they were repeatedly sent back to experience more mistreatment.
Owing to fewer Native American foster families, social service Agencies usually place Native American children with non-Native American families. However, since ICWA prioritizes native families for permanent placement, Native American children often have to sever strong connections with non-native foster families when going through adoption. In a 2017 Texas case, Tribal officials denied the adoption of a 2‑year-old Navajo boy by the child’s non-Indian foster family even though his biological parents had agreed. The tribe
insisted that he be adopted by a Navajo family, instead—a couple he had only met once, for three hours. The court agreed, and within days state officials announced that they would take the boy away from his foster parents and send him to New Mexico
Fortunately, an appeal overturned this ruling.
Washington – Keeping Families Together Act
Washington has also observed concerning results after it passed the “Keep Families Together Act” in 2021. As results show, fewer children have entered the foster care system in Washington since the law’s passage. Unfortunately, fatalities have risen.
K5 News reported in December 2024 that
Since the law’s passage, the number of children entering foster care has dropped by 28%, but the shift has had serious consequences. State records show a dramatic increase in child deaths and near deaths, with fentanyl exposure playing a key role. In fact, deaths and near-deaths of children have risen by 114% since the law was passed, with most of the victims being babies and toddlers.
Certainly, it is possible that the increase in child deaths could be attributed to the increased use of fentanyl. However, the Newspaper also noted the state’s Pediatric Interim Care Center (PICC), which treats babies born to parents suspected of abusing drugs, was taking in visibly fewer children, potentially due to the law’s passage.
Is there a tradeoff?
Is it possible to support families and help children? Or is there simply a tradeoff between keeping families together and protecting children?
Approximately 88 Minnesota children potentially died due to maltreatment between October 2014 and May 2022. According to Safe Passage for Children, the majority of these children were already known to child protection services. Safe Passage concluded
that many of these deaths were preventable and were due to a child welfare philosophy which gave such high priority to the interests of parents and other adults in households, as well as to the goals of family preservation and reunification, that child safety and well-being were regularly compromised
According to the report, African American children are not only disproportionately represented in the foster care system, but between 2014 and 2022, they also accounted for a disproportionate share of deaths due to maltreatment. To the extent that discrepancies in foster care system representation reflect underlying risk, policies that arbitrarily limit removals could hurt disadvantaged children more than they help.