ICWA Puts Tribes’ Interests Ahead of Children’s

On November 26, 2013, a Spirit Lake Indian reservation woman was sentenced to 30 years in prison for throwing her step-grandaughter down an embankment and killing her. Lauryn Whiteshield and her sister had been removed from a non-Indian foster family and placed with her grandfather and his wife, despite her long history of child neglect.

That’s because the Spirit Lake Sioux Tribe had invoked their powers under the Indian Child Welfare Act (ICWA) to place the children on the reservation.

Congress passed ICWA in 1978 to alleviate a national crisis, the wholesale separation of Indian children from their families. But in attempting to right a wrong, Congress created a new threat to the safety and well-being of Indian children. It established a weaker set of protections for Native American children and subordinated their best interest to that of the tribe.

The problem with ICWA begins with how it defines an “Indian child.” Any child who is either a member of an Indian tribe or is eligible for membership in a tribe, and is the biological child of a tribe member, is considered an Indian child. While some tribes require a certain percentage of Indian ancestry, others (like the nation’s largest tribe, the Cherokees) will accept those with any amount of Indian blood.

There is no requirement that the child or parent has any connections to the tribe or its culture. That’s how tribes end up deciding the fate of children whose Native American ancestry is less than two percent and who have no social or cultural connection to a tribe.

ICWA gives Indian tribal courts jurisdiction over child custody cases involving Indian children living on a reservation. For other Indian children, the state court is required to transfer the case to the tribal court if either parent, or the child’s Indian custodian, requests it.

If the case remains in the state court, the tribe also has the right to intervene at any time in the proceedings, and can request transfer to tribal court. That’s what happened to Lauryn Whiteshield.

ICWA requires a higher standard of proof to remove an Indian child or terminate the rights of an Indian parent. An agency requesting that an Indian child be placed in foster care or adoption must prove that “active efforts” were made to prevent the breakup of the family.

This standard is more difficult to meet than the “reasonable efforts” required for all children under Title IV-E of the Social Security Act. This makes it more likely that Indian children will be left in dangerous homes.

If the court orders a foster care or adoption placement, ICWA establishes an order of preferences, with a member of the child’s extended family being the first choice for both foster care and adoption. For an adoption, the second choice if a member of the extended family is unavailable is other members of the child’s tribe and the third choice is other family members.

This makes it easy for tribes to take children away from adoption-minded foster families that may have raised them from infancy.

ICWA is often used to override the preferences of one or both parents about who will raise their child. In 1985, twin babies were born to Choctaw parents living on a Mississippi reservation. The parents drove 200 miles to give birth, hoping to escape tribal court jurisdiction, and chose a non-Indian adoptive family. The tribe brought the case to the Supreme Court, which upheld the jurisdiction of the tribal court.

Ultimately, the tribe returned the babies to the adoptive family chosen by the parents. But the tribe’s right to overrule parents on custody for their children continues in effect.

New guidelines issued by the Bureau of Indian Affairs attempt to dispel any doubt about whether the child’s best interests should play a role in Indian child welfare proceedings. They state that courts should not “conduct an independent analysis of the best interests of the child” in making decisions about foster care or adoptive placements, because placement in an Indian home is presumed to be in an Indian child’s best interests.

The Goldwater Institute recently filed a class-action suit in Arizona that “challenges the constitutionality of ICWA requirements that make the best interests of an Indian child less important than the desires of an Indian tribe when deciding foster care or adoption placements.”

ICWA is an example of a well-meaning policy with unintended consequences. Instead of protecting Indian children, ICWA subordinated their interests to that of the tribe.

Earlier this month, the Obama Administration announced its continuing commitment to robust enforcement of ICWA. It’s unfortunate that it did not instead propose amending ICWA to give Indian children the same protections as their non-Indian peers.

This column was published in the Chronicle of Social Change on May 10, 2016.

Residential Schools: A Promising Alternative to Foster and Group Homes

In her book, Garbage Bag Suitcase, former foster youth Shenandoah Chefalo describes her childhood of abuse, followed by three years in foster care with a family that was more stable, but no more caring or supportive, than her birth family.

In her final chapter, she suggests an alternative to the standard model of foster care that is failing so many young people: boarding schools for foster youth. As an example, she cites the Crossnore School, a nonprofit residential foster care home in the Blue Ridge Mountains of North Carolina that was founded in 1913.

Crossnore supports children from the ages of one to 21, and is known for accepting large sibling groups. Currently, 83 children live in 11 cottages, each supervised by professional “cottage parents,” and three new cottages are under construction, which will bring the capacity up to 110. This new “Young Children’s Village” will include a ropes-based adventure playground, which will provide a full-body workout while kids are having fun.

Crossnore residents attend the public charter school on campus along with students from the community. All students receive therapy and medical care on site. Many students receive tutoring as well. In the summer, there is a full slate of activities, including day trips, special classes like hiking and baking, and a one-week beach trip.

The school offers 19 kinds of therapy, including Trauma Focused Cognitive Behavioral Therapy, play therapy, family therapy, group therapy and equine-assisted therapy. Each cottage has a dog, so residents can experience the therapeutic effects of nurturing a pet. A case manager for each student serves as the hub of her team, mediating between the many adults involved with the child, taking her to appointments and supervising visits with birth families.

In 2014, Crossnore adopted the Sanctuary Model, and became one of 100 certified Sanctuary Organizations worldwide. The Sanctuary Model certification process is designed to “strengthen an organization’s commitment to the maintenance of a trauma-informed culture.”

Crossnore’s quality program pays off. Nearly all of its seniors graduate every year. Of last year’s nine graduates, three are working, four are in community college and two are in four-year college. 

Crossnore is not the only residential school that also serves as a foster care placement, but there aren’t many. The Children’s Home in Winston Salem provides a similar program, and recently merged with Crossnore. The Boys and Girls Home of North Carolina is another residential school and foster placement. California’s San Pascual Academy is a residential campus for foster teens with a capacity to serve 184 youths.

The economics of Crossnore explain why there are not many more such programs. The program spent about $5.5 million in fiscal year 2015, of which only about $3.5 million came from government payments. Private donations covered the rest.

A residential school like Crossnore has multiple advantages over a foster home. Professional house parents combined with case managers give children the support they need. The size of the cottages allows large sibling groups to be placed together. Coordination between home, school and mental health services is assured. Rather than the poor schools and mental health providers that are often their lot, foster kids receive quality services tailored to their needs.

We need more programs like Crossnore, but the current climate in most states and at the federal level is not friendly to residential schools. The bias against residential placements (which provides a convenient excuse for spending less) is getting stronger and may soon be enshrined in federal law.

The current focus on preventing the need for foster care, while extremely important, has beendiverting attention from the need for healing placements for those who must be removed.

The expense of these programs is another barrier. Yet the savings from increased educational attainment and decreases in crime probably far outweigh the increased cost. It is my hope that governments and private funders will see the need for and lifesaving potential of these programs and will choose to invest in starting new ones.

This column was published in the Chronicle of Social Change on May 2, 2016.

Child Maltreatment Prevention Should Start Before Conception

April is Child Abuse Prevention Month, and the recent report from the Commission to Eliminate Child Abuse and Neglect Fatalities (CECANF) urges the nation to stop waiting for a child to be maltreated before intervening with services and supports.

But when talking about child abuse prevention, CECANF and most others miss one of the most crucial opportunities: before a child is even conceived.

Sarah Brown, founder of the National Campaign to Prevent Teen and Unplanned Pregnancy, gave a lecture last December that made this point forcefully. She reports being struck by “the total absence of pregnancy planning, spacing and prevention in virtually all discussions of how to improve overall child and family well being …” As she put it, many groups concentrate on services after the child is born, but rarely do they mention the time when decisions about whether and when it should take place.

There is no lack of research on the connection between pregnancy timing and child maltreatment. There is a strong association between child maltreatment and the mother’s age at the birth of the child. California researchers Emily Putnam-Hornstein and Barbara Needell found that babies born to mothers who were under 20 were twice as likely to be reported to child protective services (CPS) by the child’s fifth birthday as those born to mothers 30 or older.

Among children referred to CPS by age five, almost 18 percent were born to a teenage mother and 50 percent were born to a mother younger than 25. Among children with no CPS contact, only 8 percent were teen births and 30 percent were born to a mother under 25.

There is also strong evidence that family size and child spacing are correlated with child maltreatment. Putnam-Hornstein and Needell found that children who fell third or higher in the birth order were more than twice as likely to be the subject of a report as first children. Moreover, a large study published in 2013 found that women who gave birth to another child within 24 months of the previous child were 80 percent more likely to have a substantiated CPS report.

And setting the research aside for a moment: Anyone who has worked for or with CPS, or in foster care, knows the prevalence of larger families with closely-spaced children in the system.

So if it is not the lack of research, why do supporters of child maltreatment prevention usually fail to include family planning and contraception in their suggestions? In part, Sarah Brown says of child advocates in general, it may be that they simply don’t think of it. But in large part, says Brown, it is because they fear getting in trouble and becoming mired in controversy. In addition to the fear of bringing abortion into the discussion, this discussion makes many people uncomfortable because of fears of conjuring up past attempts to control the population of poor or minority groups.

But family planning and contraception need to be included in the child maltreatment discussion. We know so little about what works after birth to prevent child maltreatment, but we have made great progress in teen pregnancy prevention. Many factors, including economic recession, MTV shows, and fear of HIV may have contributed to the decline in teen pregnancy and parenthood.

But public and private initiatives to provide education and availability of effective contraception have probably played a part as well. Imagine if we could expand that work to focus on young adult women as well. Imagine a public health campaign explaining the benefits of planning, spacing and timing pregnancy to prospective mothers “so that your children can be healthier and have a better chance in life.”

CECANF Commissioner Judge Patricia Martin is to be commended for including teen pregnancy prevention, especially in high-poverty neighborhoods and among youth in foster care, as one of the recommendations in her dissenting report. She stresses the inclusion of young men in these efforts. It is too bad the main report did not include this recommendation.

This column was published in the Chronicle of Social Change on April 26, 2016.

Starving the Foster Care Beast Hurts Only the Children

In his brilliant column of April 5, Sean Hughes explains why 20 years after the federal Aid to Families with Dependent Children (AFDC) was replaced, states still have to document a child’s AFDC eligibility in order to receive federal reimbursement for foster care. This Title IV-E “lookback” has potentially cost state and local child welfare systems billions of dollars over the past two decades.

According to Hughes, advocates have been reluctant to push for eliminating the lookback for fear of encouraging placement in foster care. As Hughes put it, “the focus seems to have shifted almost exclusively toward preventing entry into foster care, with little advocacy being devoted to actually improving the continuum of care for children in out-of-home care.”

At first, it was hard for me to believe that people who call themselves child advocates would stop caring about kids as soon as they are removed from their homes. Government-hating Reagan Republicans invented the term “starving the beast” to describe the strategy of cutting taxes to force government to shrink. But child advocates withholding money from children in foster care?

But then I read Richard Wexler’s column. According to Wexler, the Title IV-E “lookback” is the only restraint on the “runaway train” that is foster care, which rampages through poor communities, “ripping” children from their families. The only way to restrain this train is to cap the funding, even if that means the kids who are removed are essentially warehoused in the cheapest placements with the worst mental health services, education and services to their parents.

Wexler supports his argument by pointing out that rates of child removal vary greatly by state. Iowa “tears apart” families at a rate four times higher than Illinois, and it is unlikely that a difference in child maltreatment rates explains this. I totally agree. Clearly, there is no easily-applied objective standard for removals. Iowa is probably too ready to remove children; Illinois may be too reluctant.

There is a delicate balance in child protection. Some children who are not removed end up dying of abuse or neglect. Federal and state policies have often followed a cyclical pattern. Outcry about child deaths has led to more aggressive removal policies, while complaints about unnecessary removals have led to an emphasis on family preservation.

The CalYOUTH data cited by Hughes shows that 57 percent of the youths surveyed agreed that they were “lucky” to be placed in foster care versus 18 percent who disagreed. That information suggests that at least from the children’s point of view, the majority of removals in California were warranted at that time. That jibes with what I saw as a social worker in the District of Columbia.

In her recent column published by The Chronicle, Mary Callahan suggests that Maine was overly eager to remove kids when she was a foster parent over a decade ago. But things may have changed since that time. The general trend in the past decade has been toward keeping children at home whenever possible, and falling foster care caseloads around the country have been the result.

Regardless of whether too many or too few children are being removed from their homes, an obsolete funding formula is not an appropriate way to prevent unnecessary removals. There is no evidence that changing the federal reimbursement rate would have any effect on the number of removals in any state. The idea that states would respond to the increased reimbursement rate by increasing removals just does not ring true to me.

Hughes argues that eliminating the lookback might make foster care cheaper for a state or county than family preservation programs, for which the state would pick up the full tab. But this whole discussion is taking place in the context of a broader financing reform in which IV-E funds would be allowed to be spent on family preservation, thereby eliminating that problem.

Moreover, the scenario envisioned by Hughes – “the lookback simply ending” and resulting in more federal funds for foster care – is unlikely in this budgetary climate. As some have proposed, Congress would probably lower the reimbursement rate or find other ways to reduce the federal costs of expanding the entitlement.

So what could jurisdictions do with more federal funds? First of all, they could address the critical shortage of quality foster homes by professionalizing foster care or creating foster care communities that provide housing to foster parents. They could implement promising models like Neighbor to Family that keep siblings together. They could create quality residential options, such as North Carolina’s Crossnore School, which graduates at least 95 percent of its seniors every year. They could provide therapeutic child care and improve mental health services.

Foster kids deserve the best homes, therapists, medical care and education, not the cut-rate care most are getting now.

This column was published in the Chronicle of Social Change on April 18, 2016.

Pay Foster Parents to Stay Home with Infants, Not Put Them in Daycare

On April 1 in The Chronicle, Jeremy Loudenback reported on a California budget proposal that would allocate $31 million to provide emergency child care vouchers to foster parentscaring for children ages 0 to 3. Based on my experience as a social worker for foster children in the District of Columbia, I would recommend moving in the opposite direction and using the funds to pay foster parents for staying home with younger children.

To illustrate the need for infant child care, Loudenbeck spoke to a couple who took in a newborn. They were unable to find a spot in a child care center and had to hire a nanny. The couple spent between $400 and $500 per week for child care, compared to their foster care stipend of only $688 per month.

Loudenback’s example raises questions about the policy. It is generally accepted that new parents should take some leave to bond with the baby, cope with sleep deprivation, and adjust to a new lifestyle. The federal Family and Medical Leave Act guarantees 12 weeks for unpaid leave for eligible employees after the birth or adoption of a child or the placement of a child in foster care.

Perhaps a prospective foster parent who expects to put an infant into full-time childcare should reconsider her intention on fostering. Moreover, foster parents need to be available to care for sick babies and take them to frequent doctors’ appointments; something that is hard to do when working full-time.

The economics of paying for infant care plus foster care are also questionable. Californiacurrently pays up to $1,292 per month for subsidized child care for infants and toddlers aged 0-2, which dwarfs the $688 foster care stipend. Talk about the tail wagging the dog!

But what’s better for the children? A major study of child care impacts found no difference between children who were cared for exclusively by their mothers and those who were also cared for by others. There were some modest negative impacts on behavior for those who spent many hours in child care.

Sheila Kuehl, the county supervisor who authored the current plan, says it will help in foster parent recruitment. I’d be willing to bet that Los Angeles could find more than enough foster parents for infants if they added $1,192 to the $688 foster parent stipend, for a total of $1,880 per month.

Loundenback mentions the situation of relative caregivers, who may have only a few hours notice that a child is being placed in foster care. An emergency child care voucher for these relatives does make sense. We cannot expect them to quit their jobs in order to care for a relative who might be with them temporarily.

Perhaps the best option is to limit the emergency child care vouchers to relatives. Or the state to offer the choice between a child care voucher and a higher stipend for non-relatives who wish to stay home with foster children between zero and three.

The current plan would allow foster parents to use the new vouchers for licensed or unlicensed settings, and adds no provisions for ensuring quality. This is short-sighted. Many young children enter foster care already behind developmentally due to neglect or abuse. Except for newborns and very young infants, most are traumatized by their removal and perhaps by the conditions that caused the removal.

The concept of trauma-informed schools is sweeping the nation, but the concept of trauma-informed child care does not seem to have advanced beyond Seattle’s Childhaven program. Kuehl’s proposal pays lip service to the concept of trauma-informed care by “making trauma-informed training available to providers,” but does not apparently require such training or the use of any particular practices.

In addition to being trauma-informed, child care for foster children should be developmentally appropriate and enriching. If California is going to allocate funds specifically for child care for the youngest foster children, only high-quality, trauma-informed and developmentally appropriate programs should be funded.

I hope that the California legislature will modify the proposal currently before it so that foster parents who want to stay home with babies and toddlers instead of sending them to child care can be paid to do so. In addition, the proposal should be modified to ensure that when the state pays for child care, it is both licensed and designed to meet the needs of young children in foster care.

This column was published in the Chronicle of Social Change on April 11, 2016.

Plenty of Blame to Go Around for Traumatic Removal of Six-Year-Old from Longtime Home

On March 21, six-year-old Alexandria P. (“Lexi”) was carried screaming away from the home where she had lived for two-thirds of her life. This traumatic removal has drawn attention around the world to the negative consequences of the Indian Child Welfare Act (ICWA). But careful study shows that ICWA is only part of the story.

Seventeen-month-old Lexi was removed from her father in 2010 when he was jailed for auto theft and selling stolen auto parts, according to Indian Country Today. Her mother had a long history of substance abuse, and had lost custody of at least six other children. Lexi’s father initially denied any Indian heritage but his mother alerted the court to his membership in the Choctaw tribe. The court found that ICWA applied, and the tribe was brought into the case.

By October 2011, the “R” family in Utah had expressed an interest in adopting Lexi. The family is very loosely related to her father; Ms. R’s uncle is Lexi’s paternal step-grandfather. The R’s now have custody of Lexi’s half-sister, according to the Children’s Law Center, which represents Lexi in court.

The tribe decided to keep Lexi in foster care in Los Angeles, so that her father could visit as he tried to reunite with her. But if reunification failed, the R’s would be its choice to adopt Lexi, in accordance with the preference for family embodied in ICWA.

Lexi lived in two foster homes before she was placed with Rusty and Summer Page at the age of two in December 2011. According to testimony before the California Court of Appeal, within a few months she had bonded with the entire family and considered the Pages to be her parents and their children to be her siblings.

Lexi’s father stopped visiting, and indicated in September 2012 that he no longer wanted custody. The Pages expressed their interest in adopting Lexie, but were told that the tribe had selected the R’s as Lexi’s adoptive parents. The Los Angeles Department of Children and Family Services (DCFS), Lexi’s attorney, and her father all agreed with this plan. So the Pages hired their own lawyer and challenged the plan.

On July 13, 2013, the court began a hearing that spanned five days over the course of three months. The court reached its decision on December 9, 2013, almost five months after the trial began. The court decided that the Pages did not have good cause to prevent Lexie’s placement in Utah but granted their petition to keep Lexie in their home, pending appeal.

On August 15, 2014, the appeals court ruled that the Pages did have good cause to challenge the adoption, and sent the case back to the original court.

One year and seven months later, the original court issued its decision. Lexie was going to Utah.

There is more than enough blame to go around here.

ICWA gave jurisdiction over a child who was 1/64 Choctaw to a tribe that her father did not even know he belonged to. This goes well beyond the purpose of the act, which was designed to stop the wholesale removal of Indian children from their families and tribes.

DCFS and Lexi’s attorney supported the tribe’s decision, and might have made the same choice in the absence of ICWA. A definition of family which prioritizes the ties of blood and even marriage over the realities of bonding and attachment may not be in the best interests of children, as I discussed in an earlier column.

The Children’s Law Center reports that Lexi’s half-sister is also with the R’s. Lexi never lived with this half-sister. She has three foster siblings with whom she has lived for four years.

In my opinion as a former child welfare social worker, DCFS did not manage the case in accordance with best practice and state law. When a state wants to place a child in another state, it must formally request that the second state evaluate the proposed guardians, a process that can take six months or longer.

DCFS waited until reunification failed before filing this request, even though California law calls for “concurrent planning” in such cases. By the time the approval was received, the Pages were able to claim “de facto parenthood” and delay the placement.

But the foster parents also bear considerable responsibility for Lexi’s suffering. If they had not challenged the decision of the agency and the tribe, Lexi could have been placed with the R’s years ago and the trauma of her transition would have been much less.

Finally, the greatest share of blame belongs to a legal system that ignores a child’s sense of time, and to the politicians that refuse to provide the funding that would enable the courts to act with more urgency. It has been over four years since the Pages filed their first motion. Lexi has now spent over two-thirds of her life with the same family. Removing her from them is truly abuse by the state.

This column was published in the Chronicle of Social Change on March 29, 2016.