This story is being co-published with The Imprint, a national nonprofit news outlet covering child welfare and youth justice.
Since 2018, advocates for Black children and families and a succession of Minnesota lawmakers have fought for legislation that would correct one of the glaring disparities in the child welfare system: the disproportionate number of child maltreatment investigations, foster care removals and terminations of parental rights targeting African Americans.
The motivation for the bill — and frustration surrounding its long struggle to gain traction in the Legislature — was in full view at a legislative hearing in St. Paul on March 21. In a heated exchange, Kelis Houston, a longtime advocate for the African American Family Preservation Act, spoke determinedly, as the committee chair, Representative Dave Pinto, DFL-St. Paul, tried in vain to shush her.
“You have heard years of testimony, you’ve seen our parents crying, our children harmed, you’ve witnessed the trauma,” Houston, the founder of the nonprofit Village Arms, implored members of the House Children and Families Finance and Policy Committee. “You can stay calm because it’s not your children.”
Later, seated alongside Houston, bill author Representative Esther Agbaje, DFL-Minneapolis, spoke tearfully.
“We deserve that opportunity to ensure that all of our communities that have been harmed by the United States have the opportunity to thrive,” Agbaje said. “The pain is real and palpable here, but part of the legislative process is to move it along so we can continue to have those conversations.”
After a hearing lasting more than an hour, Agbaje’s bill received unanimous support, and is now headed to the House judiciary committee. But the amended version goes well beyond the original intent of protecting Black children of African origin. The current version of the legislation broadens protections to all “African American and disproportionately represented children” — a group so large it encompasses nearly all children currently in foster care.
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A higher standard
As currently drafted, the bill would require child welfare agencies to make “active efforts” to prevent family separation for any child “whose race, culture, ethnicity, disability status, or low-income socioeconomic status is disproportionately encountered, engaged, or identified in the child welfare system as compared to the representation in the state’s total child population.”
The legislation aims to prevent “arbitrary and unnecessary removal” of these children from their families and improve family reunification rates. At every stage of a case, social service agencies would be held accountable for considering an African American or disproportionately represented family’s “social and cultural values.” Agencies would also have to make “active efforts” to prevent out-of-home placements, and return children to parents as quickly as possible.
Under current law, a lower legal standard of “reasonable efforts” is applied in virtually all cases.
An exception is made for children who are members of Native American tribes or who are eligible for tribal membership. They are covered under an active efforts provision of the federal Indian Child Welfare Act.
Active efforts — rather than the lower standard of reasonable efforts — are considered to be a central tenet of the landmark ICWA law. The standard means Indigenous children’s relatives and close kin must be prioritized for foster care placements, and their parents provided greater opportunity to reunify with their kids than typically occurs in child welfare cases, among other special provisions.
ICWA passed in 1978 as an agreement between nations: the U.S. government and sovereign tribes, who have jurisdiction over their citizens in foster care cases.
Agbaje’s bill applies that same standard to other children who appear disproportionately in foster care, making the ”gold standard” of child welfare law enacted under ICWA apply to nearly all kids and families.
“Active efforts sets 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 the child with the child’s family,” her bill states.
If enacted, Minnesota would become the first state in the nation to raise the ICWA-established “active efforts” standard to virtually all foster children. But the proposed law states clearly that it is not meant to undermine existing law that protects tribal children.
“Nothing in this legislation is intended to interfere with the protections of the Indian Child Welfare Act of 1978,” it reads.
In an emailed statement, a spokesperson for the Department of Human Services said the state “remains deeply concerned about the pattern of disproportionate placements for African American children in Minnesota and supports efforts to eliminate those disparities.” The department is providing technical assistance on Agbaje’s bill “to ensure if enacted it can be implemented effectively by local child welfare agencies, and is aligned with federal laws governing foster care and permanency.”
The email went on to note: “We still have considerable work ahead. Our vision for child and family well-being means reducing racial disparities so all Minnesota families can thrive.”
Stacy Hennen, director of human services for Western Prairie and a representative of the Minnesota Association of County Social Service Administrators, said local leaders “are very concerned about the disparities that exist for African American children and Native American children in our system.” Solutions, she added, require reforms at every stage of the child welfare system.
Regarding the pending legislation, Hennan said: “In concept, and in theory, we 100% support some of the changes that are being called for in the bill.”
Stark disparities
In March, racial discrimination against Black children in Minnesota was called out by the National Association for the Advancement of Colored People and the New York-based advocacy group Children’s Rights. The nonprofits are calling on the Office of Civil Rights at the U.S. Department of Health and Human Services to investigate.
“The State has failed to remedy the historic and ongoing harms caused by its child welfare system,” the 30-page complaint states, “and the discrimination against and disparate impacts upon Minnesota’s Black families have been egregious and shocking.”
Houston’s Village Arms nonprofit focuses on family preservation and reunification through parenting education, in-home visits, advocacy and direct assistance. Diversions from the CPS system are vital, Houston and others fighting against the separation of Black families say. They point to statistics showing disparate treatment at every stage of the Minnesota foster care system.
In Hennepin County, where Black people comprise 15% of the population, they are the subject of 37% of child maltreatment reports.
Even more stark are the numbers of households investigated for parental abuse and neglect — the “front door” of the child welfare system. When reports are made to the child protection hotline, 60% of cases involving Black children are investigated, compared with 39% for white children, said Rep. Agbaje.
According to a disproportionality index produced each year by the National Council of Juvenile and Family Court Judges, only white and Asian children are underrepresented in Minnesota foster care, compared with their presence in the general population. Over-represented groups include Black children, who appear in foster care at 1.24 times their population rate, and mixed-race children, at a rate of nearly four times. By contrast, Native American children in Minnesota appear in foster care at 14 times their rate in the population.
Pinto, chair of the children and families committee, pointed to an initial analysis of Agbaje’s pending bill by the Association of Minnesota Counties, which estimated that as many as 90% of all foster children fall into some category of disproportionate representation. That means they would be eligible for active efforts protections under the pending bill.
Active efforts translate to greater supportive services offered to parents struggling with addiction, mental health or domestic violence, and prioritizing relatives and close kin over foster parents unknown to the child. Under the proposed law, parental rights could not be terminated “solely on the parent’s failure to complete case plan requirements.”
Onlookers say the bill, which will be heard April 9 in the House Judiciary Finance and Civil Law Committee, faces significant challenges to becoming law.
In an email, Pinto told The Imprint “that there do continue to be a number of concerns with the bill.” But he noted, “as I also said during the hearing, the disparities in child welfare are certainly a big concern; we’ll continue to look at ways to address them.”
‘Racism. Point blank.’
An earlier version of the African American Family Preservation Act passed the state House in 2021 before stalling in the Senate. The current version has been renamed the Layla Jackson Law, after a 17-month-old Black infant who was killed in 2018 by a white foster parent in a home where court documents state she was “racially harassed,” and “mocked” before being beaten to death.
Representative Nathan Coulter, DFL-Bloomington, said the bill in its current form raised “a broader question about how the child welfare system works and what we can and should be doing about it.” He closed his statements by saying: “We have to think about not only the cost of doing this, but the cost of not doing this. The status quo is not acceptable.”
Those who have examined the bill language have raised questions about the constitutionality of creating higher standards for some children and not others, and how eligibility would be determined for children who are not members of tribes.
“Even though we’re putting disproportionality in the bill, Black children are still at the bottom of that disproportionality list, and we want to make sure we make that clear,” said Thomas Berry, program director for the St. Paul-based Black Civic Network. Berry, who is co-chair of the local NAACP’s child protection committee, has advocated for the bill in its various forms since its first introduction in 2018.
After a frustrating day in the Capitol — in which three sergeants-at-arms were summoned to restore “decorum” — Houston told The Imprint what she sees as the obstacle that lies ahead.
“Racism. Point blank,” she said. “There’s no other way to frame or even talk about it.”
The pain in the room
During the March 21 committee meeting, Representative Heather Keeler, a member of the Yankton Sioux Tribe, described concerns that she and her tribal elders had about the African American Family Preservation Act.
Native people are eligible for ICWA as citizens of sovereign nations within the United States, and “we hold a politically protected class that others don’t,” said Keeler, DFL-Moorhead.
Still, the fight to preserve ICWA has intensified in recent years, with a case reaching the Supreme Court challenging its constitutionality. Brackeen v. Haaland was brought by white couples seeking to adopt Indigenous children, including a Minnesota family. They argued, unsuccessfully, that the law was race-based and thus discriminated against them as white people.
The recent challenge to ICWA was averted, but nonetheless struck fear among tribal leaders and supporters nationwide.
“You do not want your children caught up in the Supreme Court under constitutionality issues,” Keeler advised at the hearing. “It’s a horrible place to be.”
Black family advocate Houston responded in frustration to this at the recent legislative hearing.
“This body has done a lot for the Native American community, but it has done nothing for the African American community,” she said. “If you cared about Black children instead of arguing about constitutionality, you’d be listening to our experiences.”
As the hearing drew to a close, Representative María Isa Pérez-Vega, DFL-St. Paul, took time at the lectern to acknowledge the pain in the room, and called for common understanding.
“There’s tensions, emotion and pain — and we’re carrying the generations of pain,” Pérez-Vega said.
She introduced herself as “a single mom to a child that has every drop of blood of ethnicity,” and someone with a blended background.
“I’m Indigenous, I’m African, I‘m European, I’m as Puerto Rican as it could get,” Pérez-Vega said. “This place is painful, these circles and conversations are re-traumatizing and — with all due respect Mr. Chair and members of this committee — we’re loud because we’ve been crying for a long time.”
