Disproportionate Representation of Children of Color in the Child Welfare System

The child welfare system and foster care were initially implemented as tools to help provide assistance to dependent children while the biological parents were temporarily unable to do so either because of neglect or abuse in the home. At face value, this purpose seems commendable. However, families and children of color have been disproportionately represented in these systems and are “more likely to experience negative outcomes compared to white families.”[1] According to 2019 data from The Annie E. Casey Foundation, Black children only comprise 14% of the population, but account for 23% of children in foster care.[2] Similarly, non-Hispanic children with multiple race groups only comprise 5% of the population, but account for 8% of the children in foster care.[3]

The American Bar Association has identified five factors that may explain the disproportionality and disparity surrounding racial groups and low-income families in the child welfare system:

  • correlation between poverty and maltreatment;
  • visibility or exposure bias;
  • limited access to services;
  • geographic restrictions; and
  • child welfare professionals knowingly or unknowingly letting personal biases impact their actions or decisions.[4]

Notably, many of these factors boil down to (1) families lacking resources and access, and (2) child welfare reporter and investigator bias.

At the individual level, addressing the disproportionality and disparities in the child welfare system call for confronting one’s own implicit and explicit biases in reporting, investigating, intervening, and making decisions in the placement process.[5] This is not only important for attorneys, judges, social workers, and other professionals involved in making decisions in child welfare cases, but also anyone who plays a role in referring a child to the system. At the systematic and policy level, other strategies for addressing the disparities include, “developing culturally responsive practices, recruiting and retaining foster families of color, engaging communities of color when developing new policies, and using data to identify and address disparate outcomes.”[6] For a deeper analysis of these strategies see the additional resources linked at the bottom of the Disproportionality and Race Equity in Child Welfare article.

Legislative measures have been enacted at both the federal and state level to address the disparities in the child welfare system. Federal acts include the Family First Prevention Services Act of 2018, the Multiethnic Placement Act of 1994, and the Indian Child Welfare Act of 1978. While state legislation varies, it typically aims to engage communities of color in creating child welfare policies or requires states to examine outcomes for children of color in the child welfare system.[7]

So, why does this matter? Simply put—there is a cost that each child pays for entering the child welfare system, even though they enter the system through no fault of their own. Furthermore, this cost is often higher for children of color. Children of color are “​​more likely to experience multiple placements, less likely to be reunited with their birth families, more likely to experience group care, less likely to establish a permanent placement and more likely to experience poor social, behavioral and educational outcomes.”[8] So long as disparities in outcomes exist for children of color and White children who enter the child welfare system, it cannot be said that the system is working equally for all children. Thus, it is imperative that individual actors and legislatures continue to pursue strategies to address the disproportionality and disparities in the child welfare system.

[1] Disproportionality and Race Equity in Child Welfare, Nat’l Conference of State Legislatures (Jan. 26, 2021) https://www.ncsl.org/research/human-services/disproportionality-and-race-equity-in-child-welfare.aspx#Numbers.

[2] Child Population by race in the United States, The Annie E. Casey Foundation: Kids Count Data Center (2019)

https://datacenter.kidscount.org/data/bar/103-child-population-by-race?loc=1&loct=1#1/any/false/1729/68,69,67,12,70,66,71/424; Children in foster care by race and Hispanic origin in the United States, The Annie E. Casey Foundation: Kids Count Data Center (2019) https://datacenter.kidscount.org/data/bar/6246-children-in-foster-care-by-race-and-hispanic-origin?loc=1&loct=1#1/any/false/1729/2638,2601,2600,2598,2603,2597,2602/12993

[3] Child Population by race in the United States, supra note 2; Children in foster care by race and Hispanic origin in the United States, supra note 2.

[4] Krista Ellis, Race and Poverty Bias in the Child Welfare System: Strategies for Child Welfare Practitioners, Am. Bar Ass’n (Dec. 17, 2019) https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/january—december-2019/race-and-poverty-bias-in-the-child-welfare-system—strategies-f/.

[5] Ellis, supra note 5; Disproportionality and Race Equity in Child Welfare, supra note 1.

[6] Disproportionality and Race Equity in Child Welfare, supra note 1.

[7] See id.

[8] Id.

LGBT Youth Exist, are Overrepresented in the Foster Care & Juvenile Systems, and Deserve Protections

 

Despite campaigning on promises to protect and support the LGBTQ community, the Trump Administration has sought out to harm LGBT folks since his inauguration in 2017 weaponizing various policy initiatives and a cabinet of notoriously anti-LGBTQ politicians against the community. While largely aimed at LGBTQ adults, these attacks have also hurt LGBT youth. Despite making up only 9.5 percent of youth in the US, percent of LGBTQ Youth are disproportionality represented in both the Foster Care and Juvenile Systems. In a recent study of California youth grades 6-12, researchers found over 30% of youth living in foster care identified as LGBTQ. While not widely researched, it is estimated that 20% of all youth in juvenile justice facilities are LGB. Additionally, LGBT Youth are 120% more likely to experience homelessness. These youth are particularly vulnerable youth are in dire need of increased protections, and the incoming Biden-Harris administration is in an excellent position to provide just that.

The Obama administration did some work to help LGBT youth, including issuing anti-bullying guidance through the Department of Education and a Dear Colleague letter containing legal guidelines that reaffirmed the rights of LGBT youth in schools. These advancements, at the time seemingly indicative of progress tirelessly pursued by the LGBTQ community, were quickly stripped away by the Trump administration.
Trump Administration’s Harmful Policies Affecting LGBT Youth

  • The U.S. Departments of Justice and Education revoked the Obama Administration’s guidance detailing school obligations to transgender students under Title IX of the Education Amendments of 197
  •  Housing and Urban Development (HUD), withdrew two notices impacting LGBT people: the first requirement for emergency shelters receiving HUD funding to post information about LGBTQ people’s rights to access shelter safely, and the second being critical data collection and implementation guidelines for a homelessness prevention initiative targeting LGBTQ youth.
  • Department of Health and Human Services (HHS) attempted to remove language protecting the rights of LGBTQ folks to access programs funded by HHS including child welfare services and openly announced protections would only be granted to types of discrimination already banned by federal statute. In 2019, at the time of this announcement, discrimination based on sexual orientation and gender identity were not yet statutorily protected. Shortly thereafter the Trump administration issued a waiver to the same effect to the state of South Carolina, prompting outrage from the House Ways and Means Committee for the “intentional” violation of a congressional mandate to act in the best interests of children. The combined result of these actions was that otherwise qualified families could be turned away-with little to no recourse- from adopting or fostering youth from federally funded welfare programs on the basis of the prospective parent(s)’ sexual or gender identity, leaving LGBT youth with even fewer options for loving, affirming homes. HHS rule overturning Obama-era protections against LGBT discrimination in healthcare. The rule would have allowed the HHS to adhere to biological definitions of sex meaning male or female, completely disregarding an earlier regulation that accounted for an individual’s gender identity. Fortunately, a federal judge blocked the ruling stating that the move directly opposed the SCOTUS decision in Bostock v. Clayton County.
  • Ed Dept. memo that Bostock ruling doesn’t apply to children or Title IX cases (though the memo does state that Bostock may be used to guide cases depending on circumstance)
  • HUD allowance for discrimination against transgender individuals and youth in single-sex accommodations for homeless individuals.

Today, the Biden-Harris administration has the opportunity to step-up and help protect LGBT youth, and so far it looks like they might do just that. On his first day in office, President Joe Biden issued a sweeping executive order protecting LGBTQ folks from discrimination in schools, housing, the workplace and healthcare. Though the order falls directly in line with the June 2020 SCOTUS ruling in Bostock v. Clayton County, backlash from conservative and religious groups alike have begun, with both groups claiming their rights – or those of women – are being erased or threatened by the choice to uphold LGBTQ rights. While promises to pass the hotly contested Equality Act within the first 100 days of his presidency have recently been rescinded due to difficulties with a newly democratic senate, the Biden administration remains openly optimistic that the act will be passed sooner rather than later, codifying protection from discrimination based on sexual orientation and gender identity into federal law in the areas of federally funded programs and public accommodations which are not covered under the most recent executive order.

The Human Rights Campaign has set forth a list of demands for the new administration, which includes calls to protect LGBTQ youth in foster care, create a comprehensive federal definition of bullying which would include sexual orientation and gender identity, and an end to the violent practice of conversion therapy. This is especially important for LGBT youth, considering that in 2020, of the 10% of LGBT youth that reported undergoing conversion therapy, roughly 78% of them reported their experiences took place before age 18. The practice has long been debunked as an effective method of “therapy” and instead carries an increased risk of suicide for those who have been subjected to it. Once more, this risk is amplified in youth. The passage of the Equality Act would address this as well as the neglect and harm experienced by LGBT youth in foster care, homeless shelters, and the criminal justice system. Only time can tell for sure whether or not Biden will honor the promises to push for total equality made on the campaign trail, but to those watching closely, this presidential term already seems promising.

ABA Resolution Seeks to Prevent Foster Kids Becoming Homeless

The ABA House of Delegates met last Monday, February 10, 2014, at the Midyear Meeting in Chicago, Illinois to debate and vote on a wide range of public policy issues.

One Resolution on the table, which was submitted by the Commission on Youth at Risk, “urges governments to enact and implement legislation and policies which prohibit youth from transitioning from foster care to a status of homelessness, or where a former foster youth will lack a permanent connection to a supportive adult.” This Resolution, Resolution 109A, was adopted.

The Resolution says governments and courts should provide support for housing assistance for children who turn 18 while in foster care and that dependency cases should not be dismissed until a Court finds that the child has (1) housing, (2) a permanent connection with at least one supportive adult, and for youths with disabilities, (3) a transition to adult systems that provide health care and other support.

The Resolution cited a report that followed over 700 children who had been in the foster care system in Illinois, Iowa, and Wisconsin. 36% of the former foster care children reported at least one instance of homelessness by the age of 26. The Resolution explained that “further action is needed to help former foster youth find safe and secure housing and avoid homelessness,” suggesting that Courts “simply forbid a child leaving foster care from becoming immediately homeless.”

In support of the second requirement (that the Court find the child has a permanent connection with at least one supportive adult), the Resolution explains that, “youth need stable and caring relationships with committed adults in order to transition smoothly into adulthood and avoid negative outcomes like poverty and unemployment.” In 2009, 80% of eighteen-year-olds who aged out of foster care through emancipation had no permanent family to turn to.

As it relates to the disabled youth in foster care, the Resolution argues that states “pay special attention to the transition needs of youth with disabilities because youth with disabilities are over-represented in the child welfare system and are at greater risk for poorer outcomes than their non-disabled system-involved peers.” Special transition planning requirements must be put in place because the successful transition of youth with disabilities requires accessing benefits, services, and supports in adult systems that operate by rules and eligibility criteria very different than the child serving systems.  Many of these services and supports have long waiting lists, are not entitlements, and require careful and early planning to ensure that the youth can access them upon discharge.  In addition, because many of these youth cannot rely on a parent or caregiver to help them navigate this complicated transition, clear requirements and procedures for transition planning for these youth is essential to their health and well-being.

homeless