The past year has focused needed attention on racial inequity. The death of George Floyd and many others have focused greater attention on racial inequality across this country. This inequity extends to child welfare. This HOT TOPIC calls for three immediate steps Congress can take this year: Reform the Multi-Ethnic Placement Act (MEPA); Add in greater flexibility to Title IV-E Kinship care eligibility and; Restore background check provisions that were narrowed in 2006.
MEPA was passed against a backdrop in the 1990s of rising caseloads with over 500,000 children in care. The promotion of adoptions became a charged issue due to the overrepresentation of Black children waiting to be adopted and how families are recruited in the adoption process. In 1994, the Multi-Ethnic Placement Act (PL 103-382—MEPA) sought to reduce the number of children in waiting to be adopted by prohibiting federally funded foster care and adoption agencies from delaying or denying placement decisions “solely” on the basis of race, color, or national origin for adoptive or foster parents and children. The 1994 law also allowed “permissible consideration,” which allowed an agency or entity to consider “the cultural, ethnic, or racial background of a child and the capacity of the prospective foster or adoptive parents to meet the needs of a child of such background as one of a number of factors used to determine the best interests of a child.” Another part of that act amended the state plan under Title IV-B to require diligent recruitment of diverse populations that reflected the community and children in foster care.
Less than two years later, in 1996, the law was amended again and made more restrictive by the Interethnic Placement Act. The law was changed by removing the word “solely” so that it now reads “denying a placement on the basis of race, color, nationality,” and it removed the language around “permissible efforts.” Unlike almost all other child welfare law that includes general loss of federal funds, specific fines can be levied based on this part of the law. Advocates for the 1996 law argue that race and color can never be considered. That has created problems.
A 2020 report by HHS (ASPE) found that in the Child and Family Services Review (CFSRs), thirty-four states’ diligent recruitment efforts received a CFSR rating of “area needing improvement.”
Kinship or relative care can be a critical tool in addressing disproportionality. African American and Hispanic children are more likely to be placed with relatives (32 percent and 48 percent, respectively) than are White children (27 percent). The 2008 Title IV-E kinship care option is limited by an action that Congress took in 2006. The 1997 Adoption and Safe Families Act (ASFA) mandated background checks on all prospective families, extended these background checks, and prohibited placements even to relative caregivers if they had been convicted of certain crimes. In enacting this requirement, Congress provided states the ability to individualize their own eligibility requirements in this area and craft standards that in no way compromised the principle that a child’s safety is paramount. This allowed “opt-out” flexibility that permitted states to craft their own background check requirements for some limited instances. Under ASFA, to use this option, it had to be requested by the governor or state legislature to ensure that rigorously reviewed protections for children are implemented. As of 2006, California, Colorado, Florida, Idaho, Massachusetts, Nebraska, New York, Ohio, and Oklahoma had taken this option. In 2006, this option was eliminated by Congress for no obvious reason.
In 2006, when CWLA opposed this change, the Children’s Law Center of Los Angeles gave several examples of why California opted into their own background check standards. One such example: “A teenage boy could not be placed with his aunt because many years earlier the aunt was arrested for driving under the influence of alcohol with a child in the car. There was no car accident, and no one was injured; nevertheless, the aunt pled guilty to and was convicted of felony child endangerment. Despite the fact that the aunt had lived an exemplary life ever since and the county social worker wanted to place the boy with the aunt, she could not because felony child endangerment is a disqualifying conviction. The teenager ended up in foster care.” In 2003 there were 671 exemptions from the federal background check limitations out of 30,000 in Los Angles’ foster care system that year.
The background check requirements, as changed in 2006, have limited appropriate relative placements. Some states have utilized TANF child-only grants to support these appropriate relative caregiver placements despite TANF’s more limited support, both financially and casework-wise. It is time to revisit this 2006 change that limited what had been agreed to under ASFA.
Tell Congress it’s time to begin to reverse policies of the past that have contributed to racial inequality within the child welfare system.