March 22, 2007
The Child Welfare League of America (CWLA), representing public and private nonprofit, child-serving member agencies across the country, is pleased to submit testimony to the Senate Finance Committee this morning. The issues of healthcare and child welfare services for Native Americans deserve enormous attention. As Congress works on the reauthorization of State Children’s Health Insurance Program (SCHIP) and other vital health programs such as Medicaid, CWLA hopes that Congress ensures that tribal populations are afforded access to adequate health programs. For the purpose of this hearing today, CWLA aims to underscore the much needed expansion of vital child welfare services to tribal child welfare agencies, in particular, the Title IV-E program of the Social Security Act and subsidized guardianship for relative caregivers. Moreover, we look forward to working with the Committee on this and related issues in the near future.
National data and case studies validate the need to assess, examine, and eliminate factors that contribute to the disproportionate representation of children of color and tribal communities in the child welfare system. This disproportionate representation can be related to the disparities in the services they receive. Although there has been some congressional attention to these issues as they relate to tribal communities, there is still a lack of access to federal funding and the services they provide.
In 1978, Congress passed the Indian Child Welfare Act (ICWA, P.L. 95-608) to preserve cultural and family ties among Native American children and families and to ensure respect for tribal authority in decisions concerning the placement of Indian children in out-of-home care.
ICWA requires that states identify Indian children and notify the child’s parents and tribe of their rights to intervene in a custody proceeding. ICWA also requires certain procedures regarding the use of tribal courts, child custody proceedings, tribal intervention standards, and placement preferences. The act establishes a two-part requirement for states before they remove an Indian child, which involves efforts to prevent the breakup of the Indian family, and standards for court findings.
U.S. Government Accountability Office Recommendations
- In 2005, Congress directed the U.S. Government Accountability Office (GAO) to study the impact of ICWA. In its recommendations to the U.S. Department of Health and Human Services (HHS), GAO proposed that HHS review information made available by states through their Child and Family Service Reviews (CFSRs). This review found that 10 of 51 state reports did not mention ICWA implementation. GAO also proposed that states be required to include in their annual progress and services reports any significant ICWA issues not addressed in the Program Improvement Plans (PIPs) that resulted from the CFSRs 1.
One of the key findings of the GAO study was the problem of measuring ICWA compliance and assisting improved compliance when there was no explicitly named oversight agency. In response, the Children’s Bureau indicated they did not believe they were the appropriate agency to carry out additional technical assistance for states on ICWA implementation.
Although ICWA established procedures and protections for placing Indian children in out-of-home care, adequate funding to provide these services did not follow. Comments submitted to GAO during its study indicated that, at times, the lack of resources for tribes hindered placements and that states relied upon the tribes for assistance in meeting ICWA’s requirements 2.
Access to Title IV-E Funds
Most federal funds that could address the needs of children from tribes that come into contact with the child welfare system are not provided directly to tribal governments. Tribes receive a limited set-aside of funds (which are authorized by other committees) from Title IV-B Part 1 and 2, Child Welfare Services, and the Promoting Safe and Stable Families program respectively. Under Part 1, over half of the tribal grants are less than $10,000, and under Part 2, most of the tribal grants are under $40,000. Under the Child Abuse Prevention and Treatment Act (CAPTA), tribes compete for a very small portion of funding with organizations serving migrant populations. Tribes are not eligible to receive direct funding from the other grant programs and rather are forced to compete with states. In addition, tribes benefit very little from the Children’s Trust Funds to prevent child abuse and neglect that are supported under the law.
Overall, tribes receive very few funds for child abuse and neglect prevention activities. Tribes receive no direct funding from the Social Services Block Grant (SSBG) and do not have the option of receiving federal Title IV-E Foster Care and Adoption Assistance funds. As a result, most Native American children placed in out-of-home and adoptive settings through tribal courts are not eligible for federal foster care maintenance or adoption assistance payments. In a few instances, tribes have been able to negotiate agreements with states that allow them to access Title IV-E funds, but these agreements are not mandatory and are available to less than 55% of federally recognized tribes.
In the last several congresses CWLA has supported the following legislative initiative: Senator Gordon Smith (R-OR) introduced legislation, the Indian and Alaska Native Foster Care and Adoption Services Amendments, which would allow tribal governments to directly apply for Title IV-E funds. In the House of Representatives, Representatives Jim McDermott (D-WA) and David Camp introduced bills that included similar provisions. It is anticipated that comparable legislation will again be introduced in the new 110th Congress.
This legislation would allow tribes to apply directly to HHS for Title IV-E funding for eligible children in foster care and adoptive homes. A Tribal government applying to draw down funds directly would have to meet most of the same requirements and standards that states do. Similar to current state requirements, a tribe would have to submit a plan indicating its area of service, which may not coincide with such geographic lines as city, county, or state borders. A tribe, however, could receive a different reimbursement rate, since the income in its service area may be lower than the particular state in which the tribal land is located.
The Importance of Kinship Care and Guardianship
- Kinship care is a situation when an adult family member, such as a grandparent, aunt, uncle, or other relative, provides a home for a child who cannot live with his or her parents. For tribal communities kinship care represents an important option for keeping Native American children with their family and/or tribe. CWLA has been working to expand kinship placements for children in child welfare to keep families united during a crisis, and provide emotional and cultural benefits to children who cannot return safely to their parents, or for whom adoption is not an option 3. Given these benefits and many others documented by research, it is important that kinship care continue. It is also important to remember that, due to the financial burden, many relatives cannot provide kinship care without relying heavily on assistance.
Subsidized guardianships are relatively new. Massachusetts established the first program in 1983. By 2004, 35 states and the District of Columbia had subsidized guardianship programs. Congress enacted the Adoption and Safe Families Act (ASFA) in 1997, recognizing a child’s placement with a relative or a legal guardian as a permanency option for children in foster care. Currently, the federal government does not make funds available on a continuing basis to support those placements.
States use many approaches to fund kinship arrangements and subsidized guardianship placements. A limited number of states can use Title IV-E Foster Care funds through a waiver from the U.S. Department of Health and Human Services. Other states rely on other federal sources, including Temporary Assistance for Needy Families (TANF) and the Social Services Block Grant (SSBG). Both TANF and SSBG, however, are used to fund other vital human services and are already under budget pressure.
- Both the Senate and the House introduced bipartisan legislation affirming the importance of non-parental caregivers in the lives of abused and neglected children. Representative Danny Davis (D-IL) sponsored the Guardian Assistance Promotion and Kinship Support Act (H.R. 3380) in the House in the 109th Congress, and Senators Hillary Rodham Clinton (D-NY), Thad Cochran (R-MS) and Olympia Snowe (R-ME) re-introduced in Kinship Caregiver Support Act (S.661) this Congress. These bills would help the millions of children being raised by relatives and other caregivers because their parents are not able to care for them. Both bills would allow states to use federal Title IV-E foster care funds for subsidized guardianship assistance payments. These bills would also establish kinship navigator programs to help grandparents and other relatives obtain information and referral services. The legislation also requires states to notify relatives within 60 days of a child’s removal from custody and entrance into foster care 4. Passing kinship/guardian legislation is relevant to the purpose of ICWA-placing Native American children with their extended family and near their home and/or tribe.
Policy and Budget Recommendations
Provide greater support and implementation of ICWA. Direct HHS to address concerns raised in the Government Accountability Office study on Indian Child Welfare Act (ICWA) implementation and by tribal representatives and members of the Child and Family Services Review Work Group regarding the Children’s Bureau role in improving ICWA implementation with states. Support legislative changes to ICWA that are supported by Indian Country to improve and clarify implementation of ICWA.
Extend Title IV-E funds to tribal governments. Pass legislation to provide Native American tribes with direct access to federal funding for foster care and adoption assistance through the Title IV-E program.
Expand Title IV-E funds to kinship care. Support grandparents and other relatives caring for abused and neglected children by sponsoring and passing the Kinship Caregiver Support Act in the Senate, and the Guardianship Assistance Promotion and Kinship Support Act in the House. These bills will assist millions of children being raised by relatives and other non-relative legal guardians because their parents cannot care for them.
CWLA appreciates the opportunity to offer testimony to the committee as a means to highlight the issue of granting Native American tribes access to Title IV-E funding, and supporting legislation to aid in keeping Native American children with their family and/or tribe. We are elated that the Finance Committee, under the leadership of Chairman Baucus and Ranking Member, Senator Grassley has held this hearing, clearly demonstrating a commitment to child welfare by the committee. This first step gives CWLA hope that this country will furnish the tribal child welfare community with the resources it needs and deserves to provide efficient and culturally competent services to Native American children and families.
- Government Accountability Office. (2005). Indian Child Welfare Act: Existing information on implementation issues could be used to target guidance and assistance to states. (GAO-05-290). Washington DC: Author.
- U.S. Children’s Bureau. (2000). Report to congress on kinship foster care.Available online. Washington, DC: U.S. Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth, and Families.
- Access a complete analysis and summary of the legislation.