Child welfare system biased, experts claim
Despite federal and state laws giving preference to Native American families and tribes in Indian child welfare cases, it took Tracy Fuentes a year to win custody of her nephew after overcoming obstacles she believes were placed in her way by a culturally biased system.
“I did everything I was supposed to do,” said Fuentes, 39, a single mother of Cree Indian and Hispanic heritage. She is resentful of Washington’s Children’s Administration, which she believes was reluctant to move her nephew out of the affluent home in which he was placed two weeks after he was born.
“They knew he was an Indian child, and they kept him in that home,” Fuentes said. “They allowed the foster family to involve themselves in the case.”
The Spokane Valley couple, intent on adopting the boy, admits they hired a private investigator to follow Fuentes on her first independent visit with her sister’s son. Fuentes said it was just the first of several attempts by the family to discredit her.
When a court finally granted Fuentes custody of her nephew, she said, the foster father offered to pay her to renounce her claim to the boy. The foster father denies the allegation.
Toni Lodge, a member of the Indian advisory panel that heard Fuentes’ case, said it is an example of the lack of compliance with the federal Indian Child Welfare Act and the lack of dignity with which Indian children are treated in the child welfare system.
“If the act was designed to prevent the breakup of Indian homes and preserve Indian culture,” Lodge said, “we have gone backward.”
Lodge, director of NATIVE Project/NATIVE Health of Spokane, estimated there are more than 660 Indian children currently placed out of their homes in Spokane County, where about 12,000 people claim Native American ancestry.
A spokeswoman for the Washington Department of Social and Health Services said she could not comment on the Fuentes case directly but said that the Children’s Administration makes every effort to match minority children with minority homes when possible.
“Our first priority is to work with the tribes to place children with their relatives when that can be safely accomplished,” said Kathy Spears, DSHS media relations manager.
A systemic problem
Though perhaps more contentious than most, the Fuentes case in many ways exemplifies a national child welfare system in which Native and African American children are disproportionately represented.
Although children of color comprise 42 percent of the nation’s youth, nearly 60 percent of children in foster care are from minority families, according to an analysis prepared for the Casey Foundation and the Center for the Study of Social Policy, two organizations that advocate for children and families. Yet, the National Incidence Studies of Child Abuse and Neglect conducted by the federal government in 1980, 1986 and 1993 found that children of color are not abused at higher rates than white children. In fact, after controlling for such factors as income, black communities actually had lower rates of child maltreatment.
Poverty, substance abuse, family structure, generational trauma are all reasons for children entering the system. But even taking into consideration disproportionate poverty among minorities, for example, white children by their sheer numbers should still be more represented in the child welfare system, said Ralph Bayard, senior director of the office of diversity for Casey Family Programs.
The Casey Foundation analysis identified race as a primary factor in decisions made at each step in the child welfare system: reporting, investigating, substantiation, placement and exit from care.
Not only are the numbers of Native and African American children in foster homes disproportionate to their numbers in society, but there also is a disparity in how they are treated while they are in foster care, Bayard said.
According to the Child Welfare League of America, children of color in foster care have fewer visits with their biological families, less contact with caseworkers and fewer services overall.
Furthermore, the Casey study found that white children are four times more likely than African American children to be reunited with their families, even taking into consideration such factors as the age of the child entering the system, parental job skills or parental substance abuse.
Many sociologists, lawmakers and child welfare experts believe the disparity is the result of institutionalized racial bias.
“It’s no coincidence that the community of color, particularly African Americans and Native Americans, are overrepresented,” said Raymond Reyes, associate vice president for diversity at Gonzaga University. “It’s symptomatic of the historical legacy of racism in this country.”
Spears, of DSHS, said, “Unfortunately, all systems still retain a level of cultural bias as it relates to Native American cultural issues,” but that bias exists because of flawed child-welfare research. Such data has “screened out information on Native populations due to their small representation in the general population, regardless of their overrepresentation in the child welfare system,” she said, making it difficult for agencies to understand and address the particular needs of Native American children.
Tandem bills in the Washington state House and Senate this session would direct the Department of Social and Health Services to find out why minority children don’t fare as well in the system and to come up with a plan to fix the problem.
Also, DSHS is required under terms of a 1998 class action to make broad child welfare reforms that include reducing the overrepresentation of minority children in the welfare system.
A continuing legacy
Perhaps no group has been more affected by U.S. child welfare policies than American Indians.
U.S. and Canadian policies of forcing Indian children into boarding schools as a means of assimilation in the 19th and 20th centuries severed ties to families, tribal culture and languages. U.S. tribal termination polices in the 1960s and 1970s further eroded these connections by forcing indigenous populations off reservations and into urban areas.
Studies conducted between 1969 and 1974 found that 25 percent to 35 percent of Indian children had been taken from their families and placed in non-Indian foster care or adoption, according to the National Conference of State Legislatures.
In very few cases were these children removed from their homes because of physical abuse, but rather on the grounds of neglect or social deprivation as perceived by culturally ignorant social workers and courts, according to the Child Welfare League.
Many American Indians and their advocates consider today’s child welfare policies a continuation of this “cultural genocide.”
In 1978, Congress passed the Indian Child Welfare Act, granting jurisdiction to the tribes, as well as establishing standards for removing children from their homes and guidelines for placing them in foster care.
The law was designed to keep Indian children in Indian homes when possible. But a nationwide dearth of such homes compared with the number of Native children in the system, coupled with a lack of awareness and training by social service agencies, has resulted in inconsistent compliance.
The state receives federal funding to place Indian children, but some tribes have their own placing agencies and receive that funding directly. The Spokane Tribe is among the largest providers of Indian foster homes in Spokane County.
The Kalispel Tribe is currently seeking a licenser and recruiter to develop its own placing agency, according to tribal spokeswoman Afton Burnham-Johnson.
Washington state works directly with the tribes to place Indian children, Spears said. In addition, the Children’s Administration meets quarterly with the Indian Policy Advisory Committee, a panel of delegates from each of the 29 federally recognized tribes in Washington and five urban Indian organizations, including the NATIVE Project and the American Indian Community Center in Spokane.
A question of heritage
Tracy Fuentes’ nephew, Lorenzo, was born in January 2004 to Fuentes’ drug-addicted sister. With both his biological parents incarcerated, the state placed the 2-week-old child in the home of a Spokane Valley couple.
Court records show that DSHS attempted for several months to contact an uncle in Michigan, but the uncle appeared unwilling to take his nephew into his home. A year after the boy was born, there was no indication the department tried to contact any other relative.
Lodge, a member of the Local Indian Child Welfare Advisory Committee, a body established by federal law to advise on such cases, said the state has the responsibility to identify family members and should have been more aggressive in locating a relative willing to take Lorenzo.
Fuentes, a divorced mother of three living in Des Moines, Wash., believed her brother was taking the child. When that proved untrue, she requested permanent placement of her nephew.
“She should have been identified within 30 days of placement,” Lodge said, and Lorenzo should have been in an Indian home within 180 days.
According to court records, caseworker Addie Merrill set up a plan for Fuentes to commute to Spokane and start establishing a relationship with Lorenzo. Merrill stated that Fuentes “is also insistent upon (Lorenzo’s) placement with family and involvement in his Indian culture.”
Though neither Lorenzo nor his aunt is enrolled in a tribe, Fuentes was able to document their Cree ancestry before the Local Indian Child Welfare Advisory Committee. Fuentes said her grandfather, who lived in Canada, did not enroll her mother for fear she would be taken away to boarding school.
On the other hand, the foster mother told the court that she was an enrolled Cherokee of California, a nonprofit organization that is not a federally recognized tribe.
On April 1, 2005, at the foster parents’ request, Merrill asked child psychologist Carol Thomas to assess whether moving Lorenzo, who had been born addicted to heroin and was in fragile health, would be too traumatic for him. About a week later Thomas reported emphatically that it would be.
“They had the court believing that if he left their home, he could go into such a shock it might even lead to his death,” Fuentes said of the foster parents.
On April 20, 2005, the Local Indian Child Welfare Advisory Committee determined that Lorenzo was Indian. Despite Thomas’ report, the panel recommended he be placed with his aunt.
For the next seven months, Fuentes’ visits with Lorenzo continued amid conflicting psychological evaluations of Lorenzo and his relationships with his aunt and foster parents.
Fuentes said the foster mother followed her during at least one independent visit with Lorenzo and on another occasion the parents hired a private investigator to follow her.
The foster family acknowledged that they hired an investigator, but they declined further comment, citing confidentiality agreements with the Children’s Administration.
On Nov. 28, 2005, Fuentes filed a complaint with the Office of the Family and Children’s Ombudsman against the Division of Foster Care Licensing. She said she had been trying since January to gain custody of Lorenzo without success despite passing several background checks and a home study. She also complained of the foster family’s interference in violation of her civil rights and the rules for state licensed foster care.
In December, Juvenile Court Judge Ellen Kalama Clark granted Fuentes custody of Lorenzo and ordered a six-week transition into her home.
In a Jan 11, 2006, letter, ombudsman Keith Talbot denied Fuentes’ November complaint, saying, “We have not been able to confirm that the agency act or omission about which you are complaining is a clear violation of law, policy, nor clearly inappropriate or unreasonable under the circumstances.”
After Clark’s ruling, Fuentes said, the foster father asked for a private meeting with her. Citing his wife’s attachment to Lorenzo, Fuentes said, he offered her $30,000 up front and $700 a month for the rest of her life to give up her claim to Lorenzo.
The foster parents, who are currently pursuing the adoption of another foster child, deny offering Fuentes money.
“There are two ways to look at the Indian Child Welfare Act, and it’s not always in the best interest of the child,” the foster father said.
Lorenzo, now 3 years old, is thriving, said Fuentes, who has moved to Spokane, where she has relatives. The boy’s occupational therapy sessions are less frequent as his development improves. He also is learning Native dance and drumming.
“He belongs with his family and in our culture,” said Fuentes. “He is learning who he is.”