38 Years After ICWA, Feds to Collect Data on Native American Foster Youth

The Administration for Children and Families, a division of the Department of Health and Human Services, plans for the first time to collect national data and information about Native American children involved in state and local child welfare systems.

ACF issued a notice of proposed rule making yesterday that describes the information it will require states to annually produce about American Indian and Alaskan Native children through the Adoption and Foster Care Analysis and Reporting System (AFCARS).

The plan comes nearly four decades after the passage of the Indian Child Welfare Act (ICWA), legislation that made it a priority to keep children removed from Native American families with other tribal families.

Administration on Children, Youth and Families Commissioner Rafael López noted the absence of data after ICWA in a recent interview with The Chronicle of Social Change.

“Given the history we’ve had with the removal of Indian children from Indian country, it is unacceptable,” said López, who leads the division of ACF that manages AFCARS data collection. “Not being able to articulate very clearly what’s happening to all children, let alone American Indian and Alaskan Native children, is unacceptable.”

This is the second time in as many years that ACF has promulgated additional state requirements to AFCARS reporting. In February of 2015, ACF produced rules for states on the collection of information about children entering foster care who had previously been placed in an adoption or guardianship.

That rule became necessary after the passage of the The Preventing Sex Trafficking and Strengthening Families Act, which mandated new information about the success of adoptions and guardianships of foster youths.

It appears that HHS had it in mind to initiate new rules on Native American youth in 2015. From yesterday’s notice:

At the time of that rule, HHS had determined that it did not have jurisdiction to collect information on Native American youth through the enforcement authority regarding ICWA and, therefore, was not able to make the requested changes or additions to the AFCARS data elements regarding ICWA.

However, in the time since publication of the February 2015 AFCARS NPRM…legal counsel re-examined the issue and determined it is within ACF’s existing authority to collect state-level ICWA-related data on American Indian and Alaska Native (AI/AN) children in child welfare systems…

The new rule will require states to document for ACF the removals of Native American children from their families, and defend the ensuing actions. The ICWA established a different standard for the removal of children into foster care, because, as the law states, Native American families faced “vastly greater risks of involuntary separation than are typical of our society as a whole.”

ACF intends to determine “the extent to which Indian children are removed in a manner that conforms to ICWA’s statutory standard.”

States will also have to document whether the foster care placement of Native American youth meets the placement preferences established in ICWA, set to ensure that youth are kept primarily near parents and with other members of the tribe. They will also have to report on the voluntary and involuntary terminations of parental rights in cases involving Native American parents.

Among the other data points proposed by ACF in yesterday’s proposed rule:

  • Instances where the state title IV-E agency inquired about pertinent information on a child’s status as an “Indian child” under ICWA, and the amount of times that determination was made
  • Transfers of cases to tribal courts
  • Legal notifications made to families and tribes
  • Whether and when the state title IV-E agency began to make active efforts to prevent the breakup of the Indian family

Both yesterday’s notice and the one from 2015 invited public commentary on the rules. ACF plans to begin collecting input on this rule, and then produce one final new rule governing the inclusion of Native American youth and formerly adopted foster youth into AFCARS.

ACF estimates the total cost for the two new avenues of collection to be about $39 million, which will be shared between the states and the federal government.

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John Kelly, Editor in Chief, The Chronicle of Social Change
About John Kelly, Editor in Chief, The Chronicle of Social Change 1213 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change. Reach him at jkelly@chronicleofsocialchange.org.