PEW COMMISSION ON CHILDREN IN FOSTER CARE
REPORT
“FOSTERING THE FUTURE: SAFETY, PERMANENCE AND
WELL-BEING
FOR CHILDREN IN FOSTER CARE”
PRELIMINARY IMPLICATIONS AND RECOMMENDATIONS
FOR
AMERICAN INDIAN CHILDREN AND TRIBAL
GOVERNMENTS
DEVELOPED BY:
THE NATIONAL INDIAN CHILD WELFARE ASSOCIATION
JUNE 24, 2004
Much has been made of the plight of children in this nation’s child welfare system, especially those in foster care. The Pew Charitable Trusts understands the frustration that many in Congress and elsewhere feel regarding the increasing numbers of children going into foster care each year and difficulty in helping many of them achieve permanency. To address this challenge, the Pew Charitable Trusts funded the establishment of a high level commission to review and make recommendations regarding improving the federal financing system for child welfare services and the role of court oversight. The nonpartisan Pew Commission on Foster Care was established and spent over a year intensively looking at these issues and developing recommendations in these areas. The report was officially released on May 18, 2004, and the Commission is actively engaged in discussing the report with members of Congress, state leaders, researchers, and other child welfare advocates. The Pew Commission is reaching out to government leaders to encourage serious consideration of their report and swift action to address these very important issues.
The specific focus of this briefing paper is a preliminary analysis of the Pew Commission report as it affects American Indian/Alaska Native (AI/AN) children and the tribal governments that serve them. The report recognizes the unique political status of AI/AN children and the need to provide direct funding to the tribal governments. This is an important step in helping address barriers to permanency for AI/AN children and follows support by the American Public Human Services Association, National Congress of American Indians, Child Welfare League of America, Indian Law Section of the Federal Bar Association and North American Council on Adoptable Children. In addition, the Office of Inspector General, in a report issued in 1994, agreed that providing tribal governments with direct funding from Title IV-E was the surest way for AI/AN children to receive the Title IV-E programs benefits. Besides numerous other precedents for direct funding of tribal governments from federal programs, the Bush administration has also included direct funding for tribal governments in their proposal for a Title IV-E flexible funding proposal.
The report also indicates support for using federal resources to assist tribal capacity building in child welfare. As tribal governments are currently not eligible to receive direct funding from a number of key child welfare funding sources (i.e. Title XX and Medicaid), and the sources they do receive funding from often provide very limited allocations (Title IV-B and Indian Child Welfare Act), it is critical that more resources become available to help build capacity. Technical assistance for programs, training for caseworkers and court personnel, data collection development, evaluation, and research are areas of focus in the report where tribal governments have seen few benefits from existing funding streams or federal efforts.
In the next section, we will highlight many of the key recommendations of the Pew Commission and examine the potential implications for AI/AN children and the tribal governments that serve them. We have also made some suggestions for strategies that will improve the Pew Commission’s recommendations’ effectiveness with AI/AN children when possible. While the Pew Commission did benefit from the participation of the Honorable William Thorne, a state court of appeals judge with many years of experience as a tribal juvenile court judge and comments provided by the National Indian Child Welfare Association, it will be important for the Pew Commission and policymakers to have more intensive discussions with tribal governments to inform any decisions about future policy development that flow from this report.
1.
Because every child needs a safe, permanent family, the Commission recommends:
·
Providing federal adoption assistance to all
children adopted from foster care;
·
Providing federal guardianship assistance to all
children who leave foster care to live with a permanent, legal guardian.
AI/AN children and their tribal governments do not have direct access to the Title IV-E adoption assistance program. To our knowledge, only two tribes in the United States have been able to access this program through an agreement with a state. In addition, tribal governments, many who have been able to increase the number of their children adopted from foster care, do not receive any financial adoption incentives. Providing tribal governments with direct access to Title IV-E, such as provided under S. 331 and H.R. 443, is the only sure way to guarantee that all AI/AN children have access to federal subsidies for adoption.
As noted in the report, adoption is not a viable option for all children. Many tribes have difficulty supporting conventional adoption processes, especially termination of parental rights. While customary adoption practices are finding more support, both in the federal government and in tribal communities, there are needs for additional permanency options that are financially supported. Subsidized guardianship is a much needed permanency option and supported by the vast majority of tribes.
2.
Because every child needs to be protected from abuse and neglect, the
Commission recommends that the federal government join states in paying for
foster care for every child who needs this protection:
·
Regardless of family income;
·
Including children who are members of Indian tribes;
and
·
Including children who live in the U.S. territories.
This recommendation provides support for direct funding from the Title IV-E Foster Care program to tribal governments. As indicated earlier, this is in line with current studies and several leading organizations’ thinking that the surest way for AI/AN children to benefit from this program is direct funding to tribal governments. Federal legislation, such as S. 331 and H.R. 443, were developed in response to this need and provide flexibility to meet the unique needs of AI/AN children and tribal governments, while maintaining tribal accountability for federal requirements.
De-linking income eligibility from Title IV-E Foster Care would also likely be supported by tribal governments, but using the Pew Commission strategy for determining future funding allocations for states would be problematic for tribes who have not had the benefit of operating Title IV-E foster care services. For this reason, it would be important that all tribal governments be given an extended period to operate the Title IV-E program to determine accurate caseload and funding data (3-5 years), regardless of when they come into the program. The Pew Commission provides three options for de-linking income eligibility from the Title IV-E Foster Care program, all of which rely on historic funding and lowering federal reimbursement for services over time. Tribal governments, many which have high rates of poverty and little general revenue, need de-linking strategies that are sensitive to these economic realities.
3. Because every child needs a permanent family, the Commission recommends allowing states to “reinvest” federal dollars that would have been expended on foster care into other child welfare services if they safely reduce foster care use. States could use these funds for any service to keep children out of foster care or to leave foster care safely.
As a matter of equity and fairness, tribal governments should also be allowed to reinvest their federal dollars. Tribes also need financial incentives and flexibility like states. This recommendation asks for the convening of a panel of experts to determine national standards by which expenditure baselines would be calculated. If this approach is to work with tribal governments, tribal representation is needed to look at the unique circumstances that surround AI/AN children.
4.
Children need skillful help to safely return home to their families, join a new
family, or avoid entering foster care in the first place. For caseworkers to
provide this help, states need flexible, sufficient, and reliable funding from
the federal government. The Commission recommends an indexed Safe Children,
Strong Families grant that combines federal funding for Title IV-B, Title IV-E
administration, and Title IV-E training into a flexible source of funding. The
Commission recommends that additional funding be provided in the first year and
that the grant be indexed in future years.
·
Each state’s grant amount would be based on its
historical spending for Title IV-B and Title IV-E administration and training.
·
In addition, the total base funding level would be
enhanced by $200 million in the first year of implementation.
·
In subsequent years, each state’s allocation would
grow by 2% plus the inflation rate as measured by the Consumer Price Index.
·
States would be required to match the federal grant
funds, just as they currently are required to match federal IV-B and IV-E
dollars.
The Pew Commission recommended that tribal governments be given direct funding from this proposed funding source but did not identify the funding allocation formula for tribal governments. Using the state allocation formula relies on historic funding and utilization of the Title IV-E and IV-B programs. This would not work for many tribes who have never had the opportunity to operate either Title IV-E or Title IV-B. A better solution that would hold state allocations harmless and still provide tribal governments with needed funding is to add $60 million annually to this proposal to cover tribal allocations. We also emphasize that all federally-recognized tribal governments must be given access to this new program. The experience of only funding a small number of tribes or providing very small grants, such as under Title IV-B, has netted few benefits for AI/AN children.
The recommendations for adjusting allocations by 2% plus inflation are good. We would recommend that tribal match rates use the rates required under Title IV-B as the average, given tribal economic conditions.
5.
To guarantee that public funds are used effectively to meet the needs of
children who have been abused or neglected and to increase public
accountability, the Commission recommends improvements to the federal Child and
Family Services Reviews (CFSRs).
·
The CFSRs should include more and better measures of
child well-being, use longitudinal data to yield more accurate assessments of
performance over time, and the U.S. Department of Health and Human Services
(HHS) should direct that a portion of any penalties resulting from the review
process be reinvested into a state’s Program Improvement Plan.
·
The federal government should continue to help
states build their accountability systems by maintaining the federal match for
State Automated Child Welfare Information Systems (SACWIS).
·
Congress should direct the National Academy of
Sciences, through its Board on Children, Youth, and Families, to convene a
foster care expert panel to recommend the best outcomes and measures to use in
data collection.
Data on AI/AN children is severely lacking overall, and the data that does exist is often unreliable. State governments have just recently, since the advent of the CFSR, been asked to collect and provide data on their efforts to comply with the Indian Child Welfare Act, and this data collection effort is relatively minimal. Tribal programs in most cases are not collecting child welfare data except what is minimally required through Title IV-B and the Bureau of Indian Affairs. While more tribes are interested in developing and operating a fully functioning data collection system, they are not eligible for federal subsidy to do this under Title IV-E. The result is that the federal government, both the Congress and the Department of Health and Human Services, have little hard data to inform their policy making, even though the data that does exist paints a grim picture. Bringing tribes into Title IV-E would boost data collection efforts by tribal governments, and keeping the federal investment in child welfare information systems is a good investment.
Changes to the CFSR process and development of best outcomes and measures to use in data collection should not be done without tribal involvement. As we have witnessed for decades, mainstream standards in child welfare have done little to really impact child abuse and neglect in tribal communities. Where meaningful change has occurred to reduce foster care and gain permanency for AI/AN children, tribal communities have incorporated much more of their cultural values. While many of the outcomes being measured by the CFSR would apply to tribal efforts, there are some that are not funded or measured through this review process but have real importance in understanding what does and does not work. We are suggesting that any changes to the CFSR be done with tribal government involvement and that a separate expert panel be created to develop the best outcomes and measures to use in data collection.
6.
To promote innovation and constant exploration of the best ways to help
children who have been abused and neglected, the Commission recommends that the
federal government:
·
Expand and improve its successful child welfare
waiver program;
·
Continue to reserve funds for research, evaluation,
and sharing of best practices; and
·
Provide incentives to states that make workforce
improvements and increase all forms of safe permanence for children in foster
care.
We agree with the Pew Commission that all these recommendations are important investments. However, we would note that tribal governments have not shared in the resources and benefits from these efforts for the most part. The child welfare waiver program has only included a few projects that had any tribal involvement, and sometimes this involvement was secured only after the project scope and design had been established. Federal funding of research, evaluation, and technical assistance in tribal child welfare is also lagging behind. Set-asides in Title IV-B for research and evaluation have resulted in just one evaluation project that we are aware of involving tribal programming, and this only looked at the 66 tribes that were eligible for Title IV-B, Subpart 2. These gaps demonstrate some of the primary reasons there has not been greater policy and practice development in tribal child welfare. Much of the development that has occurred at the tribal community level has come with little federal support. Creating meaningful opportunities for tribes in research, evaluation, and technical assistance is timely and a worthwhile investment for AI/AN children.
We also support the worker incentives proposal too. Tribal governments, like state governments, struggle to attract qualified individuals who can work in demanding child welfare environments. Most tribal programs have the added challenge of not having federal funding to support outreach and training/education of workers. In most cases, the choice for tribal programs is between training and services for families, since no entitlement based training funding is available. Nonetheless, tribal governments have been able to attract very well educated and qualified staff, in many places relying on relationships they have with tribal members and the dedication these members have to helping their communities. A solid worker incentive program could look at certification of existing workers and training and support for those who want to continue their education or skill development.
There are a number recommendations that the
Pew Commission made with regard to the role of courts in helping children
achieve permanency, most of which we are in full agreement with. However, while the financing section clearly
identifies the need for tribal programs to be adequately funded, this section
does not discuss the role or needs of tribal courts. We are not sure why this was not discussed in the report but
emphasize how important tribal courts are in this respect for AI/AN children. While Title IV-B has supported court
improvement projects in several states, not one tribal court has benefited from
these efforts to our understanding, and no tribal courts have been funded to
conduct their own improvement project.
This impedes practice development in tribal juvenile courts and
continues the silent ignoring of tribal courts overall. While a more thorough analysis of this
section is needed at this time, we feel strongly that tribal courts must be given
equitable treatment and resources if they are to keep up with tribal
programming and federal initiatives.
The Pew Commission report is a very positive
and welcome entry into the discussion of how we can improve child welfare
services and permanency for AI/AN children.
By identifying the need for tribal governments to be directly funded,
the Pew Commission has signaled their understanding of the critical role tribal
governments play in this work.
Centuries of trauma have created many of the risk factors that
contribute to child abuse and neglect in Indian Country, and now is the time to
heal the wounds with the expertise and skills that only tribal communities can
offer. More discussion is needed to
flush out the details of these recommendations for AI/AN, but a starting place
is ensuring that tribal governments are at the table to inform and consult with
policymakers as they contemplate future policy development.
For more information on this issue, please
contact David Simmons, Director of Policy and Research for the National Indian
Child Welfare Association at desimmons@nicwa.org
or call (503) 222-4044, ext. 119.