Andrea Martin has posted “Beyond Brackeen: Active Efforts Toward Antiracist Child Welfare Policy,” forthcoming in the Yale Law and Policy Journal, on SSRN. Here is the abstract:

Due to structural racism, legal protections afforded to families of children in the foster care system have been significantly eroded and continue to be challenged. As a result, families of color, who are disproportionately represented in the foster care system, do not receive the support needed to maintain or regain custody of their children and preserve their families.

The latest attempt to dismantle child welfare protections for a historically marginalized group was a prolonged attack on the Indian Child Welfare Act. In Haaland v. Brackeen, Indian adversaries reached the pinnacle of their incessant attack on the law’s heightened requirements to protect Indian children, families, and tribes. This Article shows that federal child welfare legislation once provided similar safeguards for non-Indian children, but those protections were eroded based on the racist ideology that many children in foster care would fare better if adopted by white families.

In 1978, Congress passed the Indian Child Welfare Act, requiring “active efforts” toward family preservation for Indian children and their families. Two years later, Congress passed similar legislation for non-Indian children, mandating the use of “reasonable efforts” toward enabling families to remain together. Although varying standards were used, both required high levels of involvement by social agencies in providing necessary resources to maintain families. This alignment and focus on family preservation significantly benefited groups and individuals subjected to systemic issues that intersect with the child welfare system including racism, poverty, and homelessness.

However, after twenty years, child welfare protections for non-Indian children were substantially reduced with the passage of the Adoption and Safe Families Act in 1997. Premised on racist assumptions that the disproportionately represented Black and brown parents of thousands of children in foster care were inherently unfit parents, this legislation reduced “reasonable efforts” to a negligible standard. Many families in the child welfare system no longer receive the level of services required to prevent unnecessary removals of their children or to regain custody of their children. This substantially affects African American children who are overrepresented in foster care.

On the other hand, child welfare protections for Indian children and their families remained constant for 45 years. Nevertheless, White foster families seeking to adopt Indian children ignored past discrimination against American Indian families, failed to acknowledge the importance of cultural preservation, and engaged in a concerted effort to dismantle the Indian Child Welfare Act. However, by accentuating the Act’s critical family preservation standards, its opponents fortuitously offered insight into how federal child welfare policies should be realigned to protect all children against unwarranted removals from their homes.

Regardless of the outcome of Brackeen, this Article urges Congress to bolster the level of remedial services offered to all families by requiring “active efforts” to prevent the removal of children from their homes and assist in family reunification. Employing a standard of “active efforts” would reestablish consistency in federal child welfare legislation, better serve families in foster care, and improve outcomes for all children. This standard comports with the new and developing American Law Institute’s Restatement of the Law, Children and the Law, which is “built on the understanding that the state’s goal is to assist parents” in providing adequate care for their children, “not to remove children from their homes if other assistance suffices.”