‘The first step’: Advocates celebrate Minnesota’s groundbreaking child welfare law

This story is being co-published with The Imprint, a national nonprofit news outlet covering child welfare and youth justice.

At a ceremonial signing today in the governor’s chambers, Minnesota child welfare advocates, lawmakers and officials heralded passage of a new law that better protects families disproportionately represented in the foster care system.

“This is the way governments should work,” said Lt. Gov. Peggy Flanagan, a citizen of the White Earth Nation. “It’s not just about one leader — it takes a village,” she added, giving a nod to the Black and Latino leaders among the several dozen assembled. “And if you look around, this is the village.”

The Minnesota African American Family Preservation and Child Welfare Disproportionately Act — which will take effect in Ramsey and Hennepin counties in January and expand statewide two years later — represents a novel approach to child welfare services.

Under its terms, caseworkers must deploy “active efforts” to prevent family separation for all children who end up in foster care at disproportionate rates, due to their race, culture, ethnicity, disability, or low-income status. That is estimated to be the vast majority of kids in the system. Going forward, if children are removed from home due to allegations of abuse or neglect, their relatives and close kin must be prioritized for temporary placements, and their parents must be given stepped-up services to address problems at home that led to the maltreatment. Under current law, only Native American children receive the higher legal standard of “active efforts” when it comes to such interventions. For all others, the “reasonable efforts” standard is considered acceptable.

The sweeping new law is novel in the nation, and modeled after the 1978 Indian Child Welfare Act. Once fully implemented, it will require caseworkers to better engage with parents in planning and selecting the services they need to reunite with their children. Caseworkers will be required to consider social and cultural values, with judges reviewing and approving the adequacy of the steps taken.

Gov. Tim Walz signed the bill today surrounded by a leading advocate for the legislation, Kelis Houston, head of the nonprofit family-serving Village Arms organization; Tikki Brown, commissioner of the state’s newly created Department of Children, Youth and Families; and state lawmakers who pushed for the bill for years before its passage in May. They included Reps. Esther Agbaje, María Isa Pérez-Vega and Rena Moran, and Sen. Bobby Joe Champion.

“Other states should follow our lead,” Flanagan said. “As a Native woman, this bill hit home. So I’m incredibly grateful for all of the folks behind me who helped us get here today.”

To date, Minnesota is one of four states that have considered or pursued versions of such legislation, and one of two where the laws have passed. A Montana bill — referred to in the local press as “ICWA for All” — took effect May 2023. The law applies “key concepts” of the federal Indian Child Welfare Act “to all child protective services cases in Montana, not just those involving Native American children.”

A similar measure in South Dakota failed in February. Three years ago, the Washington state Supreme Court Commission on Children in Foster Care recommended draft legislation “to require active efforts for all children” before and after they were removed from home. Although the legislative proposal did not make it into a bill, the commission described active efforts as necessary to ensure social workers take extra steps, and provide services in a “trauma responsive manner.”

In Minnesota, officials are still ironing out how the two pilot programs called for under the African American Family Preservation and Child Welfare Disproportionately Act will begin, including how much the shift will cost and how to phase the change into current practice. But Champion said the rollout — which will take place in the state’s two most populous counties — will better prepare other communities that follow. To date, an appropriation of $5 million will be split evenly between the two counties with an additional $3.3 million for the Department of Human Services.

In addition, membership of a work group overseen by Commissioner Brown is now being considered. Noting the overrepresentation of kids of color in the foster care system, Houston said the group will “ensure the spirit of the bill is realized and disparities are reduced.”

Critics of the legislation at earlier stages ran the gamut of views, citing potential constitutional issues it could raise. When the bill focused solely on African Americans, Walter Olson, a senior fellow at the libertarian Cato Institute think tank pointed to potential equal protection violations in a commentary piece that asked: “Should the law require state child-welfare authorities to treat black children differently from white children?”

And earlier this year, Minnesota Rep. Heather Keeler, a member of the Yankton Sioux Tribe, also raised concerns about the law’s constitutionality. She pointed out that Native Americans are eligible for ICWA-like protections as citizens of sovereign nations within the United States.

Amid such concerns, amendments passed in March broadened the bill’s scope to encompass not just African Americans, but all other disproportionately represented children, including the disabled and those who live in poverty.

And today’s event was pure celebration among a diverse group of state and community leaders who want fewer kids growing up outside their families and communities, with more attention paid to the systemic disparities long endemic to foster care systems nationwide.

After a breath to take in the moment, bill author Rep. Agbaje noted the occasion, and the hard work it took to get there. Her bill passed after hours of emotional and at-times heated testimony in the State Capitol. She also noted it is only a beginning.

“The language we have here is the first step. It’s not going to solve everything,” Agbaje said. “But with determination, we can now look at families with compassion rather than disregard.”