January 01, 2017

The Importance of Measuring Case Outcomes in Indian Child Welfare Cases

Alicia Summers, PhD, Kathy Deserly, Andy Yost, JD

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

As practicing child welfare attorneys, judges, and agency staff, you may not have a direct role in research on compliance or case outcomes for Indian Child Welfare Act (ICWA) cases….yet! New regulations were released in December 2016 that require child welfare agencies to gather ICWA data. Some of these data will naturally involve court processes you are involved in. Below is a summary of what we know about measuring ICWA case outcomes and ICWA compliance.

Native children are overrepresented in the foster care system at a rate 2.7 times higher than their rate in the population nationally. They are disproportionately represented at early decision points in the case, starting with investigation, removal, and entry into care. This should be surprising considering the higher standard for removing Indian children from their parent or custodian under ICWA and begs the question—Are states really complying with the requirements of ICWA? And if so, Why are the outcomes so poor for Native children?

Data Lacking in ICWA Cases

In nearly four decades since ICWA’s passage, no federal agency was required to assure state compliance with ICWA’s protections. While isolated studies focused on various facets of ICWA implementation and compliance, little in-depth data exists on actual child outcomes in ICWA cases.

ICWA funding—through the Bureau of Indian Affairs—was made available to federally recognized tribes and tribal consortiums early on. Programs developed through this limited funding soon became a loosely-knit nationwide network of tribal and Indian child welfare service programs, foster families, and advocates. The individuals working in these programs understood the historical underpinnings that led to the passage of ICWA. They witnessed in their own communities and elsewhere the disparities of numbers of Native children in state and county foster care systems. They saw many successes in their own communities because of ICWA, but due to the lack of specific federal oversight around compliance, these staff often struggled to share this information. 

Commissioner Rafael López, of the Administration on Children, Youth and Families, noted regarding the absence of ICWA data 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…not being able to articulate very clearly what’s happening to all children, let alone American Indian and Alaska Native children, is unacceptable.”1

Emerging Compliance Efforts

More recently, several states, through their Court Improvement Programs (CIPs) or other agencies, have begun to explore compliance with ICWA in a more nationally coordinated way. These studies typically result in reports to the court with descriptions of current practice and recommendations for improvement. Areas of research include descriptive information on how and when children are identified, how and when specific findings are made on the record (e.g., active efforts, imminent physical damage or harm), the use of qualified expert witnesses, and whether and how the court followed placement preferences. 

Beyond those, some studies have begun to dig deeper to determine what types of active efforts are being made, what criteria is used to select qualified expert witnesses, and how the tribe is engaged in case processing. These studies provide descriptive overviews of compliance, but rarely go deeper to predict how current practices affect outcomes for Indian children and families. New reporting requirements may provide the first opportunity to really examine case outcomes on a national level.

AFCARS Reporting Requirements

In the last year, proposed changes to the Adoption and Foster Care Analysis and Reporting System (AFCARS)—a database that title IV-E child welfare agencies are required to report to for all children in foster care —will soon require that agencies report specific ICWA variables. 

Among elements proposed are:

  • instances where the state title IV-E agency inquired about information on a child’s status as an “Indian child” under ICWA

  • transfers of cases to tribal courts

  • legal notifications made to families and tribes

  • whether and when the agency began to make active efforts

States will also have to document whether the foster care placement of Native American children meets the placement preferences established in ICWA, set to ensure that children 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.

These data can help inform local and national efforts by allowing an opportunity to identify and describe the unique needs of Indian children in foster care and paint a picture of the current state of ICWA compliance. The changes to AFCARS are huge for the field and will be critical to move understanding of ICWA cases forward in a meaningful way. 

DOJ Compliance Efforts

In a separate effort to address ICWA compliance and improve outcomes, the Department of Justice (DOJ) is redoubling efforts to support the Indian Child Welfare Act, launching a new initiative to promote compliance with ICWA. Under this effort, DOJ will actively identify state-court cases where the United States can file briefs opposing the unnecessary and illegal removal of Indian children from their families and tribal communities. DOJ will work with the Department of the Interior and the Department of Health and Human Services to ensure all tools available to the federal government are used “to promote tribes’ authority to make placement decisions affecting tribal children, to gather information about where ICWA is being systematically violated and to take appropriate, targeted action…”2

State/Local Compliance and Technical Assistance

In addition to changes in AFCARS data, there are resources available to help state courts design and implement compliance efforts on the state and local levels. Organizations like the Children’s Bureau’s Capacity Building Center for Courts (CBCC) (see box) work directly with the CIPs to increase their capacity to meaningfully assess their work. ICWA is a priority for the CBCC, and their efforts include assisting with research design, tool development, implementing changes, data analysis, and reporting. 

A new grant has also been funded by the Children’s Bureau that provides funding for states and tribes to jointly work to improve ICWA. North Dakota, Oklahoma, and Minnesota and associated tribes met in the beginning of December to start these efforts. 

This work helps to disseminate research findings, enhance the robustness of research to better inform how ICWA compliance relates to positive outcomes for American Indian families and youth, and contributes to a growing evidence base for effective programs and practices.

Linking Outcomes to Measurable Data

There remains consensus among tribal social services and courts, and state staff who work closely with them, that ICWA has helped, even if there is more work to do. We still hear consistent anecdotes from tribal ICWA workers, state social workers, grandparents and children. 

“When I was placed with my grandma I knew I was home”

“I was adopted and I’m looking for my tribe.” 

“I want to know who my parents are …I want to know who my relatives are”

“I miss my mom and dad, but at least I’m with family and I still get to see them sometimes.”

These are the voices and stories that ICWA workers and advocates hear every day. It is the reason ICWA became law. Until these stories are linked to measurable data, they are just snapshots. Without oversight and appropriate data collection, the outcomes for Native children served by ICWA will remain elusive and the value of the law will continue to be questioned.

Alicia Summers, PhD, is the director of research and evaluation at the Capacity Building Center for Courts. She has worked for over 11 years on evaluation of child welfare court practice with states and tribes to improve outcomes for children and families. 

Kathy Deserly, co-project director for the Capacity Building Center for Tribes, works for the Tribal Law & Policy Institute. She has worked at the tribal, state, and national levels for over 35 years. She founded the Indian Child and Family Resource Center, a training and technical assistance center for tribal social service programs.

Endnotes

1. Kelly, John. “38 Years after ICWA, Feds to Collect Data on Native American Foster Youth.” Chronicle of Social Change, April 8, 2016.

2. White House Press Office. “FACT SHEET: Improving Outcomes for Our Nation’s Foster Youth.” White House Press Release, December 8, 2014. 

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Capacity Building Center for Courts: ICWA Resources

The Capacity Building Center for Courts (CBCC) promotes ICWA compliance through resources, tools, and products that advance the interests of Indian children, tribes, and families.  

Video. The CBCC produced a short video calling on dependency court professionals across the country to renew their commitment to promoting ICWA compliance.  The video lists a number of additional resources available through the CBCC that support ICWA efforts. 

ICWA Quicksheet. This tool promotes continuous quality improvement.  Coming soon is a 13 module online course covering the nuts-and-bolts of the Indian Child Welfare Act.  The course includes the 2016 regulations and provides best practice tips for litigating ICWA cases in state courts.  

ICWA judicial training. This training can be adapted to any state and weaves together the history and black letter law to provide a holistic overview of the statute, and ways to ensure ICWA compliance in court.  

Future work. Over the next year the CBCC will develop an ICWA Baseline Measures Toolkit to help states make data-informed decisions about their ICWA efforts.  A research agenda will guide the CBCC’s work and focus resources on issues that need the most attention. The CBCC is also working closely with state courts, agencies, and tribes to integrate the 2016 regulations and best practices into every courtroom, in every case.  

Andy Yost, JD, liaison, Children’s Bureau’s Capacity Building Center for Courts