By Cynthia Robbins, Edgar S. Cahn, and Keri A. Nash
Something is wrong when a system ostensibly constructed to provide for the welfare of vulnerable children offers interventions that consistently inure to the detriment of those in its care. The data are clear that children in fragile families have the best developmental outcomes when their families receive requisite support. Too often, removing a child even from a dangerous home leads to a long-term threat of greater danger, harm, risk, and bad outcomes.
Why does the Racial Justice Initiative of TimeBanks USA (RJI) seek to dismantle structural racism in the foster care system? The reason is plain. When we look at the child welfare system through a racial lens to see which families receive support and which families face child removal, we find that children of color are disproportionately removed from their homes and placed into the foster care system. Too often, there are no offers of family support. As a consequence, these families of color receive disparate—and less favorable—treatment once they have contact with the child welfare system. “For example, in [the year] 2000, black children made up 15.1 percent of the children in the country, but 36.6 percent of the children in the child welfare system . . . .” “Once involved with the child welfare system, African American children are more likely to be removed from their homes and spend longer periods of time in foster care. Often, their families have less access to helpful social services.”
For years, plaintiffs challenging the foster care and other public systems displaying structural racism have had to prove the discriminatory intent underlying blatantly disparate policies. More than thirty years of advocacy have shown how difficult it is to prove intent, even when the effect is indisputable. RJI believes that our novel legal and advocacy strategy will arm advocates, activists and affected members of the community with a new tool that overcomes this heretofore insurmountable barrier.
RJI Legal Theory & Social Advocacy
For decades, plaintiffs challenging racial discrimination or other violations of the Constitution or federal law have faced the onerous burden of proving that officials intended the resulting injury. In 2009, TimeBanks USA held a Colloquium, Dismantling Structural Racism in Juvenile Justice and Child Welfare to launch its Racial Justice Initiative (RJI) to undertake a social advocacy and novel legal strategy to tackle that burden. In City of Canton v. Harris the U.S. Supreme Court ruled that intent can be inferred when government policymakers choose an injurious course of action from among alternatives. Under the RJI strategy, when official decision makers have formal notice of more effective and less costly alternatives to their current practices, for example of disproportionate removal and placement in foster care of children of color, the failure to use these alternatives constitutes “deliberate indifference” to injury of the fundamental constitutional rights of children of color in the child welfare system. To provide formal notice to decision makers, the RJI developed the Public Notice Forum process.
The Public Notice Forum process is a public hearing or forum that presents decision makers with clear evidence of the entrenched racial disparities in the relevant public system. For example, this article discusses using the strategy to challenge disparities in the foster care system that result from current practice and presents evidence about the alternatives that are less costly and more effective. A variety of bodies or a group of civic leaders—legislators, judges, foundation officials, community groups—can organize a Public Notice Forum process. The successful Public Notice Forum process must also present official decision makers with evidence of alternatives that result in better outcomes for youth and families than the challenged foster care system approach. Ironically, these alternatives have also consistently also been less expensive.
Participants who testify may include executive branch officials responsible for administering the child welfare system, front line workers, advocates and service providers from community-based alternatives and family support providers, whose services are less expensive and more effective than foster care placement. Most importantly, this Public Notice Hearing process is designed to give voice to children and families in the foster care system who can attest either to the injuries resulting from current practices and to the benefits resulting from access to family support services available through alternatives. Legislators, judges and other relevant stakeholders might also participate–as questioners or witnesses–at the Public Notice Forum. We contend that once official decision makers receive this notice, if they continue present practice, they make an intentional choice in the face of more effective alternatives that reflects their “deliberate indifference” to the injury to the fundamental constitutional rights of children of color in the child welfare system.
What We Know About the Disparity and Injury Caused by Current Foster Care Practices
According to the United States Government Accountability Office report released in 2007, African American Children in Foster Care, nationally, in 2004, African American and Native American children were more than twice as likely to be placed in the foster care system as white children. In some states, such as California, New Hampshire and Wisconsin, African American children were more than four times as likely to be placed in foster care. Once these children of color, particularly African American children enter the foster care system, they remain in the system an average of nine months longer for a variety of reasons such as lack of affordable housing or substance abuse treatment.
The outcomes for children placed in foster care due to family poverty or unmet basic support needs are bleak, particularly those children who age out of the foster care system. According to a study by the Chapin Hall Center for Children at the University of Chicago, outcomes for current and former foster youth from Wisconsin, Illinois and Iowa are as follows:
- Only 18% of foster youth at age 19 were enrolled in a 4-year college as compared with 62% of the overall population of American 19 year olds.
- 37% of youth who had exited foster care by 19 were neither employed nor in school.
- Fully 90% of 19 year-old foster youth earned less than $10,000/year, compared with only 79% of the overall population of American 19 year olds.
- Foster youth experienced higher rates of hospitalization due to drug use or emotional problems than the general population of 19 year olds.
- Foster youth were more than twice as likely to become parents by the age of 19 than the general population of 19 year olds.
However, we see improved child welfare outcomes when systems increase the use and reliance on family support strategies to address root causes of family stress; family support is a more effective, less expensive alternative to foster care placement. Some of these programs already in use are saving counties, cities and states millions of dollars annually.
We Know What Works
Several states have programs that have both reduced the number of children in placement and the costs to the state by using community-based programs that focus on family support. In New York State, the Center for Family Representation uses community advocacy teams to work with families before a child is placed in foster care or even before a court case is filed. The Community Advocacy Teams are comprised of a lawyer, a social worker and a family advocate and the teams work with the families and children. This team puts together a continuum of services to keep the family together or to reunify as quickly as possible. The success of the Center for Family Representation when compared to traditional placement in the foster care system is striking.
To keep a child in a foster care costs New York City an average of at least $29,000 per year. Over the course of an entire life of a case, a community advocacy team costs approximately $5,900 per family, which is less than one fifth of the cost for a child’s first year in foster care. The Center for Family Representation served 1,200 families in 2010, saving taxpayers $7 million in that year alone. The average length of stay of a child in foster care working with the Center for Family Representation is just under four months compared to a city-wide average of eleven months for children in foster care.
By using community-based, alternatives to placement in foster care, New York City, Milwaukee and Michigan saved millions of dollars, helped improve the future outcomes of thousands of children, and ensured that children and families stayed together. If they can do it, why can’t other jurisdictions?
The mere articulation of the RJI strategy reawakens awareness of the need and the possibility of challenging rampant racial disproportionality in a few ways. First, this strategy converts the “intent” requirement from a shield protecting existing practice to a weapon that can be used to challenge the structurally racist status quo. It does so by shifting the burden to defendants. Once they are on public notice about alternatives that save lives while saving money, they will have to prove that their failure to use them and decision instead to continue their present practice does not constitute intentional racism. Second, the strategy creates a different, more community-friendly forum. This new forum shifts the power dynamic; it gives legislators, judges and other civic leaders participating in the Public Notice Forum an opportunity to ask officials: “Why aren’t you using more effective, less expensive alternatives like family support?” Finally, this more sympathetic forum provides a record that can be used subsequently in the event of litigation. Even more though, the Public Notice Forum provides an opportunity for system change: advocates and the community put the system on trial before the very decision makers who control the budget and define the authority within which the system must operate.
On August 4, 2011, the Racial Justice Initiative will hold another Colloquium focused on issues of foster care, child welfare and family support as a pre-conference convening prior to the biennial TimeBanks USA International Conference, A Time for Transformation: Banking on Communities to Be the Change.
“A lawyer is either a social engineer . . . or a parasite on society.” The RJI believes that its social advocacy and litigation strategy rooted in the Public Notice Hearing process ensures that lawyers can indeed be social engineers on behalf of children in the child welfare system. This strategy creates a legal obligation for foster care officials to use knowledge about the benefits of alternatives like family support rather than continue to disproportionately send children of color into foster care. The Public Notice Forum permits interested stakeholders to hold public officials accountable for choosing to change from the tendency toward disproportionately sending youth of color into foster care placements and instead spending scarce public resources effectively on family support solutions that deliver better outcomes for children and families.
Cynthia Robbins Esq. is an independent consultant based in Washington, DC, with a focus on organizational and resource development. She co-leads the Racial Justice Initiative of TimeBanks USA. In addition, she has worked in nonprofit management, philanthropy, civil rights and criminal defense since she graduated from Stanford Law School.
Edgar S. Cahn, J.D., Ph.D. is the co-founder & co-leader of the Racial Justice Initiative of TimeBanks USA, the founder of TimeBanks USA, and the co-founder of Antioch School of Law, the predecessor of the UDC David A. Clarke School of Law. He founded the largest diversion program in the District of Columbia, Time Dollar Youth Court and currently sits on the board of directors. In addition, Cahn sits on the board of directors of the Youth Advocate Program, Inc. and is a professor at UDC David A. Clarke School of Law.
Keri A. Nash, Esq. is the Associate of Legal Research & Outreach for the Racial Justice Initiative of TimeBanks USA. She is summa cum laude graduate of UDC David A. Clarke School of Law and prior to law school she worked for a member of Congress, the Council on Foreign Relations and Housing Counseling Services, Inc.
 This article presents excerpts from other articles produced by the RJI team. See e.g., Edgar Cahn & Cynthia Robbins, An Offer They Can’t Refuse: When Racial Disparity in Juvenile Justice and Deliberate Indifference Meet Alternatives that Work, 13 UDC/DCSL 71 (2010), http://www.racialjusticeinitiative.org/wp-content/uploads/2010/11/Article-An-Offer-They-Cant-Refuse-2010.pdf; Edgar S. Cahn, Cynthia Robbins, Keri Nash, “Public Notice Forums”: Choosing Among Alternatives to Confront the Intent Requirement, 44 Clearinghouse Rev. 165 (2010), http://www.racialjusticeinitiative.org/wp-content/uploads/2010/08/Racial_Justice_Initiative_Public_Notice_ Forums.pdf.
 Joseph J. Doyle, Child Protection & Adult Crimes: Using Investigator Assessment to Estimate Causal Effects of Foster Care, 116 J. of Pol. Econ. 746, 747 (2008), http://www.mit.edu/~jjdoyle/doyle_fosterlt_march07_aer.pdf.
 Robert B. Hill, Ph.D., Casey-CSSP Alliance for Racial Equity in the Child Welfare System, Synthesis of Research on Disproportionality in Child Welfare: An Update 3 (2006), http://member.preventchildabuse.org/site/DocServer/Synthesis_of_Research_on_Disproportionality_BobHillPaper.pdf?docID=1881.
 See e.g., Nat’l Coalition for Child Protection Reform, Thirteen Ways to Do Child Welfare Right: Successful Alternatives to Taking Children Away From Their Families (2010), http://www.nccpr.org/reports/twelveways.
 Hill, supra note 3, at 3.
 Ctr. for the Study of Social Policy, Positive Outcomes for All: Using an Institutional Analysis to Identify and Address African American Children’s Low Reunification Rates and Long-Term Stays in Fresno County’s Foster Care System, i (2010), http://www.cssp.org/pdfs/positive_outcomes_fresno_co_institutional_analysis.pdf.
 Washington v. Davis, 426 U.S. 299, 245 (1976) (holding that plaintiffs must prove that discriminatory impact was the result of specific racially discriminatory intent).
 City of Canton v. Harris, 489 U.S. 378 (1989).
 Gov’t Accountability Office, African American Children in Foster Care – Additional HHS Assistance Needed to Help States Reduce the Proportion in Care 75 (2007), http://www.gao.gov/new.items/d07816.pdf.
 Id. at 75-76.
 Id. at 4.
 NYC Admin. for Child Services, NYC ACS Preparing Youth for Adulthood 3 (2006) (citing Mark E. Courtney, et al., Chapin Hill Ctr. for Children at the Univ. of Chic., Midwest Evaluation of the Adult Functioning of Former Foster Youth: Outcomes at Age 19 (2005)), http://www.nyc.gov/html/acs/downloads/pdf/youth_for_adulthood.pdf.
 See generally, Pew Charitable Trusts, Time for Reform: Investing In Prevention: Keeping Children Safe at Home (2007), http://www.preventchildabuse.org/about_us/media_releases/pew_ kaw_prevention_report_final.pdf. The Michigan Time-Limited, Intensive Services Promote Family Reunification program has been in existence since 1992 and provides intensive 24-hour services to families as wells as flexible funds over a four- to eight-month period with an average cost of $3,830 compared to $9,113 for traditional services over an 18-month period. Id. at 16.
 Id. at 16. The Wraparound Milwaukee program provides wraparound services coupled with small caseload management. Id. By using flexible funding to provide services for families, the need for costly interventions like placement in residential treatment facilities has decreased 60%. Id. The costs of care are several thousand dollars less than traditional services and because savings have been reinvested to serving children, the program now services approximately 650 children, roughly 300 more kids than served in residential treatment facilities. Id.
 Center for Family Representation, Inc., 2010 Accomplishments, http://www.cfrny.org/2010_accomp.asp.
 Genna Rae McNeil, In Tribute: Charles Hamilton Houston, 111 Harvard L. Rev.2167, 2169 (1998).