Minnesota enacts law to protect Black families

On May 21, 2024, Minnesota Governor Tim Walz approved SF 716, the “Minnesota African American Family Preservation and Child Welfare Disproportionality Act,” Minn. Stat. §§ 260.61 to 260.693.  According to one source, the bill was first introduced eight years ago.

Among the purposes of the law are to “protect the best interests of African American and disproportionately represented children” and to “prevent arbitrary and unnecessary removal” of such children. Minn. Stat. 260.62.  Notably, the law defines “best interests” in a way that accounts for cultural differences:

The “best interests of the African American or disproportionately represented child” means providing a culturally informed practice lens that acknowledges, utilizes, and embraces the African American or disproportionately represented child’s community and cultural norms and allows the child to remain safely at home with the child’s family.  The best interests of the African American or disproportionately represented child support the child’s sense of belonging to the child’s family, extended family, kin, and cultural community.

Minn. Stat. § 260.63, subd. 5.

Despite long-standing knowledge that Black families are disproportionately impacted by and separated as a result of child protective investigations, the law appears to be the first of its kind.  See Shereen White and Stephanie Marie Persson, Racial Discrimination in Child Welfare Is a Human Rights Violation – Let’s Talk About It That Way, ABA (Oct 13, 2022) [noting that “[o]ver 50 percent of Black children in the U.S. will experience a child welfare investigation before their eighteenth birthday (nearly double the rate of white children).” (internal hyperlink omitted)] and Alex Perez and Michael Fitzgerald, Minnesota Governor Signs Bill Raising Bar for Taking ‘African American or Disproportionately Represented’ Children Into Foster Care, The Imprint (May 18, 2024) (discussing the law’s historical significance as well as past iterations of the legislation).

As noted by Perez and Fitzgerald, supra, the Act “mirror[s] protections for Native American children created by the 1978 Indian Child Welfare Act, known as ICWA”, but the law goes further “including increasing requirements the state will have to meet before petitioning a family court judge to terminate a parents’ rights, and establishing a state-run African-American Child Well-Being Unit and advisory council.”

The Act imposes a duty on social services agencies to “make active efforts to prevent the out-of-home placement of an African American or a disproportionately represented child.” Minn. Stat. § 260.64, subd. 1.  It also prohibits out-of-home placement “[u]nless the court finds by clear and convincing evidence that the child would be at risk of serious emotional damage or serious physical damage if the child were to remain…” Id. at subd. 3.  At each hearing about a disproportionately represented child, the court must assess whether the agency has provided active efforts to the child and their family, and “agency [is required] to provide evidence and documentation that demonstrate that [it] is providing culturally informed, strength-based, community-involved, and community-based services…” Id.

As to the Child Well-Being Unit, it will be tasked with a variety of responsibilities, including “assist[ing] with the development of African American cultural competency training and review[ing] child welfare curriculum … to ensure that responsible social services agency staff and other child welfare professionals are appropriately prepared to engage with African American children and their families and to support family preservation and reunification”. Minn. Stat. § 260.692, subd. 1.

And if a child is removed from their home, the law mandates that the agency “engage in best practices related to visitation”, including “active efforts to facilitate regular and frequent visitation between the child and the child’s parents or custodians, the child’s siblings, and the child’s relatives.”

As to the right to counsel specifically, the bill provides:

Notwithstanding section 260C.163, subdivision 3, and the provisions of Minnesota 9.20 Rules of Juvenile Protection Procedure, rule 25, a parent or custodian of an African American or a disproportionately represented child who is subject to an emergency hearing under this section and Minnesota Rules of Juvenile Protection Procedure, rule 30, has a right to counsel appointed by the court. The court must appoint qualified counsel to represent a parent if the parent meets the eligibility requirements in section 611.17.

Minn. Stat. § 260.66, subd. 3(c) (as to emergency removal proceedings).

PreserveOurFamilies.org has more information about the bill and some of its key provisions.  To learn more about the history of the child welfare system generally, check out the upEND Podcast.