January 26, 1999 PRIVATE Carol A. Ogren, Associate County Administrator Hennepin County Administration A-2303 Hennepin County Government Center Minneapolis, MN 55487-0233 David Sanders, Ph.D., Director Hennepin County Children & Family Services Dept. 525 Portland Avenue South, 5th floor (MC965) Minneapolis, Minnesota 55415 Docket Number: 05987003 Dear Ms. Ogren and Dr. Sanders: This letter transmits to you the findings with regard to the investigation conducted by the Office for Civil Rights (OCR) to determine the compliance of the Hennepin County Children and Family Services Department (hereinafter, the Recipient) with Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq., and its implementing regulation, 45 CFR Part 80, and Section 1808(c) of the Small Business Job Protection Act of 1996 (Section 1808(c)), 42 U.S.C. 1996b. OCR conducted this investigation pursuant to its responsibility for enforcement of the provisions of the above-cited Acts and implementing regulation. As a recipient of funds under Title IV of the Social Security Act, the Recipient is subject to the provisions of Title VI and Section 1808(c) which prohibit discrimination on account of race, color and national origin. OCR has concluded that the Recipient is in compliance with Title VI and Section 1808(c) with regard to the issue of this investigation. The specific issue and finding in this investigation are described below. Background The Recipient is a county social service agency offering a variety of health and social services, e.g., services for Medical Assistance recipients, emergency assistance, child welfare services including foster care and adoption services, etc. The Recipient performs the full spectrum of duties as it relates to foster care and adoption, e.g., licensing foster homes, conducting home studies, providing protective services, arranging in-home support, investigating allegations of abuse and neglect, making foster care and adoptive placements, etc. OCR was monitoring the foster care and adoption practices of the Recipient based on three previously investigated complaints which resulted in Resolution Agreements with the Recipient and the state. Since the effective date of the agreement with the state, laws were passed which clarified the role of race in making foster care and adoptive placements. Since the monitoring data was collected prior to the passage of these laws and during the time period in which state statutes were determined to be out of compliance, an investigation was initiated into the Recipient's current practices regarding the use of race in making foster care and adoptive placements. Issue Whether the Recipient makes foster care and adoption decisions based on race in violation of 45 CFR 80.3(a) and (b)(1)(iii) and Section 1808(c) of the Small Business Job Protection Act of 1996 Facts The state of Minnesota is responsible for enacting child welfare statutes and implementing rules and bulletins relative to these statutes which state, county, and private child-placing staff are required to follow. Minnesota statutes were revised and currently do not give preference to race in making foster care and adoptive placements. In fact, race is not listed in the state statute as a factor to be considered when making foster care and adoptive placement decisions. The state is also responsible for developing key forms to be used by child-placing staff. One such form, the "Child's Out-of-Home Placement Plan", documents reunification and permanency efforts. In a section separate from the placement factors section, this form asks that the child's "ethnicity" and "tribal/ethnic representative" be identified. The Recipient stated that this information is collected for purposes of collecting federally-mandated statistics and for complying with the Indian Child Welfare Act. The Recipient has made organizational and functional changes related to its child welfare staff. This has resulted in the development and expansion of some work groups and units and the elimination of others. In the past, case decisions were basically made by a case worker and unit supervisor with the involvement of a "minority advocate" when the child in question was from a minority. However, now, the minority advocate unit has been eliminated and decisions are made by teams. A Permanence Team meets shortly after the child is brought into the Recipient's system to decide the direction to be taken with each case, e.g., reunification, termination of parental rights, etc. When the case is assigned to child services staff, the case worker makes case decisions as part of a cross-cutting team comprised of a representative of each child welfare operational unit as well as other involved parties: adoption resource staff, foster care staff, kinship staff, child protection staff, licensure staff, a therapist, teachers, juvenile court workers, etc. This team discusses all the facts of the particular child's case in making placement decisions that are in the child's best interests. However, in staff meetings, all members of the cross-cutting team have been told that use of race or any proxy for race in making placement decisions will result in termination. That admonition has also been placed in the Recipient's staff procedures manual. Since the state's foster care and adoption statutes previously gave placement preference to race, the Recipient's staff have received on-going training regarding the changes in the state's statutes. In addition to the organizational/functional changes previously mentioned, the Recipient's Kinship Unit has been expanded to enable early identification and contact with relatives who might offer appropriate placement alternatives for a child. Further, the Recipient's Adoption Placement and Stability Act Committee, comprised of adoption staff, child protection staff, foster care staff, child services staff, kinship staff, general counsel staff, training staff, University of Minnesota staff and members of the African American Adoption Program (1) developed two five-page comprehensive tools, i.e., the Child Matching Tool and the Caregiver Matching Tool, to help staff best match a child to a caregiver. The tools are to be used to explicitly document the child's special needs within the eight factors to be considered in making foster care and adoptive placements under the state's current statutes. These tools were pilot-tested by staff, foster parents and birth parents so that necessary adaptations could be made prior to county-wide implementation. These tools were finalized at the end of September 1997. The Recipient's staff was then trained on the usage of these tools. County-wide use of these forms by the Recipient began in October 1997. The Child Matching Tool is initiated at the time a child is placed in an out-of-home placement and updated each time a child changes placements. This tool is completed through collaboration of the social worker with the biological family and child (if the child is old enough), foster parent(s) and others who may have significant knowledge of the child (e.g., therapists, teachers, etc.). The Caregiver Matching Tool is initiated by the foster care licensing worker at the time of initial licensure and updated at the time of license renewal or when there has been any change in the family's capabilities. This tool is also initiated by the home study worker with each prospective adoptive family and updated with each home study update. Neither tool identifies the race of the child or the prospective caregiver but documents the various cultures, categorized in racial/ethnic groupings, with whom the child or caregiver has had significant contact in various settings, e.g., school, neighborhood, adult interactions, past parental experiences, etc. The tools also document whether the child has a strong sense of cultural identity and whether a prospective caregiver understands various cultures and, if so, which cultures and what steps the caregiver will take to validate various cultures. The Child and Caregiver Matching Tools being utilized by the Recipient raise some civil rights concerns under Section 1808(c). Those concerns are specifically addressed later in this letter. A team comprised of representatives from OCR and the State Child Welfare Agency reviewed a total of seventy-seven (77) foster care and adoption files of placements made in July, October and November 1997. This review revealed that: 1) individualized assessments are routinely made, although, prior to implementation of the matching tools, the format varied; 2) the matching tools were being used by case workers; 3) race was not the basis for making original placements or subsequent placements; 4) culture was not used as a euphemism for race (2); 5) the predominate reason noted for placements were that they facilitated reunification with parent(s), siblings or other family members (3) . ; 6) case workers no longer identify on placement forms whether the placement is a same-race placement; and 7) more extensive information on relatives is collected earlier in the planning process and is used in making placement decisions. While the file review showed no evidence that race or national origin was used in making placement decisions, because of the concerns raised by OCR, the Recipient sent an electronic mail message to all child-placing workers specifying that Section IX of the Child's Out-of-Home Placement Plan form was there for a statistical-gathering purpose only and that the Recipient, following federal law, does not permit race or ethnicity to be determinants in making placements. OCR contacted the State Child Welfare Agency which has redrafted this section eliminating any solicitation of racial or ethnic data. OCR will continue to follow-up with the state until this form is finalized. Analysis As the above-cited facts show, the Recipient established several systems designed to facilitate and make objective, non-race-based, foster care and adoptive placements based on the best interests of any child. Matching tools were developed and implemented to comprehensively assess the individual needs of each child and the capabilities of prospective caregivers in an objective and consistent fashion. Two different cross-cutting teams make case decisions at different stages in a case. The Kinship Unit acts independently to collect and assess information on relatives who are potential caregivers and the quantity of relative information gathered has noticeably increased since. The race of the child/caregiver is no longer identified on the assessment tools so that race will not be a factor in the assessment. While a child's culture is assessed, staff treat culture as a concept that is distinct from race. The Recipient's staff have been advised that using race as the basis of placement decisions will be grounds for termination of that staff member from the Recipient's employment. OCR did not see any evidence that foster care placements/replacements and adoptive placements are being made on the basis of race. While the Recipient must use the state's "Child's Out-of-Home Placement Plan", the Recipient has made it clear to child-placing staff that the racial and ethnic information solicited by this form is to be used for statistical purposes only and not in making child placement decisions. Finding The preponderance of the evidence shows the Recipient to be in compliance with Title VI and Section 1808(c) regarding this issue. While OCR's investigation did not indicate that the Recipient considered race, color, or national origin in making adoption and foster care placements, the manner in which cultural assessments are conducted raises civil rights concerns under Title VI and Section 1808(c). One concern stems from the use, in the matching tools, of categories ("African American," "American Indian," "Euro-American," "Asian," and "Chicano/Latino") that reflect racial and national origin categories. The use of these categories can easily be misconstrued as inquiries about race and national origin. The use of these racial and national origin categories may also give the impression that "race" and "culture" are identical or interchangeable concepts. Both Title VI and Section 1808(c) prohibit the use of culture as a proxy for race or national origin. Also, several of the questions on the Caregiver Matching Tool raise civil rights concerns because they do not appear to assess the specific abilities of prospective adoptive or foster parents to provide suitable homes for children. For example, the second question on the Caregiver Matching Tool asks whether the caregiver's neighborhood and school settings include: African Americans, American Indians, etc. The fact that a caregiver's neighborhood and school setting might include persons of one of the categories identified on the Caregiver Matching Tool does not focus on the individual ability of a prospective caregiver to meet the cultural needs of a particular child. Similarly, it is not clear how a caregiver's willingness to provide adult role models from the cultures identified on the Matching Tool or to participate in cultural celebrations relates to the specific ability of the prospective parent to meet a child's cultural needs on a regular basis. As a general matter, the questions raised in the Recipient's Caregiver Matching Tool suggest that the suitability of prospective caregivers to become adoptive or foster parents is being evaluated based on the races with whom they have had significant contacts rather than their specific abilities to meet the cultural needs, if any, of a particular child. The finding that the Recipient is in compliance with Title VI and Section 1808(c) is based on evidence indicating that Hennepin County does not use the Child Matching Tool and the Caregiver Matching Tool in a manner that violates either statute. In particular, the County has in place a system of safeguards and procedures, including the training of staff and notice to staff about the consequences of using race in violation of Title VI and Section 1808(c), that assures that the tools are not used in a manner that equates culture with, or uses it as a proxy for, race or national origin. Consequently, our finding of compliance should not be construed as a finding with regard to the instrument the Recipient uses for identifying or assessing cultural needs and the ability of parents to meet cultural needs, if any. Recommendation Regarding the matching tools, OCR strongly recommends that the following be done: While the investigation did not indicate that adoption and foster care placements are being made on the basis of race, the mannerin which cultural assessments are conducted raises a civil rights concern under Section 1808(c). Therefore, to ensure that cultural assessments are not being made in a manner that might violate Section 1808(c), staff should be required to routinely explain how their cultural determinations are reached. This determination is not intended and should not be construed to cover any other issues which may exist and are not specifically discussed herein regarding compliance with Title VI and Section 1808(c). Disclosure of Records Under the Freedom of Information Act, 5 U.S.C. 552, and its pertinent regulation, 45 CFR Part 5, it may be necessary to release this document and related correspondence and records upon request. In the event OCR receives such a request, we will seek to protect, to the extent provided by law, personal information which, if released, would constitute an unwarranted invasion of privacy. If you have any questions, please contact me at (312) 886-2359 or Alfred Sanchez, Division Director, at (312) 353-5731 (voice) or (312) 353-5693 (TDD). Sincerely yours, Charlotte Irons Regional Manager Office for Civil Rights Region V cc: David Doth, Commissioner Minnesota Department of Human Services Erinn Sullivan Sutton, Director Family & Children's Services Division Minnesota Department of Human Services 1 Other advocacy groups, e.g., American Indian tribes, were invited to participate but declined. 2 There were instances where, within the same racial group, a potential caregiver's ability to meet the cultural needs of the child was assessed. In another case, the delineation of the child's significant contacts resulted in the determination that the child's cultural identity was different than the child's race. 3 This was evidenced in several files where siblings were placed in the homes of foster parents of various races in order to keep the siblings close to one another and proximal to the birth parent/relative.