NPR Report on Native Children in Foster Care Does Not Tell Whole Story

On October 25, 2011, the NPR show “All Things Considered” aired part one of a three-part series on Native American children in South Dakota who are removed from their parents’ care by the Department of Social Services (DSS).  There are several written reports on NPR’s website.  This one most closely reflects the audio of the first report, although the audio report and a separate summary are available here. Unfortunately, this report is one-sided and quite biased.  I note some problems with it below.  There are enough of them that I find it difficult to know where to start.

The Story of the Yellow Robe Children

One of the main threads of the report is the story of Janice Howe, whose daughter Erin Yellow Robe’s children were placed into foster care by DSS.  The story makes it appear that the children were taken from the reservation of their tribe due to an ill-founded rumor of prescription drug abuse by Ms. Yellow Robe, that DSS would not talk with Ms. Yellow Robe or allow her to see the children, that there were no hearings to determine whether foster placement was appropriate, that Ms. Yellow Robe did not have access to any legal representation, that the children were abused while in foster care, and that the State returned the children after a year and a half due to a threat by the Tribal Council to charge the State with kidnapping.  Sounds horrible right?  Fortunately, the story of the Yellow Robe children is almost certainly not as bad as it was irresponsibly made to sound in the report.

I will start with the proviso that I have no personal knowledge of the facts of the Yellow Robe case.  I will also readily concede that it may have been handled improperly in some ways.  DSS is certainly not perfect, and I have disagreed with their actions on numerous occasions.  But, the narrative of the NPR report lacks believability.

First, one must consider that privacy laws, such as SDCL 26-8A-13, prevent any State employees from discussing the details of any particular case with the media.  As such, DSS was not able to defend its actions in the context of this particular case, and never will be able to do so.  All of the facts are coming from one side.  If the State had indisputable video evidence of the children being used as Pinatas, we might not know.  It is indicative of the bias in the report that the existence of these confidentiality laws were not mentioned.

Second, it is not common for DSS to remove tribal member children from reservations.  Section 1911(a) of the Indian Child Welfare Act gives tribes exclusive jurisdiction over proceedings that involve the foster care placement of Indian children who live on the reservation.  Additionally, an abuse and neglect case would have had to be filed in State Court if DSS removed the children.  Any tribe the children were eligible for enrollment in should have then received notice of the proceeding pursuant to Section 1912(a) of the ICWA, and SDCL 26-7A-15.1.  The tribe then would have a right to intervene in the State Court proceedings pursuant to Section 1911(c) of the ICWA.  If the tribe wished, it could also then petition to transfer the case to tribal court pursuant to Section 1912(b) of the ICWA.  The case would have been transferred to the tribal court absent the objection of a parent (note that there was no mention of a father in the report) or a determination that another tribe was the children’s “primary tribe” for ICWA purposes.  The fact that the report does not say anything about an attempt to transfer the case is a strong indication that it is missing a lot of information.

Third, it would be extremely unusual for children to be removed from a parent’s care based on little more than a flimsy accusation that a parent was abusing prescription drugs.  It is possible that such a thing happened in Ms. Yellow Robe’s case, but it is not likely.  DSS is primarily concerned with safety.  Children whose parents are incarcerated or have serious problems with illegal drugs such as methamphetamine are often not placed into foster care by DSS if they are in a safe environment, such as if they are living with a grandparent.  Additionally, within two business days of the children’s removal, there would have been a hearing at which the State would have been required to prove “that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (Section 1912(e) of the ICWA)

Fourth are the allegations that “social services told her [Ms. Yellow Robe] they couldn’t tell her anything.”  I simply do not believe this claim.  When Native children are removed for the first time, the goal is always reunification.  The State is mandated to provide “active efforts” towards reunification in ALL cases involving Native children pursuant to Section 1912(d) of the ICWA, and to provide “reasonable efforts” towards reunification in most other cases pursuant to SDCL 26-8A-21.  After a child is removed, and in some cases that do not even involve removal, DSS starts what it calls the “Protective Capacity Assessment.”  It is intended to be a collaborative process with parents where the case worker works with the parent to identify safety threats and resources that can help the parent to address those threats.  DSS is primarily looking for some sort of meaningful change that will prevent the safety threats from reoccurring, as compared to simply compliance with a list of stuff to do.  In addition to communication from DSS, parents have to be notified of hearings, if possible (many parents simply disappear at times).  At those hearings they can hear the arguments being made for why their children should not be returned to them.  Parents can also get information from the case through their attorneys.  There would have been multiple hearings, including a 48 hour hearing, adjudicatory hearing, dispositional hearing, review hearings, and a final dispositional hearing.

Fifth is the allegation that Ms. Yellow Robe “waited months just to see the kids.”  This is possible, but not common.  The usual practice in the Rapid City area is to try to provide visits at least once a week.  I personally believe visits should happen much more often, and so do many people involved in the system.  Unfortunately, the reality is that a shortage of resources often makes it difficult to provide more frequent visitation.

Sixth is the allegation that Ms. Yellow Robe could not afford a lawyer.  If this was the case, the state would have appointed one for her, as required by SDCL 26-7A-31. The article makes the assertion that many people “can’t afford South Dakota’s public defenders.”  While it is true that the State may attempt to collect the costs of representation from those who get public defenders, many people do not end up paying anything.  Legal representation is never denied due to an inability to pay.

Seventh, the report insinuates that the Yellow Robe Children were abused while in foster care, including being made to wear urine soaked underwear on their heads.  It is possible that the children were in fact abused in their foster home.  That is not unheard of.  But, this is yet another situation where we have only one side of the story.  It also has to be considered that not everything that young children say is true.

Eighth, the report implies that the children were returned because the Crow Creek Tribe passed a resolution threatening the State of South Dakota with kidnapping charges.  I have no clue how charging a state with kidnapping would work.  The State isn’t going to charge itself with kidnapping, if that is even possible, which I don’t think it is.  The State also has nothing to fear from the Tribal Court due to sovereign immunity.  Criminal charges of “kidnapping” simply don’t apply to government entities.  The remedy for an unlawful detention of a person by the government is a habeas corpus proceeding.  In the civil context, a false imprisonment suit may apply for the unlawful detention of a person.  I feel confident in asserting that if a false imprisonment suit could be brought, it would have been by now.  This sounds like nothing more than an empty threat that happened to be correlated with the children’s return.

I also noted that the children’s grandmother, Ms. Howe, went to the tribal council meeting and indicated that the State was “about to put the children up for adoption.”  Children cannot be put up for adoption unless the rights of their parents have been terminated.  The article does not indicate whether Ms. Yellow Robe’s parental rights were terminated.  If that occurred, it seems like a very relevant fact, and suggests there is a massive amount of information not communicated by the report.  Notably, it appears the children were placed with their grandmother, not with their mother.

So, what really happened with the Yellow Robe Children?  I do not know, but here are some possible scenarios.  Perhaps this was not the first time the children had been removed.  If that was the case, the State court may have had continuing jurisdiction that allowed the children to be removed from the reservation.  It might also explain why the children were removed based on reports of prescription drug abuse, if that is all there was.  The fact that the case was never transferred to the tribal court also strongly suggests that either (a) the children were not eligible for enrollment in the tribe, (b) another tribe was involved and wanted the case to stay in state court, or (c) there was a father or fathers involved that were never mentioned, and that objected to transfer.  If Ms. Yellow Robe did not have an attorney, then it is likely she never participated in the State court proceedings, as one would have been appointed for her.

One thing that is clear is that we do not have all of the facts of this case, and heard the story from only one perspective.  The report indicates that at least two South Dakota Judges and two lawyers were talked to.  Had the reporters been interested in learning how the child welfare system in South Dakota works, they readily could have done so, and discovered many of the inconsistencies and obviously missing facts noted above.  I suspect that they were not really interested in such information, because it makes their story less sensational.

Multiple Jurisdictions

The “All Things Considered” report never mentions that there are multiple jurisdictions involved in the welfare of Native children.  Tribal Courts have exclusive jurisdiction over Native children who live on the reservation.  DSS does not regularly go onto reservations and remove Native children, and tribes have a very clear legal remedy if it does.  Additionally, tribes can transfer abuse and neglect cases involving children eligible for enrollment in the tribe from State court to tribal court.  The primary exceptions to this are when a parent objects to the transfer, another tribe is determined to be the child’s primary tribe, or when the tribe has waited until the case is near a conclusion (often a year or more) before trying to transfer the case.  When abuse and neglect cases involving Native children remain in State court, chances are that one of the parents does not want the tribe involved, or that the tribe itself does not want to be involved.

The article also makes it appear that there are a plethora of Native American foster homes just waiting to be used.  It indicates that there are twenty such homes on Pine Ridge alone.  I have a strong suspicion that these are homes that the Tribe has licensed, not the State.

I also do not know if this reasoning is sound, but one reason DSS might not want to place children at homes on a reservation might be a lack of cooperation from tribal authorities.  State law enforcement has no jurisdiction on the reservations, and tribal law enforcement is not bound to uphold state court orders.  When people in South Dakota want to avoid a being arrested on a warrant, they run to a reservation.  Given this dynamic, it would be difficult, and possibly dangerous, for DSS workers to address any situations that might arise with children placed at a home on a reservation.

Reasons for Disproportionality

The report indicates that Native American children account for 15% of South Dakota’s population, but more than 50% of children in foster care.  This means that Native children are being placed in foster care three to four times more often than would be predicted by random chance.  The report also indicates that almost 90% of the children in family foster care are in non-native homes or group care.

The report mentions that poverty, crime, and alcoholism are all real problems on South Dakota’s reservations, but glosses over these issues to push the theory that money is the primary reason for the disproportionality.  This does not do justice to the problems that exist.  The reservations of South Dakota are among the poorest places in the nation.  To a very real extent, it is like having a few third-world nations plopped right in the middle of the United States.  The police chief of the Pine Ridge Reservation estimated alcoholism rates on the Reservation at 80% during a recent “20/20″ report, despite the fact that the Tribe has outlawed alcohol there.  Unemployment on the Pine Ridge Reservation is also around 80%.  Unfortunately, there is a disproportionate level of poverty and alcoholism in the Native American population living off of the reservations as well.  As such, it is not surprising that children are removed from this population at a greater rate than would be predicted by their prevalence in the population.

Additionally, only about 10% of South Dakota’s population is Native American.  The demographics of the Native American population are skewed towards younger individuals, thus why about 15% of the State’s children are Native but only about 10% of the population is Native.  If there were as many Native foster homes as predicted by the population, there would still only be Native foster homes for about 20% of the Native children in foster care.  Unfortunately, the problems of poverty and alcoholism that I mentioned earlier may mean that a smaller proportion of the Native population become foster parents.

I feel the need to add the following comments.  First, just because there are some reasons explaining the disproportionality that exists does not mean that we should dismiss it completely.  It is possible that other causes, such as a lack of cultural sensitivity, could be at work, and should be addressed.  Numbers alone cannot tell the whole story though.  Second, I have made statements about some Native Americans as a group.  They are true factual statements, as applied to the demographic group.  Obviously though, a substantial number of Native Americans in South Dakota are quite successful, and are not poor, unemployed, or alcoholics.  This should really go without saying, but I can sense that some people are going to read this and label me as a racist.  If you are one of those people, there is probably not much that could be done to convince you otherwise.

Neglect is a Serious Issue

The “All Things Considered” report insinuates that neglect is not a serious issue.  To quote the report: “There are children in South Dakota who need to be removed from their families.  But according to state figures, less than 12 percent of the children in foster care in South Dakota have been actually physically or sexually abused.”

A parent does not have to hit or molest a child to cause significant harm.  A serious problem exists when children’s teeth are rotting out, they cannot speak due to a lack of social interaction, they are left in dirty diapers for days, they are exposed to domestic violence, their parents are using drugs in their presence, and they are left to wander the streets unsupervised.  These kinds of problem can be present in neglect situations.

Children Taken for Money?

The underlying theme of the report is that the State is taking Native children so it can get money.  The biggest problem with this argument is that it requires that individual people in the Department of Social Services actually are taking these children so that the State can receive money.  It may come as a surprise to many, but social workers HATE removing children.  It is not fun.  It is mentally, physically, and emotionally draining.  The majority of DSS case workers burn out or move on within a few years.

I know a number of people that work for DSS in Rapid City.  I have had significant disagreements with some of them about how cases have been handled at times.  I believe there is a lot of room for improvement.  BUT, I also believe the vast majority of people at DSS are motivated to serve the best interests of the children they work with.  I simply do not know anyone with DSS who I believe would advocate taking children so as to get federal money.

After all I’ve written above, it may come as a surprise that I do think it makes sense to take a long, hard look at the influence of money.  I believe that with a different funding mechanism, we could probably see fewer foster care placements while still ensuring children’s safety.  The biggest problem with the All Things Considered report is that it follows the money trail to an incorrect conclusion.  Probably not coincidentally, that conclusion makes for a more sensational story.

South Dakota is not a rich state.  It is also a very conservative state, where small government is popular.  There are a number of advantages to this, such as low taxes, a good business environment, and a fiscally responsible State government that does not run deficits.  The flip side of this though is that the Department of Social Services does not receive a lot of funding.  Therefore, the services that it can offer to help reunite families, or better yet, prevent removal in the first place, are limited.  Remember when I mentioned that the common practice in Rapid City is to ensure once-a-week visits, and that most people agreed that more visits would be better?  A lack of funds is one of the things preventing more frequent visits from happening.  There are also limited options for what can be done to ensure children are safe if they are left in the home.  If we had a program that provided for a worker to frequently check in on a child at home, possibly as often as daily or every-other day, it would be possible to leave a lot of children in the home while still ensuring their safety.  In fairness to South Dakota, I do not know of other states with such a program either.  Nationwide there is often a focus on being reactive rather than proactive, even when being proactive makes more fiscal sense.

There is relatively little federal funding for programs designed to prevent the need for foster placements, while, as documented by the report, there is significant funding for foster care.  This has created a system where South Dakota’s DSS workers are often left with an unfortunate choice – allow a child to be in a situation where his or her safety is at risk, or place the child in foster care.  There is often not a good third option – address the safety concerns while ensuring that children are safe in their home.  Given these two options, it should not be surprising that many children end up in foster care, and stay there for too long.  It should be noted that in many cases, DSS actually does work with a family to address safety concerns without removing the children.  These cases do not show up in statistics though.

The “All Things Considered” report tries to follow the money to the conclusion that Native American children are essentially being kidnapped by the State to get federal dollars.  This is downright irresponsible reporting.  I do not believe that Laura Sullivan and Amy Walters would make such accusations against any particular person if they were sitting in a room with South Dakota’s DSS employees, who, as a general rule, care deeply for the children they work with.  Had they sought out the truth, rather than a sensational story, maybe they could have discovered something useful to report.

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