Lawmakers Seek to Remove Discrimination from Foster System

Colorado State Capitol Denver

Democrats in the General Assembly are moving legislation aimed at rooting out discrimination in the foster care system and adoptions.

HB21-1072 would require public and private agencies that provide child welfare services to do so in a way that does not discriminate against either children or aspiring foster and adoptive parents and that is responsive to the cultural and social needs of children. The bill was approved March 17 by the House of Representatives on a party-line 40-24 vote.

“This bill, equal access for services, affirms the right of foster youth to live in an affirming home,” said Rep. Meg Froelich of Englewood during floor debate on the proposal. “During national foster care month in 2015, our president said all young people, regardless of what they look like, which religion they follow, who they love or the gender they identify with, deserve the right to dream and grow in a permanent home. That is what HB 1072 does.”

BROAD DISCRIMINATION BAN

The bill forbids child welfare agencies from refusing to work with aspiring foster and adoptive parents on grounds of demographic differences, sexual identity or medical condition. “Any denial” of an application to provide care for a child that includes any of the prohibited factors as a reason “must be documented, must have a clear nexus to the ability to meet the needs of the child or youth, and the denial to care must not be detrimental to the health or welfare of the child or youth,” according to the bill’s language.

If enacted into law, the measure would forbid child welfare agencies from delaying or denying a foster care or adoption placement to a child “on the basis of a real or perceived disability, race, creed, religion, color, sex, sexual orientation, gender identity, gender expression, national origin, ancestry, or any communicable disease, including HIV” unless “the delay or denial of the placement is not detrimental to the health or welfare of the child.”

HB21-1072 would also extend that prohibition to harassment on the basis of those protected characteristics. The bill would require that child welfare agencies and service providers assure that assistance is supplied “in a manner that is culturally responsive to the complex social identity of the individual” to whom care is being given and clarifies that responsiveness must take account not only of the immutable characteristics such as race, ethnicity, nationality, age, sex, but also religion, “gender identity,” “gender expression,” “socioeconomic status,” “physical or cognitive ability,” “language,” “beliefs,” “values,” “behavior patterns” and “customs.”

The anti-discrimination components of the bill would carry weight because the state would not fund private child welfare agencies, including those operated by religious institutions, that violate them. That approach mirrors similar laws in effect in several other states, including California, Nevada, Rhode Island, and the District of Columbia. The Colorado Department of Human Services already forbids such disparate treatment by means of administrative regulation.

SUPPLY AND DEMAND

The Department of Health and Human Services estimates that, as of Sept. 30, 2019, about 425,000 children were in foster care across the country. Nearly half of them were not being cared for by relatives and, instead, lived in homes with unrelated foster parents and were not white. Here in Colorado, more than 5,500 youth were in foster care as of Sept. 30, 2018. At least 55% of those children are of diverse ethnic and racial backgrounds. One 2019 research paper found that nearly one-third of all children in foster care identify as LGBTQ. “You’re looking at twice [or] three times the presence in the general population,” said Currey Cook, senior counsel and youth in out-of-home care project director at Lambda Legal in New York.

The size of the foster child population is not matched by the number of available foster parents. One study found that the number of foster homes declined in at least half of the states between 2012 and 2017, even as the number of children in foster care rose. In Colorado, the drop in foster care homes has been among the worst in the nation, with the number of available placements falling by nearly 10% during that period. “We have, by some accounts, 8,000 foster youth in the system, and we have 2,000 foster parents,” Froelich said. “We need more of them.”

UNIQUE CHALLENGES

More specifically, Colorado’s supply of foster homes to meet the particular needs of diverse youth is falling significantly short. “Colorado’s foster parent population does not reflect the ethnic and racial diversity of the children and youth in foster care,“ according to a 2017 report by the state’s Office of Children, Youth & Families: “The disparity between Colorado’s Hispanic children/youth who entered foster care and Hispanic foster parents is particularly pronounced.”

Foster care poses risks to the wellbeing of all children. “Across a wide range of outcome measures, including postsecondary educational attainment, employment, housing stability, public assistance receipt, and criminal justice system involvement,” children who have been in foster care generally do not fare well in adulthood, said Nathanael Okpych, an assistant professor at the University of Connecticut School of Social Work, and Mark Courtney, a professor at the University of Chicago’s Crown Family School of Social Work, Policy and Practice, in one 2011 study.

Foster children frequently suffer educational disruption and are far more likely to become pregnant and suffer sexual abuse, including sex trafficking, than kids who are raised by their parents. Foster youth face a higher likelihood of being incarcerated in both juvenile justice facilities and adult prisons and of experiencing homelessness than are children who live with their parents. They are also far less likely than peers who live with parents to find employment or attend college when they exit the child welfare system at the statutory adulthood age.

Discrimination risks for Black and Hispanic youth are particularly notable. The National Conference of State Legislatures found in 2010 that, once kids of diverse ethnicities and races become foster children, “they are less likely to have permanent families through reunification or adoption.” “Relative to white children, kids of color are more likely to drift in care, less likely to be reunited with families, … less likely to find a permanent family and more likely to have poor educational, social, behavioral, and other outcomes,” concluded Patrick McCarthy, a former division director at the Delaware Department of Services for Children, Youth and Their Families
and a former president and chief executive officer of the Annie E. Casey Foundation, in a 2011 analysis.

For LGBTQ kids, the potential of abuse, neglect, and emotional damage from placement in non-affirming homes is high. “Discrimination hurts your health and general wellness,” Cook said. “LGBTQ [children], because of discrimination [and] bias, disproportionately experience poor health outcomes like higher incidence of STIs, substance abuse, suicide and self-harm. They also exit foster care to homelessness at higher rates, experience homelessness at higher rates … and end up in juvenile justice and adult correctional facilities at higher rates [and in] residential treatment facilities at higher rates.”

Froelich said LGBTQ foster kids commonly experience bullying, too. Referencing a study of their experiences in institutionalized foster care settings, she said that “especially in group homes, verbal harassment was off the charts. Almost every kid, LGBTQ kid in the institutional side of foster care had experienced verbal harassment.” Physical persecution is a common experience as well.

Aside from the emotional and physical challenges faced by foster youth, the child welfare system also terminates support for children in foster care when they reach the statutory age of adulthood. “You’re already in a world where you lack a trusted adult,” Froelich said. “The further kick in the pants is that you’ve got to have your act together by age 18 because you’re going out of the system. And you don’t have the supports that other kids” have.

One important way to address the emotion and physical injuries many foster children carry, and that particularly afflict youth who are uniquely subject to discrimination or torment, is to improve training for foster parents. Froelich’s bill aims to improve both the quality of foster parent training and access to it.
Sam Carwyn, an educator and advocate with Interfaith Alliance of Colorado, emphasized the enhanced importance of preparing foster parents well for the role of a caring adult to traumatized kids, especially since acceptance of ethnic, racial, religious or sexual identity is vital to healthy cognitive and emotional development. “Oftentimes when young people are in care, they’re moved from home to home,” she said. “And for them to be able to know that the home that they’re going to be in is going to be open and affirming is important not just for their mental health, but for them to have stability in that placement.”

RELIGIOUS OPPOSITION

Notwithstanding the plight faced by foster children, Republicans in the state House opposed HB 21-1072 at second reading on March 17. Only one opponent — Colin Larson of Littleton — spoke on the floor, saying he would vote “no” for pragmatic reasons. He acknowledged that assuring children of an affirming home is a goal that the General Assembly should “absolutely be enshrining in law.” Nevertheless, he pointed to worries about its potential impact on the willingness of some child welfare agencies affiliated with churches to continue participating in the state’s foster care and adoption infrastructure. “I honestly hope that a lot of these agencies will start to work with same-sex couples,” he said. “The priority should be placing children in homes.” Larson said, despite that aspiration, he was concerned that the bill would “disrupt long-established providers in this space.” Historically, religiously affiliated organizations have been very big players in the adoptions world and we have supported that as a state because they do work that has a direcdt relationship to the interests of the state,” he said. “If we were to take away, for instance, the Catholic church or another religious organization’s ability to get state funding, I worry that it would disrupt the adoption ecosystem as it exists and potentially reduce the number of kids that end up getting adopted out.”

Arielle Gingold, deputy Washington director at Bend the Arc Jewish Action, said that not all religious entities oppose a tie of government funding for child welfare services to prohibitions against discrimination, including against LGBTQ youth or aspiring foster or adoptive parents. “We’re talking about government-funded child welfare systems,” she said. And when faith-based organizations engage with the government-funded system, they have to play by the same rules as everyone else and have to follow the same non-discrimination rules. That’s good for the country and that’s good for religion, too. Organizations have the option not to participate in the state child welfare system.”

The question whether state and local governments can deny religious institutions that object to providing foster care and adoption services to same sex couples or to LGBTQ single aspiring foster or adoptive parents is now before the Supreme Court. The justices heard a case in November that involves a claim by the Roman Catholic archdiocese of Philadelphia that the freedom of religion clause of the First Amendment precludes anti-discrimination measures such as HB21-1072.

The high court clash could potentially create a pitfall for Froelich’s bill, at least if the justices rule that the U.S. Constitution imposes a barrier against conditioning state funding upon compliance with anti-discrimination mandates. “I think most people are predicting that the court is going to rule against the city,” Jennifer Hendricks, a professor at the University of Colorado Law School who specializes in family law matters, said.

Froelich said she is not concerned that the case, known as Fulton v. City of Philadelphia, would imperil the validity of her bill, should it become law. “I’m not worried about the Philadelphia supreme court decision because, first of all, the foster and adoption services have spun out,” she said, referring to child welfare service providers affiliated with Roman Catholic dioceses in Colorado. “They don’t have to answer to the archdiocese.”

Gingoldsaid that, whatever one’s views of about same sex couples or the growing acceptance of LGBTQ identities in the U.S., legislators are laudably considering the “bottom line” of “meeting the needs of kids in care.” “The bottom line is for kids to be placed with parents who will be affirming of them, whatever that means, whether it has to do with their religion, with their race, with their sexual orientation, with their gender identity, with the fact that they like board games or that that they are super into country music, whatever the case may be.”

HB21-1072 is scheduled to be heard by the Senate’s State, Veterans, & Military Affairs Committee on March 30.

Froelich said the General Assembly is also considering additional legislation aimed at responding to the needs of foster children and foster parents. “It’s encouraging, the attention that’s being padi to the importance of foster parents and foster families and the need among foster youth for families,” she said.

Congress, too, is considering federal legislation to forbid a wide array of discrimination in foster care and adoption services. During the 116th Congress, a bill called the Every Child Deserves a Family Act was introduced in both chambers, but did not receive a committee vote. Gingold said she is optimistic that the Democratic majorities in the House of Representatives and Senate will consider it when reintroduced later this spring.

Republican opponents of requiring religious organizations who participate in publicly funded child welfare systems to adhere to a non-discrimination mandate have introduced a competing measure called the Child Welfare Provider Inclusion Act of 2021.

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