By Luke Srodulski

When Minnesota Governor Tim Walz signed House File 4065 into law on June 2, 2022, much of the media coverage surrounded provisions legalizing THC-infused edibles and beverages, and whether Republican state lawmakers had actually intended to pass them.^[1]

Far less notable to most observers were reforms to child welfare law.^[2] These amendments prioritized placing children with relatives if reuniting them with their parents is impracticable,^[3] and they added developmental disabilities to the factors the court must consider when evaluating the best interests of a child in custody disputes.^[4]

However, the Minnesota Legislature’s changes to the definition of “reasonable efforts” by social services agencies may ultimately be the most consequential legal reform in House File 4065.^[5] And yet, it is not enough.

When the U.S. Congress passed the Adoption Assistance and Child Welfare Act of 1980, it made funding for states contingent upon their use of reasonable efforts to prevent the removal of children from their families.[6] Apart from baseline expectations such as prioritizing children’s health and safety,^[7] what those efforts look like was largely left to states.

House File 4065 appears to be a step toward family preservation. It requires that for services to constitute reasonable efforts, the agency providing them must collaborate with a child’s family—as well as the child, if appropriate—when selecting the services.^[8] It mandates that courts consider whether services were tailored to the individualized needs of the child and their family.^[9] It also amends the term “culturally appropriate services,” which is included under reasonable efforts, to “culturally appropriate services and practices,” without ever defining “practices.”^[10]

Although they are a positive, these piecemeal changes do not adequately address the circumstances of child welfare removals in Minnesota. In 2020, 70% of Minnesota children found to be victims of maltreatment suffered neglect as opposed to other forms of maltreatment,^[11] which under state law include mental injury, physical abuse, sexual abuse, substantial child endangerment, and threatened injury.[12] Nearly 5,000 children were removed from their homes that year on the basis of maltreatment,^[13] a number that likely would have been much higher if not for the COVID-19 pandemic.[14] In approximately half of these cases, the primary reason recorded for the removal was caretaker drug abuse or alleged neglect.^[15] Neglect includes failure to provide necessary food, clothing, shelter, and other needs.^[16]  It is strongly associated with poverty,[17] so unsurprisingly, states that implement more restrictive public assistance policies see higher rates of neglect and removals due to neglect.[18]

Race and poverty are also strongly associated,[19] and removal data also tells a story of racial disparities: in 2020, indigenous children (who are protected by a heightened “active efforts” standard)^[20] were 16.4 times more likely than white children to be removed from their home, and Black or African American children were 2.4 times more likely.^[21] While data is separated by race or ethnicity as well as by primary reason for removal, it does not show how race or ethnicity is related to the primary reason for removal.[22]

These disparities may be in part due to a lack of consistency and transparency within the reasonable efforts standard.^[23] For instance, safety plans are a required element of reasonable efforts, yet a report from the Office of the Legislative Auditor (OLA) found that in approximately 60% of cases, no safety plan existed prior to removal.^[24] In many cases, the court found that meeting the efforts standard was not possible, sometimes with no explanation.^[25] Court orders have also either stated that the standard had been met without explaining how, or they have referenced “services,” without indicating which services supported the finding.^[26]

The OLA found one removal case where the initial court order documented so-called reasonable efforts by listing basic case management tasks like conducting an assessment in response to a child maltreatment report.[27] The social worker in this case stated in an affidavit that the parent needed a chemical dependency assessment, but the file contained no evidence of the agency attempting to secure one before the child was removed.[28] In another case, the court order outlined efforts to locate a relative with whom to place a child, but it did not document any attempt to assist the parent to avoid removal in the first place.[29]

This inconsistent and inadequate application of the reasonable efforts standard may in part be explained by the state’s county-administered child welfare system. Minnesota is one of nine states with such a structure, as opposed to a centralized administrative system.[30] It may also be that some of the most influential cases on the matter have not held muster. One regularly cited decision states that the nature of services under the standard “depends on the problem presented.”^[31] Another held that “[m]ere poverty of the parents is seldom, if ever, a sufficient ground” for removal.”^[32] These statements, like the amendments made by House File 4065, have good intentions but have not been nearly enough to address disparities in child welfare removals.

The Minnesota Legislature’s next step must be to make larger-scale procedural changes. These could include: (1) centralizing the administration of the child welfare system; (2) strengthening the language of the reasonable efforts standard to remove confusion about what is required; (3) increasing funding for training public defenders on the reasonable efforts standard; (4) adding a clause requiring non-discrimination in enforcing the law; (5) requiring that the Department of Human Services maintain a database of potential services that would satisfy the standard; and (6) directing agencies to put the parents under investigation and their children at the center of any discussions about removal. Minnesota’s application of the reasonable efforts standard needs an overhaul that state action to this point has not provided.

 

Luke Srodulski is a staff member for Volume 41 of the Minnesota Journal of Law & Inequality

[1] See Edibles, beverages laced with THC legal Friday in Minnesota, Associated Press (June 30, 2022), https://apnews.com/article/minnesota-marijuana-recreational-9460492d5f187d2d6c55ecf8232ae302; Shauneen Miranda, Minnesota lawmakers voted to legalize THC edibles. Some did it accidentally, NPR (July 2, 2022), https://www.npr.org/2022/07/02/1109576113/minnesota-thc-edibles-accident-delta-8; Paul Demko, Did Minnesota accidentally legalize weed?, Politico (July 10, 2022), https://www.politico.com/news/2022/07/10/did-minnesota-accidentally-legalize-weed-its-complicated-00044544.

[2] H.F. 4065, 92nd Leg., Reg. Sess. (Minn. 2022), available at https://wdoc.house.leg.state.mn.us/leg/LS92/HF4065.3.pdf.

[3] Id. at 243.

[4] Id. at 290.

[5] Id. at 236–241.

[6] 42 U.S.C. § 671(a)(15)(B).

[7] 42 U.S.C. § 671(a)(15)(A).

[8] Minn. Stat. § 260.012(f) (2022), amended by H.F. 4065, 92nd Leg., Reg. Sess. (Minn. 2022).

[9] Minn. Stat. § 260.012(h)(2) (2022), amended by H.F. 4065, 92nd Leg., Reg. Sess. (Minn. 2022).

[10] Minn. Stat. § 260.012(a) (2022), amended by H.F. 4065, 92nd Leg., Reg. Sess. (Minn. 2022) (emphasis added).

[11] U.S. Dep’t Health & Hum. Servs., Admin. for Child. & Fams., Child.’s Bureau, Child Maltreatment (2020), https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2020.pdf.

[12] Minn. Stat. § 260E.03, subd. 12 (2022).

[13] Minn. Dep’t Hum. Servs., Minnesota’s Out-of-home Care and Permanency Report (2020), https://edocs.dhs.state.mn.us/lfserver/Public/DHS-5408Ma-ENG.

[14] See Robert Sege & Allison Stephens, Child Physical Abuse Did Not Increase During the Pandemic, 176 JAMA Pediatrics 339, 339 (2022) (finding that despite warnings that child maltreatment would rise amid increased home confinement and decreased interaction with mandated reporters, child welfare reports plummeted during the COVID-19 pandemic while emergency department visits and hospitalizations were stable).

[15] Minn. Dep’t Hum. Servs., supra note 13.

[16] Minn. Stat. § 260E.03, subd. 15(a) (2022).

[17] Melissa Jonson-Reid , Brett Drake & Pan Zhou, Neglect subtypes, race, and poverty: individual, family, and service characteristics, 18 Child Maltreatment 30, 31 (2013).

[18] Emma Kahle Monahan, Yasmin Grewal-Kök, Gretchen Cusick & Clare Anderson, Economic and Concrete Supports: An Evidence-based Service for Child Welfare Prevention, Chapin Hall (April 13, 2023), https://www.chapinhall.org/wp-content/uploads/ECS-and-FFPSA-Brief_FINAL-4.13.23.pdf.

[19] Minn. Dep’t Health, People in poverty in Minnesota (2019), https://data.web.health.state.mn.us/poverty_basic.

[20] Minn. Stat. § 260.762 (2022), amended by H.F. 4065, 92nd Leg., Reg. Sess. (Minn. 2022).

[21] Off. Legis. Auditor, Child Protection Removals and Reunifications (2022), https://www.auditor.leg.state.mn.us/ped/pedrep/childprotect.pdf.

[22] Minn. Dep’t Hum. Servs., supra note 13.

[23] An inconsistent approach to child welfare, Star Trib. (July 4, 2022), https://www.startribune.com/an-inconsistent-approach-to-child-welfare/600187620/.

[24] Off. Legis. Auditor, supra note 21.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] U.S. Dep’t Health & Hum. Servs., Admin. for Child. & Fams., Child.’s Bureau, How the Child Welfare System Works (2020), https://www.childwelfare.gov/pubpdfs/cpswork.pdf.

[31] In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).

[32] State ex rel. Fossen v. Hitman, 205 N.W. 267, 267 (1925).