Latest Update November 5, 2021

Plaintiffs Respond to Government's Latest Filings - Urge Court to Set Aside Unlawful 2020 Rule

The Department of Health and Human Services and the Administration for Children and Families unlawfully rescinded requirements for child welfare agencies to report crucial data about marginalized foster youth and parents. In May 2020, the Trump administration announced it would eliminate data collection requirements intended to aid American Indian/Alaska Native (AI/AN) and LGBTQ+ foster youth and families. In doing so, the administration gratuitously upended over a decade of work that led to the widely-supported 2016 update of the Adoption and Foster Care Analysis and Reporting System (AFCARS).

The AFCARS system collects data about the safety, health, and long-term outcomes of almost five hundred thousand children in the U.S. foster system — who overwhelmingly hail from low-income families and families of color, due to systemic inequities.

The 2016 rule required child welfare agencies to report statistics on the sexual orientation of foster youth aged 14 and older, foster parents and adoptive parents, and legal guardians, based on voluntary questions to those individuals. It also mandated reporting of how child welfare agencies implement the requirements of the Indian Child Welfare Act, a law intended to prevent AI/AN children from being removed from their tribes inappropriately and to help families, tribes, and children protect their rights.

The data is critical to improving outcomes for LBGTQ+ and AI/AN youth in the U.S. foster care system. Without it, the government, child welfare agencies, tribes, and organizations serving foster youth will lack a full and accurate picture of marginalized populations in the system.

These vulnerable populations have unique needs, yet suffer negative treatment and outcomes — including homelessness, abuse, sex trafficking, involvement in the criminal justice system and more — at a far higher rate than other youth in out-of-home care.

LGBTQ+ youth will be left behind if advocates and organizations are unable to determine whether they are reaching the full population of LGBTQ+ youth in the child welfare system, leaving LGBTQ+ youth overrepresented in foster care and at heightened risk of abuse or trauma.

AI/AN children will be lost to tribal governments and agencies, who will be left guessing if their youth are in foster proceedings or being properly protected under ICWA. Too often, child welfare agencies remove AI/AN foster youth from their tribal communities and ignore the rights of tribes to participate in the foster care process.

HHS and ACF’s gutting of foster care data reporting is part of the Trump administration’s insidious pattern of eliminating programs that survey and identify the needs of BIPOC and other marginalized communities and undermining legal protections against discrimination.

On behalf of a coalition of plaintiffs, we’re suing the Trump administration for violating the Administrative Procedure Act in rescinding the 2016 AFCARS rule. Reinstatement of AFCARS data collection is necessary to help groups identify the most pressing challenges facing youth and families, direct resources more effectively, and reduce negative outcomes for youth.

Democracy Forward, Lambda Legal, and the Michigan State University College of Law’s Indian Law Clinic are representing a California-based coalition of tribes (the California Tribal Family Coalition), two federally recognized Indian tribes (Cherokee Nation and Yurok Tribe), and four organizations across the country that work with LGBTQ+ and foster youth (Ark of Freedom AllianceFacing Foster Care in Alaska, the Ruth Ellis Center, and True Colors, Inc.).

The suit was filed on August 27 in the U.S. District Court for the Northern District of California. Read it in full here.