Comments

April 22, 2024 Ms. Aysha E. Schomburg, Associate Commissioner Children’s Bureau Administration for Children and Families United States Department of Health and Human Services 330 C Street, SW Washington, DC 20201 Via email: [email protected] Re: Notice of Proposed Rulemaking—Proposed Adoption and Foster Care Analysis and Reporting System data elements related to American Indian and Alaska Native children (RIN 0970-AC98; Federal Register, Volume 89, No. 37, published February 23, 2024, pages 13652– 13667) Dear Ms. Schomburg: As President and CEO of Cook Inlet Tribal Council (CITC), an Alaska Native tribal organization which serves as the primary education, social services and workforce development center for Native people in Anchorage, Alaska, I am privileged to offer the following comments with regard to the 2024 Adoption and Foster Care Analysis Reporting System (AFCARS) Notice of Proposed Rulemaking. CITC has been designated its tribal authority through Cook Inlet Region Inc., organized through the Alaska Native Claims Settlement Act and recognized under Section 4(b) of the Indian Self-Determination and Education Assistance Act (PL 93-638, 25 U.S.C. 450b). CITC builds human capacity by partnering with individual Alaska Native people to establish and achieve both educational and employment goals that result in lasting, positive change for our people, their families, and their communities. Demographics and Expanding Service Population CITC’s programs serve the Cook Inlet Region with an American Indian and Alaska Native (AI/AN) population of more than 50,000, or roughly 40% of the total Native American population in Alaska. In Anchorage alone, the Native population is more than 35,000. Directly and indirectly, CITC’s programs have statewide impact. As the Department is well aware, Alaska’s child welfare statistics demonstrate woeful disproportionality in the number of AI/AN children in out-of-home placement. Statewide, Native children constitute less than 20% of the population but make up approximately 60% of the out-of-home care population. In Anchorage, this disparity is even more significant; Native children comprise around 10% of the population but remain disproportionately represented in out-of-home care at rates of 50-60%. Unfortunately, this percentage has not decreased over the last 30 years. Page 2 of 7 Background American Indian and Alaska Native children have a unique legal status as citizens of tribal governments with federal laws, like ICWA, that provide important safeguards to help them maintain their tribal and family relationships. In 2016, the Department proposed to collect additional data related to ICWA through AFCARS. CITC was pleased to see this recommendation, considering that it would allow tribes, states, and federal agencies to develop a more detailed understanding of the trends in out-of-home placement and barriers to permanency for AI/AN children. For example, as far back as 2005, the GAO report on the implementation of ICWA indicated that one of the most important missing elements was the collection of data to measure state performance and support technical assistance efforts targeting AI/AN children. Noting this fact, CITC agrees that additional data elements will have a positive impact on states’ ability to comply with ICWA and for Tribes and Tribal organizations to obtain the information necessary to support that process and strongly supports the proposed NPRM. This unique legal status and the requirements of federal laws like ICWA are not addressed in current federal data collection requirements for state child welfare systems, which has contributed to states not having a full understanding of their progress in implementing ICWA and difficulty in developing effective and collaborative responses with tribes. Without collecting more detailed case-level data, it is also impossible for ACF to provide targeted assistance to states where there are implementation concerns. Additionally, Tribes and Tribal organizations suffer under the current AFCARS data limitations, as they do not have access to informed and accurate data needed to educate policymakers about the challenges their tribal children and families are experiencing or justify the appropriate solutions. Together, these AFCARS policy limitations over the last 30 years have hindered tribal and state efforts to address reoccurring and chronic concerns regarding the well- being of AI/AN children and families. AFCARS comments: With AI/AN children nationally facing disproportionate placement in state foster care at a rate over two times their population nationally and even higher in several states, combined with poor outcomes in other child well-being indicators, the need for ongoing, reliable, and accessible data has never been greater. In addition, the disproportionate placement of AI/AN children in state foster care systems has been present and not improved since AFCARS data began being reported in the 1990’s. In order to better address the persistent poor outcomes for Native children in out-of-home care and provide additional oversight to ensure that states are complying with ICWA, CITC strongly urges the inclusion of important AFCARS data elements with relation to ICWA. First and foremost, CITC reminds ACF that the Alyce Spotted Bear and Walter Soboleff Commission on Native Children included in its recommendations just the sort of data collection by ACF proposed here (see Recommendation 2). Page 3 of 7 CITC further supports the following proposals in the NPRM: • The NPRM proposes the first federal data elements that can provide detailed information on ICWA implementation. ICWA not only provides federal requirements for the care and placement of AI/AN children in state foster care systems, but it is also widely recognized as the “gold standard” in child welfare practice and policy. The NPRM proposes a series of data elements tied to ICWA requirements that will allow tribes, states, and federal agencies the ability to develop a more detailed understanding of trends in out-of-home placement and barriers to permanency for AI/AN children. The data elements in this proposed rule, combined with other AFCARS and federal child-related data measures, will provide a much fuller picture of the status of AI/AN children and families and the reasons behind the lagging child welfare outcomes they experience. As indicated in the NPRM, “ACF is the most appropriate agency in the Federal government to collect data from state child welfare agencies.” While the Bureau of Indian Affairs has statutory oversight of ICWA, they have no relationship with state child welfare agencies or the infrastructure or capacity to collect this type of data. CITC strongly supports ACF’s critical and appropriate role in collecting the data proposed in the NPRM and underscore that improved policy development, technical assistance, training, and resource allocation will result from having regularly updated and reliable data available and accessible in one place (within the AFCARS system). In fact, CITC considers this to be a primary responsibility of ACF. • CITC supports ACF’s commitment to collaborating with the Bureau of Indian Affairs to support the implementation of a subsequent final rule, with the caveat that ACF has more role and responsibility with state agencies regarding child welfare, including of Native children. The data elements proposed in the NPRM present an opportunity to expand cross-agency collaboration that could inform policy change across federal agencies that have the authority and responsibility to act, in partnership with tribal nations, on behalf of AI/AN children and families. These data elements are a necessary and practical stepping stone to ensuring that ICWA- eligible AI/AN children, families, and their tribal nation(s) receive the ICWA protections afforded them by federal law, therefore improving outcomes for AI/AN children and families. • CITC supports the inclusion of data elements related to the date of court determination of ICWA application, in order to understand when the court versus the agency began applying ICWA and contacting the child’s Tribe (please see below for further details). • CITC supports the inclusion of data elements that detail the proceeding of agencies after a request for transfer of jurisdiction was filed. For example, was the case transferred to tribal jurisdiction or was the request denied? However, CITC urges ACF to add the reasons for denial of transfer in its regulations. • CITC supports the elements that note whether foster care placement preferences were met, and specify which preference (including whether good cause was met). This allows agencies to understand if ICWA requirements were met and the basis for finding good cause,

Comment ACF-2024-0001-0047