This story was originally published by The Imprint, a national nonprofit news outlet covering child welfare and youth justice. Sign up for The Imprint’s free newslettershere.
A state district court judge has struck down the early rollout of a landmark child welfare law in Minnesota meant to minimize disproportionality.
The court said the Minnesota African American Family Preservation and Child Welfare Disproportionality Act’s gradual implementation is unconstitutional because protections are not being granted to all who are eligible.
The law requires social workers to make “active efforts” to avoid separating children from their families if they are from groups overrepresented in foster care due to their “race, culture, ethnicity, disability status, or low-income socioeconomic status.”
The act, passed in May 2024, is set to take effect statewide on Jan. 1, 2027. But two large counties, Hennepin and Ramsey, began rolling out the new provision this January as part of a “phase-in” plan developed by the state Legislature. Under the local pilot programs, the new standards initially applied to 30% of eligible cases, with those percentages increasing gradually over time.
The new court ruling, issued Dec. 3 in a U.S. District Court in Hennepin County, states that this aspect of the law violated the 14th Amendment’s right to equal protection, “treating some families as test cases, while excluding others from the services and protections.”
“The Phase-In is decidedly underinclusive. It excludes a significant percentage of the population the statute is designed to benefit,” District Court Judge Matthew Frank wrote. “It discriminates on the basis of race and the randomness of geography and timing.”
Frank’s order bars the law’s two-year implementation from continuing as envisioned by lawmakers. As a result, unless the Legislature creates a new phase-in approach that does not violate Constitutional rights, the law will take effect statewide on Jan. 1, 2027 — and apply to all eligible children at once.
Follow-up responses have been swift.
State Rep. Esther Agbaje, who authored the African American Family Preservation and Child Welfare Disproportionality Act, told The Imprint Thursday “there are plans” to update the legislation in the 2026 session.
Minnesota state Rep. Esther Agbaje, seen here in 2020, authored the Minnesota African American Family Preservation and Child Welfare Disproportionality Act, which passed in May 2024. Credit: Jaida Grey Eagle | Sahan Journal
“This ruling provides additional guidance that will augment the insights gained through Ramsey and Hennepin counties’ implementation,” she wrote in an email. “We know this legislation is essential for supporting Black children who are overrepresented in Minnesota’s welfare system. We will continue working closely with the Minnesota Department of Children, Youth, and Families to protect and enhance the systems meant to shield these children from greater harm.”
A spokesperson for Ramsey County said the implications are still being assessed, but that the county is staying the course for now.
“At this time, Ramsey County is not changing our approach to the identified Phase In program,” Casper Hill told The Imprint.
A spokesperson for Hennepin County’s Department of Human Services also responded to inquiries, but said the impact of Frank’s ruling is not yet clear.
“We are evaluating how to move forward, in consultation with our legal counsel, the Minnesota Department of Children, Youth, and Families and Ramsey County,” Maria Elena Baca, spokesperson for the county’s Department of Human Services, wrote in an email. “We have a history of strong work in this area — our work to launch the act is another powerful step toward our goal of eliminating disparities in the child welfare system.”
Baca added that Hennepin County supports the “phase-in process” and “is committed to disparity elimination and to the specialized needs of each family in our child welfare system. We stand firm in our support for the Minnesota African American Family Preservation and Child Welfare Disproportionality Act.”
Already, Baca added, “positive impacts” have been shown “in the need for case management, out-of-home placement and court involvement.”
‘Extremely disappointing’ for African Americans
Members of the Minnesota Legislature tried for years to pass various versions of the law, to increase protections for Black families facing child welfare investigations and separated by foster care removals.
At the time the first bill was introduced in 2017, Black children were three times as likely to be removed from their homes as white children. More recently, state data shows that in 2023, both Black and Hispanic youth were around twice as likely to be in out-of-home care, while Native American youth were 16 times more likely.
Given those dire statistics, family advocates such as Kelis Houston, founder of the nonprofit Village Arms, fought hard for reforms that would reduce the child welfare system’s disparate treatment of Black families. But reached Thursday, she said she was unsurprised by the ruling.
Kelis Houston Credit: Provided
“From the beginning, we have been clear that phasing in the law is problematic. We’ve voiced that concern time and time again,” Houston said.
She argued that the law’s “should apply to all qualifying families, not just those who are cherry-picked by county staff. Selective application undermines both the spirit and the purpose of this legislation.”
In addition to only applying the heightened protections to a portion of eligible families during the rollout phase, the two counties also excluded many of the groups covered by the law, court filings show. Only youth who are Black, mixed race or Indigenous but not subject to the Indian Child Welfare Act have been included so far.
Prior to the passage of the African American Family Preservation and Child Welfare Disproportionality Act, only children who are members of Native American tribes or eligible for tribal membership have been afforded active efforts. All others had been held to a lower standard of “reasonable efforts” — referring to the actions social workers must take to try to keep families intact or place children with kin before they can be removed from home or parents’ rights are terminated.
But challenges to the law were expected in some legal and child welfare circles — including among Native American legal scholars who pointed out that active efforts for tribal children and families was granted by Congress in 1978 not due to their race, but their sovereignty as citizens of tribal nations subjected to a legacy of child removal.
Extending those protections based on race to include African Americans could face constitutionality questions, they warned. Critics of earlier, unsuccessful versions of the bill argued that it would be unconstitutional for CPS to treat people differently based on race.
The bill that ultimately passed addressed that concern, broadening the scope of who would receive active efforts — and thus be better protected from family separation. It included any child from communities disproportionately impacted by the child welfare system, including disabled or poor children.
Under this new law, social workers must work harder to keep these families together. The courts require higher standards of evidence for substantiating allegations of abuse or neglect in court, and child welfare agencies must prioritize in-home services, with children remaining with their parents whenever possible as opposed to removal. Similar to what must be done for tribal youth under the Indian Child Welfare Act, if removal is deemed truly necessary, relatives and kin must be prioritized as caregivers.
Robert Ludgate, a Siksika Nation descendant who has worked in the Indian child welfare field for more than two decades acknowledged the challenges the new law faces in court, given that other overrepresented groups in foster care don’t have the sovereignty and legal status of tribes. But he lamented the setback the recent ruling causes for families eligible for the new law’s protections.
“This is extremely disappointing for African American families, as active efforts make such an impact,” Ludgate said.
The phase-in process of the act was meant to “ensure an orderly, accurate and effective” rollout of the law, according to court documents. In his Tuesday ruling, Judge Frank acknowledged the resource and staffing burden placed on local child welfare agencies, noting it requires considerable effort to hire and train staff, create necessary community-based programs and services, and track and report data. But he said that doesn’t justify excluding eligible families from the law’s protections.
The plaintiff in the motion challenging the gradual ramp-up is a Black mother, Mariah Banks, who had two children removed by Hennepin County child welfare authorities. The removal of her second child occurred in the early stage of the Minnesota African American Family Preservation and Child Welfare Disproportionality Act’s phase-in.
In court filings, Banks states that she and her family are eligible under the law, but that her case was not selected during the phase-in to receive the heightened protections it provides.
Her lawyers argue that the phase-in approach that extends the protections to only some eligible families “creates a discriminatory subclass within a protected group.” They note that there’s no publicly available data explaining “how or why certain African American families are chosen over others.”
They also detail what they consider the consequences of the Department of Children, Youth and Families deciding “arbitrarily and capriciously that it will not apply the protection” to Banks and her children.
“Her children have been removed from her care and placed in the care of a white foster parent who has no relation to Ms. Banks or her children,” court filings state, adding that CPS has moved to terminate parental rights and allow the foster parent to adopt Banks’ children.
While one of Banks’ goals with the motion was to remedy her situation and have the law’s protections applied to her family, Frank said the court cannot do that and denied that part of her request.
Attorney and law professor Joanna Woolman — who represented parents like Banks as a public defender in her early career and now runs a legal services organization for kinship caregivers — said immediate next steps in the wake of the ruling are unclear, but that the case highlights legal issues that need to be addressed.
“My hope is that really, this is an opportunity to surface some real questions and problems that are happening around the phase-in and implementation, and that counties and the state agency are going to be able to come together to proactively ensure that this act can roll out when it’s supposed to,” she said.
Houston, of Village Arms, is also looking ahead.
“We are hopeful that this ruling will compel our legislators to step in and ensure” that the law is applied fairly and consistently, she said. “Every qualifying family deserves access to the protections intended for them, and it is critical that the implementation of this law reflects the equity and accountability our communities fought so hard to secure.”
