A hope for change: Indian Child Welfare Court aims for better outcomes for Native American families
DULUTH — Samantha Jackson balanced her 9-month-old baby, Elias, carefully on her lap inside 6th Judicial District Judge Sally Tarnowski's courtroom one January day.
Gathered around four heavy tables pushed together in the middle of the room, Jackson and Elias — there for a hearing — were joined by Tarnowski, attorneys and social workers. There was good news to be finalized: Jackson was regaining full custody of her two children, and her child protection case was being closed.
"It's a really good day when we can return a child to his mother," Tarnowski told Jackson, 24, congratulating her on her efforts. Jackson, emotional, hugged a friend and Elias tightly as she left the courtroom.
Hers was one of 30 cases Tarnowski heard that day during a four-hour period in her Indian Child Welfare Court, begun in the spring of 2015 as a way to offer a better, more culturally sensitive experience to Native American families moving through the legal system. Minnesota has the biggest disparity in the country in the number of Native American kids placed in foster care in relation to its population of Native Americans. And in St. Louis County, the disparity is even greater.
In 2015, 24 percent of county placements were for Native Americans, who make up only 2.4 percent of its population. Statewide, 19 percent of placements were Indian children, with the population of Native Americans less than 2 percent. According to the state's Department of Human Services, Indian children in Minnesota were 17 times more likely to to be placed in a foster home than white children.
Once taken from their families, Indian children typically fare worse than others, staying longer in foster care and moving from home to home, with high rates of post-traumatic stress disorder and eventual homelessness, according to a Minneapolis Star Tribune report.
Trauma runs deep
Two years ago, Tarnowski attended a training in Duluth given by the National Child Welfare Resource Center on Legal and Judicial Issues. Stories of historical trauma that have helped lead to that disparity, and also what led to the creation of the Indian Child Welfare Act, were shared, Tarnowski said, creating "a little fire in my belly."
"I wanted to try something new," she said.
With the help of the University of Minnesota Duluth's Center for Regional and Tribal Child Welfare Studies, she formed a group of area public and tribal child welfare workers, from reservations ranging from Grand Portage to White Earth, to meet regularly over lunch. That group helped inform the new court. It also has helped build stronger relationships and understanding between everyone involved, said Brenda "Bree" Bussey, project director of the UMD Center for Regional and Tribal Child Welfare Studies.
"There are two critical things about the (Indian Child Welfare Act); what the statute says is one. The other piece of that is the why," she said of what was discussed during those meetings. "We are helping them see what the why is. There is a long history there."
The Indian Child Welfare Act, or ICWA, was passed in 1978. The federal law works to keep Native American families together and was created in response to high numbers of Indian children being removed from their homes by public and private agencies. The history Bussey refers to includes loss of land, culture, language and identity.
Federal boarding schools, for example, were in service from the late 1800s through the first half of the 1900s. Native American children were taken from their homes and forced to assimilate to white culture, kept from speaking their native languages. Many children experienced abuse and neglect and spent years without their parents, leading to cycles of mental health issues, drug and alcohol addiction and poor parenting skills.
Families were destroyed through child removal and the breaking up of tribes, said Priscilla Day, director of UMD's child welfare studies center and a member of the Leech Lake Band of Ojibwe.
And it's not just historical trauma, she said. Even today, sovereignty issues affect Indian families, and that filters into the child welfare system.
Trauma runs deep, Day said, and "telling someone to get their act together so they can be a better parent, that doesn't cut it."
Poverty plays a huge role. For many families who enter the system, a crisis can "totally wipe them out," she said. "This is about all of those traumas and lack of resources that exacerbate what for other families might be a crisis, but wouldn't be to the point where you are losing your kids."
'I was stuck'
Baby Elias spent 47 days in a neonatal intensive care unit in Duluth, born addicted to heroin and methadone. Jackson had relapsed when she was five months pregnant and, after ineffective methadone treatment, was left with a wrenching choice: continue to use heroin and give birth to an addicted child, or stop using at the risk of the unborn baby dying from withdrawal complications. The drugs continued.
"Going through that pregnancy using was the most horrible experience of my life," she said. "I was stuck.
"The day after he was born, he started shaking," Jackson said, describing the tremors common to infants going through withdrawal. "That's the hardest thing I've seen in my life. Watching my baby go through this illness, this sickness that I caused. And I know exactly how he feels."
Straight from the hospital into inpatient treatment at Duluth's Marty Mann House, Jackson was able to visit Elias daily while he was treated for withdrawal symptoms. Those using methadone to treat heroin addiction are able to safely breastfeed, and Jackson chose to breastfeed her son. She stuck with treatment and held onto a stable home to raise her family.
When Elias was released from the hospital, he went into foster care, while Jackson continued to have regular visits. Her other son, Elijah, 6, was also in foster care. At one point in Elijah's life, Jackson was in danger of permanently losing parental rights, unable to get a handle on her addiction. She was given another chance but still struggled with heroin.
From her Lincoln Park apartment, decorated with Native American dream catchers and wall-hangings, Jackson spoke of her journey.
Her father was in the military, and she was born in Germany. She suffered abuse by her mother, and her father took her away when she was 5. Her father died from heart complications when she was 12, and Jackson today has no knowledge of her mother, nor does she have any other family support. She's been living with her kids for a few months, with regular check-ins from county workers. Since that mid-January day, though, it's just the three of them. Tarnowski told her in court help was still available if she needed it, and to seek it without hesitation.
A small group of close friends supports her as she settles into being a single mom raising two young children on her own.
Although Jackson isn't where she wants to be in life yet, with goals to go to school and someday advocate for women and substance abusers, "I feel really good," she said.
ICWA hearings take place once a month, only in the afternoon. That gives faraway tribal workers or parents more time to drive in, and increases the likelihood that all of the parties will come. Before the creation of the court, such hearings were scheduled on a weekly basis, and might mean multiple trips in one month to Duluth for tribal social workers and attorneys.
In the middle of the tables inside the courtroom sit the Native American medicines sage, tobacco and sweetgrass. Everyone — from the clients to the judge — sits on the same level in a square. ICWA cases can include multiple attorneys and parents, social workers and a guardian ad litem. Before this court, all child protection cases were heard in a smaller, more intimate court. But it meant that people were talking to the backs of heads, Tarnowski said.
"That didn't feel good; there was no eye contact," she said.
The concept of having judges specialized in Indian child welfare cases is a good one, because it eliminates the bouncing back and forth between ICWA, with its nuances, and regular child protection cases, said Ben Stromberg, head of the public health and human services division of the St. Louis County Attorney's Office. He is concerned, he said, that the volume of cases could be too much for one judge, "but we're certainly hopeful."
The difficulties of ICWA cases lie in finding culturally-appropriate foster homes, with relatives if possible, keeping kids together and reducing the number of times they are moved from home to home.
In 2015, only 13 percent of foster parents in St. Louis County were Native American.
Child protection work, to Tarnowski, has always felt like "problem-solving court."
"You work to get a person sober or on meds or whatever goals," she said. "In this case, the goal is to reunify kids with their parents, and if that can't happen, to at least reunify them with family or even community members."
Trauma is best handled when you have support and stability, she said, and that includes some sense of familiarity.
Social workers and attorneys — both tribal and county — know, for example, that Tarnowski will ask whether a foster placement is in a culturally appropriate home approved by the represented tribe. They know she will ask about "active efforts" to ensure kids see their parents if it's possible, visit with other family or get to appointments, for example. Tarnowski interprets it this way:
"It's not a legal standard, but what I would do for my kids is what we do for anybody's kids," she said.
Social workers try to make active efforts for all child protection cases, but ICWA requires it,
said Holly Church, division director for children and family services for the St. Louis County Public Health and Human Services Department.
In a complicated case this month involving two fathers, four kids and one mother, Tarnowski was worried the mother wasn't getting enough time with her kids, after missing a couple of visits because of situations beyond her control. She pushed the social workers to reschedule.
Church described needs addressed through active efforts: Ensuring a client has access to a phone with enough minutes for use, or transportation to appointments. County workers will drive them or help find a friend who will, and give gas money if necessary.
"It is really trying to look at what are the barriers to moving forward on the case," Church said.
Ann LeRette manages the guardians ad litem for the 6th Judicial District, who advocate for the best interest of the kids in child protection cases. She said she has noticed parents speaking up more in the new court setting.
Child protection court "is so intimidating," LeRette said, but the setting now is "as relaxed as court can be."
The court, she said, has drawn more attention to the shortage of Native American foster homes and services for kids, like therapy. Placing kids in the right Native American homes can be "transforming," she said.
To keep Indian families together, community resources are going to play a bigger part than court, Stromberg said, citing needs for culturally sensitive substance abuse treatment and adequate housing and physical and mental health care in the area, so families aren't burdened further by wait and drive times.
"You can have the greatest court in the world, and if a parent has to wait a month to get into chemical dependency treatment it doesn't matter, because that month is gone," he said.
'Eyes wide open'
Tarnowski's court is part of a large, federally-funded UMD study that is researching a better ICWA delivery system. The state also recently pledged money for UMD and the Department of Human Services to, in part, study why so many Native American kids in St. Louis County are in foster care, both studies Day is working on.
Childhood trauma increases the chances of poor mental and physical health, high stress levels and substance abuse. Intervention is needed in many parts of the system, which is why it's important for the court, social workers and others to understand it, Day said. And despite all of that, tribes and their families "keep going" — and working to understand their resiliency is just as critical, she said.
Tarnowski has no illusions about the court showing an immediate impact.
"I went into it with my eyes wide open," she said. "We may not see a dramatic change for a generation. ... We hope there will be change and that we will see change while we are in the midst of it, but I am fully aware it may be years."
That makes success stories like Jackson's especially sweet.
Jackson is determined to stay sober and keep her sons — both whom she wanted and planned for — with her. It's been a fight, she said, and she's grateful for the chances she's been given.
Elias, a happy, cherubic baby, has recovered with no apparent health effects. He's tracking along with every milestone, Jackson said, bestowing kisses on his forehead as she fed him a bottle.
"It's me or the system," she said. "I did it for my kids. I love my kids."