Texas Child Protection Law Bench Book

2024 version: As effective October 1, 2024

Disproportionality and Equity

Introduction

Please see the Checklist Section for the NCJFCJ Courts Catalyzing Change Bench Card.

A. Background

Disproportionality is a term to describe when a particular racial or cultural group is represented within a social system at a rate or percentage that is not proportionate to their representation in the general population. Disparity refers to the differences in outcomes and conditions for some groups of people compared to other groups because of unequal treatment or services. African American and Native American children are disproportionally represented and have worse experiences and outcomes than Anglo children in the nation's child welfare system.

Disproportionality has most significantly affected African American children, with national data indicating that African American children represent 23% of children in foster care, although they represent only 14% of children in the general population.[291]^,[292] This overrepresentation of African American children has been observed in the child welfare system for more than thirty years, yet persists as a national concern.[293]^,[294]

Disproportionality and disparity can be seen in the experience and outcomes of other populations as well. For example, a 2019 research study by the University of Texas at Austin found that 30.4% of youth in foster care self-identify as Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) compared to 11.2% of youth who self-identify as LGBTQ in the general population.^[295] Compared to heterosexual youth in foster care, LGBTQ youth in foster care report greater disparities in terms of school performance, mental health, and victimization.[296]^,[297]

B. In Texas

In Texas, the issue of disproportionality and disparities is complex. DFPS data from FY 2023 show:

•   Statewide, compared to Anglo children, African American children are:

◦   1.9 times more likely to be reported,

◦   2.1 times more likely to be investigated, and

◦   1.8 times more likely to be removed.

•   Hispanic children had similar or better outcomes compared to Anglo children across many counties but not all counties statewide.

•   Most of the largest urban counties had some disparities for Hispanic children compared to Anglo children; however, it should be noted these disparities were less pronounced than the disparities observed for African American children.

•   Across the state, the overall rate of decline in child removals remains consistent with FY 22. Although all children were impacted by this decline, African American children were least impacted from the reduction in removals.[298]

After removal, African American children are less likely to reunify and, if reunification is ruled out, they wait longer for adoption than other populations. African American children are overrepresented in foster care, Anglo children are proportionately represented, and Hispanic children are underrepresented. However, most Hispanic children wait longer than Anglo children to be adopted.[299]

DFPS collects data at critical decision points in the CPS system by race and ethnicity to measure and understand the extent of disproportionality in the child welfare system. In 2022, DFPS established an Office of Addressing Disproportionality and Disparity with two State Disproportionality Managers and two program specialists who oversee efforts across all divisions of DFPS. The Office is tasked with providing support and training to DFPS staff as well as community partners to improve the response to disproportionality and disparate outcomes in child welfare cases. More information can be found on the DFPS webpage Disproportionality in Child Protective Services System including information on The Texas Model, Texas Community Engagement Model, and other CPS initiatives.[300]

C. Addressing Disproportionality

Many Texas judges want to know what they can do to combat disproportionality from the bench. As community leaders, judges are in a key position to lead efforts in their jurisdiction to address these important issues. Advancing equity in the child welfare system requires acknowledgement of the existing disparities and understanding root causes. Understanding the history of the community which a judge serves will provide a more robust context in which to assist the children and families before the court. Asking the question, “What is this family looking for and what does this family need?” will be easier to answer when acknowledging the breadth of each person's identity and experiences.

Efforts to partner across systems to provide training and strengthen awareness are ongoing. In March 2023, the Department of Family and Protective Services Disproportionality Managers co-presented a CLE entitled “Increasing Awareness and Advocacy around Disproportionality,” at the State Bar of Texas' 5^th Annual Advanced Child Protection Law Course.

In 2016, the Supreme Court of Texas and Texas Court of Criminal Appeals spearheaded the Beyond the Bench: Law, Justice, and Communities Summit. The Summit brought together leaders from various sectors of the community and participants generated several “Big Ideas” to address disproportionality and disparity. The ideas generated from this Summit provide practical steps for judges seeking to address disproportionality within their jurisdiction.

Some of these “Big Ideas” from the Summit as well as additional efforts that may be helpful in advancing equity at the local level include:

•   Convene judicially-led community meetings (or Courageous Conversations) to discuss planning, data, and desired outcomes in the context of the administration of justice.

◦   engaging diverse populations and community stakeholders in meaningful conversations and practice improvement will provide more meaningful avenues for change. Local leaders in equity work might be good partners to inform and further efforts to address these issues in child welfare.

◦   obtaining and understanding a court's data as it relates to disproportionality and disparity.

•   Work with court stakeholders to understand and address issues presented by local and regional data. Ask an independent party or organization, outside of the court, to track demographics including race with the intention of evaluating and checking assumptions about what the data reveals.

•   Explore the need, feasibility, and sustainability of a specialty court docket such as drug, mental health, and veteran courts.

◦   consult the Texas Specialty Courts Resource Center for support and more information.

•   Educate all members of the court system about the various roles others have to create a more unified system that can help with all aspects of the needs of the individuals.

•   Prioritize training regarding implicit bias for all court stakeholders.

◦   there are many trainings available on equity and implicit bias, in-person and online, that can educate court staff.

•   Utilize a checklist to provide reminders during a case to be aware of and guard against bias. The National Council of Juvenile and Family Court Judges (NCJFCJ) developed the Courts Catalyzing Change Preliminary Protective Hearing Benchcard, a practical and concrete judicial tool for use at the first court hearing. This bench card reflects best practices for one of the most critical stages in a child abuse and neglect case.[301]

◦   creating common language among court stakeholders is an important step to establish an understanding of race equity and inclusion principles.

D. Practice Tips

1. Tips to Improve Decision-Making in Child Welfare Hearings[302]

•   Make sure parties and key witnesses are present and if they are not present, verify whether they were properly served/subpoenaed.

•   Review petition out loud with all parties present to ensure it includes allegations specific to each parent. If there is no dangerous act or omission on part of a parent, the child goes home with that parent.

•   Engage the parents by name and allow opportunity for parents and youth to inform the Court of their pronouns, if desired.

•   Inquire if reasonable efforts were made to prevent removal. Assure family decision making tools were utilized, such as a Family Team Meeting (FTM).

•   Ask yourself if the family's cultural background, customs, and traditions have been taken into account with the events and circumstances that led to the removal. Think about whether these aspects of the family actually make a child unsafe or at risk, even if they are different from your own expectations of family life and parenting.

•   Ask what is preventing the child from returning home or to a relative TODAY? And consider whether any of the barriers preventing the child from returning home are related to a systemic issue that is making it more difficult for the parent or child to access the support they need.

•   Consider the appropriateness of current placement and whether it is culturally responsive and provides trauma responsive supports and services.

•   Allow opportunity during the hearing for discussion and concerns related to systemic issues for parents and/or children involved in the case.

•   Close the hearing with a specific question to ensure that the parties understand what happened or allow an opportunity for parents to ask questions about anything they did not understand.

E. Key Concepts

•   Equitable practice is the consistent and just treatment of all people, including individuals who belong to underserved and marginalized communities.[303]

•   Explicit biases include overt acts of discrimination, racism, and prejudice. Explicit bias is easier to identify. People are typically aware of the explicit biases they may possess because it is a conscious bias. Implicit biases can be more difficult to assess because they include unconscious attitudes and beliefs.[304]

Research shows that individuals naturally develop unconscious attitudes and stereotypes as a routine process of sorting and categorizing the vast amounts of sensory information they encounter on an ongoing basis. These unconscious associations can influence judgment. For example, one study showed that 80 percent of white judges more strongly associated Black faces with negative words, and white faces with positive words.[305] Relying on data by counting outcomes, using tools to engage deliberate thinking, training, and judicial leadership can all counterbalance the bias which is frequently inherent in our intuition.

1. Reflections to Protect Against Implicit Bias

Ask yourself, as a judge:

•   What assumptions have I made about people based on their race, ethnicity, culture, sexual orientation, gender, profession, or background?

•   How might my assumptions influence my decision-making?

•   How have I challenged any assumptions I might have made based on race, ethnicity, culture, sexual orientation, gender, profession, or background?

•   Have my assumptions created inequitable outcomes in my Court?

•   Have I maintained accountability for myself and my courtroom practices in checking and removing bias?

2. What are the Differences Between Equality, Equity, and Justice?

Seeking to provide families before the court with the best opportunity to achieve permanency requires a review of court practices to ensure each family receives the support and services based on their individual needs and resources. This graphic demonstrates how courts can examine system practices with a goal towards equity and justice.

Graphic recreated by the Busara Center from Tony Ruth's depiction of Shel Silverstein's The Giving Tree.

F. Additional Resources

•   American Bar Association:

◦   Implicit Bias Videos and Toolkit[306]

◦   Race and Poverty Bias in the Child Welfare System: Strategies for Child Welfare Practitioners[307]

•   Annie E. Casey Foundation, Race Equity and Inclusion Action Guide: 7 Steps to Advance and Embed Race Equity and Inclusion within Your Organization[308]

•   Center for the Study of Social Policy (CSSP), Key Equity Terms and Concepts: A Glossary for Shared Understanding [309]

•   Child Welfare Information Gateway, Disproportionality Resource Page[310]

•   “Equity as a Foundation for a Trauma-Informed Court” presentation during the Judicial Trauma Institute[311]

•   Kirwan Institute for the Study of Race and Ethnicity, Implicit Bias Module Series for Child Welfare[312]

•   National Center for State Courts, 2020 Ensuring Justice in Child Welfare Summit[313]

•   NCJFCJ, Addressing Bias in Delinquency and Child Welfare Systems Bench Card [314]

•   Project Implicit, Implicit Association Test (IAT)[315]