Ruth-Arlene W. Howe

Ruth-Arlene W. Howe, Race Matters in Adoption, 42 Family Law Quarterly 465-479 (Fall, 2008) (54 footnotes omitted)

Abstract

In any discussion of adoption, ... we must not lose sight of its primary goal: to provide a permanent, secure, loving home for a child whose birth parents are unable or unwilling to meet the child's needs. Throughout ... we must never cease to ask the basic question: "Is it well with the child?"

*466 II. Personal Perspectives

Because of my perspective, shaped by academic training in social work and law, and professional experiences working in the field, I concur whole-heartedly with Professor Katz's view that the primary focus of adoption should be child-centered. Moreover, I interpret his exhortation never to cease asking the basic question "Is it well with the child?" as articulating an ethical obligation that all lawyers assume when working in the field of adoption. Hence, whether representing a prospective adoptive parent or relinquishing birth parent, formulating policy, drafting legislation or regulations, I believe that lawyers have an ethical responsibility to make promoting the welfare and "best interests" of a child the priority.

In prior writings, I have questioned whether the "best interests" of African-American foster care youngsters waiting for alternative permanent adoptive homes, are actually promoted and protected by federal and state laws and policies, practices of public and private agencies, and private adoption attorneys. In 1995, when vested interests were pushing policy-makers to attack "same-race" placement preferences as discriminatory to white adults, I viewed this "as a consequence of the general shift in focus from meeting the needs of children for permanent homes to satisfying the desires of adults to become parents." I argued then that:

The needs and interests of Black children, Black families, and Black communities ... [would not be met or advanced] if a constitutional "right to adopt" were to be recognized. Nor would these be met if the House Welfare Reform Bill, passed and forwarded to the Senate in late March 1995, containing a blanket prohibition against all consideration of race in placement were enacted into law and the size and composition of the country's foster care population remained the same.

I am keenly aware that our legal system's emphasis on individual rights and liberties accorded adult citizens makes it very difficult to ensure that the basic needs of children are met in a manner that enables them to grow, to mature, and to become productive contributors to society, ready and able to parent and raise their own children successfully. The basic task of child-rearing and socialization is given to parents and the family unit. According to Margaret F. Brinig:

Usually public policy follows from the wishes of adults. In family law, this occurs although virtually all the legislation dealing with families and children begins with a "best interests of the child" premise. Most, if not all, of the litigated outcomes at least seem to maximize the results for adults.

The Supreme Court in Parham v. J.R. "noted that in most cases what is good for parents will also be good for children."

Nevertheless, under the doctrine of parens patriae, the State reserves the right to intervene and remove a child from the custody of his birth parents in order to protect the child from abuse, neglect, or when abandoned. And, if the parents are deemed "unfit," they may have their parental rights terminated, freeing the child for adoption by third-party strangers or possibly other kin. Unfortunately, our society has been unable or unwilling to develop and financially support programs and other initiatives that might provide parents and families with the requisite skills and tools to rear their children properly. We have failed to develop any consensus about the kinds of social supports that would enable more families to meet and successfully perform the fundamental parenting tasks that society has assigned to them.

I contend that poverty, classism, sexism, and racism are the key elements that fuel the continuing large numbers of African-American children who are separated from their birth families and enter foster care, some never to be reunited with their birth parents or families and some, after being legally freed to be adopted, instead may "age out" of foster care, never having been adopted. I concur with Carol C. William's view that "the disproportionate number of African-American children needing adoption is a symptom of failed policy implementation: failure to prevent unnecessary placement; failure to reunite families in a timely fashion; and failure to stabilize the lives of children lacking the protection of families."

*468 Without utilizing "macro" social work competencies of problem definition, program planning and policy development, and research and evaluation of outcomes, it was very simplistic and unethical to assume that the best way to meet the physical, social, and emotional needs of Black foster-care children was by eliminating the practice of "same-race" placements and promoting transracial adoption (TRA). It is like building a hospital at the bottom of a cliff to treat victims of car crashes, instead of posting speed warnings and erecting a fence or other guard rail at the top to prevent cars from plunging down the cliff side. I view TRA as "a classic example of embracing and promoting a solution without accurately defining the problem" that affirms the validity of the maxim, "Once an indivisible problem is divided, nothing effective can be done about it."

I have always seriously doubted that "same-race" placement preferences were the barrier that kept African-American youngsters waiting in foster care longer than their Caucasian peers. Instead, I characterized this claim, asserted in class action suits filed by The Institute of Justice on behalf of adult clients, as a "diversionary smoke-screen" strategy that *469 "obfuscate[d] important systemic problems and create[d] additional barriers to meeting the needs of Black children, Black families, and the Black community." To me, there always seemed to be

something very disingenuous about the way proponents of transracial adoption constantly refer[red] to the plight of Black children in foster care when, in fact, most whites who seek to adopt look for healthy infants, not older children with a range of "special needs," and most of the growing number of transracial placements being made involve[d] newborns or babies.

Sadly, to this day, "[r]ace and color continue to be unresolved issues in our society--inextricably tied and merged with issues of power, status, and inequalities--that mock American claims of being a democratic land of equal opportunity." The harsh truth is that African-American children are not well served when race is off the table, and no consideration can be given to whether foster or prospective adopters are "racially and culturally competent to help prepare the child for the challenges that he will encounter because of his appearance." To deny the reality that continuing racial hostilities and inequalities abound in our society because of a belief that society is "color blind" is irresponsible and unethical. Thus, I am truly excited about the May 2008 release of the Evan B. Donaldson Adoption Institute report, Finding Families for African American Children: The Role of Race & Law in Adoption from Foster Care.

*470 III. Evan B. Donaldson Adoption Institute Report

Following Professor Katz's exhortation to ask the basic question "Is it well with the child?," this Adoption Institute study concludes: "No, it is not." The Adoption Institute press release on May 27, 2008, asserts that Finding Families for African American Children: The Role of Race & Law in Adoption from Foster Care "is the most thorough examination to date of the often-sensitive, controversial issues relating to transracial adoption." Executive Director Adam Pertman is quoted as explaining: "We tried to assess what was working and what wasn't, and ... hope this knowledge helps to shape more effective policy and practice, so that every child has better prospects of growing up in a family--and of being ready for the world they'll live in."

It has been more than a decade since passage of the Howard Metzenbaum Multiethnic Placement Act (MEPA) of 1994, later amended to prohibit any consideration of race in placement decisions for foster care or adoption by passage of the Removal of Barriers to Interethnic Adoption Provisions (IEP) of 1996. On September 21, 2007, the U.S. Civil Rights Commission held a hearing entitled "The Multiethnic Placement Act: Minority Children in State Foster Care & Adoption" to commence an assessment of this federal legislation.

I commend the Adoption Institute for undertaking this long overdue study, which "focuses on domestic transracial adoption and assesses its use as a policy and practice approach to meeting the needs of African-American children in foster care who cannot be safely reunited with their parents or placed with kin." This type of disciplined, scientific assessment *471 of policy and practice by trained social work professionals deserves close attention. It provides the kind of information that can overcome Professor Brinig's concern about "a disconnect between what legislators and courts do and what the outcomes of the policies or decisions are for children ... [since] the system does very little follow-up of its policies, even though these rules or structures may make tremendous differences to the children involved."

This report was researched and written by Susan Livingston Smith, program and project director of the Adoption Institute, with assistance from co-authors Dr. Ruth McRoy, senior fellow of the Adoption Institute, Madelyn Freundlich, legislation and policy director of the Institute, and Joe Kroll, executive director of the North American Council on Adoptable Children. It was edited by Adam Pertman, executive director of the Institute. A broad range of national child welfare organizations endorse the content of the report, its findings, and its recommendations.

The report starts with an executive summary of major findings and recommendations, followed by an introduction that describes the major sections:

Section I provides data on the disproportionate representation of African American children in foster care and the disparate adoption outcomes for this group.

Section II describes the historical context of race and adoption in the U.S., with an emphasis on African-American children; current law on the adoption of Black children in foster care, children adopted internationally, and American Indian/Alaskan Native children; and the social constructs related to color blindness and color consciousness on transracial adoption policy.

Section III provides an overview of the research on the outcomes for children adopted transracially and within race, the experiences of transracial adoptive families, and the outcomes for children adopted transracially from foster care. *472 This research is synthesized to provide a basis for assessing current policy and needed directions.

Section IV assesses the impact of MEPA and IEP on the adoption of Black children in foster care. It examines whether the law's intent--to expedite permanency through adoption for these children of color--has been realized.

Section V offers conclusions and recommendations for policies and practices that will support timely adoptions for African-American children waiting in foster care, consistent with their best interests.

The report ends with a comprehensive list of references and an appendix, "Research Findings Related to Transracial Adoption Identity Issues & Outcomes (1995-2007)," summarizing relevant findings from twenty-one studies.

Section IV of the report presents thoughtful, well-documented responses to the five questions posed by the U.S. Civil Rights Commission at its September 2007 hearing at which two of the report authors, Dr. Ruth McRoy and Joe Kroll, provided testimony:

[1.] Has the enactment of MEPA removed barriers to permanency facing children involved in the child welfare system? ...

[2.] Has the enactment of MEPA reduced the amount of time minority children spend in foster care or wait to be adopted? ...

[3.] How effectively is the U.S. Department of Health and Human Services enforcing MEPA/IEP? What impact has enforcement had on best practices in adoption? ...

[4.] What is the impact of DHHS's enforcement of MEPA/IEP on the efforts of prospective parents to adopt or provide foster care for minority children? ...

[5.] Does transracial adoption serve children's best interest or does it have negative consequences for minority children, families and communities?

A. Major Study Findings

• The Multiethnic Placement Act (MEPA) of 1994 and the Removal of Barriers to option Provisions (IEP) of 1996 have not resulted in equity in adoption for African American children.

• The "color blind" interpretations of MEPA-IEP that have served as the basis for its enforcement run counter to widely accepted best practices in adoption.

• MEPA's call for "diligent recruitment" of prospective parents who represent the racial and ethnic backgrounds of children in foster care has not been well implemented or enforced.

*473 These findings, more fully discussed in the body of the report, clearly reveal that the primary assumptions underlying the passage of MEPA-IEP were inaccurate. Proponents asserted that: (1) a substantial number of White families would adopt minority children from foster care, (2) there was an insufficient number of Black families who were able or interested in adopting these children, and (3) children of color would achieve permanency in major numbers "by prohibiting race-matching policies and by broadly facilitating transracial adoption." The Adoption Institute study establishes that the major anticipated outcome--expediting the adoption of children of color from foster care by promoting TRA--has not been realized. The report forthrightly declares:

MEPA/IEP has created a different status for African American children adopted from foster care with regard to racial/ethnic/cultural identity--a status that diverges significantly from that recognized in law for American Indian/Alaskan Native children, children adopted internationally, and children who are adopted through private adoption agencies that do not receive federal funds.... For some children (internationally adopted and Native American), the law holds that race and culture matter, and it protects their racial and cultural interests; for African American children in foster care, however, the law minimizes the importance of race and culture, even to the point of punishing those who work to respect and protect racial and cultural interests consistent with best practice in adoption.

B. Study Recommendations

The report's two major recommendations are:

1. Amend IEP to again permit consideration of race and ethnicity in permanency planning and the preparation of families adopting transracially, and

2. "Enforce MEPA's requirement to recruit families who represent the racial and ethnic backgrounds of children in foster care, and provide sufficient *474 resources [including funding,] to support such recruitment."

Additionally, the report includes recommendations to:

• Reinforce in all adoption-related laws, policies and practices that a child's best interests must be paramount in placement decisions....

• Address existing barriers to fully engaging minority families in fostering and adopting by developing alliances with faith communities, minority placement agencies, and other minority recruitment programs.

• Provide support for adoption by relatives and, when that is not the best option for a particular child, provide federal funding for subsidized guardianship.

As someone who firmly believes that framing discussions of TRA as a pro and con debate is counterproductive, I hope that close attention will be given to the following paragraph in the report's Executive Summary:

Issues of race and adoption are highly sensitive, and statements relating to them are often subject to misinterpretation. The Adoption Institute wants to be clear about its underlying philosophy and purpose in writing this paper: to bring law and policy in line with sound adoption practice that addresses the relevant issues in selecting families for children and in preparing parents to successfully care for them. The purpose of this paper is not to impede or prevent transracial adoptions or to promote racial matching; rather, it seeks to apply relevant knowledge to the practice of child welfare adoptions in order to best serve children and families.

IV. CWLA Standards of Excellence in Adoption Practice

Admittedly, many chaffed for years at the manner in which child welfare adoption workers and agencies exercised the power to select or reject prospective adoptive parents. After completing a thorough home study, if a child were placed in a home, the agency might monitor the placement for six or more months before actually submitting a petition for final court approval. These practices at the time were justified as necessary to ensure that an adoptive placement would be appropriate, provide a permanent loving family, and be in a child's "best interests." Over time, however, child welfare "best practices" as articulated by the CWLA have changed to reflect new understandings about the developmental needs of the increasing numbers of children in the out-of-home care of public and private *475 agencies. Older African-American children today entering foster care are youngsters who "typically have a range of challenging needs, including prenatal exposure to alcohol and other drugs, medical fragility, a history of physical or sexual abuse, or membership in a sibling group."

Whenever the State terminates a parent-child relationship, an obligation arises to help the child heal from the trauma of abuse and neglect they have experienced. Finding a "loving" family is just a beginning of what it will take to help the child grow and mature into a healthy, productive, contributing adult and not become trapped in either our criminal or mental health systems. The CWLA very clearly reaffirmed adoption as a child welfare service when amending its 1988 standards for "best practices" in 2000 by proclaiming:

In adoption practice, the child is the primary client, and the best interests of the child is paramount in decisions concerning his or her adoption. Families are viewed as potential resources for children needing adoption, rather than as an agency's primary clients. The agency's responsibility has also shifted from investigating families to educating and preparing families to meet the needs of children placed with them.

This means that adopters and the placing agency need to develop a treatment regime directed toward eliminating the toxic effects of a child's prior life experiences, both cultural and personal. In many instances, it will be necessary to assemble a team of professionals who interface with the child and adoptive family in various settings--schools, community social and behavior programs, mental and medical health clinics, and churches. "Building a family by adoption is now understood to be fundamentally different from building a family biologically, with life-long implications for the adopted individual, the adoptive parents, and the birth parents."

The core values and assumptions that CWLA considers essential for the ethical development and delivery of adoption services are listed below. I have italicized several to emphasize the ongoing need of adoptive families to have professional help and support in order to ensure the best possible outcomes for older African-American youngsters adopted from foster care. Not only must adoptive parents be open and willing to learn how to meet the individual needs of their children by working and collaborating with others, but professionals who work in adoption need to have empathy for and be able to love and respect the children and families they serve. Professionals should also be able to put the needs of the *476 child and family ahead of their own emotional needs to make money or garner prestige and status among their professional peers.

V. CWLA Core Values and Assumptions Underlying Adoption Services

• All children have a right to receive care, protection, and love.

• The family is the primary means by which children are provided with the essentials for their well-being.

• The birth family constitutes the preferred means of providing family life for children.

• When adoption is the plan for a child, the extended family should be supported as the first option for adoption placement, if appropriate.

• Adoption as a child welfare service should be focused on meeting the needs of the children to become full and permanent members of families.

• All children are adoptable.

• Siblings should be placed together in adoption unless serious reasons necessitate their separation.

• Adoption is a lifelong experience that has a unique impact on all the persons involved.

• Adoption should validate and assist children in developing their individual, cultural, ethnic, and racial identity, and should enhance their self-esteem.

• All adoption services should be based on principles of respect, honesty, self-determination, informed decision-making, and open communication.

• All applicants for service should be treated in a fair and nondiscriminatory manner.

• Changes in adoption practice, policy, and law demand professional expertise to assist birth families, adoptive families, and adopted individuals.

• The knowledge, skill, and experience of professional social workers should be used in developing and providing all aspects of adoption services.

• The practice of adoption, currently and in the future will require collaboration if all parties in an adoption are to be served effectively.

The above CWLA standards and assumptions provided the lens through which the Adoption Institute study assessed the impact of MEPA-IEP on outcomes for African-American youngsters adopted from foster care. From review of recent research on parents' approaches to cultural and racial socialization and adopted minority children's differing understandings of and comfortability with their ethnicities, the Adoption Institute paper notes the following:

*477 • Transracially adopted children face challenges in coping with being "different."...

• Transracially adopted children may struggle to develop a positive racial/ethnic identity....

• A key life skill for transracially adopted children is the ability to cope with discrimination.

If adoptive parents ignore color or believe that our society is "color blind," and deny that "[v]irulent hatred toward African Americans and other minorities continues to permeate our society," according to Adam Pertman, they are not adequately preparing their children "for the world they'll live in." Much more than loving care within the confines of an adoptive home is required for the following reasons.

The messages that a child, if adopted transracially or internationally, receives from the extended familial group of which the family is a part, from the community in which the family resides, and from the larger society are critically important. If these messages convey positive acceptance, the child's self-esteem will grow and flourish. If the messages are negative, the child will feel devalued, rejected and/or ostracized, and the life-long emotional impact can be devastatingly crippling.

VI. Conclusion

Will those, like The Institute for Justice, who lobbied successfully in the 1990s for enactment of federal legislation to eliminate all consideration of race from both foster care and adoption placement decision-making now support these Adoption Institute's recommendations? Will legal scholars who argued that same-race placement preferences discriminated against White prospective adopters and denied Black children in foster care an opportunity to be adopted now acknowledge that this argument was a strategy to abolish the "one-drop" rule in order to make the only *478 expanding "crop" of healthy biracial and mixed-blood babies being relinquished by White birth mothers available for adoption by waiting White applicants?

But more importantly, in order to truly serve the older African-American children in foster care waiting to be adopted, will there be a keen understanding that they are indeed "special need" youngsters? Being permanently separated from their birth families can be as traumatic as the original deprivations experienced prior to removal from the custody and care of their parents. These are children whose mental health has been compromised. They can be expected to have behavioral issues that create obstacles both to being able to successfully learn in school or to easily and consistently conform to the societal and cultural norms and expectations of an adoptive family residing in a community very different from the one in which they had been raised.

Since I have no crystal ball, I cannot answer these questions with any certainty. However, I do hope that my reflections spur readers to question the efficacy of the current prohibition against any consideration of race in making domestic placement decisions for African-American and other minority children in foster care waiting for permanent homes. I also hope that close attention will be given to the Adoption Institute's finding that the threat of enforcement sanctions for violation of MEPA-IEP's mandate has had the chilling effect of preventing the use of widely accepted "best practices" in adoption. When race and racial issues are "off the table," standard practices that are required in international adoption to assess a *479 family's readiness to adopt a child of another race or ethnicity and to consider a family's existing or planned connection with the child's racial or ethnic group do not occur. MEPA-IEP's prohibition on consideration of race in domestic adoption of African-American children handled by agencies receiving federal funds should be challenged and repealed as unconstitutional. Not only has it created a special status for African-American children whereby they do not receive equal treatment and services because agency workers are not able to utilize their skills appropriately, but it also operates like a "gag order" on adoption workers and other child advocates--infringing upon their First Amendment Right of free speech and their ability to use their full knowledge and training, consistent with the approved standards of the profession.

While I applaud the work of the Adoption Institute for issuing the report calling for restoration of MEPA's original latitude to consider race so long as it was not the sole factor, I worry, however, that there is still no strong societal momentum to acknowledge the roles that poverty and the long history of discrimination against African Americans play in the large numbers of African-American kids in foster care. To break the cycle of poverty and dysfunction that is passed from generation to generation, we need to find more meaningful solutions than just foster care and adoption, which seem to be metaphorically like building a hospital at the bottom of the cliff instead of precautions at the top of the cliff. What is needed? Simply, (1) employment opportunities that pay enough to meet a family's basic needs, such as food, clothing, and shelter; (2) housing that is affordable and in neighborhoods with a range of basic social programs to support parents and families in rearing their children; and (3) educational systems that connect with youngsters through love and respect and motivate them to develop a sustained love of learning with equal emphasis on the arts, humanities, and sciences, so that once grown, they can be contributors to society. But alas, none of this will come to pass so long as unconscious racist presumptions and expectations embedded in the U.S. Supreme Court's 1856 Dred Scott v. Sandford decision persist among many Americans--namely, that Blacks have no needs, rights, nor privileges that Whites are required to respect.