Hearing on Interethnic Adoptions

Statement of the Honorable Olivia A. Golden, Ph.D., Assistant Secretary,
Administration for Children and Families, U.S. Department of Health and Human Services

Testimony Before the Subcommittee on Human Resources
of the House Committee on Ways and Means

Hearing on Interethnic Adoptions

September 15, 1998

 

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Dear Mr. Chairman and Members of the Subcommittee,

 

I am pleased to appear before you today to discuss the implementation and enforcement of the Multiethnic Placement Act of 1994, as amended and expanded upon by the Interethnic Placement provisions of Section 1808 of the Small Business Job Protection Act of 1996. Like the members of this Subcommittee, we in the Department of Health and Human Services are committed to ensuring that every child in the child welfare system is given the opportunity to grow up in a safe, stable, loving, permanent home. In fact, we have pledged to double the number of these children adopted over a five-year period. We are firmly dedicated to eradicating race-based discrimination that stands in the way of placing children in permanent homes.

We are proud that this Administration has been able to work in a bipartisan fashion with members of Congress in both Houses over the past several years to pass critical adoption and foster care legislation. The enactment of the Multiethnic Placement Act in 1994, passed with the strong support of the President, placed front and center the issues of adoption and children's need for permanency. The Multiethnic Placement Act, along with the 1996 Interethnic Placement provisions, the Court Improvement Program, and the Adoption and Safe Families Act of 1997, have all made significant contributions to strengthening the child welfare system of this country. By working together, we have enacted and are now implementing laws that make the health and safety of children our first consideration. We have put in place a legal framework that encourages timely decision-making in the adoption and foster care systems. And we have begun to tear down the many barriers to adoption, including the problem of discrimination on the basis of race or ethnicity.

While the important work of implementing the Multiethnic Placement Act continues, a great deal has changed since its enactment in 1994.

• When the Multiethnic Placement Act was enacted, we found 29 States and the District of Columbia had laws or policies that allowed race-based discrimination in foster care and adoption placements. Today, as a result of cooperative work with this Department, States have moved away from such race-based decisions. What this means to a child in States like Arkansas and California, is that he or she will no longer need to go through additional months of waiting while workers seek a family of the same race, when a family of a different race, is ready and able to adopt today.

• Twenty-nine compliance reviews (broad reviews of practices at the local, county, or multi-county level) have been conducted by the Office for Civil Rights (OCR) since August 1996. A compliance review conducted by OCR in 5 counties in Florida, for example, found that race was being used as a factor in the placement of children in foster care. In fact, it was determined that some caseworkers used race as a primary factor in placing children. These discriminatory practices are being corrected and children in Florida are now being placed in homes within their county of residence more frequently, and the time children wait for placement has been shortened.
• Technical assistance provided by both the Administration for Children and Families and the Office for Civil Rights in at least 40 States has resulted in the revision of countless regulations, policies and training curricula that guide the work of child welfare professionals, and has prompted the re-training of many private and public agency workers.

• The Secretary has personally written to all 50 governors urging their leadership in these critical endeavors. She has emphasized that we need their assistance in moving forward with the complex and important next phase of implementation — gaining full compliance with the provisions of these laws by individual social workers, volunteers and supervisors who make key decisions affect the placement of specific children.

As these examples demonstrate, we have made important strides. But there is much that remains to be done to address the needs of abused and neglected children in our child welfare system. Over a half a million children are in foster care. And, based on our most recent data, we estimate that approximately 110,000 of these children are waiting to be adopted. Approximately 59 percent of these children are African American (Non-Hispanic), 29 percent are White (Non-Hispanic), 10 percent are Hispanic and 2 percent are of other races or ethnicities. The average age of children waiting to be adopted is between 7 and 8 years old. Over a quarter are over the age of 10. Many also have disabilities. Many of these children have spent long periods of time in foster care; in fact, their mean length of stay in foster care is almost four years.

As we move forward to ensure that these children are placed in safe and loving adoptive or permanent homes, we must address many obstacles. We must work to provide timely, adequate services that meet the needs of children and families. We must promote decision-making that reflects a child's sense of time — for while a year passes quickly for an adult, for a four-year-old child a year represents a quarter of her lifetime. We must improve court procedures. We must address the need for better interjurisdictional cooperation among States and counties. We must recruit an expanded pool of families willing and able to serve as foster or adoptive parents for children in need, including children with special needs, minority children, older children and sibling groups. We must also continue our work to end, in practice as well as in policy, discrimination that causes children to remain in the impermanence of foster care.

We simply cannot ask a child who has been maltreated, removed from his home and placed in multiple foster homes for as much as half of his life to wait even a moment longer than necessary finally to get to enjoy what every child deserves – the love and care of a family. This is the reason that we are committed to doing all we can from the Federal level to implement the Multiethnic Placement Act and Interethnic Placement provisions. But we know that the successful implementation of these statutes will require not only our ongoing commitment to implement and enforce the law, but leadership and dedication on the part of State and local officials with direct responsibility for the administration of child welfare programs all across this country.

I am pleased now to provide you with a more detailed overview of the Department's implementation of the Multiethnic Placement Act and Interethnic provisions.

Implementation of the Multiethnic Placement Act:

Since 1994, staff in both the Administration for Children and Families and the Office for Civil Rights within the Department of Health and Human Services have worked closely together to promote the full implementation of the Multiethnic Placement Act and the 1996 Interethnic Placement provisions. The Department has initiated a multi-pronged strategy to support implementation, including:

• Issuing timely policy guidance to States;
• Reviewing State laws and policies;
• Providing technical assistance to public and private agency staff;
• Conducting reviews; and
• Investigating individual cases of alleged violations.

I would like to share with you some of the key steps the Department has taken in each of these areas.

Policy Guidance to States

Within six weeks of the passage of the Multiethnic Placement Act in 1994, the Department issued an Information Memorandum to State child welfare agencies and State civil rights officers summarizing the new law and transmitting a copy of the law's text. This was followed several months later with the publication of guidance in the Federal Register that reviewed key legal concepts and identified examples of practices that would be illegal under the Act, such as State policies that require searching for a same race placement for a specified period of time before allowing a child to be adopted by a family of another race. Consistent with the Supreme Court's Adarand decision, our guidance restricted consideration of race to exceptional, case-specific circumstances only. This was a very strict interpretation of the law and caused some to question whether it was overly restrictive.

Between October 1994 and June 1995, the Department conducted an initial review of all States' statutes, regulations and published policies on adoption and foster care to determine if they were in compliance with the Multiethnic Placement Act. Based on this review, on June 30, 1995, letters were sent to 29 States and the District of Columbia outlining problem areas of noncompliance with the Federal law and offering technical assistance. Among the issues identified through the Department's review were 28 State statutes or policies that gave discriminatory preference to same-race placements, 9 statutes that contained time requirements for searching for same-race placements before a transracial placement could be considered, and 5 statutes, regulations or policies that contained discriminatory racial preferences in recruitment of potential foster or adoptive families.

By October 21, 1995, one year after the enactment of the Multiethnic Placement Act, all but three States had amended their statutes, regulations and policies to bring them into compliance. Two of the remaining States came into compliance in July 1996, and the last State in April 1997. (This last State's delay in complying with the Federal law was due to the need for legislative action in a State in which the legislature meets only biannually.)

In addition to working with States to implement the non-discrimination provisions of the Multiethnic Placement Act, the Department also issued guidance to the States on the Act's requirements relating to diligent recruitment. Beginning in October 1995, States were required to amend their title IV-B Child and Family Services plans to address the steps they will take to recruit prospective foster and adoptive families who reflect the racial and ethnic diversity of children needing placements.

When, on August 20, 1996, the President signed into law the Small Business Job Protection Act of 1996, which included the provisions relating to the "Removal of Barriers to Interethnic Adoption," the Department reviewed the new law's impact on the ongoing implementation of efforts to prevent race- or ethnicity-based delays or denials of foster care or adoption placements. It was determined that, while the changes were significant, the basic issues of State law and policies had already been addressed in the Department's initial review of State laws and policies completed in 1995. The 1996 Interethnic Placement provisions affirmed the Department's strict interpretation and clarified Congress' intent to eliminate completely delays in placement where they were in any way avoidable. The law now explicitly reaffirmed that neither race nor ethnicity could be used as the basis for any denial of placement, nor could such factors be used as a reason to delay any foster or adoptive placement. It also put in place new and more effective enforcement policies.

Basic information about the 1996 Interethnic Placement provisions was transmitted to the States in November 1996, and more detailed guidance in June 1997. This guidance clarified the changes made to the Multiethnic Placement Act (including the elimination of language in the original statute that made the racial or ethnic background of the child a "permissible consideration" in determining the best interests of the child). It also explained new provisions that subject States and other entities receiving Federal funding to specific graduated financial penalties (in cases in which a corrective action plan fails to cure the problem within six months.) This guidance highlighted four critical elements of the Multiethnic Placement Act and the 1996 Interethnic Placement provisions.

1) Delays in placing children who need adoptive or foster homes are not to be tolerated, nor are denials based on any prohibited or otherwise inappropriate consideration.

2) Discrimination is not to be tolerated, whether it is directed toward adults who wish to serve as foster or adoptive parents, toward children who need safe and appropriate homes, or toward communities or populations which may heretofore have been under-utilized as a resource for placing children.

3) Active, diligent, and lawful recruitment of potential foster and adoptive parents of all backgrounds is both a legal requirement and an important tool for meeting the demands of good practice.

4) The operative standard in foster care or adoptive placement has been and continues to be "the best interests of the child." Any consideration of race, color or national origin in foster or adoptive placements must be narrowly tailored to advance the child's best interests and must be made as an individualized determination of each child's needs and in light of a specific prospective adoptive or foster parent's capacity to care for that child.

In addition to issuing guidance to the States on the law's requirements for policy and practice, the Department has also been working to develop regulations on the 1996 Interethnic Placement provisions' application of financial penalties under title IV-E of the Social Security Act. We anticipate publishing this guidance as part of a Notice of Proposed Rulemaking very soon.

Technical Assistance:

Since the passage of the Multiethnic Placement Act in 1994, the Department has committed itself to providing effective training and technical assistance to both our regional office staff (who have the most frequent direct contact with State officials) and to the States themselves to ensure the successful implementation of this important new Federal law. In July 1995, staff from the headquarters and regional offices of the Children's Bureau within the Administration for Children and Families (ACF) and the Office for Civil Rights (OCR) jointly conducted training sessions for ACF and OCR staff in each of the 10 Federal regions and included at least one State site visit in each region. Similar technical assistance was then provided by regional staff to States to assist them in making needed changes to State laws, policies and regulations in order to ensure that they were in compliance with the Federal law. For example:

• The Department has worked with the State of Maine on several occasions to revise its policies and training manuals to ensure that they do not encourage illegal considerations of race. Later this month, staff from both OCR and ACF will conduct a training session for all State Department of Human Services adoption staff and the new State Adoption Coordinator to ensure that the revised policies are clear to those who are on the frontlines of implementation.

• In Illinois and Missouri, the Department has alerted State officials to provisions of new laws or bills that contain provisions in violation of the Multiethnic Placement Act and Interethnic Placement provisions. As a result, these statutes have been corrected or repealed.

• Most recently, David Garrison, Acting Director of the Office for Civil Rights, and I sent a letter to all States reiterating our commitment to making the staff and resources of our respective offices available to States, at their request, to provide technical assistance on policy or practice issues.

Among other strategies, the Department has made extensive use of national and regional conferences and meetings as a forum to train on the requirements of the law. For instance, in Boston, OCR and ACF regional staff presented a workshop at the 25th annual New England Adoption Conference sponsored by the Open Door Society of Massachusetts, Inc. Over 1,500 adoptive parents, prospective adoptive parents, birth parents, foster parents, social workers and agency professionals attended the conference.

The ACF has also made available the Children's Bureau's National Resource Centers to support State implementation efforts. One of our Resource Centers, the National Resource Center on Legal and Court Issues, operated under a cooperative agreement with the American Bar Association's Center on Children and the Law, prepared a monograph on the Multiethnic Placement Act that was released shortly after the law went into effect. The publication has since been revised to reflect the changes made by the 1996 law, and was recently disseminated to all States. The monograph reviews the requirements of the law and contains practical suggestions for child welfare administrators and social workers who are responsible for implementing the law in the best interests of the children they serve.

We also have used our discretionary grants to further the purposes of the Multiethnic Placement Act, as amended. For instance, we have awarded grants under the Adoption Opportunities program to develop resource materials and community programs to preserve, strengthen and support families that adopt transracially. Further, because the number of children awaiting adoptive families continues to outstrip the available number of homes, we are supporting innovative efforts to expand the pool of families for waiting children drawn both from within and beyond their communities.

Monitoring and Compliance Reviews:

The Department of Health and Human Services has developed three procedures for monitoring compliance with the Multiethnic Placement Act, as amended. These are:

• The Child and Family Services Reviews, conducted by the Administration for Children and Families (ACF);

• Complaint Investigations, conducted by the Office for Civil Rights (OCR); and

• Compliance Reviews, conducted by the OCR.

Under ACF's Child and Family Services Review, part of the revised child welfare monitoring strategy that we have been piloting, States first undertake a self-assessment, based to the extent possible on a review of existing data. This is followed by an on-site review involving Federal staff, as well as appropriate State and local officials. The on-site review involves an examination of a limited number of case records and interviews with a range of individuals involved in the delivery and receipt of child welfare services. Questions relating to the State's implementation of the non-discrimination and recruitment provisions of the Multiethnic Placement Act are included as part of the self-assessment. In addition, data from the Adoption and Foster Care Analysis and Reporting System (AFCARS) and/or other State data are used as part of the self-assessment and may help to reveal patterns (e.g. differences in placement patterns related to race) which warrant a closer examination during the on-site review of individual cases. If ACF's review suggests potential noncompliance with the law, OCR will be notified so that a more in-depth investigation can be undertaken.

The OCR has responsibility for ensuring compliance with Title VI of the Civil Rights Act of 1964. Complaints by individuals who believe that they have been victims of discrimination are investigated by OCR. Since the passage of the Multiethnic Placement Act and the Interethnic Placement provisions of 1996, 18 complaints relating to adoption and foster care have been received and investigated.

• In one case, a private agency in Michigan was investigated for its policies relating to transracial placements. The case involved a medically fragile African American child, born weighing just one pound four ounces, who required foster care. When the infant was four months old (then weighing four pounds, six ounces), he was placed with a white foster family. After just two weeks with that family, the child was, at the request of a foster care worker and the worker's supervisor, moved to a different foster home, this one an African American family. The investigation revealed that the two employees had circumvented agency review procedures and violated agency policy against using race in placement decisions. They had also misrepresented the facts of the child's situation, both orally and in case documentation. As a result of the investigation, the supervisor was fired, and the worker, a new employee, placed on probation. The agency was also provided with technical assistance on the requirements of the Multiethnic Placement Act, as amended, to help guard against future violations of the law.

The OCR also conducts periodic reviews of the policies and practices of recipients of HHS funds to determine whether they are in compliance with the law. Generally, the scope of the inquiry in a compliance review is broader than in a complaint investigation, although some of the same data and information are compiled. Since August 1996, when the Interethnic Provisions were signed into law, the OCR has initiated 29 compliance reviews of recipients in 19 States. Typically, compliance reviews investigate county- and local-level entities, and private agencies, as well as the State agency. As a result of this type of review, we have required States to take a variety of corrective actions, including making policy changes; disseminating information on policy changes to staff and private agencies involved in placement decisions; training placement supervisors and workers; monitoring future placement practices; collecting racial and ethnic data to assess recruitment and placement patterns; and educating prospective adoptive parents.

Looking to the Future: Changing Front-line Practice

We have accomplished much in the past few years. We have changed the law and the policy framework in which decisions are made about individual children so that decisions can be made truly on the basis of individual children's needs, and not on blanket assumptions about race. We have also taken important steps in educating and re-training administrators and workers in the States. Building on these actions, our work in the coming years will focus on affecting change in front-line practice all across the country. Decisions about placing children in specific foster or adoptive homes are made by literally thousands of social workers in both public and private agencies and by juvenile or family court judges. Clearly, reaching all of these individuals is beyond the ability of one Federal agency acting alone. Therefore, we will be reaching out to work collaboratively with State agencies, universities, professional organizations and others to ensure that all of these individuals understand and follow the law.

This work is tremendously important if we are to give the thousands of children awaiting adoptive homes a chance to begin new lives, as part of a new family. As challenging as this work will be, we are committed to continuing to bring the vision of the Multiethnic Placement Act, as amended, into reality.

Thank you for the opportunity to testify before the Subcommittee. I would be pleased to answer any questions you may have.