Hearing on Interethnic Adoptions

Statement of Patrick T. Murphy
Cook County Public Guardian, Chicago, Illinois

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

Hearing on Interethnic Adoptions

September 15, 1998



As Cook County Public Guardian, I am appointed to represent about 38,000 foster children as attorney and guardian ad litem. I am in charge of an office of 300 people, including 150 lawyers. In addition to our representation of abused and neglected children, we also act as guardian for approximately 400 elderly disabled individuals and $40 million dollars of their assets. I have practiced in the juvenile justice/child welfare system for thirty years. In that time, I have argued and litigated cases at every level of the state and federal judiciary, including the United States Supreme Court. I have written many articles and two books on my experiences.


Eighty-eight percent of our child clients are African American. Having labored on the seamy underbelly of society for more than three decades, I recognize the importance of placing children with foster parents of a similar background, when possible. However, because of the disproportionate number of African American children who need foster care, race matching is often impossible. Nevertheless, many bureaucrats in the child welfare establishment continue to ignore the larger number of available white foster homes and insist on shoving African American children into an overextended and at times inadequate black foster home network, without regard to the quality of care and, more importantly, the future implications for the children.


Bureaucrats who subscribe to this separatist philosophy come from both races. From their point of view, it is better to place an African American child with a succession of black foster parents, or even in an inadequate foster home, than to place the child with white parents who are willing to adopt. They argue that the child will lose his cultural heritage, which appears to be more important to them than the child's mental health. I have seen hundreds and thousands of children chewed up and spat out the revolving doors we call our foster care system, sacrificed on the altar of political correctness, as defined by social workers and bureaucrats.


And what exactly does this altar look like? A few years ago, I visited a foster home where six infants all under the age of one year were crammed, crib to crib, into one bedroom. The foster parents were very decent, hard-working folks, who were trying their best. But you can't tell me that these six infants were better off with these overextended, if well meaning foster parents, than they would have been if each was placed in a separate home–even with white parents.


Because of the large number of cocaine babies who have been abandoned by their parents in Chicago, the Illinois Department of Children and Family Services, DCFS, has resorted to placing infants in temporary shelters until a foster parent of the "right race" can be found. A couple of years ago, DCFS was warehousing 329 children, ages birth to three, in one facility. Of these children, 300 were African American, 19 white, seven Hispanic and three of unspecified race. The figures were even worse for children who remained at the shelter more than three months–67 were black, three white and three Hispanic. Of the 75 who languished more than six months in the shelter, 70 were black, two white and three Hispanic. All 20 of the children who remained at the shelter for more than a year were African American. All of the white and Hispanic children had been placed in homes by that time. I guess the bureaucrats got their way. At least these black kids were not placed with white foster parents.


Child care workers who subscribe to the philosophy of race matching argue that transracial adoption is detrimental to the black community as a whole because it disperses black children, who are then assimilated into white society. They insist that a black child must grow up in a black family in order to learn how to survive in a racist society. Although there are studies that contradict this notion (see Kleiman, 30 Colum. J. Law and Soc. Prob. 327, 354), I am not here to debate the issue.


The simple fact is that in the juvenile justice/child welfare arena, we are not dealing with the best of all possible worlds. In most situations, we can only try to take the action that we hope will hurt the child the least. Children come to us from neighborhoods, and often homes, that are like war zones, where survival is a daily struggle. Most are born with drugs in their systems. In the majority of cases, the father is uninvolved, if not unknown. Many of the mothers, while well-meaning, have become so overwhelmed that they have given up hope.


If we place children who already have several strikes against them with parents of a different race, will this cause problems? Of course. Will these problems be insurmountable? No. Is a stable home, regardless of race, better for a child than bouncing from foster home to foster home, or being placed in an overcrowded, under-resourced, but same-race home? Absolutely.


In my experience, the federal acts passed in 1994 and 1996, that prohibit racial discrimination in foster placement, are honored more in the breech than in the observance. Let me give you some examples. One of my clients, Javonte, was six weeks old when the court removed him from the custody of his mother, who had abused him so severely that he suffered a dislocated hip and a skull fracture. DCFS specifically limited its search for a home for Javonte to African American foster parents. The caseworker contacted 21 black foster parents–all of whom declined the child. Shortly thereafter a white foster mother, who had heard of Javonte's plight, phoned to offer Javonte a foster placement. Later this foster mother showed up in person at the agency to ask about Javonte. The caseworker discouraged the woman, charting in her notes: "Staff advised [the white foster mother] that the agency is still seeking same race placement as the possibility had not been exhausted and the return home goal had not been ruled out." Ultimately the agency did find an African American home for Javonte–with five other foster children under the age of five.


In August 1997, we represented a child who was taken from her parents' custody when she was eight years old, due to physical and sexual abuse. After she was sexually abused in a foster home, she was placed in a treatment facility in Wisconsin. At age 16, she was ready for discharge. The girl told her social worker that she did not want to return to Chicago. She explained that she wanted to stay as far away as possible from the place where such bad things had happened to her. The girl was African American; the caseworker white. The caseworker refused the girl's request, insisting that she should return to Chicago from the predominantly white, rural area where she was living in Wisconsin, because she was out of touch with her African American, urban culture. The caseworker also complained that there were too few African American foster homes in Wisconsin. Ultimately, we went to court. After receiving a scolding by a judge, who incidentally is an African American woman, DCFS backed down and allowed the girl to remain in rural Wisconsin. (I attach as Appendix 1 a newspaper article describing the case.)


When we began to realize the pervasiveness and intransigence of DCFS's race matching policy, our office filed a complaint with the Office of Civil Rights of the Department of Health and Human Services (OCR). On August 27, 1998, we received a response from HHS, which I wish to submit as an exhibit. OCR concluded that DCFS "possibly violated certain provisions of Title VI and its implementing regulation…." DCFS signed a resolution promising to correct these "possible" violations. See page 1.

However, in the Remedial Action section of the report, OCR has outlined a plan which is actually just a watered down version of DCFS's own discriminatory practice. The OCR's suggestions mirror HHS's regulations. For instance, Point 1A states that:

The consideration of race in any particular child's case must be narrowly tailored to advance the child's best interest and must be made as an individualized determination.

Section B explains that the use of race as a criterion "must be based on concerns arising out of the circumstances of the individual case."


Thanks to this broad hint by OCR, in order to avoid placing a child with foster parents of a different race in the future, the worker will only have to make a notation that the placement was the result of an "individualized determination" "narrowly tailored" "to advance the child's best interest." In this way, the worker, like DCFS and the Pharisees, will be abiding by the strict letter of the law, while ignoring its spirit.


Earlier this year I tried a case involving a six-year-old girl who, for two years, had been placed in an outstanding foster home in the state of Texas. DCFS placed her in Texas in an attempt to reunite her with parents, who tried to suffocate her as a newborn, and had shown only sporadic interest in visiting her before they moved from Illinois to Texas. We objected that the parents were a bad gamble for rehabilitation. When our prognostications proved accurate, DCFS then decided to move the child back to Illinois to live in a former foster home. Since the girl was white and the Texas foster parents were African American, I suspected that institutional racism was at work. The girl desperately wanted to remain in the Texas home, where the parents were providing as good a foster home as I have seen in my 30 years of working in child welfare.


When we went to court to block the move, DCFS sent a team of social workers to interview both sets of foster parents, allegedly to determine what would be in the child's "best interest." After reading the social workers' report, I was convinced that this was a case of institutional racism, with the agency insisting on placing the child with parents of the same race.


In their investigation of the Texas placement, the social workers learned that the child was doing superior work in school, picking up her toys, and eating all her vegetables. I wanted to send my own kids there to see if this family could work the same magic on them. The social workers had a completely different angle. From the sinister evidence of the child's model behavior, they concluded that the child was trying so hard to be good because she was insecure, and deep down she really wanted to return to Illinois. In effect, they devised an "individual plan", that it was in the child's best interest to be removed from the Texas family and redeposited in Illinois. Apparently, they believed it was in her best interest to turn up her nose at vegetables, strew her toys about the house, and perform poorly in school.


To stack the deck even higher against the African American family, the social workers conducted five interviews in a relaxed setting with the white family, two of which included their children. In their report, the social workers referred to all the white family members in a chummy fashion, using their first names.


By contrast, the social workers did not conduct a single interview with the biological children of the African American foster parents, although one is a straight A student in college and the other is an Air Force recruit. Indeed, the social workers failed even to mention these children by name. They referred to the parents, in a pointedly sterile fashion, as "Mr. and Mrs. Jones." The social workers interviewed Mr. Jones once, but only fleetingly. They interviewed Mrs. Jones twice, but only under the most difficult of circumstances.


The social workers barged into the Jones' home and told the six-year-old girl that they had come to decide whether they should send her back to Illinois. When the girl unceremoniously ferried the social workers' suitcases to the door and clung to her foster mother's legs, the social workers interpreted her behavior to mean that she really wanted to return to the white foster home.

Fortunately, we were able to get before a good judge who ordered DCFS to leave the child in Texas. The judge ruled that the African American couple should be able to adopt the six-year-old. However, an appeal was immediately filed and the case is now languishing in the Illinois appellate courts.


To understand the practical problem with race-matching, you need only look at the numbers. Again, the deck is stacked against African American children. In Cook County, approximately 88% of the 40,000 foster children are African American, while only about one-third of the County's residents are black. In 1995, Illinois had 39,689 black, 10,186 white and 2,191 Hispanic children in state custody. By comparison, about nine million whites live in Illinois, along with 1.7 million blacks and 900,000 Hispanics. To put it another way, for every white child who is in foster care, there are about 900 other white people of all ages who are not in state custody. For every Hispanic kid in the child welfare system, there are 400 Hispanic people who are not in foster care. But for every black foster child, there are only about 45 black men, women and children who are not in foster care. To make matters worse, this small number is reduced by the disproportionate number of black men who are in state custody, as prisoners. Illinois figures mirror the ratios in both California and New York.


Congress has clearly articulated its intent to remove racial barriers to foster placements and to impose penalties on states that insist on race matching. 42 U.S.C. 674(d)(1) imposes penalties when states are found to have violated 671(a)(1) or when they have failed to implement a corrective action plan. The problem is that no state will ever be sanctioned for failure to comply with the statute because HHS has successfully circumvented the intent of this anti-discrimination legislation.


Shortly after the act was signed into law, one of my chief aides attended a child welfare conference in Washington, which was sponsored by the HHS Administration for Children Youth and Family Services. From the podium, HHS officials proclaimed that they had no intention of enforcing the prohibition against racial discrimination, opining that the amendments were unconstitutional. And, they have been true to their promise.


HHS is instructing states that: (a) racial discrimination is permissible, if in the judgment of the individual caseworker racial discrimination is in the best interest of the child; or (b) if the discrimination is based on a difference the caseworker perceives between the child's culture and that of the prospective family. On June 4, 1997, Dennis Hayaishi, Director of the Office of Civil Rights, and Olivia Golden, Principal Deputy Assistant Secretary for the Administration for Children, Youth and Family Services, issued a memo to the regional managers of the OCR, and the regional directors of the ACYFS. (Appendix 3) The memo provides a blueprint for undermining the federal prohibition against race discrimination.


Superficially, the memo condemns race discrimination, and warns that it will no longer be tolerated. However, the memo is full of loopholes that are large enough to drive a herd of elephants through. For example, the HHS officials explain that racial discrimination is justified if it is necessary to achieve a compelling government interest:

Consistent with the intent of the new law and constitutional standard, it would be inappropriate to try to use the constitutional standard [i.e. "best interest"] as a means to routinely consider race and ethnicity as part of the placement process. Any decision to consider the use of race as a necessary element of placement must be based on concerns arising outside of the circumstances of the individual case.

Perhaps because I am not schooled in the lexicon of bureaucrats, I find this explanation to be about as clear as mud. I am at a loss to know exactly what circumstances could justify a decision to deny a child stability because of the child's race. By its very nature, each placement decision is made on an individual basis. State officials do not make a single decision, separating hundreds of children like wheat from chaff. Instead states delegate that responsibility to individual child welfare workers. HHS is instructing these individual workers that they can discriminate on the basis of race, as long as they believe that race discrimination would be in the child's best interest.


On May 11, 1998, the ACYFS issued a document entitled "Information Memorandum" with the log no. ACYFS-IN-CV-98-03 (Appendix 4) It is directed to states, tribes and private child agencies, to answer questions raised by the General Accounting Office. The author, a Deputy Commissioner, explains that race discrimination is acceptable, as long as it is done in moderation. For example, his memo provides the following advice:

Public Agencies may not routinely consider race, national origin or ethnicity in making placement decisions. Any consideration of these factors must be done on an individualized basis where specialized circumstances indicated that their consideration is warranted.

The Deputy Commissioner suggests two defenses for use by agencies caught committing racial discrimination against children in foster care. First, he claims that if the agency can cite a study–any study–that shows that racist practices are in the best interests of children, the agency will be off the hook.


The Deputy Commissioner also encourages state agencies to defend against a racial discrimination charge by claiming that the discrimination is based on the child's "culture." The Deputy Commissioner intones:

HHS does not define culture. Section 1808 addresses only race, color or national origin, and does not directly address the consideration of culture in placement decision. A public agency is not prohibited from the nondiscriminatory consideration of culture in making placement decisions. A public agency's consideration of culture must comply with Section 1808 in that it may not use culture as a replacement for the prohibitive consideration for race, color or national origin.

Appendix 4, p. 8.


Would any government bureaucrat have the temerity to suggest that employment discrimination on the basis of culture should be legalized? Should a victim of race discrimination be denied a remedy where the perpetrator is not guilty of routine discrimination, but only exercises his right to discriminate when he believes it is in the victim's best interest?

Based upon my own practical experience and upon the clear inferences of HHS's own pronouncements, it is obvious that if Congress is serious about eliminating the discrimination that prevents children from being placed in the best, appropriate foster home as quickly as possible, then the obligation for enforcing the law must be taken away from HHS. HHS officials have preconceived notions that run directly counter to the law. These officials have and will continue to eschew their enforcement power to thwart the will of Congress.


If this act is to be more than mere window dressing, meant to look good for the folks back home, I suggest that Congress strip HHS of its enforcement obligation and confer authority on another agency, such as the Civil Rights Division of the Department of Justice, to enforce the law. Until this happens, many African American children will languish in a ghetto created by bureaucrats with their own agenda of political correctness–shifting from bad placement to worst–without any hope of finding a permanent home.


1.  DCFS accused of ruling out white foster home, Lorraine Forte, Chicago Sun Times, August 18, 1997.

2.  Girl M case:  2 foster families and 1 tough decision, Bonnie Miller Rubin, Chicago Tribune, March 22, 1998.

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