Note:
[Federal Register: April 25, 1995 (Volume 60, Number 79)]
[Notices]
[Page 20272-20275]
From the Federal Register
Online via GPO Access [wais.access.gpo.gov]
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[[Page 20272]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Civil Rights
Administration for Children and
Families
Policy Guidance on the Use of Race, Color or
National Origin as
Considerations in Adoption and Foster
Care Placements
AGENCY: Office for Civil
Rights; Administration for Children and
Families; HHS.
ACTION: Policy guidance.
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SUMMARY: The United States Department of Health and Human Services
(HHS) is publishing policy guidance on the use of race, color, or
national
origin as considerations in adoption and foster care
placements.
DATES: The guidance is effective on
April 25, 1995.
FOR FURTHER INFORMATION CONTACT: Carol
Williams or Dan Lewis (ACF) at 202-205-8618 or Ronald Copeland (OCR) at
202-619-0553; TDD: 1-800-537- 7697. Arrangements to receive the policy guidance
in an alternative format may be made by contacting the named individuals.
SUPPLEMENTARY INFORMATION: The Improving America's Schools Act, Pub.
L. No. 103-382, 108 Stat. 3518, contains the Multiethnic Placement Act of 1994
(hereinafter referred to as ``the Act''). The Act directs the Secretary to
publish guidance to concerned public and private agencies and entities with
respect to compliance with the Act. Section 553, 108 Stat. 4057 (to be codified
at 42 U.S.C. Sec. 5115a). This guidance carries out that direction.
The policy guidance is designed to assist agencies, which are
involved in adoption or foster care placements
and which receive
Federal assistance, in complying with the Act, the
U.S. Constitution
and Title VI of the Civil Rights Act of 1964. The
guidance provides,
consistent with those laws, that an agency or entity
that receives
Federal financial assistance and is involved in adoption
or foster
care
placements may not discriminate on the basis of the
race, color or
national origin of the adoptive or foster parent or
the child involved.
The guidance further specifies that the
consideration of race, color,
or national origin by agencies making
placement determinations is
permissible only when an adoption or
foster care agency has made a
narrowly tailored,
individualized determination that the facts and
circumstances of a
particular case require the consideration of race,
color, or national
origin in order to advance the best interests of the
child in need of
placement.
In addition to prohibiting discrimination in placements
on the
basis of race, color or national origin, the Act requires that
agencies
engage in diligent recruitment efforts to ensure that all
children
needing placement are served in a timely and adequate manner. The
guidance sets forth a number of methods that agencies should utilize in
order to develop an adequate pool of families capable of promoting each
child's development and case goals.
Covered agencies or
entities must be in full compliance with the
Act no later than six months
after publication of this guidance or one
year after the date of the
enactment of this Act, whichever occurs
first, i.e., October 21, 1995.
Under limited circumstances outlined in
the guidance, the Secretary of HHS
may extend the compliance date for
states able to demonstrate that they
must amend state statutory law in
order to change a particular practice
that is inconsistent with the
Act. The guidance explains in detail the
vehicles for enforcement of
the Act's prohibition against discrimination
in adoption or foster care
placement.
The text of the guidance appears below.
Dated: April 20,
1995.
Dennis Hayashi,
Director, Office for Civil Rights.
Dated: April 20, 1995.
Mary Jo Bane,
Assistant
Secretary, Administration for Children and Families.
Policy
Guidance--Race, Color, or National Origin as Considerations in
Adoption
and Foster Care Placements
Background
On October 20, 1994, President Clinton signed the ``Improving
America's Schools Act of 1994,'' Public Law 103-382, which includes
among
other provisions, Section 551, titled ``The Multiethnic Placement
Act of
1944'' (MEPA).
The purposes of that Act are: to decrease the length
of time that
children wait to be adopted; to prevent discrimination in the
placement
of children on the basis of race, color, or national origin; and
to
facilitate the identification and recruitment of foster and
adoptive
parents who can meet children's needs.
To
accomplish these goals the Act identifies specific impermissible
activities by an agency or entity (agency) which receives Federal
assistance and is involved in adoption or foster care
placements. The
law prohibits such agencies from
``categorically denying to any person
the opportunity to become an
adoptive or foster parent solely on the
basis of the race,
color, or national origin of the adoptive or foster
parent or the
child'' and ``from delaying or denying the placement of a
child solely on
the basis of race, color, or national origin of the
adoptive or foster
parent or parents involved.'' Under the Act, these
prohibitions also
apply to the failure to seek termination of parental
rights or otherwise
make a child legally available for adoption.
The law does permit
an agency to consider, in determining whether a
placement is in a child's
best interests, ``the child's cultural,
ethnic, and racial background and
the capacity of prospective foster or
adoptive parents to
meet the needs of a child of this background.'' If
an agency chooses to
include this factor among those to be considered
in making placement
decisions, it must be considered in conjunction
with other factors
relevant to the child's best interests and must not
be used in a manner
that delays the placement decision.
The Act also seeks to ensure
that agencies engage in active
recruitment of potential foster and
adoptive parents who reflect the
racial and ethnic diversity of the
children needing placement. Section
554 of the Act amends Section 422(b)
and Part A of Title XI of the
Social Security Act. The amendment specifies
the following requirements
for child welfare services programs: ``[Each
plan for child welfare
services under this part shall . . .] (9) provide
for the diligent
recruitment of potential foster and adoptive
families that reflect the
ethnic and racial diversity of children in
the State for whom foster
and adoptive homes are needed.''
The Multiethnic Placement Act is to be viewed in conjunction with
Title VI of the Civil Rights Act of 1964 (Title VI), which prohibits
recipients of Federal financial assistance from discriminating based on
race, color, or national origin in their programs and activities and
from
operating their programs in ways that have the effect of
discriminating on
the basis of race, color, or national origin.
The Administration for
Children and Families (ACF) and the Office
for Civil Rights (OCR) in the
Department of Health and Human Services
(HHS) have the responsibility for
implementing these laws. OCR has the
responsibility to enforce compliance
with Title VI and its implementing
regulation (45 CFR part 80), as well as
other civil rights laws. ACF
administers programs of Federal financial
assistance to child
[[Page 20273]] welfare agencies and has responsibility
to enforce
compliance with the laws authorizing this assistance.
Private, as well as public, adoption and foster care
agencies often
receive Federal financial assistance, through State
Block Grant
programs, programs under Title IV-E of the Social Security
Act, and
discretionary grants. The assistance may reach an agency
directly, or
indirectly as a subrecipient of other agencies. Receipt of
such
assistance obligates recipients to comply with Title VI and other
civil
rights laws and regulations and with the requirements of the Social
Security Act. Further, the Civil Rights Restoration Act of 1987 confers
jurisdiction over entities any part of which receive any Federal funds.
This guidance is being issued jointly by ACF and OCR, pursuant to
Section 553(a) of MEPA, to enable affected agencies to conform their
laws,
rules, and practices to the requirements of the Multiethnic
Placement Act
and Title VI.
Discussion
A. Race, Culture,
or Ethnicity as a Factor in Selecting Placements
1. Impermissible
Activities
In enacting MEPA, Congress was concerned that many
children, in
particular those from minority groups, were spending lengthy
periods of
time in foster care awaiting placement in
adoptive homes.\1\ At
present, there are over twenty thousand
children who are legally free
for adoption but who are not in
preadoptive homes. While there is no
definitive study indicating how
long children who are adoptable must
wait until placement, the available
data indicate the average wait may
be as long as two years after the time
that a child is legally free for
adoption, and that minority
children spend, on average, twice as long
as non-minority children
before they are placed. Both the number of
children needing placements
and the length of time they await placement
increase substantially
when those children awaiting termination of
parental rights are taken into
account.
\1\MEPA applies to decisions regarding both foster
care and
adoption placements. In discussions
regarding the bill, members of
Congress focused primarily on
problems related to adoption
decisions.
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MEPA reflects Congress' judgment that children are harmed when
placements
are delayed for a period longer than is necessary to find
qualified
families. The legislation seeks to eliminate barriers that
delay or
prevent the placement of children into qualified homes. In
particular, it
focuses on the possibility that policies with respect to
matching children
with families of the same race, culture, or ethnicity
may result in
delaying, or even preventing, the adoption of children by
qualified families. It also is designed to ensure that every effort is
made to develop a large and diverse pool of potential foster and
adoptive families, so that all children can be quickly placed in homes
that meet their needs.
In developing this guidance, the department
recognizes that states
seek to achieve a variety of goals when making foster
or adoptive
placements. For example, in making a foster
care placement, agencies
generally are concerned with
finding a home that the child can easily
fit into, that minimizes the
number of adjustments that the child,
already facing a difficult
situation, must face, and that is capable of
meeting any special physical,
psychological, or educational needs of
the child. In making adoption
placements, agencies seek to find homes
that will maximize
the current and future well-being of the child. They
evaluate whether the
particular prospective parents are equipped to
raise the child, both in
terms of their capacity and interests to meet
the individual needs of the
particular child, and the capacity of the
child to benefit from membership
in a particular family.
Among the factors that many state statutes,
regulations, or policy
manuals now specify as being relevant to placement
decisions are the
racial, ethnic, and cultural background of the child.
Some states
specify an order of preference for placements, which
make placement in
a family of the same race, culture, or ethnicity
as the child a
preferred category. Some states prescribe set periods of
time in which
agencies must try to place a child with a family of the same
race,
culture, or ethnicity before the children can be placed with a
family
of a different race, culture, or ethnicity. Some states have a
general
preference for same race or ethnicity placements, although
they do not
specify a placement order or a search period. And some
states indicate
that children should be placed with families of the same
race or
ethnicity provided that this is consistent with the best interests
of
the child.
Establishing standards for making foster
care and adoption
placement decisions, and determining the
factors that are relevant in
deciding whether a particular placement meets
the standards, generally
are matters of state law and policy. Agencies
which receive Federal
assistance, however, may use race, culture, or
ethnicity as factors in
making placement decisions only insofar as the
Constitution, MEPA, and
Title VI permit.
In the context of
child placement decisions, the United States
Constitution and Title VI
forbid decision making on the basis of race
or ethnicity unless the
consideration advances a compelling
governmental interest. The only
compelling governmental interest, in
this context, is protecting the
``best interests'' of the child who is
to be placed. Moreover, the
consideration must be narrowly tailored to
advancing the child's interests
and must be made as an individualized
determination for each child. An
adoption agency may take race into
account only if it has
made an individualized determination that the
facts and circumstances of
the specific case require the consideration
of race in order to advance
the best interests of the specific child.
Any placement policy that takes
race or ethnicity into account is
subject to strict scrutiny by the courts
to determine whether it
satisfies these tests. Palmore v. Sidoti, 466 U.S.
429 (1984).
A number of practices currently followed by some agencies
clearly
violate MEPA or Title VI. These include statutes or policies that:
<bullet> Establish time periods during which only a same race/
ethnicity search will occur;
<bullet> Establish orders
of placement preferences based on race,
culture, or ethnicity;
<bullet> Require caseworkers to specially justify transracial
placements;
or
<bullet> Otherwise have the effect of delaying placements,
either
before or after termination of parental rights, in order to
find a
family of a particular race, culture, or ethnicity.
Other rules, policies, or practices that do not meet the
constitutional
strict scrutiny test would also be illegal.
2. Permissible
Considerations
MEPA does specifically allow, but not require,
agencies to consider
``the child's cultural, ethnic, and racial background
and the capacity
of prospective foster or adoptive parents to meet
the needs of a child
of this background'' as one of the factors in
determining whether a
particular placement is in a child's best interests.
When an agency chooses to use this factor, it must be on an
individualized basis. Agencies that provide professional adoption
services usually involve prospective parents in an educative family
assessment process designed to increase the likelihood of successful
placements.
This process includes providing potential adoptive parents
with an
understanding of the special needs of adoptive children, such
as how
children react to separation and [[Page 20274]] maltreatment and
the
significance of the biological family to a child. Adoption
specialists also assess the strengths and weaknesses of prospective
parents. They help them decide whether adoption is the right thing
for
them and identify the kind of child the family thinks it can parent.
Approved families are profiled, as are the waiting children.
When a child becomes available for adoption, the pool of families
is reviewed to see if there is an available family suitable for the
specific child.\2\ Where possible, a number of families are identified
and
the agency conducts a case conference to determine which family is
most
suitable. The goal is to find the family which has the greatest
ability to
meet the child's psychological needs.\3\ The child is
discussed with the
family, and decisions are made about the placement
of the specific child
with the family. This process helps prevent
unsuccessful placements,
and promotes the interest of children in
finding permanent homes.
\2\Among the child-related factors often considered are:
<bullet>
The child's current functioning and behaviors;
<bullet> The medical,
educational and developmental needs of the
child;
<bullet>
The child's history and past experience;
<bullet> The child's
cultural and racial identity needs;
<bullet> The child's interests
and talents;
<bullet> The child's attachments to current
caretakers.
\3\Among the factors that agencies consider in assessing a
prospective parent's suitability to care for a particular child
are:
<bullet> Ability to form relationships and to bond
with the
specific child;
<bullet> The ability to help
the child integrate into the
family;
<bullet> The
ability to accept the child's background and help
the child cope with her
or his past;
<bullet> The ability to accept the behavior and
personality of
the specific child;
<bullet> The ability
to validate the child's cultural, racial
and ethnic background;
<bullet> The ability to meet the child's particular educational,
developmental or psychological needs.
---------------------------------------------------------------------------
To the extent that an agency looks at a child's race, ethnicity, or
cultural background in making placement decisions, it must do so in a
manner consistent with the mode of individualized decision-making that
characterizes the general placement process for all children.
Specifically, in recruiting placements for each child, the agency
must
focus on that child's particular needs and the capacities of the
particular prospective parent(s).
In making individualized
decisions, agencies may examine the
capacity of the prospective parent(s)
to meet the child's psychological
needs that are related to the child's
racial, ethnic, or cultural
background. This may include assessing the
attitudes of prospective
parents that relate to their capacity to nurture
a child of a
particular background. Agencies are not prohibited from
discussing with
prospective adoptive and foster parents their
feelings, capacities and
preferences regarding caring for a child of
a particular race or
ethnicity, just as they discuss issues related to
other
characteristics, such as sex, age, or disability; nor are they
prohibited from considering the expressed preference of the prospective
parents as one of several factors in making placement decisions.
Agencies
may consider the ability of prospective parents to cope
with the
particular consequences of the child's developmental history
and to
promote the development of a positive sense of self, which often
has been
compromised by maltreatment and separations. An agency also
may assess a
family's ability to nurture, support, and reinforce the
racial, ethnic, or
cultural identity of the child and to help the child
cope with any forms
of discrimination the child may encounter. When an
agency is making a
choice among a pool of generally qualified families,
it may consider
whether a placement with one family is more likely to
benefit a child, in
the ways described above or in other ways that the
agency considers
relevant to the child's best interest.
Under the law, application of
the ``best interests'' test would
permit race or ethnicity to be taken
into account in certain narrow
situations. For example, for children who
have lived in one racial,
ethnic, or cultural community, the agency may
assess the child's
ability to make the transition to another community. A
child may have a
strong sense of identity with a particular racial,
ethnic, or cultural
community that should not be disrupted. This is not a
universally
applicable consideration. For instance, it is doubtful that
infants or
young children will have developed such needs. Ultimately,
however, the
determination must be individualized. Another example would
be when a
prospective parent has demonstrated an inability to care
for, or
nurture self-esteem in, a child of a different race or ethnicity.
In
making such determinations, an adoption agency may not rely on
generalizations about the identity needs of children of a particular
race or ethnicity or on generalizations about the abilities of
prospective
parents of one race or ethnicity to care for, or nurture
the
sense of identity of, a child of another race, culture, or
ethnicity. Nor
may an agency presume from the race or ethnicity of the
prospective
parents that those parents would be unable to maintain the
child's ties to
another racial, ethnic, or cultural community.
B. Recruitment Efforts
As recognized in the Multiethnic Placement Act, in order to achieve
timely and appropriate placement of all children, placement agencies
need
an adequate pool of families capable of promoting each child's
development
and case goals. This requires that each agency's
recruitment process
focuses on developing a pool of potential foster
and adoptive
parents willing and able to foster or adopt the children
needing placement. The failure to conduct recruitment in a manner that
seeks to provide all children with the opportunity for placement, and
all
qualified members of the community an opportunity to adopt, is
inconsistent with the goals of MEPA and could create circumstances
which
would constitute a violation of Title VI.
An adequate recruitment
process has a number of features.
Recruitment efforts should be designed
to provide to potential foster
and adoptive parents throughout the
community information about the
characteristics and needs of the available
children, the nature of the
foster care and adoption
processes, and the supports available to
foster and adoptive
families.
Both general and targeted recruiting are important.
Reaching all
members of the community requires use of general
media--radio,
television, and print. In addition, information should be
disseminated
to targeted communities through community organizations, such
as
religious institutions and neighborhood centers. The dissemination of
information is strengthened when agencies develop partnerships with
groups from the communities from which children come, to help identify
and
support potential foster and adoptive families and to conduct
activities which make the waiting children more visible.
To meet
MEPA's diligent efforts requirements, an agency should have
a
comprehensive recruitment plan that includes:
<bullet> A
description of the characteristics of waiting children;
<bullet>
Specific strategies to reach all parts of the community;
<bullet>
Diverse methods of disseminating both general and child
specific
information;
<bullet> Strategies for assuring that all
prospective parents have
access to the home study process, including
location and hours of
services that facilitate access by all members of
the community;
<bullet> Strategies for training staff to work with
diverse
cultural, racial, and economic communities; [[Page 20275]]
<bullet>
Strategies for dealing with linguistic barriers;
<bullet>
Non-discriminatory fee structures; and
<bullet> Procedures for
a timely search for prospective parents for
a waiting child, including the
use of exchanges and other interagency
efforts, provided that such
procedures must insure that placement of a
child in an appropriate
household is not delayed by the search for a
same race or ethnic
placement.
Agencies receiving Federal funds may not use standards
related to
income, age, education, family structure, and size or ownership
of
housing, which exclude groups of prospective parents on the basis of
race, color, or national origin, where those standards are arbitrary or
unnecessary or where less exclusionary standards are available.
Enforcement
As provided in Section 553(d)(1) of MEPA,
covered agencies or
entities are required to comply with the Act no later
than six months
after publication of this guidance or one year after the
date of the
enactment of this Act, whichever occurs first, i.e., October
21, 1995.
Pursuant to Section 553(d)(2) of MEPA, if a state demonstrates
to the
satisfaction of the Secretary of HHS that it is necessary to amend
state statutory law in order to change a particular practice that is
inconsistent with MEPA, the Secretary may extend the compliance date
for
the state a reasonable number of days after the close of the first
state
legislative session beginning after April 25, 1995. In
determining whether
to extend the compliance date, the Secretary will
take into account the
constitutional standards described in Part A of
this guidance. Because
states need not enforce unconstitutional
provisions of their laws,
statutory amendments are not an essential
precondition to coming into
compliance with respect to any such
provisions.
HHS emphasizes
voluntary compliance with the law and recognizes
that covered agencies may
want further guidance on their obligations
under these laws. Accordingly,
HHS is offering technical assistance to
any covered agency seeking to
better understand and more fully comply
with the Multiethnic Placement
Act. Organizations wishing to be
provided with technical assistance on
compliance with the
nondiscrimination provisions of MEPA should contact
Ronald Copeland of
OCR at 202-619-0553. Organizations wishing to be
provided with
technical assistance regarding required recruitment efforts
should
contact Carol Williams or Dan Lewis of the Administration on
Children
and Families at 202-205-8618.
The Multiethnic
Placement Act provides two vehicles for enforcement
of its prohibition
against discrimination in adoption or foster care
placement. First, pursuant to Section 553(b), any individual who is
aggrieved by an action he or she believes constitutes discrimination in
violation of the Act has the right to bring an action seeking equitable
relief in a United States district court of appropriate jurisdiction.
Second, the Act provides that noncompliance with the prohibition is
deemed
a violation of Title VI.
OCR has published regulations to effectuate
the provisions of Title
VI. 45 CFR part 80. Any individual may file a
complaint with OCR
alleging that an adoption or foster
care organization funded by HHS
makes placement decisions in
violation of the Multiethnic Placement Act
and Title VI. OCR may also
initiate compliance reviews to determine
whether violations have occurred.
If OCR determines that an adoption or
foster care
organization makes discriminatory placement decisions, OCR
will
first seek voluntary compliance with the law. Should attempts at
voluntary
compliance prove unsuccessful, OCR will take further steps to
enforce the
law.
These steps may involve referring the matter to the Department
of
Justice with a recommendation that appropriate court proceedings be
brought. HHS may also initiate administrative proceedings leading to
the termination of the offending agency's Federal financial assistance.
These proceedings include the opportunity for a covered agency or
entity
to have a hearing on any OCR findings made against it. 45 CFR
80.8.
At any point in the complaint investigation process or during the
pendency of fund termination proceedings, organizations may agree to
come
into voluntary compliance with the law. OCR will work closely with
organizations to develop necessary remedial actions, such as training
of
staff in the requirements of Title VI and MEPA, to ensure that their
efforts at compliance are successful.
When a state fails to develop
an adequate recruitment plan and
expedite the placement of children
consistent with MEPA, the Secretary
through ACF and OCR will provide
technical assistance to the state in
the development of the plan and where
necessary resolve through
corrective action major compliance issues. When
these efforts fail the
Secretary will make a determination of appropriate
proportional
penalties.
[FR Doc. 95-10155 Filed 4-24-95;
8:45 am]
BILLING CODE 4150-04-M
Date of Revision: June 4, 1997
Comments to:
ocrmail@hhs.gov