U.S. GOVERNMENT PRINTING OFFICE

63–768 WASHINGTON : 2000

IMPLEMENTATION OF THE INTERETHNIC

ADOPTION AMENDMENTS

HEARING

BEFORE THE

SUBCOMMITTEE ON HUMAN RESOURCES

OF THE

COMMITTEE ON WAYS AND MEANS

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

SECOND SESSION

SEPTEMBER 15, 1998

Serial No. 105–111

Printed for the use of the Committee on Ways and Means

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(II)

COMMITTEE ON WAYS AND MEANS

BILL ARCHER, Texas, Chairman

PHILIP M. CRANE, Illinois

BILL THOMAS, California

E. CLAY SHAW, JR., Florida

NANCY L. JOHNSON, Connecticut

JIM BUNNING, Kentucky

AMO HOUGHTON, New York

WALLY HERGER, California

JIM MCCRERY, Louisiana

DAVE CAMP, Michigan

JIM RAMSTAD, Minnesota

JIM NUSSLE, Iowa

SAM JOHNSON, Texas

JENNIFER DUNN, Washington

MAC COLLINS, Georgia

ROB PORTMAN, Ohio

PHILIP S. ENGLISH, Pennsylvania

JOHN ENSIGN, Nevada

JON CHRISTENSEN, Nebraska

WES WATKINS, Oklahoma

J.D. HAYWORTH, Arizona

JERRY WELLER, Illinois

KENNY HULSHOF, Missouri

CHARLES B. RANGEL, New York

FORTNEY PETE STARK, California

ROBERT T. MATSUI, California

BARBARA B. KENNELLY, Connecticut

WILLIAM J. COYNE, Pennsylvania

SANDER M. LEVIN, Michigan

BENJAMIN L. CARDIN, Maryland

JIM MCDERMOTT, Washington

GERALD D. KLECZKA, Wisconsin

JOHN LEWIS, Georgia

RICHARD E. NEAL, Massachusetts

MICHAEL R. MCNULTY, New York

WILLIAM J. JEFFERSON, Louisiana

JOHN S. TANNER, Tennessee

XAVIER BECERRA, California

KAREN L. THURMAN, Florida

A.L. SINGLETON, Chief of Staff

JANICE MAYS, Minority Chief Counsel

SUBCOMMITTEE ON HUMAN RESOURCES

E. CLAY SHAW, JR., Florida, Chairman

DAVE CAMP, Michigan

JIM MCCRERY, Louisiana

MAC COLLINS, Georgia

PHILIP S. ENGLISH, Pennsylvania

JOHN ENSIGN, Nevada

J.D. HAYWORTH, Arizona

WES WATKINS, Oklahoma

SANDER M. LEVIN, Michigan

FORTNEY PETE STARK, California

ROBERT T. MATSUI, California

WILLIAM J. COYNE, Pennsylvania

WILLIAM J. JEFFERSON, Louisiana

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records

of the Committee on Ways and Means are also published in electronic form. The printed

hearing record remains the official version. Because electronic submissions are used to

prepare both printed and electronic versions of the hearing record, the process of converting

between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process

is further refined.

(III)

C O N T E N T S

Page

Advisory of September 8, 1998, announcing the hearing ..................................... 2

WITNESSES

U.S. Department of Health and Human Services, Hon. Olivia A. Golden,

Ph.D., Assistant Secretary, Administration for Children and Families .......... 14

U.S. General Accounting Office, Mark V. Nadel, Ph.D., Associate Director,

Income Security Issues, Health, Education, and Human Services Division ... 39

Bartholet, Elizabeth, Harvard Law School ............................................................ 107

Barth, Richard P., University of North Carolina .................................................. 70

Kennedy, Randall, Harvard Law School ................................................................ 81

Metzenbaum, Hon. Howard .................................................................................... 34

Murphy, Patrick T., Cook County, Illinois, Public Guardian ............................... 116

National Council for Adoption, William L. Pierce ................................................. 144

North American Council on Adoptable Children, Joe Kroll ................................. 92

Simon, Rita J., American University ..................................................................... 48

SUBMISSIONS FOR THE RECORD

American Public Human Services Association, Betsey Rosenbaum, statement. 163

Child Welfare League of America, Inc., National Council of Latino Executives,

New York, NY, Elba Montalvo, statement and attachment ............................. 169

Illinois Department of Children and Family Services, statement ....................... 179

Institute for Black Parenting, Inglewood, CA, Zena Oglesby, Jr., statement .... 185

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IMPLEMENTATION OF THE INTERETHNIC

ADOPTION AMENDMENTS

TUESDAY, SEPTEMBER 15, 1998

HOUSE OF REPRESENTATIVES,

COMMITTEE ON WAYS AND MEANS,

SUBCOMMITTEE ON HUMAN RESOURCES,

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:55 a.m., in

room B318, Rayburn House Office Building, Hon. E. Clay Shaw, Jr.

(Chairman of the Subcommittee) presiding.

[The advisory announcing the hearing follows:]

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Chairman SHAW. As we go into the hearing this morning, I

would like to state the intention of the Chair. The intention of the

Chair is to attempt to conclude this hearing by about 20 after

12:00. If I fail in doing so, I will simply recess until approximately

1:30 or 1:45. The purpose of that is that there is a meeting that

the Republican Members here are required to go to, but I hope that

we can conclude the meeting.

I will ask all of the witnesses to summarize their testimony as

best they can. I will strictly adhere to the five minute rule. I don’t

want my instructions to in any way minimize the importance of

this hearing as it is something that the committee worked on very

hard in a bipartisan manner with regard to a very important subject.

Our goal in this hearing is straight forward: We aim to find out

if the provisions of the 1996 Interethnic Placement legislation are

being aggressively implemented. We want to know if the State laws

and administrative guidance are consistent with the 1996 statute,

whether States are actually putting into practice the policies that

should be reflected in their statutes and administrative documents

and whether the Department of Health and Human Services is

doing everything possible to implement this law.

Finally, although this issue may be a bit premature, we want to

know whether there is concrete evidence that the barriers to interethnic adoption are actually falling. There is no more important

evidence on this goal than data on the comparative lengths of time

white, black, and Hispanic children wait to be adopted. There still

seems to be some lingering confusion about the meaning of the law

we passed in 1996. Thus, I want to reiterate for the record that the

statute is actually quite clear: As a general principle of foster care

and adoption placements, considerations of race, color, and national

origin are now illegal. There is a very slight—and I emphasize very

slight—exception to this prohibition. The exception is that in a particular individual case, race, color and national origin can be considered if there is a compelling Government interest. The only compelling Government interest is that race or color matching would

be in the best interests of the child. This is a very strict test and

can be met in only exceptional cases. In its 1997 administrative

memorandum on this provision, HHS listed only one situation in

which race matching was clearly justifiable—in the adoption of an

older child who stated a clear preference for the same race parents.

I might say the underlying provision here is to get these kids out

of foster care, where you have loving families that are anxious to

bring them into their families. Thus, regardless of one’s views

about race or color matching, the law says it is illegal. So we are

here to promote full and vigorous implementation of the law.

Before we turn to our witnesses, I want to make one additional

point. Minority children spend far too long in foster care. We have

very good data on this point, some of which will be reviewed by our

distinguished witnesses today. In fact, Professor Barth says that in

his studies it shows that black children in California stay in foster

care up to four times longer than white kids. This is a tragedy and

a travesty. I have long been committed to attacking this problem

of unequal treatment of minority children in State custody, and

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after reading today’s testimony I am even more strongly committed

to doing everything I can to shorten their stay in foster care.

Can anyone here imagine a worse fate for a little toddler than

to be confined to foster care for four or five years and during that

time to live in three or four different families? Particularly when

you know that there are families out there that are anxiously

awaiting to adopt kids just exactly like them. But there is something I don’t understand. Where are the Nation’s powerful and normally vociferous children’s advocates on this particular issue? I

want advocates to take this challenge seriously. We should be condemning anyone who supports race matching and spending a substantial part of your time and money fighting those who would

keep these children in foster care.

In my opinion, there is no clearer or more important issue on the

Nation’s social policy agenda than fighting to ensure that children,

including minority children, have the privilege of being adopted.

[The opening statement and attachment follow:]

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Chairman SHAW. Mr. Levin.

Mr. LEVIN. Thank you, Mr. Chairman. As you mentioned, we

have some time constraints here. On your side you’ll have to be

gone after 12:20, I think you said. We have and I have some scheduling problems on legislative matters after that. So for the sake of

saving time, let me just enter my statement in the record and simply say that I hope we’ll have a good discussion here today. There

are differing points of view, but I don’t see the need for us to have

any kind of an adversarial atmosphere here.

I think the goal here is very common. I think we all share it.

There may be differing perspectives as to how to reach it, but there

surely is a common bond here. I hope we can proceed with that

spirit. I ask that my full statement be entered into the record.

Chairman SHAW. Without objection.

[The opening statement follows:]

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Chairman SHAW. I appreciate that. I concur in your statement.

As our first witness, from the U.S. Department of Health and

Human Services, a friend of this committee, Dr. Olivia Golden, who

is Assistant Secretary of the Administration for Children and Families.

Dr. Golden, welcome.

STATEMENT OF HON. OLIVIA A. GOLDEN, PH.D., ASSISTANT

SECRETARY, ADMINISTRATION FOR CHILDREN AND FAMILIES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

Ms. GOLDEN. Thank you. In the interest of time, my long statement is in the record. I’ll read a brief one.

Chairman SHAW. All of the statements without objection, full

statements, will be placed into the record. Thank you.

Ms. GOLDEN. Mr. Chairman and members of the subcommittee,

I am pleased to appear before you to discuss the implementation

and enforcement of the Multiethnic Placement Act of 1994 as

amended by the Interethnic Placement provisions of 1996. I am

joined today by David Garrison, Acting Director of the Office for

Civil Rights, and Dr. Carol W. Williams, Associate Commissioner

for the Children’s Bureau.

We are proud that this administration has been able to work

with the Congress and with important leadership in this committee

to pass critical adoption and foster care legislation. Working together we have enacted 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. We have begun to tear down the many

barriers to adoption, including race-based discrimination that

stands in the way of placing children in permanent homes. We are

firmly dedicated to eradicating race-based discrimination.

While the important work of implementing the Multiethnic

Placement Act continues, a great deal has changed since its enactment in 1994. For example, when the Multiethnic Placement Act

was enacted, 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 that legislation and cooperative work with this department, States have moved away from

these race-based decisions, meaning that a child no longer needs 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.

Twenty-nine compliance reviews have been conducted by the Office for Civil Rights, OCR, since August 1996. For example, as a

result of one review conducted in five counties in Florida, discriminatory practices found in one county are being corrected. 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 to 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 retraining of many public and private agency workers. The Secretary has personally written to all 50 governors urgVerDate 11-MAY-2000 09:18 Aug 25, 2000 Jkt 064778 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 E:\HEARINGS\63768 pfrm07 PsN: 63768
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ing 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 affecting the placement of specific children.

As these four examples demonstrate, we have made important

strides. But there is much that remains to be done. The average

age of the 110,000 children who are in foster care and waiting to

be adopted is between seven and eight years old. Their average

length of stay in foster care is almost four years. We simply cannot

ask these children to wait even a moment longer than necessary

to enjoy the love and care of a family. This is why we must continue our work to end, in practice as well as in policy, discrimination that causes children to remain in the impermanence of foster

care. This will require not only our ongoing commitment at the

Federal level, but leadership and dedication on the part of State

and local officials with direct responsibility for the administration

of child welfare programs across this country.

Now I am pleased to provide a more detailed overview of the department’s multi-pronged strategy to implement the Multiethnic

Placement Act and interethnic provisions. My written testimony

provides much more detail on these strategies. First, I would like

to address policy guidance. Within six weeks of the passage of the

Multiethnic Placement Act in 1994, the department issued an information memorandum summarizing the new law and transmitting a copy of its text. This was followed several months later with

the publication of guidance in the Federal Register. Consistent

with the Supreme Court’s Adarand decision and with the Chairman’s summary in the opening, our guidance restricted consideration of race to exceptional case-specific circumstances only, a very

strict interpretation of the law.

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

perspective foster and adoptive families who reflect the racial and

ethnic diversity of children needing placements.

When the Interethnic Placement provisions were enacted in August 1996, the department reviewed the new law’s impact on the

ongoing efforts to prevent race or ethnicity-based delays or denials

of placements. It was determined that while the changes were significant, the basic issues of State law and policy had been addressed in the department’s initial review. The 1996 provisions affirmed the department’s strict interpretation and clarified

Congress’s intent to eliminate completely delays in placement

where they were in any way avoidable. Basic information about the

1996 Interethnic Placement provisions was transmitted to the

States in November 1996, and more detailed guidance in June of

1997.

In addition, I am pleased to announce today that a notice of proposed rulemaking on child welfare monitoring that further implements the financial penalty provisions of the 1996 Interethnic

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Placement law will be published in the Federal Register this coming Friday, September 18.

The second key area of our implementation strategy has been

providing effective training and technical assistance. For example,

in Illinois and Missouri, the department has alerted State officials

proactively 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.

The third part of our implementation strategy, is conducting

monitoring and compliance reviews. The Department of Health and

Human Services has developed three procedures for monitoring

compliance with the Multiethnic Placement Act. First, ACF’s child

and family services review includes the State’s self assessment, followed by an on-site ACF review, including interviews and examination of case records. If ACF’s review suggests potential non-compliance with MEPA, OCR will be notified so a more in-depth investigation can be undertaken.

Second, the OCR investigates complaints by individuals who believe they have been victims of discrimination. Third, OCR also

conducts periodic compliance reviews, reviews of the policies and

practices of recipients of HHS funds to determine whether they are

in compliance with the law.

We have accomplished much in the past few years. Building on

these actions, our work in the coming years must focus on collaboration with States and others to change frontline practice. This

work will be challenging, but it 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.

Thank you for the opportunity to testify before the subcommittee.

I would be pleased to answer any questions you may have.

[The prepared statement follows:]

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Chairman SHAW. Thank you, Dr. Golden.

Mr. Camp.

Mr. CAMP. Thank you, Mr. Chairman.

Good to see you, Dr. Golden. I particularly was struck by your

testimony which said that you wanted to end discrimination which

allows children to languish in foster care. We worked very hard together on the Adoption and Safe Families Act, which was about

that.

But one of the major innovations in the 1996 legislation was the

imposition of stiff financial penalties on any State that violated the

prohibition on race matching. I understand from your testimony no

penalties have been issued against any States since 1996. Is that

correct?

Ms. GOLDEN. What we have done is forced changes in the activities of States. The Congress in laying out the penalty process included a corrective action period in the title IV–E penalty process.

The civil rights penalty process also includes corrective action. So

our first step is to make change happen. That is what we have

done. We have not gotten to the penalty aspect because we haven’t

had resistance to making the changes.

Mr. CAMP. Has there been any warning of penalty or threatening

of penalty?

Ms. GOLDEN. I don’t think there have been formal actions, formal

letters. Certainly one of the things that leads people to comply is

that they know it is against the law and that there are penalties.

But so far as I know, there haven’t been any formal letters.

Mr. CAMP. In February of this year, the Boston Globe on February 25th published an editorial suggesting that Rhode Island violated the intent of Federal law by delaying the adoption of a four

year old boy because of racial considerations. According to the article, which without objection I would like to place in the record of

this hearing.

Chairman SHAW. Without objection.

[The information follows:]

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Mr. CAMP. The boy was removed from a mother who was drugplagued. I will quote. ‘‘His drug-plagued mother, when the child

was 18 months old, for three years he had been in the care of a

single foster family who has been trying to adopt him. Once the parental rights were terminated and the child was freed for adoption,

it appears that a second cousin stepped forward to adopt and the

case is currently still unresolved.’’

I wondered if you were aware of this particular case. It has gotten some note in the press. When cases like this come forward,

does HHS go out and try to investigate the State’s potential abuse

of Federal law in this situation?

Ms. GOLDEN. I can tell you a little bit about that case and then

perhaps the broader issues. The Office for Civil Rights did in fact

investigate a complaint in that case and did not in that specific

case find a violation. As you know, there was a set of issues where

this State was attempting to identify the appropriate placement for

a child. My understanding is that the State has in fact supported

the foster family’s petition to adopt and it’s currently before the

courts.

Broadly, I think what I——

Mr. CAMP. Is this one of the cases where you have asked for corrective action or has your department opened a file in this matter?

Ms. GOLDEN. My memory of that case is that that’s a case where

the Office for Civil Rights in their complaint investigation did not

find practices that involved looking at race. You have noted that

there were allegations, but that in fact when they investigated,

they did not find such practices.

But you have raised an important issue. It does sometimes happen that OCR will look at a particular case and they will see practices that are wrong. In that case, they will absolutely require corrective action. In my long testimony I describe a case in Michigan

in which a private agency took action to dismiss individual employees in addition to agreeing to a change in practice.

So I think you are right to note that when we look at a particular

complaint, it is very important for us not only to look at that one

situation, but to identify practices that could be corrected.

Mr. CAMP. There is another situation. Judge Mason in Maryland

ordered a white woman who had been caring for a two-year old

black child whose sibling was murdered by the biological mother to

return the child to the mother. According to the Washington Post,

which wrote an editorial on this on January 3 of this year, one reason for the judge’s decision was that the foster mother was white

while the biological mother is African-American. In other words,

the judge used race-matching as one of the justifications for removing the child from a home where he had lived since he was four

months old and return the child to a mother who had murdered another child, a sibling, which was one of the issues we addressed in

our legislation.

So if the judge said that race-matching was one of the criteria,

in your opinion would that have been legal under the 1996 Interethnic provision? I would also ask has the department taken any

action against the State of Maryland, either by opening a file or beginning a corrective action as you described, or any other action?

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Ms. GOLDEN. Well, I think you are referring to the case that the

press has been summarizing as the Pixley case?

Mr. CAMP. Yes.

Ms. GOLDEN. Yes. Obviously, as you know because we have

worked so much together, I really share your concerns both about

safety and about permanence. The newspaper coverage has certainly suggested a lot of troubling questions in that case.

In terms of jurisdiction, the MEPA legislation as amended in

1996 covers entities that receive money from the Federal Government, for example, a State, or an agency that gets dollars from the

Federal Government to engage in foster care or adoption placements. There actually wasn’t such an entity involved in this case.

There was an informal arrangement between the mother and the

person who cared for the child. So from our look at it, it doesn’t

appear that there is jurisdiction.

Mr. CAMP. All right. I see my time is almost up. Thank you, Dr.

Golden.

Chairman SHAW. Mr. Levin.

Mr. LEVIN. I thank you, Mr. Chairman. Let me just ask you if

you would, and welcome, to just indicate what the agency is doing

in cooperation with States to help move children, especially minority children, into permanent adoptive status. So just tell us quickly

what is going on here?

Ms. GOLDEN. I am glad you asked that question because I think

there is a great deal going on. Congressman Camp and I were just

talking a little bit about how central that goal is, and it’s one that

of course we worked with the committee on in the Adoption and

Safe Families Act.

I would say that there’s a whole array of things going on. The

enforcement of MEPA and the Interethnic Placement provisions are

a piece of that. One important thing is that States are moving to

comply with the MEPA policy provisions and they are passing

State legislation to comply with the provisions in the Adoption and

Safe Families Act that speed up adoption and enable children to

move more quickly through the system. For example, States are

dealing with provisions relating to the termination of parental

rights.

A second area where we have been working a lot with States on

just shifting the focus to adoption. One of the things that used to

happen, and that the Adoption and Safe Families Act makes clear

is not appropriate, is that children would languish in temporary

settings because nobody was thinking about the fact that a return

home might not be safe. Consequently, no action was taken for several years. So we have been working a lot on how you go about

planning, contingent planning, finding placements for the children.

We have been working on numbers. We have been working with

the States on baseline numbers for the adoption incentives provisions. We are expecting that soon we will be able to come back to

you and tell you how much adoption has increased for special needs

children and, in particular, for minority children.

Then the MEPA enforcement has been an important part. As my

testimony noted, about 29 States used to have discriminatory policies; they don’t now. We have also been doing a lot on technical assistance, such as conferences in the States. Our National Resource

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Center on Legal and Court Issues has been providing materials.

We have been working on recruitment. We have been trying to provide technical assistance in that area.

I guess just one last thing to mention, because it’s really important in all adoptions and comes up especially in transracial ones,

we have also been working on an issue I hear a lot from adoptive

families, which is support for families after the legal adoption. Finally, we have been trying to hold States accountable because they

are the ones with the key operational responsibility in all these

areas.

Mr. LEVIN. Let me ask you, later Professor Kennedy is going to

testify. He refers to a department memorandum. There may be several here because I also have a document from the GAO and your

responses. But he says that in the department memorandum, I’m

not quite sure, I don’t think that’s the GAO response itself. But

anyway, he says the department writes and quotes that adoption

agencies must consider all factors that may contribute to a good

placement decision for a child. That may affect whether a particular placement is in the best interest of the child. Then three

dots, so there’s something in between. Then it goes on, ‘‘In some

instances, it is conceivable that for a particular child race, color, or

national origin would be such a factor.’’ Then it goes on to say that

this statement flies in the face of Congress’s decision to remove

race, color, national origin from the menu of possible items that the

agency may lawfully take into account.

Do you want to comment on that?

Ms. GOLDEN. Sure. Let me comment in part again by noting that

I think Chairman Shaw gave a good overview of just what our

guidance says at the beginning, which is that our guidance is clear

and I think consistent with the law and the Constitution. As GAO

notes, our interpretation was seen as very strict until Congress in

1996 made the change to confirm that that was the accurate interpretation.

What our guidance says is that there can be no delay or denial

of placement based on race, that there can be no discrimination,

and that there can be no routine consideration of race. You can’t

ever have it as something that you routinely look at in all circumstances. What you can do, because the best interests of the

child govern placement, you should never make a placement that

is against a child’s best interest, is that there can be narrow particular examples where race is a factor. As the Chairman noted,

our guidance makes clear that we expect those to be infrequent,

where considering race in some way would be necessary to a placement that’s in the best interest of the child.

I think if you read the guidance and our technical assistance and

our work with States, it is clear that that’s a narrow exception and

that our message is that there can be no discrimination, no delay

or denial, and no routine consideration of race.

I think, just to go back to what you said at the beginning about

our shared perspective on this, I think there is just very broad

agreement that there is such urgency to moving children into

homes that will be good for them, that we just can’t afford to miss

the opportunity to use any families that are ready to provide a loving home to a child.

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Mr. LEVIN. Thank you.

Chairman SHAW. I have just a couple of questions. Dr. Golden,

first of all I want to say I am very pleased to hear that your regulations are going to be unveiled this Friday. I look forward to being

able to review them.

Ms. GOLDEN. Thank you.

Chairman SHAW. Secondly, have we seen the effect of this legislation taking hold across the country and in terms of how long particularly minority kids are kept in foster care?

Ms. GOLDEN. That is a good question. I think what I would say

is we only have bits of information now. We will have more in the

future. I think what we have seen so far is changes in practice. We

have seen some individual jurisdictions that have been keeping

track. I think my testimony noted in fact in some counties in Florida where they changed practices and are noting more children

being placed closer to home and shorter waiting times. So there are

individual scattered examples.

In terms of overall data, we now have, and again it’s something

that’s thanks to a lot of historical commitment from this committee, we now have for the first time very solid national adoption

and foster care data. So we have baseline information from that,

but we don’t really have trend data yet because we are really just

at the point where we see what States, you know sort of see from

all States really good adoption and foster care data. We will have

that trend data over time.

Chairman SHAW. Well I would hope that by the end of the next

Congress that we should have that information available. Assuming I remain chairman of this committee, I would intend to call a

hearing just to review strictly the results of what has happened.

Do any of the other Members seek recognition?

Mr. ENGLISH. Mr. Chairman, I don’t have a question, but I would

like to yield my time to Mr. Camp.

Mr. CAMP. Thank you. Dr. Golden, I would just like to ask if it’s

your belief or your understanding that Federal law bans categorical

discrimination on the basis of race, color or national origin in the

placing of children in foster or adoptive homes.

Ms. GOLDEN. Yes. I mean I’m not sure, categorical discrimination

meaning discrimination?

Mr. CAMP. Yes.

Ms. GOLDEN. Yes.

Mr. CAMP. Do you think the following policy statement is consistent with current law that in the adoption and foster care process, children of black ancestry must receive as a priority placement

with black families? Is that consistent or inconsistent with current?

Ms. GOLDEN. To my knowledge that sounds like the kind of

statement that we would tell people was not in compliance if it had

priority or preference in it. Is there something we need to do in the

way of action?

Mr. CAMP. Yes. Well one of my concerns is with grantees of the

department that are receiving taxpayer funds. That statement was

found just last week on the Web site of the North American Council on Adoptable Children. They are a current grantee of HHS,

which would indicate to me that they have not gotten the message

as to what current law is. I wondered if there was a process for

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informing them and also what maybe the process was for choosing

those grantees because of this particular problem.

Ms. GOLDEN. Well I think you’ll certainly have a chance to explore some of those issues, particularly with the witness representing them. We definitely engage in conversations and technical assistance whenever such an issue comes up. The law applies

to organizations that are using the resources for adoptive and foster care placements.

Mr. CAMP. Certainly you would agree that Federal Government

or taxpayer funding of an organization that advocated that policy

would be a problem?

Ms. GOLDEN. Since I don’t know the full story of the situation,

it sounds as though we need to look at it and come back to you.

Mr. CAMP. The other concern I have——

Chairman SHAW. If I might, if you’d yield for just a second.

Mr. CAMP. Yes, I’d be happy to.

Chairman SHAW. I would ask that you submit for the record your

finding in that regard.

Ms. GOLDEN. Okay.

Mr. CAMP. I am also concerned about another Web page, the National Adoption Information Clearinghouse, which is part of HHS.

Also in its Web page refers to the 1994 law in kind of a passing

reference but has no reference to the 1996 provisions. I am concerned about HHS’s ability to fulfill its mandate without providing

the kind of guidance and technical assistance to the States to implement those provisions.

So I am concerned about the fact that in an appropriate place

there is no reference to the legal appropriate practices regarding

adoption and racial——

Ms. GOLDEN. I’ll check. My understanding was that our guidance

and information memorandum on the 1996 legislation as well as

1994 were up, not only on our Web site and on the OCR Web site,

which they are up on, but were also on that Web site. But it sounds

as though you have checked and haven’t found them, so we need

to go back and find out if it’s a computer thing or what the issue

is.

Mr. CAMP. If you could follow up on that I would appreciate it.

Thank you, Mr. Chairman.

Chairman SHAW. Thank you. If none of the other Members are

seeking recognition, we thank you for being here. We would ask

that any Members that have any questions that they wish to submit to the secretary do so, and we would ask that you submit answers in writing that will become part of the minutes of this hearing.

Ms. GOLDEN. Thank you very much.

[Questions submitted to Ms. Golden, and her responses, follow:]

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Chairman SHAW. It’s a pleasure to have you with us.

Our next panel includes an old friend of this subcommittee, Senator Howard Metzenbaum. Also, Mark Nadel is a Ph.D., Associate

Director of Income Security Issues, Health, Education, and Human

Services Division of the U.S. General Accounting Office; Rita

Simon, Dr. Rita Simon, a professor at American University in

Washington, D.C; Dr. Richard Barth, a professor at the University

of North Carolina in Chapel Hill (who I believe that Dr. Haskins

probably had a hand in because he’s getting from the University

of North Carolina); Professor Randall Kennedy from Harvard Law

School, Cambridge, Massachusetts; and Joe Kroll, who is executive

director of the North American Council on Adoptable Children, St.

Paul, Minnesota.

I would say to all the witnesses we have your full testimony

which will be made a part of the record of this hearing.

Senator Metzenbaum, you are unique in many ways, but you are

most known to me as the only Senator that I have ever known that

came back to undo his own legislation saying it’s been misinterpreted, get rid of it, change it, and let’s get on with getting kids

out of foster care. Also, I know that you are a part-time resident

of my congressional district. It is my pleasure to welcome you back

to this committee.

Senator Metzenbaum.

Mr. CAMP. Mr. Chairman, before we begin, if I could just express

my gratitude for Senator Metzenbaum’s work in this whole area of

adoption.

It’s been a pleasure to work with you. I appreciate the valuable

insight you have given this committee and also look forward to

your testimony. Thank you.

Thank you, Mr. Chairman.

Mr. CAMP. Senator.

STATEMENT OF HON. HOWARD METZENBAUM, A FORMER

SENATOR FROM THE STATE OF OHIO

Senator METZENBAUM. Let me say thank you for your comments.

Let me also say I am everlastingly grateful to the chairman of this

committee, to the ranking member of this committee and to all the

other members of this committee for taking an interest in this subject, because I must confess that I don’t know of any area of Government in connection with which I have been more frustrated

than this one.

In 1994, I thought I had achieved the objective by passing the

Multiethnic Placement Act. I have probably been the author of

maybe 30 pieces of legislation that have gone through the Congress. This was the only one that bore my name, the Metzenbaum

Multi-Ethnic Placement Act. You came along two years later and

repealed that act with my support. I came here and testified in

support of that repeal. I was grateful to you for your leadership

and for moving forward in order to really make the law work, to

tighten it up and make it effective. So I thought that we had made

the grade.

The fact is, the law is there, but HHS isn’t there. HHS has dawdled and doodled and sent out pieces of paper to the various State

governments. But when it comes to enforcing the law, it hasn’t

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been enforced. There hasn’t been one State that’s been called on

the carpet for violating the law. The reality is I believe that almost

every State is violating the law. Although I don’t have evidence of

that as a fact, but all the indications, the case in Rhode Island, the

cases in Washington, the cases in other places in this country, certainly suggest it. I have a tremendous sense of frustration. I am

so grateful that this committee has seen fit to conduct this hearing.

Now the GAO asked HHS some questions. They sent out a list

of about nine pages of questions. Carol Williams, who I think is the

deputy director, replied. The first question: may public agencies

allow adoptive parents to specify the race, color, national origin,

ethnicity, or culture of children whom they are willing to adopt? A

pretty simple question. The answer is no, they may not. But not

as far as HHS is concerned. They took 61 lines of gobbledygook,

plain gobbledygook in order to answer that question. All those answers were phrased to limit the law’s applicability.

There’s no member of the cabinet for whom I have more respect

than Donna Shalala, but the reality is that this law isn’t being enforced and those kids are still sitting out there in foster homes and

some in orphan homes and aren’t being adopted by parents who

want to adopt them.

There’s another question that was answered. In a manner contrary to law, HHS told the GAO that any consideration of race or

ethnicity must be done in the context of individualized decisions.

Well of course. That would always be considered and that’s where

the discrimination always occurs. There hasn’t been one action, not

one letter to any governor or to any State agency saying that ‘‘you

are in violation’’ or ‘‘it appears that you are in violation and your

Federal funding is threatened as a consequence thereof.’’ HHS has

sat back. Some of the people at HHS don’t believe in the law. There

are too many of them, I’m afraid. I am afraid too many of them are

impacting upon the enforcement of this law.

Now the GAO has pointed out they are making continued mailings to the States. That’s good, fine. But until you rap the knuckles, until you say ‘‘unless you shape up we are going to hold back

two percent or three percent or five percent of your Federal funding

from HHS,’’ you are not going to get effective enforcement. You

may have all the nice speeches that you want, the lady who just

preceded me, made a nice speech, but the children are still sitting

out there, not being adopted.

The social workers continue to discriminate, while the kids remain in foster homes and in public institutions. The problem lies

at the doorstep of HHS. Now the reality is that in this particular

instance, you couldn’t have had better support from the top of the

administration. The President made a speech before my law was

ever enacted. I think it was to a group of Black Baptist ministers

in Florida indicating his strong support for the thrust of MOPA.

But HHS does not do anything about it.

Parade Magazine just had a big article called For the Love of

Family, pointing out four families where there were multi-racial

adoptions. There was a small two-inch box in the article which said

that for more information, write the National Council for Adoption.

That small box which brought forth well over 10,000 responses,

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over 10 percent of which reported problems in attempting to adopt

transracially.

Mr. Chairman, your efforts in this regard are much appreciated.

To HHS I say, ‘‘you are failing to enforce the law.’’ You should be

ashamed. You ought to hang your head in shame because it’s those

little kids out there, those black kids are not getting the benefit of

the legislation that you and I authored.

To the social workers who are failing to follow the law, I say to

them ‘‘you are a disgrace to your profession’’ because you are more

concerned about this whole question of race and stuff than you are

concerned about the children for whom you ought to have the real

concern.

To this committee I want to conclude by saying thanks for your

leadership in amending the law and thanks for holding this hearing. You are a ray of sunshine in a governmental process loaded

against thousands of black children much in need of a loving parental relationship. Thank you.

[The prepared statement follows:]

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Chairman SHAW. Thank you, Senator.

Dr. Nadel.

STATEMENT OF MARK V. NADEL, PH.D., ASSOCIATE DIRECTOR,

INCOME SECURITY ISSUES, HEALTH, EDUCATION, AND

HUMAN SERVICES DIVISION, U.S. GENERAL ACCOUNTING

OFFICE

Mr. NADEL. Mr. Chairman and members of the subcommittee, I

am pleased to be here today to discuss the findings in our report

which has been released today on the implementation of the Multiethnic Placement Act of 1994 and the 1996 legislation. This morning I will summarize our findings regarding the implementation of

the 1994 act and regarding the implementation of the 1996 amendment, and finally, what remains to be done to better assure effective implementation.

Our work examined implementation efforts by HHS and by the

State of California in two of its counties, Alameda and San Diego.

In implementing the 1994 act, HHS recognized that restricting racial placement decisions would require significant changes of child

welfare agencies, and the department launched a major effort to

provide policy guidance and technical assistance on the 1994 act.

Between enactment and the effective date of the act, HHS provided

the States with written guidance and technical assistance, which

included training and a review of State policy and law to assure

that States that were not in conformance completed corrective actions as the assistant secretary discussed.

In terms of what came later, it is important to note that some

States believe that HHS’s guidance regarding the use of race was

more restrictive than was required in the original Metzenbaum

Act. California also began implementation efforts promptly. It provided counties with information on the Federal law, made necessary changes to State law, and worked on implementation with

the association of county welfare directors.

Turning now to the implementation of the 1996 amendment, we

found that HHS was slower to revise its policy guidance and provided less help to the States than was the case after the 1994 act.

For example, it took three months to notify States of a change in

Federal law even though the change was effective immediately.

HHS provided policy guidance and some technical assistance, but

not as much as previously. For example, it did not repeat the outreach and training to State officials, nor at the time of our review

had it updated the monograph that it had issued on implementation of the 1994 act.

I have talked about differences between 1994 and 1996, but there

were some needed actions that HHS did not take either time. Although the department provided policy guidance, it did not provide

a key step necessary to successful implementation—practical guidance on changes in social work needed to make casework practice

consistent with the act. It was not until May of 1998 when GAO

voiced the concerns we had picked up from county officials and

caseworkers that the department issued guidance in the form of

our questions and their answers. This guidance clarified, for example, that public agencies cannot use race to differentiate between

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otherwise acceptable foster care placements, even if such a consideration does not delay placement.

Our work on California’s efforts to implement the 1996 amendment indicated that the State also has been slow to undertake important activities. Although California began its efforts by notifying

its counties of the 1996 amendment, it has not made the statutory

or regulatory changes necessary for implementation.

Officials at all levels of Government face three challenges as they

continue to implement the amended act. The first challenge is for

agencies to continue to change longstanding social work practices

and the beliefs of some caseworkers. While some social workers

told us that they welcomed the removal of race matching in Federal law, which they believe will make placement easier, the belief

that race or cultural heritage is central to a child’s best interest

when making a placement is so inherent in social work theory and

practice that a policy statement of the National Association of Social Workers still reflects this tenet, despite the changes in Federal

law.

The second challenge is for agencies to translate legal principles

into practical advice for caseworkers. State program officials in

California are struggling to understand the amended act in the

context of casework practice issues. They are waiting for the HHS

Children’s Bureau or the Federal National Resource Centers to assist them in making the necessary changes to day to day casework

practices. Currently, some caseworkers were unsure how and when,

if at all, they are allowed to consider race in making placement decisions. Thus, the paucity of practical guidance contributes to continued uncertainty about allowable actions under the law.

Finally, the third challenge we identified is the need for agencies

to develop information systems to monitor compliance with the act.

Developing such systems will be particularly difficult because neither the Federal administrative data in the Adoption and Foster

Care Analysis and Reporting System, known as AFCARS, nor individual case files are likely to contain needed information related to

placement decisions.

But even if we had some better data on individual placement decisionmaking, analysis is going to be hampered by inherent difficulties in interpreting the results. For example, if we find an increase

in the percentage of same-race adoptions, it could indicate the law

is being flouted or it could indicate that the pool of black adoptive

parents has increased due to successful placement efforts. We won’t

know unless we have better information on the pool of available

parents.

So without better data currently not available, we’ll not be able

to provide a more definitive assessment of the impact of this legislation. Mr. Chairman, this concludes my prepared statement. I’ll be

happy to answer questions later.

[The prepared statement follows:]

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Chairman SHAW. Thank you, Dr. Nadel. I apologize, but we are

going to have to recess for just a few minutes. As you have noticed,

the Members have been going out to vote. I don’t want to miss this

vote either, so we’ll recess for just a few minutes, whatever time

it takes to get some of the Members back to start off with you, Dr.

Simon.

[Recess.]

Mr. CAMP [presiding]. Let’s proceed.

Dr. Simon.

STATEMENT OF RITA J. SIMON, PH.D., PROFESSOR, AMERICAN

UNIVERSITY

Ms. SIMON. Thank you. I am pleased to be here. I have studied

transracial adoptees and their families for almost 30 years. For example, I followed a cohort of families from 1971 through 1992 in

which I interviewed parents or my team of interviewers interviewed parents, birth children, and the transracial adoptees from

the time the children were four years old until they were young

adults who were mostly not living in their families’ homes. The results of that study showed that the black children who were adopted and lived in white homes are aware of and comfortable with

their racial identities. They are secure in their ties with their families. They are aware of black history. They were comfortable in

their relationships with white and black people, and very scornful

of being called oreos, as they were labeled by many of the people

in the National Association of Black Social Workers. The label implies that they are black on the outside but that they have white

psyches or white souls. They said that’s just ridiculous. There are

many ways of being black and African-American in this society.

The notion that because they were reared in white families they

were not really black was very insulting and hurtful to them.

I want to emphasize that it is not only the research that I and

my colleagues have done which have produced these findings, but

all of the major empirical research that has been done on

transracial adoption have shown that these children come out

healthy, aware of their identities, and committed to their adoptive

families. Even researchers such as Joyce Ladner, who in her book

‘‘Mixed Families,’’ says I was skeptical of the practice when I first

went in to do the research, came out as an advocate. Ruth McRoy,

who does not on a policy basis support transracial adoption, but

her research findings do.

The overall point is that the case for transracial adoption as a

practice is based solidly on research. The case against transracial

adoption, I’m sorry to say, is based on rhetoric and ideology. There

are no systematic studies that show that transracial adoptions do

not serve the children’s best interests.

Even public opinion data, and we have been collecting these data

on a national basis since 1971, show that the American public, the

black public and the white public, support transracial adoptions

overwhelmingly. The last poll in 1997 reported that 77 percent of

the American public supported having children of one race adopted

by a family of another.

Now I know that your major focus is on what impact the Multiethnic Placement Act of 1996 is having. Let me say that over the

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past 30 years, I have testified in about 50 cases involving families

who very often were foster parents who were allowed to take care

of their black, in some instances Hispanic or Korean child for years

and years. When the family went to an agency, a public agency and

said you know, we have grown very attached to this child, we

would now like to adopt him or her, that’s when trouble began. The

public agencies wanted to remove the black child from carring, stable home white.

In addition, even though the act has been in effect since January

1, 1997, the number of phone calls that I have gotten and the number of requests that I have had to come and testify and describe

my research has not in any way lessened. I was an expert witness

in the Pixley case, and in the case that was referred to in Rhode

Island. The judge in that courtroom said to me, ‘‘You know, I will

take race into account if I want to. There’s nothing that will prevent me from taking race into account in that case.’’

I also testified in a case in St. Louis a few months ago where

again, a white family had been allowed to take care of a little black

child almost since birth. When they said they wanted to adopt,

again, a distant relative from the Washington area came in and

said no, I want the child. The State was supporting the right of

that distant relative, years after the black child had been with the

white parents and as far as the child was concerned, they were the

only parents he knew.

I am very concerned at the absence of data on what impact the

current law might be having. And because I am concerned about

the lack of systematic information I am presently conducting a survey. In the past couple of weeks I have sent out over 1,000 questionnaires to heads of public adoption agencies, private adoption

agencies, attorneys who have made adoption matters their major

focus, to family support groups and other relevant groups, to find

out what is happening, specifically the questionnaire ask about the

number of transracial adoptions that have occurred since the passage of the act, what obstacles have been encountered, the number

of cases that are currently in the courts, and so forth. I am hoping

to have those data in the next few weeks.

Thank you very much.

[The prepared statement follows:]

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Mr. CAMP. Thank you very much.

Dr. Barth.

STATEMENT OF RICHARD P. BARTH, PH.D., PROFESSOR,

UNIVERSITY OF NORTH CAROLINA, CHAPEL HILL

Mr. BARTH. Thank you, Chairman Shaw and honorable committee members. My name is Richard Barth and I’m privileged to

testify today. I have two objectives. First, to describe research

which indicates that we continue to need new ways to create opportunities for children in foster care to get adopted. Second, to make

the case that adoption services research has failed to provide adequate information for policy makers and needs a permanent loving

home if it is to develop into a more useful contributor to society.

The principal study that I will discuss shows how far we have

to go in creating equal opportunity for children in foster care. Exhibit 1 at the back of my written testimony shows pie charts that

capture the outcomes from more than 38,000 children who entered

non-kinship foster care in California between 1988 and 1992.

Young children in non-kinship foster care were chosen for this

study because their need for adoption—should they not be able to

return home—is least equivocal. We followed each of these children

for four years to understand whether or not they had been reunified with their biological parents, adopted, or remained in foster

care.

For caucasian children, the total percentage of young children

who are adopted following entry into foster care is about 21 percent

within four years. If we compare this percentage to that of other

children, it appears that they are significantly more, but not greatly different, in the chance of adoption for children of different ethnic or racial groups. The percentage for caucasians is about twice

as high as the lowest group. But this is an over-simplified analysis,

which has been the kind of analysis too common in the adoption

field, which could leave us with the impression that we could

equalize access to adoption by simply improving the ways that we

recruit same-race adoptive families.

If we look more closely at these pie charts, we see that those children have grossly unequal access to adoption depending on their

race or ethnicity. Each of these pie charts allows us to directly examine the likelihood that children who do not go home will be

adopted. This can be done by isolating the children who went home

or had other outcomes from the analysis and by comparing the two

remaining groups. With this method we see that the proportion of

caucasian children who are adopted is 1.16 times greater than that

of those who remain in foster care. For Hispanic children, the ratio

is less than one, it’s .79. For American Indian children, it’s .52. For

African-American children, only .34. The latter figure means that

our African-American foster children have only a little better than

one-fourth the chance of being adopted as do our white foster children and less than half the chance of Hispanic foster children.

When we refine this analysis further, as shown in Exhibit 2, by

controlling for age at the time of placement, we observe that the

situation for African-American children is still worse in contrast to

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est ages, which should make them more likely to be adopted. Yet

they are less than one-quarter as likely to be adopted.

It is worth mentioning here too that the odds ratios for age are

even steeper than they are for race. That is, there are larger differences in the likelihood of adoption versus remaining in foster

care by age than by race, but both are major factors in determining

adoption.

Because my other research has convinced me that adoption provides a far more satisfactory setting for growing up than does longterm foster care, it seems terribly unfair that children’s access to

this valuable resource depends so much on their race. Clearly adoption reform like MEPA and its amendments are much needed. Previous efforts to improve adoption opportunity for all children were

simply not successful.

Whereas additional recruitment of minority adoptive parents is

an important contributor to more placements for African-American

children, as there is no doubt a preference by many adoptive parents to adopt a child like them, it is unlikely to be sufficient to redress these longstanding imbalances in adoption. A successful approach must be broader and include ways of engaging a far larger

proportion of the American public in welcoming foster and adoptive

children of all types into their homes.

I expect that MEPA and its amendments will be implemented. I

appreciate the efforts of this committee to see that they are. I expect the implementation to be slow, but I am concerned that even

at the end of that implementation the gains in adoptive placements

for America’s foster children will be small unless we work to better

understand the responsiveness of the general public to interethnic

adoption.

The only barriers to adoption are not those imposed by agencies

on families. Some families also impose barriers on themselves because they are concerned about how they will be perceived if they

were to adopt across racial lines. Some of them instead go on to

adopt children from other continents, including South America and

Asia. If these barriers are more perceived than real, we need the

public to know that. In general, we simply must have a better understanding of the public’s attitudes about race and adoption in

order to maximize the likelihood that children in foster care (who

will not be going home) can find permanent lifetime families.

To do this, adoption services research in the United States needs

a home, preferably a permanent and resourceful one. In my written

testimony, I discuss some options for adoption research. At the rate

that we are going, future hearings about the Multiethnic Placement Act and the Interethnic Adoption Provisions are unlikely to

be able to tell us much—the data for those hearings will not be

powerful or compelling unless more is done to frontload the adoption research agenda.

Wherever it is located, Congress and the administration should

search diligently to find this permanent home for adoption research

and begin a systematic approach to funding adoption research.

They might resolve in so doing that we would never again allow

our country to go through such a long spell during which adoption

research is helpless to identify the errors of our ways. We had virtually no evidence to inform us how badly some children were

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faring when we made service decisions so heavily weighted by race.

A generation of foster children grew up without permanent homes

as a result. We need to pay closer attention to what we do in the

future through MEPA and more saliently, because it’s a larger program, to the ambitious new Adoption and Safe Families Act. This

should be done systematically through a comprehensive adoption

services research program.

Thank you for your attention.

[The prepared statement follows:]

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Chairman SHAW [presiding]. Thank you.

Professor Kennedy.

STATEMENT OF RANDALL KENNEDY, PROFESSOR, HARVARD

LAW SCHOOL

Mr. KENNEDY. Thank you very much, sir. Whether MEPA and as

amended will effectively assist real live people or become a mere

hollow symbol of good intentions depends on enforcement. Among

the many impediments to enforcement that confront MEPA as

amended, three stand out.

The first is simple recalcitrance. In some jurisdictions, welfare

agencies continue to attempt to delay or prevent certain prospective adoptions or foster care placements out of a conviction that it

is better if possible to place children of a given race with adults of

the same race. One way to address this problem is through education and moral suasion. Members of Congress individually and

collectively should make it known to the public precisely why race

matching is bad. As long as substantial portions of the public support race matching, resistance to MEPA as amended will find refuge and nourishment.

Second, the open-ended highly discretionary character of child

placement decisions invites evasion. It is quite clear that proponents of race matching are now seeking to sidestep the amendments to MEPA by relying upon considerations that are not expressly racial, but that are easily made into pretexts that camouflage racial decisionmaking. Two of these considerations are preferences for relatives and notions of cultural competency.

The first refers to the policy of preferring to place a child with

an adult to whom he is related as against an adult to whom he is

unrelated. In some instances, authorities hostile to interracial

adoption or foster care use this preference to preclude such placements. Selecting a same-race arrangement with a relative win absent the threat of an interracial placement, the decision maker

would not have chosen the arrangement with the relative.

This particular mode of resistance to MEPA as amended has

arisen in the most heart-wrenching contexts in which the controversy over interracial adoption has flared. The context in which

a foster parent bonds with a child of a different race, seeks to adopt

that child, and is then prevented from doing so by child welfare authorities who are hostile to interracial adoption. Such authorities

select as the adoptive parent a relative of the same race as the

child, even when that relative is not as close to the child as the foster parent and will likely prove to be an inferior adoptive parent.

Another mode of resistance to MEPA as amended takes the form

of discouraging or preventing interracial adoption or foster care by

recourse to the notion of cultural competency. The idea that children have an established heritage that should be nurtured in ways

that adults of a different race are unlikely to know and perhaps incapable of learning. Some observers contend, for example, that

white adults should not be able to serve as adoptive or foster parents for black children unless the white adults can show their cultural competency to raise correctly a black child. Evidence of such

competency might include living in a racially diverse neighborhood,

having a racially diverse set of friends, engaging in certain celebraVerDate 11-MAY-2000 09:18 Aug 25, 2000 Jkt 064778 PO 00000 Frm 00085 Fmt 6633 Sfmt 6602 E:\HEARINGS\63768 pfrm07 PsN: 63768
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tions, for instance, Kwaanza, knowledge of black history, and a

willingness to undergo sensitivity training and other instruction

aimed at enabling the white adult to equip the black child with appropriate coping skills and a proper African-American identity.

There are a variety of problems with this notion of cultural competency. For one thing, it puts officials in the position of attempting to prescribe racial correctness. Fortunately, there exists no authoritative criterion by which to measure what sort of ideas or conduct can certifiably be deemed to be properly black or white or yellow, et cetera. African-Americans, for example, like the individuals

constituting all groups in American society, vary tremendously.

Many like Gospel music or rap, many do not. Many celebrate

Kwaanza, many do not. Many live in predominantly black neighborhoods, some do not. Many are Christians, many of Moslems.

The idea that public or private child welfare officials would homogenize the varied African-American community and then impose

that homogenized stereotype upon white adults seeking to provide

children with adoptive homes or foster care is a frightening prospect. Worse will is that this dubious concern with cultural competency is often nothing more than a pretext for race matching, a

way to continue indirectly the racial steering of needy children.

A third impediment to the enforcement of MEPA as amended

stems from the mixed feelings toward the law felt by officials within the Federal agency most involved in its implementation, the

U.S. Department of Health and Human Services. The memorandum that Mr. Camp referred to earlier with respect to the department’s understanding of MEPA shows a real ambivalence. In

certain parts of that memorandum there is a laudable inclination

to follow the statute, but there are other aspects of that memorandum that quite clearly indicate that the department is not following the statute. For instance, there are aspects of the memorandum that indicate that the department is giving the green light

to agencies to continue to take race into account in contexts that

clearly controvert MEPA as amended. That is a problem that really

requires the attention of this subcommittee. I am very happy that

the subcommittee is paying attention to this entire issue.

Thank you very much.

[The prepared statement follows:]

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Chairman SHAW. Thank you, Professor.

Mr. Kroll.

STATEMENT OF JOE KROLL, EXECUTIVE DIRECTOR, NORTH

AMERICAN COUNCIL ON ADOPTABLE CHILDREN, ST. PAUL,

MINNESOTA

Mr. KROLL. Mr. Chairman and members of the committee, I

thank you for inviting me here today. For the record, I would like

to address a question that Representative Camp asked early on. I

was alerted yesterday by a staff member of the inconsistency of

NACAC policy with Federal law in MEPA and IEPA, and spoke

with my policy committee chair. I haven’t spoken with the president yet, but we will be amending our policy so that it really reflects the practice of our organization as currently implemented. I

think we probably will just take the old one off the Web site until

the new one is in place, but I think we could probably do that in

a short period of time.

I want to talk a bit about our current practice. I have just distributed the posters that we had put together as a result of the National Adoption Month project that was funded under an Adoption

Opportunities grant with the collaboration of the Dave Thomas

Foundation for Adoption. Highlighted on the poster are the children from 1997 who have already been placed in adoptive homes.

One of the things that you will notice is the heavy preponderance

of African-American children on the poster, but you will also notice

the heavy preponderance of African-American children who have

been placed for adoption. Sixty percent of the African-American

children have been placed. Sixty three percent of the children in

sibling groups have been placed. These are two groups of children

who we have said in the past are the most difficult to place. I think

it’s clear that when we make the children visible, that we are going

to find adoptive families.

We do not have data on all of the races of the parents, but we

do know for example, that the two little girls from Colorado who

are featured in the cockpit of an airplane were placed as a result

of a family seeing the poster in a Wendys, while driving through

Montana. The family, from Alberta, Canada, is white. We do know

that. We don’t have the statistics on other transracial placements.

The other thing the poster tells us is how important the fine

work that you did last year with the Adoption and Safe Families

Act. Many of the older children who have not been placed are children who have been in foster care for six, eight, and ten years. I

think that the changes made in ASFA will have an even greater

impact than the MEPA and IEPA changes on their placement because in the future we will have fewer children that are aging in

foster care. They will be available for adoption within a year or

two.

Going back to my testimony now, I did want to make a point related to the guidances issued by the Federal Government. I think

it’s safe to say that I differ with most of the other members of the

panel. One of the concerns that we have had is that they create a

great deal of confusion for workers. That on the one hand we’re

saying that social work practice is involved. Then in the answers

that HHS gave to the GAO report, which I incorrectly identified in

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my text but I’ll correct in the final version, were very clear. Every

time they were asked something specific, the answer was no, you

can’t do that. But at the beginning there’s I guess the 61-line discussion of social work practice. I think in fairness to workers, we

have to be more clear in terms of what social work practice means.

The other part of the law that creates a problem for agencies is

that on one hand we say we want you to actively recruit families

from the communities that kids come from. That translates into recruitment of African-American families, Latino families, Native

American families. But then you have workers in some agencies

who are afraid to use those families because there are white families who are interested in the same children. That kind of confusion

and conflict within the law needs to be addressed more directly by

the department because we’re saying recruit families, and then we

have people who are afraid to use those families if they are available.

The other point that I wanted to make is in terms of outcomes.

It is very important that we look at the goal of this MEPA and

&IEPA, and the goal of ASFA. The goal of these acts has been to

place children. We need to do everything we can humanly possible

to place children in permanent homes. We need to put all our resources there. That should be the measure. Because if we start

measuring how many transracial adoptions there are, we could get

caught into a kind of a funny situation. I’m assuming, there would

be very few, although the data is not available to us, white children

who are transracially adopted. Does that mean that somehow they

are disadvantaged? I think it is something that we have to take a

look at.

In closing, I want to say, if you look at the points I made at the

end of my testimony that no child should ever have to wait for a

family, which is Federal policy across the board and clearly is our

organizational policy, that children should not be moved from stable and loving placements for any reasons, including racial matching. But there are other reasons that children are moved that we

also are concerned about, and I hope that ASFA will have taken

care of. Good foster families who challenge the care of their children have kids removed all the time. That has nothing to do with

race. It has to do with practice and supervisory activities. All families of all races should have access to children.

Parents adopting transracially should be made aware of the impact of that on their children. I have lived for 22 years in a

transracial adoptive home. We are a successful transracial adoptive

home. Our daughter still lives with us. She calls us mom and dad.

As a young Korean woman, it appears that she will remain living

with us, as she has adopted some of the practices of Korean culture, until she is married. So we have an attachment disorder, but

it’s a positive attachment disorder. [Laughter.]

Finally, I think that the part of MEPA that we haven’t spent

very much time on, the recruitment of families from the communities the kids come from, is one that we can’t ignore and we must

continue to be concerned about that issue. Thank you.

[The prepared statement follows:]

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Chairman SHAW. Thank you. I might say that I think the experience I have had with my daughter, that’s also an Irish tradition.

[Laughter.]

The Members have agreed and in order to go forward with the

last panel, to submit the questions in writing to this panel and to

the next panel. So we would appreciate having that privilege to

submit questions to you and hopefully you can respond to us as

quickly as your schedule will allow. I want to thank this panel. It’s

been very enlightening. I think it’s an excellent panel. Thank you

very much.

[Questions addressed to Mr. Nadel, Ms. Simon, and Mr. Barth,

and their respective answers, follow:]

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Chairman SHAW.

The next panel that we have, Elizabeth Bartholet, who is a professor at Harvard Law School. This is Harvard day I think here.

We have had Professor Kennedy and now Professor Bartholet. Patrick Murphy, who is a public guardian, Cook County, Chicago, Illinois, and William Pierce, Dr. William Pierce, who is the president

of the National Council for Adoption in Washington, D.C.

At the conclusion of your testimony, we will also submit questions in writing and ask that you respond to them.

Professor Bartholet.

STATEMENT OF ELIZABETH BARTHOLET, PROFESSOR,

HARVARD LAW SCHOOL

Ms. BARTHOLET. Thank you. I would like to thank all the committee members for being here having these very important hearings.

I have spent over a decade of my professional life on issues of

adoption generally and transracial adoption in particular. I have

spent a lot of this time trying to analyze what actual policies and

practices are being implemented by State agencies, something that

is quite different and more important than what written policies

reflect. I have spent a lot of time trying to analyze and understand

the destructive impact of race-matching policies on children, particularly black children, and trying to advocate for change, and

therefore, trying to monitor the effects of legislation like MEPA I

and MEPA II, as I’ll refer to the Multiethnic Placement Act of 1994

and its 1996 Amendments in shorthand.

I want to applaud this committee. I think that what you are

doing in these oversight hearings is extraordinarily important because I think this legislation is so important to child welfare, and

particularly to the life prospects of black children in our foster care

system. I also think it is important in terms of what it represents

in the elimination or attempted elimination of the last vestige of

State mandated race separatism.

Enforcement action is vitally important in this area because of

the extraordinarily deeply entrenched views and practices throughout the child welfare system, from the top to bottom of HHS, and

in child welfare agencies throughout the country. I think that without vigorous enforcement action by your committee, insisting on enforcement by HHS and others, there will be no significant impact

of this law, at least in the near or perhaps foreseeable future. Racematching ideology is deeply entrenched.

I think that the 1996 amendments that you passed to MEPA I

are extraordinarily important. They gave us law that at least on

paper eliminates the very problematic loophole in MEPA I that allowed race as a permissible consideration. I also think the mandatory financial penalties written into MEPA II give us a real prospect for change. But enforcement action to date has been limited.

When I listened to Ms. Golden’s testimony, I can only think that

when she claims that 29 States have changed their policies, she is

referring to changes in written legislation and written regulation,

which I have to emphasize to the committee is the least important

aspect of race-matching policies in this country.

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When I say I think impact to date is extraordinarily limited,

what evidence do I have for this, why do I say it? I am giving my

impressions based on going around the country, attending a multitude of conferences, talking to people in State agencies, in my

own State, Massachusetts, and throughout the country, in attempts

to both assess what is going on in terms of the MEPA legislation

and also push for meaningful change.

To categorize what I am seeing and hearing out there, first, it’s

what I refer to in my written comments as the deafening silence.

As I listen for the sounds of reaction to MEPA II, and the impact

of MEPA II, what I don’t hear is very much going on. Now we’re

talking about a nation in which in 50 States we had State agencies

systematically using race to match. That was the name of the

game. The single most important criterion for figuring out where

kids went was to look at the race of the child and of the prospective

parents and make that the first and most important order of business, to put kids with same race families.

If MEPA II was being taken seriously, you would be hearing an

enormous amount of noise from around the country—screams of

protest and resistance. You would be getting memoranda from

HHS on down, from heads of child welfare agencies throughout the

country, telling social workers to change their practice in meaningful ways. That is not happening throughout the country. So the fact

that mostly it’s silence out there, that we got the HHS tough

sounding ‘‘Guidance’’ but almost nothing else is extraordinarily telling in itself.

Second, the noises one does hear, the noises I hear, primarily are

not anything to do with MEPA enforcement. It’s to do with resistance and evasion. Let me give some examples. There are claims

that the law doesn’t mean what it says it does. It was terrific to

hear the Chairman today say that the law means that race can’t

be taken into consideration. That is the obvious meaning of the

1996 amendments. But if you listen to what child welfare experts

and leaders around the country are saying to their followers, much

of it has to do with claims that MEPA II can be read to say that

actually race can be taken into account as long as it’s done in a

discretionary way.

Two, there are regular claims made out there that the main purpose and point of the law is actually contained in the recruitment

provisions, recruitment on a non-discriminatory basis. So a message that’s being put out to social workers throughout the country

is the main point of this law is go out and recruit minority race

families. The obvious implication of that is that if you do recruit

actively enough you can continue to do same race matching without

holding kids for intolerable periods of time.

Third, there is code language that’s being used—I’m almost finished—to instruct social workers to continue doing what they are

doing. So that there is a lot of talk about how we can continue to

do, and of course the law wasn’t meant to prohibit, ‘‘good social

work practice.’’ This is clearly understood and meant to convey the

sense that good social work practice means of course you take race

into account because we all know, we social workers, that that is

what you are supposed to do. Cultural competency is I think clearly

understood as euphemistic code language designed to convey to

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people that they should continue doing the race-matching they

have always been doing.

Finally, there are what I categorize in my written remarks as the

diversionary tactics, the endruns. You see a renewed reemphasis on

the importance of kinship care because everybody knows that if you

place with kin, you manage to place with same-race families. There

are new practices being promoted out there, family group decisionmaking, for example, which sounds as if it’s only about having families make decisions about where kids go in conjunction with social

workers. The first conference I went to on family group decision

making, the overhead projection said, ‘‘What are the major reasons

we want to do this? One, to avoid transracial placement.’’

So in conclusion, my sense as I look at what is going on today

is that it’s tremendously familiar from the efforts many of us were

involved in the 1950s and 1960s to enforce the mandate of Brown

v. Board of Education. The major difference I see is that we don’t

have today the group of public agencies and private organizations

involved in the business of enforcing the rule of law that we had

then, like the NAACP Legal Defense Fund. That is why I think

this committee’s work is so important, pushing for some organizational support, because without organizational support, there will

be no meaningful change.

Thank you very much.

[The prepared statement follows. Articles are being retained in

the Committee files.]

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Chairman SHAW. Thank you.

Mr. Murphy.

STATEMENT OF PATRICK T. MURPHY, PUBLIC GUARDIAN,

COOK COUNTY, CHICAGO, ILLINOIS

Mr. MURPHY. Thank you. I am the public guardian of Cook County, Illinois, which is Chicago and the suburbs. I supervise a staff

of 300, including 150 lawyers. We act as lawyers for abused and

neglected children both at juvenile court and then in lawsuits

against the State of Illinois. I represent the bottom of the food

chain here. I don’t know about the large issues. All I can tell you

is what goes on on a local level. A, no judge and the State agency

do not know anything about this law. In principle they do, but

when it comes down to reality, everyone believes that you are supposed to look for a same-race family first before you move on to

look for a different race family. It is much like in the old days

when real estate agents would direct blacks into a black neighborhood and away from a white neighborhood. That is basically what

goes on in the child welfare arena. They direct kids into black

homes.

I was in a home a few years ago where there were six infants

under the age of one lined up against the wall in a foster home.

The foster parents were trying to do a good job. They were decent

people. But you can’t tell me that you couldn’t take those six kids

and put them in six separate homes and that they wouldn’t do

much better than being in a foster home that was really an old

fashioned orphanage. But from the agency’s point of view, they are

able to keep the black kids together in a black culture. You can see

where they are coming from.

We have a temporary shelter for infants in Chicago. A few years

ago there were 329 kids there, 300 black, 19 white, the rest other

race. After six months, there were 75 black, two white. After a

year, 20 black, no whites. In other words, the white kids get placed,

same race homes. The blacks don’t. What happens is we have an

enormous white pool, not only in Chicago, but L.A. and New York

are the same, and a very tiny black pool for the black youngsters.

So you just don’t have the resources.

There was another case I had where, this was after the 1994 act

was passed, before the 1996 act was passed, a kid named Javonte

was skull fractured, six months old. The agency went through 21

attempts to place the kid in black homes. Then a white foster

mother came forward and said I’ll take the kid. They actually

charted in their charts, staff advised the woman that the agency

is still seeking same-race placement as the possibility has not been

exhausted after 21 attempts and return home goal is still there. Ultimately they did get the kid in a black home. This was after your

1994 act was passed. No matter what the woman from HHS says,

it ain’t being followed.

It reminds me of my young days as a prosecutor when the judge

would say to some cop who brought in some guy which was clearly

a bad search, say ‘‘Don’t do that again, officer’’ and then he’d wink

at him. That is what is going on with HHS. If you folks in Washington sit here and believe it’s anything different, you are living in

a different world.

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I had a case involving a 16 year old black girl who was sent up

to Wisconsin because she had been raped in foster care. She had

some sexual issues. When it came time for her to be released, she

said ‘‘I don’t want to go back to Chicago. I want to stay here.’’ She

did not want to deal with all the bad stuff she had gone through.

The agency went up there and actually said no, you have to go

back to Chicago because this is a white area you are living in here

and a white culture and you have got to go back to your black culture. Ultimately we brought the case back before a judge, who incidently was African-American, and ringed the agency out and said

you can’t do this thing. The kid did come back, but we filed a beef

with HHS about it. What did they do? They come back and say yes,

there probably was race discrimination here, but the consideration—then they gave the State agency a guideline. They said in

the future, if you are going to discriminate on the basis of race, you

have got to do it in a narrowly tailored way to advance the child’s

best interest and be made as an individualized determination. Now

come on. Any person with any reasonable intelligence is going to

say well the next time we do it, we’re going to have an individualized plan and say this is all part of it. That is what is going on.

So that my suggestion is that the agency—Congress has to come

out and tell HHS you have got to get the word that you can not

discriminate. I am not one that is going to argue that a white home

is no different than a black home for a black kid. I think under

most circumstances I would rather have a same race placement.

But we have to look at the reality. The number of homes are not

there. I went through the figures. In Cook County, for every black

kid that’s available for placement there are 50 other black people,

men, women and children. For every white kid that’s available for

placement, there’s 800 other white men, women, and children. So

the odds are stacked against the black kids. Now we go to sibship

foster care. It has saved foster care. It is a great idea. I am not

against it. But we are stuffing kids frequently into very bad sibship

foster homes. Most of the abuse we see in foster care comes out of

relative foster homes. That is because it’s not unusual for a mother

or father to abuse a kid that comes from a highly dysfunctional

family. So we take the kid away from dysfunctional mom, give him

to dysfunctional aunt. Then we say gee, I wonder why the kid got

raped in foster care. So that we have to be very careful of that as

well.

I had another example of a black girl—a white girl placed in a

black home who was doing extraordinarily well. Again, the agency

you could see tried to use the individual treatment plan. They said

the girl should be removed from this black home. She wanted to

stay. She was six years old. The black couple were wonderful people. We wanted her to stay. They said listen, they sent two social

workers down. You could see where they are coming from. They

interviewed the black parents on only one occasion, the white parents on five occasions. Never interviewed the black natural children, interviewed the white natural children on two occasions, and

said the girl should be brought back, for among other reasons, because she eats her vegetables, picks up all her toys, and is doing

extraordinarily well in school that hints she is trying too hard and

that must mean she really wants to get out of the home.

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We sit back and we say well this is absurd. But that is the kind

of stuff we deal—I see my time out, we deal with at the bottom of

the food chain. I just ask that you get the word through to those

folks. If it goes on like this in Chicago, we’re talking 6 million people in Cook County who know what is going on, it’s everywhere.

Thank you.

[The prepared statement and attachments follow. Additional articles are being retained in the Committee files.]

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Chairman SHAW. Thank you, Mr. Murphy.

And an old friend of this Committee, Dr. Pierce.

STATEMENT OF WILLIAM L. PIERCE, PRESIDENT, NATIONAL

COUNCIL FOR ADOPTION

Mr. PIERCE. Thank you very much, Mr. Chairman. Thank you for

hanging in there with us and with this issue. We really appreciate

your having this oversight hearing.

I have some very positive new and encouraging information to

share with you today about this issue. I think many of us have

kind of a gut feeling that Americans do care a lot about this issue

and are very supportive of it. But there has been a recent opportunity for us to find out exactly how Americans do feel. On August

2 there was a cover story in Parade Magazine entitled It’s About

Love. It told the story of four families that adopted transracially.

As Senator Metzenbaum, who is a real hero on this issue, mentioned to you earlier, there is a little two-inch box in there. They

said if you want more information, contact the National Council

For Adoption, our organization.

As of September 8, we have received approximately 10,000

unduplicated contacts. That includes mail, phone calls, and Emails. Of those 10,000, eight, eight were negative or in any way

questioning transracial adoption. We had African-American,

Latino-Hispanic Asian-American, Native American, inter-racially

married families calling the volunteers that were staffing the

phones. The callers were ecstatic at the good news, tremendously

supportive. So the American people are absolutely in favor of what

is going on with transracial adoption.

There was also a side to the response which we did not anticipate. That is, many people volunteered that they had had a difficult time trying to adopt. They had been turned down because

they wanted to adopt children of another race. They were told there

were no children available to be adopted from other races. We had

volunteered comments from residents of 29 States, saying that they

were being stiff-armed by the public agency. I have a list of some

actual quotes from the people who called or wrote us that I am submitting for the record. A tremendous span of comments from across

the country complained.

I would also like to comment just briefly on the issue that you

raised, Mr. Camp, in respect to investigations by the Office of Civil

Rights. You raised a question about the Boston editorial. In that

particular case, Mr. Camp, indeed the Office of Civil Rights investigated, but the reason that they investigated is that the Lapierre

family filed a complaint. In that particular issue, there was Rhode

Island State money involved. In that particular issue, the couple,

who is a blue-collar low-income family, has incurred more than a

$50,000 legal bill just to fight the State to require the State to complete the State’s original plan, which was to allow this family to be

able to adopt this child. The case is still in court.

We are also fighting a Maryland judge who said from the bench

that children should not be adopted transracially. I refer to the

Cornilous Pixley case here in Montgomery County. In the Pixley

case, again HHS said well, we don’t think we have any jurisdiction.

I think the question should be asked was there any public money

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spent in that case? I think there was. I think another question to

be asked is, Congress also passed another piece of legislation called

the Child Abuse Treatment and Prevention Act, and that was certainly in place in Maryland, and should have been applied.

The fact is that all across the country people want to adopt.

There are lots of children waiting for families. The American people

are positive about transethnic adoption, they know the positive outcome. It’s up to you, I respectfully submit, to please take the steps

to require HHS and the States to start obeying the law and get

with the rest of the American people. Thank you.

[The prepared statement and attachments follow:]

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Chairman SHAW. Thank you, Dr. Pierce. As I said to Dr. Golden

I believe it was, that we will be having more hearings next year

on this matter. We do want to start looking at the numbers that

are out there as to what effect this has had on getting these, particularly these minority kids, out of foster care.

I want to thank this panel as well as the other panels. I think

it’s been a wonderful hearing. Dave Camp has turned around congratulating our staff on a great hearing, so you know how sincere

that is. We very much appreciate it. As the previous panel, we will

submit questions in writing and request that you respond to them.

[A question addressed to Ms. Bartholet, and her response, follows:]

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Thank you very much. The hearing is concluded.

[Whereupon, at 12:43 p.m., the hearing was adjourned, subject to

the call of the Chair.]

[Submissions for the record follow:]

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