Interethnic Adoption Provisions of the Small Business Job Protection Act of 1996 (P.L. 104-188)

Implications for Social Work Practice

Introduction

The Small Business Job Protection Act of 1996 (P.L. 104-188), signed into law by President Clinton on August 20, 1996, contains a section entitled Removal of Barriers to Interethnic Adoption, which amends the Multiethnic Placement Act of 1994 (MEPA). Although selected provisions took effect immediately (the effective date of the Title IV-E state plan requirements was January 1, 1997), the policy guidance for the new legislation was not issued by the U.S. Department of Health and Human Services (DHHS) until June 4, 1997. And it is this policy guidance that provides the best information to date on the implications of the legislation on the provision of adoption services by social workers.

This practice update details the background of this legislative development and identifies a number of social work values, principles, and standard methods of practice that are called into question as a result of P.L. 104-188’s passage. This document attempts to detail the complex issues that confront the profession in the delivery of adoption services and identify areas for further analysis and future resolution.

Background

Because of concern that MEPA was "ineffective in promoting the best interests of children by decreasing the length of time they wait to be adopted" and that it "was not having the intended effect of facilitating the adoption of minority children . . . and lacked an enforcement provision backed by serious penalties," Congress repealed section 553 of MEPA and replaced it with stricter requirements. Effective January 1, 1997, the new provision, Removal of Barriers to Interethnic Adoption, established a new Title IV-E state plan requirement that prohibits states or private agencies that receive federal funds from delaying or denying placement on the basis of race, color, or national origin of the child or the foster or adoptive parent. In other words, in contrast to MEPA, the provision does not have any language permitting states to consider race and ethnicity as one of a number of factors used to determine the best interests of the child.

Reductions in Title IV-E funds serve as the enforcement mechanism for any violations. The provision imposes penalties reducing a state’s Title IV-E grant at a graduated rate of 2, 3, and 5 percent for each violation. However, the total amount of penalties that can be applied in a fiscal year cannot exceed 5 percent of a state’s total Title IV-E grant. In addition, states are afforded the opportunity for corrective action and forgiveness of penalties through the section 1123(A) foster care review process. Private agencies violating the prohibition will be required to remit to the Secretary funds that were paid them by the state during the quarter in which the violation occurred.

Interethnic Adoption Provisions of the Small Business Job Protection Act of 1996

Section 1808 of P.L. 104-188, entitled Removal of Barriers to Interethnic Adoption, amended Title IV-E, section 471(a) of the Social Security Act in several ways. Section 1808(a), entitled State Plan Requirements, added:

(18) not later than January 1, 1997, provides that neither the State nor any other entity in the State that receives funds from the Federal Government and is involved in adoption or foster care payments may—

(A) deny to any person the opportunity to become an adoptive or a foster care parent, on the basis of race, color, or national origin of the person, or of the child involved; or

(B) delay or deny placement of a child for adoption or into foster care, on the basis of race, color, or national origin of the adoptive or foster parent or the child involved.

Section 1808(b), entitled Enforcement, added section 474(d)(1):

If during any quarter of a fiscal year, a State’s program operated under this part is found, as a result of a review conducted under section 1123(A), or otherwise, to have violated section 471(a)(18) with respect to a person or to have failed to implement a corrective action plan within a period of time not to exceed 6 months . . . the Secretary shall reduce the amount otherwise payable to the State under this part, for that fiscal year quarter and for any subsequent quarter of such fiscal year . . . by 2 percent . . . in the case of the first finding . . . 3 percent . . . in the case of the second such finding . . . 5 percent . . . in the case of the third or subsequent such finding. . . . [T]he Secretary shall not reduce any fiscal year payment to a State by more than 5 percent. . . .

Any other entity which is in a State that receives funds under this part and which violates section 471(a)(18) during a fiscal year quarter . . . shall remit to the Secretary all funds that were paid by the State to the entity during the quarter from such funds.

Section 1808(d), entitled Conforming Amendment, repeals section 553 of the Howard M. Metzenbaum Multiethnic Placement Act of 1994 (42 U.S.C. 5115a [regarding permissible considerations]):

Permissible Consideration—An agency or entity [that receives federal assistance] may consider the cultural, ethnic, or racial background of the child and the capacity of the prospective or adoptive parents to meet the needs of a child of such background as one of a number of factors used to determine the best interests of a child.

Administration for Children and Families’ Policy Guidance for Federal Legislation

On June 4, 1997, Dennis Hayashi, director of the DHHS Office for Civil Rights, and Olivia A. Golden, principal deputy assistant secretary for children and families, issued guidance on this legislation to all Office of Civil Rights regional managers and Administration for Children and Families regional administrators. The overall intent of the policy guidance is to emphasize the rigor in which the law will be implemented.

The effect of the elimination from the statute [MEPA] of the words "categorically," "solely" and "or otherwise discriminate in making a placement decision, solely" is to clarify that it is not just categorical bans against transracial placements that are prohibited. Rather, these changes clarify that even where a denial is not based on a categorical consideration, which is prohibited, other actions that delay or deny placements on the basis of race, color or national origin are prohibited. . . .

In enacting MEPA, Congress prohibited actions that violated the rigorous constitutional strict scrutiny standard. . . . [DHHS’s] published MEPA guidance stressed that standard, stating unequivocally that "rules, policies, or practices that do not meet the constitutional strict scrutiny test would be illegal."

Notwithstanding that guidance, after the passage of MEPA, some had argued that the permissible consideration language allowed States to routinely take race into account in making placement decisions. . . . Congress’ repeal of the permissible consideration language removes the basis for any argument that such a routine practice would be permissible. . . . The changes made in the law strengthened it by removing areas of potential misinterpretation and strengthening enforcement. . . . (Policy guidance, p. 3)

In latter portions of the policy guidance, DHHS’s prohibition of consideration of race, ethnicity, or national origin becomes less clear to those providing adoption services.

Consistent with the intent of the new law and the constitutional standard [of strict scrutiny], it would be inappropriate to use the constitutional standard as a means to routinely consider race and ethnicity as part of the placement process. Any decision to consider the use of race as a necessary element of the placement decision must be based on concerns arising out of the individual case [emphasis added]. For example, it is conceivable that an older child or adolescent might express an unwillingness to be placed with a family of a particular race. In some states older children and adolescents must consent to their adoption by a particular family. In such an individual situation, an agency is not required to dismiss the child’s unwillingness to consent to evaluating placements. While the adoption worker might wish to counsel the child, the child’s ideas of what would make him or her most comfortable should not be dismissed, and the worker should consider the child’s willingness to accept the family as an element that is critical to the success of the adoptive placement. At the same time, the worker should not dismiss as possible placements families of a particular race who are able to meet the needs of the child. (Policy guidance, p. 4)

Thus it appears that in appropriate but ill-defined situations, social workers can exercise their professional discretion in assessing the child’s need for racial and ethnic matching in placement decisions by soliciting the child’s feelings and preferences on this issue. Moreover, in some states and with particular children, social workers are mandated to acquire this information. This singular example validates the legal interpretation by some that the amendments continue to allow for consideration of race as one of a number of factors. The policy guidance continues:

Other circumstances in which race or ethnicity can be taken into account may also be encountered. However, it is not possible to delineate them all [emphasis added]. The strict scrutiny standard exists in part because the law cannot anticipate in advance every factual situation which may present itself. However, the primary message of the strict scrutiny standard in this context is that only the most compelling reasons serve to justify consideration of race and ethnicity as part of the placement decision. Such reasons are likely to emerge only in unique and individual circumstances. Accordingly, occasions where race or ethnicity lawfully may be considered in a placement decision will be correspondingly rare [emphasis added]. (Policy guidance, p.5)

Although the guidance emphasizes the rarity of such consideration, exceptions to the prohibition exist. The danger for social work practice is the absence of an enumeration of acceptable exceptions. It is imperative to the field that we identify—to the best of our ability—those exceptions, so that the best interests of the child may be realized and the values, principles, and standards of the social work profession may be upheld

One notable exception to the prohibition is the placement of Native American children. The Indian Child Welfare Act (ICWA), passed by Congress in 1978, is designed to protect Native American families and thus, the integrity of Indian culture. It accomplishes this through two primary provisions. First, ICWA sets up requirements and standards for child placement agencies to follow in the placement of Indian children. It requires, among other things, the provision of remedial, culturally appropriate services for Native American families before placement occurs, the notification of tribes regarding the placement of Indian children, and, when placement must occur, it establishes preferences for the placement of these children. The hierarchy of placement preferences is as follows: (1) members of the child’s family, whether of Indian origin or not, (2) other members of the child’s tribe, and (3) other Native American families. The second provision of ICWA provides tribes with the ability to intervene in child custody proceedings that often result in increased participation from extended family members.

At the time of this writing, both houses of Congress are considering an identical set of amendments to ICWA—H.R. 1082 and S.R. 569. Developed over a year-long deliberative process by tribe members, the National Indian Child Welfare Association, and the National Congress of American Indians, with input from the American Academy of Adoption Attorneys, these amendments in no way diminish the original intent of the law, but rather, establish timelines, set limits, and clarify provisions that have resulted in flawed implementation of ICWA. By demonstrating their willingness to address specific concerns, Native Americans have increased the security for prospective adoptive parents while preserving meaningful participation of extended families and tribes in the adoption of Native American children.

Recruitment Activities

Public Law 104-188 maintains the Title IV-B state plan requirement for recruitment of foster and adoptive families that reflect the ethnic and racial diversity of children in the state needing foster and adoptive homes. DHHS’s policy guidance on the MEPA amendments addresses the importance of recruitment activities in developing the pool of potential foster and adoptive families:

The Congress retained section 554 of MEPA, which requires that child welfare services programs provide for the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of children in the State for whom foster and adoptive homes are needed. This is the section that requires States to include a provision for diligent recruitment in their Title IV-B State Plans. The diligent recruitment requirement in no way mitigates the prohibition on denial or delay of placement based on race, color, or national origin. . . .

Active, diligent, and lawful recruitment of potential foster and adoptive parents of all backgrounds is both a legal requirement and an important tool for meeting the demands of good [social work] practice. . . . (Policy guidance, pp. 2, 5)

Thus, one remedy is the participation of social workers in innovative recruitment activities with the prospect of adding a significant number of families of color to the existing pool of available families to obviate the issue of ethnic and racial matching. The attainability of this goal, however, is questionable.

The operative standard in foster care or adoptive placements has been and continues to be "the best interests of the child." Nonetheless, . . . any consideration of race, color or national origin in foster or adoptive placements must be narrowly tailored to advance the child’s best interests and must be made on an individualized determination of each child’s needs and in light of a specific prospective adoptive or foster care parent’s capacity to care for that child. (Policy guidance, p.5)

Relevance to the Profession’s Code of Ethics

A number of ethical standards, as well as values and principles, are relevant to this discussion. Pertinent references to the NASW Code of Ethics include the following:

• Standard 1.01, which addresses the possibility that legal obligations may supersede loyalty to the best interests of clients

• Standard 1.02, which validates respect for self-determination and thus undergirds a biological mother’s preference for a same-ethnic placement as well as an older child’s (participating in the decision making) preferences

• Standard 1.03, which requires informed consent, suggesting that a biological mother’s consent to relinquish a child for adoption should be made with the knowledge of the law that would preclude factoring in ethnic and racial and national origin considerations

• Standard 1.05b, which requires competence in service that is sensitive to clients’ cultures

• Standard 4.02, which prohibits discrimination in practice

• Standard 5.02c, which requires social workers to be current in emerging knowledge (thus suggesting that as this issue evolves, social workers should be familiar with research findings, legal regulations, and so forth)

• Standard 6.04, which articulates social workers’ obligation to engage in action strategies to ensure equal access to resources and to advocate for changes in policy or legislation to expand choices and opportunities for all populations.

Implications for Social Work Practice

NASW's policy statement on Foster Care and Adoption states that placement decisions should reflect the child's need for continuity and "respect the integrity of each child's ethnicity and cultural heritage. . . . The social work profession stresses the importance of ethnic and cultural sensitivity. An effort to maintain a child's identity and her or his ethnic heritage should prevail in all services and placement actions that involve children in foster care and adoption programs . . ." (pp. 137, 138).

Further articulation of the Association's position indicates that adoption cannot and should not be color-blind. In considering the best interests of the child—that is, the primacy of the child's physical and emotional well-being—a number of factors are of paramount importance in making placement decisions. These factors include the safety, security, stability, nurturance, and permanence of the child. In addressing the child's individualized need for security and stability, cultural heritage is a defining characteristic.

Nonetheless, the current pool of prospective adoptive families does not reflect the necessary cultural diversity to retain the integrity of the child's race and ethnicity in each and every adoptive placement. Thus, the child's need for a permanent, continuous, nurturing relationship with a parenting person or persons must be weighed against the child's need for racial and ethnic matching in placement decisions. Previously, such consideration was a professional mandate; now, it also has become a legal mandate. The profession acknowledges that the best interests of the child will be compromised if he or she experiences multiple, protracted foster care placements. The placement of children in foster care, initially envisioned as a temporary service, has become a "holding tank" for a large number of children.

The ultimate goal should be to move each child out of foster care into an environment that is safe, secure, stable, and nurturing. The social work profession historically has adhered to the tenet that cultural heritage must be one of several significant factors considered in planning for the permanency of children. One’s origin is integral to the formation and healthy development of individual identity. Therefore, it is of paramount importance that the pool of prospective foster care and adoptive families be actively developed to reflect the ethnic and racial background of the children served by the child welfare system. Moreover, prospective foster care and adoptive parents need to be provided with and demonstrate an understanding of and respect for cross-cultural issues, sensitivities, and competencies. Such training and support is critical in placing children in families of dissimilar background.

The interethnic adoption provisions of the Small Business Job Protection Act are one vehicle by which President Clinton has announced his position on the provision of adoption services, and thus, has charted a course for social work practitioners to follow. The President’s Adoption 2002 initiative reinforces his position on this issue. This initiative identifies 10 implementation steps to double the number of children in foster care who are adopted or permanently placed out of the public foster care system by the year 2002. The President believes that these policy- and practice-related steps will achieve the goal of moving 54,000 children into permanent homes by 2002. One of the steps of this initiative focuses on the implementation of MEPA. It calls for a proposal to ensure continued aggressive implementation of MEPA, as amended by the interethnic adoption provision of the Small Business Job Protection Act, and proposes several action steps to realize this goal.

Despite the congruence of these actions, the executive and legislative branches of the U.S. government have also demonstrated their own lack of internal consistency in these matters. Just two days following the signing of the Small Business Job Protection Act of 1996, the President signed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193). Section 505 of this bill provides that states shall consider giving preference for kinship foster and adoptive placements over non-kin placements. The message sent by the government is less than clear. In some instances, the child’s ties with his or her origin should be preserved and protected; in other instances, such ties do not warrant consideration.

Thus, the social work profession is not alone in its lack of clarity on the issues of racial and ethnic matching in placement determinations. The profession is unequivocal, however, about two overarching principles that guide adoption policy and practice in the United States. First, decisions should be made in the best interests of the child. And second, the goal of such decisions is permanency in a secure, stable, and nurturing environment. The question remains whether the profession’s guiding principles can be embraced by the administration and Congress as foundational elements in the provision of this country’s adoption services. And if so, the value of recently enacted interethnic adoption provisions must be determined by the extent to which the provisions are consonant with these guiding principles as the framework for our nation’s adoption service.

Discussion

The social work profession, and NASW in particular, does not dictate ethnic and racial matching in each and every placement decision. It is but one of numerous salient factors that warrant consideration in the determination of a child’s appropriate placement. Thus, the MEPA amendments, in precluding such consideration, discount the need for professional judgment and discretion in permanent placement decisions, and they discredit the profession and the inherent value of social work expertise in the provision of adoption services.

Social workers who provide adoption services need to assess and evaluate the presence of the child’s risk and protective factors (i.e., resilience of the child) as well as the extent to which prospective parents possess the capacity to insulate the child from an array of potentially adverse experiences that can be detrimental to healthy child development in a society that is far from color-blind. It is imperative to retain this right to consider such matters. Social workers have an obligation to exercise professional expertise and judgment in accordance with the determination of the child’s best interests.

To date, social science research both supports and negates the importance of racial and ethnic matching in placement decisions. Such consideration has been shown in some instances to be critical and in other instances inconsequential to child well-being. Without reliable and valid data that produce consistent findings on interethnic adoptions, decision-making will remain subjective. This ambiguity of results does not lend itself to the government’s conclusion—a dismissal of the relevance of racial and ethnic considerations in the placement of children. Thus, those with expertise in such matters should not be silenced.

In the absence of the explicit identification of permissible exceptions to the law from either the administration or the agency in which the social worker is employed, social workers will be confronted in many instances with a most regrettable choice—a placement decision that compromises the best interests of the child but adheres to the letter of the law, or a placement decision that is based on the child’s best interests but is a potential violation of the law. This is an untenable situation for practitioners. The latter scenario is accompanied by prospective liability charges despite the fact that the law provides for agency-based sanctions. This situation is analogous to criminal and civil liability issues in child abuse and neglect where the public child welfare agency is mandated to protect children from abuse and neglect, yet individual workers are deemed culpable in any specific case. Likewise, adoption workers may be held liable for compliance with a statute in which exceptions are acknowledged but not disclosed. Thus, although penalties for violations of the law are intended solely for the organization, the vulnerability of practitioners is readily apparent. And if history provides any guidance in these matters, agencies will not rush to the defense of their workers in such cases.

Therefore, it is particularly important to document the rationale for a delay or denial of placement where a willing family is both otherwise suitable and available but not of the same ethnic or racial origin. Such a recommendation or decision should be reviewed with supervisors, managers, or appropriate peers in consultation. To avoid liability charges against the agency or the social worker, a consensus among agency staff should be achieved regarding the placement of a child. This is of particular importance when there are factors that indicate the potential harm to a child for placement in a multicultural or multiracial environment. Generally, that fact alone will be insufficient if objections are not raised by the adoptive child, the child’s birth parents, or a member of the prospective adoptive family. Despite the fact that compliance with the statute rests with the agency, in the absence of clear articulation of the exceptions to the law, it is the adoption worker who will, in the first instance, be challenged and held accountable for an explanation.

Finally, explicit recognition of the relationship between the interethnic adoption provisions and the ICWA, and the contradictions of their coexistence, is lacking. Because consideration of tribal origin is not only permissible but mandated, there is no question that ICWA supersedes the provisions of the MEPA amendments and thus has preeminence. The question arises: If measures are established to preserve one distinct culture, that is, Native American, why not others? If the intent of the MEPA amendments was to remedy the legal flaws of the original legislation, why not preclude such consideration for all populations? The equitable treatment of all peoples is the only way to effectively demonstrate the respect we have for each individual’s dignity and worth. And if we rely solely on the policy guidance issued by DHHS, we will place this decision-making burden at the feet of the children who are in need of a permanent home.

Resources

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