Dear Mr. Chairman and Members of the Subcommittee,
I am pleased to appear before you today to discuss the implementation and enforcement
of the Multiethnic Placement Act of 1994, as amended and expanded upon by the
Interethnic Placement provisions of Section 1808 of the Small Business Job Protection
Act of 1996. Like the members of this Subcommittee, we in the Department of Health
and Human Services are committed to ensuring that every child in the child welfare
system is given the opportunity to grow up in a safe, stable, loving, permanent home.
In fact, we have pledged to double the number of these children adopted over a five-year
period. We are firmly dedicated to eradicating race-based discrimination that
stands in the way of placing children in permanent homes.
We are proud that this Administration has been able to work in a bipartisan fashion
with members of Congress in both Houses over the past several years to pass critical
adoption and foster care legislation. The enactment of the Multiethnic Placement Act
in 1994, passed with the strong support of the President, placed front and center the
issues of adoption and children's need for permanency. The Multiethnic Placement
Act, along with the 1996 Interethnic Placement provisions, the Court Improvement
Program, and the Adoption and Safe Families Act of 1997, have all made significant
contributions to strengthening the child welfare system of this country. By working
together, we have enacted and are now implementing laws that make the health and
safety of children our first consideration. We have put in place a legal framework that
encourages timely decision-making in the adoption and foster care systems. And we
have begun to tear down the many barriers to adoption, including the problem of
discrimination on the basis of race or ethnicity.
While the important work of implementing the Multiethnic Placement Act continues, a
great deal has changed since its enactment in 1994.
When the Multiethnic Placement Act was enacted, we found 29 States and the District of
Columbia had laws or policies that allowed race-based discrimination in
foster care and adoption placements. Today, as a result of cooperative work with
this Department, States have moved away from such race-based decisions. What
this means to a child in States like Arkansas and California, is that he or she will no
longer need to go through additional months of waiting while workers seek a family
of the same race, when a family of a different race, is ready and able to adopt
today.
Twenty-nine compliance reviews (broad reviews of practices at the local, county, or
multi-county level) have been conducted by the Office for Civil Rights (OCR) since
August 1996. A compliance review conducted by OCR in 5 counties in Florida,
for example, found that in one county race was being used as a factor in the
placement of children in foster care. In fact, it was determined that some
caseworkers used race as a primary factor in placing children. These discriminatory
practices are being corrected and children in Florida are now being placed in homes
within their county of residence more frequently, and the time children wait for
placement has been shortened.
Technical assistance provided by both the Administration for Children and Families
and the Office for Civil Rights in at least 40 States has resulted in the revision of
countless regulations, policies and training curricula that guide the work of child
welfare professionals, and has prompted the re-training of many private and public
agency workers.
The Secretary has personally written to all 50 governors urging their leadership in
these critical endeavors. She has emphasized that we need their assistance in
moving forward with the complex and important next phase of implementation --
gaining full compliance with the provisions of these laws by individual social
workers, volunteers and supervisors who make key decisions affecting the
placement of specific children.
As these examples demonstrate, we have made important strides. But there is much
that remains to be done to address the needs of abused and neglected children in our
child welfare system. Over a half a million children are in foster care. And, based on
our most recent data, we estimate that approximately 110,000 of these children are
waiting to be adopted. Approximately 59 percent of these children are African
American (Non-Hispanic), 29 percent are White (Non-Hispanic), 10 percent are
Hispanic and 2 percent are of other races or ethnicities. The average age of children
waiting to be adopted is between 7 and 8 years old. Over a quarter are over the age of
10. Many also have disabilities. Many of these children have spent long periods of time in
foster care; in fact, their mean length of stay in foster care is almost four years.
As we move forward to ensure that these children are placed in safe and loving
adoptive or permanent homes, we must address many obstacles. We must work to
provide timely, adequate services that meet the needs of children and families. We
must promote decision-making that reflects a child's sense of time -- for while a year
passes quickly for an adult, for a four-year-old child a year represents a quarter of her
lifetime. We must improve court procedures. We must address the need for better
interjurisdictional cooperation among States and counties. We must recruit an
expanded pool of families willing and able to serve as foster or adoptive parents for
children in need, including children with special needs, minority children, older
children and sibling groups. We must also continue our work to end, in practice as
well as in policy, discrimination that causes children to remain in the impermanence of
foster care.
We simply cannot ask a child who has been maltreated, removed from his home and
placed in multiple foster homes for as much as half of his life to wait even a moment
longer than necessary finally to get to enjoy what every child deserves - the love and
care of a family. This is the reason that we are committed to doing all we can from the
Federal level to implement the Multiethnic Placement Act and Interethnic Placement
provisions. But we know that the successful implementation of these statutes will
require not only our ongoing commitment to implement and enforce the law, but
leadership and dedication on the part of State and local officials with direct
responsibility for the administration of child welfare programs all across this country.
I am pleased now to provide you with a more detailed overview of the Department's
implementation of the Multiethnic Placement Act and Interethnic provisions.
Implementation of the Multiethnic Placement Act:
Since 1994, staff in both the Administration for Children and Families and the Office
for Civil Rights within the U.S. Department of Health and Human Services have worked
closely together to promote the full implementation of the Multiethnic Placement Act
and the 1996 Interethnic Placement provisions. The Department has initiated a multi-pronged
strategy to support implementation, including:
- Issuing timely policy guidance to States;
- Reviewing State laws and policies;
- Providing technical assistance to public and private agency staff;
- Conducting reviews; and
- Investigating individual cases of alleged violations.
I would like to share with you some of the key steps the Department has taken in each
of these areas.
Policy Guidance to States
Within six weeks of the passage of the Multiethnic Placement Act in 1994, the
Department issued an Information Memorandum to State child welfare agencies and
State civil rights officers summarizing the new law and transmitting a copy of the law's
text. This was followed several months later with the publication of guidance in the
Federal Register that reviewed key legal concepts and identified examples of practices
that would be illegal under the Act, such as State policies that require searching for a
same race placement for a specified period of time before allowing a child to be
adopted by a family of another race. Consistent with the Supreme Court's Adarand
decision, our guidance restricted consideration of race to exceptional, case-specific
circumstances only. This was a very strict interpretation of the law and caused some to
question whether it was overly restrictive.
Between October 1994 and June 1995, the Department conducted an initial review of
all States' statutes, regulations and published policies on adoption and foster care to
determine if they were in compliance with the Multiethnic Placement Act. Based on
this review, on June 30, 1995, letters were sent to 29 States and the District of
Columbia outlining problem areas of noncompliance with the Federal law and offering
technical assistance. Among the issues identified through the Department's review
were 28 State statutes or policies that gave discriminatory preference to same-race
placements, 9 statutes that contained time requirements for searching for same-race
placements before a transracial placement could be considered, and 5 statutes,
regulations or policies that contained discriminatory racial preferences in recruitment of
potential foster or adoptive families.
By October 21, 1995, one year after the enactment of the Multiethnic Placement Act,
all but three States had amended their statutes, regulations and policies to bring them
into compliance. Two of the remaining States came into compliance in July 1996, and
the last State in April 1997. (This last State's delay in complying with the Federal law
was due to the need for legislative action in a State in which the legislature meets only
biannually.)
In addition to working with States to implement the non-discrimination provisions of
the Multiethnic Placement Act, the Department also issued guidance to the States on the
Act's requirements relating to diligent recruitment. Beginning in October 1995, States
were required to amend their title IV-B Child and Family Services plans to address the
steps they will take to recruit prospective foster and adoptive families who reflect the
racial and ethnic diversity of children needing placements.
When, on August 20, 1996, the President signed into law the Small Business Job
Protection Act of 1996, which included the provisions relating to the "Removal of
Barriers to Interethnic Adoption," the Department reviewed the new law's impact on
the ongoing implementation of efforts to prevent race- or ethnicity-based delays or
denials of foster care or adoption placements. It was determined that, while the
changes were significant, the basic issues of State law and policies had already been
addressed in the Department's initial review of State laws and policies completed in
1995. The 1996 Interethnic Placement provisions affirmed the Department's strict
interpretation and clarified Congress' intent to eliminate completely delays in placement
where they were in any way avoidable. The law now explicitly reaffirmed that neither
race nor ethnicity could be used as the basis for any denial of placement, nor could
such factors be used as a reason to delay any foster or adoptive placement. It also put
in place new and more effective enforcement policies.
Basic information about the 1996 Interethnic Placement provisions was transmitted to
the States in November 1996, and more detailed guidance in June 1997. This guidance
clarified the changes made to the Multiethnic Placement Act (including the elimination
of language in the original statute that made the racial or ethnic background of the child
a "permissible consideration" in determining the best interests of the child). It also
explained new provisions that subject States and other entities receiving Federal
funding to specific graduated financial penalties (in cases in which a corrective action
plan fails to cure the problem within six months.) This guidance highlighted four
critical elements of the Multiethnic Placement Act and the 1996 Interethnic Placement
provisions.
- Delays in placing children who need adoptive or foster homes are not to be
tolerated, nor are denials based on any prohibited or otherwise inappropriate
consideration.
- Discrimination is not to be tolerated, whether it is directed toward adults who
wish to serve as foster or adoptive parents, toward children who need safe and
appropriate homes, or toward communities or populations which may heretofore
have been under-utilized as a resource for placing children.
- Active, diligent, and lawful recruitment of potential foster and adoptive
parents of all backgrounds is both a legal requirement and an important tool for
meeting the demands of good practice.
- The operative standard in foster care or adoptive placement has been and
continues to be "the best interests of the child." Any consideration of race,
color or national origin in foster or adoptive placements must be narrowly
tailored to advance the child's best interests and must be made as an
individualized determination of each child's needs and in light of a specific
prospective adoptive or foster parent's capacity to care for that child.
In addition to issuing guidance to the States on the law's requirements for policy and
practice, the Department has also been working to develop regulations on the 1996
Interethnic Placement provisions' application of financial penalties under title IV-E of
the Social Security Act. We anticipate publishing this guidance as part of a Notice of
Proposed Rulemaking very soon.
Technical Assistance:
Since the passage of the Multiethnic Placement Act in 1994, the Department has
committed itself to providing effective training and technical assistance to both our
regional office staff (who have the most frequent direct contact with State officials) and
to the States themselves to ensure the successful implementation of this important new
Federal law. In July 1995, staff from the headquarters and regional offices of the
Children's Bureau within the Administration for Children and Families (ACF) and the
Office for Civil Rights (OCR) jointly conducted training sessions for ACF and OCR
staff in each of the 10 Federal regions and included at least one State site visit in each
region. Similar technical assistance was then provided by regional staff to States to
assist them in making needed changes to State laws, policies and regulations in order to
ensure that they were in compliance with the Federal law. For example:
The Department has worked with the State of Maine on several occasions to revise
its policies and training manuals to ensure that they do not encourage illegal
considerations of race. Later this month, staff from both OCR and ACF will
conduct a training session for all State Department of Human Services adoption
staff and the new State Adoption Coordinator to ensure that the revised policies are
clear to those who are on the frontlines of implementation.
In Illinois and Missouri, the Department has alerted State officials to provisions of
new laws or bills that contain provisions in violation of the Multiethnic Placement
Act and Interethnic Placement provisions. As a result, these statutes have been
corrected or repealed.
Most recently, David Garrison, Acting Director of the Office for Civil Rights, and
I sent a letter to all States reiterating our commitment to making the staff and
resources of our respective offices available to States, at their request, to provide
technical assistance on policy or practice issues.
Among other strategies, the Department has made extensive use of national and
regional conferences and meetings as a forum to train on the requirements of the law.
For instance, in Boston, OCR and ACF regional staff presented a workshop at the 25th
annual New England Adoption Conference sponsored by the Open Door Society of
Massachusetts, Inc. Over 1,500 adoptive parents, prospective adoptive parents, birth
parents, foster parents, social workers and agency professionals attended the
conference.
The ACF has also made available the Children's Bureau's National Resource Centers
to support State implementation efforts. One of our Resource Centers, the National
Resource Center on Legal and Court Issues, operated under a cooperative agreement
with the American Bar Association's Center on Children and the Law, prepared a
monograph on the Multiethnic Placement Act that was released shortly after the law
went into effect. The publication has since been revised to reflect the changes made by
the 1996 law, and was recently disseminated to all States. The monograph reviews the
requirements of the law and contains practical suggestions for child welfare
administrators and social workers who are responsible for implementing the law in the
best interests of the children they serve.
We also have used our discretionary grants to further the purposes of the Multiethnic
Placement Act, as amended. For instance, we have awarded grants under the Adoption
Opportunities program to develop resource materials and community programs to
preserve, strengthen and support families that adopt transracially. Further, because the
number of children awaiting adoptive families continues to outstrip the available
number of homes, we are supporting innovative efforts to expand the pool of families
for waiting children drawn both from within and beyond their communities.
Monitoring and Compliance Reviews:
The U.S. Department of Health and Human Services has developed three procedures for
monitoring compliance with the Multiethnic Placement Act, as amended. These are:
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The Child and Family Services Reviews, conducted by the Administration for
Children and Families (ACF);
-
Complaint Investigations, conducted by the Office for Civil Rights (OCR); and
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Compliance Reviews, conducted by the OCR.
Under ACF's Child and Family Services Review, part of the revised child welfare
monitoring strategy that we have been piloting, States first undertake a self-assessment,
based to the extent possible on a review of existing data. This is followed by an on-site
review involving Federal staff, as well as appropriate State and local officials. The on-site
review involves an examination of a limited number of case records and interviews
with a range of individuals involved in the delivery and receipt of child welfare
services. Questions relating to the State's implementation of the non-discrimination
and recruitment provisions of the Multiethnic Placement Act are included as part of the
self-assessment. In addition, data from the Adoption and Foster Care Analysis and
Reporting System (AFCARS) and/or other State data are used as part of the self-assessment and
may help to reveal patterns (e.g. differences in placement patterns
related to race) which warrant a closer examination during the on-site review of
individual cases. If ACF's review suggests potential noncompliance with the law,
OCR will be notified so that a more in-depth investigation can be undertaken.
The OCR has responsibility for ensuring compliance with Title VI of the Civil Rights
Act of 1964. Complaints by individuals who believe that they have been victims of
discrimination are investigated by OCR. Since the passage of the Multiethnic
Placement Act and the Interethnic Placement provisions of 1996, 18 complaints relating
to adoption and foster care have been received and investigated.
In one case, a private agency in Michigan was investigated for its policies relating
to transracial placements. The case involved a medically fragile African American
child, born weighing just one pound four ounces, who required foster care. When
the infant was four months old (then weighing four pounds, six ounces), he was
placed with a white foster family. After just two weeks with that family, the child
was, at the request of a foster care worker and the worker's supervisor, moved to a
different foster home, this one an African American family. The investigation
revealed that the two employees had circumvented agency review procedures and
violated agency policy against using race in placement decisions. They had also
misrepresented the facts of the child's situation, both orally and in case
documentation. As a result of the investigation, the supervisor was fired, and the
worker, a new employee, placed on probation. The agency was also provided with
technical assistance on the requirements of the Multiethnic Placement Act, as
amended, to help guard against future violations of the law.
The OCR also conducts periodic reviews of the policies and practices of recipients of
HHS funds to determine whether they are in compliance with the law. Generally, the
scope of the inquiry in a compliance review is broader than in a complaint
investigation, although some of the same data and information are compiled. Since
August 1996, when the Interethnic Provisions were signed into law, the OCR has
initiated 29 compliance reviews of recipients in 19 States. Typically, compliance
reviews investigate county- and local-level entities, and private agencies, as well as the
State agency. As a result of this type of review, we have required States to take a
variety of corrective actions, including making policy changes; disseminating
information on policy changes to staff and private agencies involved in placement
decisions; training placement supervisors and workers; monitoring future placement
practices; collecting racial and ethnic data to assess recruitment and placement patterns;
and educating prospective adoptive parents.
Looking to the Future: Changing Front-line Practice
We have accomplished much in the past few years. We have changed the law and the
policy framework in which decisions are made about individual children so that
decisions can be made truly on the basis of individual children's needs, and not on
blanket assumptions about race. We have also taken important steps in educating and
re-training administrators and workers in the States. Building on these actions, our
work in the coming years will focus on affecting change in front-line practice all
across the country. Decisions about placing children in specific foster or adoptive
homes are made by literally thousands of social workers in both public and private
agencies and by juvenile or family court judges. Clearly, reaching all of these
individuals is beyond the ability of one Federal agency acting alone. Therefore, we
will be reaching out to work collaboratively with State agencies, universities,
professional organizations and others to ensure that all of these individuals understand
and follow the law.
This work is tremendously important if we are to give the thousands of children
awaiting adoptive homes a chance to begin new lives, as part of a new family. As
challenging as this work will be, we are committed to continuing to bring the vision of
the Multiethnic Placement Act, as amended, into reality.
Thank you for the opportunity to testify before the Subcommittee. I would be pleased
to answer any questions you may have.