Protection from Racial Discrimination in Adoption and Foster Care

Summary of Selected OCR Compliance Activities

South Carolina Department of Social Services (01-00438)

OCR, the South Carolina Department of Social Services (DSS), and the U.S. Department of Health and Human Services Administration for Children and Families (ACF) entered into a comprehensive compliance agreement that ensures that DSS will not delay or deny the placement of children into foster or adoptive homes, or deny parents the opportunity to foster or adopt children, due to race, color or national origin. This compliance agreement follows OCR’s issuance of a violation Letter of Findings in October of 2005 and ACF’s issuance of a Penalty Letter which adopted OCR’s violation findings and found that South Carolina had violated its title IV-E State plan requirements in February of 2006.

The agreement resolves a review conducted by OCR to determine whether DSS was in compliance with Title VI and Section 1808(c). In its violation Letter of Findings, OCR found six systemic violations and numerous individual violations where the state agency denied parents the opportunity to adopt a child based not on whether the parents could best meet the needs of the child but on whether the parents shared the same race, color or national origin as the child.

An instance involving an African-American couple illustrates the harm that can result from this kind of discrimination. The couple had fostered almost two dozen children and had adopted two young African-American girls through DSS. DSS had consistently given the couple outstanding reviews based on their participation in the foster and adoptive care programs. Then the couple attempted to adopt a Hispanic child whom they were fostering, but they were denied the opportunity even to be considered. Instead, the child was placed with a Hispanic family after a search in which numerous other non-Latino families also were denied consideration, based on the desire to match the child only with parents of "Hispanic/Latin background." When it was learned that the couple might appeal the placement decision, some DSS staff tried to discourage the couple from appealing and to remove the child from their care before they would have the right to appeal. The couple appealed nonetheless.

On appeal, the placement decision was overturned and DSS was directed to give the couple "first consideration" as the child’s adoptive parent. However, DSS then delayed processing the adoption.

OCR found that in this situation and other similar situations, DSS adoption staff made many assumptions about race and the needs of children based on race. DSS assumed that children would have specific needs based on their race or national origin, and they similarly assumed that parents of the same race or national origin would be better equipped to address those needs. However, these conclusions were not based on actual need or abilities but just presumptions based on the race or national origin of the children and parents involved. Similarly, DSS staff assumed that parents would feel uncomfortable adopting a child if the child’s skin color did not closely match the parents. However, these conclusions also were not based on actual conversations with parents, but solely on presumptions about the color of their skin. In focusing on race, color and national origin, the adoption staff lost sight of the goal, which is supported by federal law -- to find parents best able to meet the needs of a child and provide a loving home. Moreover, delays and denials of placements in order to find same race, color or national origin placements, ultimately delay placement of needy children and force them to stay in foster care longer than they would otherwise.

The compliance agreement includes provisions that will address these and other problems. Under the agreement, DSS commits to take the following actions:

• Notify program applicants and participants of their rights under Title VI and Section 1808 in a variety of forms and at various application and participation stages of DSS programs;
• Send a notice to all persons who attempted to adopt a child during the period that DSS was found to be in violation;
• Send a notice to all persons whose individual rights were found to have been violated, notifying them of the substance of OCR’s findings and of their rights under Title VI and Section 1808;
• Provide Title VI and Section 1808 training to all adoption and foster care staff;
• Revise all policies and procedures, forms and brochures to ensure they comply with Title VI and Section 1808 and that they do not deter people from trying to adopt or foster children of a different race, color or national origin;
• Adopt policies and procedures that allow staff to consider the race, color or national origin of parents only if this addresses a need of a child documented by a licensed professional; and
• Revise all family assessments in which families who were willing to adopt a child of another race or national origin were subjected to additional scrutiny.