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A Guide to The Multiethnic Placement Act of 1994

By Alice Bussiere, J.D. and The ABA Center on Children and the Law

National Resource Center on Legal and Court Issues

American Bar Association
Center on Children and the Law
National Resource Center on Legal and Court Issues
740 15th Street, NW
Washington, DC 20005-1009
(202) 662-1746

©Copyright 1995 American Bar Association

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.

This monograph was prepared by the American Bar Association under Cooperative Agreement No. 90CW1087/01 from the Administration for Children and Families. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Health and Human Services.

This monograph was funded through the National Resource Center on Legal and Court Issues.

Table of Contents

Acknowledgments

Chapter 1:   Introduction

1. Overview of the Act

2. Children in Foster Care

3. The Law Before MEPA

4. Same-Race Placement Policies

5. Legislative History

Chapter 2:   Description of MEPA Provisions

1. Substantive Provisions

Chapter 3:   Common Questions About MEPA

Chapter 4:   Checklists for Implementation of MEPA

1. Things agencies can do

2. What workers should do

Conclusion

Appendices

Appendix A:   MEPA Statute

Appendix B:   Federal Guidance

Appendix C:   Resource Centers

Acknowledgments

The author would like to thank the following:

Mark Hardin and Debra Ratterman Baker of the ABA Center on Children and the Law initiated this project and commented on outlines and drafts. Sujung Kim and Regina Deihl provided research assistance. Judith Anderson, Rick Barth, Sarah Berman, Wilfred Hamm, Ritch Hemstreet, Carolyn Johnson, Jackie Kidd, Leora Neal, Pat Montgomery, Liz Oppenheim, Glendora Patterson, Susan Shalhoub, and Ken Watson provided suggestions, posed questions, and made comments on drafts. The Stuart Foundations, the North American Council on Adoptable Children, and the Association of Administrators for the Interstate Compact on Adoption and Medical Assistance provided forums for the discussion of many of the issues and questions raised by MEPA. Thanks are also due to the Children's Bureau staff who received and commented upon the monograph on a tight schedule: Cecelia Sudia, Sharon Rothman-King, and George Lyon, Associate General Counsel, Civil Rights Division, Office of the General Counsel, Department of Health and Human Services. Special thanks go to Sally Small Inada and Kendra John-Baptiste of the ABA Center on Children and the Law for pulling together all the changes on short notice to produce this monograph.

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Chapter 1:   Introduction

The Multiethnic Placement Act (MEPA) was passed amid spirited and sometimes contentious debate about transracial adoption and same-race placement policies. At the heart of this debate is a concern about the best interests of children and a desire to ensure children have permanent and stable homes that will meet their needs. The growing number of children in foster care who are waiting for adoptive homes and the over-representation of minority children, particularly African American children, in out-of-home care demand our attention. At the same time, placement decisions must be made carefully to consider the best interest of the child being placed. MEPA attempts to address these concerns by prohibiting discrimination in placement decisions and by expanding the number of families available for foster care or adoption.

Although states are required to comply with MEPA by October 21, 1995, debate is likely to continue. This monograph will not resolve all the issues. Rather it will describe the Act and the current state of the law. It will provide a guide for determining what the law does and does not require and offer some practical suggestions for child welfare administrators and social workers who must implement the Act in the best interest of the children whom they serve.

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1. Overview of the Act

   The Howard Metzenbaum Multiethnic Placement Act of 1994 (MEPA) was signed into law by President Clinton on October 20, 1994 as part of the Improving America's Schools Act. It is designed to: 1) decrease the time children wait for adoption, 2) prevent discrimination in the placement of children, and 3) facilitate the identification and recruitment of foster and adoptive families that can meet children's needs.

   MEPA has three basic requirements to achieve these goals:

   1. It prohibits foster care and adoption agencies and other entities that are involved in the placement of children and that receive federal funds from delaying or denying or otherwise discriminating in making a placement decision on the basis of race, color or national origin.

   2. It prohibits those federally assisted agencies and entities from categorically denying the opportunity for any person to become an adoptive or foster parent solely on the basis of the race, color, or national origin of the adoptive or foster parent or the child.

   3. It requires states to develop plans 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.

   States and affected agencies must comply with the Act by October 21, 1995. Recruitment plans must be submitted no later than October 31, 1995. The Department of Health and Human Services (HHS) has issued a written "Guidance" to assist agencies in complying with MEPA and with related provisions of the United States Constitution and Title VI of the Civil Rights Act. HHS is also available for technical assistance to help affected agencies determine how to comply with the law.

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2. Children in Foster Care

   Although MEPA applies to all child placement agencies receiving federal funds, its primary focus is on children in foster care. In enacting MEPA, Congress found there are nearly 500,000 children in foster care in the United States, that tens of thousands of children are waiting for adoption, and that children who are adopted wait an average of two years and eight months for adoption. HHS statistics indicate that in December, 1990 approximately 69,000 children in foster care had a goal of adoption and about 20,000 of these children were legally free to be adopted. Of these children 44% were white, 43% were African American, and 7% were Hispanic. The median age of waiting children was 7.4 years. 43% were 6-12 years old, 36% were 1-5 years old, 17% were over 12 and 1% were under 1.

   Minority children, particularly those of African descent, are over-represented among children in foster care in relationship to their proportion in the population as a whole. Studies also indicate that African American children wait longer to be adopted than other children. The reasons for these trends are not limited to adoption placement policies, however. Experts have suggested that the over-representation of African American children is due to a number of factors including the high level of minority children who come into contact with the child welfare system, disproportionate foster care placement rates, low reunification rates, historic racism in the child welfare system, and the economic status of African Americans, including both those whose children are involved in the child welfare system and those who might be able to provide adoptive homes. Regarding length of stay in foster care and waiting time for adoption, the child's age on entry into care is the greatest predictor of the time a child will wait for adoption, and other factors, such as the child's age at the time he or she becomes free for adoption, reason for entry into care, the child's placement with relatives, and the services offered to the birth family may affect how long a child remains in foster care.

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3. The Law Before MEPA

   Discrimination based on race or national origin was clearly illegal before MEPA was passed. The Constitution bars discrimination based on race unless there is a compelling reason for treating people differently and the disparate treatment is necessary to achieve a legitimate purpose. Title VI of the Civil Rights Act prohibits discrimination based on race, color, or national origin in all federally funded programs. Applying discrimination principles to child welfare decisions demands some care however. Unlike decisions made in other areas, such as credit or housing, where general qualifications determine whether an individual is entitled to certain goods and services, a child welfare decision requires an individualized determination concerning whether a particular placement is in the best interest of the child. Generally a placing agency will consider the needs of the child and the abilities of a prospective foster or adoptive family to meet those needs and will match the child to the family that can best meet his or her needs.

   Courts have met the challenge of applying the law on discrimination to placement decisions by distinguishing between the use of race as one factor in considering the best interest of an individual child and the use of race as a single sufficient criterion for denying a placement. Courts have overturned statutes that prohibited transracial adoption where race was the sole factor used to deny placement, but they have not ruled out race as one of the acceptable considerations that can be used in making placement decisions. Consideration of a family's ability to parent a child of another race has been found to be permissible when consideration of the parents' racial attitudes and ability to address issues of the child's identity and self-esteem are necessary to meet the child's best interest, but blanket policies favoring same-race placements have generally been disfavored, and in individual cases, consideration of a child's need for a permanent home may predominate over considerations based on race and culture.

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4. Same-Race Placement Policies

   Pre-MEPA policies on same race and transracial placement varied among the states. States generally require that foster care and adoptive placements be made in the best interest of the child. However states differed in the amount of direction given, both in making the best interest determination and in whether and to what extent race, culture and ethnicity should be taken into consideration. Some states specified that children should be placed with families of the same race, ethnicity or cultural background consistent with the best interest of the child; some states specified that placement with a family of the same race, ethnicity or cultural background is preferred; some states created an order of preference that included race, ethnicity and culture; and some states prescribed specific time periods in which agencies must attempt to place a child with a family of the same race ethnicity or cultural background. As described above, statutes and policies prohibiting transracial placements have been struck down as unconstitutional. Critics of less restrictive same race placement policies say that the implementation of these policies sometimes makes race an overwhelming factor that virtually prohibits multiethnic foster care and adoptive placements.

   Same race placement policies are based on the generally accepted assumption that children have needs related to their cultural, ethnic and racial background. Most child welfare experts agree that it is preferable to place children in families with a similar background, if that placement is best suited to meet the child's needs and the placement decision does not delay the child's opportunity for a stable home. This preference assumes that children raised in families of the same race or ethnic background will more easily develop a sense of identity and self-esteem and that minority children raised in minority families will have a better opportunity to learn the skills they need to cope with the racism they will encounter in the general society.

   Some commentators disagree with these assumptions citing the success of transracial placements. However, a wide spectrum of experts agree that transracial placements present specific issues that must be addressed and that parents who do adopt transracially must be able to meet the child's needs related to race, culture or ethnicity. While a few commentators would prohibit any consideration of race in making placement decisions, same race policies and practices have usually been attacked when the preference for same race placement interferes with a placement that best meets all of the child's needs or causes a delay in permanency for children.

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5. Legislative History

   Senator Metzenbaum introduced MEPA in order to encourage transracial adoption when an appropriate same race placement is not available:

   • I introduced the Multiethnic Placement Act, S. 1224, with one goal in mind - encouraging transracial adoption when an appropriate same race placement is not available. I strongly believe that it is better for children to be adopted by parents of another race than not to be adopted at all. Policies that virtually prohibit multiethnic foster care and adoption are unconstitutional, harmful and must be stopped.

   He recognized the concerns on all sides of the debate and emphasized the individual needs of the child in further explaining the bill:

   • Although an appropriate transracial placement is often a positive experience, it is also true that a same race, language or ethnic group placement can go a long way in helping children make the psychological, social, and cultural adjustment to their new family. Given the obvious benefits of same race placement, the Multiethnic Placement Act also makes it clear that race, color or national origin can be a factor in making foster care and adoptive placements, if and only if: First, the consideration of these factors are in the child's best interest, and second, race, color, or national origin is considered along with other factors, such as age, sex, member of a sibling group, religion, disability, language, and whether the child has already bonded with the prospective parents.

   This common sense approach to the consideration of race in making foster care and adoption placements is in keeping with long standing Federal adoption legislation that encourages the recruitment of prospective parents of all races.

   Looking at the recruitment process, he stressed that child welfare agencies are encouraged "to use active, creative, and diligent efforts to recruit parents from every race and culture for children needing out of home placements."

   Senator Coats, a cosponsor of MEPA, also laid out the basic principles behind the Act in a colloquy with Senator Metzenbaum:

   • Although the issue of transracial adoption is both controversial and complicated, you and I agree on certain basic principles. First, that it is generally preferable for children to be placed with families of their own ethnic origin when homes are available and in the child's best interest. Second, that transracial placement is a positive and effective means of providing a child with a loving and permanent home, particularly when faced with the alternative of long term foster care. Finally, that children should not be forced into prolonged temporary care when good stable families are ready, willing and able to adopt.

   Thus MEPA has multiple goals: to eliminate discriminatory policies and practices, to ensure that placement decisions are based on the individual needs of the child, and to expand the families available to provide stable homes for children and thus reduce the length of foster care stays. The provisions of MEPA should be interpreted with these goals in mind.

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Chapter 2:   Description of MEPA Provisions

1. Substantive Provisions

   1. To Whom the Act Applies

      The nondiscrimination provisions of MEPA apply to:

      • any agency or entity that receives federal assistance and is involved in adoption or foster care placements

      All state and county child welfare agencies involved in placements are covered because they receive Title IV-E and Title IV-B funds. MEPA also applies to any private agencies involved in placements that receive federal funds from any source. MEPA does not limit its coverage to agencies receiving federal foster care or child welfare funds. Therefore a placement agency that does not receive IV-E or IV-B funds but does receive federal funds from another source such as the Adoption Opportunities Act, the Child Abuse Prevention and Treatment Act (CAPTA), or Title XX is covered by MEPA. Agencies are covered whether they receive the federal assistance directly or through a subgrant from a state, a county, or another agency.

   2. Nondiscrimination in Placement Decisions

      1. What is a placement decision’

         MEPA prohibits discrimination in making placement decisions. "Placement decision" is defined broadly to include:

         • the decision to place, or to delay or deny the placement of a child in foster care or an adoptive home, and includes the decision of the agency or entity involved to seek the termination of birth parent rights or otherwise make a child legally available for adoptive placement.

         Therefore MEPA comes into play throughout the child welfare process. For example, an emergency placement, the development of a case plan, a regular case review that considers placement issues, and a permanency planning or dispositional decision are all likely to include a decision about whether to make or delay a placement. "Placement decision" also explicitly includes the decision to terminate parental rights. Therefore, the fact that a child is not free for adoption does not relieve the agency of its responsibility to proceed in a nondiscriminatory manner.

      2. What is prohibited’

         Any agency covered by MEPA may not:

         • delay or deny the placement of a child for adoption or into foster care, or otherwise discriminate in making a placement decision, solely on the basis of the race, color, or national origin of the adoptive or foster parent, or the child involved.

         However, the agency may:

         consider the cultural, ethnic, or racial background of the child and the capacity of the prospective foster or adoptive parents to meet the needs of a child of this background as one of a number of factors used to determine the best interest of a child.

         1. What is discrimination in decision making’

            The HHS guidance specifies that consideration of race, color, or national origin is permissible only as a component of individualized decisionmaking. This is consistent with the court decisions, described above, that have struck down blanket same race placement policies and individual placement decisions where race was the sole or predominant factor in denying a placement, but have upheld the use of race as one of a number of factors that can be considered in determining the best interest of the child. The HHS Guidance says that consideration of race, color or national origin is permissible only if the agency:

            • has made a narrowly tailored, individualized determination that the facts and circumstances of a particular case require consideration of race, color, or national origin in order to advance the best interest of the child in need of placement.

            Therefore, race, ethnicity, and culture may be taken into consideration in making an individual decision about the needs of a particular child but may not be the subject of blanket policies that apply to all children. Agencies may not assume that race, ethnicity or culture is an issue in every case. These factors may be considered only when necessary to meet the needs of an individual child and as one of a number of factors used to determine the best interest of the child. The HHS Guidance specifies that certain policies are prohibited by MEPA or Title VI. These include policies that establish periods during which only a same race/ethnicity search will occur; create orders of placement preferences based on race, culture, or ethnicity; require caseworkers to specially justify transracial placements; or have the effect of delaying placements, either before or after termination of parental rights, in order to find a family of a particular race, culture, or ethnicity.

            These policies are prohibited by MEPA or Title VI:

            • Policies that establish periods during which only a same race/ethnicity search will occur.
            • Policies that establish orders of placement preferences based on race, culture, or ethnicity.
            • Policies that require caseworkers to specially justify transracial placements.
            • Policies that have the effect of delaying placements, either before or after termination of parental rights, in order to find a family of a particular race, culture, or ethnicity.
              
              

            In making individual decisions an agency may assess the ability of the prospective family to meet the child's needs related to his or her racial, ethnic, or cultural background. As part of this assessment, the agency may examine the attitudes of the prospective family that affect their ability to nurture a child of a particular background and consider the family's ability to promote development of the child's positive sense of self. The agency may assess the family's ability to nurture, support, and reinforce the racial, ethnic, or cultural identity of the child, the family's capacity to cope with the particular consequences of the child's developmental history, and the family's ability to help the child deal with any forms of discrimination the child may encounter. The agency may also consider the prospective parents' expressed preferences as one factor in making thedecision and discuss with the family their feelings, capacities and preferences regarding caring for a child of a particular race or ethnicity, just as they discuss other issues, such as sex, age, or disability. In making the placement decision, the agency may make a selection among various families by identifying which family is most likely to meet all of the child's needs.

            However an agency may not rely on general assumptions about the needs of children of a particular race or ethnicity or about the ability of parents of a particular race or ethnicity to care for or to nurture the sense of identity of a child of another race, culture or ethnicity, and they may not presume from the race or ethnicity of prospective parents that they would be unable to maintain the child's ties to another racial, ethnic, or cultural community.

            In making individual decisions an agency may:

            • Discuss the child's needs with the family.
            • Examine the capacity of the prospective family to meet the child's psychological needs including those related to the child's racial, ethnic, or cultural background.
            • Assess the attitudes of the prospective family as they relate to their capacity to nurture a child of a particular background
            • Discuss with the family their feelings, capacities and preferences regarding caring for a child of a particular race or ethnicity, just as they discuss issues related to other characteristics, such as sex, age, or disability
            • Consider the prospective parents'expressed preferences as one factor in making the decision.
            • Consider the ability of the prospective parents to cope with the particular consequences of the child's developmental history and to promote the development of a positive sense of self, which often has been compromised by maltreatment and separations.
            • Assess the family's ability to nurture, support, and reinforce the racial, ethnic, or cultural identity of the child and help the child cope with any forms of discrimination the child may encounter.
            • Make a selection among various families by identifying which family is most likely to meet all of the child's needs.

            However an agency may not:

            • Rely on general assumptions about the needs of children of a particular race or ethnicity.
            • Rely on general assumptions about the ability of parents of a particular race or ethnicity to care for or to nurture the sense of identity of a child of another race, culture or ethnicity.
            • Presume from the race or ethnicity of prospective parents that they would be unable to maintain the child's ties to another racial, ethnic, or cultural community.

            The Guidance goes on to give examples of the narrow circumstances when race or ethnicity can be considered in making the best interest determination:

            For example, for children who have lived in one racial, ethnic, or cultural community, the agency may assess the child's ability to make a transition to another community. A child may have a strong sense of identity with a particular racial, ethnic or cultural community that should not be disrupted.

            The Guidance suggests that these considerations would probably not be generally applicable to infants or very young children but stresses that the cases must be evaluated on the needs of the individual child.

            MEPA and the Guidance also make clear that the child's needs related to race, ethnicity, or culture must be evaluated along with the child's other needs, such as the child's developmental, educational, medical, and psychological needs; the child's attachment to current caretakers; and the child's interests, personality, and abilities. For example, in an individual case the child's attachment to a foster family of another race may predominate over his or her need for placement with a family of the same race.

         2. What is delay’

            It is generally recognized that instability is harmful to children and that children who cannot return home should be placed in a permanent home as soon as possible. However, the foster care system has not been fully successful in moving children into permanent homes in a timely fashion.

            A number of factors contribute to delay in achieving permanence for children, including high caseloads that do not permit social workers to move quickly, overworked attorneys who push back filing petitions to terminate parental rights, court delays that prolong the dependency process, difficulty in terminating parental rights, the special needs of many children who require homes, financial disincentives to adopt, and attitudes about whether certain children are adoptable. MEPA clearly outlaws delaying a placement for the sole purpose of finding a racial or ethnic match. However, in other cases it may be difficult to isolate the role that concerns for a child's race, culture, or ethnicity play in causing delay because there are so many factors that contribute to delays.

            The HHS Guidance advises that policies imposing a period of delay to search for a same race placement are clearly illegal. However, the Guidance provides little information on what constitutes delay in an individual case. Clearly, an agency may not delay any period of time to search for a same race placement if an appropriate transracial placement is available. However, Senator Coats made it clear that the prohibition on delay does not relieve agencies from making an aggressive effort to identify families that can meet the needs of the waiting children:

            [MEPA] also prohibits any delay in making an adoption placement. While I have expressed concern about the effect of this prohibition I have determined that it is the best legislative approach we can take at this time. I do however want to reiterate my concern that this not be perceived as an excuse for agencies not to aggressively recruit prospective adoptive parents. Agencies should, on an ongoing basis-consistently, creatively, and vigorously recruit and study families of every race and culture of children needing adoptive families.

            The best ways to guard against violations of the law are to assess whether the child has any needs related to race, ethnicity and culture as soon as the child comes into contact with the child welfare system; to make each placement, including, to the extent possible, emergency placements, with those needs in mind; and to recruit a sufficient number of families who are available to meet the needs of children in care.

         3. Nondiscrimination in the opportunity to become an adoptive or foster parent

            Although the debate surrounding MEPA has usually focused on discrimination against white parents who wish to adopt African American children, researchers have also pointed out discriminatory practices that keep African American and other minority families from becoming foster and adoptive parents.

            The central legal issue in discrimination against white parents is whether same race placement policies unfairly deprive them of the right to become foster or adoptive parents. However, the controversies usually have arisen in the context of a particular family who wants to adopt or foster a particular child. MEPA bars discrimination in the opportunity to foster or adopt a child but does not give prospective parents the right to foster or adopt a particular child. This is consistent with the court decisions issued before Congress passed MEPA. For example, in a Louisiana case, the federal court of appeals said that parents do not have an absolute right to adopt a particular child because the placement decisions also must take into consideration the parent's ability to rear the child. At the same time, the equal protection clause and Title VI prohibit agencies from using race or ethnicity to deprive parents of the general opportunity to adopt or foster a child if they are qualified to do so. Therefore MEPA prohibits discrimination that deprives prospective parents of the opportunity to foster or adopt a child, but in individual placement decisions MEPA focuses on the child's needs and the ability of the particular parent or parents to meet those needs.

            Specifically, agencies or entities covered by MEPA may not:

            • categorically deny the opportunity to become an adoptive or foster parent solely on the basis of race, color, or national origin.

            The HHS Guidance makes clear that this includes not only denials overtly based on race, color, or national origin but also using standards that exclude groups of prospective parents on the basis of race, color, or national origin, where those standards are arbitrary or unnecessary or where less exclusionary standards are available. Prohibited standards may include those related to income, age, education, family structure, and size or ownership of housing, when they do not have an impact on the ability of the prospective parents to care for a child. Restrictive criteria such as these have been cited as barriers to the inclusion of African American and other minority families in the pool of prospective foster and adoptive parents who are available to provide homes for children. Other barriers to participation include lack of minority staff and management in placement agencies, lack of recruitment in appropriate communities, lack of communication about the need for families in appropriate communities, systemic racism that results in policies and practices from a white middle class perspective, fees and costs that make adoption difficult or impossible for low income families, negative perceptions about child welfare agencies in minority communities, and the traditional use of informal rather than formal adoption in certain communities. Barriers to participation can be addressed in an appropriate recruitment plan.

         4. Diligent Recruitment

            MEPA requires states to recruit potential families that reflect the ethnic and racial diversity of children needing placement. States must develop plans that:

            • 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.

            Experience demonstrates that minority communities respond when they are given information about the need for homes, and there are many successful models for successful recruitment efforts.

            The HHS guidance explains that the recruitment plan must focus on developing a pool of potential foster and adoptive parents willing and able to foster or adopt the children needing placement. Recruitment must seek to provide all children with the opportunity for placement and to provide all qualified members of the community with an opportunity to adopt or foster a child.

            The Guidance specifies that an appropriate comprehensive recruitment plan includes:

            1. A description of the characteristics of waiting children.

            2. Specific strategies to reach all parts of the community.

            3. Diverse methods of disseminating both general and child specific information.

            4. Strategies for assuring that all prospective parents have timely access to the home study process, including location and hours of services that facilitate access by all members of the community.

            5. Strategies for training staff to work with diverse cultural, racial and economic communities.

            6. Strategies for dealing with linguistic barriers.

            7. Non-discriminatory fee structures.

            8. Procedures for a timely search for prospective parents for a waiting child, including the use of exchanges and other interagency efforts, provided that such procedures must insure that placement of a child in an appropriate household is not delayed by the search for a same race or ethnic placement.

            The Guidance recognizes that both general and targeted recruitment activities are important. These include use of the general media (radio, television and print), dissemination of information to targeted community organizations, such as religious groups and neighborhood centers, and the development of partnerships with community groups to make waiting children more visible and to identify and support prospective adoptive and foster parents.

            Recruitment activities should provide potential foster and adoptive parents with information about the characteristics and needs of the available children, the nature of the foster care and adoption process, and the supports available to foster and adoptive families.

         5. Interaction with Indian Child Welfare Act

            MEPA specifically provides that it has no effect on the Indian Child Welfare Act (ICWA). ICWA was passed in 1978 in response to concerns about the large number of Native American children who were being removed from their families and their tribes and the failure of states to recognize the tribal relations of Indian people and the cultural and social standards of Indian communities. ICWA creates procedural protections and imposes substantive standards on the removal, placement, termination of parental rights and consent to adoption of children who are members of or are eligible for membership in an Indian tribe. The Act gives Tribal Courts a preference to hear custody cases involving Indian children who reside or are domiciled within the reservation of the tribe. It also gives tribes and Indian custodians of a child the right to participate in state court proceedings if custody proceedings are conducted there. MEPA does not interfere with these rights and protections. For example, the placement preferences of ICWA are not altered by MEPA. However, other provisions of MEPA that do not conflict with ICWA do apply to Native Americans. For example, MEPA prohibits discrimination against Native American adults who wish to foster or adopt a child.

         6. Implementation

            Compliance with the nondiscrimination provisions of MEPA is required within one year after enactment or by October 21, 1995. However, if a change in state law is required in order to bring practices into compliance, HHS may extend the deadline for compliance to a reasonable number of days after the close of the first state legislative session that is held after HHS issues its guidance. HHS notes that states are not required to enforce unconstitutional statutes, and that this will be taken into consideration in deciding whether to extend the deadline. Therefore, states should not anticipate automatic extensions when a change of law is required.

            States must submit their recruitment plans to HHS by October 31, 1995. They have the option of doing so as part of a consolidated state plan that includes the plans submitted under Title IV-B subparts 1 and 2 or, for states submitting a separate Title IV-B subpart 1 plan, as a separate plan amendment that must be submitted before October 31, 1995 even though the rest of the subpart 1 IV-B plan may be submitted later.

            The Administration for Children and Families (ACF) and the Office for Civil Rights (OCR) in the Department of Health and Human Services (HHS) have joined together to provide legal and social work expertise to assist the states and agencies in implementing MEPA. HHS issued its MEPA Guidance on April 20, 1995. It has also developed several Fact Sheets that provide answers to some of the basic questions about MEPA. The Guidance was published in the Federal Register, and HHS mailed the Guidance and Fact Sheets to officials in each state. The Guidance and Fact Sheets are available from HHS or any HHS Regional Office. They are also available on the Internet along with OCR regulations and information about how to file an OCR complaint. The Internet address of the HHS Home Page is http://www.os.dhhs.gov. Click on "HHS Agencies on the Internet" and then click on "Office for Civil Rights."

            HHS has reviewed the state statutes, regulations, and policies to which it has access and has advised states when it appears that state law or policy violates MEPA. Because they have been able to review only those laws and policies that are readily available, HHS staff have advised states that have not been notified of MEPA problems to review their own policies for MEPA difficulties. States should also take steps to ensure that actual practices do not violate MEPA as well. Staff from ACF and the Office for Civil Rights (OCR) are available for technical assistance, and teams from ACF and OCR have gone to at least one state in each region to provide technical assistance. They are also available to respond to requests from other states. In addition, states may request the assistance of groups like the American Bar Association Center on Children and the Law and the National Resource Center on Special Needs Adoption and the National Resource Center on Permanency Planning through a request to their regional Administration on Children and Families (ACF) office. For more information on this, please contact Debra Ratterman Baker at (202) 662-1748.

         7. Enforcement

            MEPA can be enforced through administrative action by HHS or through litigation by individuals or the Justice Department. Noncompliance may result in loss of federal funds, in injunctive relief, and, in certain cases, in an award of money damages.

            1. Administrative enforcement

               1. Title VI

                  Noncompliance with the nondiscrimination provisions of MEPA is a violation of Title VI of the Civil Rights Act. The HHS Guidance suggests that the failure to engage in appropriate recruitment efforts could also create circumstances which would constitute a violation of Title VI. Title VI prohibits discrimination on the basis of race, color, or national origin in programs receiving federal assistance. Anyone who believes he or she has been subjected to discrimination in a program funded by HHS may file a complaint with the Office for Civil Rights (OCR). Information about how to file a complaint is available from HHS or any of its regional offices. OCR can also initiate compliance reviews to determine whether any Title VI violations have occurred. OCR must investigate promptly whenever it receives a complaint or other information indicating that a violation of Title VI has occurred. OCR staff review the policies and practices of the entity receiving federal funds and the circumstances that led to the complaint or other indication of violation. If OCR determines that a violation of Title VI has occurred, it will notify the entity involved and seek voluntary compliance. If voluntary compliance is not forthcoming, HHS may bring administrative proceedings to terminate federal assistance. These proceedings provide the state or the agency with a formal due process hearing to determine whether a violation has occurred and whether fiscal sanctions should be imposed. In the alternative, OCR may refer the matter to the Justice Department with a recommendation to pursue judicial proceedings.

                  HHS is required to seek the cooperation of recipients of federal funds in obtaining compliance with Title VI, and HHS is committed to work closely with covered agencies to promote voluntary compliance.

                  An agency may agree to come into voluntary compliance at any point during the investigation or any action to terminate funding.

               2. Title IV-B

                  In order to receive Title IV-B funds for child welfare and family preservation and support services, states must develop a plan that meets the requirements of IV-B including the requirements for a recruitment plan. Therefore, failure to develop an appropriate recruitment plan could result in the loss of Title IV-B funding. Before granting federal assistance, HHS must determine whether a state plan complies with federal statutes, regulations and guidelines. This determination must be completed within ninety days of the date the state submits the plan. After the initial plan is approved, HHS may withhold future payment of federal funds if the plan no longer complies with federal law, either because of changes in federal requirements or because of plan amendments submitted by the state, or if the state has failed to administer the plan in substantial compliance with federal law.

                  HHS is working jointly with States to achieve voluntary compliance.

         8. Private law suits

            MEPA expressly provides a federal cause of action for any person who is aggrieved by a violation of the nondiscrimination provisions.

            This gives anyone who is adversely affected by a violation the right to file a lawsuit. Another provision removes an obstacle to bringing an action for failure to comply with the recruitment plan requirements under Title IV-B. Although the Act does not expressly provide a right to bring a lawsuit for failure to implement a recruitment plan, such an action may be available if all other requirements for such a case are met. In addition, the HHS Guidance suggests that the failure to implement an appropriate recruitment plan could give rise to a discrimination claim under Title VI. Other violations of MEPA that constitute discrimination may also give rise to civil rights claims based on the Constitution and Title VI.

            Litigation can result in court orders requiring the defendant state or agency to comply with the law and an award of attorneys fees if the person bringing the lawsuit is successful. Money compensation, known as "damages", may also be available in certain circumstances to individuals who are harmed by discriminatory policies and practices.

      3. Barriers to Implementation

         Agency administrators should anticipate barriers to implementation of MEPA and make plans for reducing those barriers. Some of the potential barriers are discussed below.

         1. Confusion

            Confusion about the requirements of MEPA is likely to exist among child welfare workers and the general public as a result of the public debate about transracial adoption and same race placement policies. Confusion is also likely to result from the changes MEPA will require in law and policy in some states. It is important that administrators act quickly to say what is and what is not required by the law and to specify which current policies and practices must change and which are not affected. Administrators should develop clear written guidelines that detail mandatory requirements, and areas where professional judgment is to be applied.

            Agency staff must be given an opportunity to discuss and understand how the law will apply to their daily practice and to clarify issues. Training sessions and meetings in which the law and policies are applied to facts of real or simulated cases can be helpful in translating the provisions of MEPA into actual practice. A supervision system encouraging review of decisions and dialogue among agency staff will also be helpful in implementing MEPA to best meet the needs of children.

            Administrators should also develop ways of informing the general public and prospective foster and adoptive parents about the law and the policy and practices of the agency. Recruitment materials, communications between workers and individual parents, and information provided to the general public should provide a consistent message about what the law requires and what the agency is doing. Including information about the reasons for the law and the way that the agency plans to meet the best interest of the children will help the public and prospective parents understand the agencies' policies and practices.

         2. Lack of resources

            Child welfare agencies have faced increased responsibilities and decreasing resources in recent years. Implementation of MEPA may be viewed as another unfunded mandate that will take time away from issues that affect the lives of children.

            Since MEPA incorporates good social work practice, much of the implementation should be consistent with the work administrators, supervisors, and workers are doing on a regular basis.

            Administrators should look for ways to incorporate MEPA implementation into ongoing activities, such as supervision, training, and case reviews.

            It is clear however, that some additional resources will be needed for implementation. Administrators should identify all potential sources of support and make use of them. In addition to Title IV-E administrative funds and Adoption Opportunities Grants, administrators should make use of HHS technical assistance and the services available from the federal resource centers listed in the appendix.

            They should also explore the resources available from nongovernmental sources, such as private foundations. Permanence, the problems of children in foster care, and the effects of discrimination are among the priorities of many foundations, and agencies should be able to develop fundable projects that include MEPA implementation.

            Agencies should also be creative in using free community resources, such as churches and community groups in collaborative implementation activities.

         3. Resistance

            Agencies may also encounter resistance from individual workers either because of their personal views or because of a perception that the federal law is dictating decisions in individual cases where professional discretion should be exercised. Administrators can reduce this resistance by discussing with the workers not only the provisions of the law but also the goals and values behind it. Staff meetings or discussion groups can provide an opportunity for value clarification that will promote consistent decisionmaking in individual cases. Open discussion is particularly important because implementation of MEPA can raise explosive and emotional issues such as the best interests of children and charges of racism and discrimination.

         4. Fear of litigation

            Fear of litigation can create a climate in which social workers or supervisors are fearful of exercising their discretion in the best interest of the children. Administrators should provide their staff with competent legal advice about what is and what is not legal, and agencies should be prepared to back up appropriate worker decisions when they create difficulties or result in litigation.

            Workers must clearly understand what the law requires of them, but must be free to exercise their professional judgment within the requirements of the law.

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Chapter 3: Common Questions About MEPA

1. Given that the Constitution and Title VI already prohibit discrimination, what difference will MEPA make’

   Congress felt that MEPA was necessary in light of reports about discriminatory policies and practices that delayed permanence for children, particularly African American children. Reported practices include specific waiting periods to search for a same race placement and requiring social workers to justify a transracial placement. MEPA has focused attention on those policies and practices, and some of them will have to be changed. In addition, as a result of MEPA, HHS has devoted resources to reviewing state statutes and policies and providing technical assistance through OCR and ACF staff. MEPA also requires states to develop and submit comprehensive recruitment plans that will include diligent efforts to involve families reflecting the ethnic and racial diversity of children in foster care. These activities should result in increased efforts by state, local and private agencies to provide appropriate permanent and stable placements for children who cannot return home.

2. Can I take race into consideration in making placements’ When’

   Race may be taken into consideration as one of the factors in making an individual decision based on the needs of the specific child to be placed. MEPA permits agencies to consider the cultural, ethnic, or racial background of the child and the capacity of the prospective foster or adoptive parents to meet the needs of the child of this background as one of a number of factors used to determine the best interest of the child. The HHS Guidance explains that an agency may take race into account only if it has made an individual determination that the facts of the case require considering race to advance the best interest of the specific child and only if race, culture or ethnicity is considered one of a number of factors affecting the best interest of the child.

   MEPA also prohibits delay in placement solely on the basis of race, color, or national origin. Therefore, considering these factors may not result in a delay in placement.

   Individualized decisionmaking and timely planning to meet the needs of the child are the keys to the appropriate consideration of race, culture or ethnic background. The worker should ask 1) Does this particular child have a need based on his or her race, culture or ethnic background that should be considered in making a placement’ 2) How should that need be met’ and 3) How can we meet that need without delaying the placement’ The worker also must take into account the other needs of the child; consideration of race cannot predominate over other concerns.

3. Can state law or policy include a preference for placement based on race’

   As described above, any consideration of race, color, or national origin must be part of an individual decision process. Blanket policies not based on the needs of a specific child are not consistent with individualized decisions. The HHS Guidance says statutes or policies that establish orders of preference based on race, culture, or ethnicity or that require workers to justify transracial placements violate MEPA or Title VI.

4. Can agencies honor parental preferences for placement based on race, color, or national origin’

   Covered agencies may not discriminate in placement decisions solely on the basis of race, color, or national origin. Therefore they cannot categorically honor a parent's preference. However, agencies may consider the cultural, ethnic, or racial background of the child and the capacity of prospective foster or adoptive parents to meet the needs of a child of this background as one of a number of factors used to determine the best interests of the child. Therefore, information from the parent about the child's needs should be considered. The worker should explore with the parent reasons for the preference and determine whether the child has any placement needs based on race, culture or ethnic background.

5. Does MEPA prohibit relative placement preferences’

   MEPA does not prohibit a preference for relative placements in the best interest of the child. Courts have recognized the right to live with relatives as a constitutionally protected right, and availability of relatives willing and able to care for a child is a significant factor that should be considered in making a placement decision.

6. Can I evaluate the ability of adoptive parents to meet the cultural needs of a child’

   MEPA specifically permits agencies to consider the ability of the prospective foster or adoptive parents to meet the needs of the individual child of a particular cultural, ethnic, or racial background as one of the factors in determining the best interest of the child. The HHS Guidance says this evaluation may include an assessment of the attitudes of prospective parents that relate to their capacity to nurture a child of a particular background. Agencies may discuss with prospective adoptive and foster parents their feelings, capacities and preferences regarding caring for a child of a particular race or ethnicity, just as they discuss issues such as sex, age or disability. Agencies may also consider the preference of the prospective parents as one of several factors in making placement decisions. However, agencies may not use standards or practices that deny the opportunity to adopt or foster a child to prospective adoptive or foster parents who qualify, and the consideration of factors related to race, culture and ethnicity must not predominate over the other factors the agency considers.

7. Does MEPA apply to white children’

   MEPA applies to all children regardless of race or ethnicity. For example, if a worker determines an African American family can best meet the needs of a white child, denying the child that placement on account of race would be illegal.

8. How does MEPA apply to infants’

   MEPA applies to all children being placed for foster care or adoption by covered agencies and entities regardless of the age of the child. The HHS Guidance suggests that the age of the child may be a factor in determining the effect of race or ethnicity on the best interest of the child. For example, an older child may have a strong sense of identity with a particular racial, ethnic, or cultural community that should not be disrupted; an infant may not have developed such needs. However, the Guidance emphasizes each decision must be individualized.

9. Does MEPA apply to private agencies and independent adoptions’

   MEPA applies to all agencies and entities receiving federal assistance directly or as a subrecipient from another entity. Agencies or entities that do not receive federal assistance are not covered by MEPA, provided no federally assisted agency is involved in the placement decision. However, these entities may be covered by other statutes or policies prohibiting discrimination.

10. How should biracial/bicultural and multiracial/multicultural children be treated’

    MEPA requires individualized decisionmaking based on the specific needs of the child. A social worker should evaluate the needs of the child including all aspects of the child's heritage and the impact of those aspects on the child. This may present additional issues when a child has a multiracial or multiethnic background, but the evaluation and decisionmaking process is the same.

11. Can agencies conduct targeted recruitment’

    MEPA requires diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of the children who need homes. Therefore, states must develop strategies that reach the communities of these families. The federal Guidance expressly approves targeted recruitment efforts as part of a comprehensive strategy aimed at reaching all segments of the community. The Guidance provides that information should be disseminated to targeted communities through organizations such as churches and neighborhood centers. The Guidance suggests agencies develop partnerships with community groups that can help spread the word about waiting children and identify and support prospective adoptive and foster parents. Covered agencies may not, however, categorically deny the opportunity to become a foster or adoptive parent to anyone based on race, color, or national origin.

12. Do prospective adoptive parents have the right to adopt a particular child’

    Prospective adoptive parents have the right to be provided with the opportunity to adopt. However they do not have an absolute right to adopt a particular child. In making an adoptive placement, the social worker must evaluate the ability of the parent or parents to meet the needs of the child needing an adoptive home. When foster parents seek to adopt a child who has been in their care for a significant period of time, the child's attachment to them and the child's need for permanence may dictate that they are the appropriate adoptive family for the child. However, this decision is based on the child's best interest and not the right of the foster parents to adopt.

13. What funds are available to implement MEPA’

    Implementation of MEPA is an administrative cost of implementing federal foster care mandates. Therefore, states are entitled to claim MEPA implementation expenses as part of their administrative costs under Title IV-E. Discretionary funds for innovative projects, such as recruitment programs, are also available under the Adoption Opportunities Act.

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Chapter 4: Checklists for Implementation of MEPA

1. Things agencies can do

   1. Promote good child welfare practice

      MEPA is consistent with good child welfare practice. Both MEPA and good practice require: individual decisionmaking; consideration of all of the child's needs (including, but not limited to, needs related to permanency and needs related to race, ethnicity, and culture) from the time the child first comes into contact with the child welfare system; consistent attention to all those needs throughout the child's relationship with the agency and in each placement decision; active recruitment of potential foster and adoptive parents from all segments of the community; development of a pool of foster and adoptive parents that reflect the needs of the children in care; eligibility criteria for foster and adoptive parents that are related to their ability to care for a child; and support and respectful treatment of all prospective parents. Good practice will improve permanence for children and decrease the chances that MEPA will be violated.

   2. Decrease delays in permanence.

      A number of the controversies concerning transracial placements arise because the child has been in foster care for too long. Frequently the delay in obtaining a permanent placement for the child is due to other factors such as inadequate reunification efforts, timely search for relatives who are willing and able to care for the child, high social worker caseloads, bureaucratic inertia, and court delays. Decreasing these delays in permanence will be in the best interest of the children and will decrease the chances that the agency will be accused of delaying a child's placement for any reason including racial discrimination.

   3. Review current state law and agency policies for compliance with MEPA.

      HHS has reviewed the statutes and policies that are readily available, but state agencies should conduct their own review of all state laws and written policies as well as informal policies and practices to ensure violations of MEPA do not occur in written policy or in practice.

      Other public and private agencies are required to comply with MEPA as well. All covered agencies should thoroughly review policies and practices to ensure compliance. When state statutes or policies appear to be in conflict with MEPA, agencies should seek clarification from the state child welfare agency or HHS or both.

   4. Implement a comprehensive recruitment plan.

      States are required to submit an appropriate comprehensive recruitment plan to HHS no later than October 31, 1995. States should take into consideration both the mechanisms they will use to reach all segments of the community and the protections they will implement to ensure compliance with the nondiscrimination provisions of MEPA. For example, the state may choose to use targeted efforts to reach minority communities, but these efforts may not exclude white families who wish to become foster or adoptive parents.

      Public and private agencies should assist the state in developing an appropriate recruitment plan that meets the needs of the children they serve. Agencies should ensure state plans include creative affirmative efforts to reach communities that reflect the ethnic and racial diversity of children who need homes. Strategies should include issues such as the diversity and cultural competencies of the recruitment staff as well as the activities that will occur. Recruitment efforts should also address how parents are treated in the home study and placement process. Recruitment is wasted if the system does not make appropriate use of interested parents who respond, or if such efforts are not timely.

      Agencies should also collaborate in developing comprehensive community services to ensure that prospective parents are not denied the opportunity to become foster or adoptive parents. Targeted recruitment programs, placement agencies, and others should cooperate to ensure all individuals who are interested in foster care and adoption are encouraged and supported.

      Submission of the plan does not end the responsibility of the state or the other agencies involved in recruitment.

      Implementation,evaluation, and appropriate adjustment are necessary to serve the best interests of children and families and to avoid violations of law. HHS has made clear that the failure to conduct adequate recruitment may be a potential violation of Title VI as well as a violation of the IV-B state plan requirements.

   5. Issue clear policies and standards for placement.

      All agencies should develop clear written policies and standards that implement MEPA. These policies and standards should define prohibited practices and identify the areas where professional judgment is appropriate. Vague or ambiguous policies invite confusion and create barriers to implementation. Agencies can use the federal Guidance in formulating these policies. Additional assistance is available from the resource centers listed in the appendix.

   6. Provide training for workers.

      Training on the provisions of MEPA and discussion of how those provisions apply in individual situations is important to ensure that workers understand and implement MEPA properly. Appropriate training will also help protect agencies from claims they have engaged in discriminatory patterns of practice.

      Training should also include practice issues that increase the cultural competency of staff and help them to make appropriate assessments of a child's needs related to race, culture and ethnicity and the ability of parents to meet those needs.

   7. Provide opportunities for discussion and value clarification.

      Discussing the goals of the agency, of MEPA, and of child welfare services will be helpful in reducing misunderstanding of MEPA requirements and resistance to implementing them. It will also promote consistent decisionmaking in the best interest of the children. Workers who understand the reasons for policies are more likely to implement them correctly and will be more confident in exercising their professional judgment.

   8. Develop a system for supervision and technical assistance for workers to promote compliance that meets the best interests of the children.

      Ongoing attention will be necessary not only to ensure that MEPA is followed but also to ensure that misunderstandings about what MEPA requires do not interfere with fulfilling the best interest of the child. As with adequate training, appropriate supervision will help protect agencies from claims they have engaged in discriminatory patterns of practice.

   9. Get good legal advice.

      Given the controversial nature of these issues, agencies can anticipate litigation if difficult cases arise. However, the fear of litigation should not prevent workers from making appropriate decisions. Workers can best exercise their professional judgment if agency policies and practices have been reviewed for compliance with the law. A good review will also prepare the agency to defend their practices if litigation should occur. If the attorneys who usually work with the agency are not familiar with civil rights issues, they may wish to arrange for a consultation with experts.

   10. Get help.

       Assistance is available from ACF, OCR, HHS Regional Offices, and the Resource Centers. States should take advantage of the resources listed in the Appendix.

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2. What workers should do

   1. Make individual decisions based on sound child welfare practice and the best interest of the child.

      The focus of MEPA is the best interest of children. Workers should keep in mind that the primary concern of child welfare services, including adoption, is the well-being of children. MEPA emphasizes the use of professional judgment in making individualized decisions in the best interest of each child. Workers who base their decisions on sound child welfare practice and the needs of the individual child will be unlikely to run afoul of the law.

   2. Assess the racial, ethnic, and cultural needs of the child as soon as the child comes into contact with the child welfare system.

      The assessment as to whether a child has any needs related to race, ethnicity, and culture should be conducted at the beginning of the case. These needs should be considered in providing services and in making every placement decision. All too often these needs are not addressed until a decision has to be made about adoption or another permanent plan. Waiting until this late is problematic for two reasons. First, it means the child's needs are not met for a significant period of time. Second it creates difficulties in balancing interests at the time of adoption or other permanent placement if the child's current caretakers cannot meet the child's identified needs.

   3. Consider permanence from the first contact with the child.

      Early attention to permanence is especially important. All too often emergency placements or other temporary arrangements become long term. Even when race or ethnicity is not an issue, these placements can create difficulties if the foster parents are not willing to make a long term commitment to the child or are not appropriate adoptive parents. Appropriate planning and action can ensure that children do not remain in foster care drift and can reduce the controversies that arise when children are moved from one placement to another. Early identification of relatives, including absent parents, comprehensive reunification efforts, attention to all of the child's needs in making placement decisions, and other good child welfare practices will reduce the time a child waits for permanence and the chance that problems will arise in making an appropriate permanent placement for children who cannot return home.

   4. Read the statute and the federal guidance.

      A lot of questions can be resolved by referring to the HHS Guidance or the language of the Act itself. Workers should read the federal law and policy for themselves and not rely on written or oral summaries provided by others. When in doubt, workers and their supervisors should review the language of the federal law, the HHS Guidance, and state laws and policies before making a decision. If questions remain, staff should get legal advice.

   5. Review state law and agency policy and ask for clarification.

      Where state law or agency policies are unclear or appear to conflict with the federal law, workers should ask for clarification. It may take some time for the states and agencies to resolve all of the issues that MEPA presents. However, workers need to be able to make decisions for children while this process is going on. Workers should insist upon clarification to the extent possible.

      Questions from workers can also assist the states and the agencies in identifying issues that need to be resolved.

   6. Document the reasons for decisions.

      MEPA emphasizes individualized decision making based on the needs of the child. Workers should document the basis for their decisions including all the factors they considered in reaching that decision. Documentation will help the worker clarify for himself or herself the factors taken into consideration and the reasons for the decision. It will provide a record a supervisor or another worker can refer to in understanding the case, and it will provide evidence of appropriate action in the event the worker is charged with violation of the law.

   7. Be honest with prospective adoption and foster parents and treat them with respect.

      Good communication and respectful treatment will decrease misunderstandings and improve recruitment and retention of prospective parents. Open discussion can also help the agency learn about potential problems and ways to address them.

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Conclusion

The overriding goal of MEPA is to reduce the length of foster care for children. However, we should have realistic expectations about what MEPA can accomplish. The waiting children in the child welfare system have multiple needs, and the child welfare system faces multiple challenges in achieving permanence for children. MEPA is only part of a comprehensive effort that is needed to improve the lives of children who are waiting for permanent homes.

Implementation of MEPA will provide an opportunity for states and agencies to improve permanency for children. Agencies and social workers will need to have a clear understanding of the requirements of MEPA and Title VI and of good social work practice to avoid the problems and controversies that can arise. Attention to the goals of MEPA and the best interest of the individual children being served will be the keys to successful implementation.

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Endnotes

. See, e.g., Transracial Adoption Generates Controversy, Meeting, Legislation ADOPTION LINK (Children Awaiting Parents, Inc. New York: Spring 1994).

. P.L. 103-382, sec. 551-555; 108 Stat. 4056.

. P.L. 103-382, sec. 552(b).

. 42 U.S.C. §5115a(d).

. 60 Fed. Reg. 20272 - 20775 (April 25, 1995). Although the Guidance has not been promulgated in the form of regulations agency interpretations of statutes they administer are given great weight by the courts. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S.837, 843 (1984).

. P.L. 103-382, sec. 552.

. Adoption Fact Sheet [Get better cite.]

. Children's Defense Fund, PROGRESS AND PERIL: BLACK CHILDREN IN AMERICA, 42-43 (1993) [hereinafter PROGRESS AND PERIL]; Richard Barth, Mark Courtney, Jill Duerr Berrick, & Vicky Albert, FROM CHILD ABUSE TO PERMANENCY PLANNING, 7, 36, 235 (1994). This over-representation has existed historically. Children's Defense Fund, KEY FACTS: BLACK AND WHITE CHILDREN IN AMERICA [hereinafter KEY FACTS], 33-36 (1985); Select Committee on Children, Youth and Families, NO PLACE TO CALL HOME: DISCARDED CHILDREN IN AMERICA, H. Rep. No. 395, 101st Cong. 2d Sess. 5, 38 (1990); Janet Mason & Carol Williams, The Adoption of Minority Children: Issues in Developing Law and Policy in ADOPTION OF CHILDREN WITH SPECIAL NEEDS: ISSUES IN LAW AND POLICY, 83 (Ellen C. Segal, Ed., American Bar Association 1985).

. PROGRESS AND PERIL, 43; Barth, et al., 82-83, 154, 158-163, & 267 (1994); Andrea J. Sedlak & Diane D. Broadhurst, STUDY OF ADOPTION ASSISTANCE IMPACT AND OUTCOMES: FINAL REPORT, 2-20 (Westat, Inc. 1993); Maximus, Inc., Child Welfare Statistical Fact Book, 1984: Substitute Care and Adoption (1984).

. Mason & Williams, 84; Barth, et al., 267.

. Mason & Williams, supra. See also, PROGRESS AND PERIL, 42-43; Barth, et al., 36, 72, 267; Robert L. Hampton & Eli H. Newberger, Child Abuse Incidence and Reporting by Hospitals: Significance of Severity, Class, and Race, 75 American Journal of Public Health 56 (January 1985).

. Mason & Williams, supra, Barth, et al., 267. See also PROGRESS AND PERIL: BLACK CHILDREN IN AMERICA, 42-43.

. Mason & Williams, supra. See also, Barth, 127

. Andrew Billingsley, and Jeanne M. Giovanni, CHILDREN OF THE STORM: BLACK CHILDREN AND AMERICAN CHILD WELFARE (1972).

. Mason & Williams, 84; Barth, et al, 131.

. Barth, et al., 158-159.

. Barth, et al. 94, 99, 154, 176; Sedlak & Broadhurst, 2-16 - 2-17, 2-20 - 2-21.

. Palmore v. Sidoti, 466 U.S. 429 (1984).

. 42 U.S.C. §2000d.

. See, e.g., Child Welfare League of America, STANDARDS OF EXCELLENCE FOR FAMILY FOSTER CARE SERVICES, 2.29 (1975); Child Welfare League of America, STANDARDS FOR ADOPTION SERVICE, 4.1, 4.2, 5.4 (1988).

. For a complete discussion of the case law, see Mark A. Hardin & Jane Nusbaum Feller, Transracial Adoption: Same-Race Placement Policies Are Tested in the Courts, 11 ABA JUV. & CH. WELF. L. RPTR. 44 (May 1992).

. In re Gomez, 424 S.W. 2d 656 (Tex. Civ. App. 1967); Compos v. McKeithen, 341 F. Supp. 264 (E.D. La 1972).

. Drummond v. Fulton County Department of Family and Children's Services, 563 F. 2d 1200 (5th Cir. 1977);Tallman v. Tabor, 859 F. Supp. 1078, 1085-1086 (E.D. Mich. 1994); Compos v. McKeithen, 341 F. Supp. 264, 266 (E.D. La 1972); In re Adoption No. 2633, 646 A. 2d 1036 (Md. Ct. Spec. App. 1994); In re Davis, 465 A, 2d 614 (PA 1983).

. DeWees v. Stevenson, 779 F.Supp. 25 (E.D. Pa. 1991).

. McLaughlin v. Pernsely, 693 F. Supp. 318, 323-24 (E.D. Pa. 1988), aff'd on other grounds, 876 F. 2d 308 (3d Cir. 1989); In re: Adoption of a Minor, 228 F. 2d 446 (DC Cir. 1955); Matter of Welfare of D.L. 479 N.W. 2d 408 (Min. App. 1991). For further discussion see, Hardin & Feller.

. See, Adoption of Baker, 185 N.E. 2d 51 (Ohio App. 1962).

. 60 Fed. Reg. 20273; Mason & Williams, 86-88.

. Compos v. McKeithen, 341 F. Supp. 264, 268 (E.D. La. 1972); In re: Gomez, 424 S.W. 2d 656 (Tex. Civ. App. 1967).

.Elizabeth Bartholet, Where Do Black Children Belong’ The Politics of Race Matching in Adoption’ 139 UNIVERSITY OF PENNSYLVANIA LAW REVIEW, 1663, 1188 (1991).

. 140 Cong. Rec. S10281-01, S10303 (August 2, 1994) (statement of Senator Metzenbaum).

. Child Welfare League of America, STANDARDS FOR ADOPTION SERVICE, 4.5 (1988); Mason & Williams, 86; Rita J. Simon, Responses to Where Do Black Children Belong’ 1 RECONSTRUCTION 51 (1992); 104 Cong. Rec. S10281-01, S10303 (August 2, 1994) (statement of Senator Metzenbaum); but see Bartholet, Where Do black Children Belong’ The Politics of Race Matching in Adoption, 139 UNIVERSITY OF PENNSYLVANIA LAW REVIEW, 1163, 1221-1223 (1991).

. See, e.g. discussion in In re Davis, 465 A. 2d 614, 623-625 (PA 1983) and James S. Bowen, Cultural Convergences and Divergences: The Nexus Between Putative Afro-American Family Values and the Best Interest of the Child, 26 JOURNAL OF FAMILY LAW 487 (1987-88).

. See,e.g., Leora Neal & Al Stumph, Transracial parenting: If It Happens, How White Parents and the Black Community Can Work Together, ADOPTALK (Winter 1993); L. Grow & D. Shapiro, Transracial Adoption Today: Views of Adoptive parents and Social Workers (Child Welfare League of America 1975); Lena Williams, Transracial Adoption: The Truth Comes in Shades of Gray, NEW YORK TIMES March 23, 1995 at pp. B1, B5.

. See, e.g., Leora Neal & Al Stumph, TRANSRACIAL ADOPTIVE PARENTING: A BLACK/WHITE COMMUNITY ISSUE (Haskett-Neal Publications 1993); Joan Heifetz Hollinger, Responses to Where Do Black Children Belong’, 1 RECONSTRUCTION 49 (1992); T.L. Perry, Race and Child Placement: The Best Interest Test and the Cost of Discretion, 29 JOURNAL OF FAMILY LAW 51, 98-115 (1990-1991); Bowen, 496-504.

. For an overview of the arguments concerning transracial and same race placements, see, Emily Jean McFadden, Placement of Sibling Groups, Single-parent Adoptions, and Transracial Adoption: An Analysis in FOSTER CHILDREN IN THE COURTS, 399, 410-415 (Mark Hardin, ed. 1983).

. 140 Cong. Rec. S10281-01, S10303 (August 2, 1994) (statement of Senator Metzenbaum). Senator Metzenbaum identified MEPA as his highest legislative priority of his remaining time in the Senate. He said, "I realize that this bill will not solve all of the problems of the child welfare system, but S. 1224 can make a difference in the lives of thousands of children who languish in foster care and temporary placements because of policies against transracial adoptions." Id.

. 140 Cong. Rec. S10281-01, S10303-4 (August 2, 1994) (statement of Senator Metzenbaum).

. Id.

. 140 Cong. Rec. S10281-01, S10300 (August 2, 1994) (statement of Senator Coats).

. 42 U.S.C. §5115a(a)(1).

. 60 Fed. Reg. 20273.

. 42 U.S.C. §5115a(a)(3).

. 42 U.S.C. 5115a(a)(1)(B).

. 42 U.S.C. §5115a(a)(2).

. 60 Fed. Reg. 20273.

. 60 Fed. Reg. 20273.

. 60 Fed. Reg. 20273.

. 60 Fed. Reg. 20274.

. 60 Fed. Reg. 20274.

. 60 Fed. Reg. 20274.

. 60 Fed. Reg. 20274.

. 60 Fed. Reg. 20274.

. 60 Fed. Reg. 20274.

. 60 Fed. Reg. 20274.

. See, e.g., Adoption of Baker, 185 N.E. 2d 51 (Ohio App. 1962).

. See, e.g., Linda Katz, Effective Permanency Planning for Children in Foster Care 35 SOCIAL WORK 220 (1990) and authorities cited therein.

. See, e.g., Judith McKenzie, Adoption of Children with Special Needs in THE FUTURE OF CHILDREN: ADOPTION (The David and Lucille Packard Foundation Center for the Future of Children Spring 1993); Barth, et al., 261 -264.

. See, e.g., Barth, et al., 262-264; Office of Inspector General, Department of Health and Human Services, BARRIERS TO FREEING CHILDREN FOR ADOPTION (February 1991); Debra Ratterman, TERMINATION BARRIERS: SPEEDING ADOPTION IN NEW YORK STATE THROUGH REDUCING DELAYS IN TERMINATION OF PARENTAL RIGHTS (American Bar Association 1991).

. 140 Cong. rec. S10281-01, S. 10300-10301. (August 2, 1994) (statement of Senator Coats).

. E.g., Tom Gilles, and Joe Kroll, BARRIERS TO SAME RACE PLACEMENT (North American Council on Adoptable Children 1991); Mason & Williams, 87.

. Drummond v. Fulton County Department of Family and Children's Services, 563 F. 2d 1200, 1205 (5th Cir. 1977).

. 42 U.S.C. §5115a(a)(1)(A).

. 60 Fed. Reg. 20275.

. Gilles & Kroll, Mason & Williams, 87.

. Gilles & Kroll.

. 60 Fed. Reg. 20274.

. 42 U.S.C. §622(b)(9).

. Kinship Center, PARTNERS IN PLACEMENT SPECIAL REPORT (Kinship Center 1995); National Urban League, FACILITATING BLACK ADOPTIONS: THE FINAL REPORT OF THE INTERAGENCY ADOPTION PROJECT (1979).

. E.g. Kinship Center, National Urban League, Friends of Black Children Project, CREATING NEW LINKAGES FOR THE ADOPTION OF BLACK CHILDREN: A GUIDEBOOK (1984). Information about successful recruitment programs is also available from the Administration for Children and Families (ACF) or the National Resource Center for Special Needs Adoption.

. 60 Fed. Reg. 20274.

. 60 Fed. Reg. 20274.

. 60 Fed. Reg. 20274.

. 42 U.S.C. §5115a(f).

. 25 U.S.C. §1901, et seq.

. 25 U.S.C. §1901(4)&(5).

. 42 U.S.C. §5115a(d)(1).

. 42 U.S.C. §5515a(d)(2).

. 60 Fed. Reg. 20275.

. 60 Fed. Reg. 20272.

. 42 U.S.C. §5115a(e); 45 C.F.R. §80.3.

. 60 Fed. Reg. 20274.

. 42 U.S.C. §2000d.

. 45 C.F.R. §80.7(b).

. 45 C.F.R. §80.7(a) & (c).

. 45 C.F.R. §80.7.

. 45 C.F.R. §80.7.

. 42 U.S.C. §2000d-1; 45 C.F.R. §80.7(d).

. 42 U.S.C. §2000d-1; 45 C.F.R. §80.8a

. 45 C.F.R. §80.6(a).

. 60 Fed. Reg. 20275.

. 45 Fed. Reg. 80.7(d) & 80.11(g).

. 42 U.S.C. §623(a).

. 45 C.R.F. §201.3(d).

. 45 C.F.R. §201.3(e).

. 45 C.F.R. §201.6(a).

. 42 U.S.C. §5115a(b).

. 42 U.S.C. §1320a-2.

. 60 Fed. Reg. 20274.

. 42 U.S.C. §1983.

. 42 U.S.C. §1988. The plaintiff must be the prevailing party.

. 42 U.S.C. §5115a(a)(2).

. 60 Fed. Reg. 20273-20274.

. 42 U.S.C. §5115a(a)(1)(2).

. 60 Fed. Reg. 20273.

. 42 U.S.C. §5115a(a)(1)(B).

. See 140 Cong. Rec. S10281-01, S10300 (colloquy between Senator Durenberger and Senator Metzenbaum) (August 2, 1994).

. Moore v. City of East Cleveland, 431 U.S. 494 (1977); Lipscomb by and through Defeher v. Simmons, 884 F. 2d 1242, 1244 (9th Cir).

. 42 U.S.C. §5115a(a)(2).

. 60 Fed. Reg. 20274.

. 60 Fed. Reg. 20275.

. See, In re Gomez, 424 S.W. 2d 656 (Tex. Civ. App. 1967).

. 60 Fed. Reg. 20274.

. 42 U.S.C. §5115a(a)(1).

. 60 Fed. Reg. 20273-20274.

. See, Gail Folaron & Peg McCartt Hess, Placement Considerations for Children of Mixed African American and Caucasian Parentage," LXXII CHILD WELFARE 113 (March/April 1993)

. 42 U.S.C. 422(b)(9).

. 60 Fed. Reg. 20274.

. 60 Fed. Reg. 20274.

. 42 U.S.C. §5115a(a)(1)(A).

. 42 U.S.C. §5115a(a)(1)(A).

. Drummond v. Fulton County Department of Family and Children's Services, 563 F. 2d 1200 (5th Cir. 1977); DeWees v. Stevenson, 779 F. Supp. 25, 28 (E.D. Pa. 1991) and cases cited therein.

. 60 Fed. Reg. 20274.

. STANDARDS FOR ADOPTION SERVICE, 1.1.

. See e.g.. Linda Katz, Norma Spoonemore, and Chris Robinson, CONCURRENT PLANNING: FROM PERMANENCY PLANNING TO PERMANENCY ACTION (Lutheran Social Services of Washington and Idaho 1994); Linda Katz, Effective Permanency Planning for Children in Foster care, 35 SOCIAL WORK 220 (1990).

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Attachments:

Attachment A:   Statute and Conference Report
Attachment B:   List of Regional Administrators, ACF
Attachment C:   Exemplary IV-B Recruitment Plan Elements
Attachment D:   Necessary Components of Effective Foster Care and Adoption Recruitment

Some of the attachments to the Monograph are also available, they are named Attachment F and Attachment G