by Steve York

The phrases "reducing time children spend in foster care" and "removing barriers to adoption" no longer belong exclusively to the vocabulary of adoption professionals. In recent years legislation has been put forth on both the state and federal level to address these very issues. From the so-called "Binsfeld Legislation" in Michigan to Federal laws such as the Multiethnic Placement Act (MEPA) and the Adoption & Safe Families Act (ASFA), legislators also appear to have taken up the challenge to keep children safe, remove barriers that keep them in foster care, and place children with permanent families in a timely manner.

This article addresses two pieces of federal legislation in particular and the resulting policy changes for adoption services in Michigan as outlined in the FIA Services Manual Bulletin #99-16, revised 7/99.

Multiethnic Placement Act (MEPA) of 1994 and subsequent amendments by the Small Business Job Protection Act of 1996 (Section 1808) entitled "Removal of Barriers to Interethnic Adoption."

On August 20, 1996, President Clinton signed the Small Business Job Protection Act of 1996. Section 1808 of the act entitled "Removal of Barriers to Interethnic Adoption" affirms and strengthens the prohibition against discrimination in adoption and foster care placements. This is done by adding to Title IV-E of the Social Security Act, a State Plan requirement to address discrimination, and penalties which apply both to state agencies and private child placing agencies who do not comply with the provisions of the Act. In essence, section 1808 of the act states that race, color, or national origin may not be used as the basis to delay or deny a foster or adoptive placement.

Under the Act, States and entities receiving Federal funding which are found to be out of compliance with these State Plan requirements are now subject to specific, graduated financial penalties in cases where a corrective action plan fails to resolve the problem within six months. The penalties imposed by the statute vary according to the State population and the frequency and duration of noncompliance. The U.S. Department of Health and Human Services estimates that the state penalties could range from less than $1,000 to more than $3.6 million per quarter, and penalties for continued non-compliance could rise as high as $7 million to $10 million in some states. The penalties for non-compliance in Michigan range from 2% of the state's Title IV-E funding for the 1st violation to as high as 5% for a third violation. The total penalties assessed cannot exceed 5% of the total Title IV-E funding received by the state each year. These financial penalties are not just assessed on a state level. If a private (purchase of service) agency is found to to in violation of Section 1808, that agency may lose its entire IV-E funding for the fiscal quarter in which the violation occurred.

The message to adoption agencies is clear: Discrimination in foster and adoptive placement decisions, either toward the child or the family, is not to be tolerated. But how does this impact FIA Adoption Services Policy in Michigan? A visible change in the FIA Services Manual is that the "Cross-Racial, Cross-Cultural Parenting Assessment Guide" is no longer to be used as an assessment tool for families willing to provide foster care or adopt transracially. Instead, workers are now asked to assess the ability of a family to meet the specific needs of a particular child. Race may still be considered, but it must not be the basis for the delay or denial of a placement. It is permissible, however, for the adoptive family to express a racial preference and/or to exclude themselves from consideration for placement from a specific racial group because the family believes that they would not meet the emotional and developmental needs of the child.

When race, color, or national origin is considered in a placement decision, it must be based on concerns arising out of the circumstances of the individual case. The consideration must be narrowly tailored to advance the child's interests, and must be made as an individualized determination for each child and documented in the case record.

According to the FIA Service Manual, Item #732 (page 5), the consideration of race, color, or national origin in the selection of a adoptive family must take into account the following four crucial elements:

1. Delays in placing children who need adoptive homes are not to be tolerated, nor are denials based on any prohibited or otherwise inappropriate consideration;
2. Discrimination is not to be tolerated, whether it is directed toward adults who wish to serve as 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;
3. Active, diligent, and lawful recruitment of potential adoptive parents of all backgrounds is both a legal requirement and an important tool for meeting the demands of good practice; and
4. The operative standard in adoptive placements has been and continues to be "the best interests of the child." Nevertheless, as noted above, any consideration of race, color, or national origin in 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 in light of a specific adoptive parent's capacity to care for that child.

A grievance procedure to be used when an individual or agency asserts that there has been a violation of Section 1808 is currently in draft form at FIA Central Office and should be ready for implementation in the near future.

(It is important to note that this Act does not apply to Native American children whose placement considerations are addressed in the Indian Child Welfare Act.)

The Adoption and Safe Families Act of 1997 (ASFA) with respect to Inter-jurisdictional Adoptions.

The ASFA of 1997 also amended the Social Security Act, Title IVE, Section 471 (a) (23) (1). It prohibits the delay or denial of an adoptive placement of a child when an approved adoptive family is available but resides outside the jurisdiction (county or state) which has responsibility for handling the case of the child. The same financial penalties as described above for MEPA can be applied to states and entities receiving Title IVE funding if they are found to be in violation of Section 471 (a) (23) (1).

Approved adoptive families from jurisdictions (counties or states) other than the child's county of commitment or county of residence who express interest in adopting a child are to be considered for adoption when the child has no identified family. Some workers have told MARE verbally and in writing that it "is against our agency policy to place children out of state," or that "I would never place MY children out of state." Such statements are in direct conflict to what is now Federal law. As with MEPA, any placement decisions that are made based on geographic considerations must also be individualized, case-specific, and well-documented.

According to the FIA Services Manual, Item #732 (page 6a), individuals are to be granted an opportunity for a fair hearing if the individual alleges a violation of Section 471 (a) (23) (1), or if their request for a hearing was not acted upon with reasonable promptness. Within 15 days of receipt of a request for a hearing, the local FIA office with supervisory responsibility for the child must prepare form FIA-3050, Hearing Summary, and send to Bureau of Administrative Hearings.

Contrary to what some may think, MEPA and ASFA do nothing to undermine the "best interest" criteria or the worker's authority in making placement decisions. If, in fact, a permanent home is in the "best interest" of the child, these Federal laws and resulting adoption policy changes only strengthen that criteria by attempting to remove barriers to permanency. These laws should also encourage child professionals to continually scrutinize and improve their efforts in recruiting appropriate families from their communities who are representative of the children waiting in foster care.

There are over 500 children waiting for adoption in the September `99 MARE Book - a new record. Whether through Federal or State legislation, adoption policy, or our personal "best practice" methods, let us continue to identify and remove the barriers to timely adoptive placements. These children are depending on us - and they have waited long enough.

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