Working Sessions (Afternoon)

The following information represents the points made by the facilitators of the working sessions as well as conference participants who chose to express their views. All points noted are not necessarily the views of the facilitators nor The Evan B. Donaldson Adoption Institute. We have chosen to depict these viewpoints in a non-identifying manner in order to represent the rich dialogues which resulted from these "working" sessions.

#1) What is the Role of Race and Culture in Adoption for Children in Foster Care?

#2) What is the Role of Kin in Adoption?
Facilitator: Zelma Smith, M.S.W., C.S.W., Child Welfare Institute, Atlanta, GA

#3) Do Cultural Differences Between Countries Matter in International Adoption?
Facilitator: Lynne Jacobs, M.A., Adopt International, Redwood, CA

#4)Does the Law Get it Right in the Role of Race and Culture in Adoption?
Facilitators: Mary Risling, J.D., California Indian Legal Services, Eureka, CA and Michael Colberg, J.D., C.S.W., New York, NY, Pre & Post Adoption Consulting Team (PACT), Cambridge, MA

In considering this topic, it may be more effective to add the word "identity" to the title of this session so that it reads, Whatis the role of racial identity and cultural identity in adoption for children in foster care?

What are the possible sources and types of identities? Culture and race are just a few of many identities.

community/neighborhood * age * class * politics * education * gender * ethnicity profession/occupation * weight/size * marital status * religion * race (This list was compiled by the participants of this working session.)

Given these types and sources, what are the roles and functions of identities? What aspects of human beings are affected by their identities?

a perception of the world as safe or unsafe self esteem (positive or negative)/self worth/valuableness * security (or lack of) sense of connectedness * expectations * limitations * possibilities boundaries (or lack of) * status * acceptance/belonging * membership potential rights/entitlements * responsibilities (or lack of) * roles * fantasies world view and where one fits into that world view * exposure * visibility (or invisibility) history/traditions/rituals * values * coping skills * resources resiliency * self confidence

(This list was compiled by the participants of this working session.)

How do children's identities develop?

others' perceptions * self-perception * life experiences * internalization of others' feelings * language environment * heritage * religion teachings (overtly/covertly/subliminally) from others (relatives/non-relatives/community)

(This list was compiled by the participants of this working session.)

Definitions and Issues of Identity Development

Identity development in children differs depending on whether they are members of a dominant culture or a minority/subordinate culture.

Dominant group: the group that has control over the distribution and assignment of goods, resources, entitlements, rights, status and standards.

Minority group: the group that doesn't have control - the recipients.

We are looking at these definitions strictly in terms of power. While the relationship has the potential to be classified as benevolent or abusive, we are not assigning a value to it.

These definitions lead to two important questions:

(1) How do children from the dominant group develop identity? The process is:

- They start by looking at who is in power.

- They see that people in power look like them (identification theory).

- They realize that they have the same rights and privileges as those in power (association).

- They develop a sense of self-esteem, rights, privileges and entitlements.

(2) How do children from the minority group develop identity?

Again, they start by observing who is in power:

- They see that people in power do not look like them.

- They are exposed to prejudice, stereotypes, discrimination and negative images.

- They associate and realize that they do not have power and are like those not in power.

- They develop classic low self-esteem and inferiority complexes.

When thinking in terms of prejudice in the U.S., it is easy to think in terms of black and white. However, being a member of a racial group that is considered a minority is not the only way to feel inferior. Children with low self-esteem tend to view being different as something bad - whether, for example, it is because they are from a different country, their country of origin has a different concept of beauty, or they have a different religious background.

Children from a minority group need to be validated. Parents need to tell their children:

- "You are as good as..."

- "You have rights just like everyone else."

- "The stereotypes are not true."

Children must be given the opportunity to see it to believe it. Differences must be acknowledged. This is a form of validation. To not acknowledge the differences gives the message that there is something wrong with those differences. Children also need to see that parents believe what they are saying.

Because of the nature of adoption itself, children who are not adopted cross-culturally or transracially experience feelings of being less than; have inferiority complexes; experience loss and separation anxieties; and ask such questions as, "Why didn't my parent keep me?" and "Was there something wrong with me (or my birthparent, and consequently, me)?"

Children who are adopted transracially may have the added burden of wondering, "Why didn't my race/community keep me?" International adoptees may ask, "Why didn't my country keep me?" Thus, issues for adopted children may be two or three dimensional.

Children who are not assimilated into the dominant culture (including children adopted transracially and cross-culturally) may have feelings of inferiority. Not assimilated equals not mainstream in some way. It is not limited to race and culture. It may be a question of being "too rich," "too attractive" or "too perfect."

When can you stop telling your children that they are "as good as?" When does identity and racial culture no longer become important?

When the group begins to assimilate and becomes more like the dominant group.

Some need to hear this over and over again through the generations because they never assimilate (for example color may not change and features may not change).

What Role Should Race and Culture Play in Foster Care Adoptions?

In terms of human growth and development, all children need a positive sense of identity, belonging, acceptance, rights, privileges, entitlement, race and culture. These are necessary for them to be able to cope with prejudice, discrimination and stereotypes and avoid inferiority complexes. These coping skills, in turn, give children resilience, resourcefulness, self confidence, and a point of reference.

Questions to ask prospective parents:

- How do you feel about yourself (racially)?

- What do you need to tell children in order for them to feel good about themselves? How will you recognize differences?

- Are you able to help a child develop his sense of positive identity: cultural and racial?

- Do you know what to say to make a child feel good about himself?

- Are you able to help a child counteract inferiority?

It is important to reach children with this support as early as possible. Children who linger in the system and have no permanent homes are especially susceptible to feelings of inferiority.

Dr. Crumbley described a discussion/workshop he held with children aged 5 to 11 who were adopted from China. During the session, the children were given the definitions of racism, discrimination and prejudice. When asked how many of them had experienced these things, all raised their hands. The youngest child in the group (5 years old) said that people had made fun of her eye shape and she shared her goal of one day having eye surgery performed. The children became angry when they realized what they were going through.

When asked the following questions, they all raised their hands:

- How many of you has ever teased somebody or mistreated somebody just because everybody else was doing it?

- How many of you teased or mistreated someone and you knew it was wrong, but you did it anyway because if you didn't do it, everybody else might treat you the same way?

- How many of you mistreated someone simply because you didn't know the person and you were afraid of what you didn't know?

- How many of you, wanting to take something from somebody else, convinced that person that he/she didn't deserve what he/she had so you would feel okay taking it?

- How many of you, in a moment when you were doing badly, found someone who was doing worse than you and mistreated that person so that you could feel better knowing that there was someone worse off than you?

The children began to realize that anyone can be prejudiced and everyone can discriminate. As a result of hearing these questions raised, the children began to realize that acting in this manner is a part of being human and with this understanding, they were not compelled to go out and treat other people in the same way. They were empowered because they realized that they didn't have to accept it and that they could respond to it in a variety of ways other than anger. Previous to this discussion, the children were not able to identify the "isms" that were impacting their lives. In speaking with the parents of these children afterwards, Dr. Crumbley discovered they were raising these children as white Americans. They felt that this was the optimal way to deal with race issues and assumed that the children were going to experience all the same privileges that they had. Empowering children, however, involves equipping them with skills, explanations, responses - and this begins by admitting that all the "isms" exist.

Recommendations

Parents must, when adopting transracially, consider all aspects of their lives which will affect the child, including extended family, church, schools, their commitment to exposing the child to his/her culture, and preparing the child for going out into the world.

Children become aware of color differences at age 3 and of stigma associated with color at age 5 or 6. Parents need to address issues at the appropriate times.

There must be post-adoption services for families who adopt transracially to see how they deal with issues of racial and cultural identity.

With older children, it is important to prepare and assess children as well as prospective adoptive parents. It is essential to find out about children's readiness and willingness to be transracially adopted because they have the power to make an adoption work or to disrupt it. If they do not want to be adopted transracially, they should be challenged about how they reached their conclusions. If they are willing to be adopted transracially, it is important to ask them how they will want to maintain their cultural identities.

#2) What is the Role of Kin in Adoption?
Facilitator: Zelma Smith, M.S.W., C.S.W., Child Welfare Institute, Atlanta, GA

Definitions
Kin - Any relative by blood, marriage or adoption or any person with close family ties. The inclusion of close family ties expands the definition of kin to focus not only on bloodlines, but also on relationships.

Relative Caregiver - An individual providing out-of-home care for a child with whom they are related.

Kinship care - One of the most inclusive definitions of kinship care is used by Rebecca Hager in the CWLA publication, A Natural Bridge: "the full time nurturing and protection of children who must be separated from their parents, by relatives, members of their tribe or clans, godparents, step-parents or other adults who have a kinship bond with the child."

Why is it so important to place children with relatives/kin?

- Children have the right to maintain connections with their biological families.

- It is less traumatic, particularly in the early stages of the placement, because there is already a connection between the children and their caregivers.

- It supports the transmission of a child's family identity, culture and ethnicity.

- Kin have vital information that is often unavailable to non-kin caregivers.

Transitional issues - the natural reactions that relative caregivers, children, and birth parents experience as a result of a change in their living arrangements and family roles.

Some of the transitional issues related to kinship care are hopes and dreams; grief and loss; anger; guilt; termination of parental rights; redefinition of relationships; shifting parental roles and responsibilities; carrying over past issues; mortality and morbidity; and divided loyalty.

Kinship care is often controversial in that many people buy into the belief that "the apple doesn't fall far from the tree." The fact that a grandparent has adult children who experience "challenges" or who have "gone astray" does not necessarily mean that that grandparent will not be a suitable caregiver for his/her grandchildren. All families have individuals who continuously struggle with life issues. This is often not a reflection of parental ability.

Social workers as the outsiders - In foster care placements, the foster family knows nothing about the birth family; the children know little or nothing about the foster family; and the social worker is the person who maneuvers these relationships. In kinship care, the children know the relatives, the relatives know the birthparents and the social worker is the outsider.

The Adoption and Safe Families Act (ASFA) supports the notion that relatives should be the first choice for providing care for children in out-of-home placements.

In working with relative caregivers, many have shared that when they agreed to social services' request that they provide care for children, they were not aware of the complexities of saying "yes," including the invasion of their private lives. Often relative caregivers do not receive the support, resources and services that they need in order to care for children.

Case Scenario Mrs. Bennett, a 61 year old divorcee who is approaching retirement, resides in the same city as her two adult children, Sara and David, and her four grandchildren. Approximately 16 months ago, the Department of Social Services (DSS) placed Sara's two children (ages 6 and 9) in Mrs. Bennett's care as a result of Sara's neglect. These children had been spending time with their grandmother since their birth. Suffering from a substance abuse problem, Sara has spent the last year in and out of drug treatment programs.

Although the original goal of DSS was to reunite Sara with her children, they have assessed her situation and have determined that there has been no improvement. Mrs. Bennett, long having looked forward to her retirement - a time when she would not have to work and could travel and "take life easy" - has been approached by DSS to provide "permanency" for her grandchildren by adopting them.

Should adoption be an alternative explored with Mrs. Bennett? What level of encouragement for Mrs. Bennett to adopt is appropriate?

How does adoption of grandchildren by grandparents fit within the goal of permanency for children?

How does adoption fit within the concept of permanency planning for children placed in the care of relatives in general?

Whose issue is "permanency"? Is it an issue for the children and relative? Is it an issue for the child welfare system? Case?

Discussion There can be a fine line between encouragement and subtle coercion. Is it ethical to tell a grandparent that the child will be placed in the foster care system if that grandparent refuses to adopt him/her? On the other hand, is it fair to not give the child a permanent home? Is it ethical to ask grandparents to become involved in a legal process that will terminate their children's parental rights? These are difficult issues, but ones which must be discussed with grandparents and ideally, with parents as well. The reality is that these children need a family, and it is the social worker's responsibility to help all involved to understand this.

This question actually raises two separate issues:

1) The children may need a new permanent living situation and the grandmother will have to address this.

2) Terminating the mother's rights and naming the grandmother as the legal mother of the children forces all involved to re-form their relationships. However, going through this legal process may be the only way to avoid ongoing contact with Children and Family Services.

Whose issue is permanency: the child's or the system's? There is no one "right" approach to this issue. There are legal and cultural benefits for relatives who adopt and those who don't. The key issue in terms of ethical decision-making related to adoption is not what the system is structured to do but how service providers work with families and explain their options to them. Coercing relatives to adopt will not necessarily eliminate the return of children to the system. The focus must be on how service providers work with families.

It sounds like families are being told that they need to adapt to the system rather than the system accommodating to their needs. In an attempt to protect children, the legal system now says that families have to adopt the children that they are caring for or risk losing them. This denies the family system and certain cultural values. In order to solve the problem, the legal system must be altered.

Regulations that solely address the needs of kinship care are currently being finalized. Many practitioners are supportive of the idea that kinship care have its own set of guidelines. Currently, foster care regulations are being applied to kinship matters even though these two types of families require very different services. Although some states offer relatives the choice of financial support - in the form of the lower welfare level of benefit (TANF) or the higher foster care rate (in which case relatives often must be approved as foster parents) - many service providers fail to inform families of the option to become approved or licensed foster parents. As a result, many families who may be in need of more financial support receive only the lower welfare or TANF level of benefit. Service providers need to acknowledge that foster families and kinship families are very different; they need to carefully explain all available options to families; and they need to explain the differences between long-term foster care, legal guardianship, subsidized kinship care and adoption so that families can make informed decisions about the roles they are willing to play in children's lives. This is particularly crucial for relatives who may not be equipped to parent children with special needs. Giving these families the chance to explore options is ethical practice.

In some cases, social workers fail to inform relatives that there are any services available to them at all. This is due, in part, to the value system of our society which says that we should all take care of our own. This, however, is very difficult for many families who already have limited incomes.

In many states, social workers now consult with relatives 6-12 months after placement to raise the issue of a permanency plan for the child. This, of course, involves a tremendous amount of emotion. Some relative caregivers have expressed concern that adopting the child might further complicate unresolved inter-generational issues and problems regarding family dynamics. Others, upon realizing that parents are unable to care for their children, decide to go through the legal process of adoption - not to eradicate relationships between parents and children but to gain the capacity to freely provide the children with what they need. One example is a woman who is currently in the process of adopting her sister's children with the plan to make sure that the children will always know their mother.

Perhaps we need to reconsider how we use the word adoption, particularly in terms of relative caregivers. The word adoption is a legal term that if thought of in terms of what adoption was in the 1950s, is a very different concept than that of adoption today. If a grandparent "adopts" her grandchildren, relationally she is still the grandmother and not the mother. Kinship adoption brings with it many life changes for all involved, including changes in social life, friends and future plans and it may not be appropriate for everyone. A grandmother who has been raising her grandchild for nine years, for example, mourns the fact that she will never know what it is like to be a grandmother because she had to take on the role of parenting her grandchild.

Is adoption the only way we can ensure permanency for children? There seems to be a belief that if relatives do not legally adopt children, they are going to one day decide to throw the children in the street. It is coercive to require relatives who are caring for children, and who plan to do so permanently, to adopt if they do not want to.

Relatives should be informed of the possibility of open adoption in which the children are given a permanent home and family but are still able to maintain ties to their relatives. In Mrs. Bennett's case, she would be able to maintain her role as grandmother, provide continuity for the child and avoid sacrificing her life.

Along the same lines, practitioners need to identify other family members who can provide support to older relatives who are caring for children. They must help families prepare for the possibility of the death of the caregiver in order to avoid the return of the child to the system.

In some states such as Hawaii, there are family group conferences in which families are given the opportunity to hear all the options and the concerns expressed by child protective services and then submit a proposal and work in partnership with the service agency. Greater numbers of kinship placements have resulted from this process.

In the last Census Bureau report, it was reported that nearly 3.5 million American children under the age of 18 live with their grandparents or other relatives. An important point to remember is that these children are not in the foster care system. Ms. Smith believes that this attests to the fact that families can provide for their own. Grandparents are capable of taking care of their grandchildren but they need support and resources, particularly because children today are different and as a result, parenting issues are different.

#3) Do Cultural Differences Between Countries Matter in International Adoption?
Facilitator: Lynne Jacobs, M.A., Adopt International, Redwood, CA

When we speak about cultural differences as in the title of this workshop, are we speaking about cultural differences, human rights issues, or prejudice and discrimination?

Case Scenario #1
The parents of a seventeen year old Korean daughter, adopted by her American parents when she was less than a year old, plan a family visit to Korea as a high school graduation gift for their daughter. The adoptive mother very much wants to find her daughter's birthmother and meet her, if at all possible, during the trip. She has contacted the Korean agency and they state that they have very little information about their daughter's birthmother or other members of the birth family. The agency is gracious and expresses a desire to be helpful but it becomes clear that they feel a protectiveness toward the birthmother because she was unmarried. The adoptive mother is undaunted, however, and continues to press for information. Her daughter tells her mother that she wants to visit Korea but is not interested in searching for her birthmother. Her adoptive mother, though, continues with plans to place an advertisement in a Korean newspaper.

How should different cultural values - such as the different values between the U.S. and Korea on sharing information and searching for one's birthparents - be balanced?

Who should decide about searching? Who has the right to make the decision? To what extent should the cultural values of the adoptee's native country be respected with regard to searching?

Case Discussion

Searching should be the choice of the adoptee. When adoptive parents make this choice, control is taken away from the adoptee and the adoptee is not allowed to be an adult.

Preparing the adoptee to search is critical. Support must be offered to the adoptee regardless of when he/she chooses to search, what method he/she uses, and in the case that he/she decides not to search.

A search does not happen in one step, but is a process which is carried out in different forms and time frames, depending on the individual and his/her needs.

Internationally adopted persons must be given the tools to understand cultural and economic differences between the countries where they have grown up and their countries of origin. They must be prepared for the possibility that their birth family may live in conditions of extreme poverty.

International searches should happen on two levels or in two steps for the adopted person. First he/she should discover or reconnect with his/her cultural heritage. Only then should an attempt be made to connect with biological relatives. Using this approach, the adoptee will be better prepared to understand the information that he/she receives and the interactions which occur. The adopted person will be viewing his/her birth country through a different cultural lense or filter, particularly if he/she cannot speak the language. Without this preparation, the adoptee does not have a cultural context with which to understand the information that he/she is presented with. It is also important to gain knowledge of the country of origin beforehand in order be respectful of that country's customs and procedures.

Agencies need to guide prospective adoptive parents in understanding that adopting internationally does not eradicate the existence of the birthmother (or birthparents) nor does it eliminate the possibility that the child or the birthparents will someday conduct a search.

Case Scenario #2
Rick and John, a gay couple, have applied to adopt a child from a country that has an explicit policy against adoption by homosexuals. They feel that they are well prepared to parent a child with special needs and the agency finds that they bring the maturity, stability [they have been together eight years], sensitivity, and skills to parent a child with medical and/or developmental problems. Rick and John ask to be considered for an older child who has spent time in an orphanage. There are many children with these characteristics in this country, but few prospective adoptive parents express an interest in these children. Because the state in which Rick and John live does not permit a gay couple to adopt jointly, Rick will adopt, and after he adopts, John will adopt the child. The country does permit single parent adoptions. Should the agency:

A. Inform the country that Rick is gay and in a relationship with John and face the real probability that he will be rejected?

B. Not include in the information provided to the country any mention of the Rick's sexual orientation or his relationship with John?

C. Counsel Rick and John not to provide the agency with any specifics about their sexual orientation or relationship [a variation on "Don't ask; don't tell"]?

D. Do something else?

Which choice is most ethical? What values support that choice?

Case Discussion

Should U.S. agencies lie about prospective adopters in order for their application to be approved?

Lying has the potential to harm the child if and when it is discovered that the adoption was based on a lie told by the parents. Lying and failure to abide by the policies of another country is ethnocentric and a blatant disrespect of that country's beliefs and culture and sends the message that we think our way is better.

On the other hand, does respecting a country's beliefs include accepting such things as bad orphanage conditions? The quality of care in orphanages is a human rights issue which warrants attention and action. It does not, however, fall into the same category as the question of whether we are being ethnocentric when we choose to ignore the criteria (often based on cultural beliefs) which another country deems important for prospective adoptive parents.

If lying about a couple's sexuality is acceptable, is it acceptable for a prospective adoptive parent who does not meet the age criteria to adopt in a specific country to lie about age and falsify a birth certificate or for an unmarried couple to falsify a marriage certificate in order to be approved? Do we have a right to commit fraud in the process of adoption because we may have a different belief system?

Meeting the requirements of another country respectfully and consistently can lead to changes in policy. When the sending country sees that the receiving countries are abiding by their wishes, they may begin to become more receptive to other ideas. For example, China originally required that couples adopting had no other children. They would not place more than one child with a family, and they would not consider single parents. Over time, these restrictions have changed.

International adoption must not be viewed as saving children

What is the highest ethic: Love or truth? Is it more important to be truthful or to give a child a loving family and a safe environment to live in?

Directions for the future
Communicate to the public and prospective adoptive parents, perhaps in a statement of children's rights, that adoption should be about the needs of the child and not the rights of adults to be parents. (This might include not honoring gender preferences expressed by prospective adoptive parents).

International agencies must develop and provide post-adoption support for adoptees who wish to return to their country of origin to search and parents must be educated and supported by agencies to provide ongoing and life-long support to their children.

When prospective adoptive parents want to adopt from a country where they do not meet that country's adoptive family criteria (for example, gay and lesbian prospective parents who want to adopt from a country which does not accept gay applicants), they should be directed to domestic adoption or to countries where existing policies do not exclude them.

While the policies of "sending" countries must be respected (particularly to avoid ethnocentrism), the ethical dilemmas associated with adhering to policies which we view as discriminatory or as violations of human rights must also be addressed.

#4) Does the Law Get it Right in the Role of Race and Culture in Adoption?
Facilitators: Mary Risling, J.D., California Indian Legal Services, Eureka, CA and Michael Colberg, J.D., C.S.W., New York, NY, Pre & Post Adoption Consulting Team (PACT), Cambridge, MA

The Multi-Ethnic Placement Act (MEPA)
There have always been societal controversies regarding laws and practices which pertain to children from different groups. From a historical perspective, the orphan train movement involved religious-based issues. Anti-miscegenation laws reflected efforts to keep different races from marrying. Historically, children were not adopted into different race families, with the major exceptions being Asian children brought to the U.S. for adoption in the 1950s through 1970s and the adoption of Native children by non-Native families. With the civil rights movement, there were shifts in both adoption and general child welfare practices. P.L. 96-272 in 1980 emphasized reunification; the Adoption and Safe Families Act of 1997 currently emphasizes adoption; and most likely, there will be another shift in the future.

There is much disagreement surrounding MEPA. It is emblematic of a larger struggle involving such questions as: Is racism inevitable or can it be eradicated? Which is more important - the individual or the group? To what extent do we believe that attention to origins is important? What do we want children to get from us that will help them to feel whole?

MEPA brings to the fore a range of perspectives:
- the position that race and culture are irrelevant

- the position that failure to take race and culture into account represents cultural genocide

- the position that removing children from their "harmful subcultures" will better their lives

Research has not reached any definitive conclusions, though it is used by both sides in the debate. MEPA sprang from concerns that race-matching policies precluded children from being placed with adoptive families. The 1996 amendments to the law disallow race in making adoptive placements absent a compelling governmental interest, which involves an individualized determination of the best interest of the child. Enforcement mechanisms are established with the Office for Civil Rights, which is assigned responsibility for investigating alleged violations of MEPA. If a complaint is substantiated, the removal of federal funding is authorized. There is a second part of MEPA that requires recruitment of adoptive families in the communities from which children come.

At the macro level, the assumption is that large numbers of children will move from foster care to adoption as a result of MEPA. This anticipated effect is questionable because of:

issues related to the number of white families seeking to adopt children of color in foster care;

issues related to efforts being made to recruit adoptive families of color

and issues of disruption in light of more rapid movement of children into adoptive placements.

Cost is often raised as an issue but should be viewed as per child per lifetime rather than costs per year.

At the micro level, MEPA will prohibit the removal of children from foster parents who wish to adopt them on the basis that they are of a different race than the child.

Other factors which delay adoptive placements of children are primitive recruitment techniques, court backlogs, and the special needs of children.

Indian Child Welfare Act (ICWA)

ICWA is a multifaceted statute that provides a model for addressing some concerns related to the role of race and culture. ICWA, while recognizing cultural considerations, is based on the political relationship between tribes and the federal government.

The Act:

- addresses tribal rights and opportunities.

- requires Indian social standards and culture to be applied in state court proceedings [and that state courts defer to tribal law and custom].

- sets minimal federal standards for state court proceedings to protect the interests of Indian children [including the requirement of services, a heightened burden of proof, and placement preferences].

ICWA is a model of four legs, adding the tribe to the triad members (adoptees, birthparents and adoptive parents). The tribe is a distinct party but the child has a critical right to the tribe - which is synonymous with racial and cultural identity. This model is consistent with community approaches to the best interest of the child, such as kinship care and family group conferencing. ICWA mandates that the child be considered in a cultural context and in the context of community.

Some key questions that are raised by a law such as ICWA include:

- What is race and culture? [For example, a child may be 1/8 Indian and ICWA applies, but what about the remaining 7/8s?]

- What are the values we want to strengthen in law and policy?

- What are the underlying assumptions?

- What do we mean by a "right" - a legal "right" or a human "right"?

- What is the role of community in relation to culture?

- Are individual and collective interests compatible or contrary to one another? People of color consistently counsel, "Let's back up and analyze the assumptions" and the language being used. "Let's examine what we mean."

In ICWA, the best interest of the Indian child lies in protecting the role of the tribe and community in the child's life. There is a recognized human right of children to history, family, and community. Tribal rights and opportunities are also recognized. Indian social and cultural standards guide decision-making - including the cultural realities of "Indian custodians." Those who oppose ICWA state that it denies children the families they need, and they have proposed the engrafting of the "existing Indian family" exception that requires a child to be "Indian enough."

How is ICWA doing? The basic approach is sound but its implementation is impeded by resource considerations, ignorance and hostility. At issue is stability in an extended family and community setting versus stability as typically defined by child welfare systems. As a model, however, it is important to note that the political status of the tribe is inherent in the Act. To apply its principles to non-Indians, a fourth group would be required to be brought to the table - extended family, community, or a family group conferencing model that acknowledges the role of the community and the importance of addressing the needs of the community as the way to promote the best interests of the child.

Case Scenario #1

David is a four year old African American boy who has been in foster care in Vermont since he was two years old. His African American foster mother, who has cared for him over the past year - the first foster care placement having been disrupted - is older and has decided that she cannot adopt David. Although she has been able to care for him adequately, she believes that his special developmental needs, including learning disabilities, require that he have adoptive parents who are younger and better able to respond to his ongoing needs. There appear to be three possible adoptive families for David: in Vermont, there is both an African American family and a Caucasian family who have expressed interest in David. There is also a Caucasian family across the border in Ontario who have learned about David through Vermont friends and have expressed an interest in him. In relation to a decision about the two families in Vermont, the agency is required to abide by MEPA and not take race or culture into account in making a decision about an adoptive family for David. In relation to the Canadian family, the Hague Convention would require the U.S. to give "due consideration" to David's ethnicity and culture in evaluating the appropriateness of a placement with the Caucasian family in Canada.

- What role should race and culture play in making the decision for David, all things being otherwise equal among the three families who have expressed an interest in David?

- Which is the "right" legal approach - that set out in MEPA or that set out in the Hague Convention?

- How can the different approaches to race and culture as set forth in MEPA and the Hague Convention be reconciled - or can they be?

Case Discussion

This case raises the challenges in recruiting families of color and the legacy of communities of color historically finding adoption agencies unreceptive to them. Every prospective adoptive family offers potential opportunities - the question is how to make the best choice based on the strongest assessment. How do we figure out if our biases are getting in the way?

If all possible families were of the same race and one family was able to provide best for the child's racial and cultural identity needs, that family would be selected for the child. So why can't this be done with families of different races? The law was really written to protect the rights of white adults - they are the ones who bring the lawsuits, not families of color.

So many factors other than race need to be considered. The case is a "red herring." You must show under the law that the child actually has race-based needs. You must look at the child as a whole system - if there is a reason to believe that race is a compelling interest, you can consider it.

It is ludicrous to say that race is not a compelling interest for any child. Race is a reality in this society and people are perceived on the basis of race.

What if this case involved families with different attitudes toward openness? What if the Vermont family refused to consider openness but the other family was not opposed to it? Would that make a difference? All things are never equal and the notion that they could be should be eradicated.

Many people believe that children will benefit from being moved from their "harmful subcultures." There is a study underway to look at the number of transracial adoptions. If the numbers go up, the law will be viewed by some as a "success." To measure success, however, we need to look at what the law is trying to achieve and consider whether the problem was "real" or not. There is a lack of agreement as to what MEPA was really intended to do.

Transracial adoptions will go up and families of color will be overlooked. Do we have the makings of a class action lawsuit? Is this any different than the orphan train movement? Will we look back on MEPA and see the same result?

Case Scenario #2

S is a six year old girl who is eligible for membership in the Hoopa Valley Tribe of northern California. Her mother is a member of the Hoopa Valley Tribe but has not lived on the reservation since she was a small child. She has not had contacts with her relatives or others on the reservation for more than ten years. S's father is of Polish descent. His whereabouts are unknown. S was placed in foster care four years ago by the county child welfare department following a substantiated complaint of child neglect. S's mother did not inform the child welfare department of her Indian heritage, and the tribe was not notified of S's placement in foster care. S was placed with a non-Indian foster family. The county family court ordered S's mother to obtain treatment for what appears to be a serious alcohol problem, but she has not complied. The court has now determined that parental rights should be terminated and S should be freed for adoption. S's foster parents wish to adopt her and the agency supports this plan.

S's mother recently informed the agency that she is a member of the Hoopa Valley Tribe. In compliance with ICWA, the child welfare agency has notified the tribe of the pending action and the plan to proceed with termination of parental rights proceeding. Pursuant to ICWA, the tribal court has requested that S's case be transferred to it. The agency wishes the county court to retain jurisdiction of the case and not transfer it to the tribal court. The agency believes that there is "good cause" to keep the case in the county court because of the length of time that S has been in care and the relationship she has established with her foster parents who wish to adopt her. The tribe wants jurisdiction to be transferred to the tribal court and points to the fact that the S's uncle lives on the reservation and has expressed an interest in adopting her.

The agency knows that if the case is kept in county court, it will have to establish that S's parents' rights should be terminated "beyond a reasonable doubt" and will have to prove its case using "expert witnesses." If the case is transferred to the tribal court, these requirements will not apply. The agency wonders if it would be better to simply plan a long term guardianship for S with her foster parents, thereby avoiding the stringent requirements that ICWA puts in place for termination of parental rights actions in state/county courts.

- Which court should have jurisdiction to decide the appropriate plan for S?
- Is there "good cause" to keep the case in county court?

- Is ICWA correct in imposing a higher standard to terminate parental rights when a child is of Indian heritage than when a child is not?

- Should ICWA be applied in a case in which a child is, by heritage, half Indian; has never lived on a reservation; and whose mother has not been connected with the tribe for many years?

- Is the agency's alternative regarding the use of guardianship a good one?

Case Discussion
Issues from a legal perspective:

The tribal court would be the court to hear the case - it would have jurisdiction absent good cause. Bonding alone does not support a finding of good cause to decide not to transfer the case to tribal court. A delay of four years might be good cause if the tribal court were notified of the proceeding. But the tribal court did not get notice here. A transfer would be required. The higher standard of proof is based on political reasons, not heritage or race. It is imposed by ICWA on that basis.

ICWA exists in a context. Tribes and tribal members were the recipients of horrendous policies that included the boarding school program. The best interests of children are served through healing and empowering the tribes. The child has an interest in her tribe which ICWA attempts to protect through minimal standards for state court proceedings: active efforts on behalf of family, use of an expert who is knowledgeable regarding Indian social and cultural standards, and reliance on tribal customs.

Guardianship may be preferable because it does not legally impact on the relationship between child and family. It might provide a workable middle ground.

ICWA was enacted after horrendous practice and gave authority to the tribes. MEPA came along when Senator Metzenbaum cited practices of removing black children from white homes.

Given the limited number of Indian foster parents, tribes are open to non-Indian families. They commonly designate non-Indian families as foster parents.

Race and culture are significant for children. When they are placed across racial lines, we need to provide their families with support and training.

We can meet children's needs for continuity, stability, and racial and cultural identity. Is there a way to allow placements and support children's ongoing connections with the tribe? ICWA allows this, with bonding as an important issue that can be factored into decision-making with an individualized assessment. This, however, is sometimes at odds with policy and law in the broader sense.

MEPA's requirement of recruitment is not funded. ASFA requires the use of resources to find all available families but its mandate, likewise, is not funded. We need to put resources into recruitment if we are truly committed to families being there for children. Most Americans are not aware of the realities associated with recruitment.