Adoption

In the past, adoption was viewed primarily as a means for a childless married couple to "normalize" their relationship. The focus has switched, however; now, adoption is ordinarily seen as an institution that exists to help place children into improved environments.

A number of states have, in recent years, enacted statutes that permit subsidization of adoptions. The adoption procedure thereby became a social instrument for the improvement of the lives of underprivileged children. Subsidized adoption tends to encourage adoption of children by suitable individuals who would otherwise be unable to afford it. This type of adoption has a significant effect upon placement of children labeled hard-to-place. Such children, who are frequently either physically or mentally handicapped, might have no other alternative except protracted institutionalization.

State law may require that the adopting parent have custody of a child for a certain period before obtaining an adoption decree. This requirement is designed to prevent premature action and to establish whether the best interests of the child will be furthered by the adoption.

Transracial Adoption The issue of transracial adoption (adoption of children who are not the same race as the adoptive parents) has come under close scrutiny by courts, legislatures, and the public. Americans are sharply divided on this issue. Is it a positive way to create stable families for needy children and well-meaning adults? Or is it an insidious means of co-opting members of racial minorities and confusing their sense of identity?

In 1972, when the number of African American children adopted annually by white families rose to fifteen thousand, the National Association of Black Social Workers (NABSW) issued its opinion on the subject. Igniting a furious national debate that continued in the mid-1990s, the association equated transracial adoption with cultural GENOCIDE for African Americans.

The NABSW and other minority groups opposed to the adoption of African American children by whites claim that the children are deprived of a true appreciation and understanding of their culture. Their childhood is skewed toward white values and assimilation. Without a sense of racial identity and pride, these children cannot truly belong to the African American community; yet, by the same token, racism prevents their full inclusion in the white world.

Despite these arguments, some African Americans applaud the unconditional love and permanence offered by transracial adoptions. Transracial adoption supporters argue that it is much worse to grow up without any family at all than to be placed with parents of a different race. Because a disproportionate number of African American children are placed in foster care, mixed-race adoptions may be necessary to ensure permanent homes for some African American children. Transracial adoption may also be viewed as an opportunity to achieve INTEGRATION on the most basic level.

Controversies involving transracial adoption soon found their way to the courts. In 1992, the Minnesota Supreme Court upheld a district court's order to transfer a three-year-old African American girl from her suburban Minneapolis foster home to her maternal grandparents' home in Virginia (In re Welfare of D. L., 486 N.W.2d 375 [Minn. 1992]). Referred to as Baby D in court records, the child had been raised since birth by white foster parents who had been married for twenty-four years and had already raised three grown children. Baby D's birth mother placed her in foster care almost immediately after delivery and had not seen the child since. When no relatives could be found to claim the child, the foster parents decided to adopt the girl, whom they had grown to love.

When Baby D's grandparents learned that their daughter had delivered a baby, they set out to find their grandchild and to obtain custody. (The couple was already raising their daughter's three other children.) When the foster parents' petition to adopt Baby D surfaced, the grandparents vigorously opposed it.

The Minnesota Minority Heritage Preservation Act mandated a preference for placing children with relatives and adoptive parents of the same race (Minn. Stat. Ann. § 259.57(2)). An intermediate appeals court and the Minnesota Supreme Court agreed with the lower court that under the law, the Virginia grandparents must be granted custody. Despite the white foster parents' argument that they had provided security and loving care for the child, the grandparents' claim to Baby D was superior. Although many African Americans applauded the decision, some critics questioned the constitutionality of a law favoring same-race adoption.

A similar case in Lexington, Texas, produced a different result in 1995. Two foster parents, Scott Mullen and Lou Ann Mullen, who are white and Native American, respectively, applied to adopt two African American boys in their care. Initially, social workers for the Texas Department of Protective and Regulatory Services denied the Mullens' request, stating that departmental policy required them to seek adoptive parents of the same race as the children.

A civil liberties group called the Institute for Justice filed suit against the department on behalf of the Mullens. The institute also filed suits in other states, arguing that adoption decisions based on race are unconstitutional. The Texas department reconsidered and allowed the Mullens to adopt the boys despite race differences.

Another statute affecting transracial adoptions is the INDIAN CHILD WELFARE ACT of 1978 (25 U.S.C.A. § 1901 et seq.) (ICWA), a federal law giving special preference to family and tribal adoptions of Native American children. Prior to its enactment, nearly one quarter of all Native American children were removed from their parents' care and placed in foster care, through which some were adopted. ICWA's sponsors argued that the adoption of Native American children by white parents was not necessarily in the children's best interests and was unquestionably harmful to tribal membership. The law was intended to preserve Native American culture and to support an Indian child-rearing philosophy that relies heavily upon the extended family.

Under the 1978 law, tribes have jurisdiction over the proposed adoption of any Native American child living on a reservation. Extended families or tribal placements are given automatic priority over all other applicants.

Another law covering transracial adoptions is the Multiethnic Placement Act of 1994 (42U.S.C.A. §§ 622, 5115a, 5115a note). Sponsored by Senator Howard M. Metzenbaum (D-Ohio), the law prevents federally assisted child welfare agencies from screening prospective adoptive parents on the basis of race, color, or national origin. Although agencies may still consider the cultural or racial identity of children when making permanent placements, the law is intended to prevent discrimination and to speed the adoption process. The intention of the law is to give thousands of minority foster children who are eligible for adoption a greater chance of finding permanent homes.

Same Sex Adoption Several states have laws on the books that permit second-parent adoptions by same-sex couples, including Connecticut, the District of Columbia, Illinois, Massachusetts, New York, New Jersey, and Vermont. In 18 other states, trial courts have granted second-parent adoptions to same-sex couples. In other words, these states do not have laws permitting adoptions statewide, but adoptions may be granted in county family courts on a case-by-case basis. These states are Alabama, Alaska, California, Delaware, Georgia, Hawaii, Indiana, Iowa, Louisiana, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Texas, and Washington. In states where there is no statewide law permitting second-parent adoptions, the odds of a trial court granting an adoption vary from county to county. Many of the courts that approve these adoptions are located in metropolitan areas where judges may be more liberal than their rural counterparts.

While the majority of states do not specifically prohibit gays and lesbians from adopting children, three states prohibit the practice. Florida's law is considered the nation's toughest, because it prohibits adoptions not only by gay couples, but also by gay individuals. In 2000, an Arkansas law was passed which prohibited gays and lesbians from becoming foster parents. Mississippi also has legislation barring gay couples from adopting children. The ACLU is challenging that law.