Black identity and child placement: the best interests of black and biracial children.

• Author: Forde-Mazrui, Kim

INTRODUCTION

Transracial adoption(1) increased sharply in the 1950s and 1960s.(2) Many factors converged to cause this increase,(3) including a rise in the number of children in the placement system(4) and an insufficient number of minority homes in which to place minority children.(5) Beginning in 1972, however, transracial adoptions were drastically curtailed in favor of racial matching.(6) This reversal was caused in large part by the National Association of Black Social Workers (NABSW), which came out strongly against transracial adoption.(7) The organization's 1972 position paper stated:

The National Association of Black Social Workers has taken a vehement stand against the placement of Black children in white homes for any reason. We affirm the inviolable position of Black children in Black families where they belong physically, psychologically and culturally in order that they receive the total sense of themselves and develop a sound projection of their future.

Black children in white homes are cut off from the healthy development of themselves as Black people, which development is the normal expectation and only true humanistic goal.

Identity grows on the three levels of all human development; the physical, psychological and cultural and the nurturing of self identity is a prime function of the family. The incongruence of a white family performing this function for a Black child is easily recognized. The physical factor stands to maintain that child's difference from his family. There is no chance of his resembling any relative. One's physical identity with his own is of great significance.

In our society, the developmental needs of Black children are significantly different from those of white children. Black children are taught, from an early age, highly sophisticated coping techniques to deal with racist practices perpetrated by individuals and institutions....Only a Black family can transmit the emotional and sensitive subtleties of perception and reaction essential for a Black child's survival in a racist society. Our society is distinctly black or white and characterized by white racism at every level. We repudiate the fallacious and fantasied reasoning of some that whites adopting Black children will alter that basic character.(8)

The NABSW advances two arguments for the position that transracial placement is contrary to a Black(9) child's interests. First, it argues that a Black child needs to be raised by Black parents in order to develop a positive racial identity.(10) Second, the NABSW argues that a Black child needs Black parents in order to develop skills for coping with a racist society.(11) The NABSW argues that, because of these concerns, transracial adoption should be abolished.12 Other, less adamant opponents of transracial placement would allow it in certain circumstances but argue that same-race placement should be favored.13

The NABSW also opposes placing biracial children with white parents.(14) The NABSW argues that society and those around such children will treat them as Black and, consequently, these children also need to identify positively as Black and cope with racial prejudice. Therefore, the NABSW concludes, when an adoption or custody proceeding concerns a biracial child, a court or adoption agency should favor placing the child with Black parents. The NABSW is not only concerned with the child's interest; it also argues that transracial placement threatens the cultural interests of Black people as a group. The association claims that, by raising Black children to affiliate with the dominant culture, transracial placement removes these children from Black culture and dislocates them from the Black community. In this way, the NABSW argues, transracial placement constitutes "cultural genocide."(15)

Arguments such as those by the NABSW have influenced the practice of state adoption agencies and the reasoning of courts confronting the issue of race in child-placement decisions.(16) As a result, courts and adoption agencies often practice a policy of racial matching whereby they strive to place Black children with Black parents and discourage placement with white parents. Courts also practice racial matching in child custody disputes between parents, preferring to place the biracial child with the Black parent when the parents divorce.(17)

The purpose of this Note is to question whether racial matching by courts and child-placement agencies serves the best interests of Black children. The principle that guides this Note's analysis is that racial matching is justified only if such a policy better serves the interests of Black children than a policy in which race is not a factor in a child-placement determination. This Note also questions whether racial matching serves the interests of biracial children and those of Black people as a cultural group.

This Note does not focus on the equal protection concerns raised by the use of race in child placement. This is not to suggest that the Constitution is not implicated or important. Rather, by concentrating on the interests of Black children, this Note recognizes that, unless and until Congress(18) or the Supreme Court(19) forbids the consideration of race in child placement,(20) many courts and agencies will continue to view the issue only with reference to the best-interests standard.(21)

Part I of this Note examines caselaw regarding the permissible use of race in child custody and adoption proceedings and finds that many courts permit the consideration of race in placing a Black child. Part I further finds that courts and agencies view a biracial child as Black and, consequently, favor placing a biracial child with her Black parent after a custody dispute and with Black parents in the adoption context. Part II considers various ways in which the use of race in the placement process harms Black children. Part II concludes that, even assuming that transracial placement entails risks, the harms of racial matching - both in the adoption and custody context - counsel against race-conscious placement. Part III evaluates the assumptions underlying the NABSW's position against transracial placement. It first considers the interests of Black children generally and concludes that not only is there insufficient evidence that transracial placement harms Black children, but transracial placement may also carry its own benefits over inracial placement. Part III then focuses on biracial children and finds that additional reasons support the abandonment of Black-preferred placement for these children. Finally, Part III considers the interests of Black people as a group. Contrary to the position of NABSW, this Part argues that transracial placement does not threaten Black culture and may in fact contribute to Black culture's ability to survive and adapt.

This Note concludes that, in light of the harm caused by racial matching and the benefits offered by transracial placement, the use of race in the child-placement process is not justified. Courts and agencies should instead limit child-placement determinations to nonracial criteria. Alternatively, if courts or agencies insist on considering race, the perceived risks involved in transracial placement, the costs of racial matching, and the benefits of transracial placement should inform their decisions.

1. Caselaw Concerning Race in Child Custody

   and Adoption

   When considering the placement of a child, the states generally charge courts with protecting the best interests of the child.(22) The courts have great discretion over the factors to consider and the weight to attribute to each.(23) Many courts consider race when placing a child. The issue of race in child placement arises primarily in three situations: (1) when a divorced parent sues to gain custody because the custodial parent remarries interracially; (2) when parents of different races both seek custody following divorce; and (3) when a Black child is placed for adoption.

   This Part examines caselaw regarding the permissible use of race in these child custody and adoption proceedings. It does not attempt to review all available caselaw, but only to illustrate a typical approach taken by courts that engage in racial matching. Section I.A considers the issue of race in custody-modification proceedings based on the interracial remarriage of a white child's custodial parent. Although this type of case is not the focus of this Note, it is the only context in which the Supreme Court has considered the use of race in child placement. This section concludes that the Supreme Court's holding in Palmore v. Sidoti,(24) while limiting the use of race in custody modifications, did not clearly foreclose its consideration in such proceedings. Moreover, Palmore has left unresolved the issue of race in adoption and custody determinations other than when a white parent remarries interracially.

   Section I.B examines cases involving Black children in the adoption context and concludes that, while race may not be the sole or controlling placement factor, many jurisdictions allow or require courts and agencies to consider race when placing Black children. Section I.C looks specifically at custody and adoption cases involving biracial children. It concludes that most courts addressing the placement of biracial children find that such children should be placed with Black parents.

   1. Custody Modification Based on the Interracial Remarriage of

      the Custodial Parent

      The Supreme Court addressed the use of race in child placement in Palmore v. Sidoti.(25) Melanie Sidoti, a three-year-old white girl, was placed with her mother when her white parents divorced in 1980.(26) Subsequently, Melanie and her mother began to live with a Black man whom her mother eventually married.(27) Sixteen months following Melanie's placement with her mother, her father sought a change of custody based on "changed conditions."(28) In particular, her father objected to the...