A MEPA-IEP Review from Adoption Attorneys' Perspectives: Continuing to Make Permissible Assessments Based on Race for the Best Interests of Children of Color

• Author: Cynthia R. Mabry
• Position: J.D. 1983, Howard University School of Law; 1996, LLM., New York University School of Law
• Pages: 319-348

A MEPA-IEP REVIEW FROM ADOPTION ATTORNEYS’

PERSPECTIVES: CONTINUING TO MAKE PERMISSIBLE

ASSESSMENTS BASED ON RACE FOR THE BEST

INTERESTS OF CHILDREN OF COLOR

CYNTHIA R. MABRY1

I. INTRODUCTION

The Interethnic Adoption Provi sions of 199 6 (MEPA-IEP) pro vide that

opportunities to adopt a child may not be denied “o n the basis of the race,

color, or nati onal origin o f the individu al, or of the child, involved” and

that adoptive placements should not be denied or delayed “on the bas is of

the race, color, or national origin of the adoptive . . . paren t, or the child,

involved.”1 MEPA-IEP amended the Multiethni c Pla cement Act of 1994

(MEPA).2 The purpose o f the amendment was to “affi rm[] and

strengthen[] the prohibiti on against discrimination in adoption or foster

care placements.”3 Sixteen years after MEPA was enacted in 1994 and

then amended in 1996, it is still a highly controversial issue whethe r the

federal statute sho uld be amended ag ain.4

Copyright © 2009, Cynthi a R. Mabry

1 J.D. 19 83, Howard University School of Law; 1 996, LL M., New York University

School of Law. I am grat eful for the invitation to speak at the 5th A nnual Wells Conference

on Adop tion Law on behalf of the American Academy of Adoption Attorneys. Although

some of the views that I have expressed are those of the AAAA, unless a though t is

specifically attributed to the AAAA through Professor El izabeth Bartholet’s statement, I am

solely responsible for the content of this article. I am grateful for support from Capital

University Law Schoo l and feedb ack that I received from participants at the We lls

Conference on Adoption Law-Contemporary Approaches for Overcoming Challenges to

Permanency, that was held in Co lumbus, Ohio on March 12, 2009.

1 42 U .S.C. § 1996b(1)(A)–(B) (2006). The statute also r eferences foster care

placements, id., but this arti cle only focuses on adoptive placements.

2 42 U.S.C. § 5115a (1994), amend ed by 42 U.S.C. § 1996b(1)(A)–(B) (2006).

3 Memo randum from Dennis Hayashi, Dir., O ffice for C ivil Rights, & Olivia Golden,

Principal Deputy Assistant Sec’y, Admin. for Children & Families, to Office for Civil

Rights Reg’l Managers & Admin. for C hildren & Famili es Reg’l Dirs. (June 4, 1997),

http://www.dhhs.gov/ocr/civ ilrights/resources/specialtopics/adoption /jointguidancewacf.

html [hereinafter Office of Civil Rights Memorandum].

4 Compare, e.g., SUSAN LIVINGSTON SMITH ET AL., EVAN B. D ONALDSON ADOPTION

INSTITUTE, FINDING FAMILIES FOR AFRICAN AMERICAN CHILDREN: THE ROLE OF RACE &

LAW IN ADOPTION FROM FOSTER CARE 44–46 (2008), available at http ://www.

(continued)

320 CAPITAL UNIV ERSITY LAW REVIEW [38:319

In May 2008, the Evan B. Donal dson Adoption Institute (The

Donaldson Institute) again fanned t he flames of the controversy when it

issued its report on the role of race and adoption of African American

children.5 One of The Don aldson Institute’s reco mmendations i s for

Congress to amen d MEPA-IEP so that race could once again be consid ered

as one permissible facto r in the adoption pro cess.6 This article offers

adoption atto rneys’ perspectives regarding the proposed amendment of

MEPA. Part II provides transracial adoption statistics. Part III describes

pre- and post-ME PA uses of race in adoption. Part IV discusses changes in

the ad option process that MEPA-I EP imp osed, and permissible and

impermissible considerations of race under the a mended stat ute. Part V

describes the effects of a transracial adoption on the adoptee. Part VI

explains why caseworke rs and other state agents need to be train ed to

implement MEPA-IEP properly. Part VII cal ls for more diligent

recruitment effo rts for identifi cation of a diverse group of prospective

parents who refle ct the diversi ty of children who are available for adoption.

Finally, Part VIII offers o ther p roposed solutions that will increase

adoptions of chil dren of color.

In general, MEPA-IEP shoul d not be amended. More specifically,

more diligen t efforts shoul d be made to identify a diverse group of suit able

parents for African American children an d other children of color. Within

MEPA-IEP guidelines, caseworke rs shou ld be trained to educate

prospective parents who are interested in transracial adoption about the

unique challenges that they and their children certainly will face afte r a

transracial adoption is finalized . Moreo ver, al l of th e experts and

interested parties must combine their ideas and resources to find ways to

place children of color who are available for adoption into stable, loving,

and permanent ho mes.

adoptioninstitute.org/pub lications/MEPApaper20080527.pdf (arguing that amending the

statute is necess ary), with discussion infra Part Error! Reference source not found.

(arguing that there are alt ernatives to amending the statute).

5 See SMITH ET AL., supra note 4.

6 Id. at 44 (requesting an amendment so that “race [would be considered as] one fa ctor,

but not the sole factor” in sel ecting parents for children in foster care).