This is to advise staff that Public Law 104-188, the Small   Business and Job Protection Act of 1996, Section 1808, "Removal of Barriers to Interethnic Adoption," eliminates the "permissible consideration" language of the Multiethnic Placement Act (MEPA) of 1994.  The 1994 law permitted an agency to consider a child's race, color  or national origin and the capacity of the foster or adoptive parents to meet the needs of a child of a specific background as one of a number of factors used to determine whether a placement was in the child's best interest.  With Public Law 104-188 agencies are no longer permitted to routinely consider the race, color or national origin of a child or the foster or adoptive parent as a factor used in making placement decisions.

The  Prohibition against considering race, color or national origin in making placement decisions includes all the following:

• children voluntarily placed with DCFS for foster care;
  

• children removed involuntarily by DCFS and placed into foster care:
  

• non-dependent children relinquished to DCFS for purpose if adoption (i.e., community cases); and
  

• dependent children relinquished to DCFS for the purpose of adoption. 

DCFS may not honor the request if a birth parent to place his or her child with a foster or adoptive parents of a specific race, color or national origin.  If such a request is made, CSWs must advise parents that they are unable to honor this request because to do so would violate federal law.

Only the most compelling reasons may serve to justify the consideration of race, color origin as part if an individual case placement decision.  Any decision to consider the use of race, color or national origin as a necessary element of a placement decision requires strict scrutiny and must be based on concerns arising out of the special circumstances of an individual case.  For example, an adolescent may object to adoptive placement with a family of a particular race.  In California, a child over the age of 12 (i.e., 13 years or older) must consent to his or her adoption.  In such an individual situation, DCFS is not required to dismiss the child's expressed unwillingness to consent in evaluating potential adoptive placements.  While the CSW should counsel the child, the child's beliefs of what would make him or her most comfortable should not be dismissed and the CSW should consider the child's willingness to accept the family as a factor that is critical to the success of the adoptive placement.

Individualized consideration of race, color or national origin, when warranted by special circumstances, may not be misused as a  generalized racial or ethnic screen or to circumvent the intent of the law.  Revised policy will be released shortly to more thoroughly explain changes in the law.  Until then, staff is advised that the federal government, under the auspices of the Department of Health and Human Services (DHHS), is closely monitoring compliance with the law.  DHHS is vigilantly examining foster care and adoption cases to assure enforcement of the law and to specifically identify individual attempts to evade the prohibition against the consideration of race, color or national origin in making placement decisions.  Public and private foster care and adoption agencies that receive federal funds and are found in violation of the law are subject to severe financial penalties.  All DCFS staff are required to be in compliance with this law.