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Jennifer Swize

Excerpted from: Jennifer Swize , Transracial Adoption and the Unblinkable Difference: Racial Dissimilarity Serving the Interests of Adopted Children, Virginia Law Review 1079 - 1118, (September, 2002)(127 Footnotes)(Student Note)

I am ever conscious of the miracle that these children who possess me to the core of my being are mine and also not mine.
Elizabeth Bartholet, white adoptive parent of two dark-skinned children

TWO-YEAR-OLD Brianna Blackmond was shuffled back and forth between foster care and her neglectful biological mother. On December 22, 1999, the judge handling Brianna's custody case ordered the District of Columbia Child and Family Services to return her to her mother's home. There Brianna lived with her mother, her godmother, and twelve other children in a rat-infested, feces- stained home where the children went without food for days at a time. Two weeks later, Brianna died. Her godmother had beaten her with a belt and struck fatal blows to her head.
Disapproval of the transracial nature of Brianna's foster home seems to have contributed to the judge's decision to return Brianna to her biological mother and, ultimately, to her fate: Brianna was black; her foster parents were not. Although, typical of family court proceedings, the judge did not provide a written opinion, she had openly expressed concerns about transracial placements in response to a similar situation involving another black child. She stated on the record that the "'destruction of the black family [through transracial adoption]"' was driving her "'crazy."'

The horror of Brianna's fate made the front-page news. The stories of thousands of other black children in the foster care system, however, do not. Yet, like Brianna's, theirs are also stories about opposition--by judges, legislators, adoption professionals, and other interested parties--to placing children with parents of a different race. Driven by a commitment to biological matching, these decisionmakers seek to place black children with black parents. The relative lack of black couples available to adopt, though, makes such matches uncommon. As a result, black children available for adoption often wait years for permanent homes, and many are not adopted at all. Instead, they grow up in foster care, institutional facilities, or, like Brianna, are bounced back and forth between foster care and biological parents who are incapable of adequately caring for them. The purpose of this Note is to demonstrate that such devastating conditions are not justified in light of the alternative: transracial adoption, or, more specifically, white parents adopting a black child.

Since transracial adoption surfaced in the 1950s, adoption professionals, legislators, scholars, and other interested decisionmakers have debated its capacity to serve the best interests of adopted children, the legal standard governing adoption petitions. This ongoing debate has analyzed the effects of transracial adoption and its ability to foster the benefits presumptively associated with biological matching, that is, matching a child with adoptive parents in imitation of biologically-formed families. Opponents of transracial adoption, on the one hand, argue that children are harmed by transracial placements because such placements lose the supposed benefits of biological matching by deviating from that model, because the children's racial identity suffers, and because black culture is diminished when black children are raised outside of their racial group. Opponents support a same-race preference in adoption: children adopted within their racial group. Advocates of transracial adoption, on the other hand, suggest that children adopted transracially are not harmed by the diverse family composition and, moreover, that concerns for the preservation of black culture are irrelevant in adoption decisions because the best interests test focuses on the individual child and not on society at large. Advocates also support transracial adoption as an alternative to the practical effect of a same-race preference: the significant delay for thousands of black children awaiting adoption when an otherwise satisfactory white couple is turned down.

This delay into an adoptive home highlights what is at stake in the controversy over transracial adoption: the well-being of black children. Experts agree that delayed placement into a permanent home causes serious and real harm to a child. To truly flourish, children need the permanency of a family, and a child's welfare is positively affected the earlier she becomes part of such a permanent and stable environment. Research shows that adoptive families provide children a healthier environment than foster families or institutional facilities.
Under same-race placement regimes, many black children are not placed in permanent family settings. Instead, they are relegated to a life in foster care, institutional care, or in the care of neglectful or abusive parents. They are denied the benefits of a permanent and healthy home, either for a significant period of time or, often, forever.
Behind the unavailability of homes for black children in a same-race regime is the mismatch in the number of black children awaiting adoption and the number of black parents interested in adopting. There is a relative scarcity of black couples pursuing adoption; at the same time, there is a disproportionately high number of black children waiting to be adopted. Thus, a same-race preference results not only in delays for black children, but also in denials. Because there are not as many black parents pursuing adoption as there are black children waiting to be adopted, applying a same-race preference--postponing a black child's adoption until a racial match is found--often results in no adoption at all.
Transracial adoption does the opposite: It places a black child in a permanent family home, and it does so sooner than if the child were required to wait for a racial match. Where a same-race regime often denies a loving and permanent family to a black child, transracial adoption provides one. As Professor Twila Perry, an active participant in the transracial adoption debate, has stated:

It is indeed a strange "best interests" rule that would prefer a child to remain in an institution rather than be adopted by a family already determined by the same agency to be qualified to adopt. To deny a child a home, even partially on the basis of speculation about potential racial difficulties sometime in the future, virtually ignores the value to a child of growing up in a family setting.

Noticeably absent in the debate over application of the best interests test in adoption is an exposition of the unique benefits that pertain simply to the observable racial dissimilarity between a black adopted child and her white adoptive parents. Coined the "unblinkable difference" by Professor Elizabeth Bartholet, a noted legal scholar and leading advocate of transracial adoption, the term refers to the obvious racial dissimilarity between the parents and the child in a transracial adoption. The term captures a unique element of transracial adoption and lends itself to further consideration of benefits based on that element. It may be that the obvious racial difference contributes to what is in the best interests of the child. If that is the case, then courts and legislators enforcing a same-race preference improperly prevent or delay matches.

The role of legislators and courts in applying and interpreting the best interests standard reinforces the legal nature of the transracial adoption debate. Although social science scholarship has played a significant role in the debate, it is the determination of a court, based on state statutory law, that decides the fate of a child waiting to be adopted. Congress has also weighed in on the debate, passing legislation in 1994 and 1996 that, despite its intent to the contrary, effectively allows race to be considered in adoption decisions. FN24] Adoption laws thus have a significant and direct impact on the children involved. Even if a jurisdiction does not expressly favor same-race adoption over transracial adoption, various actors involved in adoption placements may perceive transracial adoption in a way that affects its acceptance and use. If such actors--particularly judges, adoption professionals, and children's advocates--are swayed by arguments favoring same-race placement, they are likely to make decisions, at least some of the time, that delay or foreclose adoption of black children. If they are persuaded by arguments supporting transracial adoption, they are likely to reduce or eliminate the delay and place black children awaiting adoption with permanent families. Thus, the arguments in this Note will suggest ways for judges, lawyers, adoption professionals, and other involved parties to support transracial adoption and question the same-race preference. The Note will not argue that transracial adoptions should be favored over same-race adoptions. Rather, it will argue that transracial adoption is, at the very least, preferable to the current shortage of black permanent homes for black children.

This Note will challenge the preference for same-race adoption on two grounds. Both of these grounds suggest that transracial adoption serves the best interests of children, but they provide separate and rather different frameworks for lawyers, legislators, and judges to understand transracial adoption. First, the Note will argue that transracial adoption fits within, rather than deviates from, biological matching goals in adoption proceedings. This ground employs the traditional adoption paradigm of biological matching to justify transracial adoption. Second, and more importantly, the Note will demonstrate that transracial adoption offers unique benefits to adopted children, such that the very fact of racial difference helps make adoptive families work. At the very least, these benefits should encourage judges, adoption professionals, and legislators to reevaluate any skepticism they may have toward transracial adoption.
The Note will proceed in four parts. Part I will discuss biological matching, the traditional basis of adoption, and it will offer justifications for it. Biological matching, at first glance, may appear mutually exclusive with transracial placements. Part II, however, will examine whether transracial adoption is actually inconsistent with the notion of biological matching, arguing that transracial adoption is itself a form of a biological match. Because there are biological families containing parents and children with different racial backgrounds, a biological model for transracial adoptive families does exist. Part II thus will provide a framework for those involved in adoption decisions to conceive of transracial adoption as consistent with the traditional understanding of adoption placements.

Part III will briefly trace arguments particular to racial, rather than biological, matching in the transracial adoption debate. It will discuss the debate's focus on racial identity and cultural benefits and note the scholarship's lack of attention to the unique benefits in transracial adoption. Part IV will argue that the benefits of transracial adoption justify such placements, especially when the alternative for black children is significant delay or nonadoption. Rather than work within a traditional understanding of adoption, as the first argument does, this second ground relies on a justification unique to transracial adoption: that the racial dissimilarity between parent and child produces particular benefits. Section A will identify two sets of benefits: direct benefits to the child and indirect benefits by way of parental expectations. The child may directly benefit from this obvious difference because its reinforcement of her biological "otherness" may encourage her to accept both her adoptive and racial identities. The child may indirectly benefit because the obvious difference may reduce unrealistic parental expectations. When parents are reminded about their child's biological "otherness" and there is no racial similarity between parent and child, the child is likely to have freedom to develop her own individuality, as well as be duly recognized for her efforts in accomplishing success, rather than have others inaccurately credit her accomplishments as inherited from her parents. Section B will use the notion of "passing" in the disability context to further explore the benefits of transracial adoption. Just as an exposed disability makes it unlikely that the individual can hide his impairment and reject his identity as disabled, the obvious racial dissimilarity in transracial adoption prevents a child from passing as her parents' biological offspring and rejecting her adoptive status.
The Note will conclude that two separate grounds argue in favor of transracial adoption. First, transracial placements do not necessarily contradict the biological matching model in adoption placements. Thus, it is possible for judges and others involved in the adoption decision to conceive of transracial adoption as fitting within the traditional understanding of adoption matches. Second, and more importantly, transracial adoption offers unique benefits that serve the interests of a child waiting to be adopted. The realistic alternative to transracial adoption is nonadoption. When weighed against that harm, the unique benefits of transracial adoption argue in favor of placing black children with available white couples.

[a1]. J.D., University of Virginia, 200