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Virginia Regulatory Town Hall
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10/11/11  3:35 pm
Commenter: Tanya Washington, Associate Professor of Law, Georgia State College of Law

Virginia, Do It For The Children!!
Virginia, Do It for the Children!!
Tanya Washington
Associate Professor of Law
Georgia State University College of Law
There are far fewer prospective parents available to provide permanent homes to children waiting to be adopted in Virginia. This supply-demand reality requires an expansion of the pool of prospective parents. Discriminating against prospective parents, for reasons unrelated to their ability to provide for the best interests of children in need of permanent homes, serves to unnecessarily diminish the limited supply of available parents, condemn greater numbers of children to experiencing the harmful consequences of institutionalized care, and runs counter to Virigina’s goal of increasing public agency adoption rates, which in 2010 were the second lowest in the nation.
The “best interests of the child” is a constitutionally protected legal standard that controls adoption and foster care placements. Its focus is on that which serves children’s physical, social, and intellectual well being. In the adoption context, the Federal Government and Virginia recognize that the optimal option for orphans is permanent placement, rather than temporary or institutionalized care. The long-term social, educational, developmental and emotional costs to children raised in foster and institutional care are well documented. Studies report inferior outcomes in the areas of educational performance, employment rates, income and incarceration rates and reflect a trend of poorer outcomes for children who are not placed in permanent homes. Neither these outcomes, nor the use of discriminatory placement practices that increase their prevalence, serve children’s best interests. For orphans classified as “special needs” because of unique placement challenges (e.g., children six years or older, minority children, sibling groups, and children with mental, physical or emotional disabilities), excluding greater numbers of prospective parents further limits placement options. This will certainly result in greater numbers of the most vulnerable orphans being confined to state institutional facilities and experiencing the adverse consequences of growing up in and aging out of institutionalized care.
Parental fitness (i.e., the ability of prospective parents to provide for that which serves a child’s best interest) should be measured according to that which is related to a child’s well being. Those who would render categories of prospective parents ineligible to adopt for reasons unrelated to their parental competencies ignore mountains of credible social science data.   We simply cannot allow the fate of thousands of children waiting to be adopted in Virginia to be determined according to personal beliefs and ignorance. Discriminatory placement considerations will condemn many Virginia orphans to the harmful effects of extended foster and institutional care; rather than allowing them to experience the benefits of stability that characterize permanent placement. 
State implementation of discriminatory placement practices invites constitutional challenges on behalf of orphans whose rights are being infringed. The adverse effect of discriminatory placement practices on orphans  violateschildren’s liberty interests. It also  breaches the state’s fiduciary duty to act in furtherance of the children for whom it has legal responsibility. Discriminatory exclusions foreclose permanent placement opportunities without conducting the individualized determination of the needs of the orphan, the qualities of the available placement and the competencies of the prospective parents, which the best interests standard requires. By limiting or foreclosing a child’s most beneficial placement option, the Commonwealth of Virginia is selecting her most harmful placement option in violation of her constitutional rights. It is in the best interests of orphans to experience permanency and its attributes, and the state has a fiduciary duty to refrain from permitting the use of discriminatory placement practices that deprive children of that essential childhood experience. In the absence of credible, scientific evidence that excluded demographics of parents are unfit to provide for the best interests of Virginia’s orphans, the state’s endorsement through licensing of private agencies with discriminatory placement practices is vulnerable to judicial invalidation.   
The inclusion of protections against discrimination in Virginia’s child placement regulations serves the best interests of children by ensuring that greater numbers of orphans are placed in permanent adoptive homes and by decreasing the amount of time orphans are confined to temporary and institutional care. Discriminatory placement practices harm children and religious beliefs neither justify nor change this indefensible result. Those who raise religious objections to the placement of waiting children with available parents who, but for discriminatory practices, are fit to parent do so at the expense of orphans. The choice is not, as many supporters of discriminatory practices assert, between placement with moral/ appropriate parents or placement with immoral/ inappropriate parents. These discriminatory placement practices reduce the choice of thousands of waiting children to placement or non-placement in families willing and able to care for them, raise them and love them. To the many Virginia children who need homes, discriminatory bars to placement all but extinguish the possibility that they will ever have a family of their own.
On the eve of National Adoption Month, during which the Commonwealth highlights adoption to increase public awareness and participation in the adoption process, it is imperative that Virginia incorporate non-discriminatory regulations that will allow for the realization of its goal of increasing the numbers of orphans who will be placed in loving adoptive homes with parents equipped to meet their needs. To do otherwise is unconscionable and unconstitutional.
CommentID: 20690