St. Mary's Law Journal


Jo Beth Eubanks


Legislative amendments must go further than limiting race from being a primary factor in adoptions; amendments must eliminate race as an acceptable factor. Diverging opinions of “race matching” in foster care and adoption exist. Administrative policies regulating adoption hold that same-race placement, between the adoptive parent and child, is a primary consideration when awarding custody in Texas. Basing child placement on the race or ethnicity of the parties involved raises serious constitutional concerns. The best interest standard is the predominant method in determining child placement, for both custody and adoption proceedings. The premise of the best interest standard is prioritization of the child’s welfare when deciding placement. The best interest standard has had alarming consequences when applied to transracial adoptions. Courts include differing ethnicity and race as factors when applying the best interest standard. In cases challenging the use of race as an adoption factor, the Court found child welfare a compelling interest, and therefore the factor survives strict scrutiny. While differing race may be a factor, it cannot be the sole factor in determining the adequacy of child placement. Enforcement of the requirement has been dubious as it requires the court to determine, as a matter of degree, whether race considerations were heavily favored sufficient for race itself to be the sole factor. Arguments proliferate on both sides of the issue. Some believe that the importance of children in maintaining their cultural heritage is tantamount. However, many studies show that children of transracial adoption have successfully integrated with their families. Additionally, utilizing race as a factor necessarily creates a barrier slowing adoption of children in need of a home. Texas must amend its child-adoption laws to remove any consideration of race as a factor for adoption.


St. Mary's University School of Law