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6 Hastings Race & Poverty L.J. [i] (2008-2009)

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Table of Contents


      By Tanya M . W ashington  .................................................  1

   This article advances an orphan-centered constitutional
   challenge to placement bans that highlights the impact
   of these bans on Black orphans. It asserts permanency,
   and   the  stability and  security  that permanent
   placement provides, as interests embraced by the best
   interests of the child standard and protected against
   state infringement by     Substantive  Due   Process
   guarantees. It also argues that orphans possess a
   negative liberty interest in freedom from state action
   that   categorically forecloses  adoption  without
   conducting an individualized review of the orphan's
   needs or the competencies of the potential parents.
   This article's challenge to the constitutionality of these
   bans is situated within the reality that for many
   orphans,   particularly  Black  orphans   who    are
   overrepresented in the child welfare system and who
   are more difficult to place, the option is not placement
   with homosexuals or placement with heterosexuals;
   rather, it is placement or non-placement. This article
   advances the best interests of the child standard as a
   restraint on   the state's parens patriae authority.
   Examining the comparative harm framework utilized
   in the trans-racial adoption context this article, weighs
   the documented harm that orphans experience when
   they remain in extended temporary or institutional
   care against the documented benefits of adoption by
   gay and lesbian parents. It concludes that orphan
   placement bans are an improper exercise of the state's
   parens patriae authority because they violate rather than
   serve orphans' best interests, and the state has no
   constitutionally compelling or legitimate justification
   for categorically foreclosing placement options that
   best serve orphans' interests.

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