I begin by including here a factual record and testimony from a trial in which foster parents - the Drummonds - are fighting for the right to adopt a mixed-race child, Timmy, who has been living with them for two years. This case throws into relief both of the issues that dominated our discussion of child welfare policy, namely the prevailing assumptions in law and policy about family preservation and about race-matching. Certainly, the assumptions have changed over time, at least in letter if not in spirit. Elizabeth Bartholet describes legislation during the last decade meant to speed up permanent placement of children and eliminate race-matching practices. She also suggests that real-world policy lags behind the dictates of law. In any case, the controversy described here took place in the mid-1970s, before the changes she describes.

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The record before us . . . discloses the following facts:

The child, Timothy, known throughout as Timmy, was born out of wedlock on November 17, 1973 to a white mother by a black father. After one month in the care of his natural mother, he was taken into the care of the defendant Fulton County Department of Family and Children Services under the authority of Georgia law because of the "unfitness" of the mother. On December 15, when he was less than one month old, he was placed in the home of Robert and Mildred Drummond, the plaintiffs, as foster parents. At this time, Mrs. Drummond was 49 or 50 years old and her husband was 37 or 38 . . .

For 15 months, until March 10, 1975, the Drummonds cared for Timmy in their home as a child of their own in a manner subsequently described by the caseworkers and supervisors . . . as "excellent," "loving," "extremely competent" so that at that time he was described by such personnel as "an extremely bright, highly verbal, outgoing 15-month-old baby boy."

Home visits by foster home caseworkers were infrequent, but some contact was maintained by telephone, especially when the Drummonds desired to leave town for trips.

Some time late in 1974, it came to the attention of the then current caseworker Barbara Osgood, that the Drummonds wished to adopt Timmy. She had not then seen Timmy or the Drummonds, but the problem of the Drummonds' request was submitted to a "staffing." This was a conference which included Osgood's supervisor, Mrs. Grape, Mrs. Dallinger, the adoption supervisor, and one or two other personnel. It is apparent that none of these staff people had seen either Timmy or the Drummonds. Miss Osgood's description of what occurred at the staffing follows:

A. Well, it centered around the fact that we knew the Drummonds would like to adopt Timmy, and Miss Grape talked a great deal of time about she was black and . . . experience that she had known or heard of of black or mixed race children growing up in white homes. And she had, you know, some real feelings that this was not a good plan to this type of child, that they face too many problems as a result of that kind of placement.

So after, you know, some discussion was made about that, the decision was made for Miss Grape and Miss Dallinger to talk with the Drummonds and to try to express, you know, some of our concerns about what we felt was in Timmy's best interest; and, also, the question was brought up that if the Drummonds were not amenable to our plan, would we move Timmy to a black foster home feeling that, you know, it would be better if we were going to have him adopted by a black couple, to have him in a black foster home if they was going to be any length of time before he was free.

Q. Was there a decision made at that staffing that you recall? Was there a vote taken in any way?

A. No. There was no vote taken. I think I commented at the time that it seemed to me that the decision had already been made.

Q. What do you feel the decision was?

A. I think the decision was that it would be in Timmy's best interest to be adopted by a black couple.

On March 10, [1975], Mrs. Grape and Mrs. Dallinger had the Drummonds bring Timmy to the office to carry out the decision made at the "staffing." Mr. Drummond testified that at the conference: "Mrs. Grape said she thought Timmy should be adopted by a black family."

Q. What did you say when you were told that Miss Grape . . . that she thought it would be best for Timmy to be placed with a black couple?

A. Well, my wife and myself thought that we should be able to adopt Timmy, that we would like to have him.

Q. All right, Was there anything said about it being to his advantage for him to grow up in the black community?

A. I think Miss Grape said something to that effect.

Q. Did you and your wife ever accept the fact that you couldn't adopt Timmy, that he had to be adopted by black parents?

A. No, we did not.

Q. Did you ever do anything about it after . . . this March meeting . . . toward adopting Timmy?

A. Well, we told them we would like to adopt him and told the case worker.

Mrs. Drummond's testimony as to this interview was as follows:

Q. Okay. What did they tell you about whether they were going to permit you to adopt him?

A. They told us that - Miss Grape did the talking, and Miss Grape said that since Timmy was a mixed child, that she felt, and she felt that the Department felt, that Timmy would be better off raised in a black family.

Q. Did you accept that at that time?

A. I tried to accept it. But I could not.

Q. What further steps did you take to try to adopt Timmy?

A. I called and talked with the case workers and repeatedly told them that we wanted to adopt Timmy. And then when Mrs. Osgood came out to our home, we told her how much we wanted to adopt Timmy and would they please give us another meeting, that we would try and let them know how much we wanted Timmy.

Q. Okay. Back up to the March meeting. Were you told at that meeting that you were too old to adopt him?

A. No.

Q. When did you move to Douglas County?

A. Within eight months.

Q. Did anyone ever tell you it would hurt your chances to adopt Timmy if you moved to Douglas County?

A. No, Ma'am.

Q. Would you have moved to Douglas County had you known?

A. No, indeed, had we known.

Q. Are you willing to return to the City of Atlanta?

A. We're packing to move back to Fulton County to the City of Atlanta now.

Q. In the March meeting, did Miss Dallinger or Miss Grape discuss the community in which they thought Timmy should live?

A. . . . Miss Grape stated that she felt that he would be better off raised in a black community.

A memorandum for the files was prepared by Mrs. Grape as follows:

On 3/10/75 Mr. and Mrs. Drummond, foster parents, were in the office with Timothy Hill, foster child. Nancy Hartzog kept Timothy in the playroom while Helen Grape and Kay Dallinger had a personal conference with Mr. and Mrs. Drummond. The Drummonds now admit that Timothy is a mixed race child of Black/White heritage. They did some superficial denial of the idea that this fact would cause Timothy any problems in remaining in their home. They did not, however, push for them to be allowed to adopt Timothy. As a matter of fact, they stated they could let Timothy go to a young, energetic, religious, adoptive couple. They expressed primary concern that he not be moved from their home to another foster home as they believed he would not receive the quality of care they are giving him in another foster home. They feel that separation from Timothy will tear their hearts out but that they can do it because it would be best for Timothy in the long run. They seem quite accepting when Ms. Grape and Ms. Dallinger verbalized for them that Timothy would, in our opinion, make a better adjustment and have a better chance in life with a Black couple in the Black community.

We further explained our efforts to work with the natural mother, the expected time involved before we could get either a voluntary release or be prepared for court action to terminate parental rights. We said the mother was not a bad person but a sad person - immature [and] not ready for responsibility. We stated we needed to make further efforts to rehabilitate her before a final decision is reached. We estimated a minimum of six months to one year before we will even know if adoption is the plan for Timothy. Ms. Dallinger explained that even [some] . . . months more would be involved in working with him to fully know Timothy, select the right adoptive home, and slowly move Timothy. Ms. Drummond cried in anticipation of eventual separation. Both Mr. and Mrs. Drummond expressed appreciation in knowing the truth. The truth being 1) we are working towards adoption for Timothy outside their home; 2) it may take one to two years to accomplish this goal; 3) the rehabilitation of the mother's home is a slim possibility but still a possibility; 4) because of the excellent care the Drummonds have provided for Timothy, we (the agency) are more than willing for the Drummonds to keep Timothy on a foster care basis until a permanent plan can be made if the Drummonds are willing to keep him under these circumstances. The Drummonds committed themselves to giving the child all the love and care they can give him as foster parents and to eventually helping Timothy to separate from them and move to a permanent adoptive home. They reemphasized that they could 'love and let go.'

ADDITIONAL NOTE: We agreed to keep them informed of any progress that we make in working with the natural mother or in court action. Ms. Grape suggested 11/75 as a good review date since Timothy will be two years old that month. Timothy was observed on this date to be an extremely bright, highly verbal, outgoing, 15 month old baby boy. His complexion is light olive. He has a definite Afro and is a physically appealing mixed race child.

A letter was then sent to the Drummonds which is copied here verbatim:

March 17, 1975

Mr. and Mrs. Robert Drummond
2390 Fabin Street, N.W.
Atlanta, Georgia 30318

Dear Mr. and Mrs. Drummond:

This is to confirm with you our understandings and agreements during our office conference on 3/10/75. As you will recall, on this date we explained our efforts to work with Timothy's natural mother and the time involved before we could get either a voluntary release or be prepared for court action to terminate parental rights. However, we also explained that we would continue further efforts to rehabilitate Timothy's natural mother before a final decision was made. The estimated time span would be approximately six months to one year before this decision would be reached. If adoption becomes legally possible, months will be involved in working with you, fully knowing Timothy, selecting the right adoptive home, and slowly moving Timothy into a permanent adoptive home.

Both of you expressed appreciation in knowing specific steps that the department would take in working with Timothy. These steps are:

1) we are working towards adoption for Timothy outside your home;

2) it may take one to two years to accomplish this goal;

3) the rehabilitation of the mother's home is a slim possibility but still a possibility;

4) because of the excellent care you have provided for Timothy, the agency is happy for you to keep Timothy on a foster care basis until a permanent plan can be made, if you are willing to keep him under these circumstances, and you stated in our meeting that you wanted to keep him until a permanent plan could be made. You committed yourselves to giving Timothy all the love and care that you could give him as his foster parents and also eventually to helping Timothy to separate from you and move into a permanent adoptive home. Thank you for your love and concern for this precious child.

Sincerely,

Ms. Kay Dallinger
Casework Supervisor III -
Adoptions

Mrs. Helen Grape
Casework Supervisor III -
Foster Care

Mrs. Drummond testified that they continued to make known to their caseworker thereafter their desire to adopt Timmy. This is confirmed by Mrs. Osgood, their caseworker, who testified:

A. After I read this [the memorandum of March 11 . . .] I thought, well, that perhaps things had been resolved with the Drummonds and that it appeared that they were in agreement with us. So I went out to do the foster home re-evaluation interview thinking this was decided and that they would have, you know, have been in agreement with this plan for Timmy. I was really surprised when I got out there, because to hear their interpretation of it, that they were not in agreement with it at all. And, you know, I don't know whether it is because they had changed their minds in the interim period or whether we had heard what we wanted to hear in the interview, but at any rate, they certainly were not in agreement with what this states when I went out there.

Q. What did they want to do when you went out there? What was their opinion? What was their approach to you?

A. Well, they had stated that they had been talking with their foster care worker who was Mollie Bartlett at that time and were requesting an interview with the adoption staff to, again, state their desire to adopt Timmy. Mrs. Drummond said she had not heard anything about it, and so I told her after I wrote up my evaluation that I would write a memo to Mrs. Dallinger bringing it to her attention that the Drummonds were still interested. I did that soon after the evaluation.

Q. Go ahead.

A. I received a reply stating that the Drummonds would be given an interview after Timmy's termination hearing.

On August 15 [1975], Miss Mollie Bartlett wrote a memorandum to Mrs. Dallinger as follows:

On 3-10-75, you met with Mrs. Grape and the Robert Drummonds, Timmy's foster family. At the conclusion of the conference the Drummonds were planning to care for Timmy until he was freed for adoption and to help him adjust to the adoptive home when adoption occurred. For a short time they seemed to fully accept the premise that Timmy would be better placed in a black home.

Today, after nearly six months, the Drummonds are requesting an opportunity to be reconsidered as adoptive parents for Timmy. They have no reservations about their acceptance of a mixed race child. Mrs. Drummond's health had once seemed questionable, but her doctor found gallstones and as soon as she has surgery, she foresees no further health problems.

Mrs. Dallinger replied:

In response to your memo regarding the Drummonds' renewed interest in adopting Timmy, I have learned that the termination petition has been filed and the hearing set for 9/25/75 at 9:30. Under the circumstances the Drummonds should bring Timmy to the office for the hearing, and you should bring him to the juvenile court.

I personally feel that the Drummonds are back into their earlier denial pattern. The approach I recommend for you is to stall with no encouragement. Example . . . 'No one can be considered for the adoption of Timmy until he is freed. Adoption staff would have to carefully examine any possible home for Timmy, particularly a white home such as yours. I don't want to encourage you. The best thing for you to do is think about this some more and discuss this with the adoption staff. If and when he is freed, I have advised adoption that you have changed your mind.'

Thank you for alerting us to the situation.

Thereafter, about August 25, Mrs. Osgood made the re-evaluation as a result of which she described the foster parents in the following terms.

The foster parents provide excellent care. They are unusually attentive to the child's medical and emotional needs and feel as if they are the 'natural' family.

Under the heading on the evaluation form "Particular Strength of Home," Mrs. Osgood wrote:

The Drummonds have accepted a mixed race child and have handled the attendant problems well. They are a very loving, warm family.

Finally, she made the following recommendation for the Drummonds as foster parents:

I recommend this home for a child of either sex, age 0 to 3.

This re-evaluation report was accompanied by a memorandum again addressed to Mrs. Dallinger:

I recently did the foster home re-evaluation on the above named couple As you will recall on March 11, 1975, you and Helen Grape interviewed Mr. and Mrs. Drummond regarding their expressed interest in adopting Timmy. For your convenience a copy of the notes from that conference are attached.

I spoke with Mr. and Mrs. Drummond for over two hours and during this time I also had a chance to observe Timmy. As a result of my conversation I have the distinct impression that the Drummonds did not adequately express their feelings on the March 11th interview. In the foster home re-evaluation they stated unequivocally and emphatically their desire to adopt Timmy. They rejected the notion that he would make a better adjustment in a Black home by pointing out that Timmy has always been around White people and this has been incorporated into his self-concept. They do not understand why we would remove a child from a home where he has been since birth and replace him because we believe he will have a better 'chance' in the Black community.

The Drummonds expressed their intention to give Timmy every opportunity possible to develop as a human being, regardless of race. I talked with them about community acceptance and the possibility of Timmy dating a Black girl when he gets older. The Drummonds acknowledged that Timmy would be 'different,' but felt he would have problems in the Black community also. They noted that Timmy would make his own decisions as to who he would date and they would have no objections to his choice. They pointed out that they make no secret of Timmy's Black heritage and felt that they would deal forthrightly with Timmy on this subject.

Timmy is an exceptionally well-adjusted child. There is no question that he is the center of this household. He talks in sentences, counts to ten, and shows off for visitors by strumming the guitar and singing gospel songs. The fact that he is bright, active, and friendly is a tribute to the excellent care he is receiving from these parents.

Because of the intensity of their feelings for Timmy, the Drummonds are again requesting a conference with you to discuss adoption. I believe they will explore every possibility in their efforts to keep Timmy first within the agency, but using outside resources if it becomes necessary.

I hope this information will be helpful. I understand Timmy's termination hearing is set for September 25th, 1975.

To this memo Mrs. Dallinger replied:

Thank you for your memo of 9/3/75 concerning this case. I have discussed the case with Ms. Staten. We feel it is inappropriate to decide the matter prior to termination proceedings on 9/25/75. I will throw the issue open to the adoption committee at the end of September, if he is freed. Regardless of any decisions made, you may assure the Drummonds that they will be given further interviews with me or other adoption staff about this matter. Early October would appear to be the best time for this and I will see that they are contacted. Please loan me any case files you have on the Drummonds.

On September 25, the Juvenile Court of Fulton County entered what is known as a "Termination Order," ending the parental rights of Timmy's natural mother and placing his custody in the Georgia Department of Human Resources, Division of Family and Children Services, granting the Division the right to place Timmy for adoption.

Thereupon, on October 3 a "Social Study on Child to be Placed" was made for Timmy. It was made by an adoptions caseworker named Phyllis Jonas. This study described the child as having "medium olive" skin, "dark brown," "thick rather coarse and wavy hair" and as being a "very attractive child," normal physically and mentally, stating "child is well adjusted and happy. He is a bright verbal child."

This study was followed by an "evaluation interview" by caseworker Brenda B. Payne. Her report, which contained a recommendation that the Drummonds be permitted to adopt Timmy, is quoted in full:

Mr. and Mrs. Drummond arrived early for their interview. They brought Timmy with them. He continues to be an extremely alert, happy and attractive child. While I interviewed the Drummonds, Mrs. Holloway, Timmy's worker care[d] for him in the playroom. The Drummonds were obviously very nervous and anxious at first.

Initially I reviewed the past events with them, their meeting with Mrs. Dallinger and Mrs. Grape, the decision made at that time, and their change of heart later. As Ms. Hauben's contacts indicated, the Drummonds have had a chance to think about their interview last spring, and have come to the conclusion that adoption by another couple may not be what is best for Timmy.

The Drummond's expressed their feelings that although everyone wants to do 'what's best for Timmy' on re-considering they seriously wonder if placing him in another home, and putting him through the trauma of a move would be in his best interest. The agency seems to be saying that putting him n a black home would be the prime consideration thinking 'what's best for Timmy.' The Drummond's stated they felt they knew Timmy better than any agency personnel, they've cared for him, watched him grow and develop, and perhaps they know best what would be best for him.

I told the Drummonds that part of my functions was to sit down with them and think together what would be best for Timmy - that frankly none of us were really sure of what would be best at this point. I spent a good deal of time in finding out about the Drummond's orientation toward blacks and the black community. Although the Drummond's admitted to having some degree of racial prejudice in long years past, due to their age and society's focus . . . they felt that their . . . [views] had change[d] . . . before getting Timmy. Mr. Drummond states he's had lots of relationships with blacks thru his job, and has worked under a black supervisor.

He spoke in positive terms of these relationships. Mrs. Drummond said she had worked as a nurse several years ago and had worked closely with many black people and she also said that with their contacts with people in the gospel singing world, many more blacks were involved as musicians and performers than in years past. They had worked closely with many black performers and been able to form very good relationships with them.

Although there are no blacks living in their area in Douglasville, Mr. Drummond remarked that they live in a subdivision with many young families. He stated they had never had any problems with Timmy's being accepted by the neighbors, and seemed to feel that the young adults of today are much more accepting of people of other races. The Drummond's indicated that Timmy had been enrolled in an integrated kindergarten setting, but Mrs. Drummond was advised to take him out for awhile by Timmy's doctor due to his bouts with tonsillitis. The public school nearby is integrated; however, the majority of the children who attend are white.

We talked some about whether or not Timmy understand[s] he's different yet. They said that he's really too young to yet be aware that he is, but as he gets older they certainly will try to be as open with him as they can about his heritage and race. (According to Ms. Holloway with her contacts with Timmy it is evident he's not yet aware of any colors yet and cannot identify by name colors like red or green, or cannot say what color he is.)

Although Timmy has not yet noticed that he is different Mr. and Mrs. Drummond were certainly able to acknowledge that other people have noticed. They are aware that Timmy will be noticed and are aware they will have to help him through many hard times in his life. Mrs. Drummond said she knows they will have to handle people's reactions to Timmy; they certainly don't deny they've already had to handle stares and comments from people of both races. . . . Mr. Drummond says people stop and ask what nationality he is and he tells them. He says he wants Timmy to be proud of the fact that he is part black. Mr. and Mrs. Drummond both said that although they've [sic] certain Timmy may face ridicule or rejection at times, they feel if he has their love and support, as well as his gift of openness, friendliness, and very high intelligence, that this would enable him to have a happy and secure life. Mrs. Drummond expressed her belief that [God?] was responsible for making Timmy such an exceptionally gifted and friendly child, so that in spite of problems about his race he will be liked and accepted by those who come to know him personally.

The Drummonds are very much aware of Timmy's exceptional mental abilities. They definitely plan to send him to college if he wants to go, and stated they hoped maybe he would want to be a professional person such as a doctor or lawyer. I feel they recognize that he may need much more stimulation as he gets older, and seemed willing to consider outside resources, special schools or tutors in order to help him reach his potential.

When we talked in detail about some of the specific problems Timmy might face because of his race, Mrs. Drummond reacted in a strongly protective manner. She said if she ever heard of a teacher or anyone else giving him trouble because of his race, she'd 'go down there and give them a piece of my mind.' I tried to help them see that while it would be good to support Timmy during these times that if they're over protective they wouldn't give Timmy the chance to become independent and able to stand up for himself. I noted, that one of the advantages Timmy would have in a black home would be that he would be given survival skills, would be given guidance from people of the black race as to how to protect himself and win difficult situations. It would be much easier for a black parent to give him these skills than would a white parent, as they would be teaching him from their own experience. Although the Drummond's understood what I was saying, they felt that the most important thing Timmy needed to be secure and happy about himself, was to have parents who truly loved him.

We talked about how the rest of the Drummond's extended family felt about Timmy. The Drummond's said that all of their family, their brothers and sisters, and Mrs. Drummond['s] mother dearly loved Timmy. Mr. Drummond's parents are deceased. Mrs. Drummond said her mother called her before our meeting today to say she'd be 'waiting by the phone to hear the results.' Evidently the whole family is behind the Drummonds 100% and Timmy is fully accepted by them all.

I spent a lot of time in talking with the Drummonds about things they might have to face with Timmy - the social pressures, the feelings of insecurity he might have, and especially problems which might arise during adolescence in regard to dating and peer group relationships. I gave them true case examples from articles I'd read about blacks raised in white homes, although I did have to admit there were both very negative and positive experiences these children had. The pros and cons were about equal in those situations. I showed the Drummonds pictures of our foster child Jackie who is a mixed race five years old, showing how much he had darkened over the years.

As I expected, none of these things seemed to change the Drummonds mind. They felt they love Timmy now and will always love him regardless of what color he becomes or what culture he wants to identify with. They indicated that the agency thought they were good enough to raise Timmy up till now, so on what basis other than race were we unwilling to consider them as adoptive parents. Mr. and Mrs. Drummond were not hostile, toward this agency, but they again stated they felt that the fact that they loved Timmy and he loved them was the most important thing for the agency to consider.

I tried to discover how far the Drummonds would be willing to prepare themselves should they be allowed to raise Timmy. They would be willing to do anything we suggested to go through a series of intensive interviews with black caseworker to help them understand the black culture and heritage, to read books and other literature in order to educate themselves in the black experience, and to talk with their own black friends at work about their feelings and experiences about being black. They were extremely cooperative and seemed willing to accept any help we could give them. They were very interested in hearing about the Buechle couple and would be very interested in being put in touch with them.

At the present time our relationship with the Drummonds remains good. They are not hostile or angry and are very willing to accept supervision or guidance from us. However, they did make it clear they loved Timmy enough to fight for him and would take the matter to court if necessary. I do fear if this result[s], and the Drummond's win in court we would have damaged any chance we would have to give them guidance and help in raising Timmy, as our relationship with them would most probably be destroyed. They are pushing for a decision to be made soon. Mrs. Drummond says this situation has caused them lots of worry and heartache; she said Timmy is at a crucial period in his life, and he needs to be given some security, instead of living under this threat of removal. The Drummonds understand the decision is not mine to make, that it will be a committee decision, they do ask that this matter be resolved soon for everyone's sake. I told the Drummonds they would be notified of our decision as soon as possible.

Observation and Recommendations:

In thinking about the agency's position in this case I still can see it remains a two-sided thing. In my brief contact with this family I have both positive and negative feelings as have other workers.

I was concerned about how intensely the Drummonds relate to Timmy; it turns me off a little to see them getting him to 'perform or do tricks.' The reasons for this may be positive or negative - he may be a novelty or toy for them, or they may just be over-emphasizing his achievements and getting him to perform to prove to caseworkers they are taking good care of him and stimulating him. I don't know what may be the cause, but I definitely hope this pattern would not continue as he grows up. I also understand from other workers that Mrs. Drummond has an almost hypochondriac focus on Timmy's health. There definitely is a fear he could be pampered, spoiled and over protected by them.

Also, on considering the Drummonds age and background, it does seem their attempts to help Timmy understand his black heritage will be admittedly artificial though sincere and honest in motivation. Whether or not the Drummonds can become comfortable with the subject of race over the years, so that their attempts will be natural and spontaneous is anybody's guess.

I also am very much aware that in intellect and intelligence Timmy is far above the Drummonds. Although they can offer adequate stimulation now, who is to say how much they'll be able to stimulate Timmy as he grows up. Certainly to 'waste' his intelligence would be a shame, although if he develops a trauma because of being moved he could become a very intelligent culture but perhaps insecure and unhappy individual.

On the positive side I can definitely see that Timmy is loved by the Drummonds, and he loves them. They do not seem to have tried to 'hide Timmy' and are constantly taking him to public places, gospel shows etc. They seem to have so far instilled in him a good feeling about himself and he seems happy and well adjusted. So far they seems [sic] able to deal with his racial identity in an acceptable manner. The Drummonds do have more involvement with blacks than we had first thought, and do seem to be in the early stages of developing healthy attitudes about black people.

The fact that their other family members are supporting them about Timmy is also a positive.

Because the Drummonds are not from the kind of upper-middle class achievement oriented home most caseworkers come from it does make it hard to visualize seeing Timmy grow up 'successfully' in this kind of culture. However who really can say what kind of environment is best to grow up in?

In conclusion, I personally feel for several reasons we should let Timmy remain with the Drummond's, in spite of our concerns. Either way there are risks and no guarantees. The fact that there presently are no appropriate homes for Timmy, and the fact that he might also experience some rejection by some members of the black community due to his 'whiteness' is also a consideration. Also my concern that we most probably would be facing court action by the Drummonds with some doubt as to the 'strength of our case' is also a factor. For Timmy's well being I do not feel that a long court involvement would be beneficial regardless of what the courts decision is. The Drummonds are evidently living under a great deal of stress and eventually this may be transferred on to Timmy.

I do feel that a group consensus, is probably the best way to decide what to do. This certainly is too risky a situation for any one person to make the decision alone. I hope the group will be able to meet and decide some thing soon.

Acting on Mrs. Payne's recommendation, a group was called on November 11 to conduct a "staffing" . . . Of the 19 persons present at the staffing the record does not indicate that more than four had seen Timmy or the Drummond family. Of the six or seven caseworkers and supervisors who had seen the child and his foster parents, it appears that Mrs. Grape, Mollie Bartlett, and Barbara Osgood were not present at the staffing. The record does not clearly establish the precise time, place or form of the final action which the . . . Department or its officials took that denied the Drummonds' request to adopt the child. Neither does it show precisely what authority any one of the participating staff persons had to make the final decision. It appears that the officials treated the vote taken at the staffing as representing final denial of the Drummonds' request. In any event, Mrs. Drummond testified that a few days after the staffing, she and her husband were called to the office and met with Mrs. Dallinger and Mrs. Holloway and that the former said to them: "I am sure that you are both very anxious to know what has happened and we called you in to tell you that the decision still stands, that we feel that Timmy will be better off adopted by a black couple or a black family."

At the trial, during her testimony, Mrs. Dallinger gave a different interpretation of the[earlier] March conversation, saying that the reference to black family was to indicate that it would be more likely that a black adoptive home would be available. Her testimony follows:

Q. Actually, you had made a tentative decision at the March meeting to place him in a black home if you gained the parental rights?

A.I thought that would be the likelihood of the home that would be available, but even all the way through after the final decision was made when I asked the State for homes, I did not ask for black homes. I asked for whatever homes were available for this child.

Q. Reading again from your testimony in your deposition on page twenty-six, 'So there had been a request to adopt that you know' - talking about the Drummond - 'is that right? And the request had been made in spite of your knowledge of his mixed race, of his being a mixed race child?

A. That's right.

Q. Did you verbalize an opinion that he would be better, make a better adjustment and have a better life with a black couple in the black community?

A. Yes, I did.

Q. Did Miss Grape verbalize that?

A. Yes.

Q. Actually, you had made a tentative decision at that time to place him in a black home if you gained - had his parental rights terminated; is that correct?

A. That's right.'

Q. Did you make that -

A. That was a tentative decision that he would go into what we thought would be probably a black home. You have to understand the supplies of homes that are available.

Mrs. Dallinger testified further about the November meeting:

Q . . . . In the November meeting did you tell Mr. and Mrs. Drummond that the decision had been made to place Timmy in a black home?

A. Yes, because then we had made the final decision that they could not adopt, and we had then selected the home, so, yes, we knew the home then.

Q. Did you have the -

A. That was definite then.

Q. At the time you told them?

A. Uh huh. In November. I told the characteristics about the home that had been selected, you know, that I thought maybe would help them realize Timmy was going to go to a good home.

Q. At the time I'm talking about, maybe, the staff meeting, the decision was made there to place Timmy in a black home.

A. In the staffing meeting?

Q. In the staffing meeting.

A. No. We didn't decide where to place Timmy. We decided that we would place him for adoption outside of their home. We were trying to make a decision in that meeting whether it would be in Timmy's best interest to leave him with the Drummonds and allow them to adopt him or place him up for adoption outside, to seek adoptive homes outside of, you know, of them.

Q. Did you not decide at that meeting that Timmy would be placed in a black adoptive home?

A. No. I don't believe so. I think we talked about, again, in terms of the supply, we thought that was probably what would be available. . . .

Q. You are denying that the decision was made at that meeting to place Timmy in a black home?

A. We talked in that meeting about mixed children and where they seem to adjust better and what kind of black couple - what kind of a white couple could accept these children, you know, what were the characteristics of those couples. I think our general feeling, you know, at the end of that meeting that it would likely be a black home, you know, available for him that would fit those requirements, but like I said, you have to understand the procedure. After we rule out one home, then we look at the pool of homes available, and we look at all homes available. But in the minds of all of us at the meeting -

Q. Did you have a black home available? . . .

A. Well, we knew about the pool of homes in Fulton County. That is the homes that we recruit, study, develop, this kind of thing. And we had already looked there, and we knew there was no suitable white or black homes. There were both black and white homes approved and waiting for children, but none that we thought met Timmy's other needs.

So we didn't feel like we had a home in Fulton, and we knew we would have to ask the State. And we've had a number of mixed race children lately, and we haven't gotten but one white home that I know of in a long time for a mixed race child. That was a home studied by Child Service and Family Counseling, and then we've had one mixed marriage home, you know, available in the county that we could have looked at for Timmy, which we did, I believe. So we already, you know, had some awareness of what the supply of homes available for him were. The supply didn't include any white homes that we knew of."

Finally, Brenda Payne, whose re-evaluation recommendation was that the Drummonds be permitted to adopt Timmy, and who was present at the staffing, testified at the trial:

Q. Did you interview the Drummonds in connection with their desire to adopt a child by the name of Timmy?

A. Yes.

Q. Did you also participate in a staff meeting in November in which the question was considered?

A. Yes.

Q. I hand you Plaintiff's Exhibit 15 and direct your attention to the paragraph numbered seven.

A. Yes.

Q. In the second paragraph there, it says: 'After discussion, the staff was convinced if we left him in his present environment, we would be giving him problems he would not have if placed in a black home.'

A. I've lost where that is. Where would that be?

Q. Excuse me. The second paragraph under number seven.

A. At present Timmy is so young? Oh, I see. Okay.

Q. And then it goes on to say: 'A vote was taken, and it was a group decision that it would not be in Timmy's best interest to leave him in the Drummond home and that we would begin immediately searching' - is that what that is - 'and' -

A. Immediately to - I don't know. 'Seek' maybe? 'Seek,' maybe, an appropriate -

Q. Search immediately for an appropriate black adoptive home; is that correct?

A. Yes.

Q. Okay. Was that the decision at that meeting?

A. Yes. That the Drummonds would not adopt Timmy.

Q. What about that you would seek a black adoptive home?

A. I believe that was the decision."

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Would you have made the same decision? Why or why not?

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This testimony is take from Drummond v. Fulton County Department of Family and Children's Services, 547 F. 2d 835 (Fifth Circuit Court of Appeals, 1977). The Drummonds had sued to overturn the decision of the Department of Family and Children's Services. Lower courts denied them any rights against the Department. In a rehearing en banc, the Fifth Circuit Court agreed that the Drummonds had been denied neither their due process rights nor their equal protection rights under the Fourteenth Amendment (563 F.2d 1200 [1977]).

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Three things stand out in this testimony. First, note the slowness of the process - a slowness predicated on the operating assumption by the Fulton County Department that ample time must be given to "rehabilitate" the birth mother. We don't know what it was that prompted it to take custody of Timmy at one month of age, but the Department did not initiate proceedings to terminate the mother's parental rights until two years later. In the meantime, Timmy grows up in the Drummond's home.

Second, hovering over the whole affair lies the assumption within the Department that race-matching is the most desirable outcome - but the specific argument for matching in this particular case is never made out in any detail. Indeed, the last case worker to examine the Drummonds recommends that the balance of all considerations - including considerations of race - favors letting them adopt. That recommendation isn't followed, and we don't know why expect for a kind of general presumption all along that Timmy would be given to a black couple.

Third, and related to both the foregoing: what beliefs were at work in the Department about the development of children? Timmy had formed strong bonds with loving adults - the only "parents" he had known. Would abrupt removal by the Department - for reasons he would never fathom - constitute a relatively minor upset in his life, soon fogotten, or a major trauma that would color the rest of his development? The Department must have been operating on some premise here, since it was putatively acting in Timmy's best interest. What was the belief?

> That the trauma of separation would not be great?

> That the trauma of separation would be great but would be offset by the greater trauma Timmy would suffer growing up in a white family?

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In all of this Timmy, of course, had no say. In the litigation, a separate attorney was appointed to speak for Timmy's interests, but none of the attorney's arguments were given any weight, since as a matter of law, said the higher courts, Timmy's interests were already" protected" by the Department of Family and Children's Services. Likewise, the Drummonds, because they were foster parents, had no cognizable rights in this matter, either. Had they been Timmy's biological parents, they would have possessed a whole battery of Constitutional rights to assert before any court, but as his "psychological parents," they had none.

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The issues surrounding the kind of adoption in Timmy's case throw up many hard questions about (i) the rights of biological parents and how we ground them, (ii) the interests of non-biological caretakers and of larger communities in the raising of a child, and (iii) the rights of children themselves (and to what extent we do, or do not, give any force to those rights through law and policy).

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TO SHIFT DIRECTIONS: When we take the interests of children seriously, what does this imply about prenatal care and responsibility? It may be bad policy for all sorts of reasons to adopt punitive measures against women who abuse drugs or alcohol during pregnancy, but is one of the reasons we resist punitive measures the fact that fetuses have no rights?

Suppose we accept the proposition that fetuses have no rights (at least in their first trimester). What does this mean? Suppose we grant that it means a woman violates no one's rights if she elects to terminate a pregnancy. What else does it mean?

Consider the following case. A woman in the early stages of pregnancy elects to take part in a scientific experiment involving fetal surgery. The fetus will be affected in a way that, should it be born, it would suffer painful disabilities all its life. But it won't be born: the mother plans to terminate the pregnancy as soon as the experiment runs its (short) course.

Now consider a second case. A woman in the early stages of pregnancy elects to take part in a scientific experiment involving fetal surgery. The fetus will be affected in a way that, because it will be born, it will suffer painful disabilities all its life. It will be born because the women plans to carry her pregnancy to term, and she also plans to abandon her baby at birth so that the ordeal of caring for such a child will fall on someone else.

If we accept the premise that fetuses have no rights, are we required to make the same moral judgment about the women in both these cases? If we contend that the second woman acts in a morally despicable manner, does that contention rest on any claim about fetal rights as such? Or does it rest only on the rights of the fetus-as-a-single-stage-in-the-life-of-a-person? In other words, does it rest only on the proposition that persons have the right not to have their future interests wrongfully injured by deliberate and malicious actions now?

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