December 18, 2019
Alex M. Azar II, Secretary
U.S. Department of Health & Human Services
200 Independence Avenue, S.W.
Washington, D.C. 20201
Re: RIN 0991-AC16
45 C.F.R. § 75.300
Dear Secretary Azar:
Pursuant to RIN 0991-AC16, Child Trends submits these comments to recommend that the Department of Health and Human Services (HHS) maintain the language of 45 C.F.R. § 75.300 (c) and (d), as created through the final rule published in the Federal Register at 81 FR 89393 (Final Rule). Our comments are limited to the proposed changes to § 75.300 (c) and (d) and do not address any other sections of the notice of proposed rulemaking.
Child Trends is a highly respected, nonpartisan research organization focused exclusively on improving the lives and prospects of children, youth, and their families. For nearly 40 years, decision makers have relied on our rigorous research, unbiased analyses, and clear communication to improve public policies and interventions that serve children and families. Our researchers bring decades of experience researching and partnering with state and private child welfare agencies, as well as programs that serve children, youth, and families who have come into contact with child welfare agencies. Many of our researchers also bring lived experience with the child welfare system: as youth in foster care, foster or adoptive parents, social workers, therapists, school counselors, and attorneys.
These comments are based on the existing research base and grounded in our commitment to ensuring that all children and youth in foster care thrive. We appreciate how deeply you value the research on what children and families need to thrive and the extent to which data guide your work. In light of that, we are grateful for the opportunity to share the following research-based reasons to maintain the current language of § 75.300 (c) and (d):
In fiscal year (FY) 2018, over 437,000 children were in foster care, a 10 percent increase from FY 2012. There is clear evidence, grounded in numerous studies, that children fare better when they live with families. When children are removed from their homes, when their placements change frequently, or when they are placed in group home settings, they struggle to achieve the same outcomes as their peers who live in stable family placements. This concept has been woven into decades of child welfare policy at the state and federal levels—most recently in the bipartisan Family First Prevention Services Act, which provides new financial support for preventing entry into foster care and disincentivizes congregate care/group home placements.
We also know, through both our own work and media reporting, that many states struggle to locate and support enough foster families to care for children entering foster care. According to the third round of the Child and Family Services Review in 2015, a lack of appropriate foster homes was a factor in slightly more than one third of children experiencing placement instability. While at the national level the number of children entering foster care declined 1 percent in FYs 2017 and 2018, many states continue to experience increases in children entering foster care. Meanwhile, the number of families wishing to provide care to these children dwindles.
This struggle is reflected in the data: In 2018, 10 percent of all children in care lived in institutions or group homes, over 71,000 children had parental rights terminated and were waiting to be adopted, and over 17,000 emancipated directly from foster care with no permanent family. While these children linger in foster care, many lesbian, gay, bisexual, transgender, queer, or questioning (LGBTQ) adults want to become parents and are ready and willing to parent foster or adoptive children. The proposed change to the Final Rule would eliminate a category of eligible foster parents and potential adoptive parents, further reducing an already too-small candidate pool. According to one study, the economic costs of banning adoption from foster care for would-be LGBTQ parents are staggering, ranging from $87 to $130 million.
We are also concerned that change to this rule could harm children who have been, or could be, placed with kin or extended families, if those placements identify as LGBTQ. Data show an increasing reliance on relatives as foster care placements, with nearly one third of children in foster care placed in relative foster homes. Changes to the Final Rule may prevent LGBTQ relatives from caring for their grandchildren or other related children; this could result in children being placed with families who are strangers or in congregate care settings, rather than with relatives who already know and love them.
Numerous research studies and the American Academy of Pediatrics agree that children receive similar parenting regardless of whether their parents are same- or different-sex couples.  Many research studies show that children adopted by non-heterosexual parents fare as well as children adopted by heterosexual parents.,  Studies have found no difference on the following indicators:
As described above, states are struggling to find enough foster and adoptive families for children in foster care. With research supporting the idea that children raised by non-heterosexual persons can and do thrive, allowing states to discriminate against potential foster or adoptive parents based on LGBTQ status can be damaging to the long-term outcomes of children and youth.
Youth who are in foster care and identify as LGBTQ are overrepresented in the system and have a unique set of service needs, as many have experienced rejection from their families of origin and from foster families due to their sexual orientation. Families’ discomfort with or disapproval of young people’s sexual orientation too often results in the child or youth’s need for foster care. Further, some foster and adoptive families have treated LGBTQ youth negatively, which exacerbates their social and emotional problems and disrupts placements.
Due to this trauma, LGBTQ youth in foster care often have elevated needs for mental health services; however, they may also face greater barriers than their straight peers in receiving needed services and appropriate physical health and educational services. Research clearly indicates that LGBTQ youth experience discrimination within the child welfare system: LGBTQ youth report poor treatment from the child welfare system (e.g., placement instability, frequent group home placement) more frequently than their non-LGBTQ peers. This poor treatment may make it difficult for LGBTQ youth to access the services they need, increase their risk of homelessness, and make it generally difficult for them to thrive.
Youth in foster care already face an inherent set of risks: The Children’s Bureau, through its Capacity Building Center for States, has painted a bleak picture for youth in foster care. Youth who identify as LGBTQ face the following added risks:
By allowing discrimination based on LGBTQ status, the proposed changes to the Final Rule counter the Children’s Bureaus guidance that child welfare systems “affirm sexual orientation, gender identity, and gender expression” and “use LGBTQ-inclusive language.” Foster and adoptive parents and child welfare agency staff must affirm all youth—including LGBTQ youth—in their exploration and development of a positive identity.
Thank you again for the opportunity to weigh in on this important issue. We recommend that HHS maintain the language of 45 C.F.R. § 75.300 (c) and (d), as created through the final rule published in the Federal Register at 81 FR 89393 (Final Rule), to prevent any reduction to the already inadequate number of foster homes in the country by excluding gay, lesbian, and transgender people from fostering or adopting. These parents have been shown to provide safe, stable, and nurturing homes to children who need supportive, capable, and loving parents. If this rule is changed, the risk of harm to LGBTQ youth—a group already at high risk of maltreatment and poor outcomes—is also increased.
For any questions regarding these comments, please contact Elizabeth Jordan at firstname.lastname@example.org or 240-223-9136.
Carol Emig, President
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 The Annie E. Casey Foundation. (2019). Keeping Kids in Families: Trends in U.S. Foster Care Placement. Baltimore, MD. Retrieved from: https://www.aecf.org/resources/keeping-kids-in-families/
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