OUTGOING ADOPTIONS

Emigration of children from the United States for Adoption by Parents who are

Citizens of other Countries: What should happen when things go wrong?

Cynthia R. Mabry-KingProfessor of LawHoward University School of Law cmabry@law.howard.edu Capital University Law SchoolMarch 12, 2015

THESISHundreds of American children have been adopted by parents who are citizens of other countries such as Austria, Canada, Ireland and the Netherlands. The Intercountry Adoption Act provides that accrediting agencies and other approved persons must comply with specific procedures when a child emigrates from the United States. For example, a background study on the child must be completed and the agency or approved person must certify that reasonable recruitment efforts and diligent searches have been made to identify prospective adoptive parents in the United States and that there is not a suitable placement for that child in the United States. In addition, a certification that placing the child outside of the United States is in the child’s best interests is required. See generally 42 U.S.C.A. § 14932. See also 22 C.F.R. §§ 96.53, 96.55. Many of these children are African American children who are adopted by non-African American parents. This article explores the process of emigration; what happens to children who are adopted by parents who are citizens of another country, culture, and heritage; and, what should happen when things go wrong with those adoptions. This article concludes that with proper precautions to protect the children’s best interests, emigration of American children should be an alternative for children who cannot find permanent homes in the United States.

OUTGOING OR CONVENTION ADOPTION

“an adoption of a child resident in the United States by

an individual residing in another Convention country.”

42 U.S.C.A. § 14902 (10) (2015).

U.S. CHILDREN ADOPTED BY PARENTS FROM OTHER COUNTRIES

YEAR 2008 2009 2010 2011 2012 2013

NUMBER

25 26 43 73 99 84

TOTAL 350

U.S. Department of State, FY 2008- 2013 Annual Reports on Intercountry Adoption, available at http://travel.state.gov/content/dam/aa/pdfs/fy2013_annual_report.pdf

U.S. STATES FROM WHICH CHILDREN EMIGRATEFlorida

Hawaii

Illinois

Indiana

Maine

Minnesota

Missouri

New Jersey

New York

South Carolina

Texas

Utah http://travel.state.gov/content/dam/aa/pdfs/fy2013_annual_report.pdf

WHICH U.S. STATE SENT THE MOST CHILDREN ABROAD?

QUERY: 47 OF 99 ADOPTEES IN 2012

45 OF 84 ADOPTEES IN 2013

FY 2012 and 2013 Annual Reports (indicating that Florida sent more than ninety children abroad).

Austria

Canada

Curacao

Germany

Ireland

Mexico

Netherlands

South Africa

Spain

Switzerland

Tanzania

United Kingdom

WHERE ARE AMERICAN CHILDREN PLACED?

FY 2010, 2011, 2012, 2013 Annual Reports, supra, Table 3: Outgoing (Emigrating) Adoptions

WHICH AMERICAN CHILDREN ARE PLACED ABROAD?

Most of the children are newborns.

Most of the children are African-American.

WHY U.S. PARENTS ARE NOT ADOPTING THESE CHILDREN

There is a lack of healthy white infants waiting for adoption.

Some parents fear that a birth parent will return to claim a child.

Statutes or adoption policies prevent some parents from adopting.

Some parents want children who look like them.

Some parents want to help children in another country.

Some parents are concerned about how their family members and the community will react to a transracial family.

Some parents are concerned about their ability to raise an African American child in the United States.

Some race-matching still is practiced and preferred by birth mothers and sociologists.

WHO IS ADOPTING THESE CHILDREN?

Same-sex, heterosexual and single parents:

Most of the parents are Caucasian.

AMERICAN CHILDREN AND THEIR PARENTS

WHY EMIGRATION OF U.S. CHILDREN OCCURS

WHY THE U.S. HAS BECOME A SENDING COUNTRY

A birth parent prefers an outgoing adoption.

Children of color are adopted at a lower rate in the U.S.

There are not enough U.S. applicants who seek a child of color.

Many waiting children are older.

WHY FOREIGNERS WANT TO ADOPT U.S. CHILDREN

There is a lack of waiting children in their country.

U.S. adoptions are faster.

Adoption laws in their country may prevent them from adopting a child.

Racism is less of a concern in their country of origin.

BENEFITS FOR THE ADOPTEE

The child will have a permanent, loving home.

The world is becoming more global. Study Abroad Programs, http://www.goucher.edu/study-abroad/study-abroad-programs

Technological advances allow frequent communication and access across borders.

The child will develop a world view.

The child will have the potential to learn another language and culture.

The adult child will have more marketable skills.

The child will be able to maintain his/her United States citizenship.

There is post-placement supervision.

Prospective parents may sign a written agreement to cooperate with post-adoption visits. See, e.g., Ill. Admin. Code , tit. 89, § 333.90 (2015).

PLACEMENT CONCERNSLoss of Identity

Loss of Culture and Heritage

Loss of Medical/Social History

Loss of Birth Family Connections

Lack of Post-adoption Reporting

Lack of Consistent State Laws

Photographs of families in this presentation appeared in Sophie Brown (for CNN), Overseas adoption rise—for black American children (September 17, 2013), http://www.cnn.com/2013/09/16/world/international-adoption-us-children-adopted-abroad/.

APPLICABLE STATUTES AND REGULATIONSFOR THE OUTGOING ADOPTION PROCESS

The child is adoptable.

After due consideration to placement in the U.S., an intercountry adoption is in the child’s best interests.

Consents obtained from birth parent(s) and a mature child were informed, freely given and not induced by payment.

A birth mother’s consent was given after the child’s birth.

The effects of adoption are shared.

Reports from the receiving country and the sending country’s Central Authority are provided.

The child’s ethnic, religious and cultural background are considered.

The prospective adoptive parents are suitable for adoption.

Secure and appropriate transfer of the child has been arranged.

Hague Adoption Convention, art. 4, 15-21.

RELEVANT HAGUE ADOPTION CONVENTION REQUIREMENTS

INTERCOUNTRY ADOPTION ACT PROVISIONS

The purposes [] are--

(1) to provide for implementation by the United States of the Convention;

(2) to protect the rights of, and prevent abuses against, children, birth families, and adoptive parents involved in adoptions (or prospective adoptions) subject to the Convention, and to ensure that such adoptions are in the children's best interests; and

(3) to improve the ability of the Federal Government to assist United States citizens seeking to adopt children from abroad and residents of other countries party to the Convention seeking to adopt children from the United States.

42 U.S.C.A. § 14901(b)(3) (2015).

REQUIRED STATE COURT REVIEWS AND VERIFICATIONS

The adoptive placement is in the best interests of the child;

A child background study has been completed; 

The adoption service provider made reasonable efforts to place the child in the U.S. and has been unable to do so;

The U.S. Department of State determined that this placement is in the best interests of the child; 

A home study on the prospective adoptive parents has been completed; 

The receiving country’s Central Authority has provided a declaration that the child will be permitted to enter and reside there permanently; 

The Central Authority has provided a declaration of consent to the adoption, if necessary; and,  

 Articles 4 and 15 through 21 of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention), 32 I.L.M. 1139 (1993), have been met.

See generally IAA, 42 U.S.C.A. § 14932 (2015) (listing accrediting agencies’ and other approved persons’ duties); 22 C.F.R. §§ 96.53, 96.54, 96.55 (2015).

DEMONSTRATING REASONABLE EFFORTS TO FIND A

TIMELY ADOPTIVE PLACEMENT IN THE U.S.(1) Disseminating information on the child through print, media, and

internet resources designed to reach potential prospective adoptive parents in the United States;

(2) Listing information about the child on a national or state adoption exchange or registry for at least 60 days after the child’s birth;

(3) Responding to inquiries about the child’s adoption ; and,  (4) Providing a copy of the child’s background study to potential

prospective adoptive parent(s) in the United States.

22 C.F.R. § 96.54(a) (2015).

STATE LAWS ON OUTGOING ADOPTIONS

The accredited agency or approved person‘s mandatory responsibilities include:

(1) Conducting a background study on the child

(2) Obtaining proper consents

(3)“Due consideration to the child's wishes or opinions”

(4) Transmission of proper documents to the proper authorities

(5) Compliance with all placement standards in 22 C.F.R. § 96.54

(6) Keeping the Central Authority and the Secretary informed of the adoption process and efforts to it

(7) Reporting the adoption to the Secretary.

CAL. FAM. CODE § 8924(a)-(d) (West 2015).

OTHER CONSIDERATIONS

*Child's/birth parents’ preferences

*Full disclosure of outgoing placement

*Diligent efforts to place siblings together

*Compliance with ICWA

*Due consideration of the child’s upbringing, ethnic, religious and cultural background

*Prepare the child in an age-appropriate manner

*Identification of an entity that will provide reports, if required

22 C.F.R. §§ 96.53, 96.54 (2015).

FINALIZATION

*United States state court issues an adoption decree

or

*State court issues an order of custody

42 U.S.C.A. § 14932(a)(3), (b) (2015).

PROSPECTIVE/ADOPTIVE PARENTS MUST:

1) Seek a visa from the receiving country;

2) Submit an appropriate application and documents for:

a) Hague Adoption Certificate

or

b) Hague Custody Declaration; and,

3) Provide post-placement reports, if, the sending state’s laws require reporting.

http://travel.state.gov/family/adoption/convention/convention-4196.html

AN OPPORTUNITY FOR CHILDREN IN CHILD WELFARE

WHO ARE THE CHILDREN IN CHILD WELFARE?

*Children in Foster Care 402,378

*Children Adopted 50,281

*Children Waiting For Adoption 101,840

*African American 24,312

*Hispanic 23,281

Preliminary FY Estimates as of July 2014, http://www.acf.hhs.gov/sites/default/files/cb/afcarsreport21.pdf

WHO SHOULD BE ADOPTABLE?

Children whose parents’ rights have been terminated.

Older children who are willing to live in another country.

Children who have relatives who live abroad.

CULTURE AND HERITAGE CONCERNS IN OUTGOING ADOPTIONS

The Hague Adoption Convention provides that :

“(1)  If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall -a)  prepare a report including information about his or her identity…;b)  give due consideration to the child's upbringing and to his or her ethnic, religious and cultural background…”

Hague Adoption Convention, art. 16(1).

CULTURE IN THE OUTGOING ADOPTION PROCESS

The agency is instructed to “take[] all appropriate measures to give due consideration to the child's upbringing and to his or her ethnic, religious, and cultural background.”

“The agency or person thoroughly prepares the child for the transition to the Convention country, using age-appropriate services that address the child's likely feelings of separation, grief, and loss and difficulties in making any cultural, religious, racial, ethnic, or linguistic adjustment.”

22 C.F.R. § 96.54 (e) and (g) (2015).

PROSPECTIVE PARENT SCREENING

Prospective parents should be willing to respect a child’s ethnic, religious and cultural background.

Prospective parents should be willing to educate a child about her ethnic, religious and cultural background.

Prospective parents should be willing and able to make homeland visit(s).

Prospective parents should be willing to consider other possibilities of connecting with the United States (i.e., college education and vacations).

Prospective parents should be willing to consider an open adoption (in a form that is comfortable for them and the child), when it is appropriate, and could include specified persons (relatives, siblings, extended family members, foster parents, persons who have vital background information about the child).

DISRUPTIONS OR DISSOLUTIONS

THE SECRETARY OF STATE MUST BE CONSULTED BEFORE ARRANGEMENTS ARE MADE TO RETURN A CHILD TO THE U.S.

22 C.F.R. § 96.54(k) (2015).

STATE DEPARTMENT’S CAUTIONARY STATEMENT

“Disrupted and dissolved outgoing cases are likely to be sensitive and extremely traumatic for the child. These cases also involve substantial coordination with the foreign government of the receiving country. The child retains U.S. citizenship, but may also have acquired citizenship in the receiving country. The consultation requirement allows the Department to become aware of the facts of a particular case and take case-specific action as appropriate.”

Department of State, Bureau of Consular Affairs, A Guide to Outgoing Cases from the United States 24 (December 2011) (hereinafter Guide to Outgoing Cases).

RETURN PROCEDURE

“The agency or person consults with the Secretary before arranging for the return to the United States of any child who has emigrated to a Convention country in connection with the child's adoption."

22 C.F.R. § 96.54(k) (2015).

STATE DEPARTMENT’S GUIDANCE

“The transfer of the child back to the United States, if appropriate, should take place under the same conditions and safeguards as the initial transfer to the receiving country.”

Guide to Outgoing Cases, supra, at 24.

TRANSFER PROCEDURE

“The agency or person takes all appropriate measures to ensure that the transfer of the child takes place in secure and appropriate circumstances, with properly trained and qualified escorts, if used, and, if possible, in the company of the adoptive parent(s) or the prospective adoptive parent(s).”

22 C.F.R. § 96.54(h) (2015).

ILLINOIS DISRUPTION PROCEDURE

“The Illinois placing agency shall retain jurisdiction over the child to determine all matters related to custody, supervision and care of the child and the final status of the case. This includes situations in which the adoption is disrupted and the agency regains custody of the child and finds an alternative adoptive family for the child. This jurisdiction shall also include the authority to effect or cause the return of the child to the United States or the child's transfer to another location.”

Ill. Admin. Code, tit. 89, § 333.90 (2015).

DISRUPTION RECOMMENDATIONS

Parents should be instructed regarding how and when to contact a designated person in the Secretary’s office before a child is returned to the United States.

A specific protocol for disruption should be produced and publicized.

Parents should receive written and oral instruction during the adoption process and during post-adoption visits.

CONCLUSION AND RECOMMENDATIONS

These adoptions provide opportunities for more children to be placed in a permanent, loving home.

In the process, all children’s best interests should be paramount and those interests should be protected.

Procedures should ensure that children’s interests are protected.

Uniformity of state laws is needed for:

obtaining supplemental medical history and identifying information;

post-adoption reporting until the child reaches the age of majority; and,

post-adoption contact with family members and others in the U.S.

There is a need for a clear protocol on what happens if a child needs to be returned to the U.S. before or after an adoption.

SELECTED SOURCESThe Intercountry Adoption Act of 2000, 42 U.S.C. §§ 14901-14954 (2015).

The Intercountry Adoption Universal Accreditation Act of 2012, 42 U.S.C. § 14925 (2015).

Department of State, Bureau of Consular Affairs, A Guide to Outgoing Cases from the United States (December 2011).

A Web-Guide for State Authorities on Outgoing Adoption Cases from the United States to Another Convention Country 6-7 (2008), available at http://travel.state.gov/content/dam/aa/pdfs/web_guide_state_authorities.pdf.

Galit Avitan, Protecting Our Children or Our Pride? Regulating The Intercountry Adoption of American Children, 40 CORNELL INT’L L.J. 489 (2007).

D. Marianne Brower Blair, Admonitions or Accountability? U.S. Implementation of the Hague Adoption Convention Requirements for the Collection and Disclosure of Medical and Social History of Transnationally Adopted Children, 40 CAP. U. L. REV. 325 (2012).

Cynthia R. Mabry, Love Alone Is Not Enough in Transracial Adoptions--Scrutinizing Recent Statutes, Agency Policies, and Prospective Adoptive Parents, 42 WAYNE L. REV. 1349-1422 (1996).

Sophie Brown (for CNN), Overseas adoption rise—for black American children (September 17, 2013), http://www.cnn.com/2013/09/16/world/international-adoption-us-children-adopted-abroad/.

Dawn Davenport, Born in America, adopted abroad (October 27, 2004), http://www.csmonitor.com/2004/1027/p11s01-lifp.html.

Columbia Homeland Tours, http://www.barkeradoptionfoundation.org/post-adoption/colombia-homeland-tours.

Note: All rights are reserved. This presentation will be used to publish an article in 2015.