Creation of Outgoing Cases Standards of Practice and

Call to Action: Bill Bistransky asked our group of agencies and attorneys who are accredited for Outgoing Cases to develop the Standards of Practice and the Protocol for the category of outgoing cases now included under the Amended Guidance, namely, cases where the Birth Mother/Parents select the adoptive parents who may or may not be US citizens. 

The purpose of this communication is the express intent to work collaboratively with other ASPs/Approved Persons accredited for outgoing cases in the establishment of outgoing adoption protocol as it relates to Birth Mother/Parents adoption that is, 1) standardized in its process and, 2) meets the compliance standards as noted in 22 CFR 96 and 22 CFR 97 by establishing Standards of Practice for Outgoing Cases, and 3) creating a nationally accepted Birth Mother/Parents Placement Preference Questionnaire. This questionnaire will be pivotal in every outgoing infant adoption case as it will 1) demonstrate clearly the intent and motivation of the Birth Mother/Parents, and 2) illustrate the rights of the Birth Mother/Parents to exercise self-determination and informed consent in the placement of the child.

It is important that we complete these Outgoing Standards of Practice in a timely manner so that qualified cases may be processed by our Department of State under a protocol approved by DOS in advance of the case being presented for HCD or HAD approval. It is possible that some cases have already been started in the absence of this protocol so it will help all parties if we move forward with this assignment as quickly as possible

What we offer in the following pages is a summary of what we hope will be a good starting place for the creation of Standards of Practice for Outgoing Cases and a standardized protocol for appropriately identifying Birth Mothers/Parents for outgoing adoptions.

In the Amended Guidance issued in March, it allowed that we are no longer required to prove that there are no US parents to adopt a US child (subsidiarity), but we are required to prove that the birth parent(s) have selected the adoptive parents freely and without being influenced to do so. This interpretation has now allowed for the additional placement option of non-US citizens as prospective adoptive parents. However, we must put written procedures into place that clearly demonstrate that the Birth Mother/Parents defined the scope and parameters they consider as appropriate placement options for the child.

As we have seen from the reaction of the Central Authority in the Netherlands, not all countries may accept our US interpretation of the Hague; i.e. that the subsidiarity principle does not apply to cases where the birth parent(s) select the adoptive parents. It is hoped that other governments will be open to dialogue on this issue, but those discussions will be government to government and are not within the scope of our current assignment.

In India, as a Hague Convention country, the Central Authority (CARA) reviews the dossier of the Prospective Adoptive Parents, and all of the background documents on the proposed child to ensure that the child qualifies for foreign adoption, and must see proof that our USCIS has given pre-approval of the family (171-H), before the Central Authority will issue a No Objection Certificate (NOC) without which the case cannot be processed in India.

We are sharing with you India’s process of issuing a No Objection Certificate for consideration because an important component for the success and timely processing of any outgoing adoption from the United States must include the participation of the Department of State throughout the process. Our DOS needs to have a preliminary review of any prospective outgoing case in order to have the opportunity to determine whether this case meets substantial compliance standards as determined by 22 CFR 96 and 22 CFR 97. This is not an approval of the case; it is a review and statement that all procedures and documentation are in place at that point in time. It is their NOC or a “no objection to proceed.” It is very important that the appropriate Department of State representative, who at this time is Patricia Hickey, be in the loop from the point that a Birth Mother/Parents have been identified for the emigration of a child.

A Standard of Practice to be included in a final draft must state that, “No Adoption Service Provider or Approved Person shall accept application for adoption without the Prospective Adoptive Parent having first received written approval from their Central Authority to adopt a child from the United States under this category.”

The foreign country/Central Authority must also be involved before we, as ASP/Approved Persons, start anything, and their requirements and procedures must be honored and followed in the right order. Although this process will vary from country to country the basic steps are the same: 1) the Receiving Country must approve the family to adopt via a home study; 2) the Receiving Country must issue their approval for the Prospective Adoptive Parents to adopt a baby/child from the US, and 3) the Receiving Country must be satisfied that the child qualifies for the purpose of adoption so that the child may enter the receiving country; and 4) the Receiving Country must be informed by the Sending Country that the child will be granted permission to leave the sending country.

As you read through the following time line or sequence of events it is important to understand that there must be the interactive relationship with both Central Authorities, from the qualification of the case as viable for outgoing and acceptable for the receiving Central Authority, throughout the process as the case proceeds to finalization, including receipt of citizenship in the receiving country.

1. Foreign PAPs obtain an approved home study as well as approval from their Central Authority to proceed with their plan to adopt a child in this category from the US.

2. Foreign PAPs identify and contact an ASP/Approved Person for the purpose of adopting a child.

a.                                          ASP/Approved Person discloses fees and costs, provides information in the form of sample contract, services to be provided, third party services, parent preparations and other information as stipulated in 22CRF 96.

b.                                         For a Hague compliant adoption process, the ASP/Approved Person must disclose to the Foreign Prospective Adoptive Parent(s) that the Birth Mother/Parents will be selecting the Adoptive Parents for her/their child and that the Birth Mother/Parents are given placement options in the form of a questionnaire from which they can freely decide what would be the best for their child, and that the Birth Mother/Parents are required to receive independent counseling. 

c.                                          All disclosure information is signed proving they have been informed in advance of their application/registration.

3. Birth Mother/Parents approaches for the purpose of inquiry to US ASP/ Approved Person for services to place child with a suitable adoptive family.

a.                                        Initial interview between the Birth Mother/Parents and the ASP/Approved Person is for the purpose of information exchange between the Birth Mother/Parent and ASP/Approved Person to establish service plan and scope of services.

b.                                       If discussion continues, Birth Mother/Parents Preferred Placement Questionnaire is completed.

4. ASP/Approved Person arranges for a written interview with the Birth Mother/Parents, which will collect information and define the parameters of the kind of family that the Birth Mother/Parents is seeking. (See attached Birth Mother/Parents Preferred Placement Questionnaire, which can be used by all ASP/Approved Persons for Outgoing Cases)

a.                                        Independent counseling is offered to the Birth Mother/ Parents during this time frame

b.                                       Aspects of federal regulations are incorporated and addressed as it pertains to this portion of the process.

c.                                        If the Birth Mother/Parents selects a non US family, she/they will sign an affidavit which states that she/they selected family X freely without any outside influence, because this family corresponds to the kind of family and lifestyle that was 1) defined through the Questionnaire process and, 2) represents the family she/they want their child to have.

5. If the Birth Mother/Parents have indicated through counseling (independent of the ASP/Approved Person) and the Birth Mother/Parents Preferred Placement Questionnaire that placement of the child with a non-US family can be considered a placement option; it is at this point the ASP/Approved Person sends all information gathered on the perspective Birth Mother/Parents to DOS for review of the process to date and, if viewed as compliant with 22 CFR 96 and 22 CFR 97, a “No Objection to Proceed” (NOP) will be issued by US Central Authority.

6. Matching/Selection Process: After receipt of the NOP, the ASP/Approved Person may offer a Foreign PAP only if this family falls within the parameters described by the Birth Mother/Parents as demonstrated by the Birth Mother/Parents Preferred Placement Questionnaire, which was completed before any specific family was mentioned or suggested and was confirmed through independent counseling.

7. Budget: The budget for the case must be disclosed and presented to all parties i.e. the receiving and sending Central Authorities as well as the Prospective Adoptive Parents. The written budget for the case must be part of the information presented to the Prospective Adoptive Parents prior to the presentation of the identified child and must be approved by the Prospective Adoptive Parent in writing. All services must be described and defined in detail. In other words, it cannot just say "service fees" and a lump sum is given. 

a.                   Payment schedule, refunding of payments as well as terms and conditions for payments and refunding, and the grievance process, must be disclosed in this document.

b.                  Risk Disclosure Statement: The Prospective Adoptive Parent(s) must understand and agree to the financial risk involved if the Birth Mother/Parents change their minds.

8. The ASP/Approved Person contracts with a third party to prepare the Birth Family Background Report which will contain all of the elements required according to the requirements of the Hague Convention. This is completed after the birth of the child.

a.       As the child to be placed is an infant, there is no “Child Background Study”, as in the case of an older child, but it is rather information pertaining to the child’s birth, present health status, and current placement information, which are incorporated into the Birth Family Background Report.

b.      The information on the Birth Family Background Report is presented to the PAP, who acknowledges the receipt of this information and accepts the child in writing based on the information presented.

c.       Also, at some point during this process, the receiving CA will require a copy of the Birth Mother/Parents Family Background Study.

9. After the period of revocation has passed, the case must go to the state or county level court with jurisdiction over the case. It is important in the preparation for the hearing that all elements of the 22 CFR 96 and 22 CFR 97 and all Articles are addressed for the record, even if they do not apply, a statement as to why they do not apply must be a part of the discovery and exhibits provided to the court.         

                       

 10. The resulting court order and ALL exhibits are sent to the US Central Authority with the completed Hague Custody/Adoption Application. There will be a period of time for review during which additional information may be requested. When the application has been approved by the US Central Authority, and depending upon the circumstances of the case, either a Hague Adoption Certificate or the Hague Custody Declaration will be issued to all stakeholders.

13. After receiving the HAC or the HCD, the Foreign CA will issue their approval of the case; sometimes referred to as a Letter of Notice. This will allow the family to return with the child to their country of residence.

a.                   This process will vary from country to country and some of these “approvals” between governments are just now being created and defined.

           

14. The Adoptive Parents applies for a US passport for the child and completes immigration steps for their country.

15. The child enters the supervision period of the adoption process before finalization and completing procedures for permanent citizenship in the receiving country.

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These are the basic steps and the typical order in which they occur.

Please note the importance of the following:

It is essential to start of on the right foot; otherwise there could be increased waiting time, which will be very costly to our PAP.

PAPs need to understand the reality of the length of time and the cost that a lengthy wait creates additional to the adoption service fees. These cases are very expensive for the families. It is the responsibility of the ASP/Approved Person to disclose this to the PAP in writing before any PAP applies for this program. The PAPs cannot leave the country until all formalities are completed. For married couples, the wife can stay and husband can leave but a single parent may have problems with his/her job. For the first case we completed, the wife was in the US for 10 weeks. Part of the reason is that this was a new procedure for everyone involved and the process was definitely not streamlined. However, we must prepare families for delays that can and do occur outside of our control. In this case the families need to be able to stay in the US and not go bankrupt.