**School of Law \-- Boalt Hall**

**University of California**

**Berkeley CA 94720**

**Prof. Hollinger's direct line: 510-642-1419**

**Joanhol@law.berkeley.edu**

December 15, 2003

U.S. Department of State

CA/OCS/PRI

Adoption Regulations Docket

Room SA-29

2201 C Street, NW

Washington, DC 20520

RE: Docket Number State/AR-01/96

Dear Sir or Madam:

**\[this file combines the two files sent earlier today...hard copies
have been sent via fedex tracking number 8402 5776 4364\]**

Thank you for the opportunity to submit comments on the proposed
regulations published in the Federal Register, September 15, 2003 at
pages 54064-54122 to implement the Intercountry Adoption Act of 2000, 42
U.S.C. Sec. 14901-14954 (IAA) and the 1993 Hague Convention on
Protection of Children and Co-operation in Respect of Intercountry
Adoption.

I congratulate the Department for its heroic effort to draft proposed
regulations that are consistent with the principles and goals of the
Convention and the IAA while also being responsive to the concerns of
many different kinds of service providers, adoptive parents, adopted
individuals, birth parents, and various immigration, international,
child welfare and adoption law experts. The combination of fiscal and
structural requirements with performance-based standards for accrediting
agencies or approving persons to provide adoption services in Convention
adoptions is, on the whole, excellent. I especially admire the
requirements for insurance coverage and the prohibition against blanket
waivers of liability for negligence or intentional wrongdoing, as well
as the proposal for a "primary provider" to be responsible for
coordinating the services required for each adoption and to be legally
liable for the actions of its supervised providers in the United States
or other Convention countries. For the most part, the regulations are
written in a clear, straightforward style and the Preamble offers cogent
explanations of why the Department chose to resolve some controversial
issues of statutory interpretation and policy one way rather than
another.

I have a number of specific concerns and suggestions that are intended
to clarify some ambiguities in the proposed regulations and to enhance
the likelihood that the procedures for accrediting or approving adoption
service providers will result in a system that genuinely protects
children and their birth and adoptive families.

[Comments on the Definitions in Subpart A, Sec. 96.2 of the proposed
regulations.]{.underline}

[First]{.underline}, I propose the following clarification of the
definition of "adoption" for purposes of the IAA:

"For purposes of the Intercountry Adoption Act of 2000 (IAA), adoption
means the judicial or administrative procedure that establishes a legal
parent-child relationship for all purposes between a minor and an adult
who is not already the minor\'s legal parent and that satisfies the
requirements for the minor child\'s

(a) immigration to the United States under the Immigration and
    Naturalization Act (INA), 8 U.S.C. Sec. 1101(b)(1)(E), (F), and (G);
    1151(b)(2)(A)(1), \[and any other relevant INA provision\], or

(b) emigration from the United States under the IAA, 42 U.S.C. Sec.
    14932 \[and any other relevant IAA or INA provisions\]."

ALTERNATIVELY, the definition could be:

"For purposes of the Intercountry Adoption Act of 2000 (IAA), adoption
means the judicial or administrative procedure that establishes a legal
parent-child relationship for all purposes between a minor and an adult
who is not already the minor\'s legal parent and that satisfies the
requirements of the IAA for recognition of the adoption in the United
States, 42 U.S.C. Sec. 14931, 14951 or the requirements of the IAA for
the minor's emigration to another Convention country, 42 U.S.C. Sec.
14932."

The suggested alternative definitions of "adoption" are proposed for the
following reasons:

1.  There is no federal law definition of adoption. Neither the Hague
    Convention nor the IAA define "adoption." Instead, they each refer
    to the kinds of adoption that are covered by the Convention --"only
    adoptions which create a permanent parent-child relationship," Art.
    2\-- and that are entitled to recognition and full effect in the
    United States under the IAA, 42 U.S. C. Sec. 14931, 14951. The
    implementing regulations should be consistent with the references to
    the kinds of adoption that are subject to the Convention and the
    IAA. The regulations should not create the misleading impression
    that there is a federal definition of adoption or that this
    definition is the only kind of adoption legally recognizable in the
    United States.

2.  The creation of the status of parent and child between individuals
    who are not each other's biological parent or child is historically
    and constitutionally within the authority of State governments, and
    more specifically, within the authority of state courts. Similarly,
    State law remains the primary source for determining the legal and
    economic consequences of an adoption. Given the IAA's specific
    provision disfavoring preemption of State law, 8 U.S. C. Sec. 14953,
    and the Department's eagerness to defer to State law except to the
    extent necessary to implement Convention and IAA provisions, it is
    important to connect the definition of "adoption" to the specific
    context of Convention and IAA provisions.

3.  The definition of "adoption" should be specifically connected to the
    requirements for immigration, emigration, and recognition in this
    and other Convention countries in order to avoid the misleading
    impression that adoption always requires the termination of the
    minor child's relationship to any former parent. In the United
    States, for example, perhaps as many as 40-50% of all adoptions are
    stepparent adoptions in which the child's existing custodial parent
    retains parental rights while the adopting stepparent becomes the
    child's second parent. In states that have enacted a version of the
    Uniform Probate Code, children adopted by stepparents can inherit
    from both of their "former" parents as well as from their adoptive
    stepparent. Perhaps half or more states allow other kinds of second
    parent adoption in which one legal parent retains parental rights
    and obligations when a child acquires a second parent through
    adoption. Moreover, more than half the states now recognize various
    forms of "open" adoption which terminate an original parent's rights
    and duties but nonetheless allow enforceable agreements for
    post-adoption contact between an original parent and a child adopted
    into another family.

4.  The Department's proposed definition of "adoption" refers to the
    "formal act" that establishes the adoptive parent-child
    relationship. This is too vague and potentially encompasses a
    private "formal" declaration of an adoption without any
    administrative or judicial oversight, something not contemplated by
    the Convention or the IAA. It is preferable to indicate that for
    purposes of the Convention and the IAA, the adoption has to be
    granted through an administrative or judicial procedure or process.

5.  By more carefully defining adoption in relation to the specific
    provisions of the Convention and the IAA that affect immigration,
    emigration, and recognition, the regulations can accommodate future
    modifications of those provisions. For example, the IAA authorizes
    the Secretary of State to establish procedures for the adoption of
    children by individuals related to them "by blood, marriage, or
    adoption," 42 U.S.C. Sec. 14952. The characteristics of such
    adoptions may or may not "fit" the Department's proposed definition
    of adoption, but would fit within either or both of my suggested
    definitions.

[Second,]{.underline} the definition of "Convention adoption" may be too
narrow. As the preamble indicates, p. 54075, the Convention and the IAA
have differently worded provisions for what constitutes a "Convention
adoption." The Department has proposed a rule that would limit the IAA
provisions to adoptions in which "the child has moved or will move from
one Convention country to another," p. 54094. Under this formulation,
the IAA would presumably not apply to adoptions of a child residing in
another Convention country by a U.S. citizen who does not intend to move
the child to the U.S. or to another Convention country. How is that
intention to be manifest? Will it be a durational test \-- e.g. an
intention to move promptly or within 90 days or within six months? Or
will it be an intention to move before the child is twenty-one years of
age? What about a U.S. citizen who originally intends to reside for an
indefinite period of time in the child's country of origin, but whose
employer transfers him or her back to the U.S., or who otherwise decides
to move to the U.S.? Would the validity of the adoption for purposes of
the child's immigration to the U.S. suddenly be called into question if
the IAA provisions had not been followed?

If the IAA protections for children and their birth and adoptive
families are greater than the protections currently available in other
circumstances in which a U.S. citizen adopts a child residing in another
country, why should they not be extended to cases in which the U.S.
citizen adoptive parent does not plan on an immediate move to the U.S.?
If the U.S. citizen wants to ensure that the adoption of the
foreign-born child will be entitled at some point in the child's life to
full and complete recognition in the U.S., it would be advantageous to
have the foreign adoption completed subject to IAA procedures and
standards. The Convention does not bar the United States from offering
greater protections or from protecting adoptive families that do not
immediately move from one Convention country to another. Unless there
are specific and adverse reasons for limiting the scope of the IAA
definition of "Convention adoption," I would favor tracking the
statutory language in the 42 U.S. C. Sec. 14902(10).

[Third]{.underline}, there are several other definitions that should be
clarified. For example, it would be helpful to have some examples of
what "monitoring a case" means as one of the six statutory adoption
services and how specifically it differs from the exempted "child
welfare services." Does monitoring entail arranging for child welfare
services post-placement --see adoption service (6) or is it limited to
overseeing the legal steps that have to be completed for an adoption to
become final? Does monitoring require that the adoption service provider
have legal custody of the child or can legal custody be granted to the
prospective adoptive parent(s) or remain with a public body in this or
another Convention country? Are providers of child welfare services
exempt from the accreditation or approval standards only if they do not
assume custody of the child? Should the definition of child welfare
services include services in cases of dissolution as well as disruption?
Is this a reference to legal or physical custody or to both? I am not
proposing answers to these questions, but am requesting that the
Department come up with more specific examples of the distinction
between "monitoring" and providing "child welfare services."

In the interests of making a timely submission of my comments, I am
transmitting these comments on the proposed definitions now and will
submit additional comments later today. My interest in the proposed
regulations arises from my academic and policy work on adoption laws and
practices, as manifest in my service as Reporter for the proposed
Uniform Adoption Act promulgated by the National Conference of
Commissioners on Uniform State Laws (NCCUSL) in 1994 and approved by the
American Bar Association House of Delgates in 1995, my research and
writing as principal author and editor of [Adoption Law and
Practice]{.underline} 3 vol. (Matthew Bender Co, Lexis-Nexis,
1988-2003), my teaching of adoption, child welfare, and family law, and
my role as an advocate for children's interests in contested adoption
and custody cases. I have never had any financial interest in any entity
that provides adoption-related services and I am not a member of the
board of directors or a trustee of any organization that is currently
involved in intercountry adoptions. My primary interest is to promote
adoptions both in this and other countries that serve the interests of
children in having permanent families and that are the result of
procedures that ensure due process to birth and adoptive parents.

COMMENTS, continued...

In addition to the comments I submitted earlier today, I want to
indicate my complete agreement with most of the concerns expressed by
the American Adoption Congress, Childrens Rights, Inc., and the Evan B.
Donaldson Adoption Institute with respect to the proposed "substantial
compliance" rule for accrediting or approving adoption service
providers. While a substantial compliance approach may be appropriate
for evaluating compliance with some of the specific standards set forth
in Subpart F---for example, those that require the prospective
implementation of statutorily required procedures---nothing short of
full or strict compliance is necessary for many of the standards. For
example, there cannot be substantial compliance with the requirement
that an agency seeking accreditation be a private nonprofit organization
licensed to provide adoption services in at least one State. An agency
that does not satisfy this requirement cannot and should not be
accredited. Nor can there be anything short of strict compliance with
the sensible and essential requirement that the agency have in force
adequate liability insurance for professional negligence. Nor can there
be anything short of strict compliance with the "specific requirements"
listed in 42 U.S.C. Sec. 14923(b)(1)(A). It is only with respect to
subsections (b)(1)(B)(C) or (D) that a substantial compliance standard
with room for improvement should be considered. These latter
requirements can be satisfied in different ways and depend to some
extent on the availability of certain kinds of personnel and of M.S.W.
and other educational programs in intercountry adoption, which, to my
knowledge, are not offered at this time by most, if any, schools of
social work in this country.

In lieu of repeating here the detailed comments on the substantial
compliance rule you will be receiving from the organizations I've
referenced above, I strongly recommend that you take them seriously and
consider a more careful distinction between the standards that must be
fully satisfied for purposes of accreditation or approval and those for
which substantial compliance with a plan for improvement are
appropriate.

I also agree with the detailed comments of the American Adoption
Congress with respect to Sec. 96.39(d) of the proposed regulations.
Clarification of what is meant by a "blanket waiver" would serve to
allay the concerns expressed by many adoption service providers that the
regulations are imposing "strict liability" on them. Because neither the
IAA nor the regulations are imposing strict liability but are barring
providers from shielding themselves against liability for their own and
their supervised providers' negligence or intentional wrongdoing, it is
important for the regulations to spell out in some detail the kinds of
waivers that are unacceptable and to give some examples of waivers that
may be acceptable.

I have some concerns about the proposed standards for cases in which a
child is emigrating from the United States for purposes of being adopted
by a resident of another Convention country. My concerns are somewhat
different than those expressed by the American Adoption Congress and
others who have submitted comments to the Department. The proposed
standards for accredited agencies or approved persons who provide
services for the adoption of an "outbound" child include some
substantive placement standards in Sec. 96.54 that are not in the IAA.
Where, for example, does the "significant weight" to the placement
preferences of the birth parent come from? Should this be subject to
State laws on deference to birth parent preferences in making an
adoption placement? I actually support a rule that would give priority
to a birth parent's preferences in voluntary relinquishments, but I am
not aware that such a rule exists in federal law and I do not understand
where the Department thinks the authority for this rule comes from. Also
puzzling is the "diligent effort to place siblings together...." Where
does that come from? Unlike the federal ICWA, which includes specific
placement preferences for children who are "Indian children" under ICWA,
neither the IAA nor the Convention contains any substantive placement
preferences for "outbound" children. I question the Department's
authority to create or impose such preferences. The preamble discusses
the importance of deferring to state laws unless specifically preempted
by the IAA or the Convention. The definitions sections defer to state
law definitions of "best interests."

The Department should not spell out the meaning of best interests unless
specifically authorized to do so by federal law. The proposed
accreditation/approval standards for outbound adopted children should
adhere more closely to the language of the IAA. The still-to-be
promulgated regulations governing the actual procedures for completing
an inbound or outbound Convention adoption can address the factors a
State court must consider in determining whether a proposed outbound
adoption is appropriate for a particular child. The
accreditation\\approval standards should not give the misleading
impression that it will be an accredited agency or an approved person
who will decide the fate of outbound children --this will be done by
State courts.

While favoring a more modest approach in these regulations to the
standards for providing services in adoptions for outbound children, I
nonetheless strongly favor a requirement in Sec. 96.53 that any consent
by a birth parent, or any other person whose consent to the adoption is
required, contain a specific acknowledgment of, and consent to, the
child's adoption by a resident of another named Convention country and
the proposed move of the child to that country.

I agree with the recommendation of the American Adoption Congress with
respect to Sec. 96.49(k). The minimum time for prospective adoptive
parents to consider a referral of an adoptable child should be two
weeks.

Once again, thank you for the opportunity to submit these comments.

Sincerely,

Professor Joan Heifetz Hollinger

Director, Child Advocacy Program

Boalt Hall -- School of Law

University of California, Berkeley