Daniel and Elizabeth Case

72 S. Montgomery St.

Walden, NY

12586-1622

(845)778-1090

<dancase@frontiernet.net>

U.S. Department of State

CA/OCS/PRI

Adoption Regulations Docket Room

SA-19

2201 C St. NW

Washington, DC

20520

Re: Docket #State AR-01/96

Also submitted via electronic mail

Dear Secretary,

This letter contains our comments on the proposed regulations governing
intercountry adoptions involving the United States or its citizens as
required by the Intercountry Adoption Act of 2000.

As adoptive parents who suffered a great tragedy in our first attempt to
adopt internationally, we have been involved in the process since the
very first Acton Burnell meeting in April 2001. We are relieved at long
last to see them reach the stage of review and commentary by the federal
agency ultimately responsible for their implementation.

Naturally, there have been developments in the world of international
adoption in the two years since Acton Burnell published its final draft.
While we have been pleased with the incorporation of many of our
suggested changes governing agency practices and required disclosures of
information to prospective parents, and their retention in the draft
recently published by DOS, subsequent events and ongoing conditions
within the IA field have also brought to our attention further areas of
concern which it would be within the scope of the regulations to
address.

We will first make some general remarks, introducing ourselves,
explaining our interest in this matter then move to discussions of
specific regulations and how they can be amended.

**INTRODUCTION**

Our introduction to the world of the Hague Convention and international
adoption reform came on the night of November 25, 1999, in a hotel room
in the Russian city of Perm', when the infant boy who we were beginning
to get used to as our first child suddenly and unexpectedly passed away,
the victim of what we found out much later was a chronic infection that
had begun in his urinary tract, raged untreated and eventually
overwhelmed his tiny body.

Utterly devastated by this turn of events, we nevertheless continued
with a second adoption through the same agency, Building Blocks Adoption
Services of Medina, Ohio, of a Bulgarian boy. We were assured at that
time by the agency director, Denise Hubbard, that that adoption would
proceed smoothly and be completed within five months.

However, over the next two months it became apparent to us as we pursued
a refund of our money, that misrepresentations, particularly of the
Bulgarian adoption process, had been made to us by BBAS and Hubbard. We
found out that others had had similar experiences, and following the
example one of them had set we complained about our treatment to the
Ohio Department of Human Services[^1], which oversaw BBAS's license.

Owing to the overseas nature of much of what had occurred, and the fact
that Ohio's regulations governing international adoption agencies
primarily concerned paperwork and record-keeping requirements, there was
little ODHS could do beyond some counseling at its site visit[^2]. But
BBAS could do a lot ... to us. Due to our suddenly adversarial
relationship, we were told, all communications were to be routed through
the agency's lawyer and we were frozen out by the agency, with crucial
information not shared with us until the absolute last possible moment
and our fellow clients discouraged from talking to us.

Delays mounted, but finally we brought our son home in October 2000, a
period of time twice as long as we had been told it would take.

We chronicled our experience and those of many other fellow clients,
plus other information about the agency we were able to learn, on the
website [www.BewareOfBBAS.org](http://www.BewareOfBBAS.org/), which we
fully incorporate within these comments by reference and urge anyone
considering these regulations and the need for them who has not already
read to do so.

In the two years since the last Acton Burnell meeting, much has happened
within international adoption. Most of it is not good. Even with the
impendency of the regulations, the field has gotten more corrupt, not
less. Moratoria have been declared in Romania and Cambodia. Agencies in
Florida and New Jersey have seen their licenses revoked in high-profile
cases[^3]. Some of that could be attributed to unscrupulous operators
trying to wring the last few dollars out of this particular cash cow
before it gets sent out to pasture, but not all.

So corrupt is international adoption now that we would refer to it as
*corrupting*, in that it is impossible to do it honestly. We would not
recommend that anyone go into the business no matter how noble their
intentions, not if they wanted to succeed *and* keep their reputations
for personal integrity and character intact. We do not say this merely
rhetorically ... we have seen it happen more than once already.

There is truly a race to the bottom going on, and even prospective
parents, once as much victims of these processes as the children, are
now more and more brazenly acquiescing in the corruption, all in the
name of the children they don't care how they got or how much money they
have to spend just as long as they get them. Some even brag about this
on Internet mailing lists.

At a time when recent events have made many Americans aware that
antipathy to Americans generated by our actions abroad can have
repercussions within our own borders, we can ill afford to tolerate any
perpetuation by our own citizens of practices that would further tend to
confirm that image in the public minds of foreign nations, such as
tramping into barely-developed or developing countries with suitcases
full of money equivalent to at least ten times what the average citizen
makes in a year and the sort of complete disregard for the rule of law
and judicial process that the U.S. government may well be upbraiding
these fledgling democracies for. We can thus conceivably argue that
bringing order and integrity to international adoption has
national-security implications.

The regulations before us would go a long way toward this goal. We
applaud especially their effort to effect change in the marketplace
indirectly through three things: the requirement that state licensing
agencies be accredited under Hague if the agencies they regulate wish to
place children from other Convention countries; the liability insurance
requirement and the information-disclosure provisions, the last two of
which we were among those advocating strongly for.

> But, in some areas, there is farther they can go.

For one thing, DOS needs to work closely with some of the state
licensing boards to assure that, among other things, agencies that hold
licenses in more than one state cannot simply move across state lines
following adverse action and continue doing business, as one agency
among others[^4] has recently done. Some of those state boards are going
to need a little help getting themselves up to the standards required of
them for accreditation, and they are going to need some way of
transmitting information between themselves to properly discharge the
duties required of them by these regulations. Perhaps the regs can start
to address that, and indeed the requirement of 96(4)(c) that public
entities allowed to accredit may only do so in their own state or
jurisdiction. If not, State should seek money from Congress for this. We
cannot stress enough the importance of making this a reality. We do not
think anyone wants the situation to develop to the extent that it did
with truck driving, where it was ultimately necessary to create a
national license administered at the federal level to curb serious
abuses of the system.

The drafters of the regulations should also do more to hold adoptive
parents who try to game the system accountable for their misdeeds. These
people are *not*, in a disturbingly growing number of cases, haplessly
misled innocents, particularly those who have previously adopted. They
have become savvy players themselves, unconcerned about the number of
laws they circumvent or fellow adoptive parents they hurt just so long
as they get that precious fifth or sixth adopted child. We have some
suggestions that we believe will help, and we will share them at the
appropriate places.

It is also important that the regulations acknowledge the adoption
regulations and laws in effect in other countries. The convention is a
transnational document that is meant to ensure that those who would
traffic in children cannot elude prosecution by confining their
traceable activities to countries where weak and corrupt judicial
systems mean that they are unlikely to be punished or even investigated
in the first place. By recognizing the importance and validity of alien
laws and regulations in our own, we can more easily persuade them to
reciprocate and thus bring about a situation where wrongdoers can more
easily be brought to America to be tried[^5], and the day that happens
will be the day that international adoption becomes better not only for
those children who are adopted, but most importantly from our
perspective to those who would be their parents.

We also restate the importance of one particular principle above all:
*transparency*. Far too many in the adoption field treat the whole
process as if it were inherently shrouded in Wordsworthian clouds of
glory. Well, Earth isn't heaven and those clouds become rather
ignominious at ground level. Where the regulations can find a place for
transparency, they should.

Now, we turn to specific regulations:

*96.30(c)*

This provision is essential, but enforcing it is going to require
adequate and regular attention to the agency or provider's doings and
records by the accrediting body.

*96.31*

I can't recall whether this is so or not, but I believe that during the
first Acton Burnell meetings we seriously discussed whether or not the
Convention or IAA requires that all agencies be non-profit.

In any event this stricture makes sense to us, and State should bear in
mind that some other countries that have taken steps to regulate and
accredit agencies, whether under Hague auspices or not, have explicitly
required not only that American agencies have tax-exempt status under
Section 501(c)(3) of the U.S. Tax Code but submit documentary proof of
the same.

*96.33(f)*

This section should be more specific than to say "safeguards" and
possibly suggest some, such as a separate non-profit to accept
donations, a route many agencies have already taken[^6].

*96.33(h)*

This provision is essential, in our opinion, to making these regulations
work and as such should not be amended. Insurance agencies will,
independently of government action, bring about many positive changes in
at least how American agencies do their business. State should not be
swayed by the many bleatings coming from various adoption agencies that
this insurance is not available --- if the government mandates, a market
will have been created and some provider will step in to fill the need.
What these agencies are crying foul about is that this might (no, will)
lead to serious changes in how they conduct their business, changes they
will not be the ones to have the final say over --- a condition faced by
practically every other American business involved in risking
substantial sums of other people's money.

*96.36*

This section should also explicitly require that the agency or person
makes sure that employees and agents are also aware of the prohibitions
of the Foreign Corrupt Practices Act as enumerated at 15 U.S.C. 78-dd.
The FCPA has been, to say the least, underutilized (which is to say not
utilized at all) in the international adoption arena, an area which
offers many richly deserving targets for it. We realize this is the
responsibility of Justice rather than State, but one prosecution under
that Act would have a major ripple effect throughout the industry.

*96.38*

Add:

*(e) The agency or person shall require that employees sign,*

*under penalty of perjury, a document attesting to their completion*

*of the required training and provide such upon request of the*

*accrediting agency at any time.*

*96.39*

We are glad to see language that, as far as we can tell, was originally
proposed by us in this section. These required disclosures will become
an effective tool in allowing adoptive parents to choose more
knowledgably among agencies and through market discipline weed out the
less scrupulous and/or competent providers, if parents make use of them.

To that end, we suggest a new subsection:

> *(g) The agency or person regularly includes as part of its*
>
> *communications to prospective clients upon initial contact a
> statement*
>
> *that all documents and information referred to in this section are*
>
> *available, as well as IRS Forms 990 and 1023 as required under*
>
> *the relevant sections of the Tax Code if the organization has
> 501(c)(3)*
>
> *status.*

We have found that information to also be of inestimable value in
assessing the integrity of agencies providing international adoption
services, even though they are not directly related to the aims of these
regulations.

We also suggest, too, that (b)(1) include an additional requirement that
criminal prosecutions against former clients for crimes committed
against their adopted children within one year of the child joining
their family. This would address what we feel to be a growing problem.

Since the Polreis case in the mid-1990s, there have been no less than
*five* other such cases where parents have either been charged with or
convicted of homicide, as well as another one in Ohio[^7] where the
adopted daughter was paralyzed for life. In all of them, the child had
been home for less than a year. While certainly the parents in these
cases who have been found guilty[^8] are the only ones who deserve that
opprobrium, responsibility as always encompasses a far wider circle than
guilt. And we increasingly believe that these deaths occurred because
severely disturbed children, possibly suffering from Reactive Attachment
Disorder, were foisted unawares on parents who were completely unaware
of these issues and unprepared to deal with them.

We hope there will not be any more. But we're not at all certain that
there won't. In the meantime, requiring disclosure of these cases should
they occur is probably the best guarantee of a market deterrent to
agencies that are so desperate to move product that they place children
with just anyone.

*96.40(b)(6)*

This regulation *must* state explicitly that contributions, if any, are
to be stated in fixed dollar amounts or ranges (Of course, we question
the name. Money you are "expected or required" to pay isn't a
contribution by any sense of the term), *not* percentages, unless
explicitly required otherwise by the child's country of origin.

*96.41(b)*

Add "post-adoptive parent" to this list. Otherwise it could be read to
exclude the many parents who, as we did not, wait until their adoptions
are complete before making complaints to the appropriate authorities.

*96.41(e)*

As our experience among many others shows, this provision is absolutely
necessary and should be retained.

*96.46(b)*

Amend to "a written agreement, *available to the accrediting body for
review upon its request,* that ..." to promote greater transparency.

*96.47(d)*

Add, to the end, "as designated by that child's country of origin," for
clarity and consistency's sake.

*96.49(c)*

This is another absolutely essential provision that has been made
necessary by far too many instances.

*96.49(i)*

Add to the end "and that they were recorded or taken in full compliance
with any applicable laws or regulations governing such in the child's
country of origin." Some Convention or major sending countries have
taken to barring such photography or videography, and while we think
that's well-meaning in some cases but generally ill-advised (and not
compatible with the kind of transparency that best serves all members of
the adoption triad), those are the laws of sovereign nations and we best
respect them and the intent of the Convention by avoiding the sort of
situation that creates dubious legal loopholes for unscrupulous adoption
providers in our own country.

*96.50(g)(1)*

Add "including the frequency and total number of such reports required,
if so specified by the applicable laws or regulations of the child's
country of origin." Without this, there is a possibility of parents
getting bushwhacked by these requirements, as indeed some have by the
agency failing to inform them about the requirements themselves.

*96.59(a)*

This passage is very crucial. It should make explicit in its language
what is stated in the preamble to the regulations[^9] --- that the lack
of either judicial or administrative review applies *only* to those
organizations, entities, agencies, persons or providers that have
*never* performed any placements (or not, they should add, in some
time). As the Preamble states quite clearly, present providers would be
experiencing the disruption of an ongoing business and economic loss;
new providers would not. As much as some of those providers may deserve
to be experiencing economic loss, they do have the right to legal
action.

We say this because some adoption providers have been misrepresenting
this provision in attempts to lobby against these regulations, hoping to
gut them so that they will not have to face the sort of accountability
and responsibility the adoption of children across international
boundaries demands (as well as almost any other business endeavor).
State must make this distinction clearer than it is here.

New providers *always* have the option of resorting to a direct appeal
to the Secretary's office, per the provisions of Subpart L

*96.70(a)*

Funding for the complaint registry *must* come from fees levied by the
Secretary in whole or in part for this purpose. Agencies that would cut
corners and fudge need some sort of regular reminder that someone's
watching.

*96.70(c)*

How about just putting the whole complaint registry online?

*96.72*

Perhaps there should be a requirement that accrediting entities have on
retainer an investigator or someone else familiar with the relevant
laws, as well as Section 501(c) of the Tax Code?

*96.79*

See comments for 96.75

*96.96*

We must be absolutely clear on this: *No extensions*. Period. We must
avoid what happened in New Jersey, where A Child's Hope International's
temporary certificate was regularly extended by the state beyond the
one-year maximum, always (apparently) on the expectation that it would
provide necessary paperwork or recordkeeping, when in fact such records
were being stored unsecured and out of state, in further violation of
such regulations. Only when David Bentley's connections to Internet
pornography sites (not, granted, technically illegal) were splashed
across the front page of the *Sunday Star-Ledger* did officials finally
revoke ACHI's license.

Thus concludes our review of the specific regulations and comment
thereon. We hope that State finds these comments to be useful and
productive and look forward to seeing the process of implementing Hague
continue.

If the reviewers have any questions, do not hesitate to contact us.

Sincerely,

Daniel and Elizabeth Case

[^1]: Now renamed the Department of Job and Family Services.

[^2]: Only later did we learn that BBAS's response to our complaint
    contained false assertions concerning our adoption and documents we
    purportedly signed but, in fact, did not.

[^3]: Tedi Bear and A Child's Hope International, respectively.

[^4]: Tedi Bear, mentioned in the previous note, which began operating
    out of Georgia once its Florida license was lost.

[^5]: And, of course, those who violate foreign laws from within
    American borders can, and should, be subject to sanction within
    those countries if warranted and likely to receive a fair trial.

[^6]: Of course, this practice has itself led to some possible abuses,
    as in some cases these non-profits share the same officers and
    addresses as the agency themselves yet their existence is unknown to
    the agency's clients.

[^7]: Using our former agency, Building Blocks, yet.

[^8]: It should be noted that, in the three instances where the case has
    been disposed, the adoptive parents charged have either been
    convicted or pled guilty.

[^9]: *Federal Register*, Vol. 68, No. 178, p. 54087.