**U.S. DEPARTMENT OF STATE**

**[Hague convention on intercountry adoption; intercountry adoption act
of 2000; proposed rules for accreditation of agencies, approval of
persons, and preservation of convention records]{.underline}**

**CFR Parts 96 and 98**

**Docket number State/ar-01/96**

**October 23, 2003**

**Submitted By**: Noreena Sondhi

Villanova University School of Law

299 North Spring Mill Road

Villanova, PA 19085

nsondhi@law.villanova.edu

**Submitted To**: U.S. Department of State, CA/OCS/PRI

Adoption Regulations Docket Room, SA-29

2201 C Street, NW.

Washington, D.C. 20520

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*An anxious couple, close friends of mine, boarded the plane for
Estonia. For weeks, they had memorized the face of their child, planned
the details of the nursery, and deliberated over the name that they
would bestow upon their second child. The couple had one biological
child, and desperately wanted to have another. However, after trying for
years to become pregnant, they decided adoption would be the best avenue
to pursue. They consulted several agencies, and settled on one after
pouring through informational pamphlets and doing their own research.
They never retained a lawyer. Eventually they found themselves peering
out of an airplane window and landing in Estonia in hopes of brining
home a sibling for their daughter waiting back home. When they went to
hold their child, they realized something was wrong. The child was
severely brain-damaged and would never recover. The couple left Estonia,
the mother crying, clutching the weathered picture of a healthy infant
to her chest. They sued the agency facilitator, and received monetary
compensation for their compensatory damages. Their hearts remain broken,
however. Their perspective on adoption was not just one of a simple
contractual duty gone askew; rather, their family suffered a horrific
loss from which they are still recovering.*

**INTRODUCTION**

I respectfully submit this comment in response to the notice of proposed
rulemaking which appeared in the Federal Register on September 15, 2003,
Volume 68, Number 178. I am a student enrolled at Villanova University
School of Law, and I hope to pursue a career in family law. I write and
submit this comment solely on my own behalf as a result of my personal
interest in the issues at hand and also because I know families who have
been directly affected by the lack of regulations in the arena of
international adoption. Thus, this comment reflects only my personal
interests, ideas, and conclusions, and not those of Villanova University
School of Law. I believe the United States is acting appropriately in
deciding to become a party to the 1993 Hague Convention and implementing
legislation through the Intercountry Adoption Act of 2000 ("IAA")
(PL106-279). However, I have some concerns and questions regarding the
manner in which the purposes of the Convention will correspond with the
proposed rules set forth in the Federal Register. I appreciate the
opportunity to write and submit my comments to the U.S. Department of
State.

> In my comment, I address the following five areas of concern:

I.  Effects of the Proposed Rules Based on the Ruling From [Nancy G. et
    al. v. Department of Children and Families]{.underline} 733 A.2d 136
    (Conn. 1999)

II. Difficulties Facing Prospective Parents in Accessing Information
    Regarding Non-Conforming Entities and Unethical Behaviors Taking
    Place Within Those Entities

III. Effects of the Absence of Regulations Regarding "Excluded Adoption
     Services" on the Proposed Rules

IV. Need for Improved Communication Between Accrediting Entities and
    Agencies/Persons Seeking Accreditation/Approval Can be Facilitated
    by an Appointed Representative From Each Accredited or Approved
    Entity

V.  Need to Address the Safety Concerns of Parents Traveling to Foreign
    Countries to Pick up Their Adopted Child

> **BACKGROUND**

The United States seeks to become a party to the Hague Convention of 29
May 1993 on Protection of Children and Cooperation in Respect of
Intercountry Adoption. The United States became a signatory to the
Convention on 31 March 1994. Through the implementation of the
Intercountry Adoption Act (IAA) of 2000, the United States has created
legislation to ratify its signature to this Convention. The proposed
rules note that non-profit entities seek "accreditation" and are
referred to as "agencies;" for-profit, private entities seek "approval"
and are referred to as "persons." The U.S. Department of State notes
that the Convention does not come into force for the United States until
the United States is able to meet its obligations under the Convention
and the U.S. deposits the ratification. Thus, timing is a factor of
importance, since the United States has undertaken the great duty of
accrediting and approving U.S. adoption entities. The
accreditation/approval process must be diligent and thorough, but also
well-organized and efficient. I address the following five points with
this consideration in mind.

The proposed rules aim to set up a system of accreditation and approval
for adoption agencies and persons. The proposed rules can be
strengthened by requiring agencies and persons to address education for
prospective adoptive parents and by focusing on communication between
adoption agencies/persons and parents. Though the goal of the proposed
rules is to set forth the accreditation/approval system, rule-makers
must also account for the people who will ultimately feel the rules'
effects - parents and children.

I.  **[Nancy G. et al. v. Department of Children and
    Families]{.underline}**

The case of [Nancy G.]{.underline} presents questions that the proposed
rules do not answer. Specifically, this case speaks to a troubling
situation that adoptive parents might face subsequent to the adoption
proceedings. In 1999, the Supreme Court of Connecticut decided this case
concerning the request of a mother, Nancy G., for post-adoption subsidy
for her special needs child, Jonathan, whom she adopted from India in
March of 1982. The court decided that Nancy was not entitled to the
requested subsidy pursuant to the General Statutes §§ 17a-116 and
17a-117. 733 A.2d at 139.

> General Statutes § 17a-116 provides in relevant part:
>
> "\[A\] 'special needs' child is a child who is a ward of the
> Commissioner of Children and Families or is to be placed by a licensed
> child-placing agency and is difficult to place in adoption because of
> one or more conditions including, but not limited to, physical or
> mental disability, serious emotional maladjustment, a recognized high
> risk of physical or mental disability, age or racial or ethnic factors
> which present a barrier to adoption or is a member of a sibling group
> which should be placed together, or because the child has established
> significant emotional ties with prospective adoptive parents while in
> their care as a foster child and has been certified as a special needs
> child by the Commissioner of Children and Families." [Id.]{.underline}

On appeal, the court determined that because Jewish Family Services of
New Haven, Inc. did not "place" Jonathan for adoption, his mother was
not entitled to the post-adoption subsidy she sought. [Id.]{.underline}
Rather, Americans for International Aid and Adoption was the agency that
had placed Jonathan. [Id.]{.underline} at 141. To receive the subsidy
she requested, Jonathan must have been "placed" for adoption by a
child-placing agency *licensed in Connecticut*. [Id.]{.underline}
(emphasis added). The trial court concluded that Americans for
International Aid and Adoption, located in Michigan and not licensed in
Connecticut, "placed" Jonathan. [Id.]{.underline} at 141-42. The
Connecticut Supreme Court affirmed. Thus, Jonathan and his mother could
not receive the subsidy he so desperately needed.

Parents who apply for post-adoption subsidies face challenges in
navigating the legal system since the state statutes decide which agency
or person "placed" the adopted child for purposes of granting or denying
the parents' request for subsidies. Since the State Supreme Courts give
deference to the construction of the statute applied by the
administrative agency, I am concerned for the implications of the
proposed rules on post-adoption subsidy requests.

This case presents the question of what happens to families who have
worked with more than one adoption agency in their attempt to adopt a
child. Under the statute, the Connecticut Supreme Court had to decide
which agency "placed" Jonathan for purposes of awarding or denying a
post-adoption subsidy. What would happen if, in this same situation, the
court not only had to decide which agency "placed" the child with the
adoptive parents, but also had to figure out how "accredited" or
"approved" agencies would be treated in their determination of awarding
or denying request for post-adoption subsidies? Consider how the
proposed regulations propose more questions than answers within these
hypothetical examples:

**Example 1**: Suppose Accredited Agency "A" worked with Non-accredited
Agency "B" in placing a child from a member of the 1993 Hague Convention
with an American family. What would happen if the American family later
requested a subsidy for their adopted child? Would the family be denied
the subsidy if the state statute was interpreted so that Non-accredited
Agency "B" "placed" the child, so relief under the regulations was not
possible?

The proposed rules do not speak directly to this problem. One could draw
several conclusions from example 1. On the one hand, the American family
could be denied the requested subsidy for their child since the agency
which placed the child was not one of the accredited (or temporarily
accredited) agencies. On the other hand, the family could be granted the
requested subsidy because the accredited agency acted equally in placing
the child with the adoptive parents. The rules are silent as to how (and
if) the interpretation of state statutes affect the award and denial of
post-adoption subsidies. If an accredited agency aided in placing the
child with his or her adoptive family, I suggest that this fact should
be taken into consideration when construing state statutes for awarding
subsidies.

**Example 2**: Further consider what might happen if one supposed that
Accredited Agency "A" transferred the child to *Approved Person* "B" who
"placed" the child with the American adoptive family. Would a family
requesting a post-adoption subsidy be granted it? This hypothetical
raises the question of whether approved persons carry the same effect as
accredited agencies regarding placement under the specific state
statutes.

The proposed rules are silent whether approved persons and accredited
agencies affect the courts' decisions to grant or deny subsidies.
Although states have the authority to promulgate and interpret their own
statutes, I suggest that the proposed rules speak to this issue. If the
rules address the role that accredited agencies and approved persons
carry in granting or denying subsidies, state courts will be able to
effectively decide cases involving post-adoption subsidy requests.

Cases like the [Nancy G.]{.underline} case suggest that there is a need
for training programs for pre-adoptive and post-adoptive parents that
not only include counseling and guidance in completing the adoption, but
also educate parents on the impact that statutory laws may have on their
legal recourse. For example, parents would learn what constitutes
"placement" under their states' statutes and how to protect themselves
in working with more than one agency. When this type of pre-adoptive
training is included in parents' education, all the parties -- the
parents, the adoption entities, and the adopted child -- are all on the
same informational playing field.

In a previously submitted comment on April 2, 2001 by the Parent Network
for the Post-Institutionalized Child ("the Network"), Thais S. Tepper
addresses comments to Section 203(b)(1)(A)(iii), which state that
information included in pre-adoptive training should come from the
adoptive parents themselves. [Network comment]{.underline} at 3. Several
other submitted comments also address "Adoption Playgroups" as helpful
resources of information and support. In a personal testimony, one
comment recounts the trend of adoption fraud and unsuccessful attempts
to adopt. The second paragraph of the comment makes reference to
"Adoption Playgroups" formed for adoptive families. These groups are
often formed independently by adoptive parents to help meet the special
needs of both the children and their families, not supported nor
affiliated with an adoption agency.

The system of "adoption playgroups" can be renamed as "informational
entity support groups" and would be a welcome and beneficial addition to
the training programs. The final rule will be more effective if it can
offer practical advice in a group setting for pre and post-adoptive
parents working with the same adoption entity. Not only will parents and
children benefit from each other's advice and experiences, but adoption
entities seeking to become accredited and approved will benefit as well.
Parents and children can provide first-hand experience of successful
adoption, relate unsuccessful adoption attempts, and provide suggestions
to entities.

Communication is the key to the success of the proposed rules.
Informational entity support groups can address prospective adoptive
parent education while enhancing communication between adoption
agencies/person and parents. The informational support groups can
include prospective parents seeking to adopt a child, parents who have
completed adoptions, agency employees, and accrediting entity
representatives. Building upon the model of the adoption playgroup, the
informational support groups offer an organized framework for parents
and children affiliated with adoption agencies.

II. **[Difficulties Facing Prospective Parents in Accessing Information
    Regarding Non-Conforming Entities and Unethical Behavior Taking
    Place Within Those Entities.]{.underline}**

> "Subpart M -- Dissemination and Reporting of Information by
> Accrediting Agencies" covers the disclosure of information to the
> public regarding accredited agencies and approved persons. Although I
> agree with the proposed rule that the information must be made to "the
> public on a quarterly basis," I had difficulty understanding exactly
> *how* this disclosure of information will occur. (Subpart M, Sec.
> 96.91(a)).

A.  **The Prospective Parent's Point of View**

> **1. Full Disclosure of Accredited Agencies and Approved Persons**
>
> It is clear that prospective parents are eager to find a child and
> take that child home as soon as possible. From the moment the parents
> enter the premises of the accredited agency or approved person, the
> agency or person should hand parents the information required in
> "Subpart M -- Dissemination and Reporting of Information by
> Accrediting Agencies." This information should appear in the same
> binder of information containing the details about the children placed
> by the agency or person. Parents must be able to make an informed
> decision as to whether they will work with a particular agency or
> person. Immediate disclosure ensures that prospective parents will be
> able to decline to work with an agency or person *before* they have
> formed a bond with a potential adoptive child. Accredited agencies and
> approved persons must also view this bond as a source of grief
> adoptive parents seek to avoid. Thus, the proposed rules should speak
> to this as well. Several comments speak candidly about the lost
> referral of children. The couple to whom I referred in my opening
> paragraph also highlights the need for timely reporting of prior
> complaints against the agency or person.
>
> The agency or person must act quickly once the prospective parents
> have accepted a referral to adopt a child. Reporting of past
> complaints must occur *before* the parents choose a name for their
> child -- and perhaps the accredited agency or approved person should
> counsel the prospective parents as to when they should name their
> adoptive child. Once naming takes place, the child is no longer a
> nameless, faceless little person parents are brining into their home.
> That child becomes a member of the family. "*When you lose this child,
> who has become a member of your family, there is a grieving process
> similar to that of experiencing the death in a family*." [Hoppenhauer
> comment]{.underline} at 3 (emphasis in original). Therefore, the
> sooner the accredited agency or approved person discloses information
> regarding complaints filed against it, the sooner prospective parents
> will be able to protect themselves from the emotional wounds adoptive
> parents may suffer.
>
> It is necessary that the proposed rules include provisions requiring
> agencies and persons to provide education to prospective parents
> regarding the filing of complaints. Parents need to be informed as to
> the methods for filing complaints against the adoption facility and
> filing complaints to the Secretary of State. Prospective adoptive
> parents must *remain* informed as to the procedural steps required to
> obtain legal recourse for damages arising out of an adoption action.
> The personal account of my family friends who left behind their child
> in Estonia emphasizes the need for adoption agencies and persons to
> stress early and often that parents need education as to how to take
> the appropriate steps to filing a complaint. My family friends were
> not informed as to what legal recourse was available until *after*
> they came face-to-face with this tragedy. They retained a private
> attorney subsequent to leaving Estonia; therefore, they had received
> no education by the particular adoption facility. The proposed rules
> should include provisions requiring agencies seeking accreditation and
> persons seeking approval to educate parents before they complete the
> formal adoption process. Adoption facilities should guide parents
> step-by-step through the process necessary for filing complaints.
> Though the informational entity support groups will inevitably address
> the issue of filing complaints, agencies and persons should be
> required to set up and maintain classes for parents seeking to adopt a
> child. Though parents must remain responsible for attending the
> classes, the adoption agency or person should bear the initial burden
> of providing the education necessary for parents to act in an informed
> manner.

2.  **Reporting prior complaints to prospective parents**

> The proposed rules should include a provision stating that adoption
> entities must disclose, *pre-referral*, not only any adverse action
> taken by the Secretary, but disclose any complaints directed against
> the entity itself. In addition, the binder should include the
> procedure for filing a complaint with the agency or person and for
> filing with the Secretary. Requiring such disclosure will prompt the
> entities to take corrective action regarding complaints and allow them
> to publish the corrective action in the binder as well.
>
> In its comment addressing "The Hague Convention Regulations Project
> Acton Burnell, Inc.", the Child Welfare League of America (CWA)
> recommended that "a process needs to be set up for families to report
> problems so that they may be addressed. Families should be notified in
> writing prior to the adoptive placement that they may file a complaint
> with the Office of Children's Affairs, Department of State, and the
> procedure for doing so." [CWA comment]{.underline} at 4. The CWA
> points out a very practical problem with the proposed rules
> implementing the IAA.

B.  **The Accredited Agency/Approved Person's Point of View**

> Not only do prospective parents have an interest in obtaining
> information regarding non-conforming entities, unethical behavior, and
> complaints filed against such entities, but the accredited agencies
> and approved persons also have a vested interest in making sure
> prospective parents obtain such information. Informed prospective
> parents can make choices that decrease the chances that adoption
> entities will face adverse action by the Secretary. Perhaps those
> people who are implementing the proposed rules would find it
> beneficial to gain access to "Adoption Playgroups." Entities can take
> the next step and establish informational entity support groups based
> on this model, re-named "informational entity support groups." Members
> of the groups will benefit greatly from the information relating to
> disclosure of complaints and unethical behavior. Even before
> prospective adoptive parents begin the adoption process, they will be
> well-equipped with information as to how to file complaints and enter
> into a contractual relationship with an entity whose history is not a
> mystery. Entities that have an especially good history will make
> themselves more attractive to prospective adoptive parents,
> advertising themselves in the best way.
>
> Not only should the rule-makers gain access to the "Adoption
> Playgroups" and construct their own informational groups, but
> accredited agencies and approved persons should also take note of
> their existence and potential use in counseling prospective adoptive
> parents. One possible way of utilizing the "Adoption Playgroup" idea
> is for agencies and person to organize prospective parents into groups
> once parents accept a referral. They could meet on a regular basis,
> discuss the adoption process, and form connections with parents using
> the same agency/person. These parents would also be an excellent
> resource for getting feedback so that agencies and persons can avoid
> possible complaints in the future.

III. **[The Absence of Regulations Regarding "Excluded Adoption
     Services" Will Negatively Affect the Impact of the Proposed
     Rules.]{.underline}**

> Section V., C(3) contains a sub-sub-section (e) that addresses
> activities that do not require accreditation, approval or supervision.
> The list includes the following adoption activities: (1) completion of
> a home-study or child background study; (2) the provision of child
> welfare services where the agency or person is not performing any
> other adoption service in the case; (3) the provision of legal
> services where the agency or person is not performing any adoption
> services in the case; and (4) activities undertaken by prospective
> adoptive parents on their own behalf. Although not every adoption
> activity can fall under the scope of the proposed rules, the first
> exclusion -- "completion of a home study or child background study" --
> must require accreditation and approval. The home study or child
> background study should be removed from the list of activities that do
> not require accreditation, approval or supervision.
>
> "\[T\]he performance of a home study or child background study, by
> itself does not require the agency or person to be accredited,
> temporarily accredited, or approved or operate under the supervision
> and responsibility of primary providers, where the agency or person is
> not performing any other adoption service (as defined) in the case."
> (Pub. L. 106-279, 3(3) and 201(b)(1)). Once an agency or person takes
> on the responsibility to perform the home study or child background
> study, that agency or person has become involved in a contract for
> which they can be held liable. Though it is true that performing this
> one adoption activity, by itself, appears meager in comparison to the
> other adoption activities which require accreditation or approval, the
> background studies can be the deciding factor for both the birth
> parents and the prospective adoptive parents. This reliance is
> evidence in the story of my family friends who relied on the "child
> background study," only to arrive in Estonia to find a brain-dead
> infant who in no way resembled the child described in the background
> study. If prospective parents testify that they rely on the studies,
> these adoption activities should not be an excluded activity in the
> final rule.
>
> Similarly, birth parents might also rely on home studies conducted by
> an agency or person in deciding whether to agree to the intercountry
> adoption. Birth parents, like prospective adoptive parents, have an
> emotionally challenging decision to face in contemplating whether to
> give up their child to be raised by someone else. If home studies are
> designated as "excluded adoption activities," birth parents will be
> left without the assurance that the rules implementing the Hague
> Convention of 1993 apply to the agency or person handling the adoption
> process.

IV. **[Communication Between Accrediting Entities and Agencies/Persons
    Seeking Accreditation/Approval Can be Facilitated by an Appointed
    Representative From Each Accredited or Approved
    Entity.]{.underline}**

Subpart I addresses "Routine Oversight by Accrediting Entities."
Accredited entities take responsibility for overseeing accredited
agencies and approved persons. The proposed rules require an annual
monitoring that covers review of complaints in accordance with Subpart J
("Oversight Through Review of Complaints"). Although the accrediting
entity *may* conduct random site visits, it is not *required* to do so.
Annual monitoring, at least in the beginning stages of the accreditation
process, would be inadequate to support the agency or person seeking
accreditation or approval. Implementing rules that are complex and
interconnected; thus, they require ongoing communication between the
accrediting entities and those agencies/persons seeking
accreditation/approval.

Accrediting entities could facilitate ongoing communication by
maintaining contact with a representative from the agency or person.
This representative could be selected by the agency or person itself if
the agency/person so chooses. Communication can take place in the form
of phone calls, electronic mail, and formal visits. Random visits should
be mandatory.

Communication can also be facilitated by allowing the appointed entity
representatives to communicate with the informational entity support
groups. During such communication, entity representatives can receive
honest responses to their questions and parents and children can also
ask questions of the representative. In allowing the entity
representatives to access informational entity support groups, the
representatives will become aware of the real concerns and problems
facing the people these proposed rules are designed to protect -- the
parents and the children.

Though communication between appointed entity representatives and
informational entity support groups will provide great assistance to
agencies and persons, confidentiality remains a concern. Parents should
feel free to express their concerns to entity representatives, and
representatives must respect parents' requests for their statements and
questions to remain confidential. With their permission, however,
appointed entity representatives should disclose specific concerns and
questions to the agency/person seeking accreditation/approval.

V.  **[Safety Concerns for Prospective Adoptive Parents Traveling
    Abroad]{.underline}**

Though several foreign countries provide escorts who accompany adopted
children overseas to the United States to be met by their adoptive
parents, a number of countries do not provide this service. In a comment
written by Ms. Rachel Bouman of the University of the Pacific, McGeorge
School of Law, Bouman notes that China does not provide escorts to
travel with Chinese children to the United States to meet with their
adoptive parents; rather, parents seeking to adopt a child must travel
to China. After prospective parents obtain a letter of approval they are
permitted to travel to the location in China where the Children's
Welfare Institute is located. The prospective American parents are
required to register with the department of civil affairs in the
province in which the child is located. Safe traveling is an issue that
the proposed rules must speak to directly.

Subpart C -- Accreditation and Approval Requirements for the Provision
of Adoption Services -- does not explicitly address safety travel
standards as a prerequisite for accreditation and approval of agencies
and persons. The proposed rules appear to leave this matter to be
negotiated between agencies and persons and their insurance carriers.
The language of the rules reads, "The Department recognizes that these
standards allocating legal risk, mandating insurance coverage, and
setting the floor amount of one million dollars for insurance coverage
are sensitive and will require changes in current insurance practice."
Though it is true that insurance carriers and the adoption entities must
negotiate the terms and conditions of their respective contracts, the
rules must also ensure that adoption entities engage in a dialogue
concerning the issue of safe traveling with those people who are
directly affected by it -- the prospective parents and the adopted
children.

Disclosure of information relating to traveling to and within foreign
countries must occur between the agency/person and the prospective
adoptive parents who will be traveling abroad to pick up their child.
Insurance contracts aside, the rules should require that agencies and
persons seeking accreditation and approval must provide information to
parents regarding their safety in foreign countries. Specifically,
agencies and persons must provide parents with the basic steps for
maintaining safe travel in the countries specifically working with the
adoption agency/person. Inevitably, certain safety steps will vary from
country to country; however, it remains the duty of the agency/person
facilitating the adoption to provide up-to-date information to parents
traveling abroad.

If the agency or person already has the informational entity support
groups in place, they can utilize the groups as a means of
communication. For instance, parents who are planning to adopt a child
from China will have access to information provided by the agency or
person regarding traveling in China. The prospective adoptive parents
will also have the support of the other parent members, some of whom may
have traveled to China for a previous adoption.

**CONCLUSION**

The rules proposed by the U.S. Department of State address the arena of
international adoption in ways that are necessary for the United States
to ratify its signature to the 1993 Hague Convention regarding
intercountry adoption. Though the proposed rules address process for
accreditation and approval of adoption entities, they can be
strengthened by addressing parent education, access to information,
regulated activities, and safe travel. Informational entity support
groups would add a meaningful and efficient structure of communication
between parents and entities. The groups would provide a safe
environment to voice concerns and file complaints. The groups also allow
entities seeking accreditation or approval to access crucial feedback
from parents and agency employees. Furthermore, these groups would
foster valuable communication among accrediting entities and
agencies/persons seeking accreditation/approval. As the United States
ratifies its signature to the 1993 Hague Convention, an unknown number
of pre-adoptive parents will be spared the heartbreak that former
parents have faced. Thank you for your consideration in reading my
comment.