# To: U.S. Department of State, Adoption Regulations Docket, State/AR-01/96

**From: Children's Home Society & Family Services (formerly Children's
Home Society of MN), David Pilgrim, Vice President, Adoption Services**

**Date: November 7, 2003**

**RE: [9IAA Regulations/Hague Convention of International
Adoption]{.underline}**

**Children's Home Society & Family Services is a 114 year old multi
service child welfare agency that has placed over 22,000 children for
adoption of which over 12,000 have been children from other countries**.
In 2002, CHSFS placed about 600 children for adoption, of which about
500 were international adoptions. It is a founding member of CWLA, NCFA,
and JCICS. It is fully accredited by COA and has been since COA was
created. David Pilgrim has 33 years of experience of providing adoption
services at all levels and is an adoptive parent.

CHSFS has, since the beginning, fully supported the US involvement in
the formation and implementation of the Hague Convention on Intercountry
Adoption. We have looked forward to the publication of the regulations,
as this is where the viability of implementation is delineated. **While
there is much in the regulations that support good international
adoption practice we find that specific regulations raise serious
concerns about whether any agency, organization or individual could
continue to provide adoption services in countries that are members of
the convention**. Given the seriousness of these concerns and the
expressed desire of the State Department to "get it right" **we strongly
urge that revised regulations be drafted for further comment before
final regulations are issued**.

## I. 96.46: Assumption of Liability

We believe that 96.46 (C) (1) is unworkable**.** The assumption of
liability by accredited agencies for the actions of those involved in
the adoption process from the child's sending country **does not meet
the test of the reality in intercountry adoption for two reasons:**

-   **It is impossible for an agency to have complete knowledge and
    control of what is done by those in other countries.** It is like
    expecting the State Department to have complete understanding of all
    and everything its\' agents, representatives, contractors do in
    every country. Those of us who have worked with embassies in other
    countries know that is not true, and that it is unrealistic to think
    that it

# Page 2 - Children's Home Society and Family Services

-   is even possible. **Attempting to achieve this impossibility will
    require a large investment of staff and administrative tools, which
    will only drive up the costs of adoption. This was not the intent of
    the IAA legislation.**

```{=html}
<!-- -->
```
-   We have been told by our insurance agent/broker that it is
    impossible to obtain insurance for such liability. Even if it were,
    the cost of such insurance will greatly drive up the cost of
    adoption[.]{.underline} In 2003, CHSFS professional liability
    insurance increased \$120,000 without having had any losses and
    after having doubled our deductible to \$10,000.

We find that the tone of 96.46 is punitive and an invitation to lawsuits
rather then resolving issues through a process of understanding,
cooperation, negotiation, or mediation when there are grievances. We all
know that the practice of civil lawsuits is an attractive and lucrative
one that has, for example, greatly driven up the costs of medical
practice to the point that even good doctors are beginning to leave
their practices. Such could very well be the case in intercountry
adoption as it pertains to the Hague Convention if the current
regulations are in place. More importantly, however, is that for
intercountry adoption is to work best for children and families, the
relationship between the agency, the adopting family, and the persons it
must work with in the child's country, must be one of trust,
cooperation, and open communication. We feel that the regulations as
currently written tend to promote an adversarial one, which can works
against a reasonable and successful adoption process. Again, we do not
believe this was the intent of the legislation. And there is no need for
this. Indeed, when one looks at the well over 10,000 international
adoptions per year, the overwhelming majority goes well. There are "bad
apples" in the field of adoptions, but the liability and complaint
process seems to shake the entire apple tree, and more than "bad
applies" will fall while surely increasing the costs for adoptive
parents. If there is a need for adversarial action, the court system
provides this, as evidenced by wrongful adoption lawsuits

Furthermore, **we fear that if the proposed regulations re liability and
complaints are put into place, agencies may choose or be forced to avoid
Hague countries**. Through their relationships in other countries they
may be put in the position to discourage these countries from joining
the Hague Convention.

What is needed rather, is a pro-active, involved central authority that
is very knowledgeable about intercountry adoption, who know what good
intercountry adoption practice is, who provides it, and through
relationships with the Central Authorities in other countries promotes
good adoption practices. In a meeting we recently had with officials of
the Ministry of Civil Affairs in China (for whom the China Center for
Adoption is under), this is what they emphasized they wanted and needed
from the US in order for them to have the Hague Convention be relevant.

**Page 3 - Children's Home Society & Family Services**

II. **[96.41 Complaint Process]{.underline}**

We believe that the current wording makes the complaint process very
problematic for the following reasons:

1)  **No definition of a complaint.** There are many parts are of the
    process that are not controlled by the agency such as the
    requirements of adoptive parents by the child country, the legal
    processes and changes and delays thereof, and so on. Further more,
    what is a frivolous or valid complaint? And should there not be some
    knowledge of the person who is making the complaint? **We suggest
    this definition: A complaint is a written document, which is signed
    and dated, and clearly defines a specific aspect of a service that
    is under the control of the agency and governed by the
    regulations**.

2)  **Lack of clarity regarding the complaint process.** It is unclear
    how a complaint how or when a complaint is processed under Hague
    regulations. For example, has the complainant tried to resolve the
    issue through the complaint process of the agency? We believe a
    complainant should attempt to do that first. Also, is there a
    limitation length of time after the grievance or adoption when a
    complaint can be processed? Can an adoptive parent file 5 or 10
    years after the adoption? The Courts provide recourse in wrongful
    adoptions so a complaint regarding service delivery should have a
    short filing time.

3)  **Lodging of complaints by birthparents.** The convention makes it
    clear that services to birthparent are the responsibility of the
    child's country or origin (sending country). Here again **the
    regulations make agencies responsible for services, which it usually
    has no control over, and such control would be in conflict with the
    Convention.**

```{=html}
<!-- -->
```
III. **[96.92 Dissemination of Information about
     complaints]{.underline}**

This regulation requires that an accrediting entity disclose the
receipt, status, and disposition of a complaint to anyone and have
procedures for disclosing information about an **unsubstantiated
complaint. We find this regulation prejudicial and an affront to due
process.** While it is right for the public to have information about
complaints that have been fully investigated by competent staff of the
accrediting body, and found substantiated, it is wrong to have provide
information about unsubstantiated or uncompleted investigations of
complaints. This is especially true in international adoption where the
emotional stakes are so high and unknowns and changes abound in third
world countries where adoption has not been a part of the culture and
legal process. **The principle of an organization having the right to a
fair and unbiased process by experts before its' reputation and
functioning can be negatively damaged, seems like a sound principle in a
democratic society.**

IV. **[Deemed Status]{.underline}**

Children's Home Society and Family Services is fully accredited by the
Council of Accreditation (COA). We have currently completed our work for
reaccredidation and to our knowledge, COA accreditation is includes all
proposed Hague regulations and goes considerably beyond them.

# Page 4 -- Children's Home Society & Family Services

**Recognition of compliance is not an exception to accreditation, but is
simply an equitable mechanism for crediting established compliance with
requirements that have parity with those of Hague Convention
Accreditation**.

In principle, offering recognition to previously accredited agencies
delivering intercountry adoption services is completely consistent with
the IAA as a mechanism for recognizing proven compliance with those
standards that are sufficiently similar to standards in the proposed,
and eventually the final, rules. The process of recognition promotes
efficiency of the accreditation process by eliminating a duplication of
efforts on the part of both the organization and the accrediting entity.
This is particularly significant given the human resource and financial
impacts required by the accreditation process and the ambitious
timeframe the State Department expects for the completion of the initial
accreditation cycle. Indeed, **offering recognition will speed up the
U.S. recognition of the convention, which given the number of agencies
expecting to apply, the very small number of organizations prepared to
become an accrediting body, and magnitude of the process, becomes a most
critical factor in the US becoming a timely member of the Hague
Convention on Intercountry Adoption.**

## V. 96.25 Applicability of Hague standards to non-Convention countries

This regulation is silent on whether the access to agency files applies
only to case files for Convention countries. In order to provide clarity
in this manner and to provide proper limits, additional language should
state that the **IAA applies only to adoption services in Convention
countries and that an accreditor is limited to reviewing information
about Convention-related adoptions in reaching an accreditation
decision**.

## VI. 96.33 (e) Sufficient cash reserves

For multi-service agencies, such as CHSFS, that provide many services in
addition to intercountry adoption, it is unclear whether the requirement
for sufficient financial resources applies only to those operating
expenses of the intercountry adoption services or also to those of all
other services delivered by the agency. We request that the regulations
clarify this and **in order to put multi service agencies at the same
level as single service international adoption agencies, that
clarification states that reserves apply only to intercountry adoption
related expenses.**

**[VII. 96.37(f)(1), 96.37(g), 96.45(b)(7)]{.underline} [Education and
experience requirements for those conducting home studies and child
background studies]{.underline}**

We urge the Department to reconsider the requirement that employees who
perform home studies have a master's degree. While we have few staff
without masters degrees, the staff that we do have are valued greatly
for their knowledge and experience. For the reasons discussed below, we
recommend that 96.37(f)(1) be revised to **allow accredited agency
employees to conduct home studies if they have a minimum of a bachelors
degree in social work from and accredited university or college, as long
as they are supervised by an employee who**

**Page 5 -- Children's Home Society & Family Services**

**meets the educational requirements required in 96.37(f)(1), and meet
the minimum required by state licensing for adoption and social workers
(where applicable).**

Thank you for the opportunity to respond to the proposed regulations. It
is our sincere hope that the reputation and functioning of intercoutnry
adoption be improved and that the Hague Convention on Intercountry
Adoption be an instrumental force in that improvement. This can only be
accomplished by regulations that are clear and workable given the
realities of the international adoption.