In the best interest of the child?

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Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his International Business Litigation and Arbitration seminar the opportunity to have their research papers published with the CLO.  The following article is one of many guest contributions from Campbell Law students to be published over the Spring 2015 semester.

BY: Samuel Thorp, Guest Contributor

The number of foreign children adopted by Americans has dropped to its lowest point in more than a decade, with many countries either cutting back on adoptions to the United States or simply failing to meet stricter standards designed to prohibit corruption and child trafficking.  Concomitant with this decline in international adoptions is an increase in asylum seekers and children living in institutions, on the streets, and in refugee camps.  Since children who cannot bond with a parental figure during their first years of life experience toxic stress which often leads to profound, permanent damage, and because scientific studies (PDF) prove that children’s brains don’t develop properly without consistent parental care and connection, the stagnation in international adoptions is a problem that merits immediate attention.

A great deal of outspoken prospective parents, adoption agencies and legislators are voicing concerns about the dramatic decline in foreign adoptions by American families.  In 2014, the Children in Families First Act (“CHIFF”) was introduced in Congress, new legislation that seeks to increase the number of international adoptions.

The number of unparented children in poor countries and the number of aspiring adoptive parents in developed countries continues to increase.

Today, the concept of international adoption is commonplace in the United States and other western countries.  While its popularity in the United States soared between the conclusion of World War II and the end of the twentieth century, both because of the large number of children orphaned internationally and the lack of infants available for adoption domestically, the overall number of international adoptions has declined significantly in the past decade.  Meanwhile, the number of unparented children in poor countries and the number of aspiring adoptive parents in developed countries continues to increase.

In the United States for example, international adoptions have dropped sixty-two percent in the past nine years.  The simultaneous increase of unparented children and parents wanting to adopt is ostensibly attributable to the fact that many countries that have been major “sending countries”, like Ethiopia, South Korea, Russia, and China, have implemented new and sweeping procedural and substantive restrictions or have stopped the practice altogether.  Common examples of procedural and substantive obstacles to international adoption are requiring that adoption applicants live in-country with the adoptive child for as much as one year or requiring that children be held available for domestic adoption for some months or years before an adoption process can begin with foreign applicants. CHIFF seeks to eliminate many of these obstacles by streamlining, simplifying, and consolidating responsibility for all processing of inter-country adoption in United States Citizenship and Immigration Services (USCIS), which is currently shared by the State Department and USCIS.

The ultimate goal of CHIFF is to place children in families, whether with the child’s birth family, with relatives, in a household within the child’s birth country, or with an American family seeking to adopt.

CHIFF’s three main objectives are as follows: (1) first and foremost, it would specify that family is a “key element” of U.S. foreign policy for children by prioritizing family preservation, reunification, and adoption, both internationally and domestically; (2) second, it would move some of the international adoption responsibilities from the State Department to USCIS, and move the State Department’s Office of Children’s Issues, Adoption Division, from the Bureau of Consular Affairs to its own bureau in the human rights secretariat; and (3) third, it would establish a Center of Excellence with United States Agency for International Development (“USAID”) that would be dedicated to implementing the 2012 National Action Plan on Children in Adversity.

In short, the law creates a prominent and more independent State Department office advocating for vulnerable foreign children, with the mission of making their welfare an essential component of U.S. foreign policy.  CHIFF would allow this new office to disburse foreign aid based on pro-adoption efforts in other nations.  Countries that delay the adoption process, or create unnecessarily cumbersome obstacles to adoption, could wind up losing a lot of money.  The ultimate goal of CHIFF is to place children in families, whether with the child’s birth family, with relatives, in a household within the child’s birth country, or with an American family seeking to adopt.  While the law’s proponents suggest that United States foreign policy needs to be reorganized to ensure that orphans are relocated from institutions to families, and that ethical, inter-country adoption by Americans is part of that solution, there are legitimate questions as to whether CHIFF adequately adheres to existing international law and truly protects the best interest of unparented children.¹

CHIFF places children at risk by weakening the IAA and the Hague Convention, both of which have provided at least some, albeit modest, pre-adoption protections.

Opponents of CHIFF concede that the current system for international adoption lacks sufficient oversight and accountability.  Existing applicable legislation is found in the Intercountry Adoption Act of 2000 (“IAA”).  The IAA codifies the Hague Convention on Protection of Children and Co-Operation in Respect of Inter-Country Adoption (“Hague Convention”) in the United States.  CHIFF opponents believe the IAA falls short of addressing the burgeoning need for enhanced pre-adoption protections, such as screening for child trafficking and corruption before validating inter-country adoption, and domestic post-adoption services, such as preventing American adoptive families from deciding to “rehome” their unwanted, foreign-born children into new families they find on the internet. Nonetheless, opponents still argue that CHIFF is not the answer.

Despite its growing bipartisan support among lawmakers, the new legislation seeks to increase the number of international adoptions without adequately addressing existing problems.  More specifically, CHIFF places children at risk by weakening the IAA and the Hague Convention, both of which have provided at least some, albeit modest, pre-adoption protections.  Furthermore, much like the IAA, CHIFF fails to address the need for post-adoption safeguards and assistance.²

The IAA fails to provide adequate protection for children after an adoption has been finalized.

The risk of failed adoptions remains alarmingly high, notwithstanding the decreasing number of international adoptions.  A common criticism of current IAA regulations is that they are too rigid and therefore discourage international adoptions.  Furthermore, several international adoption scholars attribute this decline to the Hague Convention’s strict rules, those that require participating countries to create a system of checks and balances to safeguard children from fraud and corruption.³  Many of the countries responsible for illicit adoption practices, like child trafficking, have ceased their international adoptions programs or have been cut off by the United States until they comply with Hague Convention guidelines. More recently, countries including Vietnam, Guatemala, and Cambodia have all become signatories to the Hague Convention in direct response to the State Department’s decision to prohibit adoptions from those countries.

The strongest parts of the IAA lie in its pre-adoption protections.  By codifying the Hague Convention in the United States and in an effort to achieve its stated purpose of ensuring that international adoptions are in the children’s best interest, the IAA advances the goal of prohibiting abusive practices toward children by implementing accreditation standards for adoption agencies and requiring background checks for adoptive parents.  The possibility that adoption applicants are actually sex or slave-labor traffickers or that adoption agencies are more motivated by money than by the welfare of children justifies the IAA’s careful screening procedures.  Unfortunately, the law’s consideration of the best interest of the child does not include post-adoption services.  Despite protestations from organizations like the American Academy of Pediatrics during congressional hearings surrounding the passage of the IAA, testifying that “there are significant medical and behavioral problems unique or far more common in internationally adopted children than in those adopted domestically,” Congress opted not to include funding for post-adoption services.⁴

Put simply, the IAA fails to provide adequate protection for children after an adoption has been finalized.  Under the IAA, a family that passes thorough background and home checks, for example, could still resort to re-homing, placing their adopted child in another home by privately executing a power of attorney document when they discover they are ill prepared to handle the inevitable physical, behavioral, and emotional needs that many adopted children have.⁵  Not only do the vast majority of adoptive parents desire post-adoption services for the child and their family, such as counseling and mental health services, many of these parents lack the requisite resources and support needed from their respective adoption agencies and states to afford them.

Unfortunately, because post-adoption services are neither required nor funded under the IAA, pre-adoption safeguards may be poor indicators in predicting post-adoption outcomes, as many adoptive parents find themselves unable to provide for their child’s myriad needs.⁶  While the IAA fails to provide adequate post-adoption services, its pre-adoption protections have been a vital component of international adoption law and could serve as a strong foundation on which to build new legislation.

Relaxing international adoption procedures and spending more money in an effort to incentivize inter-country adoptions is shortsighted, as it underestimates legitimate concerns regarding child trafficking, fraud, and corruption.

According to CHIFF opponents, in the same way the IAA fails to provide adequate post-adoption safeguards, so too does CHIFF.  Relaxing international adoption procedures and spending more money in an effort to incentivize inter-country adoptions is shortsighted, as it underestimates legitimate concerns regarding child trafficking, fraud, and corruption.⁷  Since CHIFF seeks to establish a uniform set of procedures and criteria to govern suitability and eligibility determinations for inter-country adoptions, regardless of whether or not the prospective child is from a foreign state that is a party to the Hague Adoption Convention, it significantly weakens the United States’ commitment to the Hague Convention.  Despite its shortcomings, adoptions from countries that have signed the Hague Convention have several benefits, such as guaranteeing accredited adoption service providers, requiring an adoption services contract and ten hours of parent education, and requiring the preparation of medical records for the child by authorities in the country of origin.

Conversely, because non-Hague Convention countries are not bound by the same obligations for monitoring or reducing corruption, they are only permitted to participate in inter-country adoptions if it can be verified that the child is in fact an orphan.  CHIFF would not only erode the Hague Convention’s existing protections, but it would indirectly discourage non-Hague Convention countries’ commitment to and ratification of international law.  CHIFF opponents concede that there must be a better way to streamline the procedures of the Hague Convention and simplify the inter-country adoptions process for adoptive parents, but not at the expense of existing protections or failing again to address the need for improved post-adoption services and safeguards.

Finally, some CHIFF opponents accuse lawmakers of inappropriately wasting resources by focusing on international adoption when there is a growing need for an improved domestic adoptions process, as there are hundreds of thousands of adoptable children in the United States foster care system.  Adopting orphans from abroad, according to these same opponents, should be a final resort, and there should be more emphasis placed on helping children remain within their home country through supports such as day care, foster care, better orphanages and more domestic adoption.

As inter-country adoptions continue to decrease and the risk of failed adoptions increases, there is a significant need for an improved international adoption policy.

The Hague Convention and the IAA, like most legislation, were benevolent attempts to regulate and to improve the process of inter-country adoptions.  As inter-country adoptions continue to decrease and the risk of failed adoptions increases, there is a significant need for an improved international adoption policy, one that recognizes the “middle ground of improving the bureaucratic process while boosting the protections mandated by international law.”⁸  That being said, CHIFF undermines the United States’ existing international law obligations.

By establishing a uniform set of procedures and criteria to govern suitability and eligibility determinations for inter-country adoptions, regardless of whether or not the prospective child is from a foreign state that is a party to the Hague Convention, CHIFF effectively destroys important adoption protections.  Furthermore, CHIFF, like the IAA and Hague Convention, fails to provide adequate post-adoption safeguards for children and families.  Although CHIFF’s goal of finding every child a home and family is an important and well-intentioned one, it is doomed to failure unless it can adequately adhere to existing international law and provide sufficient post-adoption safeguards in the best interest of children.

Samuel Thorp is a 3L student and will graduate from Campbell Law School in May 2015. He may be reached by email at sh*********@em***.edu.