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HR 2909 IH

106th CONGRESS

1st Session

H. R. 2909

To provide for implementation by the United States of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

September 22, 1999

Mr. GILMAN (for himself, Mr. CAMP, Mr. DELAHUNT, Mr. GEJDENSON, Mr. BLILEY, Mr. OBERSTAR, Mr. SMITH of New Jersey, Mr. POMEROY, Mr. MCGOVERN, Mr. BARRETT of Wisconsin, Mr. ENGLISH, Mr. FARR of California, Mr. HORN, Mr. FORBES, Mr. RAMSTAD, Mrs. MINK of Hawaii, Mrs. JOHNSON of Connecticut, Mr. CAPUANO, Mr. FROST, Mr. PORTER, Mr. BARCIA, Mr. BURTON of Indiana, Mr. UNDERWOOD, Mr. COOKSEY, Mr. HASTINGS of Florida, Mr. BARRETT of Nebraska, Mr. SMITH of Texas, Ms. ROS-LEHTINEN, Mr. GREENWOOD, Mr. ACKERMAN, Mr. BERMAN, Mr. DAVIS of Florida, Mr. STUPAK, Mr. CARDIN, Ms. ESHOO, Mr. LANTOS, and Mr. BLUMENAUER) introduced the following bill; which was referred to the Committee on International Relations, and in addition to the Committees on the Judiciary, and Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To provide for implementation by the United States of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION. 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the `Intercountry Adoption Act of 1999'.

(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Definitions.

TITLE I--UNITED STATES CENTRAL AUTHORITY

Sec. 101. Designation of central authority.

Sec. 102. Responsibilities of the Secretary of State.

Sec. 103. Responsibilities of the Attorney General.

Sec. 104. Annual report on intercountry adoptions.

TITLE II--PROVISIONS RELATING TO ACCREDITATION AND APPROVAL

Sec. 201. Role of Secretary of Health and Human Services.

Sec. 202. Accreditation or approval required in order to provide adoption services in cases subject to the Convention.

Sec. 203. Process for accreditation and approval; role of accrediting entities.

Sec. 204. Standards and procedures for providing accreditation or approval.

Sec. 205. Secretarial oversight of accreditation and approval.

Sec. 206. Limitations on authorization of appropriations.

TITLE III--RECOGNITION OF CONVENTION ADOPTIONS IN THE UNITED STATES

Sec. 301. Adoptions of children immigrating to the United States.

Sec. 302. Immigration and Nationality Act amendments relating to children adopted from Convention countries.

Sec. 303. Adoptions of children emigrating from the United States.

Sec. 304. Voiding of adoptions for cause.

TITLE IV--ADMINISTRATION AND ENFORCEMENT

Sec. 401. Records; privacy provisions.

Sec. 402. Documents of other Convention countries.

Sec. 403. Authorization of appropriations; collection of fees.

Sec. 404. Enforcement.

TITLE V--GENERAL PROVISIONS

Sec. 501. Recognition of Convention adoptions.

Sec. 502. Special rules for certain cases.

Sec. 503. Relationship to other laws.

Sec. 504. No private right of action.

Sec. 505. Effective dates; transition rule.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS- The Congress recognizes--

(1) the international character of the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (done at The Hague on May 29, 1993),

(2) the need for uniform interpretation and implementation of the Convention in the United States and abroad,

and therefore finds that enactment of a Federal law governing adoptions and prospective adoptions subject to the Convention involving United States residents is essential.

(b) PURPOSES- The purposes of this Act are--

(1) to provide for implementation by the United States of the Convention;

(2) to protect the rights of, and prevent abuses against, children, birth families, and adoptive parents involved in adoptions (or prospective adoptions) subject to the Convention, and to ensure that such adoptions are in the children's best interests; and

(3) to improve the ability of the Federal Government to assist United States citizens seeking to adopt children from abroad and residents of other countries party to the Convention seeking to adopt children from the United States.

SEC. 3. DEFINITIONS.

As used in this Act:

(1) ACCREDITED AGENCY- The term `accredited agency' means an agency accredited under title II to provide adoption services in the United States in cases subject to the Convention.

(2) ACCREDITING ENTITY- The term `accrediting entity' means an entity designated under section 203(a) to accredit agencies and approve persons under title II.

(3) ADOPTION SERVICE- The term `adoption service' means--

(A) identifying a child for adoption and arranging an adoption;

(B) securing necessary consent to termination of parental rights and to adoption;

(C) performing a background study on a child or a home study on a prospective adoptive parent, and reporting on such a study;

(D) making determinations of the best interests of a child and the appropriateness of adoptive placement for the child;

(E) providing professional counseling services for a child, a birth parent, or a prospective adoptive parent with respect to adoption;

(F) post-placement monitoring of a case until final adoption;

(G) where made necessary by disruption before final adoption, assuming custody and providing child care or any other social service pending an alternative placement; and

(H) post-adoption services, other than activities relating to identifying or locating birth parents or siblings.

The term `providing', with respect to an adoption service, includes facilitating the provision of the service.

(4) AGENCY- The term `agency' means any person other than an individual.

(5) APPROVED PERSON- The term `approved person' means a person approved under title II to provide adoption services in the United States in cases subject to the Convention.

(6) ATTORNEY GENERAL- The term `Attorney General' means the Attorney General, acting through the Commissioner of Immigration and Naturalization.

(7) CENTRAL AUTHORITY- The term `central authority' means the entity designated as such by any Convention country under Article 6.1 of the Convention, or if no such designation has been made, the entity having responsibility for the discharge of the obligations of that country under the Convention.

(8) CENTRAL AUTHORITY FUNCTION- The term `central authority function' means any duty required to be carried out by a central authority under the Convention.

(9) CONVENTION- The term `Convention' means the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, done at The Hague on May 29, 1993.

(10) CONVENTION ADOPTION- The term `Convention adoption' means an adoption of a child resident in a foreign country party to the Convention by a United States citizen, or an adoption of a child resident in the United States by an individual residing in another Convention country.

(11) CONVENTION ADOPTION RECORD- The term `Convention adoption record' means any item, collection, or grouping of information contained in an electronic or physical document, an electronic collection of data, a photograph, an audio or video tape, or any other information storage medium of any type whatever that contains information about a specific past, current, or prospective Convention adoption (regardless of whether the adoption was made final).

(12) CONVENTION COUNTRY- The term `Convention country' means a country party to the Convention.

(13) OTHER CONVENTION COUNTRY- The term `other Convention country' means a Convention country other than the United States.

(14) PERSON- The term `person' shall have the meaning provided in section 1 of title 1, United States Code, and shall include any agency of government.

(15) STATE- The term `State' means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands.

TITLE I--UNITED STATES CENTRAL AUTHORITY

SEC. 101. DESIGNATION OF CENTRAL AUTHORITY.

(a) IN GENERAL- For purposes of the Convention and this Act--

(1) the Department of State shall serve as the central authority of the United States; and

(2) the Secretary of State shall serve as the head of the central authority of the United States.

(b) PERFORMANCE OF CENTRAL AUTHORITY FUNCTIONS- Except as otherwise provided in this Act, the Secretary of State shall be responsible for the performance of all central authority functions for the United States under the Convention and this Act.

(c) AUTHORITY TO ISSUE REGULATIONS- Except as otherwise provided in this Act, the Secretary of State may prescribe such regulations as may be necessary to carry out central authority functions on behalf of the United States.

SEC. 102. RESPONSIBILITIES OF THE SECRETARY OF STATE.

(a) LIAISON RESPONSIBILITIES- The Secretary of State shall have responsibility for--

(1) liaison with the central authorities of other Convention countries; and

(2) the coordination of activities under the Convention by persons subject to the jurisdiction of the United States.

(b) INFORMATION EXCHANGE- The Secretary of State shall be responsible for--

(1) providing the central authorities of other Convention countries with information concerning--

(A) agencies accredited and persons approved under title II, accredited agencies and approved persons whose accreditation or approval has been suspended or canceled, and accredited agencies and approved persons who have been temporarily or permanently debarred from accreditation or approval;

(B) Federal and State laws relevant to implementing the Convention; and

(C) any other matters necessary and appropriate for implementation of the Convention;

(2) providing Federal agencies, State courts, and accredited agencies and approved persons with an identification of Convention countries and persons authorized to perform functions under the Convention in each such country; and

(3) facilitating the transmittal of other appropriate information to, and among, central authorities, Federal and State agencies (including State courts), and accredited agencies and approved persons.

(c) ADDITIONAL RESPONSIBILITIES- The Secretary of State--

(1) shall monitor individual Convention adoption cases involving United States citizens;

(2) may facilitate interactions between such citizens and officials of other Convention countries on matters relating to the Convention in any case in which an accredited agency or approved person is unwilling or unable to provide such facilitation; and

(3) may provide any other appropriate assistance in other cases, or take other appropriate actions necessary to implement the Convention.

(d) ESTABLISHMENT OF REGISTRY- The Secretary of State and the Attorney General shall jointly establish a case registry of--

(1) all adoptions involving immigration into the United States, regardless of whether the adoption occurs under the Convention; and

(2) all adoptions involving emigration of the child from the United States to any other Convention country.

Such registry shall permit tracking of pending cases and retrieval of information on both pending and closed cases.

(e) METHODS OF PERFORMING RESPONSIBILITIES- The Secretary of State may--

(1) authorize public or private entities to perform appropriate central authority functions for which the Secretary is responsible, pursuant to regulations or under agreements published in the Federal Register; and

(2) carry out central authority functions through grants to, or contracts with, any individual or public or private entity, except as may be otherwise specifically provided for in this Act.

SEC. 103. RESPONSIBILITIES OF THE ATTORNEY GENERAL.

In addition to such other responsibilities as are specifically conferred upon the Attorney General by this Act, the central authority functions specified in Article 14 of the Convention (relating to the filing of applications by prospective adoptive parents to the central authority of their country of residence) shall be performed by the Attorney General.

SEC. 104. ANNUAL REPORT ON INTERCOUNTRY ADOPTIONS.

(a) REPORTS REQUIRED- Beginning one year after the date of enactment of this Act, and each year thereafter, the Secretary of State, in consultation with the Secretary of Health and Human Services, the Attorney General, and other appropriate agencies, shall submit a report to the Congress describing the activities of the central authority of the United States under this Act during the preceding year.

(b) REPORT ELEMENTS- Each report under subsection (a) shall set forth with respect to the year concerned, the following:

(1) The number of intercountry adoptions involving immigration to the United States, regardless of whether the adoption occurred under the Convention, including the country from which each child emigrated, the State to which each child immigrated, and the country in which the adoption was finalized.

(2) The number of intercountry adoptions involving emigration from the United States, regardless of whether the adoption occurred under the Convention, including the country to which each child immigrated and the State from which each child emigrated.

(3) The number of Convention adoptions that were disrupted, including the country from which the child emigrated, the age of the child, the date of the adoption, the reasons for the disruption, and the resolution of the disruption.

(4) The current list of agencies accredited and persons approved under this Act to provide adoption-related services.

(5) The names of the accredited agencies and approved persons temporarily or permanently debarred from accreditation or approval under this Act, and the reasons for the debarment.

(6) The range of adoption fees charged in connection with Convention adoptions involving immigration to or emigration from the United States by all entities, including accredited agencies and approved persons, set forth by country.

(7) The number of Convention adoptions involving immigration to the United States that were vacated for cause or in which proceedings to vacate for cause are pending.

TITLE II--PROVISIONS RELATING TO ACCREDITATION AND APPROVAL

SEC. 201. ROLE OF SECRETARY OF HEALTH AND HUMAN SERVICES.

The Secretary of Health and Human Services (in this title referred to as the `Secretary'), in coordination with the Secretary of State, shall carry out the functions prescribed by the Convention with respect to the accreditation of agencies and the approval of persons to provide adoption services in the United States in cases subject to the Convention.

SEC. 202. ACCREDITATION OR APPROVAL REQUIRED IN ORDER TO PROVIDE ADOPTION SERVICES IN CASES SUBJECT TO THE CONVENTION.

(a) IN GENERAL- Except as provided in subsection (b), a person shall not offer or provide an adoption service in the United States in a case subject to the Convention unless the person is accredited or approved under this title, or is providing the service through or under the supervision and responsibility of a person so accredited or approved.

(b) EXCEPTIONS- Subsection (a) shall not apply to the following:

(1) BACKGROUND STUDIES AND HOME STUDIES- The performance of a background study on a child or a home study on a prospective adoptive parent, or any report on any such study, by a social work professional or organization who is not providing any other adoption service in any case subject to the Convention.

(2) CHILD WELFARE SERVICES- The provision of a child welfare service by a person who is not providing any other kind of adoption service in the case.

(3) LEGAL SERVICES- The provision of legal services by a person who is not providing any other adoption service in the case.

(4) PROSPECTIVE ADOPTIVE PARENTS ACTING ON OWN BEHALF- The conduct of a prospective adoptive parent on his or her own behalf in the case, to the extent not prohibited by the law of the State in which the prospective adoptive parent resides.

SEC. 203. PROCESS FOR ACCREDITATION AND APPROVAL; ROLE OF ACCREDITING ENTITIES.

(a) DESIGNATION OF ACCREDITING ENTITIES-

(1) IN GENERAL- The Secretary, with the concurrence of the Secretary of State, shall enter into agreements with one or more qualified entities under which such entities will perform the duties described in subsection (b) in accordance with the Convention, this title, and the regulations prescribed under section 204, and upon entry into each such agreement shall designate the qualified entity as an accrediting entity.

(2) QUALIFIED ENTITY- In paragraph (1), the term `qualified entity' means a nonprofit private entity that has experience and expertise in developing and administering standards for entities providing child welfare services and that meets such other criteria as the Secretary may by regulation establish.

(b) DUTIES OF ACCREDITING ENTITIES- The duties described in this subsection are the following:

(1) ACCREDITATION AND APPROVAL- Accreditation of agencies, and approval of persons, to provide adoption services in the United States in cases subject to the Convention.

(2) OVERSIGHT- Ongoing monitoring of the compliance of accredited agencies and approved persons with applicable requirements, including review of complaints against such agencies and persons in accordance with procedures established by the accrediting entity and approved by the Secretary.

(3) ENFORCEMENT- Taking of adverse actions (including requiring corrective action, imposing sanctions, and refusing to renew, suspending, or canceling accreditation or approval) for noncompliance with applicable requirements, and notifying the agency or person against whom adverse actions are taken of the deficiencies necessitating the adverse action.

(4) DATA, RECORDS, AND REPORTS- Collection of data, maintenance of records, and reporting to the Secretary, the United States central authority, State courts, and other entities (including on persons and agencies granted or denied approval or accreditation), to the extent and in the manner that the Secretary requires.

(c) REMEDIES FOR ADVERSE ACTION BY ACCREDITING ENTITY-

(1) CORRECTION OF DEFICIENCY- An agency or person who is the subject of an adverse action by an accrediting entity may re-apply for accreditation or approval (or petition for termination of the adverse action) on demonstrating to the satisfaction of the accrediting entity that the deficiencies necessitating the adverse action have been corrected.

(2) NO OTHER ADMINISTRATIVE REVIEW- An adverse action by an accrediting agency shall not be subject to administrative review sought by the agency or person against whom the adverse action has been taken.

(3) JUDICIAL REVIEW- An agency or person who is the subject of an adverse action by an accrediting agency may petition the United States district court in the judicial district in which the agency is located or the person resides to set aside the adverse action. The court may set aside the adverse action only upon clear and convincing proof that the decision to take the adverse action was not based on substantial evidence of deficiencies or that the accrediting entity abused its discretion in taking the adverse action.

(d) FEES-

(1) AUTHORITY TO ASSESS- An accrediting entity may assess fees against agencies and persons seeking or maintaining accreditation or approval under this title, in amounts approved by the Secretary.

(2) FEE AMOUNTS- The Secretary may approve fees to be assessed under paragraph (1) by an accrediting entity if the Secretary estimates that the aggregate of the amounts to be collected from the fees will not exceed the sum of--

(A) the total amount of all direct or indirect costs of the accrediting entity for accreditation or approval and ongoing oversight (which shall be estimated on the basis of the number of cases subject to the Convention handled by the agencies and persons accredited or approved by the accrediting entity and other relevant factors); and

(B) an amount determined by the Secretary to be the amount necessary to cover all direct and indirect costs of Federal oversight of the accrediting entity under section 205.

(3) COLLECTION; PAYMENT TO THE TREASURY- The accrediting entity shall collect the fees

assessed under paragraph (1), and from the amounts collected remit to the Secretary the amount determined under paragraph (2)(B). The Secretary shall deposit in the Treasury of the United States all amounts remitted under the preceding sentence.

SEC. 204. STANDARDS AND PROCEDURES FOR PROVIDING ACCREDITATION OR APPROVAL.

(a) IN GENERAL-

(1) PROMULGATION OF REGULATIONS- The Secretary, with the concurrence of the Secretary of State, shall, by regulation, prescribe the standards and procedures to be used by accrediting entities for the accreditation of agencies and the approval of persons to provide adoption services in the United States in cases subject to the Convention.

(2) CONSIDERATION OF VIEWS- In developing such regulations, the Secretary shall consider the views of individuals and entities with interest and expertise in international adoptions and family social services, including public and private entities with experience in licensing and accrediting adoption agencies.

(3) APPLICABILITY OF NOTICE AND COMMENT RULES- Subsections (b), (c), and (d) of section 553 of title 5, United States Code, shall apply in the development and issuance of regulations under this section.

(b) MINIMUM REQUIREMENTS-

(1) ACCREDITATION- The standards prescribed under subsection (a) shall include the requirement that accreditation of an agency may not be provided or continued under this title unless the agency meets the following requirements:

(A) CAPACITY TO PROVIDE ADOPTION SERVICES- The agency has, directly or through arrangements with other persons, a sufficient number of appropriately trained and qualified personnel, sufficient financial resources, appropriate organizational structure, and appropriate procedures to enable the agency to provide, in accordance with this Act, all adoption services in cases subject to the Convention.

(B) USE OF SOCIAL SERVICE PROFESSIONALS- The agency has established procedures designed to ensure that social service functions requiring the application of clinical skills and judgment are performed only by professionals with appropriate qualifications and credentials.

(C) RECORDS, REPORTS, AND INFORMATION MATTERS- The agency is capable of--

(i) maintaining such records and making such reports as may be required by the Secretary, the United States central authority, and the accrediting entity that accredits the agency;

(ii) cooperating with reviews, inspections, and audits;

(iii) safeguarding sensitive individual information; and

(iv) complying with other requirements concerning information management necessary to ensure compliance with the Convention, this Act, and any other applicable law.

(D) LIABILITY INSURANCE- The agency agrees to have in force adequate liability insurance for professional negligence and any other insurance that the Secretary considers appropriate, unless the agency is a State, local, or tribal government entity.

(E) COMPLIANCE WITH APPLICABLE RULES- The agency has established adequate measures to comply (and to ensure compliance of their agents and clients) with the Convention, this Act, and any other applicable law.

(F) NONPROFIT ORGANIZATION WITH STATE LICENSE TO PROVIDE ADOPTION SERVICES- The agency is a private nonprofit organization licensed to provide adoption services in at least one State, unless the agency is a State, local, or tribal government entity.

(2) APPROVAL- The standards prescribed under subsection (a) shall include the requirement that a person shall not be approved under this title unless the person is a private for-profit entity that meets the requirements of subparagraphs (A) through (E) of paragraph (1) of this subsection.

(3) RENEWAL OF ACCREDITATION OR APPROVAL- The standards prescribed under subsection (a) shall provide that the accreditation of an agency or approval of a person under this title shall be for a period of not less than 3 years and not more than 5 years, and may be renewed on a showing that the agency or person meets the requirements applicable to original accreditation or approval under this title.

SEC. 205. SECRETARIAL OVERSIGHT OF ACCREDITATION AND APPROVAL.

(a) OVERSIGHT OF ACCREDITING ENTITIES- The Secretary shall monitor the performance by each accrediting entity of its duties under section 203 and its compliance with requirements of the Convention, this Act, other applicable laws, and applicable regulations prescribed under this Act, and shall suspend or cancel the designation of the entity as an accrediting entity if the Secretary finds the entity to be substantially out of compliance with the Convention, this Act, other applicable laws, or such regulations.

(b) SUSPENSION OR CANCELLATION OF ACCREDITATION OR APPROVAL-

(1) SECRETARY'S AUTHORITY- The Secretary shall suspend or cancel the accreditation or approval granted by an accrediting entity to an agency or person pursuant to section 203 when the Secretary finds that--

(A) the agency or person is substantially out of compliance with applicable requirements; and

(B) the accrediting entity has failed or refused, after consultation with the Secretary, to take appropriate corrective action.

(2) CORRECTION OF DEFICIENCY- At any time when the Secretary is satisfied that the deficiencies on the basis of which an adverse action is taken under paragraph (1) have been corrected, the Secretary shall--

(A) notify the accrediting entity that the decifiencies have been corrected; and

(B)(i) in the case of a suspension, terminate the suspension; or

(ii) in the case of a cancellation, notify the agency or person that the agency or person may re-apply to the accrediting entity for accreditation or approval.

(c) DEBARMENT-

(1) SECRETARY'S AUTHORITY- On the initiative of the Secretary, or on request of an accrediting entity, the Secretary may temporarily or permanently debar an agency from accreditation or a person from approval under this title, but only if--

(A) there is substantial evidence that the agency or person is out of compliance with applicable requirements; and

(B) there has been a pattern of serious, willful, or grossly negligent failures to comply or other aggravating circumstances indicating that continued accreditation or approval would not be in the best interests of the children and families concerned.

(2) PERIOD OF DEBARMENT- The Secretary's debarment order shall state whether the debarment is temporary or permanent. If the debarment is temporary, the Secretary shall specify a date, not earlier than 3 years after the date of the order, on or after which the agency or person may apply to the Secretary for withdrawal of the debarment.

(3) EFFECT OF DEBARMENT- An accrediting entity may take into account the circumstances of the debarment of an agency or person that has been debarred pursuant to this paragraph in considering any subsequent application of the agency or person, or of any other entity in which the agency or person has an ownership or control interest, for accreditation or approval under this title.

(d) JUDICIAL REVIEW-

(1) IN GENERAL- A person (other than a prospective adoptive parent), an agency, or an accrediting entity adversely affected by a final determination of the Secretary under this title with respect to the designation of an accrediting entity, or the accreditation of an agency or approval of a person, may bring an action for review of the determination in the United States District Court for the District of Columbia, or in the United States district court in the judicial district in which the person resides or the agency or accrediting entity is located.

(2) STANDARD OF REVIEW- The court may set aside a determination referred to in paragraph (1) only if there is clear and convincing evidence that the determination was an abuse of discretion.

SEC. 206. LIMITATIONS ON AUTHORIZATION OF APPROPRIATIONS.

For activities of the Secretary under this title, there are authorized to be appropriated to the Secretary, for the third fiscal year beginning after the date of the enactment of this Act and for each succeeding fiscal year, an amount not to exceed the aggregate of the amounts remitted to the Treasury under section 203(d)(3).

TITLE III--RECOGNITION OF CONVENTION ADOPTIONS IN THE UNITED STATES

SEC. 301. ADOPTIONS OF CHILDREN IMMIGRATING TO THE UNITED STATES.

(a) LEGAL EFFECT OF ADOPTIONS FINALIZED IN THE UNITED STATES-

(1) ISSUANCE OF CERTIFICATES BY THE SECRETARY OF STATE- Pursuant to Article 23 of the Convention, the Secretary of State shall, with respect to each Convention adoption, issue a certificate to the adoptive citizen parent domiciled in the United States that the adoption has been granted or, in the case of a prospective adoptive citizen parent, that legal custody of the child has been granted to the citizen parent for purposes of emigration and adoption, pursuant to the Convention and this Act, if the Secretary--

(A) receives appropriate notification from the central authority of such child's country of origin; and

(B) has verified that the requirements of this Act have been met with respect to the adoption.

(2) LEGAL EFFECT OF CERTIFICATES- If appended to an original adoption decree, the certificate described in paragraph (1) shall be treated by Federal and State agencies, courts, and other public and private persons and entities as conclusive evidence of the facts certified therein, except as provided in section 304, and shall constitute the certification required by section 204(d)(2) of the Immigration and Nationality Act, as amended by this Act.

(b) LEGAL EFFECT OF CONVENTION ADOPTION FINALIZED IN ANOTHER CONVENTION COUNTRY- A final adoption in another Convention country, certified by the Secretary of State pursuant to subsection (a) of this section or section 303(c), shall be recognized as a final valid adoption for purposes of all Federal, State, and local laws of the United States.

(c) CONDITION ON FINALIZATION OF CONVENTION ADOPTION BY STATE COURT- In the case of a child who has entered the United States from another Convention country for the purpose of adoption, a State court may not issue an order declaring the adoption final unless the Secretary of State has issued the certificate provided for in subsection (a) with respect to the adoption.

SEC. 302. IMMIGRATION AND NATIONALITY ACT AMENDMENTS RELATING TO CHILDREN ADOPTED FROM CONVENTION COUNTRIES.

(a) DEFINITION OF CHILD- Section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)) is amended--

(1) by striking `or' at the end of subparagraph (E);

(2) by striking the period at the end of subparagraph (F) and inserting `; or'; and

(3) by adding after subparagraph (F) the following new subparagraph:

`(G) a child, under the age of sixteen at the time a petition is filed on the child's behalf to accord a classification as an immediate relative under section 201(b), who has been adopted in a foreign state that is a party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption done at The Hague on May 29, 1993, or who is emigrating from such a foreign state to be adopted in the United States, by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age--

`(i) if--

`(I) the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States;

`(II) the child's natural parents (or parent, in the case of a child who has one sole or surviving parent because of the death or disappearance of, abandonment or desertion by, the other parent), or other persons or institutions that retain legal custody of the child, have freely given their written irrevocable consent to the termination of their legal relationship with the child, and to the child's emigration and adoption;

`(III) the child is not the grandchild, niece, nephew, brother, sister, aunt, uncle, or first cousin of one or both of the adopting parents, unless--

`(aa) the child has no living parents because of the death or disappearance of, abandonment or desertion by, separation from, or loss of, both parents; or

`(bb) the sole or surviving parent is incapable of providing the proper care for the child and has in writing irrevocably released the child for emigration and adoption; and

`(IV) in the case of a child who has not been adopted--

`(aa) the competent authority of the foreign state has approved the child's emigration to the United States for the purpose of adoption by the prospective adoptive parent or parents; and

`(bb) the prospective adoptive parent or parents has or have complied with any pre-adoption requirements of the child's proposed residence; and

`(ii) except that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.'.

(b) APPROVAL OF PETITIONS- Section 204(d) of the Immigration and Nationality Act (8 U.S.C. 1154(d)) is amended--

(1) by striking `(d)' and inserting `(d)(1)';

(2) by striking `section 101(b)(1)(F)' and inserting `subparagraph (F) or (G) of section 101(b)(1)'; and

(3) by adding at the end the following new paragraph:

`(2) Notwithstanding the provisions of subsections (a) and (b) no petition may be approved on behalf of a child defined in section 101(b)(1)(G) unless the Secretary of State has certified that the central authority of the child's country of origin has notified the United States central authority under the convention referred to in such section 101(b)(1)(G) that a United States citizen habitually resident in the United States has effected final adoption of the child, or has been granted custody of the child for the purpose of emigration and adoption, in accordance with such convention and the Intercountry Adoption Act of 1999.'.

(c) DEFINITION OF PARENT- Section 101(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(2)) is amended by inserting `and paragraph (1)(G)(i)' after `second proviso therein)'.

SEC. 303. ADOPTIONS OF CHILDREN EMIGRATING FROM THE UNITED STATES.

(a) DUTIES OF ACCREDITED AGENCY OR APPROVED PERSON- In the case of a Convention adoption involving the emigration of a child residing in the United States to a foreign country, the accredited agency or approved person providing adoption services, or the prospective adoptive parent or parents acting on their own behalf (if permitted by the laws of such other Convention country in which they reside and the laws of the State in which the child resides), shall do the following:

(1) Ensure that, in accordance with the Convention--

(A) a background study on the child is completed;

(B) a determination is made that the child cannot expeditiously be placed for adoption in the United States; and

(C) a determination is made that placement with the prospective adoptive parent or parents is in the best interests of the child.

(2) Furnish to the State court with jurisdiction over the case--

(A) documentation of the matters described in paragraph (1);

(B) the background report (home study) on the prospective adoptive parent or parents prepared in accordance with the laws of the receiving country; and

(C) a declaration by the Central Authority (or other competent authority) of such other Convention country--

(i) that the child will be permitted to enter and reside permanently, or on the same basis as the adopting parent, in the receiving country; and

(ii) that the Central Authority (or other competent authority) of such other Convention country consents to the adoption, if such consent is necessary under the laws of such country for the adoption to become final.

(3) Furnish to the United States central authority--

(A) official copies of State court orders certifying the final adoption or grant of custody for the purpose of adoption;

(B) the information and documents described in paragraph (2), to the extent required by the United States central authority; and

(C) any other information concerning the case required by the United States central authority to perform the functions specified in subsection (c) or otherwise to carry out the duties of the United States central authority under the Convention.

(b) CONDITIONS ON STATE COURT ORDERS- A State court shall not enter an order declaring an adoption to be final or granting custody for the purpose of adoption in a case described in subsection (a) unless the court--

(1) has received and verified to the extent the court may find necessary--

(A) the material described in subsection (a)(2); and

(B) satisfactory evidence that the requirements of articles 4 and 15 through 21 of the Convention have been met; and

(2) has determined that the adoptive placement is in the child's best interests.

(c) DUTIES OF THE SECRETARY OF STATE- In a case described in subsection (a), the Secretary of State, on receipt and verification as necessary of the material and information described in subsection (a)(3), shall issue, as applicable, an official certification that the child has been adopted or a declaration that custody for purposes of adoption has been granted, in accordance with the Convention and this Act.

SEC. 304. VOIDING OF ADOPTIONS FOR CAUSE.

(a) VOIDING OF ADOPTION BY STATE COURT- A State court may not vacate a final adoption decree entered pursuant to the Convention unless--

(1) the decree was granted by a State court;

(2) the court finds clear and convincing evidence that--

(A) the consent of a birth parent or, in the absence of such consent, the consent of a biological relative if required by the law of the State in which the decree was granted, to termination of parental rights or to the adoption was not obtained, or was obtained as a result of fraud, duress, or inducement by compensation; or

(B) consent of an adoptive parent to the adoption was obtained by fraud which the adoptive parent did not and could not reasonably have been expected to discover;

(3) voiding the adoption is in the best interests of the child, taking into consideration the wishes of the child as appropriate given the age of the child; and

(4) the adoptive parents are afforded an opportunity to be heard in the proceeding.

(b) RECOGNITION OF PROCEEDING OF ANOTHER CONVENTION COUNTRY TO VACATE CONVENTION ADOPTION- A decision by the competent authorities of another Convention country to vacate an adoption decree originally issued in the country pursuant to the Convention shall be recognized as valid and given full effect in the United States upon receipt by the Secretary of State of notification from such authorities that the conditions provided in paragraphs (2) through (4) of subsection (a) were satisfied by the proceeding to vacate the decree.

(c) VOIDING OF ADOPTION NOT VOIDING CHILD'S NATURALIZATION- The vacating of an adoption decree in a case subject to the Convention shall not be construed to void or prohibit the naturalization of the child as a citizen of the United States. Nothing in this provision shall be construed to limit the Attorney General's authority under title III of the Immigration and Nationality Act to revoke the naturalization of such a child, or to limit the Attorney General's discretion to consider a finding of fact by a State court that is relevant to such a determination.

TITLE IV--ADMINISTRATION AND ENFORCEMENT

SEC. 401. RECORDS PRIVACY PROVISIONS.

(a) REGULATIONS REGARDING CONVENTION ADOPTION RECORDS PRESERVATION-

(1) IN GENERAL- Not later than 180 days after the date of the enactment of this Act, the Secretary of State, in consultation with the Attorney General, shall issue regulations that establish procedures and requirements in accordance with the Convention and this section for the preservation of Convention adoption records.

(2) NOTICE AND COMMENT REQUIREMENT- Section 553 of title 5, United States Code, shall apply to regulations issued under this section without regard to subsection (a) of that section.

(b) PROHIBITION ON DISCLOSURE OF AND PROVISION OF ACCESS TO IDENTIFYING INFORMATION-

(1) PROHIBITION- Identifying information in any Convention adoption record shall not be disclosed by any person, and access to such information shall not be provided by any person, except as otherwise authorized by this subsection or the law of the State in which the adoptive parents resided at the time of the adoption.

(2) EXCEPTION FOR ADMINISTRATION OF THE CONVENTION- Identifying information in a Convention adoption record may be disclosed, and access to such information may be provided, among the Attorney General, central authorities, accredited agencies, and approved persons, to the extent necessary to administer the Convention or this Act.

(c) RELATIONSHIP TO OTHER LAWS- Sections 552 and 552a of title 5, United States Code, popularly known, respectively, as the Freedom of Information Act and the Privacy Act, shall not apply to the disclosure of, or the provision of access to, identifying information in Convention adoption records.

(d) IDENTIFYING INFORMATION DEFINED-

(1) DEFINITION- In this section, the term `identifying information'--

(A) except as provided in subparagraph (B), means any information contained in a Convention adoption record; and

(B) does not include information relating to the health, social, or genetic background of any individual if there is no reasonable basis to believe that such information could be used to identify the adopted child or any birth parent or other birth relative of an adopted child.

(2) REGULATIONS- Not later than 180 days after the date of the enactment of this Act, the Secretary of Health and Human Services, in consultation with the Secretary of State and the Attorney General, shall issue regulations prescribing the information referred to in paragraph (1)(B).

SEC. 402. DOCUMENTS OF OTHER CONVENTION COUNTRIES.

Documents originating in any other Convention country and related to a Convention adoption case shall require no authentication in order to be admissible in any Federal, State, or local court in the United States, unless a specific and supported claim is made that the documents are false, have been altered, or are otherwise unreliable.

SEC. 403. AUTHORIZATION OF APPROPRIATIONS; COLLECTION OF FEES.

(a) AUTHORIZATION OF APPROPRIATIONS-

(1) IN GENERAL- There are authorized to be appropriated such sums as may be necessary to agencies of the Federal Government implementing the Convention and the provisions of this Act.

(2) AVAILABILITY OF FUNDS- Amounts appropriated pursuant to paragraph (1) are authorized to remain available until expended.

(b) ASSESSMENT OF FEES-

(1) The Secretary of State may charge a fee prescribed by regulation to cover the costs of new or enhanced services that will be undertaken by the Department of State to meet the requirements of this Act.

(2) Fees collected under paragraph (1) shall be retained and deposited as an offsetting collection to any Department of State appropriation to recover the costs of providing such services.

(3) Fees authorized under this section shall be available for obligation only to the extent and in the amount provided in advance in appropriations Acts.

SEC. 404. ENFORCEMENT.

(a) CIVIL PENALTIES- Any person who--

(1) violates section 202;

(2) violates section 401 or any regulation issued under section 401; or

(3) makes a false or fraudulent statement or misrepresentation of material fact, or offers, gives, solicits, or accepts inducement by way of compensation intended to influence or affect--

(A) a decision by an accrediting entity with respect to the accreditation of an agency or approval of a person under title II;

(B) the relinquishment of parental rights or parental consent relating to the adoption of a child in a case subject to the Convention; or

(C) a decision or action of any entity performing a central authority function,

shall be subject, in addition to any other penalty that may be prescribed by law, to a civil money penalty of not more than $25,000 for a first violation, and not more than $50,000 for each succeeding violation.

(b) ENFORCEMENT-

(1) COORDINATION WITH ATTORNEY GENERAL- The Secretary of Health and Human Services, with respect to violations of subsection (a) involving the Department of Health and Human Services, an accrediting entity, an agency that has applied for or received accreditation under title II, or a person who has applied for or received approval under title II, and the Secretary of State, with respect to violations of paragraphs (2) and (3) of subsection (a) involving the Department of State, may impose a civil money penalty under subsection (a) pursuant to this subsection and such procedures as may be agreed upon by such Secretaries and the Attorney General.

(2) NOTICE AND HEARING- A penalty shall not be imposed under subsection (a) until the person charged has been given written notice of, and an opportunity to respond to the charge.

(3) FACTORS CONSIDERED IN IMPOSING PENALTY- In determining the amount of a penalty to be imposed under subsection (a), the gravity of the violation, the degree of culpability of the violator, and any history of prior violations by the violator shall be considered.

(c) CRIMINAL PENALTIES- Whoever knowingly and willfully violates paragraph (2) or (3) of subsection (a) shall be subject to a fine of not more than $50,000, imprisonment for not more than 1 year, or both.

TITLE V--GENERAL PROVISIONS

SEC. 501. RECOGNITION OF CONVENTION ADOPTIONS.

Subject to Article 24 of the Convention, adoptions concluded between two other Convention countries that meet the requirements of Article 23 of the Convention and that became final before the date of entry into force of the Convention for the United States shall be recognized thereafter in the United States and given full effect. Such recognition shall include the specific effects described in Article 26 of the Convention.

SEC. 502. SPECIAL RULES FOR CERTAIN CASES.

(a) AUTHORITY TO ESTABLISH ALTERNATIVE PROCEDURES FOR ADOPTION OF CHILDREN BY RELATIVES- To the extent consistent with the Convention, the Secretary of State may establish by regulation alternative procedures for the adoption of children by individuals related to them by blood or marriage, in cases subject to the Convention.

(b) WAIVER AUTHORITY-

(1) IN GENERAL- Notwithstanding any other provision of this Act, to the extent consistent with the Convention, the Secretary of State may, on a case-by-case basis, waive applicable requirements of, and penalties for noncompliance with, the provisions of this Act or regulations issued under this Act, in the interests of justice or to prevent grave physical harm to the child.

(2) NONDELEGATION- The authority provided by paragraph (1) may not be delegated.

SEC. 503. RELATIONSHIP TO OTHER LAWS.

(a) PREEMPTION OF INCONSISTENT STATE LAW- The Convention and this Act shall not be construed to preempt any provision of the law of any State or political subdivision thereof, or prevent a State or political subdivision thereof from enacting any provision of law with respect to the subject matter of the Convention or this Act, except to the extent that such provision of State law is inconsistent with the Convention or this Act, and then only to the extent of the inconsistency.

(b) APPLICABILITY OF THE INDIAN CHILD WELFARE ACT- The Convention and this Act shall not be construed to affect the application of the Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.).

SEC. 504. NO PRIVATE RIGHT OF ACTION.

The Convention and this Act shall not be construed to create a private right of action to seek administrative or judicial relief, except to the extent expressly provided in this Act.

SEC. 505. EFFECTIVE DATES; TRANSITION RULE.

(a) EFFECTIVE DATES-

(1) PROVISIONS EFFECTIVE UPON ENACTMENT- Sections 2, 101 through 104, 201, 203 through 206, and 403 shall take effect on the date of the enactment of this Act.

(2) PROVISIONS EFFECTIVE UPON THE ENTRY INTO FORCE OF THE CONVENTION- Subject to subsection (b), the Convention and the provisions of this Act not specified in paragraph (1) of this subsection shall take effect upon the entry into force of the Convention for the United States pursuant to Article 46(2)(a) of the Convention, and shall govern Convention adoptions made final thereafter.

(b) TRANSITION RULE- The Convention and this Act shall not apply--

(1) in the case of a child immigrating to the United States, if the application for advance processing of an orphan petition or petition to classify an orphan as an immediate relative for the child is filed before the effective date described in subsection (a)(2); or

(2) in the case of a child emigrating from the United States, if the prospective adoptive parents of the child initiated the adoption process in their country of residence with the filing of an appropriate application before the effective date described in subsection (a)(2).

END

 


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