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106th CONGRESS

2d Session

H. R. 2909

AN ACT

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.

HR 2909 EH

106th CONGRESS

2d Session

H. R. 2909


AN ACT

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 2000'.

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

Sec. 202. Process for accreditation and approval; role of accrediting entities.

Sec. 203. Standards and procedures for providing accreditation or approval.

Sec. 204. Secretarial oversight of accreditation and approval.

Sec. 205. State plan requirement.

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.

TITLE IV--ADMINISTRATION AND ENFORCEMENT

Sec. 401. Access to Convention records.

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- 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); and

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

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

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- Except as used in section 404, 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.

(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 RECORD- The term `Convention 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) that has been preserved in accordance with section 401(a) by the Secretary of State or the Attorney General.

(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 not include any agency of government or tribal government entity.

(15) PERSON WITH AN OWNERSHIP OR CONTROL INTEREST- The term `person with an ownership or control interest' has the meaning given such term in section 1124(a)(3) of the Social Security Act (42 U.S.C. 1320a-3).

(16) SECRETARY- The term `Secretary' means the Secretary of State.

(17) 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 shall serve as the head of the central authority of the United States.

(b) PERFORMANCE OF CENTRAL AUTHORITY FUNCTIONS-

(1) Except as otherwise provided in this Act, the Secretary shall be responsible for the performance of all central authority functions for the United States under the Convention and this Act.

(2) All personnel of the Department of State performing core central authority functions in a professional capacity in the Office of Children's Issues shall have a strong background in consular affairs, personal experience in international adoptions, or professional experience in international adoptions or child services.

(c) AUTHORITY TO ISSUE REGULATIONS- Except as otherwise provided in this Act, the Secretary 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 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 shall be responsible for--

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

(A) accredited agencies and approved persons, agencies and persons whose accreditation or approval has been suspended or canceled, and agencies and 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) not later than the date of the entry into force of the Convention for the United States (pursuant to Article 46(2)(a) of the Convention) and at least once during each subsequent calendar year, providing to the central authority of all other Convention countries a notice requesting the central authority of each such country to specify any requirements of such country regarding adoption, including restrictions on the eligibility of persons to adopt, with respect to which information on the prospective adoptive parent or parents in the United States would be relevant;

(3) making responses to notices under paragraph (2) available to--

(A) accredited agencies and approved persons; and

(B) other persons or entities performing home studies under section 201(b)(1);

(4) ensuring the provision of a background report (home study) on the prospective adoptive parent or parents (pursuant to the requirements of section 203(b)(1)(A)(ii)), through the central authority of each child's country of origin, to the court having jurisdiction over the adoption (or in the case of a child emigrating to the United States for the purpose of adoption to the competent authority in the child's country of origin with responsibility for approving the child's emigration) in adequate time to be considered prior to the granting of such adoption or approval;

(5) 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

(6) 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) ACCREDITATION AND APPROVAL RESPONSIBILITIES- The Secretary 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 as provided in title II. Such functions may not be delegated to any other Federal agency.

(d) ADDITIONAL RESPONSIBILITIES- The Secretary--

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

(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.

(e) ESTABLISHMENT OF REGISTRY- The Secretary and the Attorney General shall jointly establish a case registry of all adoptions involving immigration of children into the United States and emigration of children from the United States, regardless of whether the adoption occurs under the Convention. Such registry shall permit tracking of pending cases and retrieval of information on both pending and closed cases.

(f) METHODS OF PERFORMING RESPONSIBILITIES- The Secretary 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 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 1 year after the date of the entry into force of the Convention for the United States and each year thereafter, the Secretary, in consultation with the Attorney General and other appropriate agencies, shall submit a report describing the activities of the central authority of the United States under this Act during the preceding year to the Committee on International Relations, the Committee on Ways and Means, and the Committee on the Judiciary of the House of Representatives and the Committee on Foreign Relations, the Committee on Finance, and the Committee on the Judiciary of the Senate.

(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 placements for adoption in the United States that were disrupted, including the country from which the child emigrated, the age of the child, the date of the placement for adoption, the reasons for the disruption, the resolution of the disruption, the agencies that handled the placement for adoption, and the plans for the child, and in addition, any information regarding disruption or dissolution of adoptions of children from other countries received pursuant to section 422(b)(14) of the Social Security Act, as amended by section 205 of this Act.

(4) The average time required for completion of a Convention adoption, set forth by country from which the child emigrated.

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

(6) The names of the agencies and persons temporarily or permanently debarred under this Act, and the reasons for the debarment.

(7) The range of adoption fees charged in connection with Convention adoptions involving immigration to the United States and the median of such fees set forth by the country of origin.

(8) The range of fees charged for accreditation of agencies and the approval of persons in the United States engaged in providing adoption services under the Convention.

TITLE II--PROVISIONS RELATING TO ACCREDITATION AND APPROVAL

SEC. 201. ACCREDITATION OR APPROVAL REQUIRED IN ORDER TO PROVIDE ADOPTION SERVICES IN CASES SUBJECT TO THE CONVENTION.

(a) IN GENERAL- Except as otherwise provided in this title, no person may offer or provide adoption services in connection with a Convention adoption in the United States unless that person--

(1) is accredited or approved in accordance with this title; or

(2) is providing such services through or under the supervision and responsibility of an accredited agency or approved person.

(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 the case, if the background or home study is approved by an accredited agency.

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

(3) LEGAL SERVICES- The provision of legal services by a person who is not providing any 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. 202. PROCESS FOR ACCREDITATION AND APPROVAL; ROLE OF ACCREDITING ENTITIES.

(a) DESIGNATION OF ACCREDITING ENTITIES-

(1) IN GENERAL- The Secretary 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 203, and upon entering 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) a nonprofit private entity that has 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; or

(B) a public entity (other than a Federal entity), including an agency or instrumentality of State government having responsibility for licensing adoption agencies, that--

(i) has expertise in developing and administering standards for entities providing child welfare services;

(ii) accredits only agencies located in the State in which the public entity is located;

(iii) on the basis of the most recent review, has not been found to have conducted a State program that has been found to have failed substantially to conform with the requirements of the child and family services review system authorized under section 1123A of the Social Security Act; and

(iv) 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 entity shall not be subject to administrative review.

(3) JUDICIAL REVIEW- An agency or person who is the subject of an adverse action by an accrediting entity 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 shall review the adverse action in accordance with section 706 of title 5, United States Code, and for purposes of such review the accrediting entity shall be considered an agency within the meaning of section 701 of such title.

(d) FEES- The amount of fees assessed by accrediting entities for the costs of accreditation shall be subject to approval by the Secretary. Such fees may not exceed the costs of accreditation. In reviewing the level of such fees, the Secretary shall consider the relative size of, the geographic location of, and the number of Convention adoption cases managed by the agencies or persons subject to accreditation or approval by the accrediting entity.

SEC. 203. STANDARDS AND PROCEDURES FOR PROVIDING ACCREDITATION OR APPROVAL.

(a) IN GENERAL-

(1) PROMULGATION OF REGULATIONS- The Secretary, 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 any standards or procedures developed or proposed by, and 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) SPECIFIC REQUIREMENTS-

(i) The agency provides prospective adoptive parents of a child in a prospective Convention adoption a copy of the medical records of the child (which, to the fullest extent practicable, shall include an English-language translation of such records) on a date which is not later than the earlier of the date that is 2 weeks before: (I) the adoption; or (II) the date on which the prospective parents travel to a foreign country to complete all procedures in such country relating to the adoption.

(ii) The agency ensures that a thorough background report (home study) on the prospective adoptive parent or parents has been completed in accordance with the Convention and with applicable Federal and State requirements and transmitted to the Attorney General with respect to each Convention adoption. Each such report shall include a criminal background check and a full and complete statement of all facts relevant to the eligibility of the prospective adopting parent or parents to adopt a child under any requirements specified by the central authority of the child's country of origin under section 102(b)(3), including in the case of a child emigrating to the United States for the purpose of adoption the requirements of the child's country of origin applicable to adoptions taking place in such country. For purposes of this clause, the term `background report (home study)' shall include any supplemental statement submitted by the agency to the Attorney General for the purpose of providing information relevant to any requirements specified by the child's country of origin.

(iii) The agency provides prospective adoptive parents with a training program that includes counseling and guidance for the purpose of promoting a successful intercountry adoption before such parents travel to adopt the child or the child is placed with such parents for adoption.

(iv) The agency employs personnel providing intercountry adoption services on a fee for service basis rather than on a contingent fee basis.

(v) The agency discloses fully its policies and practices, the disruption rates of its placements for intercountry adoption, and all fees charged by such agency for intercountry adoption.

(B) 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.

(C) 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.

(D) 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.

(E) LIABILITY INSURANCE- The agency agrees to have in force adequate liability insurance for professional negligence and any other insurance that the Secretary considers appropriate.

(F) 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.

(G) 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.

(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 (F) 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.

(c) TEMPORARY REGISTRATION OF COMMUNITY-BASED AGENCIES-

(1) 1-YEAR REGISTRATION PERIOD FOR MEDIUM COMMUNITY-BASED AGENCIES- For a 1-year period after the entry into force of the Convention and notwithstanding subsection (b), the Secretary may provide, in regulations issued pursuant to subsection (a), that an agency may register with the Secretary and be accredited to provide adoption services in the United States in cases subject to the Convention during such period if the agency has provided adoption services in fewer than 100 intercountry adoptions in the preceding calendar year and meets the criteria described in paragraph (3).

(2) 2-YEAR REGISTRATION PERIOD FOR SMALL COMMUNITY-BASED AGENCIES- For a 2-year period after the entry into force of the Convention and notwithstanding subsection (b), the Secretary may provide, in regulations issued pursuant to subsection (a), that an agency may register with the Secretary and be accredited to provide adoption services in the United States in cases subject to the Convention during such period if the agency has provided adoption services in fewer than 50 intercountry adoptions in the preceding calendar year and meets the criteria described in paragraph (3).

(3) CRITERIA FOR REGISTRATION- Agencies registered under this subsection shall meet the following criteria:

(A) The agency is licensed in the State in which it is located and is a nonprofit agency.

(B) The agency has been providing adoption services in connection with intercountry adoptions for at least 3 years.

(C) The agency has demonstrated that it will be able to provided the United States Government with all information related to the elements described in section 104(b) and provides such information.

(D) The agency has initiated the process of becoming accredited under the provisions of this Act and is actively taking steps to become an accredited agency.

(E) The agency has not been found to be involved in any improper conduct relating to intercountry adoptions.

SEC. 204. SECRETARIAL OVERSIGHT OF ACCREDITATION AND APPROVAL.

(a) OVERSIGHT OF ACCREDITING ENTITIES- The Secretary shall--

(1) monitor the performance by each accrediting entity of its duties under section 202 and its compliance with the requirements of the Convention, this Act, other applicable laws, and implementing regulations under this Act; and

(2) suspend or cancel the designation of an accrediting entity found to be substantially out of compliance with the Convention, this Act, other applicable laws, or implementing regulations under this Act.

(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 202 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 enforcement 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 deficiencies 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 subsection 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- A person (other than a prospective adoptive parent), an agency, or an accrediting entity who is the subject of a final action of suspension, cancellation, or debarment by the Secretary under this title may petition the United States District Court for the District of Columbia or the United States district court in the judicial district in which the person resides or the agency or accrediting entity is located to set aside the action. The court shall review the action in accordance with section 706 of title 5, United States Code.

(e) FAILURE TO ENSURE A FULL AND COMPLETE HOME STUDY-

(1) Willful, grossly negligent, or repeated failure to ensure the completion and transmission of a background report (home study) that fully complies with the requirements of section 203(b)(1)(A)(ii) shall constitute substantial noncompliance with applicable requirements.

(2) Regulations promulgated under section 203 shall provide for--

(A) frequent and careful monitoring of compliance by agencies and approved persons with the requirements of section 203(b)(1)(A)(ii); and

(B) consultation between the Secretary and the accrediting entity where an agency or person has engaged in substantial noncompliance with the requirements of section 203(b)(1)(A)(ii), unless the accrediting entity has taken appropriate corrective action and the noncompliance has not recurred.

(3) Repeated serious, willful, or grossly negligent failures to comply with the requirements of section 203(b)(1)(A)(ii) by an agency or person after consultation between the Secretary and the accrediting entity with respect to previous noncompliance by such agency or person shall constitute a pattern of serious, willful, or grossly negligent failures to comply under subsection (c)(1)(B).

(4) A failure to comply with the requirements of section 203(b)(1)(A)(ii) shall constitute a serious failure to comply under subsection (c)(1)(B) unless it is shown by clear and convincing evidence that such noncompliance had neither the purpose nor the effect of determining the outcome of a decision or proceeding by a court or other competent authority in the United States or the child's country of origin.

SEC. 205. STATE PLAN REQUIREMENT.

Section 422(b) of the Social Security Act (42 U.S.C. 622(b)) is amended--

(1) in paragraph (11), by striking `and' at the end;

(2) in paragraph (12), by striking `children.' and inserting `children;'; and

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

`(13) contain a description of the activities that the State has undertaken for children adopted from other countries, including the provision of adoption and post-adoption services; and

`(14) provide that the State shall collect and report information on children who are adopted from other countries and who enter into State custody as a result of the disruption of a placement for adoption or the dissolution of an adoption, including the number of children, the agencies who handled the placement or adoption, the plans for the child, and the reasons for the disruption or dissolution.'.

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

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

(a) LEGAL EFFECT OF CERTIFICATES ISSUED BY THE SECRETARY OF STATE-

(1) ISSUANCE OF CERTIFICATES BY THE SECRETARY OF STATE- 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 of State--

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

(B) has verified that the requirements of the Convention and 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 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, an order declaring the adoption final shall not be entered 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 25 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 purposeof 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 2000.'.

(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) the accredited agency or approved person--

(i) has made reasonable efforts to actively recruit and make a diligent search for prospective adoptive parents to adopt the child in the United States; and

(ii) despite such efforts, has not been able to place the child for adoption in the United States in a timely manner; 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) a background report (home study) on the prospective adoptive parent or parents (including a criminal background check) 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- An order declaring an adoption to be final or granting custody for the purpose of adoption in a case described in subsection (a) shall not be entered 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 best interests of the child.

(c) DUTIES OF THE SECRETARY OF STATE- In a case described in subsection (a), the Secretary, 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.

(d) FILING WITH REGISTRY REGARDING NONCONVENTION ADOPTIONS- Accredited agencies, approved persons, and other persons, including governmental authorities, providing adoption services in an intercountry adoption not subject to the Convention that involves the emigration of a child from the United States shall file information required by regulations jointly issued by the Attorney General and the Secretary of State for purposes of implementing section 102(e).

TITLE IV--ADMINISTRATION AND ENFORCEMENT

SEC. 401. ACCESS TO CONVENTION RECORDS.

(a) PRESERVATION OF CONVENTION RECORDS-

(1) IN GENERAL- Not later than 180 days after the date of the enactment of this Act, the Secretary, 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 records.

(2) 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) ACCESS TO CONVENTION RECORDS-

(1) PROHIBITION- Except as provided in paragraph (2), the Secretary or the Attorney General may disclose a Convention record, and access to such a record may be provided in whole or in part, only if such record is maintained under the authority of the Immigration and Nationality Act and disclosure of, or access to, such record is permitted or required by applicable Federal law.

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

(3) PENALTIES FOR UNLAWFUL DISCLOSURE- Unlawful disclosure of all or part of a Convention record shall be punishable in accordance with applicable Federal law.

(c) ACCESS TO NON-CONVENTION RECORDS- Disclosure of, access to, and penalties for unlawful disclosure of, adoption records that are not Convention records, including records of adoption proceedings conducted in the United States, shall be governed by applicable State law.

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 may charge a fee for new or enhanced services that will be undertaken by the Department of State to meet the requirements of this Act with respect to intercountry adoptions under the Convention and comparable services with respect to other intercountry adoptions. Such fee shall be prescribed by regulation and shall not exceed the cost of such services.

(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.

(c) RESTRICTION- No funds collected under the authority of this section may be made available to an accrediting entity to carry out the purposes of this Act.

SEC. 404. ENFORCEMENT.

(a) CIVIL PENALTIES- Any person who--

(1) violates section 201;

(2) makes a false or fraudulent statement, or misrepresentation, with respect to a material fact, or offers, gives, solicits, or accepts inducement by way of compensation, intended to influence or affect in the United States or a foreign country--

(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 the giving of 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; or

(3) engages another person as an agent, whether in the United States or in a foreign country, who in the course of that agency takes any of the actions described in paragraph (1) or (2),

shall be subject, in addition to any other penalty that may be prescribed by law, to a civil money penalty of not more than $50,000 for a first violation, and not more than $100,000 for each succeeding violation.

(b) CIVIL ENFORCEMENT-

(1) AUTHORITY OF ATTORNEY GENERAL- The Attorney General may bring a civil action to enforce subsection (a) against any person in any United States district court.

(2) FACTORS TO BE CONSIDERED IN IMPOSING PENALTIES- In imposing penalties the court shall consider the gravity of the violation, the degree of culpability of the defendant, and any history of prior violations by the defendant.

(c) CRIMINAL PENALTIES- Whoever knowingly and willfully violates paragraph (1) or (2) of subsection (a) shall be subject to a fine of not more than $250,000, imprisonment for not more than 5 years, 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 may establish by regulation alternative procedures for the adoption of children by individuals related to them by blood, marriage, or adoption, 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 may, on a case-by-case basis, waive applicable requirements 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.).

(c) RELATIONSHIP TO OTHER LAWS- Sections 3506(c), 3507, and 3512 of title 44, United States Code, shall not apply to information collection for purposes of sections 104, 202(b)(4), and 303(d) of this Act or for use as a Convention record as defined in this Act.

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, 3, 101 through 103, 202 through 205, 401(a), 403, 503, and 505(a) 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 provisions of this Act not specified in paragraph (1) shall take effect upon the entry into force of the Convention for the United States pursuant to Article 46(2)(a) of the Convention.

(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).

Passed the House of Representatives July 18, 2000.

Attest:

Clerk.

END

 


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