Outgoing Cases: Guidance on 22 CFR 96.54(a)

March 2009

The Department of State notes that 22 CFR 96.54(a), under Standards for Cases in Which a Child Is Emigrating From the United States (Outgoing Cases), does not directly address instances where adoption service providers assist birth parent(s) in identifying prospecting adoptive parent(s).

Section 96.54(a) states:

Except in the case of adoption by relatives or in the case in which the birth parent(s) have identified specific prospective adoptive parents(s) or in other special circumstances accepted by the State court with jurisdiction over the case, the agency or person makes reasonable efforts to find a timely adoptive placement for the child in the United States

Specifically, if the birth parent(s) have identified specific prospective adoptive parent(s) consistent with applicable State law, the prospective adoptive parent recruiting procedures set forth in 96.54(a)(1)-(4) do not apply.

In accordance with 22 CFR 96.54(b), the accredited agency, temporarily accredited agency, or approved person (hereinafter referred to as accredited adoption service provider) that provides adoption services in a Convention case is to demonstrate to the court with jurisdiction over the adoption that the birth parent(s) identified the specific prospective adoptive parent(s) if permitted by applicable State law as part of its showing that sufficient reasonable efforts were made.

An accredited adoption service provider may provide adoption and other services to a birth parent(s), including providing access to information on prospective adoptive parents, without jeopardizing its accreditation status.

However, only the birth parent(s) can identify the specific prospective adoptive parent(s) in order for the exception to the adoptive parent recruiting procedures set forth in 96.54(a)(1)-(4) to apply.

For further background, the Preamble to the Final Rule, issued on February 15, 2006 (repeated below) is helpful.

Preamble to the Final Rule, 22 CFR Part 96
Federal Register / Vol 71, No. 31, Wednesday, February 15, 2006, p. 8113-8114

11. Comment: Several commentators recommend the elimination of the exception to the reasonable efforts provided in 96.54(a), which allows birth parents to identify specific adoptive parents. Other commentators would like the birth parents to have more input on who adopts their child.

Response:We have not made any changes in response to these comments, other than to clarify, in 96.54(b), that the standard does not, in fact, provide an exception to the "reasonable efforts" rule; rather it provides exceptions to the prospective adoptive parent recruiting procedures set forth in 96.54(a)(1)-(4), thereby recognizing that in some cases, "reasonable efforts" can include no efforts at all, if no such efforts are in the child's best interests.The regulations also permit a State court to accept or reject an accredited agency's or approved person's recommendation that it is not in the best interest of a particular child that the procedures set forth in 96.54(a)(1)-(4) be followed. This approach is fully consistent with the Convention, which requires merely that due consideration be given to placing the child in the United States, as well as with the IAA. On the question of birthparent preferences, the rule aims for consistency with current practices under State law, by allowing birth parents to select among prospective adoptive parent(s), so long as State law permits them to do so. Some birth parents may prefer that their child be placed with a relative in another country who has the capacity to provide suitable care for the child.Other birth parents may prefer a non-relative placement abroad. Nothing in the Convention or the IAA warrants taking a course different from applicable State law on the question of birthparent preferences (emphasis added).

Note: The Outgoing Cases Guide and Guide for State Authorities are being updated to reflect this guidance and will be reposted in the near future.