The rules in this chapter are adopted to provide practice and procedure for intercountry adoptions conducted under the Hague Adoption Convention and applicable California law.
(b) Applicability of rule.
This rule applies to any adoption of a child resident in the United States by an individual or individuals residing in a convention country, as defined in Family Code section 8900.5(f), if, in connection with the adoption, the child has moved or will move between the United States and the convention country.
(c) Adoption request and attachments.
(1) The Adoption Request (form ADOPT-200) and Verification of Compliance with Hague Adoption Convention Attachment (ADOPT-216) must allege specific facts about the applicability of the Hague Adoption Convention and whether the petitioner is seeking a California adoption, will be petitioning for a Hague Adoption Certificate, or will be seeking a Hague Custody Declaration.
(2) The court must determine whether a child resident in the United States has been or will be moved to a convention country in connection with an adoption by an individual or individuals residing in a convention country.
(d) Evidence required to verify compliance with the Hague Adoption Convention.
If the Hague Adoption Convention applies to the case, and the court is asked to issue findings and an order supporting a request for the U.S. Department of State to issue a Hague Adoption Certificate or a Hague Custody Declaration for the adoption placement, the court must receive sufficient evidence to conclude that the child is eligible for adoption and find that the placement is in the best interest of the child. The court must receive evidence of all of the following:
(1) The adoption agency or provider is accredited by the Council on Accreditation, is supervised by an accredited primary provider, or is acting as an exempted provider, as defined in Family Code section 8900.5(g), to provide intercountry adoption services for convention cases;
(2) A child background study has been completed and transmitted to a foreign authorized entity in accordance with the regulations governing convention adoptions with proof that the necessary consents have been obtained and the reason for its determination that the proposed placement is in the child's best interest, based on the home study and child background study and giving due consideration to the child's upbringing and his or her ethnic, religious, and cultural background;
(3) The child is eligible for adoption under California law;
(4) The adoption agency or provider has made reasonable efforts, as described under 22 Code of Federal Regulations section 96.54(a), to place the child in the United States, but was unable to do so, or an exception to this requirement applies to the case. Such reasonable efforts include: (1) disseminating information on the child and his or her availability for adoption through print, media, and Internet resources designed to communicate with potential prospective adoptive parents in the United States; (2) listing information about the child on a national or state adoption exchange or registry for at least 60 calendar days after the birth of the child; (3) responding to inquiries about adoption of the child; and (4) providing a copy of the child background study to potential U.S. prospective adoptive parent(s);
(5) The agency has determined that the placement is in the child's best interest;
(6) A home study on the petitioner(s) has been completed, which includes:
(A) Information on the petitioner(s), such as identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, an assessment of their ability to care for the child, and the characteristics of the child for whom they would be qualified to care;
(B) Confirmation that a competent authority has determined that the petitioner is eligible and suited to adopt and has ensured that the petitioner has been counseled as necessary; and
(C) The results of criminal background checks;
(7) The Hague Adoption Convention authority designated by the receiving country has declared that the child will be permitted to enter and reside permanently or on the same basis as the adopting parent(s) in the receiving country, and has consented to the adoption;
(8) All appropriate consents have been obtained in writing in accordance with the following standards:
(A) Counseling was provided to any biological or legal parent or legal guardian consenting to the adoption;
(B) All biological or legal parents or legal guardians were informed of the legal effect of adoption;
(C) Such consent was freely given without inducement by compensation;
(D) Such consent was not subsequently withdrawn; and
(E) Consents were taken only after the birth of the child.
(9) As appropriate in light of the child's age and maturity, the child has been counseled and informed of the effects of the adoption and the child's views have been considered. If the child's consent is required, the child has also been counseled and informed of the effects of granting consent and has freely given consent expressed or evidenced in writing in the required legal form without any inducement by compensation of any kind;
(10) The adoption agency or provider has committed to taking all steps to ensure the secure transfer of the child, including obtaining permission for the child to leave the United States;
(11) The adoption agency or provider has agreed to keep the receiving country's designated Hague Adoption Convention authority informed about the status of the case;
(12) The petitioner consents to adoption or has agreed to accept custody of the child for purposes of adoption;
(13) The adoption agency or provider demonstrates that any contact between the birth family and the adoptive family complies with applicable state law and federal regulations governing the timing of such communications; and
(14) The adoption agency or provider certifies that no one is deriving improper financial gain from the adoption and describes the financial arrangement with the prospective adoptive family.
(e) Court findings required to support the application for a Hague Adoption Certificate or Hague Custody Declaration.
The court must make findings relating to the application for a Hague Adoption Certificate or Hague Custody Declaration from the Department of State. To meet the requirements for issuance of the certificate or declaration, the findings must include that:
(1) The adoption is in the child's best interest;
(2) The substantive regulatory requirements set forth in 22 Code of Federal Regulations sections 97.3(a)-(k) have been met; and
(3) The adoption services provider meets the requirements of 22 Code of Federal Regulations part 96.
(f) Court findings to verify that all Hague Adoption Convention requirements have been met.
If the court is satisfied that all Hague Adoption Convention requirements have been met, the court must make findings of fact and order the following:
(1) The child is eligible for adoption;
(2) The grant of custody with respect to the proposed adoption is in the child's best interest; and
(3) The court grants custody of the child to the named family for purposes of adoption, as applicable.
(g) Petitioner's intent to finalize adoption.
If the adoption is not finalized in California, a petition for a Hague Custody Declaration must state specific facts indicating that the petitioner intends to finalize the adoption in petitioner's country of residence or that petitioner will return to California after any required post-placement supervisory period to finalize the adoption in a superior court of California.
Rule 5.490 adopted effective July 1, 2013.
Advisory Committee Comment
The Hague Adoption Convention (HAC) is a treaty that entered into force with respect to the United States on April 1, 2008. The HAC strengthens protections for children, birth parents, and prospective adoptive parents and establishes internationally agreed-upon rules and procedures for adoptions between countries that have a treaty relationship under the HAC. It provides a framework for countries party to the Convention to work together to ensure that children are provided with permanent, loving homes; that adoptions take place in the best interest of a child; and that the abduction, sale, or traffic of children is prevented. This rule expands procedurally on Family Code sections 8900 through 8925, which address intercountry adoptions, by specifying the findings and evidence set forth in 22 Code of Federal Regulations section 97.3 that are required by a state court when the HAC applies to an adoption.