CONTENTS INTRODUCTION I. FACTUAL BACKGROUND OF REHOMING II. LEGAL BACKGROUND: INTERNATIONAL ADOPTION AND REHOMING A. Rehoming and International Adoptions B. The Legality of Rehoming III. PROPOSAL TO REDUCE AND ELIMINATE REHOMING A. Federal Legislation for International Adoptions 1. Preadoption: Mandated Parental Education 2. Postadoption: Adoption Services Provider Readoption Requirement 3. Postadoption: Expanding Postadoption Services 4. Supplementary State Actions: Safe Haven Programs B. CAPTA Modification Scheme CONCLUSION INTRODUCTION
Typically, "rehoming" is a term that refers to giving away a pet after the original owner realizes that he or she is unable to fulfill his or her responsibilities to the animal. (1) In September 2013, Reuters news agency released an investigative report, entitled The Child Exchange, which informed the public about the rehoming of adopted children. (2) The report focused on a number of children who had been rehomed, parents who had rehomed their adopted children, and families that had taken custody of these children through the process of rehoming. (3)
In essence, the report shed light on a procedure where adoptive parents transferred the custody of their adopted child, without any oversight by any authority or government agency, through a power of attorney. (4) As the Reuters report explained:
Through Yahoo and Facebook groups, parents and others advertise the unwanted children and then pass them to strangers with little or no government scrutiny, sometimes illegally ... It is a largely lawless marketplace. Often, the children are treated as chattel, and the needs of parents are put ahead of the welfare of the orphans they brought to America. (5) The rehoming procedure described in the article is as follows: (1) the adoptive parents post a request on rehoming webpages asking for someone to take the adopted child; (2) once they find a willing party, they give the child to the new party with a power of attorney document, which is simply "signed by the old parents and the new guardians, and witnessed by a notary." (6) Disturbingly, in instances of rehoming, the power of attorney document "is filed nowhere; it functions, in essence, as a receipt." (7)
Adoption law is largely a product of the states and, thus, great variation exists as to what constitutes a legal adoption or legal transfer of custody from state to state. (8) In many cases, rehoming falls in a gray area of the law where it is unclear whether it constitutes a valid transfer of custody or whether it is illegal. (9) Regardless, state authorities have made little effort to curb the practice of rehoming and law enforcement officials have largely failed to prosecute potential offenders. (10)
Overall, rehoming is an unacceptable practice and needs to be eliminated. As such, this proposal was created to reduce, and eventually eliminate, all instances of rehoming. Ultimately, this proposal has two segments: (1) reducing the rehoming of internationally adopted children through federal legislation that increases the responsibilities of adoption service providers, and (2) reducing all instances of rehoming by modifying existing federal legislation to cover instances of rehoming.
Part I will analyze the factual background behind rehoming. Part II will analyze the legal background of rehoming, focusing on an analysis of international adoption law and transfer of custody pursuant to a power of attorney document. Part III will propose solutions at the federal level in order to curb the prevalence of rehoming.
FACTUAL BACKGROUND OF REHOMING
Until recently, the public was (and is likely still) largely ignorant of the prevalence of rehoming. More importantly, law enforcement officials were largely unaware of the existence of rehoming. (11) This lack of awareness is probably the result of the relatively recent advent of rehoming. (12) In fact, "[n]o state, federal or international laws even acknowledge the existence of re-homing." (13)
Frighteningly, the incidences of rehoming described in the Reuters' investigative report demonstrate the ease with which custody of children can be transferred from person to person in the United States. (14) The first step in the rehoming process is for the parents to seek out potential parties that might be interested in taking the child. (15) In most of the incidences of rehoming, the parents "turned to online forums to advertise and facilitate the placement of their children without the benefit of safety and criminal background checks or a home study to determine the appropriateness of the placement." (16) In some instances, the parents would post the advertisement and place the child within the same day. (17)
Some of the instances of rehoming are transfers from adoptive parents to strangers who had previously been (or would be) declared incompetent to parent their own biological children. (18) For example, Nicole Eason obtained six children through the process of rehoming. (19) Prior to rehoming all six of these children, Eason had her firstborn biological child permanently taken from her by state authorities in Massachusetts for neglect. (20) Eason subsequently had her only other biological child permanently taken by South Carolina authorities when it was discovered that a friend's child previously died while in Eason's care. (21) In fact, South Carolina welfare officials also said "'[t]he home environment was deplorable for an infant, [with] trash, clothes, stale food and stagnant water ... The parents have an open investigation in [Massachusetts] where their parental rights are being terminated due to physical abuse on another child. Parents have severe psychiatric problems as well[,] with violent tendencies." (22) Despite this prior history, Eason was still able to obtain six children through the process of rehoming because of the lack of oversight by any regulatory, judicial, or law enforcement authority. (23) Moreover, the parents of these children were so desperate to rid themselves of their parental responsibilities that they did not obtain a background check on Eason to verify her fitness as a parent. (24)
Eason is just one example of an individual that is clearly unfit to be a parent who has still been able to obtain children through rehoming. The Reuters article alone provides numerous other examples of individuals who are unfit to be parents, such as: (1) Randy Winslow, a self-proclaimed "lil boylover," who is currently serving 20 years in prison for distributing child pornography; (25) (2) an unnamed man who sexually assaulted a Russian girl that was brought into his home through rehoming; (26) and (3) Debra Schmitz, a "parent" to seventeen children, who made the children dig their own graves as a form of punishment and "pleaded no contest to 14 counts of child abuse and one count of child trafficking." (27)
Most recently, Justin Harris, a State Representative in Arkansas, rehomed children that his family had adopted. (28) First, Harris placed the children in the home of Eric Francis, who is currently serving forty years in prison for raping one of the rehomed children. (29) Later, Harris removed the children from the Francis's home and rehomed them again, this time with another family. (30)
Logically, it is unsurprising that the people interested in obtaining children through rehoming would be less likely to be fit parents than those who adopt through legal means because individuals with unfit backgrounds will actively avoid any oversight when attempting to become parents. This lack of government oversight is what makes rehoming so attractive to those who are unfit to be parents, which in turn, is why the process is so adverse to the best interests of the child. (31)
LEGAL BACKGROUND: INTERNATIONAL ADOPTION AND REHOMING
In order to understand the legal background of rehoming, one must first understand the laws governing international adoptions in the United States. According to the United States Department of State, international adoptions are "governed by three sets of laws: U.S. federal law, the laws of the child's country of residence, and the laws of [the] U.S. state of residence." (32) Complicating matters further, the applicable U.S. federal law changes depending on whether the child's country of residence is a member of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, an international adoption treaty. (33) If the child's country of residence is a Hague-member country, then the U.S. federal law governing adoptions from Hague-member countries applies. Conversely, if the child's country of residence is not a Hague-member country, then the adoption laws of the U.S. state of residence take on a larger role. (34) For purposes of this Note, the two aspects of international adoption that have the most potential to curb the practice of rehoming are: (1) the accreditation requirements for the adoption service providers, and (2) the parental education requirement. (35)
Until recently, international adoptions from non-Hague-member countries required that the adoption service provider simply be licensed in the U.S. state where the adopted child will reside. (36) By contrast, adoptions from Hague-member countries required that the adoption service provider be "approved by one of the Department of State's designated Accrediting Entities" in addition to being licensed in the state of residence. (37) In July 2014, all international adoption service providers became subject to the same approval and accreditation procedures that Hague adoption service providers are subject to. (38) All organizations must be approved by the Department of State if they provide any of the main adoption services. (39) In order to receive approval from the Department of State, the adoption service provider must provide evidence that it is in full compliance with the Department of State's standards as codified in the Code of Federal Regulations...