Americans are observing National Adoption Month in November, continuing a tradition that first began in 1995. “We celebrate the life-changing act of adoption,” President Trump said in this year’s official declaration. “[W]e must continue to assist families who are willing to adopt children in need of a permanent home.”
Sadly, it seems not everyone in the Trump administration got the memo. Just one day earlier, a federal judge in Tacoma, Washington, granted a preliminary injunction requested by three adoption agencies against the U.S. Department of State. In a clear rebuke of bureaucratic overreach, Judge Ronald Leighton overturned the State Department’s “arbitrary and capricious” action, which had forced the three agencies to suspend their adoption programs.
The case, Faith International Adoptions v. Pompeo, is just one salvo in an ongoing conflict between the State Department and adoption organizations. Two years ago, the State Department’s Office of Children’s Issues proposed onerous new regulations governing overseas adoption. Adoption advocates mobilized for a fight, but their real break came with the election of President Trump, whose deregulation agenda killed the plan. The State Department soon regrouped. Earlier this year, it began quietly implementing many of its desired regulations not through direct rule-making, but by hijacking the process by which agencies are accredited.
“[The State Department] had attempted to pass regulations which would have eliminated up to three-fourths of adoption agencies,” says John Meske, executive director of Faith International Adoptions, the lead plaintiff in the lawsuit. “When that failed, they decided to use the accreditation process instead, and get rid of agencies that way.”
‘They Were Caught in a Lie’
The suit’s three plaintiffs—Faith International Adoptions, Amazing Grace Adoptions, and Adopt Abroad, Inc.—lost their accreditation to perform adoptions under the Hague Adoption Convention this spring. This occurred not due to alleged agency misconduct, but to a sudden change in the way the State Department interpreted its own regulations.
In March, Faith International was nearing the end of the long process to renew its Hague accreditation, overseen by the independent Council on Accreditation (COA). Faith’s accreditation was set to expire on March 31, but COA was unable to complete its fact-finding work before that date. As it had done multiple times before, COA notified the State Department that it would defer its decision until after the deadline, allowing Faith’s accreditation to lapse pending a final decision.
However, on March 30, the State Department dropped a bombshell, telling COA that its regulations did not permit any lapse in accreditation. Faith’s accreditation would simply expire, and they would be forced to restart the process as a new applicant, losing many months of work, thousands of dollars, and—worst of all—the ability to continue processing adoptions.
In its legal briefs, the State Department argued that it was simply following long-established procedure. They denied any sudden change in policy, claiming to be unaware of other instances where COA had deferred a decision past the deadline. However, COA was able to produce emails it had sent to the State Department in the past, apprising them of identical situations where a decision was deferred. At the time, the State Department had showed tacit acceptance of the practice and raised no objections.
In Leighton’s ruling, it’s clear that this evidence was damning to the State Department’s case. “State’s current position contradicts its past implicit interpretation and constitutes an ‘unfair surprise,’” Leighton writes. “State had for years acquiesced to COA’s practice of processing applications past the expiration of accreditation, and even acknowledged that practice itself.”
“Judge Leighton’s analysis was blistering,” says Meske. “Essentially, the State Department was caught in a lie.” Indeed, the entire 29-page injunction is a thorough indictment of an unaccountable bureaucracy, doing what it wants and finding legal justification after the fact. Leighton calls State’s case “unpersuasive,” “quite unconvincing,” “unsupported and unintuitive,” “illogical,” and “having little textual support.”
“The Court can identify no good reason why the drafters of the [International Adoption Act] or its regulations would have intended such an unnecessary waste of resources,” Leighton concludes. “It certainly does not benefit the children whose adoptions have apparently been frustrated by State’s directive.”
Finding that the plaintiffs’ case was likely to succeed and that further delays would cause irreparable harm, the judge ordered COA to pick up where it had left off in reaccrediting the agencies. It remains unclear whether the case will move forward in the court system, or whether the reaccreditation of the agencies will resolve the matter and render it moot.
Sadly, despite the win in court, much damage has already been done to the adoption agencies’ financial stability. At least one of the three will likely never recover.
Adoption Advocates Prepare For the Next Fight
Leighton’s unambiguous rebuke of the State Department validates what pro-adoption voices have been saying for years: as the legally designated authority over international adoption, State has gone far afield of its original mandate.
“The Office of Children’s Issues is just making up and re-interpreting the rules and regulations as they go along,” says Ron Stoddart of Save Adoptions. “Of course, the burden is then on the adoption agencies to fund litigation to overturn their decisions. These are small nonprofits, and fighting the Department of State is a killer.”
While claiming its new approach will result in more ethical adoptions, the State Department’s actual impact has been to kill agencies and reduce the number of children adopted. (The statistics speak for themselves: intercountry adoption by Americans has fallen by 80 percent and is still declining.) Instead of collaborating with agencies to work toward needed reforms, the State Department has taken an adversarial stance, making adoption providers the enemy.
“We’re not anti-reform,” says Chuck Johnson, president of the National Council For Adoption (NCFA). “We’d love for the State Department to sit down with those of us in the field, to work through some of these issues and find solutions. Instead, they just shut the whole process down. Now that they’ve been told by a federal court that they’re acting unlawfully, we’re interested to see how they respond.”
There are several issues which may form the basis of further disputes, or even additional lawsuits. Chief among these is the adoption practice known as “soft referrals.” Adoption agencies often use soft referrals to recruit families for older children, or children with special needs. It involves sharing a child’s photo and brief story, then allowing families who have not yet completed a home study to indicate interest in that particular child. The agency then holds the child’s file for a time, while the family completes their home study and other necessary paperwork.
This tool is extraordinarily effective in finding families for children who would otherwise grow up without parents. Unsurprisingly, seeing a child’s face and learning his or her story is often the motivation families need to initiate the difficult and costly adoption process. What’s more, soft referrals are widely used to recruit adoptive families for children in U.S. foster care.
“It’s considered best practices here in America,” says Johnson. “And yet the State Department has warned agencies not to do this for international adoption.”
Since the State Department issued a directive against soft referrals earlier this year, advocates say there have already been significantly fewer placements of children with special needs. “I’ve talked to dozens of agencies, and a lot of them are no longer doing the advocacy they were previously doing for these children, due to fear of losing their accreditation” says NCFA’s Ryan Hanlon. “It’s already affected hundreds of placements of children with special needs, and unfortunately it’s going to continue.”
Rhetoric vs. Reality In Washington D.C.
As adoption advocates welcome this one small victory, the knowledge that thousands of children are needlessly growing up without parents does not allow for much celebration. They continue to hope the State Department will be held accountable for its anti-adoption culture and record, restoring its legal mandate to facilitate and promote adoption.
Even as Assistant Secretary of State Carl Risch issued a statement commemorating National Adoption Month, critics are frustrated by the disparity between rhetoric and reality.
“I am extremely disappointed that Carl Risch has not taken action to reverse the assault on orphan children and adoptive families,” Stoddart says. “When you have the authority to solve a problem and do nothing, the blame cannot fall on the lower levels of the State Department. It should not require expensive litigation to force the State Department to follow the law and their own regulations.”
The president’s National Adoption Month declaration ends with this call: “I encourage all Americans to observe this month by helping children in need of a permanent home secure a more promising future with a forever family, so they may enter adulthood with the love and support we all deserve.” Let’s hope the State Department is listening.
