ADA News (English)

At the request of the interested party and for the legal uses such party may deem convenient, I, Susanne Maria Franz Wagner de Passarelli, Legal Translator, authorized by the laws of the Republic of Guatemala, to translate the Spanish and English languages, DO HEREBY CERTIFY: To have had at sight the Manual of Good Practice of Local and International Adoptions in Guatemala, written in Spanish, which I have faithfully translated into English to the best of my knowledge and ability and reads as follows:
“PROTOCOL OF GOOD PRACTICE OF LOCAL AND INTERNATIONAL ADOPTION IN GUATEMALA.
GUATEMALA, FEBRUARY 2007.
INTRODUCTION:
This Protocol of Good Practice regarding Local and International Adoptions in Guatemala was developed by representatives of entities of the State, involved in the duty of integral protection of minors. It arises from the need to rely on a guide of good practices adjudged by the entities, in order to preserve and promote the respect of the Human Rights of minors to be adopted in Guatemala, taking as main guarantee the superior interest of the minor and the duty of the State to carry out the Constitutional order to guarantee the enjoyment of fundamental rights of the minors.
The implementation of good practices of adoptions in Guatemala constitutes a step in the frame of the political Constitution, the Convention of the Rights of Minors and the Law of Integral Protection of Minors and Adolescents, whose principals, according to what is established in the Court of Constitutionality, are legal doctrine of obligatory fulfillment for the entities of the State. As a consequence, it responds to the absence of procedures and practices which adapt to the new vision established by the LPINA (Law of Integral Protection of Minors and Adolescents) in regard to the adoption, in conformity to the doctrine of the integral protection; prepares the State for the execution of a specific law of Adoptions and the imminent force of The Hague Convention, related to the Protection of Minors and the cooperation regarding international adoption.
The entities involved in the elaboration of this protocol are:
1. Procuraduria General de la Nación [roughly equivalent to the office of the Solicitor’s General].
2. Secretaria de Bienestar Social de la Presidencia de la República.
3. Judicial Body.
4. Department of State.
5. Justice Department.
6. General Director of Immigration.
Legal Basis: this Protocol is based, among other, in the following articles: 1, 2, 3, and 31 of the Political Constitution of the Republic; 9, 10 and 11 of the Law of the Judicial Body; 18, 112, 113 and 116 of the Law of Integral Protection of Minors and Adolescents; 5, 9, 20 and 21, of the Convention of the Rights of Minors; 10 and 13 of the Declaration of the United Nations regarding the social and juridical principals related to the protection and wellbeing of minors, with reference to the national and international adoption and placement in foster homes, dated December three of the year nineteen hundred eighty six; 6th Principle of the Declaration of United Nations of the Rights of Minors, issued in the year nineteen hundred fifty nine.
I. GUIDING PRINCIPLES OF THE ADOPTION IN GUATEMALA.
1. Restitution of the Right of Family: When a minor is temporary or definitively deprived from his family or when his or her superior interest requires that he or she no longer remains with his or her biological family, the restitution of the threatened or violated right must be promoted in the following order (Art 20 CDN, 8 and 22 of LPINA):
a. The extended family (Art 4 DNU, art 5 of CDN and 8 and 22 of LPINA).
b. National adoption (art 21 b) CDN , 8 and 22 LPINA).
c. International adoption (art 21b) DCN, 8 and 22 LPINA).
2. Guiding Principles: Since the adoption is a judicial institution in virtue of which it restitutes the right to a family of a minor lacking one, the following principles must always be taken in consideration in administrative, judicial and notarial proceedings (8 and 22 LPINA):
a. The superior interest of the minor (art 5 LPINA, 3 CDN and 5 DNU).
b. Ruling of his or her juridical condition (art 21a) DCN and 75, 104 a), 109, 110, 112, 116b) and 123C) LPINA).
c. Consideration of the opinion of the minor (art 116a LPINA and 12 CDN).
d. Subsidiary of the adoption (art 5, 14, 18, 19, 20, 21, 22, 23, LPINA 8 and 20.3 CDN).
e. Consent issued under knowledge of the cause of the base of the previous assessment (art 21a CDN) 8 and 22 LPINA, 15 DNU).
f. Respect of the origin and cultural identity of the minor (art 21b CDN and Art 17 DNU, 8 and 22 LPINA).
h. That the adoption grants no cause to illegal financial benefits to the persons who participate in the same (Art 21d) CDN, Art 20 DNU, 8 and 22 LPINA).
II. PROCEEDINGS CARRIED OUT PREVIOUS TO THE ADOPTION. REGARDING THE ORIGIN OF THE MINOR.
1. Minor with biological father and mother. When the superior interest of the minor request that he or she no longer remains with his or her biological family and the father and mother desire to give him or her up for adoption, they must place him or her before a Judge of Minors and Adolescents, who will initiate the judicial protection process and will order (Art 8, 18, 22, 75 and 104a) LPINA and Art 20, 1, 21a) CDN):
1. That the father and mother undergo the previous assessment process regarding the effects and consequences of the adoption, which will be guaranteed by Procuraduría General de la Nación [roughly equivalent to the office of the Solicitor General], by means of an assessment team (Art 21 CDN Art 15 DNU, 8 and 22 LPINA).
2. The precaution measure to protect the minor and to place him with an extended family, foster family or temporary home, duly accredited by the Secretaria de Bienestar Social de la Presidencia (Art 110, 111, 112g) and h), 116b) and 259 LPINA and Article 5 k) Governmental agreement 18-2006).
3. The investigation of the origin of the minor and verification of his or her personal data, by means of Procuraduría General de la Nación, which may be assisted by the Policia Nacional Civil [National Civil Police], taken as proof. (Art 121 c) LPINA, art 191 CPCYM).
a. Photographs, fingerprints, sole prints and palm print and the medical forensic exam of the minor. (art 191CPCYM).
b. That the DNA test is carried out, in order to verify the relationship, with the intervention of Procuraduría General de la Nación (art 191 CPCYM).
4. The discontinuance of any voluntary adoption proceeding in Procuraduría General de la Nación (art 108d) LPINA).
5. To hear the opinion of the minor in order to be taken in consideration according to his or her age and maturity (art. 116 a) LPINA, art. 12 CDN).
In definitive hearing (article 123 LPINA, Law of Integral Protection of Minors and Adolescents), the Judge will receive the results of the previous assessment, the investigation carried out by Procuraduría General de la Nación (article 108 and 120 of LPINA, Law of Integral Protection of Minors and Adolescents), the scientific proof, the opinion of the minor and of the attorney of Procuraduría General de la Nación and rule accordingly.
When ruling is pronounced and this declares the violation of the right to a family of the minor (art 123 c) LPINA), the Judge will appoint a tern no longer than six months so that the Secretaria de Bienestar Social de la Presidencia restitutes the right to a family by means of adoption, and to designate an adoptive family, according to the principles of this Protocol. (12 DNU and 76g)LPINA.
2. Regarding the abandoned minor. An abandoned minor will be place before a Judge of Minors and Adolescents, who will initiate the judicial process of protection (Art. 75b) 104a) LPINA) and will order:
1. The discontinuance of any voluntary adoption proceeding in Procuraduría General de la Nación. (108d) LPINA).
2. The precautionary measures in order to protect and integrate him or her with a substitute family or temporary home, duly accredited by the Secretaria de Bienestar Social de la Presidencia (Art 110, 111, 112G) and h), and 116b) and 259 LPINA and Article 5 literal k) governmental agreement 18-2006.
3. The investigation of his or her origin, by means of Procuraduría General de la Nación, who may be assisted by the Policía Nacional Civil, taken as proof. (Art 120, 121 c, LPINA, art 191 CPCYM).
a. Photographs, finger, palm and sole prints, the medical forensic exam of the minor. (art 191 CPCYM).
b. To carry out the DNA exam.
4. To hear the opinion of the minor in order to be taken in consideration according to his or her age and maturity. (Art 116a) LPINA, art 12 CDN).
5. Certificate of the conducive against any person which may result responsible of the perpetration of a crime. (Art 118 LPINA).
If an ideal familiar resource exists, the Judge will order the integration of the minor to the same (art 18 LPINA); otherwise, he will declare on behalf of the adoptability of the minor by means of a ruling. (art 123 of the LPINA.), appointing a term no longer than six months so that the Secretaria de Bienestar Social de la Presidencia restitutes the right to a family, which will appoint a family according to the principles of this protocol.
B. REGARDING THE PETITIONERS:
1. REQUIREMENTS. According to the guiding principles and the legal basis of this protocol, it is essential that prior to initiate an adoption proceeding, the petitioner must count with the certificate of capability and empathy issued by the Adoption Program of the Secretaria de Bienestar Social de la Presidencia. (Art 240 CC, Art 29. Decree 54-77, Art. 14 and 16 DNU).
2. Written proof of capability. An evidence issued by the Adoption Program of the Secretaria de Bienestar Social de la Presidencia, which acknowledges a family capable to protect and respect a minor not born in it and who has been judicially declared in violated his Right of Family. (Art 240 CC, Art 29 Decree 54-77, and Art 14 DNU), which will be considered the following aspects among others:
a) Home Study, medical and psychological study.
b) Recommendation letters.
c) Written proof of lack of criminal history.
d) Written proof of domicile.
e) Patrimony estate.
f) Birth and Marriage certificate.
3. Written proof of empathy. An evidence issued by the Adoption Program of the Secretaria de Bienestar Social de la Presidencia, who acknowledges the adopters declared as ideal, as the most adequate for the minor declared in violation of the right of family, after the selection process is complete and cohabitation according to what is established in the manual of the program. (Art. 16 DNU).
4. Regarding the international petitioners. The foreign persons that desire to adopt a Guatemalan minor must also fulfill the previous requirements, as well as with the one established in their country of origin and with the following (Art 21 CDN, Art 14, 16 and 20 DNU, 8 and 22 LPINA, Art. 240 CC, Art 29, Decree 54-77).
a) The special power of attorney with representation for adoptions.
b) Sworn statement of adoption expenses, including professional and technical fees, transportation expenses, sustenance, donations and all those expenses related to this. (Art 22 DNU).
c) Written official proof in which it is made evident that the minor will enjoy the same rights and regulations equivalent to the ones existing in relation to the adoption in Guatemala, which may be legally adopted and with the other necessary documents for the fulfillment of the adoption formality, such as the consent of the qualified authorities. (Art 24, LPINA, Art 20 and 22 DNU).
5. REGISTRY: All adoption request must be recorded in a data base of Secretaria de Bienestar Social de la Presidencia, which will notify the Procuraduría General de la Nación. (Art 18 DNU, 8 and 22 LPINA).
The Department of State, by means of Diplomatic or Consular representative of Guatemala, will grant information regarding the adoption process in Guatemala, for which the Secretaría de Bienestar Social de la Presidencia will issue an instructive.
III. ADOPTION PROCESS.
1. Initiation of the Process. When an adoption process is initiated, being judicial or notarial, Procuraduría General de la Nación will be notified. (Article 5 LPINA, Art 3 CDN, art 21 CDN.)
2. Hearing of the Procuraduría General de la Nación. After the previously appointed requirements are fulfilled, the Notary or Judge, according to what is established in the Civil Code and the Law of Notarial Proceedings of Voluntary Jurisdiction Affairs, will grant hearing to Procuraduría General de la Nación, including in the file: (Art. 32 OF Decree 54-77 and 243 cc.)
1. Certificate of ruling of violation of the right to a family of the minor (Art 123 LPINA).
2. Written evidence issued by the Adoption Program of Secretaria de Bienestar Social de la Presidencia. (Art 240 cc, art 29 Decree 54-77).
3. In the case of international adoptions:
i. Written evidence of using up all national resources, issued by Secretaria de Bienestar Social de la Presidencia (Art 5 and 21 of CDN, art 8, 18, 22 and 112 of LPINA).
ii. Documents and Official written evidence appointed in section II letter B, number 4 of this Protocol. (Art 240 CC, Art 29. Decree 54-77, Art 14 and 16 DNU).
Procuraduría General de la Nación evacuates hearing indicated by law and issue opinion. If the opinion is favorable, the legalization of the adoption may proceed, notifying Secretaria de Bienestar Social for the effect.
In opposite case, Procuraduría General de la Nación will advise of the corresponding mistakes, and if they are not fulfilled, the Adoption Program of Secretaria de Bienestar Social de la Presidencia may proceed to the seek of a new familiar resource. (Art 32 of Decree 54-77, Art 243 of CC).
3. Regarding the Legalization of Adoption. With the favorable opinion of Procuraduría General de la Nación according to what is established by law, the legalization of the adoption will proceed by means of public deed. (Art 32 of Decree 54-77 Art 243 of CC).
4. Issuance of passport: Once the adoption is finalized and the requirements appointed by law are fulfilled, Secretaria de Bienestar Social will inform to the General Direction of Immigration, for the effect of the issuance of the passport of he minor to be adopted.
IV. REGARDING THE POST ADOPTION.
1. Regarding the continuation of the adoption. The object of the continuation is to evaluate the adequate adaptation and development of the minor with his or her new family and social environment. Secretaria de Bienestar Social as a capable authority in the subject of protection will carry out the supervision of the minors given up in adoption. (Art 259 LPINA).
The Government by means of Secretaria de Bienestar Social de la Presidencia, must veil for the minors and adolescents who will be adopted in other countries, to enjoy of at leas the same rights and regulations equivalent to the one existing in relation to the adoption in the country of origin, for which the necessary measures will be established, which must be established by the institutions involved. (Art 24, 76 and 259 LPINA, 21 e) CDN and 18 DNU).
V. Authorization of Program of private entities of Social Welfare.
1. Registry and authorization of Programs. The homes, foster families and protection and care programs of minors, must be registered and authorized by Secretaría de Bienestar Social de la Presidencia de la Republica. (Art 76a), 116 b), 259 LPINA, Article 5 letter k) Governmental Agreement 18-2006).
In the city of Guatemala, on March of the year two thousand seven. [No signatures appear on the document.]”
IN WITNESS WHEREOF, and without assuming any responsibility for the translated document, I issue, sign and seal the present legal translation, duly compared with its original, on seven sheets of bond paper, in the city of Guatemala, on March two of the year two thousand seven.