ADA News (English)

The following is based on frequently asked questions that ASSOCIATION DEFENDERS OF ADOPTION (ADA) receives from parents whose adoption process were supposed to be grandfathered when the Adoptions Law made new adoptions impossible in Guatemala.

Question: The Guatemalan Solicitor General (Procuradoría General de la Nación or PGN) initiated new adoption procedures, including interviews with the birth mothers. Are those interviews legal?

Answer: No, the Attorney General has no legislative powers and by establishing such interviews as an additional step that according to the PGN has to be fulfilled, under threats of not releasing the adoption file or taking other kind of measures, the Attorney General is braking the law that orders the PGN to issue an opinion within three days.

Question: Since the interviews started taking place, has the PGN approved and released any cases?

Answer: Yes, the PGN has released some approved cases, but not all the cases that were approved by the former authorities have been released and not all the cases that had successful interviews have been released, either. Some cases have been released, where the reviewer demands the presentation of documents already in the file or the fulfillment of requirement without legal grounds. Those requirements are referred as previos, and there is no limit to the number of them.

Question: Why is the National Council on Adoption (CNA) involved in the registration of the transition cases?

Answer: The new adoption law which ended the notarial adoption process and established the legal requisites for Guatemala’s Hague-complaint adoption system specifically protected notarial adoption cases initiated prior to the law’s December 31, 2007 effective date. However, it stated that those cases would only be processed according to notarial procedures if they were registered with the Guatemalan Central Authority for the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption within 30 working days of the law’s effective date. It established that the Consejo Nacional de Adopciones is the Central Authority for Guatemala. As the Central Authority, the CNA is responsible for ensuring that the duties of the Convention are implemented in Guatemala. Since the Notarial adoptions do not have to be Hague Compliant, the notarial adoptions are out of the scope of the CNA, and therefore, their involvement has no legal justification. The former Attorney General, made that very clear and that is why he was removed. The current AG is willing to allow anything that the CNA wants.

Question: What is the U.S. Embassy doing to make sure that the Government of Guatemala doesn’t add new requirements to transition cases (those that were registered with the National Council on Adoption (CNA) before February 12, 2008)?

Answer: The US Embassy is not doing anything. The establishment of the birth mother interviews, the involvement of the CNA in the grandfathered adoptions and the taking by force and without a court order of children being adopted are clear displays of abuse of power that deny the rights of the adoptive parents to have their adoptions completed according to the laws effective until December 30, 2007. The birth mothers have consistently complained about the verbal abuse that they have to endure at the interviews, of the false offers of economical help, a house, medical and education aid that the interviewers offer them if they claim their children back, and how they make them sign blank papers. The US embassy denies all these facts and even though the interviews have no legal grounds, the US embassy refuses to demand that the CAN stays out of those adoptions, and that the PGN respects the grandfather clause and releases the files in a timely manner without asking for illegal and sometimes impossible to fulfill requirements.

Question: Is the new review process, including birth mother interviews, changes that the Guatemalan authorities recently implemented for these cases and that are intended to add an additional level of assurance that the requirements of the old law are actually being met?

Answer: No, the so-called review process that the Colom appointed PGN made mandatory is a clear abuse of power that has a different agenda. The review done by the PGN does not include a birthmother and child interview and much less, the participation of the CNA, and entity that has no legal right to be involved in the approval of cases initiated before the Adoptions Law became effective.

Question: We have heard that during the birth mother interviews, Guatemalan officials are offering money to the birth mothers as an inducement to withdraw their relinquishment and keep their children? Is this true? Who is present during these interviews and is anyone protecting the rights of the birth mothers?

Answer: The birth mothers are grilled by the officials from the PGN and the CNA. Those activities described are not standard practice for these interviews, but happen very often. Even the written acts of the interviews, signed by the people who conducts the interviews, state that the notary was asked to leave, leaving the birthmother alone with them, and the presence of the psychologist is to aid their goal of derailing the adoption. There is nobody to help the birthmother, not even professional translators. When an indigenous birthmother who does not speak Spanish is brought for interrogation, even if she brings a translator, the interviewers do not allow her to use her translator, bringing instead theirs, who is a cleaning lady who works at the PGN and if she does not speak the same language as the birthmother, as there are at least 21 Mayan languages, the child is taken away, as it has happened in at least two cases.

Question: After these new birth mother interviews, have any adoptions been invalidated? What is happening to these children?

Answer: The PGN has not the right to invalidate anything. According to the law, the PGN has to give an opinion that can approve the adoption, or require the fulfillment of additional requirements. If the notary disagrees with the opinion of the PGN, the case may be submitted to the Family Judge, who can disregard the opinion of the PGN and approve the case. A year ago, when the PGN realized that they were loosing control (and bribes) because the judges were approving adoptions, overruling the objections of the PGN, the judges were falsely accused in the press and intimidated by the bad and powerful publicity of Prensa Libre, with the result that now the judges are totally reluctant to approve adoption cases.

Question: When the PGN finds grounds to disapprove an adoption, what is the legal way to approach that situation and how is the PGN handling it now?

Answer: If the PGN finds grounds to disapprove an adoption, it must state so in the opinion that it has to issue within three days. The way they handle it now, it depends if the reason is found during an interview, the PGN interviewers take away the child, ripping him by force of the arms of the birth mother, caregiver or hogar director, then the child is taken to a court of Childhood and Adolescence, where the judge plays along, validating the rescue (as it is called) done by the PGN. Those judges who refuse to do it and give the children back to the hogars or to the caregivers, do not get any of those cases any more and are subject to investigation.

If the grounds to disapprove the adoption are found while reviewing the file, it can be sent to the section of minors of the PGN for investigation, which can take many months and sometimes even years, without notifying the notary, or the adoptive parents. If the investigation does not bring to the light anything wrong, the file is sent back to the reviewer, to find new reasons to object, as to justify the delay in releasing the file.

Question: Does the Procuraduria de la Niñez (Children’s Issues) of PGN, have investigative powers in the adoption processes?

Answer: Yes, but only after a judge has started a process of protection of the rights of a child and only with regard to those processes, not within an adoption process. If the PGN believes that a felony has been committed, they should refuse approval and present a denounce to the District Attorney. To conduct their own investigation is another abuse of power and a takeover of the role of another entity.

Question: Does the PGN have the power to remove a child from the home/foster family where s/he had been staying and place him in a child protection home designated by a Children’s and Adolescents’ Court Judge.
Answer: Nobody has to right to separate a child form his parents or caregivers against their will, only a judge, after he has verified that the child is subjected to mistreatment or neglect. Therefore, to take by force a child because under duress the birth mother said something that in the opinion of the interviewers does not sound right, is an absolute abuse of power ant the fact that a judge validates that, only proves how overpowering the PGN is, not that what they are doing is right.

Question: Is there any way to find out where a child has been taken after a hostile takeover by the PGN?
Answer: Since the people who cared for the child or the birthmother are not being taken into account, the court refuses to disclose to them the place where the child has been taken and even if they do it, to see the child it is necessary to file a written petition to see the child, which can be granted or denied by the judge. And even if the permission to see the child is granted, the new place where the child is, can refuse to allow visitors, because according to their by laws, visitors are allowed only one day each month, and that day was yesterday, for example.

. Question: Is there a special process for handling the following specific kinds of adoption cases:
• Special instances of adoptions that were in process but not registered as on-going cases before the February 12, 2008, deadline?
• Medical emergencies?
• Abandonments?
Answer: Under current Guatemalan law, any adoption case that was not registered before the February 12 deadline will be processed under the provisions stipulated in the new adoption law. But since the CNA and the PGN show absolute no respect for the February 12 deadline, that also ran out for the verifying process (Article 57 of the Adoption Law), and which is the cornerstone of the birthmother interviews, the CNA should register cases of children who were born last year, with the same ample mind that allows them to totally disregard their own deadline.

Medical emergencies are handled privately by the people who care for the children and there is no need to get an authorization from any State entity to do it, since they are not willing to provide any relief, anyway.
The abandonment processes of children started before the Adoption Law, can follow the same grandfather protection if they were registered with the CNA and if they were not, we state that they can still be registered, because deadlines are not being observed by the CNA.

Question: My lawyer is telling me that a child has been identified for me and that Guatemalan authorities are willing to process this case under the new law. Will my child qualify for an immigrant visa?

Answer: Under Guatemala Adoption Laws effective December 31, 2007, lawyers cannot refer children for adoption; all referrals must be made by the Guatemalan National Council for Adoption (CNA). The CNA is the Guatemalan Central Authority for Intercountry Adoptions and six months later is still trying to develop the procedures for referring children for intercountry adoption. After December 31, 2007, and until these new procedures are established and clarified, it would be unwise to accept any offer or make any payments for placement of an adoptive child from Guatemala.

Since the elimination of the notarial process was unconstitutional, a challenge before the Constitutional Court was filed some months ago. Its final ruling is due any day now and it will restore the notarial process, allowing those foreign parents whose government allowed them to adopt abroad (valid !- 600 for the Americans), to adopt a child. As soon as that happens, we will post it here. We hope that the US embassy does not use the visa card on the magistrates of the Constitutional Court, to influence the outcome, as they did with the congressmen to get the Adoptions Law passed. Since the number of parents who filed and kept valid their I-600 is rather small, the number of adoptions would also be limited.

Question: What can I do about the case of the child I am adopting and whose file has been stuck at the PGN for over a month?

Answer: The law says that when the authorities do not issue the opinion that by law they are obligated to give, in over a month, the petitioner can file an amparo to demand that they release the file. If everybody who is in that situation would do it, the PGN would understand that they cannot hold the files for as long as they want. It is an uphill battle, because in Guatemala the relief can be granted at the beginning of the amparo process or the court can wait until they hear arguments from all the interested parties, including the Ministerio Publico. Usually the courts take many months to rule on the amparo. In case they deny it, the appeal is filed at the Constitutional Court.

The amparo should not be confused with the judicial review that the Family Courts may do of the objections by the PGN. A year ago, after a merciless attack by the press to one of the judges who disregarded the previos of the PGN and approved several cases, the rest of the judges do not dare to touch the adoption processes and the Court of Appeals of the Family branch has sided with the PGN, leaving to the the PGN the freedom to object to whatever they want, and leaving the adoptive parents at the mercy of the PGN.

Question: Will I be able to bring home the child I am adopting and whose process seems to find countless obstacles?

Answer: If your place of residence is the United States, request the help of the authorities of your country, because even if the US DOS states that the review process is necessary, it is not and it violates the Guatemala laws, constitutes an abuse of power of the CNA and the PGN and foremost, it is hurting the children, by depriving them of the family they need to grow up as normal human beings. The validation of the PGN review process by the US embassy is wrong and your authorities should be made aware of that.

Question: Are there any news about the amparos filed by the lawyers?

Answer: An amparo filed by the director of a hogar was filed to demand: a) the return of a child who was taken away at the interview at the PGN, because even though the child had been ruled abandoned by a court of Childhood and Adolescence, a woman sponsored by a group called Sobrevivientes (Survivors) whose battle cry is the killing of women, but lately switched to attack adoptions with empty cribs and women lamenting the loss of their children for illegal adoptions, claimed that the child looked like the one she lost, even though she could not tell the same story twice and could not remember the date when she lost her child; b) to rule about the legality of the interviews and c) to order the PGN to release the files of the children t the hogar that has been withholding for over a month. The court, as usual, refused to grant the petitions, so an appeal was filed last Friday.

Other amparos have been filed by birthmothers whose children were taken by force at the PGN and they are still pending resolution.

Question: Will adoptions from Guatemala open again sometime?

Answer: If it is left to the CNA, adoptions do not stand a chance. They have no idea of how to do them and are not prepared to supply the level of child care that the lawyers and hogars have supplied thus far. When the private hogars close, and the children stop being cared for privately, the CNA will have to find the way to duplicate those services or simply close down their office, because without the income of adoptions, and with an unreasonable law that expects that the private institutions have a highly qualified staff, excellent facilities, nutritious food, and proper medical care but dos not allow them to charge for their services, it is highly unlikely that many of them will remain open.

Question: Is it likley that the child I am adopting will come home?

Answer: Provided there is nothing really wrong with the adoption process and the birth mother does not claim the child back, yes, the chances are that your child will go home, even if now it looks so unlikely. Do not loose the faith and keep demanding collaboration from your authorities, that in an election year are so willing to be in the good graces of the voters. Remind them that the vote of an adoptive parent could the deciding vote.