ADA News (English)

The adoption processes registered before the National Council of Adoptions (CAN) according to Article 56 of the Adoption Law, are subjected to the laws effective at the moment when those adoptions were initiated. Since the CNA was created by a law effective AFTER that moment, such law is totally excluded of the grandfathered adoptions. Even if the adoptive parents would want to remove their adoption from the scope of the already chosen laws and place it under the Adoptions Law scope they could not do it, because once the laws that rule it were chosen, there is no legal provision that can reverse that situation.

Decree 54-77 of the Guatemalan Congress, which is the Law that regulates the notarial procedure of voluntary matters, such as adoptions, in its articles 4 and 32 states that adoption files must be submitted to the Procuraduria General de la Nacion (PGN) for its review about its legality and to issue an opinion within three days. The PGN may approve the adoption or may object it, but there is no legal provision that allows the PGN to abuse its power by demanding to interview the birthmothers as a condition to approve the adoptions, and to use the lack of such interview as an excuse to derail adoptions where the birth mothers have expressed their consent before notary who presides the adoption process, ratifying it with their signature and if they are illiterate, with their thumbprint and the signature of a witness, and before a Family Court appointed Social Worker, who interviews the birth mothers and the children. As a requirement of the US embassy, that later was adopted by all embassies and by the PGN, a DNA must be performed to prove the kinship between mother and child, and also an HIV test must be done to the birthmother to obtain authorization to apply for the visa of the child. In other words: the birthmothers have to sign off their children, not once but at least four times, and also they have to give their blood and their saliva before the adoption file is submitted to the PGN and there are no legal grounds to demand that the birth mothers also ratify their consent before the PGN.

The period to the arbitrarily mandated birth mother interviews expired, also arbitrarily, on August 31st. Those files without such interviews, are being rejected by the PGN, ordering that the Notary either presents the case to the Courts of the Childhood and Adolescence, or continues the process according to the Adoptions Law. As it has been stated, the Adoptions Law cannot be applied to processes already registered before the CNA.

The Courts of Childhood and Adolescence have jurisdiction over those children whose rights are threatened or are being violated. A child who is being adopted is NOT in either situation, and therefore, the PGN opinion has no legal grounds and the Judges of the Childhood and Adolescence have no jurisdiction over those cases.

It is hard to understand why is that the Guatemalan authorities, instead of helping the children whose adoptions are in its final stage, are set in finding ways to sabotage them. The PGN has always abused its power, but what they are doing now is beyond anything done before. We have seen how the list of requirements that the PGN demands, is changed on a daily basis and that there are no guidelines, because each reviewer has an opinion that also changes from file to file. But now, the PGN not only rejects the adoptions, but in those cases where the birth mother did not obey the illegal order to ratify her consent at the PGN, it has sent its people to snatch the child from their foster mothers. However, there are files that have been approved without the birthmother interview, and there is one file that also was approved, that not only lacks such interview, but has the deposition of the director of the hogar where the children are fostered, stating that they are no longer wanted by the adoptive parents, and therefore, the adoption should not proceed, signed by her and by the PGN and the CNA witnesses, and the PGN notary. This leads us to think that the adoptions of the unwanted children are approved, while the wanted and loved are not.

The CNA has as a self appointed President, Elizabeth Hernandez de Larios, a lawyer whose husband is Carlos Larios, the Chief of Staff of President Colom. Since she has nothing to justify the fifty thousand quetzales monthly salary that she awarded herself, and no intention of working for it, she has issued a communication stating that the CAN will not authorize any adoptions at this time, because the CNA is busy working on establishing guidelines to use in accrediting adoption agencies for intercountry adoptions and to focus on completing transition cases.
The communication of the CNA indicates that there were 883 cases that were not submitted by the August 31, 2008 deadline for the verification process. Those cases will be turned over to the Guatemalan courts as abandonment cases. In order to ensure that those cases get quick attention, CNA felt it was necessary to stop accepting new cases at this time.

The CNA is wrong. The children being adopted should not be turned over to the courts as abandoned cases, because those children have adoptive parents and in most cases, the birthmother signed a power of attorney to allow someone to sign the final deed of adoption on her behalf. And even if she did not leave a power of attorney, she may still sign the deed of adoption. The lack of interview does not disqualify the adoption and does not turn a loved and cared child into a case that merits the intervention of the Childhood courts.
As it has been said, the PGN is acting arbitrarily and so is the CNA. Grandfathered cases should be approved by the PGN without further delay and the CNA people should be doing something else to justify their salaries. The children being adopted are a lame excuse to halt adoptions and the guidelines are long overdue, but in no way justify their inactivity. For the sake of all the children who are not being adopted, we hope that someone has a change of heart and understands that the children cannot wait. Those who need a family need it now, not in January, not later.

The Guatemalan courts have been very reluctant to understand that the PGN is illegally abusing its power. The amparos filed have been denied, partly because the judges are afraid to take the side of those who do adoptions and risk a bad press attack, duly paid and orchestrated by UNICEF, and partly because they are jealous of the fees that the adoption lawyers make, according to the always biased press. However, it is necessary to keep using the legal resources to prevent that those adoptions that meet all the legal requirements, are derailed because they do not meet an illegal one. Since the amparo grants protection only to the person who demands it, every one whose birthmother did not appeared for the so called verification at the PGN should file an amparo to demand the approval of the adoption based on the illegal requirement by the PGN of the birth mother interview. The child you are adopting is not an abandoned child and should not be regarded as such. That child has a family who is waiting to shower him/her with love, kisses and comfort. Even if the adoption is not finalized, the person who is adopting a child has rights and now is the moment to exercise them, fighting for that child whose fate is very somber unless someone steps in to rescue him from the good intentions of the CNA and the PGN, entities that are following to the letter the antiadoption policies of UNICEF.