Office of Children’s Issues Gives A FAQ on ‘Soft Referrals’

From here:”FAQ on Soft Referrals

Last Updated: May 2, 2018

The Office of Children’s Issues, in response to adoption service provider (ASP) and adoption stakeholder questions regarding soft referrals, provides the following brief FAQ to supplement the soft referral guidance disseminated on March 16, 2018. While some examples refer to a specific country, both the guidance and this FAQ apply to all countries. Similarly, while some examples refer to special needs children, the guidance and FAQ apply to referrals of any child who is eligible for intercountry adoption.

Q1: Is the soft referral guidance based on a new policy or regulation?

The soft referral guidance clarifies existing policies based on current regulations that have been in place since 2006.

Q2: What constitutes an approved home study?

Please refer to USCIS’s website which includes Home Study Guidelines as well as guidelines for Hague home studies and Orphan home studies

Q3: If an adoptive family has a home study that was approved in the past and now wishes to adopt again, can the ASP proceed on the basis of the original approved home study?

If the home study is no longer valid, the family does not have an approved home study for purposes of 22 CFR 96.47, unless/until the required updates are completed and its validity is extended or renewed.<

Q4: Provided ASPs do not make soft referrals or otherwise guarantee a match, can ASPs accept applications from families who have pre-identified a child they wish to adopt, e.g. a relative or a child the family met while in a foreign country for humanitarian work?

Yes. Prospective adoptive parents’ (PAP) wishes and preference, including to adopt a specific child, to the extent permitted by the foreign country does not constitute a soft-referral. ASPs should keep in mind, however, the Hague Adoption Convention’s prohibition of prior contact and the limited exceptions, under Article 29, which may constitute grounds for denial of the I-800 petition. PAPs must disclose to USCIS information on prior contact on the Form I-800.

Q5: Can an ASP refer a child who has not yet been determined eligible for intercountry adoption if the ASP discloses this to the client and the PAP is willing to take the risk?
No. Referring a child who is not yet determined to be eligible for intercountry adoption, even if the PAP understands and agrees to this risk, is inconsistent with the Hague Adoption Convention, the Intercountry Adoption Act of 2000, the Universal Accreditation Act of 2012, and accreditation regulations. An ASPs’ legal responsibilities cannot be waived by its clients.

Q6: Can home study-only ASPs provide services to PAPs who have been given a soft referral of a specific child?
An accredited home-study provider is not responsible for the conduct of the ASP that provided the soft-referral. The existence of a soft referral should not influence the outcome of the home study or lead the home study agency to approve the prospective adoptive parent for the specific child or to determine the prospective adoptive parent is suitable to adopt a child through the intercountry process.

Q7: If an ASP has a child’s file and another ASP requests information about the child before communicating with the foreign Central or competent authority to obtain more information, can the first ASP decline to provide the child’s information?
No. An accredited ASP should not decline to provide the child’s information to the second accredited ASP. ASPs should not interfere with another ASP’s ability to communicate with the foreign Central or competent adoption authority about a potential family for an eligible child, so long as the disclosure of the information would be consistent with 22 CFR 96.42(c). In general, sharing a child’s information or file with another ASP for the purpose of that ASP’s recruitment of a suitable family would be consistent with 22 CFR 96.42(c). This includes basic identifying information about the child that would allow another ASP to communicate with the foreign Central or competent authority about a family that is interested in the child. Please see the discussion of Special Focus children from China in the soft referral guidance. ASPs are encouraged to work cooperatively to share information about children prior to an ASP with an interested family seeking official transfer of the file from the foreign Central or competent authority.

Should the first ASP ensure that prospective adoptive family working with the second accredited ASP is suitable before providing the requested information about a specific child?

No. An ASP may share the information given by the foreign Central or competent authority about a child without having to ensure that the prospective adoptive family working with another ASP is suitable to adopt. The foreign Central or competent adoption authority is responsible for determining what is in the best interest of a child who has been determined eligible for intercountry adoption.

NOTE: Question 7 has been raised frequently regarding adoption in China, but the answer applies to all countries.

Q8: Can an ASP “lock” files in China’s online system for a family without an approved home study?
ASPs may request CCCWA to assign files to its individual list, in accordance with CCCWA’s policies and procedures. Please see the discussion of Special Focus children from China in the soft referral guidance. As noted in the guidance, after the file has been assigned to their individual list, “ASPs should not take any action to ‘hold’ children’s files for PAPs who have not yet been found suitable in any way that prevents other ASPs from referring the child to other families, that prevents or dissuades other suitable families from adopting the child, or that prevents a Central or competent authority from either learning of other eligible families or considering alternative placements. Such actions place the interests of the ASP and PAPs ahead of the interests of children.”

Q9: How does the soft referral guidance apply to intercountry adoption in Bulgaria, where ASPs are assigned a child’s file for no more than 60 days?

Please see the Country of Origin Activities section in the soft referral guidance. The relevant foreign authorities are responsible for determining what placement is in the best interests of a child who has been determined eligible for intercountry adoption. ASPs may work within the parameters of a foreign government’s adoption program as long as doing so does not require the ASP to violate U.S. law or regulations.

Q10: In a non-Convention country, how does an ASP determine if a child is ready to be matched in situations where a child’s parental rights are not terminated until the adoption hearing?

The relevant and appropriate local and/or national authorities, in both Convention and non-Convention countries, determine whether a child is eligible for intercountry adoption, according to its laws. Termination of parental rights may or may not be a factor in that determination and could affect the child’s eligibility for intercountry adoption.

Q11: In a country where only one U.S. ASP is authorized to work, should the ASP accept multiple applications for the same waiting child? How should photolistings be handled in this situation?
See the response to question #7. ASPs should not take any action to “hold” children for PAPs who have not yet been found suitable to adopt to the exclusion of other families who have been found suitable to adopt or that prevents a foreign Central or competent authority from either learning of other eligible families or considering alternative placements. Please see 22 CFR 96.39(f) and the final section of the soft referral guidance for information about photolistings.

Q12: In countries that allow hosting programs for children who are eligible for intercountry adoption, can the primary provider inform the foreign country that a family wants to adopt a specific child?
Yes, an ASP may indicate PAPs’ wishes and preference, including to adopt a specific child, to the extent permitted by the foreign country. PAPs should be aware that informing the foreign country that the family who is hosting the child is interested in adopting the child does not necessarily constitute a referral. Accordingly, ASPs should not withhold information about a child from other ASPs who seek to communicate with the foreign Central or competent authority about a potential family for an eligible child, so long as the disclosure of the information would be consistent with 22 CFR 96.42(c). However, see also the response to questions #7 and 8.

Q13: When working with other countries that accept a “letter of intent” or “pre-application” for a specific child when a prospective adoptive is completing their home study and/or dossier, is the ASP able to assist a family with preparing the letter or application to adopt a specific child?
Yes. ASPs may assist families to adopt a specific child to the extent permitted by the country of origin and as permitted by the accreditation regulations in 22 CFR Part 96 Subpart F.

Q14: Should a family’s “letter of intent” or “pre-application” be worded to indicate that it is non-binding and dependent on both the family being found suitable as well as the foreign Central or competent authority finding the match suitable once all information is submitted?
It is unclear how an ASP could support a claim to a family that a match is “binding.” However, in general, ASPs should consult with their legal counsel regarding questions about language for contracts and other legal documents.<

Q15: If the ASP is not taking any actions to prohibit a child’s file from being shared with another ASP, or for the child to be adopted by another PAP, and clearly states to both the PAP and the foreign Central or competent authority that this PAP is expressing an interest in the child without implying that there is any binding agreement to this effect, is this acceptable?
Yes, an ASP may indicate prospective adoptive parents’ wishes and preference, including to adopt a specific child, to the extent permitted by the foreign country and as permitted by the accreditation regulations in 22 CFR Part 96 Subpart F.

Q16: If two client families are both interested in the same child, can the ASP refer the child to the family it believes is in the child’s interest (e.g. due to the ASP’s assessment that the family is better suited to meet the child’s needs), regardless of their home study approval status?
ASPs are responsible for ensuring that any such referrals are consistent with the accreditation regulations in 22 CFR Part 96 Subpart F and any requirements within the child’s country of origin. Referring the child to a family without a home study whom the ASP believes is in the best interests of the child may not constitute an issue of compliance if: a) such a referral complies with the requirements of the foreign country, and b) if the ASP does not interfere with other ASPs’ efforts to communicate with the foreign Central or competent authority about a family that is home study ready. The relevant foreign authorities are responsible for determining what placement is in the best interests of a child who has been determined eligible for intercountry adoption. Please see the Country of Origin Activities section in the soft referral guidance. ASPs may work within the parameters of a foreign government’s adoption program as long as doing so does not require the ASP to violate U.S. law or regulations.

Q17: What should ASPs do to document files or otherwise demonstrate a child’s file has not been improperly held, locked, or involved in a soft referral?
We encourage ASPs to maintain thorough documentation, including copies of all correspondence and notes of any phone conversations regarding a specific child or prospective adoptive family for whom the ASP is providing adoption services. If the accrediting entity has additional requirements, they will communicate that to all accredited ASPs.

Q18: Does this guidance apply only to children on the Special Focus list in China? Or only to special needs children in general?

No. This guidance applies to all accredited ASPs, all countries, and all children who are eligible for intercountry adoption.”

REFORM Puzzle Piece