Thursday Update - Sept. 18, 2003

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,

The Constitutional Court ruling was published last Friday in the official newspaper, becoming effective the following day. It is not true that it takes a longer period of time to take effect. Although it is the best that could happen to adoptions, it does not have magical effects and cannot erase in a few days, the six months of devastating effects of the attempted implementation of the Hague Convention. Litte by little, the notarial process is being restored and the adoptions that were delayed are starting to move ahead.

We will analyze what is happening at:

a. THE PROCURADURIA GENERAL DE LA NACION (PGN)

Many files are being submitted to the PGN. The Guatemalan embassy in Washington website (www.guatemala-embassy.org/pressrelease.asp) states that “The PGN has significantly increased the legal staff in charge of adoption matter to expedite the approval process seeking to provide a better service to the prospective families”. We have been told that new lawyers have been hired to work on the delayed cases and in the new ones. Each lawyer is given ten cases a day, which means that the backlog could be reduced very fast. The PGN director Merida is still at the PGN signing hundreds of files. We expect that he keeps doing so, because his lack of signature is the bottleneck of the PGN part of the adoption process.

The law states that the PGN has three days to give the opinion on adoption cases. That time limit will have to be respected by its lawyers. We have heard of numerous cases where the PGN keeps the files for months, for no other reason than its own negligence. That has to stop. In all legal procedures, time is of essence. In an adoption, time is crucial because an unjustified delay leaves on hold the life of a child who becomes the innocent victim of a bureaucratic kidnapping.

The ruling of the Constitutional Court restored without any change the notarial process, and this has been accepted by the PGN. The only difference between a Pre March 5th. and a post March 5th case would be that the former got there first. Nothing else. Regarding the reasons for rejection, if a case is constantly being rejected by the PGN on groundless “previos”, it is better to let a Family Judge to rule on the case. It is not the ideal situation, but unless the director of the PGN tells the lawyer to stop playing games and give the approval, the lawyer will keep doing it. Former directors did that as part of their job. It is rather obvious that the current director does not instruct the lawyers to follow the law.

Some of the PGN lawyers have taken as a personal defeat the Constitutional Court ruling and have been combing the codes to find reasons to reject the files. That is why some case were rejected on new and equally groundless “previos”. As soon as the first of those PGN lawyers gets an arrest warrant, their perception of the situation will drastically change. The Court of Amparo will give us this week the necessary documents to start the criminal processes against the PGN lawyers. Now is the time to hold them accountable for their violation of the laws and for their intentional infliction of pain and suffering to the waiting families and children.

b. THE US EMBASSY AND THE DEPARTMENT OF STATE

The US embassy and the PGN have a close communication that sometimes is very detrimental to the adoptions. Between both entities, they make out their own rules and decide over different matters, even against the rulings of the judges and the laws of the coubtry. The embassy denies visa pre approval to children declared abandoned by the court of minors, if the mother is married, because the director of the PGN section of Minors is set in defending the rights of the husbands who desert their families, preventing the children of separated women who happened to have children with other men, to find a legal solution to the situation of their children. According to Guatemalan law, the child of a married woman is presumed child of her husband if the child is born during the 300 days after marriage or 300 days after their divorce. Therefore, even if the husband proves with a DNA that he is not the father, and the mother abandons the child at an orphanage, and after all the proper investigation the child gets an abandonment decree, the PGN and the Embassy, - to protect the rights of that unknown father - deny the child the right to be adopted.

During the past two days many lawyers presented the documents of families who have been waiting to get the DNA authorization. Each lawyer is allowed to present only four cases each day. To get the first place in the long line, they had to be there at four in the morning. In order to get the DNA authorization, the lawyer has to present a stack of documents to identify the mother, the child, the midwife, the hospital, the lack of HIV of the mother, their pictures. All the Guatemalan documents have to be not older than four months and duly translated into English. But very few lawyers got the so desired authorization for the DNA. We were informed that the reason is that a Guatemalan law student who works at the US embassy has to give her approval to the applications. Since all the BCIS staff is new and inexperienced, they ask this young lady to clarify many things, and she advises them to reject the applications for silly reasons, like the seal of the notary being not at right but at the center of the document, or because line 21 of the I 600 form (“who has legal custody of the child?”) is answered with the current information: the birthmother. The name of this officer is Astrid Morales. Before driving crazy the embassy with complaints, we suggest that you organize an effective way to handle this problem. To attack Astrid is not going to produce the desired effect. The embassy supports their officers and will just say that she is doing her job. We suggest that you let the adoption agencies to handle the problem and limit your intervention to write polite letters asking the BCIS to give the authorizations for the DNA test in exchange of the documents and to review the documents not at the window, but while the DNA is being processed. If the review of the papers shows that something is missing, an email to the lawyer in charge would notify him/her of the problem and would allow the lawyer to fix the problem, without having to go every day to the embassy or to send someone to inquire about the application.

We must point out the inconsistencies of the warning of the DOS in their announcement dated September 12, 2003:

"We are aware the Guatemalan Congress has discussed proposed legislation that would completely revise the intercountry adoption process. We cannot determine what impact such legislation would have on pending and future adoptions. Likewise, it is not possible to estimate how long it would take Guatemala to implement a new adoption process. We continue to urge the government of Guatemala to process all adoption cases as expeditiously and fairly as possible to avoid unnecessary and unreasonable hardship on adopting families and children. "

The threat of a new adoption law has been looming over Guatemalan adoptions since the eighties. UNICEF has been pressuring the Guatemalan Congress to pass an anti adoption law, disregarding the Constitution and endangering the lives of thousands of children who are well cared for, thanks to the income of international adoptions. UNICEF and its satellite MINUGUA are set in making Congress to pass laws that would prevent the needy children from being adopted by foreigners. The Guatemalan Congress already knows that any law that centralizes adoptions will be effectively challenged. The ADA is poised to file an amparo signed by over two hundred lawyers that would suspend the application of such law,because the notarial adoption process is constitutionally protected. Therefore the DOS statement, “the proposed legislation that would completely revise the adoption process” ignores that any new adoption law must be consistent with the Constitution.

During the past weeks the newspapers report very often that the Congress is not meeting to work. The current legislators who are interested in their reelection are actively working in their campaigns, in their hometowns. Last Friday took place in Congress the ceremony of celebration of the Independence Day. Only about one third of the Congressmen attended such an important event. It has been reported that Congress does not get the necessary attendance to pass those laws that are extremely important to them. The Valladares Law still does not have the opinion of the Committee of the Family, the Woman, and the Child and now there is the new proposed adoption law, that makes things more complicated, because now the committees have to study the new project.

It seems that the PGN does not desist of its intentions to take over adoptions. The new project of adoption law proposed to Congress by the PGN and presented in a seminar - where adoptions lawyers were not invited - hosted by MINUGUA gives the PGN the power to process and finalize adoptions. Since last April it is pending before the Constitutional Court a challenge against the appointment of the PGN as Central Authority. Even though it may be moot now that the Hague Convention is no longer valid, the legal issue is still valid: whether the PGN has the right to perform other functions than those granted to such institution by the Constitution, which are: as legal advisor and as consultant for the organs and entities of the State. The PGN constantly exceeds its powers, especially regarding children. The Constitutional Court ruling will prevent the PGN from attempting another hostile takeover of adoptions and will clarify – for the PGN because for us they are
very clear – the scope of its functions.

We are aware that the possibility of a new law being passed by Congress is always present. But we have reasons to believe that even though it could be possible, it is not probable that a new adoption law would be approved before January. And even after the new government takes office, the possibility is still remote. The new government will have to face too many problems. To add to them the problem of passing unconstitutional and financially burdensome laws would be a huge mistake.

The DOS also says: “ We continue to urge the government of Guatemala to process all adoption cases as expeditiously and fairly as possible to avoid unnecessary and unreasonable hardship on adopting families and children” but such consideration does not extend to the families who are waiting for DNA tests of their adoptive children, since the BCIS is rejecting systematically the applications for DNA tests and without them, the PGN will not approve the cases.

c. PROBLEMS WITH THE DNA TESTS

We strongly believe that the little problems that we will be facing in the near future are an unavoidable part of the process of streamlining the PGN and the pre approval of visas and authorization of DNA tests by the US embassy.

When the high officers plan the way things are going to work, sometimes they do not take into account human factors. The DNA testing is something that should be reviewed. The purpose of the test is to verify the genetic match between the woman who is giving her consent to the adoption and the child that is being adopted. There is no need to take both samples at the same time and to make the mother hold the child on her lap to take a picture of them. For some of those mothers it is devastating to see their child and to let him/her go again. Especially when the child rejects the mother that has not seen before and is not familiar with. We know of a case where the picture was taken of the lawyer and the child because the child – a toddler - absolutely refused to be held by her mother. Older children do not sit on their mother’s lap, so we conclude that the picture of both together is not indispensable. We would like to be able to take the samples in separate
occasions because it would be less stressful for everybody without diminishing its effectiveness.

Although the lab process the samples in two weeks and get the necessary legalizations in another week, the amount of cases that will need DNA tests calls for more places where the samples could be taken. At the conference sponsored by the INS in March last year they offered to implement new labs to take DNA samples. Since the amount will exceed the capacity of the two authorized places, we suggest that other labs be authorized, at least on a temporary basis, to avoid unnecessary and unreasonable hardship on adopting families and children.

d. “WHEN IS MY CHILD COMING HOME?”

That is the recurring question of all the waiting families. If the PGN works on the cases in the fair and expeditiously way that the DOS mentions, we believe that many cases will be finished within the next couple of months. Those cases that have DNA pending will take a little longer. A good way to monitor the progress of your case is to urge both, the BCIS and the PGN to set up a website to keep track of the cases, supplying the information that sometimes is hard to get. We believe that it is not too much to ask. The websites could have limited access for each case, like the statement of a bank account. Only the adoption professionals and the adoptive parents would have access to that specific information and only to their cases. That information is already in the computers of the BCIS and the PGN, so it is not unreasonable to request them to share it. Maybe if the BCIS sets the example, the PGN would follow the lead and that is why we think that it is
something that you, the adoptive parents should work on.

The darkness is over. Be thrilled for that and remind yourself that now your adoption will be finalized because “they can delay it, but they can’t deny it.”

Best regards,

Susana Luarca

Attorney at Law

Asociación Defensores de la Adopción

Guatemala City.

Posted by Kelly at September 18, 2003 01:54 PM