REPORT Title:

Adoption of Marshallese Children

Description:

Requires a preliminary relinquishment proceeding to obtain court approval that the birth mother who is a citizen of the Republic of the Marshall Islands is knowingly relinquishing her child for adoption. (SB2607 HD2)

 

THE SENATE

S.B. NO.

2607

TWENTY-SECOND LEGISLATURE, 2004

S.D. 1

STATE OF HAWAII

H.D. 2


 

A BILL FOR AN ACT

 

relating to adoption.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that widespread abuse has been reported by the local media concerning women who have been transported from the Republic of the Marshall Islands (RMI) to Hawaii in order to give birth to children who are then relinquished for adoption to parents residing in the United States. (See, "Senate Aims to Close Marshall Islands Adoption Loophole," Honolulu Advertiser, 2/17/04; "Isle Adoption Pipeline Deceiving," Honolulu Star Bulletin, 11/30/03; "Babies Betrayed," Honolulu Star Bulletin, 3/7/04; "Stop Illegal Baby Trafficking from Marshalls," Honolulu Star Bulletin, 3/7/04).

In the past, the trafficking of babies occurred due to the ability of women from the RMI to enter Hawaii under the terms of the Compact of Free Association (Compact), which permits them to enter without a visa, give birth in Hawaii, and avail themselves of public health care services within the State. Many RMI women were ill advised about the consequences of relinquishing their children for adoption and often were victims of false promises. Instead, adoption was viewed as a means of providing for the economic needs of the child and the family within the Marshallese culture. (Julianne M. Walsh Kroeker, "Adoption and Agency: American Adoptions of Marshallese Children," 1999; Yokwe Online, "Adoption in the Marshall Islands: An Expert's View," 10/17/03).

Last year, the United States government and the RMI took steps to curb illegal baby trafficking. The Compact was amended to prohibit entry into the United States for purposes of adoption and require a pregnant woman to obtain a visa in order to enter the United States to give birth to children who will be relinquished for adoption. (PL No. 108-188). The RMI passed new laws that require the Central Adoption Authority to control all adoptions, prohibit the solicitation of birth mothers, and ban transportation of birth mothers to another country to finalize adoptions. (PL2002-64 eff. 10/1/03).

The purpose of this Act is to:

(1) Protect the RMI birth mother and ensure that if the birth mother relinquishes her child for adoption, she does so voluntarily;

(2) Serve the best interests of the child; and

(3) Protect prospective adoptive parents who have paid for adoption services in good faith without knowledge of illegal activities.

SECTION 2. Chapter 571, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"571-    Petition to voluntarily relinquish parental rights to child born to a citizen of the Republic of the Marshall Islands. (a) Notwithstanding any other law to the contrary, the termination of parental rights to and relinquishment for adoption of a minor child born in the state to a woman who is a citizen of the Republic of the Marshall Islands shall be in accordance with the procedures described in this section; provided that the court has jurisdiction over the minor child.

(b) Any adoption facilitator who facilitates the adoption of a child born in the state to a woman who is a citizen of the Republic of the Marshall Islands shall ensure that the birth mother voluntarily relinquishes her child for adoption by seeking court approval to terminate the parental rights to the child and providing the following services to the birth mother, the receipt of which shall not be contingent upon court approval of the petition and shall be at no cost to the birth mother:

(1) At least two counseling sessions by a social worker or clinical social worker licensed under chapter 467E or a marriage and family therapist licensed under chapter 451J regarding:

(A) All parenting options, including adoption; and

(B) The permanent legal impact of the termination of parental rights and adoption of the child;

(2) Translation services provided by a person fluent in the language and versed in the culture of the birth mother, if her primary language is not English, for all counseling sessions, documents relating to relinquishment and adoption proceedings, communications with the adoption facilitator, communications with the birth mother's attorney, and all court proceedings; and

(3) Counseling and representation provided by an attorney licensed to practice law in the state on the nature and effect of the relinquishment petition and the termination of parental rights, and during the hearing on the relinquishment petition;

provided that all persons providing counseling, translation, and legal services to the birth mother shall not be agents or employees of the adoption facilitator, and shall be advocates for the birth mother, under no obligation to report to the adoption facilitator with respect to any communications with the birth mother, and required to use their independent professional judgment without instruction from the adoption facilitator.

(c) The adoption facilitator shall file a verified petition to voluntarily relinquish parental rights in such form as may be prescribed by the senior judge of the family court. The petition may be filed at any time following the mother's sixth month of pregnancy; provided that no judgment may be entered upon a petition until after the birth of the child. The petition shall include an affidavit signed by the birth mother stating her desire to terminate her parental rights and relinquish the child for adoption. The adoption facilitator shall serve a copy of the petition on the birth mother, as the real party in interest, and provide no fewer than ten days notice of the hearing date.

(d) The family court shall conduct a hearing on the petition for relinquishment and may grant the petition for relinquishment and enter judgment of termination of parental rights of the birth mother if the court is satisfied that the following conditions have been met, in addition to any other findings that may be required under this chapter:

(1) The birth mother is present in the state pursuant to the Compact of Free Association's requirement of a visa;

(2) The birth mother's presence in the state is not the result of a violation by the birth mother or any party involved in the transport of the birth mother to the state of any federal, state, foreign, or internationally law;

(3) The birth mother has received the services required under subsection (b);

(4) The birth mother has not been solicited, coerced, or otherwise involuntarily transported by a third party into the State from the Republic of the Marshall Islands for purposes of giving birth in the state and relinquishing the child for adoption;

(5) The birth mother has not been subjected to financial inducement, coercion, fraud, or misrepresentation with regard to the termination of parental rights and relinquishment of the child for adoption;

(6) The birth mother understands that any promises of ongoing contact with the child, gifts, or economic opportunities may not be enforceable;

(7) The birth mother is present before the court and acknowledges that she understands the legal ramifications of terminating her parental rights to the child and is voluntarily relinquishing her child for adoption; and

(8) The court finds that termination of parental rights is in the best interest of the minor child and that adoption proceedings will be conducted in accordance with state law, including, for out-of-state adoptions, chapter 350E, relating to the Interstate Compact on Placement of Children.

(e) If the court denies the petition for relinquishment, the court may take appropriate action to:

(1) Ensure that the child's best interest is protected, including placement in protective custody pursuant to chapter 587 if the birth mother is unwilling or unable to take responsibility for the child;

(2) Report suspected violations of the Compact of Free Association to appropriate federal authorities and the consul general for the Republic of the Marshall Islands;

(3) Report suspected illegal activities conducted by the adoption facilitator to appropriate law enforcement authorities; and

(4) Issue orders to sanction adoption facilitators for violation of this section.

(f) Nothing in this section is intended to abrogate the adoption proceedings required under chapter 578 that may be brought by or on behalf of any proposed adoptive parents, including the requirement of consent from the father of the child.

(g) For purposes of this section, unless the context requires otherwise:

"Adoption facilitator" means any person or entity doing business in the State for profit, or for a nonprofit organization, whose purpose is to arrange for the adoption of children born in Hawaii to women who are citizens of the Republic of the Marshall Islands.

"Birth mother" means a woman who is a citizen of the Republic of the Marshall Islands who gives birth to a child in Hawaii for purposes of relinquishing the child for adoption.

"Doing business in the state" means any person or entity who has one or more of the following connections to Hawaii:

(1) Pays any state tax;

(2) Is licensed to do business in the state;

(3) Has an office or mailing address in the state; or

(4) Arranges for health care, housing, or social services for the birth mother with any public or private agency or organization located in the state."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2020.