A recent amendment to the Adoption Act, known as Act 101 of 2010, increases the options for openness in Pennsylvania’s adoption process in several ways. The act creates a mechanism for families to enter into legally enforceable, voluntary agreements for post-adoption contact between adoptive families and birth relatives. Act 101 also expands the scope of the information registry formerly known as the Adoption and Medical History Registry. The new registry is now known as the Pennsylvania Adoption Information Registry, PAIR.
Pennsylvania joined 24 other states that allow for enforceable post-adoption agreements. More than a decade ago, the U.S. Department of Health and Human Services recommended that states establish these laws to allow courts to approve post-adoption contact agreements that are legally enforceable.
For years, adoptive and birth parents have recognized the benefits of informal, post-adoption contact. Act 101 does not discourage these arrangements. Instead, Act 101 offers another option for adoptive parents and birth relatives to enter into a voluntary agreement for ongoing contact or communication. These agreements between an adoptive parent and a birth relative are approved by the court.
Agreements can specify continued contact or the type of communication between a child and the birth relative or between the adoptive parent and the birth relative. Where the adoptive parent is not adopting all of a child’s siblings, each sibling is able to develop and enter into an agreement. Any sibling freed for adoption through the termination of parental rights, TPR, at a dependency proceeding and who is under 18 will be represented by a guardian ad litem to develop an agreement.
Act 101 provides that the agreement be filed with the court that finalizes the adoption, which must approve the agreement if it is entered into knowingly, voluntarily and is in the best interest of the child. A sworn and notarized affidavit stating that must accompany the agreement. Each party must sign a separate affidavit before a notary, and each signed affidavit must accompany the agreement when it is presented to the court.
The agreement must be one that:
- Is in the best interest of the child;
- Recognizes the parties’ interests and desires for ongoing communication or contact;
- Is appropriate given the role of the parties in the child’s life; and
- Is subject to approval by the court
A court may consider several factors when determining the best interest of a child. Some of these factors are:
- The length of time a child was under the actual care, custody and control of a person other than a birth parent
- The interaction and relationship of the child with birth relatives and others who routinely interact with the birth relatives and may significantly affect the child’s best interests
- The adjustment to the child’s home, school and community
- The willingness and ability of the birth relative to respect and appreciate the bond between the child and prospective adoptive parent and vice versa.
- Any evidence of abuse or neglect of the child.
Act 101 defines the parties to an agreement as:
- Prospective adoptive parents
- Birth relatives of the child (parent, grandparent, step-parent, sibling, uncle or aunt of the child by blood, marriage or adoption)
- If the child is 12 or older, the child must consent to the agreement
An agreement should include the type of contact or communication (phone calls, emails, texting, supervised or unsupervised visitation, etc.) between the parties and the details such as the frequency, duration, location and any stipulations. Participants in each type of contact should be named. For example, who can be present during contacts? Must a party maintain sobriety for visitation to occur? Lastly, details about how to modify, enforce or end an agreement must be specified.
Act 101 requires an agency or anyone representing the parties in any adoption, public or private, to provide formal notification to children, birth parents and prospective adoptive parents of the option to enter into a voluntary post adoption agreement. Formal notification is not required for birth relatives, but they may negotiate and become parties to an agreement with adoptive parents.
If another agency or attorney notifies parties on behalf of the children and youth agency, a copy of the notice must be provided and maintained in the children and youth case record. Formal notification should follow the approved notification letter template (Appendix A-Notification Letter, Commonwealth of Pennsylvania, OCYF Bulletin 3350-11-01) or a county-developed format that contains all of the required elements.
Act 101 specifies intervals when formal notification is required. One notice at the earliest described interval is required. Later notifications are not required. If one of the prescribed intervals has passed and an adoptive parent was only recently identified, notice should be provided at the earliest interval after notification of the adoptive parent. The prescribed intervals are the earliest of:
- Change of goal to adoption on the family service plan (FSP);
- Filing the petition to change the goal to adoption; or
- In advance of filing of the petition to terminate parental rights.
If termination of parental rights has already occurred but finalization has not, formal notice should be provided as soon as possible so the parties can decide whether to enter into a voluntary post adoption contact agreement.
All notices to birth parents and prospective adoptive parents who are represented by an attorney must also be sent to the attorney. For children who are represented by a guardian ad litem or attorney, notice must also be sent to that guardian ad litem or attorney. If a child is represented by two attorneys, one serving as a guardian ad litem and a separate attorney serving as a child advocate, a copy of the notice must be sent to both. When formal notification is provided, a dated, signed copy of the notification letter must be maintained in the children and youth case record for each individual to whom notification was provided.
Developing an agreement should be facilitated by a neutral third party, similar to family group conferencing. Facilitators could be an employee from the county children and youth agency who are not directly involved in the specific case, a SWAN affiliate agency worker, contracted outside agency worker or another individual chosen by the family. The facilitator should understand the purpose of the statue and intent of the voluntary post adoption contact agreement.
Historically, SWAN affiliate agencies have helped family members decide what, if any, level of informal post-adoption contact would occur after an adoption. SWAN units of service can be useful when developing post-adoption contact agreements and may help ensure an agreement integrates with other permanency services the child or family are receiving.
Mediation is different from facilitation in that mediation is a formal method of dispute resolution performed by a professional who has received specific training in the practice of mediation. Mediation can be sought privately by parties who are looking to enter into, modify or enforce an agreement. Mediation expenses are paid for by the individuals. Some SWAN affiliate agencies have trained mediators who provide mediation through the SWAN units of service. In cases where disputes arise about modifying, enforcing or discontinuing an agreement, the adoptive family may access SWAN Post-Permanency units for mediation. Post-Permanency services must be requested directly by the adoptive family by contacting the SWAN Helpline at 1-800-585-SWAN.
Modifying an Agreement
Modification changes a legally enforceable agreement that was already approved by the court that finalized the adoption. Only an adoptive parent or child at least 12 years old can seek to modify an agreement with an action filed only in the court that finalized the adoption. Before the court agrees to modify an agreement, clear and convincing evidence must be shown that modifying it serves the needs, welfare and best interest of the child.
Enforcing an Agreement
Any party to an agreement, a sibling or a child who is the subject of an agreement may seek to enforce an agreement by filing action in the court that finalized the adoption. Parties may request enforcement of the contact or communication specifically outlined in the agreement but may not request monetary damages or modification.
For an agreement to be legally enforceable, it must be written, approved by the court on or before the date for any adoption decree, and if the child is 12 years old or older when the agreement is executed, he or she must consent to the agreement when it is executed.
Before the court enters an order enforcing an agreement, it must find all of the following:
- The party seeking enforcement of the agreement is substantially complying with it.
- By clear and convincing evidence, enforcement serves the needs, welfare and best interest of the child.
The court issuing final approval of an agreement must have continuing jurisdiction over enforcing the agreement until the child turns 18, unless the agreement stipulates otherwise or is modified by the court.
Parties to an agreement may elect to use facilitation or mediation when seeking to enforce it. If facilitation or mediation is sought to enforce an agreement, SWAN Post-Permanency units of service could be requested.
Discontinuing an Agreement
A party to an agreement or a child who is at least 12 years old may seek to discontinue an agreement by filing an action in the court that finalized the adoption. Before the court enters the order to discontinue an agreement, clear and convincing evidence must be shown that discontinuing it serves the needs, welfare and best interest of the child.
Appointment of Counsel and Guardian ad Litems
Parties to an agreement are not entitled to court-appointed counsel to modify, enforce or discontinue an agreement but are free to retain counsel at their own expense. When appointing a guardian ad litem, GAL, the court may appoint the same attorney who represents or has represented the child in any dependency hearing or termination of parental rights proceeding.
While a post-adoption contact agreement is being developed where siblings were freed for adoption by TPR and where the prospective adoptive parent is not adopting all of the siblings, each sibling who is under 18 must be represented by a GAL.
Only a child over the age of 12 who is the subject of an agreement can seek to modify an agreement. GALs may be appointed to represent the interests of the child when seeking to modify an agreement. GALs may be appointed to represent the interests of the child and a sibling under 18 when seeking to enforce or discontinue an agreement.
If the court finds that an action brought to modify, enforce or discontinue an agreement was wholly insubstantial, frivolous or not advanced in good faith, the court may award attorney fees and costs to prevailing parties.
ACT 101 does not indicate when parties may or should begin working on a post-adoption agreement. However, Pennsylvania OCYF Bulletin 3350-11-01 encourages parties to discuss the possibility of entering into an agreement when it becomes apparent reunification will not be successful and that adoption may be the most appropriate alternative for these reasons:
- Beginning discussions at this time allows birth parents to adjust to the idea of adoption and may allow a contested termination to become a voluntary relinquishment.
- Even amicable negotiations can be protracted because of the legal and emotional impact of termination.
- Starting the process before the court hears the termination petition will enhance the possibility the adoption will be finalized with minimal delay and less emotional and financial toll on all the participants.
- Starting the process early may also allow the court to give parties feedback on whether the terms they are considering will satisfy the Act 101 requirements for an enforceable agreement.
The following information sheets can be used to assist PACA discussions:
Courts may approve an agreement before finalizing the adoption, but the agreement is not effective until the actual adoption occurs. An agreement that is not approved by the court is not legally enforceable. If an agreement is approved by the court and the adoption does not occur, the agreement is void. Act 101 applies only to adoptions finalized in Pennsylvania. If an agency finalizes an adoption in another state, the laws of that state would apply.