THE COURTS
Title 231--RULES
OF CIVIL PROCEDURE
PART II. ORPHANS' COURT RULES
[231 PA. CODE PART II]
Proposed Amendments to Rule 15.8(b), Proposed New Rules 15.9 and 15.9.1 and New Model Forms; Recommendation No. 2 of 2007
[37 Pa.B. 2575]
[Saturday, June 2, 2007]The Orphans' Court Procedural Rules Committee proposes new Pennsylvania Orphans' Court Rules 15.9 and 15.9.1 and conforming amendments to Rule 15.8(b). The Committee further proposes to recommend new model forms pertaining to Rules 15.9 and 15.9.1. This Recommendation is being submitted to the bench and bar for comments and suggestions prior to the Committee's consideration for submission to the Supreme Court for adoption.
Proposed new additions in Rule 15.8(b) and the proposed new Rules 15.9 and 15.9.1 are bold. The bracketed material in Rule 15.8(b) is to be deleted. The entire text of the forms is new.
All communications in reference to the proposed amendment should be sent, no later than July 15, 2007, to:
Dean R. Phillips, Chief Counsel
Ceil S. Blumenthal, Deputy Counsel
Orphans' Court Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
Or via E-Mail to:
orphanrules@pacourts.usThe Committee has prepared the Explanatory Comment which appears in connection with the proposed amendments for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated.
By the Orphans' Court Procedural Rules Committee
MARY JANE BARRETT,
Chair
EXPLANATORY COMMENT A. Introduction
The following recommendation is in response to Act 96 of 2006, enacted July 7, 2006, effective September 5, 2006, amending Section 2908 of Title 23 of the Pennsylvania Consolidated Statutes, 23 Pa.C.S. § 2908, as it pertains to the completion of a foreign adoption which is not full and final, a process which the legislature has described as ''readoption.'' ''Readoption'' process is described in 23 Pa.C.S. § 2908(e) as follows: ''The court shall develop a standard petition, a standard court order and instructions for their use for occasions when a child must be readopted to finalize the adoption. The clerk shall provide the adopting parent with the standardized information.''
Foreign adoption procedures pose complications for all states including the Commonwealth of Pennsylvania because they occur in the context of the laws of the country of the child's origin and the federal law governing immigration and citizenship. However, the involvement of the United States government in the immigration process provides some level of assurance to the states that certain minimum requirements have been met.
Before setting forth the various foreign adoption procedures, this Committee strongly recommends that all parties interested in the foreign adoption procedures should contact the relevant federal authorities and see the U.S.C.I.S. website for complete updated information. The following explanation merely addresses the most common circumstances arising from foreign adoptions that are not completed prior to the child immigrating to the United States, and which are seen in the Orphans' Court Division of the Courts of Common Pleas in this Commonwealth.1
As a general rule, foreign adoptions follow distinct tracks:
First, many children adopted from foreign countries by adoptive parents from Pennsylvania are able to complete the adoption process overseas. An IR-2 Visa is issued when the child is adopted overseas and has resided with the U.S. citizen (parent(s)) for at least two years overseas with the parent having full legal and physical custody. The issuance of an IR-3 Visa also designates that the child has been fully adopted overseas, but has not resided with adopting parents. In order to issue an IR-3 Visa, the federal adjudicating officer must be satisfied that the adoption was both legal in the foreign country where it occurred and that it met the requirements of all United States immigration laws. If these terms are met and an IR-3 Visa is issued, then the adoptive parents need only ''register'' the foreign adoption decree with their local Orphans' Court in order to obtain a Pennsylvania adoption decree. Once the Court issues a Decree, the parents may obtain a Pennsylvania birth certificate. While registration is not a prerequisite for citizenship, it is an important step in the adoption process because the result is a decree of adoption issued by a local court, which is required to obtain a birth certificate, and may also be helpful documentation to adoptive parents and adopted foreign children in other contexts. These foreign adoptions pose the least problems for adoptive parents, Pennsylvania state courts and the Pennsylvania legislature. The Pennsylvania Supreme Court has previously provided for a simplified registration procedure as described below.
The second track that a foreign initiated adoption may follow is the subject of the proposed new rules. It arises when the foreign adoption has been declared by the United States government's adjudicating officer to be not ''full and final.'' This is evidenced through the IR-4 Visa.
There are several reasons for the issuance of an IR-4 designated adoption. The primary reason is that both adoptive parents were not in the foreign county at the time of the adoption hearing and ruling. Another reason may be that the foreign country does not permit an ''adoption'' by a citizen of another country and grants only permanent guardianship rights to the child. Such children are issued an IR-4 Visa by the federal government.
In issuing the IR-4 Visa the United States government has determined that the child is an ''orphan under the law.'' This is an acknowledgment that the biological parents rights have been terminated or that the parents are deceased or unknown. It further acknowledges that all of the pre-adoption requirements of the adoptive parents' home state have been met.
When a child enters the United States under an IR-4 Visa, it is necessary for the adopting parents to obtain a full and final decree of adoption from the Orphans' Court Division of the Court of Common Pleas. The child will become a United States' citizen only after a legal parent-child relationship has been created by decree of the Orphans' Court in the proper jurisdiction.
The Supreme Court and the legislature have already addressed the registration of foreign adoptions as discussed above. The subject of this proposed Recommendation is the procedure for completion of the adoption of a foreign born child with IR-4 Visa status. In developing procedures for completion of the adoption of a foreign born child with IR-4 status, The Committee has reviewed Act 96, existing statewide and local Orphans' Court Rules2 and the relevant federal legislation to determine whether it is possible to prescribe a uniform procedure for completion of foreign adoptions.
B. Overview of Foreign Adoptions and Act 96
Act 96
The following is a summary of Act 96 which was adopted on July 7, 2006, and which prescribes certain procedures with respect to registration of full and final foreign adoptions and completion of foreign adoptions that are not full and final. Prior to the adoption of Act 96, 23 Pa.C.S. § 2908 simply provided adoptive parents with the option of filing a foreign adoption decree and related documents with the clerk in the county of residence of the adoptive child. Practice varied among the counties and the procedure has sometimes been confusing to adoptive parents. Act 96 amends Section 2908 and addresses both registration and completion of foreign adoptions.
New subsection (a) (Registration) requires the adoptive parents to file an authenticated copy of the foreign adoption decree with a certified English translation, if needed, and a copy of the child's visa, birth certificate or birth identification.
New subsection (b) (Foreign Adoption Registration Form) provides that the ''court''3 shall develop a foreign adoption registration form and instructions for its use, and that the adoptive parents sign an acknowledgment that they have read and understand the information.
New subsection (c) (Contents of Form) requires that the registration form include a notice explaining that the foreign adoption may not be a full and final adoption for one of the following reasons: (1) if one or both of the adoptive parents was not present for the foreign adoption hearing, (2) the foreign adoption decree is not full and final, or (3) the child's visa does not afford full citizenship to the child.
New subsection (d) (Foreign Adoption Review) calls for judicial review of the registration form. If the court finds that the foreign adoption is full and final, it is to direct the clerk to enter upon the docket the foreign court identification of the proceedings and the date of the decree, and the clerk is directed by statute to issue a certificate of adoption as prescribed in 23 Pa.C.S. § 2907.4 The clerk is then to forward documentation to the Department of Health.5 No hearing is required initially, and the Act specifies that the parent shall not be required to obtain counsel.
New subsection (e) (Readoption) calls for the court to develop a standard petition, court order and instructions for their use when a child must be readopted to finalize the adoption, and further requires the clerk to provide the adopting parent or parents with the standardized information.
New subsection (f) (Records) pertains to confidentiality of the record of a foreign adoption, and directs that the record be sealed, except as ordered by the court. It further states that information identifying the birth parents of the adoptee shall not be required. Subsection (f) also provides that the clerk may charge a filing fee in accordance with the court's regular fee schedule.
Registration of Foreign Adoption Decrees
On September 5, 2006, the Supreme Court adopted Rule 15.8(a), which mandated use of a form of petition with model decrees and instructions for the pro se petitioner. The instructions for completing and filing the petition explain that the court will review the petition and, if it determines the foreign adoption is full and final, will enter a decree that will direct the clerk to enter the foreign decree on the docket and issue a certificate of adoption. The clerk is also directed to process the forms necessary to obtain a birth certificate from the Department of Health. The instruction form is geared to the pro se petitioner, as directed in the statute, and provides a checklist of the requirements for filing; the instruction form also contains the required statutory notices regarding the reasons the adoption might not be full and final. If the reviewing court determines that a foreign adoption decree cannot be registered, a decree shall be issued denying the petition. The instructions will have already provided information to the adopting parents of the possible reasons for the court's denial. The instructions also direct the adopting parents in that situation of the need to proceed under the Adoption Act and local adoption practice.
C. Readoption/Completion of Foreign Adoption Which is Not Full and Final
Rule 15.8(b), as adopted in September of 2006, states that if registration is denied by the court, the petitioner must proceed under the Adoption Act and local rules to seek an adoption decree under the laws of the Commonwealth of Pennsylvania. At the time the Supreme Court adopted a streamlined registration procedure for completed foreign adoptions, the Committee had determined that it could not recommend a statewide procedure for completion of foreign adoptions that are not full and final.
Subdivision (e) of Act 96 calls for the court to develop a standard petition, court order and instructions for their use when a child must be readopted to finalize the adoption, and further requires the clerk to provide the adopting parent or parents with the standardized information. The Committee did determine that the term readoption (which is not defined in Act 96) is misleading. Whether there has been an adoption is a matter for the legislature to determine by statute. However, if a foreign adoption is not ''full and final,'' then there has been no adoption ab initio and there can be no ''readoption.'' Accordingly, the term ''readoption'' should not be applied to an incomplete foreign adoption. The Committee believes that the adoptive parents must establish that the foreign adoption was full and final, in which case the adoptive parents need only proceed to register the foreign adoption as described above, or, they must proceed in accordance with the Adoption Act and local rules. After careful consideration, the Committee is now prepared to recommend a statewide procedure for completion of foreign adoptions as described more fully below.
D. General Description of Recommendation
Since all Pennsylvania pre-adoption requirements have been met to the satisfaction of the United States government when it issues an IR-4 Visa, the Committee does not believe it is necessary for the Orphans' Court to require the adoptive parents to ''start from scratch'' in order to complete the foreign adoption.
The procedure for completion of the foreign adoption will no longer be referred to as a ''re-adoption.'' The designation of ''re-adoption'' misstates the procedure involved in these cases and causes unnecessary confusion.
Proposed Pennsylvania Orphans' Court Rules 15.9 and 15.9.1, and the forms that follow, are proposed to promote statewide uniformity of practice and to provide an expeditious procedure for adoptive parents, attorneys, officers of the Court and all other relevant parties to complete the adoption of a foreign born child with IR-4 Visa status initiated in a foreign court while protecting the rights of all parties and best interests of the child. Upon completion of the filings and approval by the Court after a hearing, a Final Decree of Adoption shall be issued. Upon the issuance of a Final Decree of Adoption, the child is entitled to all the rights of a child and heir of the adopting parents under United States federal law and Pennsylvania state law. A Pennsylvania birth certificate will be issued.
E. Detailed Description of Recommendation
Proposed new Rule 15.9 will be titled ''Completion of Adoption of Foreign Born Child with IR-4 Visa Status Initiated in a Foreign Court'' and will provide as follows:
Subdivision (a) (General Rule) requires adoptive parent(s) seeking to complete a foreign adoption to proceed under the Pennsylvania Adoption Act, Pennsylvania Orphans' Court Rules, and local rules of Court in order to complete the adoption of a foreign born child with IR-4 Visa status initiated in a foreign court.
Subdivision (b) (Petition) requires that the petition to complete a foreign adoption shall contain all declarations and information required by Section 2701 of the Pennsylvania Adoption Act, Pennsylvania Orphans' Court Rules, and local rules of Court.
Subdivision (c) (Preliminary Decree and Notice) requires that all petitions include a preliminary decree attached for the purpose of setting a hearing date and shall specify the names and addresses of the person(s), guardian(s), intermediary and/or agency having custody and/or legal and/or physical rights to the child so that notice of the hearing is given pursuant to Pennsylvania Orphans' Court Rule 15.6.
Subdivision (d) (Appearance at Hearing) requires the appearance of the petitioner(s), guardian(s), and representatives of agencies or individuals who have acted as the intermediary as named in the Report of Intention to Adopt and the child unless excused by the Court.
Subdivision (e) (Status as Orphan) requires proof that the foreign child with IR-4 Visa status is an orphan and provides a definition of an orphan.
Subdivision (f) (Pre-Adoption Requirements) provides that the Court must determine the pre-adoption requirements as set forth in 23 Pa.C.S. §§ 2530--2535. Further, it allows the Court to accept IR-4 Visa status of the child as proof that the Pennsylvania pre-adoption requirements have been met.
Subdivision (g) (Judicial Review and Hearing) provides for review by the Court and investigation by the Court and allows the Court to rely in whole or in part upon a report previously made under Section 2535 of the Adoption Act and/or pursuant to any other requirements. However, the Orphans' Court can only rely on a prior report so long as it is for that specific child and it is no more than one year old at the time of submission to the Orphans' Court. The Court may require additional reports and investigations to be made in accordance with the Pennsylvania Adoption Act, Pennsylvania Orphans' Court Rules and local rules of Court.
Subdivision (h) (Disclosure of Fees and Costs) requires disclosure of fees and costs prior to or at the hearing and the Court may request an itemization of amounts reported.
Subdivision (i) provides that once the Final Decree is signed by the Court, adoptive parents may obtain a Certificate of Citizenship and Passport for the adoptee.
Proposed Rule 15.9.1 (Filing of Petition and Other Documents) would also be adopted.
Subdivision (a) of proposed Rule 15.9.1 requires a petitioner seeking to complete a foreign adoption to file certain documents with the Orphans' Court Clerk related to the foreign adoption proceeding and to provide a copy the foreign born child's IR-4 Visa status.
Subdivision (b) requires that the petitioners seeking to complete the foreign adoption must file a petition in the form which will be found in the appendix to the Orphans' Court Rules and requires the attachment of forms of decree which are also to be found in the appendix.
Subdivision (c) requires that all original documents must be available for review by the Court.
This Recommendation proposes to include in the Appendix to the Pennsylvania Orphans' Court Rules the following forms which must be included pursuant to Subdivision (b) of proposed Rule 15.9.1 in connection with a Petition for Completion of Adoption of Foreign Born Child with IR-4 status:
* REPORT OF INTENTION TO ADOPT
* PRELIMINARY DECREE
* FINAL DECREE
* IMPORTANT NOTICE
* PETITION
* REPORT OF THE INTERMEDIARYFinally, the Committee recommends conforming amendments to Pa.O.C. 15.8(b) to provide that when an adoptive parent is unable to register the foreign adoption and the child holds an IR-4 Visa, the adoptive parents must proceed pursuant to new Rules 15.9 and 15.9.1.
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART II. ORPHANS' COURT RULES
RULE 15. ADOPTIONS Rule 15.8. Foreign adoption registration.
* * * * * (b) If the court of common pleas determines that the foreign adoption decree cannot be registered, the adoptive [parent(s) may proceed under the Adoption Act and local rules of court to obtain a full and final decree of adoption] parents must proceed as applicable under the provisions set forth in the Adoption Act, Pa.O.C. Rules 15.9 and 15.9.1 (specific to the completion of adoption of a foreign born child with IR-4 Visa), and local rules of court.
Explanatory Note: Pursuant to 23 Pa.C.S. § 2908(b), as amended by Act 96 of 2006, a set of forms consisting of a petition for registration of a foreign adoption decree, decrees approving and denying the petition, and detailed instructions for pro se petitioners, have been created and are set forth in the Appendix to these rules. The petition should be filed with the Clerk of the Orphans' Court Division, except in Philadelphia County, where it should be filed with the Clerk of the Family Court Division. The Clerk shall make the necessary Department of Health forms available to petitioners. If the foreign adoption is determined not to be a full and final adoption, the adoptive parent(s) may proceed under [the Adoption Act and local rules to seek a decree of adoption in this Commonwealth] subdivision (b) of this Rule. See also Pa.O.C. Rules 15.9. and 15.9.1.
* * * * * Rule 15.9. Completion of Adoption of Foreign Born Child with IR-4 Visa Status Initiated in a Foreign Court.
(a) General Rule. Adoptive parent(s) must proceed under the Pennsylvania Adoption Act, 23 Pa.C.S. § 2101 et seq., Pennsylvania Orphans' Court Rules, and local rules of Court in order to complete the adoption of a foreign born child with IR-4 Visa status initiated in a foreign court.
(b) Petition. The petition shall contain all declarations and information as required by Section 2701 of the Pennsylvania Adoption Act, Pennsylvania Orphans' Court Rules, and local rules of Court.
(c) Preliminary Decree and Notice. All petitions shall have a preliminary decree attached for the purpose of setting a hearing date and shall specify the names and addresses of the person(s), guardian(s), intermediary and/or agency having custody and/or legal and/or physical rights to the child so that notice of the hearing is given pursuant to Pennsylvania Orphans' Court Rule 15.6.
(d) Appearance at Hearing. The Court shall require the appearance of the petitioner(s), guardian(s), and representatives of agencies or individuals who have acted as the intermediary as named in the Report of Intention to Adopt and the child unless excused by the Court.
(e) Status as Orphan. In order to proceed under Rule 15.9, the foreign born child must be an orphan as defined by United States law.
(i) Definition of orphan. Orphan is defined under the United States immigration law as (1) an alien child who has no parents because of the death or disappearance or abandonment or desertion by, or separation or loss from both parents, or (2) an alien child who has only one parent who is not capable of taking care of the orphan and who has in writing irrevocably released the alien for emancipation and adoption. (See I-600, Petition to Classify Orphan as an Immediate Relative, Department of Homeland Security.)
(ii) The Court may accept the IR-4 Visa as proof that the foreign born child is an orphan.
(f) Pre Adoption Requirements. In order to proceed under Rule 15.9, the Court must determine that preadoption requirements set forth in 23 Pa.C.S. §§ 2530--2535 have been met. Where the adoptive parents were Pennsylvania residents at the time of the foreign adoption, the Court may accept the IR-4 Visa status of the foreign born child as proof that the preadoption requirements have been met.
(g) Judicial Review and Hearing.
(i) Judicial Review. Petition For Completion of Adoption of a Foreign Born Child with IR-4 Visa Status Initiated in a Foreign Court and accompanying documents shall be subject to review by the Court and subject to investigation as prescribed by the Pennsylvania Adoption Act, Pennsylvania Orphans' Court Rules and local rules of Court. The investigation shall cover matters alleged in the petition, any other matters that may affect the welfare of the child and information required by 23 Pa.C.S. §§ 2535 and 2724. The Court may rely in whole or in part upon a report previously made in the foreign adoption proceeding consistent with Section 2535 of the Adoption Act so long as the report is for that specific child and it is no more than one year old at the time of submission to the Court. The Court may require additional reports and investigations to be made in accordance with the Pennsylvania Adoption Act, Pennsylvania Orphans' Court Rules and local rules of Court.
(ii) Hearing. The Court shall schedule a hearing to allow for testimony pursuant to 23 Pa.C.S. §§ 2721--2724. The hearing may be held in the Judge's courtroom or chambers.
(h) Disclosure of fees and costs. Prior to or at the hearing, a report shall be filed setting forth the amount of fees, expenses and costs paid or to be paid to counsel, intermediary and/or any other person or agency in connection with the adoption of the foreign born child. The Court may request an itemization of the amount(s) reported.
(i) Once the Final Decree is signed by the Court, adoptive parents may obtain a Certificate of Citizenship and Passport for the adoptee.
Rule 15.9.1. Filing of Petition and other documents.
(a) The following documents shall be filed with the Office of the Clerk of the Orphans' Court in the county where adoptive parent(s) reside(s) in substantially the following order: Report of Intention to Adopt, Preliminary Decree, Final Decree, Important Notice to any person and/or authority having custody and/or legal and/or physical rights to the foreign born child, Petition for Adoption of Foreign Born Child with IR-4 Visa status, Birth certificate of foreign born child with translation, Death certificate(s) of birth parent(s) and/or proof that child is an orphan with translations, any other relevant foreign decrees and/or documents with translations, Affidavits and verifications signed by petitioner(s) and translator(s) stating that copies and translations of original documents are true and correct copies of originals, Consents of any person and/or agency having custody and/or legal and/or physical rights to the child, Report of Intermediary, Reports of investigations, home studies, pre-placement and post-placement, Certificate of attorneys' fees and costs, Form H105.091.
(b) The Report of Intention to Adopt and the Petition for Completion of Adoption of Foreign Born Child With IR-4 Visa Status Initiated in a Foreign Court shall be in substantially the same form as adopted by the Supreme Court and attached to the Appendix to these rules. The Petitioner(s) shall attach to the Petition a Preliminary Decree, a Final Decree, an Important Notice and the Report of the Intermediary in substantially the same form as adopted by the Supreme Court and attached to the Appendix to these rules.
(c) All original documents decrees and translations must be available for review by the Court upon request.
INDEX TO APPENDIX
ORPHANS' COURT AND REGISTER OF
WILLS FORMS
ADOPTED BY SUPREME COURT
PURSUANT TO Pa. O.C. Rule 1.3
Available as Fill-in Forms on Website
of Administrative Office of Pennsylvania Courts
http://www.aopc.org./Index/Forms/IndexForms.asp.
Orphans' Court and Administration Forms * * * * * F. Model Forms for Adoption
1. Report of Intention to Adopt
2. Preliminary Decree
3. Final Decree
4. Important Notice
5. Petition
6. Report of the Intermediary
[Pa.B. Doc. No. 07-1003. Filed for public inspection June 1, 2007, 9:00 a.m.]
[37 Pa.B. 2591]
[Saturday, June 2, 2007]
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