THE COURTS
Title 231—RULES OF
CIVIL PROCEDURE
PART II. ORPHANS' COURT RULES
[ 231 PA. CODE PART II ]
Proposed Amendment and Renumbering of Rules 15.1—15.9 and Proposed Rules 15.2, 15.7, 15.9, 15.10, 15.14—15.19 and 15.21
[43 Pa.B. 6321]
[Saturday, October 26, 2013]With respect to rules regarding adoptions, the Orphans' Court Procedural Rules Committee is recommending new Supreme Court Orphans' Court Rules 15.2, 15.7, 15.9, 15.10, 15.14, 15.15, 15.16, 15.17, 15.18, 15.19, and 15.21, as well as amending and renumbering current Rules 15.1, 15.2, 15.3, 15.4, 15.5, 15.6, 15.7, 15.8, and 15.9. Pursuant to Pennsylvania Rule of Judicial Administration 103(a)(1), these proposed new rules and amendments to current rules are being published for comment.
This is the second publication of proposed new and amended adoption rules. A prior version was published in June of 2011 with a comment period that ended on August 10, 2011. Many comments were received in response to that initial publication. The received comments were carefully reviewed and thoroughly considered, and changes were made to the initial version of proposed new adoption rules. Prior to the Committee submitting this revised proposal to the Supreme Court as a Recommendation, the Committee wanted to publish the revised proposal for additional concerns, comments and suggestions.
Proposed new rule numbers and rule additions are bold. Proposed new rules are so indicated by an Editor's Note above the rule's title, rather than having the entire text bold. Deletions are contained in bolded brackets.
For the convenience of the bench and bar, the Committee has prepared an Explanatory Report following this Publication Notice, which summarizes the proposal. Please note that the Committee's Explanatory Report should not be confused with the official Explanatory Comments that accompany certain rules. Also be aware that the Supreme Court does not adopt the Committee's Explanatory Comments or the contents of the Explanatory Report.
All communications concerning the proposed new and amended adoption rules should be sent no later than Friday, December 27, 2013, to:
Lisa M. Rhode, Counsel
Orphans' Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 6200
P. O. Box 62635
Harrisburg PA 17106-2635
FAX 717-231-9555
e-mail: orphanscourtproceduralrules@pacourts.usBy the Orphans' Court
Procedural Rules CommitteeMARGARET GALLAGHER THOMPSON,
Chair
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART II. ORPHANS' COURT RULES
RULE 15. ADOPTIONS Rule 15.1. Local rules.
The practice and procedure with respect to adoptions shall be as provided by Act of Assembly and [to the extent not inconsistent therewith shall conform either with the pertinent general rule or special order of the local Orphans' Court or, in the absence thereof, with this Rule 15] the Rules under this Chapter 15. The Orphans' Court Divisions of the several judicial districts of this Commonwealth may adopt local rules in accordance with Rule 1.5 further regulating the practice and procedure with respect to adoptions, provided that such local rules shall not be inconsistent with these Rules and the Adoption Act, 23 Pa.C.S. § 2101 et seq.
Explanatory Comment: Adoptions, termination of parental rights, proceedings related to voluntary post-adoption contact and communication agreements, and any other proceedings provided under the Adoption Act are conducted by the Orphans' Court Division and judges sitting as Orphans' Court judges in all counties of the Commonwealth, except in Philadelphia County where such proceedings are conducted in the Family Court Division.
(Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 15.2. Definitions.
In addition to the terms and definitions provided in Rule 1.3, the following words and phrases when used in this Chapter 15 shall have the following meanings:
''Adopted Child'' or ''Adopted Individual''—Any individual, and if the individual is under 18 years of age a child, for whom a decree of adoption has been entered in accordance with 23 Pa.C.S. § 2902 after a hearing or in accordance with the laws of another country or state of a similar import;
''Adoptee''—An individual proposed and available to be adopted;
''Agency''—Any incorporated or unincorporated organization, society, institution, or other entity, including a County Agency as defined in Pa.R.J.C.P. 1120, which may receive or provide for the care of children, supervised by the Department of Public Welfare and providing adoption services in accordance with standards established by the Department;
''Authorized Representative''—An individual duly trained and certified by the Department of Public Welfare, pursuant to 23 Pa.C.S. § 2938, to handle certain requests for identifying information and to search for the subject of the request as necessary;
''Birth Relative''—A parent, grandparent, stepparent, sibling, uncle or aunt of the Adoptee's birth family, whether the relationship is by blood, marriage or adoption;
''Clerk''—the Clerk or Department responsible for the legal papers and Court orders filed pursuant to the Adoption Act;
''Contact Agreement''—A voluntary written agreement between a Prospective Adoptive Parent and a Birth Relative that is executed and approved by the Court in accordance with 23 Pa.C.S. §§ 2731 et seq. and provides for continuing post-adoption contact or communication between the Adopted Child and the Birth Relative or between the adoptive parent and the Birth Relative;
''Court''—the Court of Common Pleas, Orphans' Court Division in every county of this Commonwealth, except in Philadelphia County, where the Court shall be Court of Common Pleas, Family Court Division;
''Department''—The Department of Public Welfare of the Commonwealth;
''Intermediary''—Any person or persons or Agency acting between the parent(s) and the proposed adoptive parent(s) in arranging an adoption placement;
''Minor''—A person who has not attained eighteen (18) years of age;
''Prospective Adoptive Parent(s)''—Any individual(s) with whom the child has been placed for the purpose of adoption or who has filed a report of intention to adopt under 23 Pa.C.S. § 2531; (see Mitch v. Bucks County Children and Youth, 556 A.2d 419, 421 fn. 3 (Pa. Super. 1989));
''Putative Father''—An alleged birth father of a child conceived or born out of wedlock whose parental status has not been legally established; and
''Statement of medical, personal and/or social history information''—the information concerning an Adopted Individual or the birth family of an Adopted Individual as set forth in 23 Pa.C.S. §§ 2102, 2911. The Rules in this Chapter use the term ''Statements of medical, personal and/or social history information'' because the Adoption Act refers to these statements in varying ways. Compare 23 Pa.C.S. §§ 2503(e), 2504(d), 2511(c) with 23 Pa.C.S. §§ 2923, 2934.
Rule [15.6] 15.3. [Notice to persons; method; notice of Orphans' Court proceedings filed on dependency docket] Notice of hearing to terminate parental rights; method and time.
[(a) Notice to every person to be notified shall be by personal service, service at his or her residence on an adult member of the household, or by registered or certified mail to his or her last known address. If such service is unobtainable and the registered mail is returned undelivered, then:
(1) no further notice shall be required in proceedings under Rules 15.2 or 15.3, and
(2) in proceedings under Rules 15.4 and 15.5, further notice by publication or otherwise shall be given if required by general rule or special order of the local Orphans' Court. If, after reasonable investigation, the identity of a person to be notified is unknown, notice to him or her shall not be required.
(b) When a child is in the legal custody of a county agency:
(1) Within seven (7) days of the filing of a petition to terminate parental rights under Rules 15.2 or 15.4, or a petition to confirm consent under 23 Pa.C.S. § 2504, or a petition to adopt under Rule 15.5, the county agency shall file a praecipe with the clerk of the court where the child was declared dependent using the caption of the dependency proceeding, notifying the clerk of the name of the petition filed and the date of filing in substantially the form approved by the Supreme Court.
(2) Within seven (7) days of receiving the Court's disposition of the petitions described in subparagraph (b)(1), the county agency shall file a praecipe with the clerk of the court where the child was declared dependent using the caption of the dependency proceeding, notifying the clerk of the disposition of the petition and the date of the order in substantially the form approved by the Supreme Court.
(3) If a notice of appeal from an order described in subparagraph (b)(2) is filed, then within seven (7) days of service of the notice of appeal, the county agency shall file a praecipe with the clerk of the court where the child was declared dependent using the caption of the dependency proceeding, notifying the clerk of the appeal and the date of filing in substantially the form approved by the Supreme Court.
(4) Within seven (7) days of receiving the appellate court's disposition of the appeal described in subparagraph (b)(3), the county agency shall file a praecipe with the clerk of the court where the child was declared dependent using the caption of the dependency proceeding, notifying the clerk of the disposition of the appeal and the date of the decision in substantially the form approved by the Supreme Court.]
(a) Method of Notice. Except as otherwise provided in these Rules, every person to be notified of a court hearing to terminate parental rights shall be provided with notice by personal service at his or her residence or at the location where he or she is known to be staying on an adult member of the household, or by registered or certified mail at the last address where he or she is known to be residing.
(1) If personal service is refused or cannot be obtained, service shall be made by registered or certified mail at the last address where he or she is known to be residing or staying.
(2) If service is not obtainable because the registered or certified mail is returned undelivered or the person's whereabouts are unknown after reasonable investigation, then no further notice need be provided except as provided in subparagraphs (A)—(D) below.
(A) Further notice by publication shall be provided to the Putative Father for a court hearing proceeding under Rules 15.5, 15.6, and 15.7;
(B) Further notice by publication shall be provided to the birth parent, including any Putative Father, named in the petition, for a court hearing proceeding under Rule 15.8;
(C) Further notice by publication shall be provided to the birth parent, including the Putative Father, for a court hearing proceeding under Rule 15.11 if, as part of the court hearing, the petitioner seeks for the Court, pursuant to 23 Pa.C.S. §§ 2711(b) or 2714, to dispense with the consent of a birth parent or Putative Father whose parental rights have not been terminated in a prior proceeding; and
(D) Any further or additional notice shall be given as required by local rule or special order of the local Court.
(b) Dispensing with Notice if Identity of Birth Parent Unknown. If the Court makes a finding on the record, after considering testimony or other evidence presented at a hearing, that the identity of a person to be notified is unknown, notice to him or her shall not be required.
(c) Time for Notice. Notice of the court hearing shall be provided at least ten (10) days prior to the date of the court hearing for proceedings under Rules 15.5, 15.6, 15.7, 15.8, and for a proceeding under Rule 15.11 if, as part of the court hearing, the petitioner seeks for the Court, pursuant to 23 Pa.C.S. §§ 2711(b) or 2714, to dispense with the consent of the birth parent or Putative Father whose parental rights have not been terminated in a prior proceeding.
(d) Contents of Notice; Service; and Copies to Others.
(1) The Agency, Intermediary, counsel representing the Agency or Intermediary, or counsel representing the Prospective Adoptive Parent(s) shall serve notice of the hearing on a petition filed under Rule 15.5 or Rule 15.6 in the form required by subsection 23 Pa.C.S. § 2503(b)(2) on the petitioner in accordance with paragraphs (a) and (c) of this Rule.
(A) A copy of the notice of the hearing shall be served on the other birth parent in accordance with paragraphs (a) and (c) of this Rule.
(B) If the existence of a Putative Father is alleged and his rights are requested to be terminated at the hearing, then a copy of the notice in the form required by subsection 23 Pa.C.S. § 2503(b)(3) shall be served on the Putative Father in accordance with paragraphs (a) and (c) of this Rule.
(2) The Agency, Intermediary, counsel representing the Agency or Intermediary, or counsel representing the Prospective Adoptive Parent(s) shall serve notice of a hearing on a petition filed under Rule 15.7 in the form required by subsection 23 Pa.C.S. § 2513(b) on the consenter in accordance with paragraphs (a) and (c) of this Rule. A copy of the notice of the hearing shall be served on the other birth parent, including any Putative Father whose rights are requested to be terminated, in accordance with paragraphs (a) and (c) of this Rule.
(3) The petitioner or counsel representing the petitioner shall serve notice of a hearing on a petition filed under Rule 15.8 in the form required by subsection 23 Pa.C.S. § 2513(b) on the birth parent(s) who is/are the subject of the petition, including any Putative Father whose rights are requested to be terminated, in accordance with paragraphs (a) and (c) of this Rule.
(4) A copy of the notice of the hearing shall be served on the parent(s) or guardian(s) of any birth parent or Putative Father who has not reached 18 years of age and whose rights are requested to be terminated.
(Editor's Note: The following rule is new and printed in regular type to enhance readability. This proposed rule is based on current Rule 15.6(b).)
Rule 15.4. Certification filed with the Clerk maintaining the dependency docket.
When the child is in the custody of a County Agency:
(a) Within seven (7) days of the filing of a petition to terminate parental rights under Rules 15.5, 15.7, or 15.8, or a petition to adopt under Rule 15.11, the County Agency shall file a praecipe with the clerk of the court where the child was declared dependent using the caption of the dependency proceeding, notifying the clerk of the name of the petition filed and the date of filing in substantially the form approved by the Supreme Court.
(b) Within seven (7) days of receiving the Court's disposition of the petitions described in paragraph (a), the County Agency shall file a praecipe with the clerk of the court where the child was declared dependent using the caption of the dependency proceeding, notifying the clerk of the disposition of the petition and the date of the order in substantially the form approved by the Supreme Court.
(c) If a notice of appeal from an order described in paragraph (b) is filed, then within seven (7) days of service of the notice of appeal, the County Agency shall file a praecipe with the clerk of the court where the child was declared dependent using the caption of the dependency proceeding, notifying the clerk of the appeal and the date of filing in substantially the form approved by the Supreme Court.
(d) Within seven (7) days of receiving the appellate court's disposition of the appeal described in paragraph (c), the County Agency shall file a praecipe with the clerk of the court where the child was declared dependent using the caption of the dependency proceeding, notifying the clerk of the disposition of the appeal and the date of the decision in substantially the form approved by the Supreme Court.
Explanatory Comment: This Rule was added in 2013. The purpose of the amendment was to provide a procedure for collecting data concerning children who have been declared dependent under the Juvenile Act and placed in the custody of the county agency. The information is entered into the Common Pleas Case Management System-Dependency Module to comply with reporting requirements and to monitor dependent children in the foster care system. Unlike a ''notice,'' as used in Rule 15.3, the County Agency is not required to serve the praecipe upon the parties to the dependency, termination, or adoption proceeding.
Pursuant to Rule 1.3 (Forms), the Court has approved forms for statewide practice to comply with the requirements of this Rule. These forms can be found in the Appendix to these Rules.
Rule [15.2] 15.5. Voluntary relinquishment to agency.
(a) Petition. A petition under [Section 301 of the Adoption Act] 23 Pa.C.S. § 2501 to relinquish parental rights and duties with respect to a child who has been in the care of an Agency shall [include] contain the following [allegations] averments:
(1) the name, address, age, racial background and religious affiliation of each petitioner;
(2) the information required in subparagraph (1) as to any parent who is not a petitioner, including the father or Putative Father of a child born out of wedlock, if he has been identified, [unless the court, for cause shown, determines] or the reason(s) why the Court should find that such information is not essential;
(3) the marital status of the mother as of the time of birth of the child and during one year prior thereto [and, if the mother has ever been married, the name of her husband or husbands and her maiden name];
(4) the name, age, date of birth, place of birth, racial background, sex, and religious affiliation of the child;
(5) the name and address of the Agency having care of the child;
(6) the date when the child was placed with the Agency;
(7) [when the child is born out of wedlock, whether the mother and the father of the child intend to marry;
(8)] the reasons for seeking relinquishment;
(8) whether each petitioner has been informed of counseling services concerning the termination of parental rights and the alternatives thereto and provided with a list of qualified counselors and counseling services;
(9) whether each petitioner has received any counseling concerning the termination of parental rights and the alternatives thereto and, if so, the name of the organization or qualified counselor providing such counseling services;
(10) that each petitioner has been informed that a Birth Relative of the child, including the petitioner, and Prospective Adoptive Parent(s), once identified, have the opportunity to enter into a Contact Agreement;
(11) whether a proposed, executed agreement providing for post-adoption contact and/or communication has been submitted and is pending before this Court or is being submitted to the Court under a separate petition;
(12) whether the non-petitioning birth parent has been informed that a Birth Relative of the child, including the non-petitioning birth parent, and Prospective Adoptive Parent(s), once identified, have the opportunity to enter into a Contact Agreement, or the reason(s) why such notice has not or cannot be given; and
[(9)] (13) that each petitioner has read and understands the petition, has considered the alternatives, and has executed the petition voluntarily to promote what the petitioner believes to be in petitioner's and the child's best interests.
(b) Exhibits. The petition shall have attached to it the following exhibits:
(1) the notice or agreement to relinquish custody of the child to the Agency signed by each petitioner;
(2) the joinder of a parent or Putative Father who is not a petitioner or his or her [waiver of] consent waiving all interest in the child, if either is obtainable;
[(2)] (3) a birth certificate or certification of registration of birth of the child;
[(3)] (4) the written consent of a parent or guardian of a petitioner who has not reached 18 years of age;
(5) a verified statement from a representative of the Agency, counsel representing the Agency or counsel representing any other party that notice was provided to each petitioner and any non-petitioning parent regarding the opportunity to enter into a Contact Agreement and the specific date(s) on which such notice was given; and
[(4)] (6) the joinder or consent of the Agency having care of the child [and], including its consent to accept custody of the child until such time as the child is adopted.
(c) [Notice and hearing. If a parent, including the parent of a child born out of wedlock, has not relinquished his or her rights and duties in and to the child or joined in the other parent's petition hereunder, then notice of the hearing on the petition to relinquish rights and duties shall be given to the first referred to parent as provided in Rule 15.6. A parent may waive in writing the right to such notice.] Hearing and Decree.
(1) After the filing of a petition under 23 Pa.C.S. § 2501, the Court shall schedule a private evidentiary hearing providing sufficient time for the Agency, Intermediary, counsel representing the Agency or Intermediary, or counsel representing the Prospective Adoptive Parent(s) to provide notice in compliance with Rule 15.3.
(2) Each petitioner and each person whose joinder or consent is attached to the petition must appear at the hearing and shall be examined under oath at the hearing unless excused by the [court] Court.
(3) After the hearing, the Court shall enter a decree as set forth in 23 Pa.C.S. § 2503(c) terminating parental rights, including the obligation of support, if the Court is satisfied that each petitioner voluntarily filed the petition and that termination of petitioner's parental rights is in the best interest of the child.
(4) The Court may also terminate the rights of a Putative Father who has failed to file a separate petition under 23 Pa.C.S. § 2501 or join in the petitioner's petition, if the Putative Father has been given notice of the hearing and failed to appear at the hearing or file a written objection with the Court prior to the hearing.
Explanatory Comment: Section 2733(c) of the Adoption Act requires the Agency, the Intermediary or an attorney for a party to provide notice to the Prospective Adoptive Parent(s), birth parent(s), and, in some instances, a child of the opportunity to enter into a Contact Agreement. Notice to Birth Relatives who are not birth parents is not statutorily required, although Birth Relatives may enter into and become parties to a Contact Agreement.
The verified statement to be attached as an Exhibit under subparagraph (b)(5) is not required if a proposed, executed agreement for post-adoption contact and/or communication involving that birth parent has been submitted and is pending before the Court or is attached to a separate petition to approve the proposed agreement that is being filed simultaneously with the filing of the petition under 23 Pa.C.S. § 2501. The verified statement under subparagraph (b)(5) is not required if reasons are set forth in the petition as to why notice of the opportunity to enter into a Contact Agreement was not provided to the petitioner and/or non-petitioning birth parent, and the Court determines that such notification need not or cannot be given. It is understood that County Agencies may be encouraged early in the process, even during dependency proceedings, to give notice to a birth parent of the opportunity to enter into a Contact Agreement. Requiring the verified statement to set forth the specific date(s) as to when notice was given is only to further ensure that the particular notice was given and not to suggest that providing this notice is time sensitive and expires after a certain time.
Rule [15.3] 15.6. Voluntary relinquishment to adult intending to adopt child.
(a) Petition. A petition under [Section 302 of the Adoption Act] 23 Pa.C.S. § 2502 to relinquish parental rights with respect to a child who has been in the exclusive care of [an adult or adults who have filed a Report of Intention to Adopt shall include the allegations required under subparagraphs (1), (2), (3), (4) and (7), (8) and (9) of Rule 15.2(a) and] Prospective Adoptive Parent(s) shall contain the following averments:
[(1) the date when the Report of Intention to Adopt was filed;
(2) the date when the child was placed with the adult or adults;]
(1) the name, address, age, racial background and religious affiliation of each petitioner;
(2) the information required in subparagraph (1) as to any parent who is not a petitioner, including the father or Putative Father of a child born out of wedlock, if he has been identified, or the reason(s) why the Court should find that such information is not essential;
(3) the marital status of the mother as of the time of birth of the child and during one year prior thereto;
(4) the name, age, date of birth, place of birth, racial background, sex, and religious affiliation of the child;
(5) the name and address of the Prospective Adoptive Parent(s);
(6) the date when the child was placed with the Prospective Adoptive Parent(s);
(7) the date when the Report of Intention to Adopt was filed;
(8) the reasons for seeking relinquishment;
(9) whether each petitioner has been informed of counseling services concerning the termination of parental rights and the alternatives thereto and provided with a list of qualified counselors and counseling services;
(10) whether each petitioner has received any counseling concerning the termination of parental rights and the alternatives thereto and, if so, the name of the organization or qualified counselor providing such counseling services;
(11) that each petitioner has been informed that a Birth Relative of the child, including the petitioner, and the Prospective Adoptive Parent(s) have the opportunity to enter into a Contact Agreement;
(12) whether a proposed, executed agreement providing for post-adoption contact and/or communication has been submitted and is pending before this Court or is being submitted to the Court under a separate petition;
(13) that the non-petitioning birth parent has been informed that a Birth Relative of the child, including the non-petitioning birth parent, and the Prospective Adoptive Parent(s) have the opportunity to enter into a Contact Agreement, or the reason(s) why such notice has not or cannot be given; and
(14) that each petitioner has read and understands the petition, has considered the alternatives, and has executed the petition voluntarily to promote what the petitioner believes to be in petitioner's and the child's best interests.
(b) Exhibits. The petition shall have attached to it the [first three exhibits specified in Rule 15.2(b) and] following exhibits:
[(1) the separate consent of the adult or adults to accept custody of the child.]
(1) the joinder of a parent or Putative Father who is not a petitioner or his or her consent waiving all interest in the child, if either is obtainable;
(2) a birth certificate or certification of registration of birth of the child;
(3) the written consent of a parent or guardian of a petitioner who has not reached 18 years of age;
(4) a verified statement from a representative of the Agency or Intermediary, counsel representing the Agency or Intermediary, or counsel representing any other party that notice was provided to the petitioner and the non-petitioning parent regarding the opportunity to enter into a Contact Agreement and the specific date(s) on which such notice was given; and
(5) the signed consent(s) of the Prospective Adoptive Parent(s) to accept custody of the child until such time as the adoption is completed.
(c) [Notice and] Hearing and Decree. [If a parent, including the parent of a child born out of wedlock, has not relinquished his or her rights in the child or joined in the petition hereunder, then notice of the hearing on a parent's petition to relinquish rights shall be given to the first referred to parent as provided in Rule 15.6. A parent may waive in writing the right to such notice.]
(1) After the filing of a petition under 23 Pa.C.S. § 2502, the Court shall schedule a private evidentiary hearing providing sufficient time for the Agency, Intermediary, counsel representing the Agency or Intermediary, or counsel representing the Prospective Adoptive Parent(s) to provide notice in compliance with Rule 15.3.
(2) Each petitioner and each person whose joinder or consent is attached to the petition must appear at the hearing and shall be examined under oath at the hearing unless excused by the [court] Court.
(3) After the hearing, the Court shall enter a decree as set forth in 23 Pa.C.S. § 2503(c) terminating parental rights if the Court is satisfied that each petitioner voluntarily filed the petition and that termination of petitioner's parental rights is in the best interest of the child.
(4) The Court may also terminate the rights of a Putative Father who has failed to file a separate petition under 23 Pa.C.S. § 2502 or join in the petitioner's petition, if the Putative Father has been given notice of the hearing and failed to appear at the hearing or file a written objection with the Court prior to the hearing.
Explanatory Comment: Section 2733(c) of the Adoption Act requires the Agency, the Intermediary, or an attorney for a party to provide notice to the Prospective Adoptive Parent(s), birth parent(s), and, in some instances, a child of the opportunity to enter into a Contact Agreement. Notice to Birth Relatives who are not birth parents is not statutorily required, although Birth Relatives may enter into and become parties to a Contact Agreement.
The verified statement to be attached as an Exhibit under subparagraph (b)(4) is not required if a proposed, executed agreement for post-adoption contact and/or communication involving that birth parent has been submitted and is pending before the Court or is attached to a separate petition to approve the proposed agreement that is being filed simultaneously with the filing of the petition under 23 Pa.C.S. § 2502. The verified statement under subparagraph (b)(4) is not required if reasons are set forth in the petition as to why notice of the opportunity to enter into a Contact Agreement was not provided to the petitioner and/or non-petitioning birth parent, and the Court determines that such notification need not or cannot be given. Requiring the verified statement to set forth the specific date(s) as to when notice was given is only to further ensure that the particular notice was given and not to suggest that providing this notice is time sensitive and expires after a certain time.
(Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 15.7. Alternative procedure for relinquishment.
(a) Petition. A petition under 23 Pa.C.S. § 2504 to confirm the consent to adoption given by a birth parent or Putative Father relinquishing parental rights and agreeing to have the child placed for adoption shall contain the following averments:
(1) the name, address, age, racial background and religious affiliation of the consenter;
(2) the information required in subparagraph (1) as to any parent who has not signed a consent to adoption, including the father or Putative Father of a child born out of wedlock, if he has been identified, or the reason(s) why the Court should find that such information is not essential;
(3) the marital status of the mother as of the time of birth of the child and during one year prior thereto;
(4) the name, age, date of birth, place of birth, racial background, sex, and religious affiliation of the child;
(5) the date when the consent to adoption was executed by the consenter, that this date of execution was not within a prohibited period as provided by 23 Pa.C.S. § 2711(c), and the number of days that have elapsed since the consent to adoption was executed by the consenter;
(6) that the consent to adoption was executed with the date and location as shown on the consent;
(7) that the consent was witnessed by at least two individuals who have signed as witnesses and whose names, addresses, and relationship to the consenter appear on the consent;
(8) whether the consenter was informed of counseling services concerning the termination of parental rights and the alternatives thereto and provided with a list of qualified counselors and counseling services;
(9) whether the consenter received counseling concerning the termination of parental rights and the alternatives thereto and, if so, the name of the organization or qualified counselor providing such counseling services;
(10) whether the petitioner, counsel for the petitioner, or the Agency or Intermediary if the Agency or Intermediary is not the petitioner, has received any writing from the consenter revoking or attempting to revoke the previously executed consent to adoption;
(11) that the consenter has been informed that a Birth Relative of the child, including the consenter, and the Prospective Adoptive Parent(s) have the opportunity to enter into a Contact Agreement;
(12) whether a proposed, executed agreement providing for post-adoption contact and/or communication has been submitted and is pending before this Court or is being submitted to the Court under a separate petition;
(13) whether the non-consenting birth parent has been informed that a Birth Relative of the child, including that birth parent, and the Prospective Adoptive Parent(s) have the opportunity to enter into a Contact Agreement, or the reason(s) why such notice has not or cannot be given; and
(14) that each petitioner has read and understands the petition and believes its filing to be in the child's best interests.
(b) Exhibits. The petition shall have attached to it the following exhibits:
(1) the original consent(s) to adoption;
(2) the written consent of a parent or guardian of a consenter who has not reached 18 years of age;
(3) a birth certificate or certification of registration of birth of the child; and
(4) a verified statement from a representative of the Agency or Intermediary, counsel representing the Agency or Intermediary, or counsel representing any other party that notice was provided to the consenter(s) and the birth parent who has not signed a consent to adoption regarding the opportunity to enter into a Contact Agreement and the specific date(s) on which such notice was provided; and
(5) the signed consent(s) of the adult(s) or Agency to accept custody of the child until such time as the adoption is completed.
(c) Hearing and Decree.
(1) After the filing of a petition under 23 Pa.C.S. § 2504, the Court shall schedule a private evidentiary hearing providing sufficient time for the Agency, Intermediary, counsel representing the Agency or Intermediary, or counsel representing the Prospective Adoptive Parent(s) to provide notice in compliance with Rule 15.3.
(2) Any person who executed a consent to adoption may appear at the hearing and be examined under oath by the Court, but the presence of such person is not mandatory.
(3) After the hearing, the Court shall enter a decree as provided in 23 Pa.C.S. § 2504(b) terminating the consenter's parental rights if the Court is satisfied that the consent was voluntary, was properly executed in accordance with 23 Pa.C.S. § 2711, and termination of parental rights is in the best interest of the child.
(4) The Court may also terminate the rights of a Putative Father if the Putative Father has been given notice of the hearing and failed to appear at the hearing or file a written objection with the Court prior to the hearing.
Explanatory Comment: Section 2733(c) of the Adoption Act requires the Agency, Intermediary, or an attorney for a party to provide notice to the Prospective Adoptive Parent(s), birth parent(s), and, in some instances, a child of the opportunity to enter into a Contact Agreement. Notice to Birth Relatives who are not birth parents is not statutorily required, although Birth Relatives may enter into and become parties to a Contact Agreement.
The verified statement to be attached as an Exhibit under subparagraph (b)(4) is not required if a proposed, executed agreement for post-adoption contact and/or communication involving that birth parent has been submitted and is pending before the Court or is attached to a separate petition to approve the proposed agreement that is being filed simultaneously with the filing of the petition under 23 Pa.C.S. § 2504. The verified statement under subparagraph (b)(4) is not required if reasons are set forth in the petition as to why notice of the opportunity to enter into a Contact Agreement was not provided to the consenter and/or other birth parent or Putative Father, and the Court determines that such notification need not or cannot be given. Requiring the verified statement to set forth the specific date(s) as to when notice was given is only to further ensure that the particular notice was given and not to suggest that providing this notice is time sensitive and expires after a certain time.
Rule [15.4] 15.8. Involuntary termination of parental rights.
(a) Petition. A petition for involuntary termination of parental rights under [Sections 311 and 312 of the Adoption Act shall include] 23 Pa.C.S. §§ 2511—2512 shall contain the following [allegations] averments:
[(1) the name and address of the petitioner and his or her standing;
(2) the name, age, date of birth, racial background, sex and religious affiliation of the child;
(3) the name, address, age, racial background and religious affiliation of the parent or parents, including the father of a child born out of wedlock, if he has been identified;
(4) the marital status of the mother as of the time of birth of the child and during one year prior thereto and, if the mother has ever been married, the name of her husband or husbands and her maiden name;
(5) the date when the child was placed in the care of the petitioner;
(6) facts constituting grounds for the involuntary termination under Section 311 of the Adoption Act, and a reference to the applicable subsection or subsections;
(7) whether either parent of the child is entitled to the benefits of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (50 U.S.C.A. 501 et seq.);
(8) that the petitioner will assume custody of the child until such time as the child is adopted.]
(1) the name and address of the petitioner(s) and the basis for the standing asserted by the petitioner(s);
(2) the name, age, date of birth, place of birth, racial background, sex, and religious affiliation of the child;
(3) the name, address, age, racial background and religious affiliation of the parent(s), including the father or Putative Father of a child born out of wedlock, if he has been identified;
(4) whether a claim for paternity has been filed under 23 Pa.C.S. § 5103 (relating to claim of paternity) if father of the child is a Putative Father or is identified as unknown in the petition;
(5) the marital status of the mother as of the time of birth of the child and during one year prior thereto;
(6) the date when the child was placed in the care of the petitioner;
(7) the date when the child was removed from the parent(s) who is/are the subject of the petition, if different than the date of placement with the petitioner;
(8) specific facts setting forth why the child was voluntarily or involuntarily placed or removed from the parent(s);
(9) a reference to the applicable subsection(s) of 23 Pa.C.S. § 2511(a) providing the ground(s) for termination and specific facts supporting the termination of parental rights pursuant to the subsection(s) referenced;
(10) that the petitioner has informed the birth parent(s) who is/are the subject of the petition that a Birth Relative of the child, including the birth parent(s) who is/are the subject of the petition, and the Prospective Adoptive Parent(s), once identified, have the opportunity to enter into a Contact Agreement or that such notice was given by the Agency or Intermediary or counsel representing a party, or the reason(s) why such notice has not or cannot be given;
(11) whether a proposed, executed agreement for post-adoption contact and/or communication has been submitted and is pending before this Court or is being submitted to the Court under a separate petition;
(12) whether the petitioner has a present intent to adopt and will assume custody of the child until such time as the child is adopted if the petitioner is an individual; and
(13) that each petitioner has read and understands the petition and believes its filing to best serve the developmental, physical and emotional needs and welfare of the child.
(b) Exhibits. The petition shall have attached to it the following exhibits:
(1) a birth certificate or certification of registration of birth of the child;
(2) [the joinder of a parent of a petitioner who is under the age of 18, unless excused by the court.] the signed consent(s) of the petitioner(s) to accept custody of the child until such time as the adoption is completed if the petitioner(s) is other than an Agency; and
(3) a verified Statement from a representative of the Agency or Intermediary, counsel representing the Agency or Intermediary, or counsel representing the petitioner(s), if the petitioner is other than an Agency, that notice was provided to the birth parent(s) that is/are the subject of the petition regarding the opportunity to enter into a Contact Agreement and the specific date(s) on which such notice was given.
(c) Guardian ad litem.
(1) When the termination of the parental rights [of a parent who has not attained the age of 18 years is sought] is sought of a birth parent who has not attained the age of 18 years, unless the [court] Court finds the minor birth parent is already adequately represented, the [court] Court shall appoint a guardian ad litem or counsel to represent the minor birth parent. The appointment of a guardian ad litem or counsel may be provided for in the preliminary [order] decree attached to the petition for involuntary termination of parental rights.
(2) The decree appointing a guardian ad litem or counsel shall give the name, date of birth and address (if known) of the individual whom the guardian ad litem or counsel is to represent and the proceedings and period of time for which the guardian ad litem or counsel shall act.
(d) [Notice and hearing. Notice of the hearing on the petition shall be given, in accordance with Rule 15.6 hereof, to the parent or parents whose rights are sought to be terminated, including the parent of a child born out of wedlock, to any intermediary named in a Report of Intention to Adopt, if one has been filed, and to the guardian of the person or guardian ad litem of any parent or parents who is or are under the age of 18 years. Each petitioner, each person whose joinder or consent is attached to the petition and any intermediary named in a Report of Intention to Adopt shall be examined under oath at the hearing unless they are excused by the court.] Hearing and decree.
(1) After the filing of a petition under 23 Pa.C.S. §§ 2511—2512, the Court shall schedule a private evidentiary hearing providing sufficient time for the petitioner or petitioner's counsel to provide notice in compliance with Rule 15.3 and to provide notice to any guardian ad litem appointed by the Court.
(2) After the hearing, the Court shall enter a decree terminating parental rights as set forth in 23 Pa.C.S. § 2513(d) if the Court is satisfied that the petitioner has established, by clear and convincing evidence, at least one of the grounds for termination under 23 Pa.C.S. § 2511(a) and thereafter established by clear and convincing evidence that termination will best serve the developmental, physical and emotional needs and welfare of the child.
Explanatory Comment: An averment of a present intent to adopt the child is not necessary if the petitioner is an Agency. Prospective Adoptive Parents need not have been identified prior to the Agency's filing of a petition to involuntarily terminate parental rights.
Section 2733(c) of the Adoption Act requires the Agency or Intermediary, counsel representing the Agency or Intermediary, or counsel representing any other party to provide notice to the Prospective Adoptive Parent(s), birth parent(s), and, in some instances, a child of the opportunity to enter into a Contact Agreement. Notice to Birth Relatives who are not birth parents is not mandated by the statute, although Birth Relatives may enter into and become parties to a Contact Agreement.
The verified statement to be attached as an Exhibit under subparagraph (b)(3) is not required if a proposed, executed agreement for post-adoption contact or communication involving that birth parent already has been submitted and is currently pending before the Court or is attached to a separate petition to approve the proposed agreement that is being filed simultaneously with the filing of the involuntary termination petition. The verified statement under subparagraph (b)(3) is not required if reasons are set forth in the petition, and the Court determines that such notification need not or cannot be given. It is understood that County Agencies may be encouraged early in the process, even during dependency proceedings, to give notice to a birth parent of the opportunity to enter into a Contact Agreement. Requiring the verified statement to set forth the specific date(s) as to when notice was given is only to further ensure that the particular notice was given and not to suggest that providing this notice is time sensitive and expires after a certain time.
(Editor's Note: Rules 15.9 and 15.10 are new and printed in regular type to enhance readability.)
Rule 15.9. Notice of Right to File Statement of Medical, Personal and/or Social History Information.
The Clerk shall transmit the decree of termination to the parent whose rights are terminated or to counsel for the parent, if represented. The Clerk shall include in that mailing standard instructions advising the parent of his or her continuing right to file with the Clerk and with the Department medical and personal and/or social history information and to update the information filed, whether or not the medical condition is in existence or discoverable at the time of adoption. The standard instructions shall also inform the birth parent that any information that he or she provides will be retained and disclosed only to those allowed to have non-identifying information in accordance with Subchapter B of Chapter 29 of the Adoption Act, 23 Pa.C.S. §§ 2911 et. seq., and further that identifying information as to that birth parent will be disclosed only if he or she has signed and placed in the court file an authorization or consent form permitting release.
Explanatory Comment: The Clerk may include in the mailing to the birth parent or birth parent's counsel any forms promulgated by the Department, any forms promulgated by the Department of Health, and any forms adopted by Local Rule, including forms authorizing the release of information, withholding authorization to release information, or revoking any prior authorization to release information.
Rule 15.10. Court Review and Approval of Contact Agreement.
(a) Time and Filing. A proposed, executed agreement for post-adoption contact and/or communication signed by the Prospective Adoptive Parent(s) and any Birth Relative(s) (''the proposed agreement'') must be appended to a petition requesting the Court to approve the proposed agreement.
(1) If the parental rights of either birth parent have not been terminated, the proposed agreement shall be presented by separate petition to the same Court that has or will receive the petition(s) for terminating parental rights.
(2) If all the birth parents' parental rights, including those of a Putative Father, have been terminated, the proposed agreement shall be presented by separate petition to the Court that will be presented with the adoption petition.
(3) The petition to approve the proposed agreement may be filed by the Agency or Intermediary, any signatory to the proposed agreement, or by the guardian ad litem appointed to represent the proposed Adoptee.
(b) Petition to Approve a Contact Agreement. A petition to approve the proposed agreement under 23 Pa.C.S. § 2735 shall contain averments setting forth the following specific and material facts, to the extent known to the petitioner:
(1) the age and birth date of the Adoptee;
(2) if the Adoptee has attained twelve (12) years of age, whether the Adoptee sign a written consent agreeing to the proposed agreement or signed the proposed agreement as evidence of his or her consent;
(3) whether the Adoptee has been represented by a guardian ad litem, and if so, whether the guardian ad litem participated in the negotiation and development of the proposed agreement;
(4) whether there are siblings of the Adoptee, and if so,
(a) the age and birth date of each sibling, specifically noting those siblings who are Minors;
(b) who has legal custody and who has physical custody of each sibling who is a Minor, and the name of any guardian ad litem currently representing any of these Minor siblings in any proceeding;
(c) whether any Minor sibling has been freed for adoption pursuant to 23 Pa.C.S. §§ 2503(c), 2504(b), and/or 2513(d) and has been or is being adopted by adopting parents or Prospective Adoptive Parent(s) different than those adopting the Adoptee; and
(d) whether any guardian ad litem representing any Minor sibling has participated in the negotiation and development of the proposed agreement;
(5) the length of time that the Adoptee has been under the care, custody and control of individual(s) other than a birth parent, even if such individual(s) is/are other than the Prospective Adoptive Parent(s);
(6) the circumstances under which the Adoptee became freed for adoption;
(7) the length of time that the Adoptee has been in the care and custody of these Prospective Adoptive Parent(s);
(8) any other persons who are not signatories to the proposed agreement but who routinely would be present when the signatory Birth Relative(s) have contact or communications with the Adoptee and the Adoptee's interaction and relationship with such other persons;
(9) the willingness and ability of the signatory Birth Relative(s) to respect and appreciate the bond between Adoptee and Prospective Adoptive Parent(s);
(10) the willingness and ability of the Prospective Adoptive Parent(s) to respect and appreciate the bond between Adoptee and the signatory Birth Relative(s); and
(11) that each petitioner has read and understands the petition and believes its filing and the proposed agreement to be in the best interests of the Adoptee.
(c) Exhibits. The petition shall have attached to it the following exhibits:
(1) A copy of the proposed agreement signed by Prospective Adoptive Parent(s) and the involved Birth Relatives;
(2) The Adoptee's signed consent, if any, agreeing to the proposed agreement;
(3) The signed consent(s), if any, of the Adoptee's siblings agreeing to the proposed agreement; and
(4) Affidavits of all signatories to the proposed agreement affirmatively stating that the proposed agreement was entered into knowingly and voluntarily and is not the product of coercion, fraud or duress. The Affidavits may be executed jointly or separately.
(d) Service of Petition.
(1) The petitioner shall mail a copy of the petition with the proposed agreement appended thereto and a notice that any responsive pleading or written objections must be filed with the Clerk within ten (10) days from the date indicated on the petition or notice letter to the following:
(A) all signatories to the proposed agreement or their counsel, if represented;
(B) the Agency or Intermediary, if any;
(C) the Adoptee if he or she signed a separate written consent agreeing to the proposed agreement or signed the proposed agreement as evidence of his or her consent, or his or her counsel, if represented;
(D) the Adoptee's guardian ad litem if one has been appointed;
(E) any guardian ad litem who has been appointed to represent any Minor sibling of the Adoptee; and
(F) any sibling who signed a separate written consent agreeing to the proposed agreement or signed the proposed agreement as evidence of his or her consent.
(2) A signed Certificate of Service shall be appended to the petition or filed separately and contemporaneously with the filing of the petition, stating that a copy of the petition with the requisite notice for filing any responsive pleading or written objection was mailed by first-class, United States mail, postage prepaid, to those listed above in subparagraphs (1)(A)—(1)(F), as applicable.
(e) Guardian ad litem. Upon its own motion, or if requested by the petitioner or by any previously appointed guardian ad litem, the Court shall appoint a new guardian ad litem or reappoint any prior guardian(s) ad litem for any or all of the following:
(1) the Adoptee if one is not currently serving; and
(2) any Minor sibling(s) of the Adoptee who has been freed for adoption pursuant to 23 Pa.C.S. §§ 2503(c), 2504(b), and/or 2513(d) and has been or is being adopted by adopting parents or Prospective Adoptive Parent(s) different than those adopting the Adoptee.
(f) Court Review and Approval; Necessity of a Hearing and Notice of the Hearing.
(1) If, upon a review of the petition and the attached exhibits, the Court determines that the proposed agreement is in the best interest of the Adoptee, the Court may issue a decree approving the proposed agreement attached to the petition, but not less than ten (10) after the date of the Certificate of Service, unless all of those entitled to notice under subparagraph (d)(1) have signed a writing waiving the notice required therein.
(2) The Court shall schedule and conduct a private evidentiary hearing under any one of the following circumstances:
(A) upon a review of the petition and the attached exhibits, the Court does not find sufficient evidence that the proposed agreement is in the best interest of the Adoptee;
(B) any person receiving notice of the filing of the petition under subparagraph (d)(1) files with the Clerk a responsive pleading or written objections objecting to the petition or the terms of the proposed agreement; or
(C) for any other reason within the Court's discretion.
(3) Notice of the Hearing. The petitioner shall provide notice of the scheduled hearing as follows:
(A) Notice of the hearing shall be provided to:
(i) all signatories to the proposed agreement or their counsel, if represented;
(ii) the Agency or Intermediary, if any:
(iii) the Adoptee if he or she signed a separate written consent agreeing to the proposed agreement or signed the proposed agreement as evidence of his or her consent, or his or her counsel, if represented;
(iv) the Adoptee's guardian ad litem if one has been appointed;
(v) any guardian ad litem that has been appointed to represent any Minor sibling of the Adoptee; and
(v) any sibling who signed a separate written consent agreeing to the proposed agreement or signed the proposed agreement as evidence of his or her consent.
(B) Notice of the hearing need not comport with the requirements of Rule 15.3, and notice may be sent by first-class United States mail, postage prepaid, by electronic mail, or by whatever other means will effectively inform everyone entitled to notice of the date, time, and place of the hearing and the necessity of their presence at the hearing.
(C) A Certificate of Service attested by the petitioner shall be presented to the Court at the time of the hearing. The Certificate of Service shall indicate the method of notice and shall have attached thereto a copy of the notice, any affidavit by one who made personal service, any receipt cards for service sent by registered or certified mail, and any electronic receipt confirmation from anyone receiving notice electronically.
(D) The following persons shall attend the hearing unless otherwise excused by the Court for good cause shown:
(i) All signatories to the proposed agreement;
(ii) the Adoptee;
(iii) any sibling who signed the proposed agreement or signed a separate written consent agreeing to the proposed agreement;
(iv) any guardian ad litem appointed to represent the Adoptee or Minor sibling(s) of the Adoptee; and
(v) anyone else that the Court directs to attend the hearing.
(4) Decree after an evidentiary hearing. If, after the hearing, the Court determines that the proposed agreement is in the best interest of the Adoptee, the Court shall issue a decree approving the proposed agreement. If, after the hearing, the Court determines that the testimony has failed to establish that the proposed agreement is in the best interest of the Adoptee, the Court shall issue a decree denying approval of the proposed agreement and setting forth the specific reason(s) for the denial.
(g) Court Decree. The Court shall review and grant or deny the petition to approve the proposed agreement for post-adoption contact and/or communication on or before the date when the decree of adoption is entered in accordance with 23 Pa.C.S. § 2902.
Explanatory Comment: It is the belief and hope of many social workers, Agencies, practitioners and jurists that the opportunity to develop agreements for post-adoption contact and/or communication will facilitate and encourage adoptions. Many advocate that discussions about post-adoption contact and/or communication agreements begin as early as possible, especially once all the necessary parties are identified. To this end, the Courts will accept, review and approve a proposed agreement for post-adoption contact and/or communication at any stage of the proceeding. If practical, a petition to approve a proposed, executed agreement may be conducted as part of a parental rights termination hearing under 23 Pa.C.S. §§ 2503, 2504, or 2513 or as part of an adoption hearing under 23 Pa.C.S. § 2724. The Rule above establishes where the petition to approve the proposed agreement should be filed depending upon whether parental rights have been terminated.
Section 2735 of the Adoption Act, 23 Pa.C.S. § 2735, does not indicate who is responsible for filing the petition seeking Court approval of the proposed agreement for post-adoption contact and/or communication. The Orphans' Court Procedural Rules Committee decided not to impose the obligation on any one party in all instances, but rather, to allow the individuals to the proposed agreement and the Agency or Intermediary facilitating the negotiation and development of the proposed agreement to determine who should be responsible for drafting and filing the petition depending upon the resources and circumstances of all those involved.
The Rule requires an averment as to the existence of any Minor siblings of the Adoptee who are freed for adoption, but not being adopted by the same Prospective Adoptive Parent(s) so that the Court, before reviewing and considering the proposed agreement, can determine whether it is necessary to appoint a guardian ad litem to represent any Minor siblings. See 23 Pa.C.S. § 2733(b).
Section 2735 of the Adoption Act, 23 Pa.C.S. § 2735, does not require a court hearing in order to approve the proposed agreement, and the Orphans' Court Procedural Rules Committee decided not to impose an evidentiary hearing requirement in all instances. Nevertheless, given that a Minor cannot attest to a notary that he or she executed or consented to a proposed agreement voluntarily, knowingly, without coercion, fraud or duress, best practices would be for the Court to conduct its own inquiry whenever an Adoptee or any of the Adoptee's Minor siblings signed a separate consent agreeing to the proposed agreement or signed the proposed agreement as evidence of such consent to ensure that the Minor consented to or signed the proposed agreement voluntarily and fully understands the terms of the proposed agreement. Since section 2738(c)(3) of the Adoption Act, 23 Pa.C.S § 2738(c)(3), requires any Adoptee who has attained twelve (12) years of age to consent to the proposed agreement, best practices would be to conduct evidentiary hearings in these situations.
Also, at any hearing conducted by the Court, the Adoptee's presence is required regardless of the Adoptee's age and whether the Adoptee consented in writing to the proposed agreement. It is hoped the Court, at that hearing, will ensure that the Adoptee is fully informed of his or her statutory rights to petition to enforce or modify the Contact Agreement or seek its discontinuance in the same Court that conducts the adoption hearing. Also, any sibling who is present at the hearing should be informed by the Court of his or her statutory right to enforce the Contact Agreement in the appropriate Court.
The Court must find, either by reviewing the petition and exhibits or by conducting an evidentiary hearing, that the proposed agreement, as submitted, is in the Adoptee's best interests. Since the statute does not indicate the appropriate standard of proof, this question will have to be determined by developing caselaw. Section 2734 does specify that the proposed agreement may not be enforced without the Adoptee who has attained twelve (12) years of age at the time of the agreement's execution consenting to the proposed agreement, thereby suggesting that a proposed agreement cannot be found to be in the best interests of an Adoptee who has attained twelve (12) years of age and refuses to consent to the proposed agreement.
Notwithstanding the factual averments contained in the petition for approval of the proposed agreement, the affidavits attached as exhibits to the petition, the testimony of witnesses at an evidentiary hearing, including the possible testimony of signatories to the proposed agreement, caseworkers, and psychologists, the Court still may determine that the proposed agreement is not in the Adoptee's best interest, and the denial of approval shall be appealable as provided in Pa.R.A.P. 311, 312, 1311, and 341. However, by setting forth the specific reason(s) for denial, it is intended that the individuals involved will attempt to fashion a revised agreement for post-adoption contact or communication that will meet the Court's approval.
Once approved, the Contact Agreement must be filed with the Clerk of the Court that signs and enters the adoption decree under 23 Pa.C.S. §§ 2902, 2908. Neither the statute nor these Rules impose that obligation on any one of the signatories to the Contact Agreement, except as provided in Rules 15.11 and 15.13 below. Although agreements providing for post-adoption communication or contact may be negotiated and entered into without any seeking judicial approval, the Court will enforce and provide remedies only for those agreements that received Court approval on or before the date when the Adoptee's adoption was finalization. See 23 Pa.C.S. §§ 2735(c), 2738(c)(3).
Rule [15.5] 15.11. Adoption.
(a) Petition. [The] A petition for adoption under 23 Pa.C.S. § 2701 shall contain [all declarations and information required by Section 401 of the Adoption Act and any additional information required by local rules.] the following averments:
(1) the name, address, marital status, age, occupation, racial background and religious affiliation of the petitioner(s);
(2) the name of the Adoptee;
(3) the relationship, if any, of the petitioner(s) to the Adoptee;
(4) whether the Adoptee has resided with the petitioner(s), and if so, the length of time that Adoptee has so resided with the petitioner(s)
(5) the Intermediary's name and address, if any;
(6) whether the home study and preplacement report under 23 Pa.C.S. § 2530, the Report of an Intention to Adopt under 23 Pa.C.S. § 2531, and the Report of Intermediary under 23 Pa.C.S. § 2533 have been filed, and if not filed, the date when it is anticipated that such reports will be filed;
(7) if there is no Intermediary, if no Report of the Intermediary has been or will be filed, or if the Adoptee has attained eighteen (18) years of age, all vital statistics and other information required in the Report of the Intermediary, so far as is applicable;
(8) whether a birth certificate or certification of registration of birth of the Adoptee is attached to the petition as an exhibit, and if not attached, the reasons why it is not attached, the efforts made to obtain the birth certificate or certification of registration of birth, and the evidence available to establish a date and place of birth of the Adoptee;
(9) whether all the consents required by 23 Pa.C.S. § 2711 are attached to the petition as exhibits;
(10) if any of the exhibits listed in subparagraph (a)(6) or (a)(9) are not attached to the petition, specific averments explaining why such exhibits have not been attached and the reasons showing cause why the Court may enter a decree of adoption under 23 Pa.C.S. § 2901, notwithstanding the absence of all legal requirements having been met;
(11) whether the Agency or Intermediary, if any, counsel representing the Agency or Intermediary or counsel representing any other party to the adoption has informed the Prospective Adoptive Parent(s) and the Adoptee who has attained twelve (12) years of age of the opportunity to enter into a Contact Agreement, or the reason(s) why such notice has not or cannot be given;
(12) whether a proposed, executed agreement for post-adoption contact and/or communication is attached to the petition as an exhibit, and if so, an averment as to one of the following:
(A) the Contact Agreement and Court order approving the Contact Agreement are attached as exhibits to the petition; or
(B) a proposed, executed agreement for post-adoption contact and/or communication has been submitted and is pending before the Court; or
(C) a proposed, executed agreement for post-adoption contact and/or communication is being filed with this petition or under a separate petition simultaneously with the filing of this petition;
(13) the proposed new name of the Adoptee if a change in name is desired;
(14) that the petitioner(s) desire to have the relationship of parent and child established between the petitioner(s) and the Adoptee; and
(15) that each petitioner has read and understands the petition and believes its filing to be in the Adoptee's best interests.
(b) Exhibits. The petition shall have attached to it the following exhibits:
(1) a birth certificate or certification of registration of birth of the child;
(2) the consent(s) required by 23 Pa.C.S. §§ 2711, as applicable;
(3) unless previously filed, the Report of the Intermediary with the exhibits required under 23 Pa.C.S. § 2534;
(4) a verified statement from a representative of the Agency or Intermediary, counsel representing the Agency or Intermediary, or counsel representing any other party that notice was provided to the Prospective Adoptive Parent(s) and to the Adoptee if he or she has attained twelve (12) years of age regarding the opportunity to enter into a Contact Agreement and the specific date(s) on which such notice was given; and
(5) any Contact Agreement and the Court order approving the Contact Agreement, or if not previously approved, any proposed, executed agreement for post-adoption contact and/or communication for which Court approval is requested, unless the agreement is being submitted under a separate petition.
(c) Notice or Consent—Parents of Child.
(1) Notice [as provided by Rule 15.6] of the hearing on the petition for adoption shall be given to each birth parent as provided by Rule 15.3 unless:
[(1)] (A) he or she has consented in writing to the adoption and [waived notice of hearing, or] his or her consent has been previously confirmed as provided in Rule 15.7;
[(2)] (B) he or she has voluntarily relinquished his or her parental rights in a proceeding under Rule [15.2] 15.5 or Rule [15.3,] 15.6; or
[(3)] (C) his or her parental rights have been involuntarily terminated in a proceeding under Rule [15.4] 15.8.
(2) If, as part of the adoption hearing, the petitioner(s) is/are seeking Court approval for a proposed, executed agreement for post-adoption contact and/or communication, the petitioner(s) shall serve a copy of the petition for approval and the proposed agreement as provided in subparagraph (d)(1) of Rule 15.10 upon the individuals and entities therein listed, shall file a Certificate of Service as provided in subparagraph (d)(2) of Rule 15.10, and shall provide notice of the adoption hearing to these individuals and entities as provided in subparagraph (f)(3) of Rule 15.10.
[(c)] (d) Investigation. A petition for adoption shall be subject to investigation as prescribed by local rules. The investigation report shall cover the matters alleged in the petition, any other matters that may affect the welfare of the child, and the information required by [Sections 335 and 424 of the Adoption Act] 23 Pa.C.S. §§ 2535 and 2724.
[(d) Disclosure of fees and costs.] (e) Hearing. The Court shall conduct a hearing on the petition for adoption to determine the desirability of the proposed adoption and whether the adoption will promote the Adoptee's needs and welfare. Upon a hearing, if the Court determines that the adoption can be granted, the Court shall enter a decree as provided in Section 2902 of the Adoption Act. See 23 Pa.C.S. § 2902.
(1) If the petition for adoption contains averments as provided in subparagraph (a)(10), the Court shall take evidence to determine if the petitioner has shown cause for failing to meet the statutory requirements of the Adoption Act and has demonstrated that the Adoptee's needs and welfare nevertheless will be best served by entering a decree of adoption. The petitioner shall present evidence upon which the Court can find cause to dispense with a statutory requirement of the Adoption Act at the adoption hearing or in a separate hearing, as the Court may determine.
(2) At the hearing on the petition for adoption, there shall be offered in evidence a report, certified by counsel for the [petitioner] petitioner(s), setting forth the amount of fees and expenses paid or to be paid to counsel, and any other fees, costs and expenses paid or to be paid to an [intermediary] Intermediary or any other person or institution, in connection with the adoption.
[(e)] (f) Adult—Change of Name. When the person to be adopted is over the age of 18 years and desires to assume the surname of the adopting [parent or parents] parent(s), evidence showing compliance with the law relating to change of name must be introduced before a decree will be made.
(g) Decree. The Decree of Adoption shall conform to the requirements of 23 Pa.C.S. §§ 2901—2902, 2904.
Explanatory Comment: The Court, in its discretion, can dispense with any statutory requirement of the Adoption Act for cause shown. See 23 Pa.C.S. 2901. As a result, if petitioner is unable to satisfy all the prerequisites or attach all the exhibits required by the Adoption Act, the petition for adoption should not be dismissed summarily. Rather, the petitioner should be afforded an opportunity to demonstrate why a statutory requirement has not or cannot be met and why the proposed Adoptee's best interest is nevertheless served by granting the adoption petition. For example, in In re Adoption of R.B.F. and R.C.F., 569 Pa. 269, 803 A.2d 1195 (2002), the Supreme Court, after construing and relying upon section 2901, determined that the Adoption Act does not preclude two unmarried same-sex partners (or unmarried heterosexual partners) from adopting a child because the hearing judge for cause shown can dispense with the statutory requirement that a consent to adopt under section 2711(d) include, inter alia, a relinquishment of parental rights by the parent consenting to the adoption.
If the petition for adoption contains averments as provided in paragraph (a)(10), the Court shall conduct an evidentiary hearing. If after reviewing the averments in the petition, the Court is satisfied that cause can be shown and the Adoptee's best interests will be promoted by the entry of a decree of adoption, then the Court should conduct one hearing on the adoption petition, taking evidence of why all the statutory requirements have not and need not be met as well as why the Adoptee's needs and welfare will be promoted by the adoption. Nothing prevents the Court, in its discretion, from conducting separate evidentiary hearings if the Court after reviewing the petition is uncertain that the averments establish sufficient cause for relieving the petitioner(s) of a statutory requirement under the Adoption Act. In all cases, however, the petitioner is entitled to a hearing and an opportunity to present evidence in support of the averments in the petition. See In re Adoption of R.B.F. and R.C.F. The Court, in its discretion, can dispense with any statutory requirement of the Adoption Act if the petitioner presents evidence establishing cause for failing to meet a statutory requirement. See 23 Pa.C.S. § 2901.
Per section 2733(c) of the Adoption Act, 23 Pa.C.S. § 2733(c), notice of the opportunity to enter into a Contact Agreement should be given to any Adoptee who reasonably can be expected to understand the opportunity, benefits and consequences of continuing post-adoption contact and communication with Birth Relative(s). Notwithstanding the statutory language, this Rule requires proof only that notice was given to an Adoptee who is twelve (12) years of age or older because the Court, without separate, independent evidence and observations, is not capable of determining which Adoptees are sufficiently mature and capable of understanding this notice and opportunity; and furthermore, only an Adoptees who has attained twelve (12) years of age must consent to any proposed agreement for post-adoption contact and/or communication submitted to the Court for approval. See 23 Pa.C.S. § 2738(c)(3).
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