[43 Pa.B. 6321]
[Saturday, October 26, 2013]
[Continued from previous Web Page] Rule [15.8] 15.12. Registration of foreign adoption decree.
(a) Adopting parent(s) may petition the Court [of Common Pleas] in the county of their residence to register a foreign adoption decree so that it will be given full and final effect in this Commonwealth. The [Petition and Final Decrees ] petition and final decrees shall be in substantially the form approved by the Supreme Court. See Appendix of Forms to these Rules.
(1) As part of the Petition to Register Foreign Adoption Decree, [a child's] an Adopted Child's name may be changed from that appearing on the foreign adoption decree if the [child is younger than] Adopted Child has not yet attained twelve (12) years of age.
(b) A foreign adoption decree previously registered or otherwise finalized by a Court of this Commonwealth or of any other state may not be registered subsequently in another Court of this Commonwealth.
(c) If the Court [of Common Pleas] determines that the foreign adoption decree can be registered, the Court shall sign the [Final Decree] final decree and shall direct the Clerk [of the appropriate Court] to enter the date of the foreign adoption decree and identify the foreign court on the docket. The Clerk shall send Form No. HD01273F, Certificate of Adoption of a Foreign-Born Child, and Form No. HD01275F, Statement of Citizenship and Residency, to the Department of Health, Division of Vital Records, along with a copy of U.S. Government Form N-560, Certificate of Citizenship, and/or a copy of the child's United States passport, if either or both documents have been provided by the adopting parent(s). The Clerk shall issue to the adopting parent(s) a certificate of adoption in accordance with [Section 2907 of the Adoption Act] 23 Pa.C.S. § 2907. [See 23 Pa.C.S. § 2907.]
(d) If the Court [of Common Pleas] determines that the foreign adoption decree cannot be registered, the adopting parent(s) shall proceed as applicable under the provisions set forth in the Adoption Act, 23 Pa.C.S. §§ 2101 et seq., Pa.O.C. Rule [15.9] 15.13 (specific to the adoption of a foreign born child), and local rules [of court].
(e) Adopting parent(s) who are eligible to register the foreign adoption decree under this Rule may, for any reason, proceed under Pa.O.C. Rule [15.9] 15.13.
Explanatory [Note] Comment: Pursuant to 23 Pa.C.S. § 2908(b), as amended by Act 96 of 2006, a set of forms, consisting of a Petition to Register Foreign Adoption Decree, Final Decrees approving and denying the Petition, and detailed Instructions for the pro se petitioner(s) are set forth in the Appendix to these Rules.
The [Petition] 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 [Petition] petition and accompanying documents, including the [Final Decree] final decree, are confidential and should be impounded and withheld from public inspection as provided in the Adoption Act, 23 Pa.C.S. §§ [2905,] 2906, 2907 [and], 2908(f), and 2911—2937 and Pa.O.C. Rule [15.7] 15.20.
The Clerk shall make available to petitioner(s) the necessary Department of Health, Division of Vital Records forms: Form No. HD01273F, Certificate of Adoption of a Foreign-Born Child; and Form No. HD01275F, Statement of Citizenship and Residency.
A change of name from that appearing on the foreign adoption decree is permitted without the need to comply with the procedures of 54 Pa.C.S. § 702 if the child is younger than twelve (12) years of age. Cf. 23 Pa.C.S. § 2711(a)(1). If the foreign born adopted child is twelve (12) years of age or older, then the child and parent(s) would need to follow the procedures set forth in 54 Pa.C.S. § 702 and would not be foreclosed by 54 Pa.C.S. § 702(b)(5)(ii) because the name change petition would not be in connection with any adoption proceeding as the foreign adoption is full and final and therefore completed.
A foreign born child who has been issued an IR-2, IR-3 or IH-3 United States visa has had the adoption proceeding fully completed in the foreign country and the foreign adoption decree only needs to be registered here to be given the full force and effect of an adoption decree issued by this Commonwealth. However, situations may arise that necessitate proceeding under Pa.O.C. Rule [15.9] 15.13 even though the foreign born child has been issued an IR-2, IR-3 or IH-3 United States visa, such as the inclusion of an incorrect birth year on the foreign adoption decree, or other personal family reasons. Proceeding under Pa.O.C. Rule [15.9] 15.13 is permitted; Pa.O.C. Rule [15.8] 15.12 is not the exclusive means to obtain a Pennsylvania adoption decree and birth certificate for a foreign born adopted child.
Only one court, whether in this Commonwealth or another state, should exercise jurisdiction over the foreign adoption decree. Thus, if the foreign adoption decree has been registered or otherwise finalized in another state court, the adopting parent(s) need not and should not register the foreign adoption decree in this Commonwealth under this Rule. In similar fashion, if the foreign adoption decree has been registered in this Commonwealth, and thereafter, another petitioner in this Commonwealth seeks to adopt this [child] Adopted Individual, the subsequent proceeding will be a standard proceeding under the applicable provisions of the Adoption Act, 23 Pa.C.S. § 2101 et seq. Such a situation could occur when the [child] Adopted Child is to be adopted by a step-parent after divorce or death of the original adopting parent(s), or when, after termination of parental rights, the [child] Adopted Child is to be adopted by Prospective Adoptive Parent(s) different than the original adopting parent(s).
If the Court determines that the foreign adoption is not a full and final adoption because the foreign born child has been issued an IH-4 or IR-4 visa, the adopting parent(s) shall proceed under subdivision (d) of this Rule. See also Pa.O.C. Rule [15.9] 15.13.
Notice of the opportunity to enter into a Contact Agreement is not required to be given to the birth parent(s) of a foreign born Adopted Child if such Adopted Child has been issued an IR-2, IR-3, IH-2, or IH-3 United States visa because the adoption was completed in the native country of the foreign born Adopted Child pursuant to the laws and rules of that country. Under this Rule 15.12, the Court is merely registering the foreign adoption decree, which evidences a completed adoption, and giving it the full force and effect of a Pennsylvania adoption.
Rule [15.9] 15.13. Petition for adoption of a foreign born child.
(a) General Rule. [Adopting] Prospective Adoptive Parent(s) or adopting parent(s) who are residents of the Commonwealth may petition the Court [of Common Pleas] in any county as provided in [Section 2302 of the Adoption Act (see 23 Pa.C.S. § 2302)] 23 Pa.C.S. § 2302 to proceed with an adoption of their foreign born [child] Adoptee or Adopted Child who has entered the United States pursuant to an IR-2, IR-3, IH-3, IR-4 or IH-4 United States visa.
(b) Required Documents. The following documents shall be filed in the following order with the Clerk [of the appropriate division of the Common Pleas Court]:
(1) Preliminary Decree;
(2) Final Decree;
(3) Petition for Adoption of a Foreign Born Child, including therein, if the foreign born Adoptee has entered the United States pursuant to an IR-4 or IH-4 United States visa, an averment as to whether the Prospective Adoptive Parent(s), the birth parent(s), and the Adoptee who has attained twelve (12) years of age have been informed of the opportunity to enter into a Contact Agreement and whether an executed, proposed agreement for post-adoption contact or communication has been submitted and is pending before the Court or is being filed with this petition or under a separate petition at the same time as the filing of this petition;
(4) Copy of United States visa;
(5) Reports of investigations, home studies, preplacement and postplacement;
(6) Copy of birth certificate of foreign born [child] Adoptee or Adopted Child (if available), with translation;
(7) Copy of any other relevant foreign decrees and/or documents with translations;
(8) Consents of any person and/or [agency] Agency having custody and/or legal and/or physical rights to the [child] Adoptee or Adopted Child;
(9) Report of Intermediary (if an [intermediary agency] Intermediary was involved);
(10) Verifications signed by petitioner(s), [intermediary] Intermediary and translator(s) stating that facts set forth are true and correct, copies are true and correct copies of originals, that the English translation of foreign documents is accurate, and that false statements are subject to the penalties of 18 Pa.C.S. § 4904;
(11) if the Adoptee entered the United States pursuant to an IR-4 or IH-4 United States visa, a verified statement signed by a representative of the Agency or Intermediary, counsel for the Agency or Intermediary, or counsel for any other party that notice was provided to the petitioner(s), the Adoptee's birth parent(s), and 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
(12) Pennsylvania Department of Health, Division of Vital Records Form No. HD01273F, Certificate of Adoption of a Foreign-Born Child with Parts 1 and 2 (and Part 3, if applicable) completed;
[(12)] (13) Pennsylvania Department of Health, Division of Vital Records Form No. HD01275F, Statement of Citizenship and Residency; and
[(13)] (14) A copy of U.S. Government Form N-560, Certificate of Citizenship, and/or a copy of the [child's] Adoptee's or Adopted Child's United States passport, if either or both documents are available.
(c) Form of Documents. The Preliminary Decree, Final Decree, Petition for Adoption of a Foreign Born Child, Report of Intermediary (if applicable), and verifications referenced in subparagraph (b)(10) above shall be in substantially the form approved by the Supreme Court. See Appendix of Forms to these Rules.
(d) Judicial Review and Hearing.
(1) Scope of Review. The [Petition] petition and accompanying documents filed under this Rule shall be subject to review by the Court as prescribed by the Pennsylvania Adoption Act, 23 Pa.C.S. § 2101 et seq., Pennsylvania Orphans' Court Rules and local rules [of court].
(2) Home Study and Investigation. The Court may rely in whole or in part upon a home study containing information required by [Section 2530(b) of the Adoption Act] 23 Pa.C.S. § 2530(b) and an investigative report containing information required by [Section 2535(b) of the Adoption Act] 23 Pa.C.S. § 2535(b) previously commissioned in the foreign adoption proceeding without regard to when such reports were prepared. [See 23 Pa.C.S. §§ 2530, 2535.] The Court may in its discretion require additional reports and investigations to be made in accordance with the Pennsylvania Adoption Act, Pennsylvania Orphans' Court Rules and local rules [of court].
(3) Original Documents, Decrees and Translations. All original documents, decrees and translations must be available for review by the Court upon request.
(4) Pre-adoption Requirements. In order to grant an adoption, the Court must be satisfied that the pre-adoption requirements set forth in [Sections 2530—2535 of the Adoption Act] 23 Pa.C.S. §§ 2530—2535 have been met. [See 23 Pa.C.S. §§ 2530—2535.] If the Prospective Adoptive Parent(s) or adopting parent(s) were Pennsylvania residents at the time that the United States visa was issued to the foreign born child, the Court may accept an IH or IR United States visa as proof that the pre-adoption requirements have been met.
(5) Proof that the Child is an Orphan. In order to grant an adoption, the Court must be satisfied that the [child to be adopted] Adoptee is an orphan. The Court may accept the [child's] IH or IR United States visa of the Adoptee or Adopted Child as proof that the foreign born child is an orphan.
(6) Hearing. The Court shall schedule a hearing to allow for testimony pursuant to [Sections 2721—2724 of the Adoption Act] 23 Pa.C.S. §§ 2721—2724. [See 23 Pa.C.S. §§ 2721—2724.] Petitioner(s) and the [child to be adopted] Adoptee or Adopted Child shall appear at the hearing. The Court may in its discretion require the presence of additional persons, including a representative of the [intermediary] Intermediary.
(e) 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, the [intermediary] Intermediary and/or any other person or [agency] Agency in connection with the adoption of the foreign born [child] Adoptee or Adopted Child. The Court may request an itemization of any of the amount(s) reported.
(f) Final Decree. After the hearing, the Court shall determine if the adoption of the foreign born [child] Adoptee or Adopted Child can be granted, and if so, the Court shall enter a decree as provided in [Section 2902 of the Adoption Act] 23 Pa.C.S. § 2902. [See 23 Pa.C.S. § 2902.]
(g) Clerk of the Appropriate Court. Upon the filing of a decree granting the adoption under this Rule, the Clerk [of the appropriate Court] shall enter the decree and date of the decree on the docket. The Clerk shall send Form No. HD01273F, Certificate of Adoption of a Foreign-Born Child, and Form No. HD01275F, Statement of Citizenship and Residency, to the Department of Health, Division of Vital Records, along with a copy of U.S. Government Form N-560, Certificate of Citizenship, and/or a copy of the [child's] Adoptee or Adopted Child's United States passport, if either or both documents have been provided by the Prospective Adoptive Parent(s) or adopting parent(s). The Clerk shall issue to the Prospective Adoptive Parent(s) or adopting parent(s) a certificate of adoption in accordance with [Section 2907 of the Adoption Act] 23 Pa.C.S. § 2907. [See 23 Pa.C.S. § 2907.]
(h) Only One Court May Assume Jurisdiction. [A parent] Prospective Adoptive Parent(s) or adopting parent(s) shall not proceed under this Rule if the foreign adoption has been registered or otherwise finalized by a Court of this Commonwealth or any other state.
Explanatory [Note] Comment: Pursuant to 23 Pa.C.S. § 2908(e), as amended by Act 96 of 2006, a set of forms, consisting of a Petition for Adoption of a Foreign Born Child, Report of Intermediary, Verification of Translator, Preliminary Decree, and Final Decree are set forth in the Appendix to these Rules.
In most instances, the adopting parent(s) of a foreign born [child] Adopted Child who has entered the United States with an IR-2, IR-3 or IH-3 United States visa will not need to proceed under Pa.O.C. Rule [15.9] 15.13, but can register the foreign adoption decree pursuant to [Pa.O.C. Rule 15.8] Rule 15.12. Situations may arise, though, that necessitate proceeding under this Rule, such as the inclusion of an incorrect birth year on the foreign adoption decree, or other personal family reasons. In these situations, adopting parent(s) of a foreign born [child] Adopted Child entering the United States with an IR-2, IR-3, or IH-3 United States visa may proceed under [Pa.O.C. Rule 15.9] Rule 15.13; however, adopting parent(s) should be advised by counsel of the additional costs, additional documentation required, and the delay caused by the need for a hearing.
If a foreign born [child] Adoptee has entered the United States with an IH-4 or IR-4 United States visa, the [adopting parent(s)] Prospective Adoptive Parent(s) must proceed under [Pa.O.C. Rule 15.9] Rule 15.13 because the adoption of their foreign born [child] Adoptee was not finalized in the country of the [child's] Adoptee's birth.
Only one state court, whether in this Commonwealth or another state, should exercise jurisdiction over the registration of the foreign adoption decree or the completion of the adoption initiated in the native country of the foreign born child. Thus, if the adoption has been finalized or the foreign adoption decree has been registered in another state court or in another [court] Court within this Commonwealth, the adopting parent(s) need not and should not proceed under this Rule. In similar fashion, if the adoption of the foreign born [child] Adopted Child has been finalized in this Commonwealth, and thereafter, another petitioner seeks to adopt this [child] Adopted Individual, the subsequent proceeding will be a standard proceeding under the applicable provisions of the Adoption Act, 23 Pa.C.S. § 2101 et seq. Such a situation could occur when the [child] Adopted Individual is to be adopted by a step-parent after divorce or death of the original adopting parent(s), or when, after termination of parental rights, the [child] Adopted Child is to be adopted by Prospective Adoptive Parent(s) different than the adopting parent(s).
The documents referenced in [Pa.O.C. Rule 15.9] Rule 15.13 should be filed with the Clerk of the Orphans' Court Division, except in Philadelphia County, where they should be filed with the Clerk of the Family Court Division. The [Petition] petition and accompanying documents under this Rule, including the decree granting the adoption, are confidential and should be impounded and withheld from public inspection as provided in the Adoption Act, 23 Pa.C.S. §§ [2905 et seq.] 2906, 2907, 2908(f), and 2911—2937 and Rule [15.7] 15.20.
The Clerk shall make available to the petitioner(s) the necessary Department of Health, Division of Vital Records forms: Form No. HD01273F, Certificate of Adoption of a Foreign-Born Child; and Form No. HD01275F, Statement of Citizenship and Residency.
Notice of the opportunity to enter into a Contact Agreement is not required to be given to the birth parent(s) of a foreign born child if the Adopted Child has been issued an IR-2, IR-3, IH-2, or IH-3 United States visa because the adoption was completed in the native country of the foreign born Adopted Child pursuant to the laws and rules of that country. The foreign adoption decree evidences a completed adoption, and the proceeding under this Rule is only to give the foreign adoption decree the full force and effect of a Pennsylvania adoption.
By contrast, for an Adoptee who has been issued an IR-4 or IH-4 United States visa, notice of the opportunity to enter into a Contact Agreement needs to be given to the Prospective Adoptive Parent(s), the Adoptee's birth parent(s) whose identity and whereabouts is/are known, and the foreign born Adoptee who has attained twelve (12) years of age because the adoption was not completed in the native country and is being completed under the laws and statute of the Pennsylvania Adoption Act which requires such notice pursuant to 23 Pa.C.S. § 2733(c). 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 Adoptees who are 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 those Adoptees who have 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).
(Editor's Note: The Rule 15.14—15.19 are new and printed in regular type to enhance readability.)
Rule 15.14. Notice and service in subsequent petitions regarding contact agreements.
(a) Service of Petition.
(1) The petitioner shall mail to those listed below in subparagraphs (A)—(D), as applicable, a copy of any petition to modify, enforce, or discontinue the Contact Agreement, including therewith a notice that a responsive pleading or written objections must be filed with the Clerk within twenty (20) days from the date indicated on the petition or notice letter:
(A) all signatories to the Contact Agreement;
(B) the Adopted Child who is the subject of the Contact Agreement;
(C) any sibling of the Adopted Child who has continuing contact or communication with the Adopted Child under the terms of the Contact Agreement; and
(D) any Agency or Intermediary that previously had legal custody of the Adopted Child or was involved in facilitating the adoption.
(2) A verified 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)(D), as applicable.
(b) Notice and Hearing. After the filing of a petition to modify, a petition to enforce, or a petition to discontinue the underlying Contact Agreement, the Court shall schedule a private evidentiary hearing that shall not be during the twenty (20) days when a responsive pleading or written objections may be filed to the petition.
(c) The petitioner shall provide notice of the hearing at least ten (10) days in advance of the hearing, to the following:
(1) all signatories to the Contact Agreement, or their counsel if counsel has filed an entry of appearance with the Clerk in respect to this proceeding;
(2) the Adopted Child, if he or she will have attained twelve (12) years of age as of the date of the hearing, or to his or her counsel if counsel has filed an entry of appearance with the Clerk in respect to this proceeding;
(3) any guardian ad litem appointed to represent the Adopted Child with respect to this proceeding;
(4) any sibling of the Adopted Child who has continuing contact or communication with the Adopted Child under the terms of the Contact Agreement, or to his or her counsel if counsel has filed an entry of appearance with the Clerk in respect to this proceeding;
(5) any guardian(s) ad litem appointed by the Court to represent any sibling(s) with respect to this petition; and
(6) the Agency or Intermediary that previously had legal custody of the Adopted Child or was involved in facilitating the adoption.
(d) Certificate of Service of Notice Given. A verified Certificate of Service 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.
Explanatory Comment: The petition to modify, enforce or discontinue the underlying Contact Agreement is being served upon the Agency or Intermediary that previously had custody of the Adopted Child or facilitate the adoption in the hopes that this Agency or Intermediary may assist in mediating a resolution to the dispute prior to the Court hearing the petition and rendering a unilateral decision. See 23 Pa.C.S. § 2740(a)(2).
Rule 15.15. Appointment of guardians ad litem in subsequent proceedings regarding contact agreements.
Upon its own motion or if requested by the petitioner or by any previously appointed guardian ad litem, the Court may appoint a new guardian ad litem or reappoint any prior guardian ad litem to represent the Adopted Child and may appoint new guardian(s) ad litem or reappoint any prior guardian(s) ad litem to represent any Minor sibling(s) of the Adopted Child who has continuing contact or communication with the Adopted Child under the terms of the Contact Agreement.
Rule 15.16. Petition to modify a contact agreement.
(a) General rule. By filing a petition under 23 Pa.C.S. § 2737 with the Court that entered the adoption decree, the adopting parent(s) or the Adopted Child if he or she has attained twelve (12) years of age may seek to modify the Contact Agreement.
(b) Contents of petition to modify. The petition to modify the Contact Agreement shall set forth specific averments to establish the following facts:
(1) the age and birth date of the Adopted Child;
(2) the date when the Court approved the Contact Agreement and that such date was on or before the date of the adoption decree;
(3) whether the Adopted Child was then represented by a guardian ad litem who participated in the negotiation and development of the Contact Agreement;
(4) whether there are siblings of the Adopted Child who have continuing contact or communication with the Adopted Child under the terms of the Contact Agreement, and if so, the name(s), age(s), and birth date(s) of such sibling(s), and the name(s) of the guardian(s) ad litem, if any, who represented such sibling(s) in the negotiation and development of the Contact Agreement and the name(s) of the sibling(s) whom the guardian(s) ad litem then represented;
(5) whether the Adopted Child either signed a separate written consent agreeing to the Contact Agreement or signed the Contact Agreement as evidence of his or her consent, or that the Adopted Child had not attained twelve (12) years of age at the time of the execution of the Contact Agreement;
(6) whether petitioner has engaged or is willing to engage in mediation; and
(7) the reason(s) why the proposed modification will serve the needs, welfare and best interest of the Adopted Child.
(c) Decree. After a hearing, if the Court finds by clear and convincing evidence that modification of the Contact Agreement shall serve the needs, welfare and best interest of the Adopted Child, the Court shall enter a decree so modifying the Contact Agreement as necessary to serve the needs, welfare and best interest of the Adopted Child.
Explanatory Comment: Section 2741(b) provides that a guardian ad litem may be appointed to represent siblings who have not attained eighteen (18) years of age in a proceeding to enforce or discontinue a Contact Agreement, but does not specifically mention a proceeding to modify a Contact Agreement. 23 Pa.C.S. § 2741(b)(1). However, the Court has inherent powers to appoint a guardian ad litem whenever the Court finds that the interest of a Minor are not adequately represented by others who are sui juris.
The evidentiary standard of clear and convincing evidence is statutorily mandated. See 23 Pa.C.S. § 2737(b).
Rule 15.17. Petition to enforce a contact agreement.
(a) General Rule. By filing a petition under 23 Pa.C.S. § 2738 with the Court that entered the adoption decree, any signatory to the Contact Agreement, the Adopted Child or a sibling of the Adopted Child may seek to enforce the terms of the Contact Agreement.
(b) Contents of petition to enforce. The petition to enforce the Contact Agreement shall set forth specific averments to establish the following facts:
(1) the age and birth date of the Adopted Child;
(2) the date when the Court approved the Contact Agreement and that such date was on or before the date of the adoption decree;
(3) whether the Adopted Child was then represented by a guardian ad litem who participated in the negotiation and development of the Contact Agreement;
(4) whether there are siblings of the Adopted Child who have continuing contact or communication with the Adopted Child under the terms of the Contact Agreement, and if so, the name(s), age(s), and birth date(s) of such sibling(s), and the name(s) of the guardian(s) ad litem, if any, who represented such sibling(s) in the negotiation and development of the Contact Agreement and the name(s) of such sibling(s) whom the guardian(s) ad litem then represented;
(5) whether the Adopted Child either signed a separate written consent agreeing to the Contact Agreement or signed the Contact Agreement evidencing his or her consent, or that the Adopted Child had not attained twelve (12) years of age at the time of the execution of the Contact Agreement;
(6) whether the party seeking enforcement is complying with the terms of the Contact Agreement;
(7) the identity of the party who has materially breached the Contact Agreement and the nature and circumstances of the breach;
(8) whether petitioner has engaged or is willing to engage in mediation; and
(9) that enforcement of the Contact Agreement serves the needs, welfare and best interest of the Adopted Child.
(c) Decree and Remedies. After a hearing, if the Court finds by clear and convincing evidence that the petitioner is in substantial compliance with the terms of the Contact Agreement and also finds that the Contact Agreement serves the needs, welfare and best interest of the Adopted Child, the Court shall enter a decree directing specific performance of the Contact Agreement.
(1) The Court may also exercise its equitable and contempt powers as appropriate.
(2) The Court may not award monetary damages, but in an appropriate case, may award reasonable attorneys' fees and costs.
Explanatory Comment: Section 2738 is the exclusive remedy for enforcing a Contact Agreement; there is no cause of action under the common law or any other statutory section. 23 Pa.C.S. § 2738(f). A sibling of the Adopted Child may initiate an action to enforce the Contact Agreement even if the sibling is not a signatory to the Agreement. Compare 23 Pa.C.S. § 2738 with 23 Pa.C.S. §§ 2737, 2739.
The evidentiary standard of clear and convincing evidence is statutorily mandated. See 23 Pa.C.S. § 2738(d)(2). The only remedy is a Court order requiring specific performance; there is no separate remedy for awarding monetary damages. Given that the Contact Agreement may have been presented to and approved by the Court terminating parental rights, the Court having continuing jurisdiction over the Contact Agreement is the Court that finalized the adoption decree and not necessarily the Court that approved the Contact Agreement. Subsection 2738(e)(2) is hereby suspended to the extent that it is inconsistent with subsection 2738(a). Compare 23 Pa.C.S. § 2738(a) with 23 Pa.C.S. § 2738(e)(2).
Rule 15.18. Petition to Discontinue a Contact Agreement.
(a) General rule. By filing a petition under 23 Pa.C.S. § 2739 with the Court that entered the adoption decree, any signatory to the Contact Agreement or the Adopted Child if he or she has attained twelve (12) years of age may seek to discontinue the Contact Agreement.
(b) Contents of petition to discontinue. The petition to discontinue the Contact Agreement shall set forth specific averments to establish the following facts:
(1) the age and birth date of the Adopted Child;
(2) the date when the Court approved the Contact Agreement and that such date was on or before the date of the adoption decree;
(3) whether the Adopted Child was then represented by a guardian ad litem who participated in the negotiation and development of the Contact Agreement;
(4) whether there are siblings of the Adopted Child who have continuing contact or communication with the Adopted Child under the terms of the Contact Agreement, and if so, the name(s), age(s), and birth date(s) of such sibling(s), and the name(s) of the guardian(s) ad litem, if any, who represented such sibling(s) in the negotiation and development of the Contact Agreement and the name(s) of such sibling(s) whom the guardian ad litem represented;
(5) whether the Adopted Child either signed a separate written consent agreeing to the Contact Agreement or signed the Contact Agreement evidencing his or her consent, or that the Adopted Child had not attained twelve (12) years of age at the time of the execution of the Contact Agreement;
(6) whether petitioner has engaged or is willing to engage in mediation; and
(7) the reasons why discontinuance of the Contact Agreement serves the needs, welfare and best interests of the Adopted Child.
(c) Decree. After a hearing, if the Court finds by clear and convincing evidence that discontinuance of the Contact Agreement shall serve the needs, welfare and best interest of the Adopted Child, the Court shall enter a decree discontinuing the Contact Agreement.
Explanatory Comment: The evidentiary standard of clear and convincing evidence is statutorily mandated. See 23 Pa.C.S. § 2739(b).
Rule 15.19. Collection of Documents and Maintenance of Court File.
(a) The Clerk where parental rights were terminated and the Clerk where the adoption decree is entered shall maintain as a permanent court file all court records pertaining to the adoption, including the docket, docket entries, all petitions, exhibits, reports, notes of testimony, decrees and other filed legal papers.
(b) The Clerk where parental rights were terminated and the Clerk where the adoption decree is entered shall also accept the following items that shall then become part of the permanent court file:
(1) a Statement of medical, personal and/or social history information filed by a birth parent, the survivor of a deceased birth parent, the Adopted Individual who is sui juris, the legal or natural guardian of a non-sui juris Adopted Individual, or the descendant of a deceased Adopted Individual;
(2) a form promulgated by the Department containing medical, personal or social history information completed by an individual named in subparagraph (1) above;
(3) an authorization or consent form signed by a birth parent permitting the release of identifying information, including but not limited to, any signed form promulgated by the Department to authorize the release of identifying information or any signed form promulgated by the Department of Health granting the issuance of a summary of the Adopted Individual's original birth record with identifying information about the birth parent;
(4) a form signed by a birth parent withholding the release of identifying information or revoking a prior authorization or consent given, including any such form promulgated by the Department or the Department of Health that is signed by the birth parent; and
(5) a notification from the Department given in accordance with 23 Pa.C.S. § 2915(c)(4) that an Agency has closed and transferred its case records to another Agency.
(c) In addition to the documents listed in paragraphs (a) and (b) above, the Clerk where the adoption decree is entered shall also accept the following items that shall then become part of the permanent court file:
(1) an authorization or consent form signed by an Adopted Individual permitting the release of identifying information, or any form signed by an Adopted Individual withholding the release of identifying information or revoking a prior authorization or consent given, including any such form promulgated by the Department that is signed by the Adopted Individual;
(2) records or documents from an attorney who represented an individual in the adoption proceeding or who acted as counsel or as the guardian ad litem for the Adoptee, the minor birth parent, or a minor sibling of the Adoptee, so long as the records and written documents concern the Adopted Individual, the birth family or the adopting family, such records and documents are in the format required by local rule, and the filing fee, if any, is paid; and
(3) requests for non-identifying or identifying information.
(d) The Clerk where parental rights were terminated shall copy and forward any Statement of medical, personal and/or social history information and forms signed by a birth parent authorizing the release of identifying information, withholding the release of identifying information, or revoking previously given authorizations as follows:
(1) a completed and signed document that is on a form promulgated by the Department shall be forwarded to the Pennsylvania Adoption Information Registry (''PAIR''); and
(2) completed and signed documents in whatever form or format shall be forwarded to the Clerk where the adoption decree has been entered, if the Court entering the adoption decree is known or reasonably ascertainable from information in the court file of the Court that terminated parental rights.
(e) All documents described in subparagraphs (b)(1), (b)(2), (b)(3), (b)(4), (c)(1), and (c)(3) shall be stamped with the date of receipt and an acknowledgement of receipt shall be sent to the individual who filed the document.
Explanatory Comment: In order to avoid confusion, the term ''court file'', rather than ''court records'', is being used to describe all documents that can be part of the court's file because ''court records'' is statutorily defined in 23 Pa.C.S. § 2911 to include only the petition, exhibits, reports, notes of testimony, decrees and other papers pertaining to the judicial proceeding.
The statute directs that notice of the filing of a Statement of medical, personal and/or social history information shall be given to ''the individual who is at least 21 years of age and whom the information is intended to benefit, if known or identified in its records.'' 23 Pa.C.S. § 2934(e)(2). Rule 15.21(c) provides the procedure for determining who is the person intended to be benefitted and how notice of the filing of this Statement shall be provided to that intended beneficiary. Because the procedure in Rule 15.21(c) requires the filing of an initial request for information and because all requests for information are filed through the Clerk where the adoption decree is entered, it is that Court, and not the Court that terminated parental rights, that shall review the Statement of medical, personal and/or social history information, determining who is the individual intended to be benefitted and whether and how information is to be provided to that individual. The Clerk where parental rights were terminated need only forward the Statement of medical, personal and/or social history information to the Clerk where the adoption decree is entered, if such Court is known or can be readily identified from the items in the court file, and to the Pennsylvania Adoption Information Registry (''PAIR'') if the completed Statement is on the form promulgated by the Department.
PAIR has a website (www.pagov-pair.org) and is requesting that any Statement of medical, personal and/or social history information be forwarded electronically in a .pdf format. The Clerk shall forward the Statement to PAIR in a .pdf format as filed; it is not the responsibility of the Clerk to re-key information into the electronic system of PAIR.
Notwithstanding the development of forms by the Department, the statute does not limit or restrict what statements and forms the Clerk can accept from birth parents, Adopted Individuals or their statutorily permissible representatives. Thus, in keeping with the spirit of the statute, Clerks are encouraged to accept any document that reveals medical, personal and/or social history information from a birth parent, Adopted Individual, his or her statutorily permissible representative, descendant(s) of a deceased Adopted Individual, or survivor(s) of a deceased birth parent. Likewise, Clerks are encouraged to accept and maintain any form or statement that reasonably can be construed as providing authorization or consent to release identifying information, withholding such authorization or consent, or revoking a prior authorization or consent given. The local Courts are also free to adopt, through the promulgation of local rules, their own forms for such uses. The Department has designed sample forms for the local Courts to use or to modify for use.
Because requests for identifying information are permitted to be filed only with the Clerk where the adoption decree is entered, only the Clerk where the adoption decree is entered shall accept requests for non-identifying or identifying information and forms from the Adopted Individual authorizing the release of identifying information or withholding or revoking such authorization. See 23 Pa.C.S. § 2931(A). Despite the above sentence, the statute implies that the Clerk where parental rights were terminated must accept and maintain as part of its court file an authorization or consent to release identifying information or any document withholding or revoking such authorization signed by a birth parent. See 23 Pa.C.S. §§ 2933(A)(2)—(4). For this reason, Rule 15.19(d)(2) requires the Clerk where parental rights were terminated to forward any such signed authorization or consent form or any document withholding or revoking authorization or consent to the Clerk where the adoption decree is entered, if known, thereby streamlining the efforts required by the Court that entered the adoption decree if a request for non-identifying or identifying information is later filed.
Finally, attorneys representing a party to an adoption proceeding or representing a child thereto either as counsel or as a guardian ad litem are permitted to forward their records and information only to the Clerk where the adoption decree is entered. 23 Pa.C.S. § 2916. In this age of document management and given the judiciary's limited financial and physical resources, the attorney representing an Agency may not deposit his or her records with the Court as the Agency already has record-keeping requirements imposed by the Department. See 23 Pa.C.S. § 2915. Moreover, the Court, by local rule, may adopt procedures for attorneys forwarding documents to be retained in the court file, e.g., on a disc, CD-ROM, or other electronic format. The Court may charge reasonable fees for the acceptance and retention of an attorney's records. See 23 Pa.C.S. § 2913 (''Any court . . . may charge reasonable fees for services provided under this chapter.'')
Rule [15.7] 15.20. Impounding[; docket entries; reports] the Court file; privacy.
(a) [All proceedings shall be impounded, docket entries made, reports made to the Department of Public Welfare, and certificates of adoption issued as provided in Sections 505, 506, 507 and 508, respectively, of the Adoption Act, 23 Pa.C.S. § 2101, et seq.] All court records and all other documents in the court file, including but not limited to, completed Statement of medical, personal and/or social history information, signed authorization or consent forms, signed forms withholding or revoking authorization, requests for identifying or non-identifying information, and attorney records shall be impounded and withheld from inspection except as provided by 23 Pa.C.S. § 2931 et seq. and Rule 15.21.
(b) [The name of names of the natural parents and the name or names of the child before adoption shall not be entered on any docket which is subject to public inspection.] The docket shall not contain the name(s) of the birth parent(s), any information identifying the birth parent(s) or the name of the Adopted Individual before adoption if the docket is subject to public inspection.
(c) Certificates of adoption shall be issued as provided in 23 Pa.C.S. § 2907, reciting that the Court has granted the adoption, but not disclosing the name(s) of the birth parent(s) or the name of the Adopted Individual before adoption.
(d) No decision under the Adoption Act of any hearing judge or an appellate [court] decision publicly reported or in any other way made available to the public by the [court] Court hall disclose the identity of the individual parties.
(Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 15.21. Dissemination and release of information in the court file.
(a) One seeking non-identifying or identifying information or contact shall file a written request with the Clerk where the adoption decree was entered and the written request shall contain the following information to the extent known:
(1) the name of the Court that entered the adoption decree and the date of the adoption decree;
(2) the requester's relationship to the adoption proceeding as the Adopted Individual, the adopting parents, the Adopted Individual's legal guardian, a descendant of the Adopted Individual, a birth parent, a parent of a birth parent, or a birth sibling of the Adopted Individual; and
(A) If the requester is the Adopted Individual, the Adopted Individual's birth date and that he or she has attained eighteen (18) years of age.
(B) If the requester is an adopting parent, the Adopted Individual's birth date and that the Adopted Individual has not attained eighteen (18) years of age or has attained eighteen (18) years of age and been adjudicated incapacitated, including attaching a certified copy of the court decree of incapacity, or that the Adopted Individual is deceased, including attaching a copy of the death certificate.
(C) If the requester is a legal guardian of the Adopted Individual, the Adopted Individual's birth date and that the Adopted Individual has not attained eighteen (18) years of age or has attained eighteen (18) years of age and been adjudicated incapacitated, including attaching a certified copy of the court decree of incapacity.
(D) If the requester is a descendant of the Adopted Individual, a statement that the Adopted Individual is deceased, including attaching a copy of the death certificate.
(E) If the requester is a birth parent, the Adopted Individual's birth date and that the Adopted Individual has attained twenty-one (21) years of age.
(F) If the requester is a parent of a birth parent, the Adopted Individual's birth date, that the Adopted Individual has attained twenty-one (21) years of age, and that the birth parent either consents to the request for information or contact, has been adjudicated incapacitated, or is deceased, including attaching a signed copy of the birth parent's consent, a certified copy of the court decree of incapacity, or a copy of the death certificate, as applicable.
(G) If the requester is related to the Adopted Individual as a sibling through either one or both of the birth parents, the birth dates of both the Adopted Individual and the requester, that both the Adopted Individual and the requester have attained twenty-one (21) years of age, and that either the requester remained in the custody of his or her parent and that this birth parent consents to the request for information or contact, has been adjudicated incapacitated, or is deceased, including attaching a signed copy of the birth parent's consent, a certified copy of the court decree of incapacity, or a copy of the death certificate, as applicable, or that the requester was adopted out of the birth family or did not remain in the custody of the birth parent, including a certified copy of the requester's adoption decree or the court order adjudicating the requester dependent or granting legal or physical custody of the requester to another.
(3) a general description of the individual who is the subject of the request explaining the subject's relationship to the adoption proceeding as the Adopted Individual, a birth parent, a parent of a birth parent, or a birth sibling of the Adopted Individual.
(A) If the subject of the request is the Adopted Individual, the Adopted Individual's birth date and that he or she has attained twenty-one (21) years of age.
(B) If the subject of the request is a parent of a birth parent, the Adopted Individual's birth date, that the Adopted Individual has attained twenty-one (21) years of age, and that the birth parent either consents to the request for information or contact, has been adjudicated incapacitated, or is deceased, including attaching a signed copy of the birth parent's consent, a certified copy of the court decree of incapacity, or a copy of the death certificate, as applicable.
(C) If the subject of the request is related to the Adopted Individual as a sibling through either one or both of the birth parents, the birth dates of both the Adopted Individual and his or her birth sibling, that both the Adopted Individual and the birth sibling have attained twenty-one (21) years of age, and that either the birth sibling remained in the custody of his or her parent and that this birth parent consents to the request for information or contact, has been adjudicated incapacitated, or is deceased, including attaching a signed copy of the birth parent's consent, a certified copy of the court decree of incapacity, or a copy of the death certificate, as applicable, or that the birth sibling was adopted out of the birth family or did not remain in the custody of the birth parent, including a certified copy of the birth sibling's adoption decree or the court order adjudicating the birth sibling dependent or granting legal or physical custody of the birth sibling to another.
(b) Upon a review of the request for non-identifying or identifying information or contact, the Court shall determine if it is the proper court to handle the request, if the requester is permitted to seek the requested information or contact by 23 Pa.C.S. § 2931(a), and if the request inquires about an individual who can be the subject of the request per 23 Pa.C.S. § 2931(b).
(1) If the Court cannot affirmatively answer all three of the above questions, the Court shall notify the requester that his or her request for information is denied and the reasons for its denial.
(2) If the Court affirmatively answers all three of the above questions, the Court shall proceed under paragraphs (c) and (d) below, as applicable.
(c) If the request is for only non-identifying information, the Court shall ensure the records and documents from the court file that are to be made available to the requester are sufficiently redacted so as to not reveal the identity of the subject of the request or compromise the confidentiality of the relationship between the Adopted Individual and his or her birth parent(s), and once such information is redacted, the requested records and documents shall be made available to the requester as provided by local rule or practice;
(d) If the request is for identifying information or contact, the Court shall determine if the court file includes an unrevoked authorization or consent from the individual who is the subject of the request.
(1) if, so the Court shall grant the request and the requested records and documents shall be made available to the requester as provided by local rule or practice, except as provided in subparagraph (3) below;
(2) if not, the Court shall appoint an Authorized Representative and the Authorized Representative shall handle the request and shall either respond to the requester or report to the Court if the Authorized Representative believes one of the circumstances described in subparagraph (3) below exists.
(3) The Court shall not grant a request and shall not provide identifying information under either of the following circumstances:
(A) dissemination of the requested identifying information will compromise the identify or confidentiality of an individual who has not authorized release of the identifying information, and after appointing an Authorized Representative, the Authorized Representative reports to the Court that such individual either cannot be located, or after being located, refuses to consent to the release of such identifying information; or
(B) dissemination of the requested identifying information could cause physical or emotional harm to the requestor, as determined by the Court either with or without the assistance of a report from the Authorized Representative, and in such cases, the Court shall issue an Order to this effect setting forth the basis of its findings.
(e) Anyone requesting an original birth record or a summary of the original birth record shall be directed to contact the Department of Health.
(f) Upon the filing of a Statement of medical, personal and/or social history information, or a statement updating such information, or if either is received from the Clerk where parental rights were terminated, the Clerk where the adoption decree is entered shall send notice as follows:
(1) if the Statement contains information about a birth parent, notice of its filing shall be sent to the Adopted Individual, the adopting parents, the legal guardian of an incapacitated Adopted Individual, or the adopting parents and descendant(s) of a deceased Adopted Individual, only if such person, at any time prior, had filed a request for non-identifying or identifying information that was approved by the Court or was then denied by the Court due only to the age of the requester or the age of the subject of the request; or
(2) if the Statement contains information about the Adopted Individual, notice of its filing shall be sent to the birth parent(s), any legal guardian of a birth parent, the parent(s) of a deceased birth parent, and in limited circumstances to a birth sibling, but only if such person, at any time prior, had filed a request for non-identifying or identifying information that was approved by the Court or was then denied by the Court due only to the age of the requester or the age of the subject of the request.
(3) Notice under this subparagraph (f) shall be provided to the individual at the address listed on the request for non-indentifying or identifying information or at the last updated address in the court file.
(4) Notice shall inform the individual(s) that a Statement of medical, personal and/or social history information or a statement updating such information has been received, the date of its filing, and that the information contained in the Statement may be provided either in redacted form or with identifying information upon the filing of new request for non-identifying or identifying information.
(5) If a new request for non-identifying or identifying information is thereafter filed, the request shall contain the information required in paragraph (a) and shall be processed as provided in paragraphs (b), (c), and (d), as applicable.
(g) The Court may permit reasonable fees to be charged for the filing, handling, and processing of any request for non-identifying or identifying information, and the fees may vary depending upon the time and efforts involved, the extent of information made available to the requester, whether an Authorized Representative is appointed by the Court, and the extent of any search required,
Explanatory Comment: The handling of requests for non-identifying information, identifying information and/or contact will largely be dictated by local rule, custom and practice. At present, the Committee does not believe that it is in a position to mandate uniform statewide procedures because the number of requests, each Court's resources and personnel, and the nature of the relationship of the local Court with County and private adoption Agencies varies widely from county to county. Rule 15.21 thus has been drafted so as to leave much to the discretion, practice and custom of the local Courts. The local Courts can determine if such requests are filed as a petition or on a standardized form; the local Courts can permit reasonable fees to be charged for these requests and determine when such fees are due, and the local Court can determine how to appoint Authorized Representatives and undertake searches for individuals who are the subject of a request and do not have a signed authorization or consent form in the court file or with the Agency or the Pennsylvania Adoption Information Registry (''PAIR''). Moreover, the Committee is recommending to the Supreme Court suspension of the time limits being imposed upon the Courts under sections 2932 and 2933 (23 Pa.C.S. §§ 2932, 2933). In addition to the Legislature violating the exclusive province of the Court to set its own deadlines, the time limits fail to account for the resources available or not available to the Court in each county and fail to take into consideration other important judicial responsibilities concerning terminations of parental rights, adoptions hearings, fast track appeals, and other priorities related to children and youth, which are also highly time sensitive.
Notwithstanding the Committee's deference to local rule, practice and custom, the Committee intends that the judge, law clerk, or court personnel experienced in adoptions handle and address requests for non-identifying information and that only an appointed Authorized Representative duly trained by the Department handle and address all requests for identifying information. The statute has very specific rules as to who may request non-identifying and identifying information and the age or existence of one individual may change the requester's right to have the request answered. See 23 Pa.C.S. § 2931(a). Further, the statute is specific about who can be the subject of a request. See 23 Pa.C.S. § 2931(b). Consequently, requests for non-identifying and identifying information or contact should be reviewed by those trained in the law or otherwise well versed in this statute.
If the Court believes that a request for identifying information or contact could cause physical or emotional harm to the requestor, the Court shall issue an Order to this effect that can be appealed by the requestor in accordance with 23 Pa.C.S. § 2936(b) and R.A.P. 341 et seq.
Section 2934, 23 Pa.C.S. § 2934, requires the Court, Agency, or Pennsylvania Adoption Information Registry (''PAIR'') to provide notice of the filing of a Statement of medical, personal and/or social history information ''to the individual who is at least 21 years of age and whom the information is intended to benefit.'' The statutory section fails to further define who is the person intended to be benefitted or how such person is to be determined. Moreover, once filed, the Statement of medical, personal and/or social history information becomes part of the court file subject to impounding and confidentiality as provided in Rule 15.20 and 23 Pa.C.S. § 2931 et seq. For this reason, the Statement of medical, personal and/or social history information or a statement updating this information should not be shared or disseminated by the Clerk absent a later filed request for such information approved by the Court, or upon other order of Court. The notification procedure in Rule 15.21(f) is an attempt to comply with 23 Pa.C.S. § 2934(e)(2) while, at the same time, complying with other statutory provisions, such as section 2931(a) which narrowly defines the individuals who may request non-identifying and identifying information, sections 2925(c) and 2935 which require the Court to maintain confidentiality in conducting a search, and section 2933 which requires any court-appointed Authorized Representative to be specially trained by the Department before conducting searches. Compare 23 Pa.C.S. § 2934 with 23 Pa.C.S. §§ 2925(c), 2931(a), 2933, 2935. The Clerk and its deputy personnel have no legal training in determining who may request non-identifying and identifying information and no specialized training from the Department in conducting searches while maintaining confidentiality. For these reasons, while the Agency and PAIR may proceed differently in determining who is intended to be benefitted from the filing of a Statement of medical, personal and/or social history information or a statement updating such information, the Clerk, the Court, and its personnel shall proceed in a more cautious fashion, providing only notice of the filing of any such Statement to an individual who previously has requested and been given information from the court file or whose request was denied only because of the age of the requester or the age of the individual who was the subject of the request. Even then, information from the most recently filed Statement will not be released or disseminated, but will only be provided if a new request for non-identifying or identify information is filed by the requester in accordance with Rule 15.21(a).
EXPLANATORY REPORT Background
These proposed rules seek to implement amendments to the Adoption Act (23 Pa.C.S. Domestic Relations Chapters 21—29) enacted since the last revision of these Chapter 15 rules. Additionally, the proposed rules amend the averments to be included in an adoption petition in order to implement and facilitate the Supreme Court's decision in In re Adoption of R.B.F. and R.C.F., 803 A.2d 1195 (Pa. 2002).
In that decision, the Supreme Court held that section 2901 of the Adoption Act (23 Pa.C.S. § 2901) permits the prospective adoptive parent to demonstrate why in a particular case he or she cannot meet the statutory requirements of the Adoption Act. Specifically, in In re Adoption of R.B.F. and R.C.F, the Supreme Court concluded that upon cause shown the lower court has discretion to determine whether an adoption petition should be granted even though the biological parent, in consenting to his or her child's adoption by his or her partner, was not relinquishing parental rights as required under section 2711(d). The Court instructed that under these circumstances, the petition for adoption should not be summarily dismissed; rather, the petitioner(s) should be afforded an opportunity to demonstrate why the statutory requirements have not been met and why the proposed adoptee's best interest is nevertheless served by granting the adoption. In order to implement this decision, the Committee proposes amending current Rule 15.5 (proposed new Rule 15.11) to expand upon the averments that can be contained in an adoption petition. Under the proposed amendment to current Rule 15.5 (proposed new Rule 15.11), if a statutory requirement under the Adoption Act cannot be met, the petitioner shall include in the adoption petition averments explaining why the statutory requirements have not been met and why it is nonetheless in the child's best interest for the judge to grant the adoption petition. The proposed amendment to this Rule also provides for a hearing at which the court will consider whether cause has been shown to dispense with a statutory requirement and whether to grant the adoption petition notwithstanding.
As for the other additions and amendments to the current Chapter 15 rules, the proposed changes are intended to reflect recent statutory amendments to the Adoption Act. The most recent and extensive of these amendments occurred when then Pennsylvania Governor Edward G. Rendell signed Senate Bill 1360, Printer's Number 2188, into law with an effective date that occurred on April 25, 2011. This set of amendments is colloquially referred to as ''Act 101,'' a reference to the law's enactment number.
In part, Act 101 amended the Adoption Act to provide an option for prospective adoptive parents and birth relatives to enter into voluntary, but legally enforceable, agreements so that adopted children can have ongoing communication or contact with their birth family, if desirable and if desired by all the involved parties. Enforcing voluntary post-adoption contact agreements through the courts is new; but, the concept of these agreements is not. For years adopting and biological parents have recognized the benefits of post-adoption contact, and they have made such agreements among themselves informally and adhered to the arrangements in good faith. Nothing in Act 101 or these proposed rules precludes or discourages the use of such informal arrangements. However, by complying with the statute and these proposed rules, as ultimately adopted, the parties will have a judicially approved agreement for post-adoption communication or contact that can be enforced in the court that finalized the adoption, upon proper petition.
Act 101 also amended the Adoption Act to allow for the collection of a birth parent's social history in addition to personal and medical history and to permit attorneys to forward their records and information to the court for maintenance as part of the court record.
Lastly, Act 101 expanded both the class of individuals who can request information about others related to the adoption and expanded the class of individuals who can be the subject of an informational request. While the adopted individual upon attaining majority (or the adopted individual's parent or legal guardian during minority) has long been able to request from the court maintaining the adoption file information about the adoptee's biological parents, permissible requestors now also include the following:
• an adopting parent if the adoptee has been adjudicated incapacitated or is deceased;
• the legal guardian of an adoptee who has been adjudicated incapacitated;
• the issue of a deceased adoptee;
• a birth parent if the adoptee has attained age 21;
• a parent of a birth parent if the adoptee has attained age 21 and the birth parent consents, is incapacitated, or deceased; and
• a birth sibling of an adoptee if both individuals have attained age 21 and the birth sibling meets one of the following criteria:
1. The birth sibling remained in the custody of a birth parent, and that birth parent consents, is deceased, or is incapacitated;
2. The birth sibling and the adoptee were both adopted out of the same birth family; or
3. The birth sibling was not adopted out of the birth family, but did not remain in the custody of the birth parent.
Act 101 then provides extensive procedures for the handling of such informational requests by the court that finalized the adoption, the agency that coordinated the adoption, or its successor. For example, Act 101 now mandates that when a proper request for identifying information or contact is received and no authorization to release such information is on file, the entity receiving the request must search for the person from whom information or contact is sought, advise that person of the request, and ask that person to consent to the release of identifying information or permit contact. Under prior law, these searches were permissible. Searches and contacts are to be provided by an authorized representative trained by the Department of Public Welfare. Act 101 sets forth numerous deadlines for processing informational requests, but for the reasons explained below and in the Explanatory Comment to Rule 15.21, the Committee is recommending that these time deadlines not be incorporated into the rules.
Recommendation
The proposed amendments and new rules fall into the following general categories:
(1) Amendments to existing rules so that the court can ensure birth parents, prospective adoptive parents, and proposed adoptees (in certain instances) received notice of the opportunity of birth relatives to enter into agreements for post-adoption contact or communication which become legally enforceable, upon court approval, and amendments to existing rules to accurately reference statements of medical and personal and/or social history information, their maintenance in the court record, and their accessibility. (See Proposed Rule 15.5(a)(10), (a)(12), (b)(5), Proposed Rule 15.6(a)(11), (a)(13), (b)(4), Proposed Rule 15.8(a)(10), (b)(3), Proposed Rule 15.7(a)(11), (a)(13), (b)(4), Proposed Rule 15.9, Proposed Rule 15.11(a)(11), (b)(4), and Proposed Rule 15.13(b)(3), (b)(11)).
(2) A proposed new Rule 15.7 to address the statutory alternative procedure for confirmed consent created in Section 2504 of the Adoption Code, 23 Pa.C.S. § 2504. (See Proposed Rule 15.7).
(3) New rules implementing Act 101's provisions regarding the court's approval of voluntary post-adoption contact agreements and the procedure by which the court may modify, enforce, or discontinue such court-approved voluntary post-adoption contact agreements. (See Proposed Rules 15.10, 15.14, 15.15, 15.16, 15.17 and 15.18).
(4) Amendments to the existing rule concerning an adoption petition to provide that the petitioner should inform the court if all statutory requirements are not met or exhibits attached and should also include averments specifying the reasons for noncompliance and why the court nonetheless should grant the adoption petition, along with a procedure for the court to schedule and conduct a hearing in order for the petitioner to present evidence establishing cause. (See Proposed Rule 15.11(a)(10), (e)(1)).
(5) New rules and amendments to the existing confidentiality rule to implement Act 101's provisions for releasing information in the court file, including requests for non-identifying information, identifying information and/or for contact. (See Proposed Rules 15.19, 15.20, and 15.21).
The search and contact provisions of Act 101 pose special problems for the court system. The proposed rules are predicated upon an understanding that the county Orphans' Courts (and Family Court in Philadelphia) can delegate the responsibility for search and contact to private adoption agencies, individuals, or the county Children and Youth Service Agencies so long as the delegate has successfully completed a standardized Department of Public Welfare training program. Act 101 allows a reasonable fee for services permitted by the Act, including a fee for responses to requests for information or contact.
Finally, Act 101 imposes certain time deadlines for responding to requests for information and contact. The Committee has declined to incorporate such deadlines in these proposed rules. The Committee assumes the handling of requests for information will be completed expeditiously and consistent with other important judicial responsibilities concerning terminations of parental rights, adoptions hearings, fast track appeals, and other priorities related to children and youth. If that proves not to be the case, the Committee proposes to revisit the issue.
[Pa.B. Doc. No. 13-1980. Filed for public inspection October 25, 2013, 9:00 a.m.]
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