Thursday, June 16, 2011

Proposed PA Adoption Rule Changes

On Saturday, June 11, 2011, in the Pennsylvania Bulletin, Volume 41, No. 24, publication appeared regarding proposed and renumbered Orphans' Court Rules governing Adoptions under Rule 15.  This is a major revision and update of that Rule and its sub-rules (15.1 - 15.16).

The proposed rule changes would accomplish two general objectives:  1) Amend the statewide adoption rules after the enactment of the Open Adoption Act in the Commonwealth, which became effective on April 25, 2011, and 2) generally update the adoption rules for clarity in existing practice.  The first objective reflects a substantive change in adoption law, while the second objective reflects clarifications.

The Open Adoption Law was approved by the Legislature as Senate Bill 1360, Printer's Number 2188, on October 27, 2010.  Governor Edward G. Rendell signed it into law as Act 101 of 2010.  The amendments to the Adoption Act (23 Pa.C.S. Domestic Relations Chapters 21-29), became effective April 25, 2011.

The nature of the changes were briefly noted in an online article entitled Open Adoption in Pennsylvania, by law student Lisa Dougan, posted on March 11, 2011, by Juris (the official blog of the Duquesne University School of Law News Magazine).

The four overall objectives of the rule changes are set forth in the notice's Recommendation:

(1) Amendments to existing rules so that the court can ensure birth parents received notice of the opportunity of birth relatives to enter into agreements with adopting parents 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 15.3(a)(8), (a)(10), (b)(2), (b)(4), (f), Proposed Rule 15.4(a)(9), (a)(11), (b)(1), (b)(3), (f), Proposed Rule 15.5(a)(9), (a)(11), (b)(2), (b)(3), (f), Proposed Rule 15.6(a)(10), (b)(3), (f), and Proposed Rule 15.8(a)(1), (b)(4)).

(2) A proposed new Rule 15.5 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 15.5).

(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 15.7, 15.9, 15.10 and 15.11).
(4) 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 15.12, 15.13, and 15.14).
The purpose of the proposed rule changes under the Open Adoption Act is explained in the Explanatory Comment's Background section of the published notice:
Act 101 of 2010 amended the Adoption Act to provide an option for adopting parents and birth relatives to enter into legally enforceable voluntary agreements so that adopted children can have ongoing communication or contact with their birth family, if desirable. While the enforceability of voluntary post-adoption contact agreements is new, the concept of these agreements is not.
For years adopting and biological parents have recognized the benefits of post-adoption contact and have made arrangements informally. Nothing in Act 101 or these proposed rules precludes or discourages the use of such informal arrangements which have benefited children and families through the years.
However, by complying with the statute and these proposed rules, as ultimately adopted, the parties will have an agreement for post-adoption communication or contact that can be enforced by the courts, 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, to permit attorneys to forward their records and information to the court for maintenance as part of the court record, and to provide new procedures for accessing information from the court record related to adoptions.

For example, Act 101 expands the class of individuals who can file a written request for non-identifying information, identifying information or contact with the court that finalized the adoption, the agency that coordinated the adoption, or the successor agency.
Finally, Act 101 provides that when there is a proper request for identifying information or contact and no authorization is on file, the entity receiving the request, including the court that finalized the adoption, shall 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. Searches and contact are to be provided by an authorized representative trained by the Department of Public Welfare. * * * [Reparagraphing applied]

These proposed Adoption rule changes may not be permanent. The Explanatory Comments further note the likelihood for ongoing monitoring and possible readjustment based upon forthcoming experiences by county courts:
The Committee anticipates that the experience of the local courts over the next several months working in concert with private adoption agencies, county Children and Youth Service Agencies and PAIR to implement Act 101 will provide a base of practical experience that will inform the rule-making process. In the meantime, the Committee believes that each court is aware of Act 101 and is seeking to be compliant with its requirements.
I serve as a member of the the Pennsylvania Supreme Court's Orphans' Court Procedural Rules Committee, and specifically as a member of the subcommittee that worked on the proposed rule changes with very capable staff attorneys.

Any comments on the proposed rules should be addressed in writing no later than Wednesday, August 10, 2011, 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