1. Act 101 of 2010 Creating Enforceable Post-Adoption Contact Agreements: County Approaches ABA Permanency Barriers Project Webinar June 22, 2012

2. Copyright 2012 ABA Center on Children and the Law 2 Webinar Presenters Cristina Ritchie Cooper, Esq. (moderator) Staff Attorney, ABA Center on Children and the Law Washington, DC Joshua Lewis, Esq. Director Adoption Legal Services Project Allegheny County Paul Beebe Family Group Specialist Crawford County Human Services Sarah Katz, Esq. Supervising Attorney Community Legal Services, Family Advocacy Unit Philadelphia, PA

3. Copyright 2012 ABA Center on Children and the Law 3 Overview of Act 101 of 2010 Amended Adoption Act – new Subchapter on Voluntary Agreement for Continuing Contact added to Pa.C.S., Title 23, Chapter 27 Effective Date: April 25, 2011 Covers three post-adoption issues:  post-adoption contact (PAC) agreements  state information registry  access to adoption records, including those in state registry

4. Copyright 2012 ABA Center on Children and the Law 4 Open Adoption - Background Allows for some form of continued contact or communication between adoptive parents and birth relatives and/or children and their birth relatives About 30 states have some type of statute concerning open adoption Noncompliance does not invalidate adoption Benefits:  Helps maintain relationship between child and birth relatives  Minimizes child’s lost relationships  Older children in particular may have great attachment to birth relatives and want ongoing contact  May result in increased voluntary relinquishment, when appropriate and not coerced  Access to information about medical or cultural history of the child and the birth family Open adoption may not be appropriate in all cases

5. Copyright 2012 ABA Center on Children and the Law 5 When is Open Adoption Appropriate? Certain types of cases may be more amenable to agreements (e.g., older children). Factors the court must consider under Act 101 (23 Pa.C.S. § 2735 ) to determine whether a PAC agreement is in the child’s best interest include:  Length of time child removed from parents' care and circumstances relating to removal;  Interaction and interrelationships of child with birth relatives;  Adjustment to child’s home, school and community;  Willingness and ability of birth relative (including birth parents) to respect and appreciate the bond between the child and prospective adoptive parent; and  Willingness and ability of the prospective adoptive parent to respect and appreciate the bond between the child and the birth relative.

6. Copyright 2012 ABA Center on Children and the Law 6 Who May Enter a Post Adoption Contact (PAC) Agreement Birth relatives (by blood, marriage or adoption):  parent;  grandparent;  stepparent;  sibling; or  uncle/aunt of child’s birth family Prospective adoptive parents Child 12 or older must consent 23 Pa.C.S. §§ 2732, 2733(a), 2734

7. Approval of PAC Agreements A PAC agreement is not legally enforceable until court approval. 23 Pa.C.S. § 2735(c) To be legally enforceable, an agreement must be approved on or before the date the adoption is finalized. 23 Pa.C.S. § 2738(c)(2) Approval is based on court determinations that the agreement:  Was entered into knowingly and voluntarily (23 Pa.C.S. § 2735(b)(1)); and  Is in the child’s best interest (23 Pa.C.S. § 2735(b)(2)) Factors the court should consider when making the best interest determination are enumerated in the statute. See 23 Pa.C.S. § 2735(b)(2). 7 Copyright 2012 ABA Center on Children and the Law

8. 8 What terms can PAC include? Act 101 states that the agreement must be in writing, but does not specify type, duration or frequency of contact From OCYF Bulletin 3350-11-01:  Entered knowingly, voluntarily by all parties with signed and notarized affidavit  Appendix B - Sample Voluntary Post -Adoption Contact Agreement  Appendix C - Instructions for Completion of Agreement  Agreements should address: Purpose of agreement Participants Types of contact, including:  mail/letters  exchange of photographs or videos

9. Copyright 2012 ABA Center on Children and the Law 9 What terms can PAC include?  gifts  telephone contact  electronic communication/use of social media (emails, texts, Facebook, etc.)  supervised and/or unsupervised visits  other contact Frequency of contact Duration of contact Location of contact Conditions of contact Person who has some responsibility for facilitating the contact Process for modification, enforcement or discontinuance of agreement

10. Copyright 2012 ABA Center on Children and the Law 10 Post-Approval Actions An agreement may be modified if the court finds by clear and convincing evidence that it would serve the needs, welfare and best interest of the child.  Only the adoptive parent or child age 12 or over may seek modification. 23 Pa.C.S. § 2737 Any party to the agreement, a sibling or a child who is the subject of an agreement may seek its enforcement. 23 Pa.C.S. § 2738(b)  Failure to comply with the agreement is not grounds for setting aside the adoption decree. 23 Pa.C.S. § 2736 To end an agreement, the court must find by clear and convincing evidence that its discontinuance serves the needs, welfare and best interest of the child. 23 Pa.C.S. §2739(b)  A party or child 12 or over may seek discontinuance of an agreement. 23 Pa.C.S. §2739(a)

11. Copyright 2012 ABA Center on Children and the Law 11 Who will Facilitate or Negotiate PAC? DPW is to develop procedures, in consultation with AOPC and the Juvenile Courts Judges Commission, to facilitate the development of an agreement, when appropriate, before it is presented to the court. 23 Pa.C.S. § 2740 Parties are not prohibited from agreeing to mediation of an agreement at their own cost. 23 Pa.C.S. § 2733(d) Consider when PAC agreements should be created. Who should facilitate or negotiate the agreement?  Who should write it?  Who should file it?

12. Copyright 2012 ABA Center on Children and the Law 12 Who will Facilitate or Negotiate PAC? Practices used or considered in PA counties:  Family Group Decision-Making model  SWAN unit of service - mediators  Parent Attorneys  Guardian Ad Litem  Prospective adoptive parent’s adoption attorney  Discussed at pre-TPR trial conferences conducted by court personnel

13. Copyright 2012 ABA Center on Children and the Law 13 Potential Issues Foster parents often don’t have attorneys until after TPR Parents’ attorney contracts end when TPR concluded Can PAC be drafted after a birth parent’s rights have been terminated? What conditions can be part of the agreement?  Can the child’s best interests or safety prevail? Who would make that determination? Must agreements between all interested birth relatives be identical? Can an agreement be voided before being approved? Can an agreement be approved at the same time as a TPR? Before the TPR?

14. Copyright 2012 ABA Center on Children and the Law 14 Family Group Decision-Making Model Crawford County Children and Youth Services Goals: provide neutral setting for parties to express type of contact they want and determine if consensus can be reached  Creating a written, signed agreement not the meeting goal Stage 1: Individual “pre-conference” meeting Stage 2: Family Group PAC meeting

15. Copyright 2012 ABA Center on Children and the Law 15 Family Group Decision-Making Model, cont. Written materials provided:  Initial letter – meeting details, disclaimers  Minutes form – notes from meeting, any consensus reached, disclaimers Copies sent to attorneys and CYS caseworker Youth involvement Interest from multiple birth relatives Strengths/Challenges

16. Copyright 2012 ABA Center on Children and the Law 16 Role of Attorneys Encourage clients to identify relatives as placement options and maintain relative relationships. Counsel clients about PAC option. E.g., remind them:  That the option exists;  What the options for continued contact are;  That this is a way to maintain some kind of relationship with the child, even if contact is limited to updates from adoptive parents;  That there is no guarantee that they will be able to enter into an agreement, or that the court will approve it even if all parties agree;  Noncompliance does not invalidate the adoption. Counsel clients on drafted agreements. Facilitate/negotiate/draft PAC agreements?

17. Role of Attorneys, cont. If siblings have been freed for adoption through a dependency case but the pre-adoptive parents are not adopting all the siblings:  each sibling under 18 shall be represented by a Guardian Ad Litem (GAL) in the development of a PAC agreement. 23 Pa.C.S. § 2733(b) Parties are not entitled to appointed counsel in modification, enforcement or discontinuance proceedings. 23 Pa. C.S. § 2741(a)  But a GAL may be appointed to “represent the interests of a child” in those proceedings. 23 Pa.C.S. § 2741(b)(1)  A GAL may also be appointed to a sibling under 18 who seeks to enforce or discontinue an agreement. 23 Pa.C.S. § 2741(b)(1) Copyright 2012 ABA Center on Children and the Law 17

18. Copyright 2012 ABA Center on Children and the Law 18 Role of Court Collaboration with county agency and attorneys on development of Act 101 policies Confirm in involuntary termination cases that birth parents received notice of the enforceable post adoption contact option? Approval of agreement  On or before date adoption is finalized  Which judge?  Timing of hearing?  Need for hearing at all?  Best interest determination Post-approval actions: modification, enforcement, discontinuance