1. (a) Time and Filing. An executed proposed agreement for post-adoption contact and communication signed by the Prospective Adoptive Parents and any birth relatives (‘‘the proposed agreement’’) must be appended to a petition requesting the court to approve the proposed agreement.

   1. (1) If Prospective Adoptive Parents have been identified by the time of the hearing terminating the parental rights of the parent whose birth relative is a party to the proposed agreement, the proposed agreement may be presented by separate petition to the same court that has or will conduct the hearing on the petition to terminate parental rights, and if not then presented, the proposed agreement shall be presented by petition to the court that will be presented with the adoption petition.
   2. (2) If Prospective Adoptive Parents are identified after the time of the hearing to terminate parental rights, the proposed agreement shall be presented by separate petition to the court that will be presented with the adoption petition.
   3. (3) The petition to approve the proposed agreement may be filed by the agency or intermediary, any party to the proposed agreement, or by the guardian ad litem appointed to represent the child.

2. (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. (1) the age and birth date of the child;
   2. (2) if the child has attained 12 years of age, whether the child signed a written consent agreeing to the proposed agreement or signed the proposed agreement as evidence of his or her consent;
   3. (3) whether the child has been represented by a guardian ad litem;
   4. (4) whether a guardian ad litem is required to be appointed under 23 Pa.C.S. § 2733(b), and if so, whether such guardian ad litem has been appointed for any of the child’s minor siblings;
   5. (5) the length of time that the child has been under the care, custody and control of an individual other than a birth parent, even if such individual is other than the Prospective Adoptive Parents;
   6. (6) the circumstances under which the child became freed for adoption, including the name of the judge who terminated parental rights if the petition and proposed agreement are not being presented to the court that heard the termination of parental rights petition or confirmation of consent petition;
   7. (7) the length of time that the child has been in the care and custody of the Prospective Adoptive Parents;
   8. (8) whether the proposed agreement will impact the child’s adjustment to the home, school and community of the Prospective Adoptive Parents;
   9. (9) the names of any other persons who are not parties to the proposed agreement but who routinely would be present when the birth relatives who are parties to the proposed agreement have contact or communications with the child and the child’s interaction and relationship with such other persons;
   10. (10) the willingness and ability of the signatory birth relatives to respect and appreciate the bond between the child and Prospective Adoptive Parents;
   11. (11) the willingness and ability of the Prospective Adoptive Parents to respect and appreciate the bond between the child and the birth relatives who are parties to the proposed agreement;
   12. (12) whether the petitioner is aware of any evidence or substantiated allegation that the child has been abused or neglected by the birth relatives who are parties to the proposed agreement; and
   13. (13) 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 child.

3. (c) Exhibits. The following exhibits shall be attached to the petition:

   1. (1) A copy of the proposed agreement signed by the Prospective Adoptive Parents and the involved birth relatives;
   2. (2) The child’s signed consent if required under 23 Pa.C.S. § 2734; and
   3. (3) Affidavits of all parties 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.

4. (d) Service of Petition.

   1. (1) The petitioner shall mail a copy of the petition with exhibits and a notice that any responsive pleading must be filed with the clerk within 10 days from the date indicated on the petition or notice letter, whichever is later, to the following:

      1. (A) all parties to the proposed agreement or their counsel, if represented;
      2. (B) the individual or entity having custody of the child at the time of the petition’s filing;
      3. (C) the child 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 attorney if acting as counsel;
      4. (D) the child’s guardian ad litem if one has been appointed; and any minor sibling who 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 attorney if acting as counsel, or his or her guardian ad litem if one has been appointed.
   2. (2) A certificate of service shall be appended to the petition or filed separately and contemporaneously with the filing of the petition, stating the date when the petition with exhibits and the notice for filing a timely responsive pleading was mailed by first-class United States mail, postage prepaid, to those listed in subparagraphs (1)(A)—(1)(D), as applicable.

5. (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 guardians ad litem for any or all of the following:

   1. (1) the child if one is not currently serving; and
   2. (2) any minor siblings of the child entitled to be represented by a guardian ad litem pursuant to 23 Pa.C.S. § 2733(b).

6. (f) Court Review and Approval; Necessity of a Hearing and Notice of the Hearing.

   1. (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 child, the court may issue a decree approving the proposed agreement attached to the petition, provided, however, that any such decree shall not be issued less than 10 days after the date of service unless all of those entitled to notice under subparagraph (d)(1) of this Rule have signed consents, joined in the petition, or waived in writing the notice required herein.

   2. (2) The court shall schedule and conduct a closed hearing under any one of the following circumstances:

      1. (A) upon a review of the petition and the attached exhibits, the court cannot determine if the proposed agreement is in the best interest of the child;
      2. (B) any person receiving notice of the filing of the petition under subparagraph (d)(1) files a responsive pleading in opposition to the petition; or
      3. (C) for any other reason within the court’s discretion.

   3. (3) Notice of the Hearing. The petitioner shall provide notice of the scheduled hearing to the same parties entitled to notice under subparagraph (d)(1) of this Rule and any other individual or entity that the court directs to receive notice.

      1. (A) Notice of the hearing need not comport with the requirements of Rule 15.4. Notice of the hearing may be sent by first-class United States mail, postage prepaid, by electronic transmission, or by whatever other means will effectively inform everyone entitled to notice of the date, time, and place of the hearing.
      2. (B) A 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 for service sent by electronic transmission.

7. (g) Court Decree. The court shall review and grant or deny the petition to approve the proposed agreement on or before the date of any adoption decree issued in accordance with 23 Pa.C.S. § 2902.

   Explanatory Comment

   Although agreements providing for post-adoption contact and communication may be negotiated and entered without anyone seeking judicial approval, the court will enforce and provide remedies only for those agreements that receive court approval on or before the date when the adoption is finalized. See 23 Pa.C.S. § § 2735(c), 2738(c)(2).

   Discussions about post-adoption contact and communication agreements should begin as early as possible, especially once all the necessary parties are identified. To this end, the courts can review and approve a proposed agreement for post-adoption contact and communication at any time after termination of parental rights and prior to finalization of the adoption. If practical, a hearing on the petition to approve an executed proposed agreement may be conducted immediately following a hearing to terminate parental rights by the same judge who presided over the termination hearing. This Rule establishes where the petition to approve the proposed agreement may be filed depending upon whether Prospective Adoptive Parents have been identified by the time of the hearing to terminate parental rights.

   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 communication. The Orphans’ Court Procedural Rules Committee decided not to require a particular party to file the requisite petition 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.

   Section 2735 of the Adoption Act, 23 Pa.C.S. § 2735, does not require a hearing in order for the court 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 one who has not attained the age of 18 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 a child or any of the child’s minor siblings signed a separate consent agreeing to the proposed agreement or signed the proposed agreement as evidence of such consent. At such hearing, the court can ensure that any individual who is a minor consented to or signed the proposed agreement voluntarily and fully understands the terms of the proposed agreement. Because section 2738(c)(3) of the Adoption Act, 23 Pa.C.S § 2738(c)(3), requires a child who has attained 12 years of age to consent to the proposed agreement, best practices would be to conduct an evidentiary hearing in these situations.

   The court must find, either by reviewing the petition and exhibits or by conducting an evidentiary hearing, the proposed agreement, as submitted, is in the child’s best interests. Since the statute does not specify the standard of proof, this question will have to be determined by developing case law. Section 2734 does specify that the proposed agreement may not be enforced unless the child who has attained 12 years of age at the time of the agreement’s execution consents to the proposed agreement, thereby suggesting that a proposed agreement cannot be found to be in the best interests of a child who has attained 12 years of age and refuses to consent to the proposed agreement.

   If the court finalizing the adoption will be different from the court that approved the Contact Agreement, 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, 2907. Neither the statute nor these Rules impose that obligation on any one of the signatories to the Contact Agreement, except as provided in Rule 15.13.

Source

The provisions of this Rule 15.12 added July 22, 2021, effective July 1, 2022, 51 Pa.B. 4267.