COMMENTS ON PROPOSED AMENDMENTS TO PENNSYLVANIA ADOPTION ACT
WHEREAS, the regulation of adoptions and adoption-related activities is a matter of concern to members of the Philadelphia Bar Association;
WHEREAS, the Adoption Act, 23 Pa. C.S. §§2500, et. seq., ought to provide effective guidance for such matters;
WHEREAS, amendments to the Adoption Act should formulate guidelines for adoption procedures and adoption-related activities consistent with public policy protecting the dignity of adoptions;
WHEREAS, the opportunity for pre-adoption counseling is important for the birth parents, but should occur as such time as not to delay or deter court proceedings;
WHEREAS, a preplacement investigation and report should be aspirational rather than mandatory in order to facilitate and promote an early and smooth transition for all persons involved;
WHEREAS, because the consent of the putative father is of equal importance to the consent of the birth mother in obtaining a final order that will be undisturbed, the requirements for both should be the same;
WHEREAS, the religious affiliation of the birth parents is a factor that may be considered in placing a child, no requirement matching or restricting placements to the preference of the birth parents should be enacted as part of the Act;
NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association supports the proposed amendment of the Adoption Act and the general intent reflected in H.B. 79;
AND BE IT FURTHER RESOLVED that the Philadelphia Bar Association supports enactment of H.B. 79 with the inclusion of additional language endorsed by the Family Law Section and recommended by its Adoption Committee:
Section 2313 Representation (a) Child: What is the functional distinction between the child advocate (counsel) and guardian ad litem? We suggest this be clarified or deleted. Our preference would be to delete the dual appointment here and provide for the appointment of a guardian ad litem for a parent who is alleged to be incompetent.
(a.l) Parent: Does ..."Upon petition of parent..." contemplate only written petition? We suggest that an oral request in court be sufficient. Parent should be informed of availability of court-appointed counsel prior to waiving the right.
Section 2503 Hearing (b)(2) Notice: Insert at line 26, "You have a right to request counseling prior to the hearing." We suggest this in connection with concerns raised under Section 2505 counseling. To make this statement useful, some reference to places where a list of counselors is available should be inserted in the notice.
(e) Right to File Personal Information: This information should be obtained at the earliest possible time rather than waiting until the termination decree is about to issue. We suggest that a statement be included in the notice of hearing prescribed in Section 2503(b)(2). Section 2504.1 Confidentiality At line 7, insert the word "written" before consent.
Section 2505 Counseling (a) List of Counselors: Delete last sentence on lines 21 - 23. We suggest that this requirement is patently unequal in its treatment of the mother and the father. We also believe that inquiry by the court at the time of hearing will reveal whether the parent was informed of the availability of counseling. It is our view that such inquiry is encompassed in the court's determination of a "knowing and voluntary" consent.
(c) Court Referral: DELETE entire section. We suggest that a fifteen day delay at this point in the proceedings will not likely benefit the birth parents such as to outweigh the detriment that may be caused to the child by the tensions and anxieties it would create for the adoptive parents.
(d) Application for counselinq: Insert at line 22, after..." may apply to the court" PRIOR TO A HEARING SCHEDULED ON THE PETITION" for a referral.... We suggest that, if the notice of the availability of counseling upon application to the court is included in the notice required by Section 2503(b)(2)1 the purpose sought is to be achieved by this section will be accomplished more effectively.
(e) Counseling Fund: DELETE entire section. This is an undue burden upon the petitioner and does not significantly increase the availability of counseling to the birth parents. In instances where financial hardship exists, counseling is generally available through community mental health centers on a no-fee or sliding fee basis.
Section 2511 Grounds for Involuntary Termination (a)(3): Substitute the word "putative" for "presumptive." We suggest the term "presumptive" is legally ambiguous. (a) (6): Substitute "putative father'1 for "parent" on line 14. On line 17, delete "preceding the filing of the petition" and substitute "following the child's birth".... It appears to us that this creates a new substantive ground for termination of parental rights. If that is the intent, then we suggest that a more appropriate time for beginning these proceedings is when the newborn child is THREE months of age. If accepted, all language referring to four month periods should be changed to reflect the three month time period.
(c) Right to File Personal Information As noted above at Section 2503(e) and 2504(a), this information should be sought at the earliest possible time, preferably with the notice of hearing. The period after the termination hearing is very sensitive for the birth parents; information is best sought before they have lost their rights to the child.
Section 25l3 Hearing (b) Notice: clarification of purpose for requiring notice to one parent to be sent to the other birth parent needed. If the proposed sentence (lines 18 to 21) means the court will not terminate the parental rights of the one birth parent unleas it could be proven the other birth parent knew of the proceedings, we are opposed to this section; it would appear that another obstacle would be placed before the known parent.
Section 2530 Preplacement Investigation and Report (a) General Rule: Delete, '1No intermediary shall place..." on line 17 and modify the sentence to read, "A CHILD SHALL NOT BE PLACED in the physical care of custody...." Beginning on line 24 insert, after "child-care agency1 OR BY an adoption agency or licensed social worker DULY LICENSED BY THE STATE IN WHICH THEY ARE to perform such investigations."
(b) Preplacement Report: There is no time frame set out for the completion and submission of this report. If is to have any significance, especially where interim placement occurs, some guidance should be set out for the agency/individuals involved.
(c) Interim Placement: While the policy behind the requirement is sound, the implementation proposed is burdensome. We suggest that prior assent of the individual or agency should not be required. Perhaps an interim placement should be allowed if either condition (1) or (2) is met. In the case of satisfying condition (1), the Intermediary should immediately notify the individual/agency conducting the investigation that interim placement has occurred. We believe that there is a basic inconsistency with the proposed amendments requiring a preplacement investigation to taice place prior to placing a child in an adoptive home and the interim placement. If the preplacement report is intended to protect the child from any inappropriate placement, then interim placements take away some of the protection, especially when there are no time frames indicated for completion of the preplacement report.
Section 2531 Report of Intention to Adopt (b)(5) Contents: Delete lines 19 and 22 pertaining to proof of counseling. The report should instead include a statement of whether the parent or parents received notice of the availability of counseling. This notice would be included as part of the consent of the notice of the termination hearing.
Section 2711 Consents Necessary to Adoption (c) Validity of Consent: Delete lines 22 and 23 pertaining to the putative father. It would appear that this is constitutionally unsound. Why would the birth father be able to consent to the termination of his rights prior to the birth of the child when the mother must wait until 72 hours atter the birth? The rationale should be the same for a father.
(d) Contents of Consent: Insert new paragraph at line 14: "I have been informed of the availability of counseling and that I may request such counse1ing from the court prior to a hearing on the termination of my parental rights. I understand that my signature here is a voluntary waiver of my right to request counseling in this matter."
Section 2725 Religious Belief: Delete in its entirety. The standard suggested is impossible to enforce.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: March 26, 1992