Prospective Adoptive Parents are Not Required to Enter into a Post-Adoption Contact Agreement as a Condition for Granting their Petition to Adopt

A few years ago, the Pennsylvania General Assembly amended the Pennsylvania Adoption Act to add a section regarding a “Voluntary Agreement for Continuing Contact” between the adoptive child and his or her birth relatives. The purpose is to provide the option for the prospective adoptive parent(s) to enter into an agreement allowing for continuing contact and communication between the adoptive child and his or her birth relatives after the adoption is finalized. This section recognizes one of the factors to be considered in an adoption, which is the preservation of the family unit.

Although there is a notification requirement in which the agency or person representing the parties in an adoption must provide notice to prospective adoptive parents, birth parents, and the child of the existence of this option, the entry into a Voluntary Agreement for Continuing Contact is voluntary and is not a requirement. Thus, judges presiding over adoptions may inquire into whether the parties have been notified of the option of entering into a Voluntary Agreement for Continuing Contact, judges may not require the entry into this Agreement as a precondition to granting the Petition for Adoption.

On March 7, 2024, in In re Adoption of K.B., 2024 Pa. Super. LEXIS 77, the Pennsylvania Superior Court reversed the Orphan’s Court’s denial of Petitions to Adopt two children filed by their foster parents. The foster parents and the children’s Maternal Aunt filed competing petitions for adoption, which were consolidated into one adoption hearing. The foster parents appealed the Orphan’s Court’s denial of their Petitions for Adoption. The Superior Court reversed the denial. The Superior Court found that the Orphan’s Court had denied the foster parents’ Petitions for Adoption because they would not, in essence, enter into a Voluntary Agreement for Continuing Contact. The Orphan’s Court stated in its opinion:

“It is the [court's] strong hope that the Children remain in the care of the [Foster Parents], and [they] commit themselves to the best interests of the Children, and in doing so, begin to foster and promote the Children's relationship with [Maternal Aunt] in a meaningful way. Should this happen, this court would be in a position to conclude that an adoption by [Foster Parents] would be in the best interests of the Children. Until then, the court cannot make such a finding. Therefore, [Foster Parents' petition] must be denied. If [Foster Parents] decide that they no longer want to provide foster care for the Children if they have to promote and facilitate a relationship with [Maternal Aunt], they will be sending a resounding message that adoption by them was never in the Children's best interests.

In re Adoption of K.B., 2024 Pa. Super. LEXIS 77, *8

The Orphan’s Court did not expressly state its reason for the denial was the foster parents would not enter into the Voluntary Agreement. Instead, it stated that essentially the foster parents would not commit to fostering and promoting the relationship between the adoptive children and their Maternal Aunt. The Superior Court held that this denial was in essence based upon the foster parents not entering into a Voluntary Agreement for Continuing Act. The Superior Court held, “Essentially, the orphans' court attempted to mandate a post-adoption contact agreement, which the law only recognizes as a voluntary option when it is in the best interests of the child.” In re Adoption of K.B., 2024 Pa. Super. LEXIS 77, *18.

The Superior Court explained:

“The Act does not authorize courts to require parties to enter this type of agreement as a pre-condition to an adoption, as the orphans' court attempted to do here. While the preservation of family is a consideration, "the goal of preserving the family unit cannot be elevated above all other factors when considering [*19] the best interests of the children but must be weighed in conjunction with other factors." K.D., 144 A.3d at 153.”

In re Adoption of K.B., 2024 Pa. Super. LEXIS 77, *18-19

In short, courts should look favorably upon those prospective adoptive parents who are willing to promote the continued communication and contact between the adoptive child and his or her birth relatives, if it is in the best interest of the child. However, the Court may not require the prospective adoptive parents to enter into a Voluntary Agreement for Continuing Contact as a precondition to granting the adoption.

If you have questions about adoption, please do not hesitate to contact Scaringi Law at 717-657-7770 for a consultation.