Adoption Law – FAQs

A: There is an overwhelming amount of information about adoptions and the adoption process on the internet, in magazines, and books, etc. Which is the best way to go?

The best adoption plan for you is the one that will:

1. Achieve your family goal for adoption
2. Be within your family’s parameters financially, emotionally, and physically
3. Finds the right child for your family and the right family for the child!

It is recommended that you meet with your adoption attorney at the very beginning of your journey into adoption. We typically have an initial consultation with Adoptive Parents to discuss the different types of adoptions, the legal process, legal risks, costs of the different types of adoptions, the time frames you can expect, and the different options you can choose. Our goal is to equip Adoptive Parents and Birthparents with the clarity and information needed for them to make the decision about what type of adoption is best for their family and what direction to proceed in, so that they can navigate through this “overwhelming” body of adoption information and begin a successful adoption process.

Adoptions take many forms:

• Adult Adoption – where an adult is adopted by a Adoptive Parent(s). An example would be a person who was a foster child of the Adoptive Parents, who, when they reach age 18, the Adoptive Parents and Foster Child want to have a legal Parent-Child relationship.
• Agency – An adoption agency provides services to birthparents and adoptive parents and assists in the birthparents placing their child with an adoptive family. An adoption agency may be public or private, profit or non-profit, secular or religious.
• Closed (or confidential) adoption or Open adoption – the birth family and adoptive family will choose what amount of contact they will have and what amount of information will be exchanged between them.
• Domestic – Adoption of a child within the United States.
• Foreign or International – Adoption of a child outside of the United States.
• Interstate – Where the Adoptive Parents and Birthmother are from different states.
• Private (also referred to as independent, identified or non-agency) – Adoptive Parents adopt a child who has been located through “private” channels and not through an adoption agency. For example, the birthmother may know a friend or relative of the adoptive parents, or the birthmother’s doctor may know the adoptive parents, or the birth parent may locate the adoptive parents through an internet site or newspaper ad, etc. There are many different ways that private adoptions come about.
• Single parent adoption – where a single unmarried parent adopts a child.
• Step-parent or Relative adoptions – where the adoptive parents are related to the child that is being adopted, either as a step-parent wanting to adopt the child of his or her spouse, or as a relative (grandparent, aunt, uncle, cousin, etc.) wanting to adopt the child.

A: What should you look for in an adoption attorney? You need to be an educated consumer of legal services. While there are many excellent attorneys, not all of them are adoption attorneys. Some questions to ask:

• How long have you been handling adoptions?
• How many adoptions do you handle per year?
• What percentage of your practice is devoted to adoptions?
  • What types of adoptions do you regularly handle? (ie. Step-parent only? Agency? Private? Interstate? Foreign? Contested? SWAN?)
  • Do you represent any adoption agencies? Which ones?
  • Do you teach or speak to any groups about adoptions? Which ones?
  • Are you a member of any adoption organizations? Which ones?
  • Why did you choose to handle adoption cases?
  • Are you available outside normal business hours if necessary?
  • How do you charge for your legal services?
  • Can you give me an estimate of the total cost?
  • What types of services do you provide to adoptive parents?
  • What types of services do you provide to birthmothers and birthfathers?
• Do you have support staff available to assist in the adoption process?

A: By no means! You should contact an attorney as soon as you have a potential placement. There are many things that need to be done prior to the birth of a child or the placement of a child with the adoptive parents. Oftentimes, you may even be in violation of the law if you do not take certain steps prior to receiving the child.

For example, you may be required to have a home study, you may be required to do certain clearances such as child abuse, criminal and FBI clearances, and you may be required to get preliminary approval of an adoption agency or court.

You may need the approval of the Interstate Compact on the Placement of Children (when adopting a child from another state).

Your attorney will help you identify all steps necessary for a successful completion of an adoption and help you identify all legal risks and costs.

If you are in the beginning stages as an adoptive parent who wants to adopt, I suggest that you consult with your adoption attorney as early as possible in your journey through adoption.

The reasons for this include:

1. To help you understand the different options you have;
2. To help you identify and understand the law and the legal risks;
3. To give you an idea of the costs involved as well as to advise you on what Birthmother expenses are legal to pay in your state;
4. To establish a relationship with a trusted adoption attorney that will be ready for your call when you are contacted about a potential placement or when you are about to receive adoptive placement of your child.

A: All of the Birth Mothers and Birth Fathers that we have worked with have an unselfish love for their child. They are exploring the options that will be best for their child under their circumstances, because they want what is going to be best for their child’s future.

As you consider what is best for your child, we will help you understand the adoption process by:

• discussing options of agency adoption and private adoption, the process of choosing an adoptive family, arranging for counseling and support, legal and financial concerns, or making referrals for resources should you choose to parent your child.

• talking with you about options of a closed confidential adoption, a semi-open adoption, or an open adoption.

• discussing how you want the hospital experience to be, ie, whether you choose to spend time with your child at the hospital, whether you want the adoptive family to visit at the hospital, discharge of the baby to the adoptive family, etc. We do not believe in pressuring you to make any particular choice because we want you to have a complete peace and confidence in the decision you make.

• providing references for birthparent counseling and support as you consider your options.

Normally the attorney fees, counseling and medical expenses not covered by insurance, are paid for by the adoptive family or other resources, not by the birthparent. In some states, birth mothers may be entitled to living expenses as well (such as rent, food, maternity clothing, etc.), although each state has its own law regulating this, and it varies from state to state.

We have great respect for all of the Birthparents that we are privileged to serve and strive to take great care in helping you navigate through, emotionally as well as legally, the adoption process.

A: A “closed adoption,” often referred to as a confidential adoption, is one where the birth parent and adoptive parents choose to exchange very limited, non-identifying information only, choose not to meet, and choose not to have continuing contact with each other.

An “open adoption” can take on many forms, and involves some degree of exchange of more information and may involve different forms of contact between the birth parents and the adoptive parents. Generally, the birth parents and adoptive parents will choose the nature and extent of the relationship between them and the child. This can range from just having an initial meeting between the birth parents and the adoptive parents (with or without exchanging identifying information), to exchanging letters/pictures throughout the child’s life, to having continued personal contact (telephone, email, or family visits) throughout the child’s life. It is important that the families discuss what they expect of each other and are in agreement as to what is best for the child.

It is best to outline this in writing so that everyone understands clearly the expectations. That being said, it is important to note that in Pennsylvania, agreements for “open adoptions” are not legally binding <u>unless</u> the parties enter into a written agreement (“Post Adoption Contact Agreement”) that specifically follows the Pennsylvania law (Act 101 of 2010), has the requisite statutory language, and is signed by the Court.

A Post Adoption Contact Agreement (23 Pa. C.S.A. Sections 2731-2742) must have all of the requirements set forth in this statute before a court will sign an order approving it, which will make it legally enforceable. The agreement can be between the Birthparent(s), certain family members of the Birthparent’s family as set forth in the law, the Adoptive Parents and the Child being adopted.

It is important that the birth parents and adoptive parents are honest with each other as to the level of “openness” that they each are comfortable with, and that they at all times keep the child’s “best interests” as the priority.

A: The adoption agency fees will vary greatly depending on the agency. The fees can range anywhere from $1,000 to $35,000. If you are involved in an international or foreign adoption, the cost is typically between $25,000 to $40,000.

If you have an adoption through The State Wide Adoption Network (SWAN) or through a local child protective services agency, you may pay no adoption agency fees at all as it may be subsidized. Once you determine your financial parameters, then you will be able to evaluate different adoption agencies for the one that will best meet your needs.

You need to be a good consumer of adoption agency services also and to do your homework to evaluate the ones you are considering. Your attorney will often be able to assist you in this process and be able to provide you with references to adoption agencies he/she has worked with. Birthparents do not pay the adoption agency fees.

A: Although the adoptive parents in the private adoption (also referred to as independent, identified, non-agency adoption) may not be paying the placement fees of an adoption agency, they will still have certain costs. They typically need a home study or family study; criminal, FBI and child abuse clearances, and the services of an attorney.

A: If your adoption is a private adoption (also referred to as independent, identified, or non-agency adoption), you will typically not have any adoption agency placement fees. However, you may still be required to have a home study or family study completed by an adoption agency or by a licensed social worker. As a result, a private adoption is often much less expensive to the adoptive parents than the costs of an adoption agency placement fee. This may differ in states other than Pennsylvania, as there are some states that will require an agency involvement even if it is a private adoption.

A: Adoption Attorney fees will vary based on the type of adoption you have and the services that the attorney will have to provide. This should be discussed in detail with your adoption attorney, as often your attorney may not be able to give you a definite set fee because of the variables in your adoption legal proceedings.

However, your attorney should be able to give you their hourly rate, an estimate of costs that you will have to pay, and an estimate, or estimated range, of the attorney fees. For example, it is usually much less expensive for your attorney to finalize an adoptive placement you received through an adoption agency, as opposed to the attorney navigating you through an interstate adoption placement.

Your attorney should have a clear fee agreement with you which sets forth all of your agreement with your attorney as to the fee, such as the attorney’s hourly rate, paralegal rate, what costs you will be billed for (copying costs, facsimile costs, postage, process server, etc.), is there a retainer (an amount that you pay in advance of the attorney providing legal services, which amount the attorney will draw from for your monthly bills), is the retainer refundable, etc.

In certain adoptions, such as SWAN or county child protective services, there may be adoption assistance or subsidy available to reimburse your attorney fees.

Birthparents typically do not pay any attorney fees as these are paid by the adoptive family.

We strive to give our clients the best possible estimate of their expected fees based on their particular case, and are usually able to stay within that estimate barring unforeseen circumstances, as we have done so many cases that we have a good sense of what is needed.

A: The medical bills of the birthmother related to the pregnancy and birth, as well as the baby’s medical bills, which are not covered by health insurance, are allowed to be paid by the adoptive parents in most states.

However, a majority of the time, the adoptive parents do not need to pay for these expenses because the birthmother will have some type of health insurance coverage that pays for this (such as her own private health insurance, her parent’s health insurance, or medical assistance through the state she resides in).

If the birthmother has no private insurance, then she will be assisted in applying for medical assistance. If she has no insurance and cannot obtain medical assistance, then the cost of non-covered medical expenses will depend on her health providers and whether there are any complications during the pregnancy and birth.

Typically, for an uncomplicated vaginal delivery, you can expect at least $15,000 for prenatal care, lab work, ultrasounds, hospital charges for birthmother, anesthesiologists charge, hospital charges for the baby, pediatrician charges at the hospital.

The adoptive parents and birthmother should have a written agreement about what the adoptive parents will be paying for and when they will be paying for the medical expenses, as they are typically paid after the birthparent’s rights are terminated or the consents to adoption are irrevocable.

A: This will vary from state to state, because each state has its own adoption laws. It is therefore critical to evaluate the law for the state(s) involved in the adoption before you begin to pay any costs or monies. For example, in many states (including Pennsylvania) it is illegal to pay living expenses (rent, food, clothes, etc.) to birthparents, while other states will allow it, but may have certain restrictions on how much and who you can pay.

Pennsylvania law typically allows Adoptive Parents to pay their own attorney fees, to pay reasonable adoption agency fees, and to pay medical bills for the child and mother that are related to pregnancy and birth and that are not covered by health insurance.

Living expenses to the birthmother are not allowed under Pennsylvania law; however, if your birthmother lives in a state that allows payment of living expenses, you need to speak with your attorney as to whether you will be allowed to pay them.

A: Every state has standards that adoptive parents must meet before they are allowed to adopt. Usually the adoption screening process involves a home study, or family study, being conducted on the adoptive family (although there are some exceptions: You should discuss this with your attorney). This will involve a social worker meeting with the family, obtaining criminal, FBI and child abuse clearance reports on the family, obtaining references, medical and financial information. Once it is determined that the family is recommended for adoption, a report will be prepared, called a family study or home study, which will be provided to the court and other authorities involved in the adoption process.

The cost of this report to the adoptive family will vary depending on who or where it is being prepared, and typically averages between $1,500 to $3,000. However, if it is being done through a county children & youth agency, it may be significantly less. If it is being done in connection with a SWAN adoption, it may be subsidized and be done at no cost to the adoptive family.

To obtain your FBI, Criminal and Child Abuse Clearances in Pennsylvania, go to the following links:

1. Criminal Clearance Application Form http://www.epatch.pa.gov
2. Child Abuse Clearance Application Form http://www.compass.state.pa.us/cwis/public/home
3. FBI Clearance Application Process: https://www.uenroll.identogo.com

A: A home study or family study is a process of both educating the adoptive family about adoption and evaluating the adoptive family to ensure that they will provide the safe, nurturing and appropriate home for a child. This study is usually done by a licensed adoption agency or licensed social worker, depending on the requirements of the court.

It will include the adoptive parents obtaining criminal, FBI and child abuse clearances. It also will include the home study caseworker following up on medical and personal references of the adoptive family. Evaluations of the financial, physical and mental health of the adoptive family will also be a part of this study.

The family will receive education on adoption options to determine what type of adoptive placement would be appropriate for that family. This process usually involves the home study caseworker visiting the adoptive family’s home, and meeting the other members of the household as well as inspecting the home for safety and appropriateness.

Once the study is complete and the adoptive family is approved, a report will be prepared, referred to as the home study, or family study, or family profile. This home study will then be available to the agency that the adoptive family is working with, to the courts, and to any other necessary agency in the adoption process.

The cost will vary, but an estimate is $1,500-$3,000. This could be significantly lower if the home study is done through a county child protective services agency or the SWAN program.

If you are involved in a SWAN adoption or county child protective services adoption, the cost may be subsidized so that it is at no cost to the adoptive family.

To obtain your FBI, Criminal and Child Abuse Clearances in Pennsylvania, go to the following links; however, oftentimes the agency involved will want to obtain these on its own:

1. Criminal Clearance Application Form http://www.epatch.pa.gov
2. Child Abuse Clearance Application Formhttp://www.compass.state.pa.us/cwis/public/home
3. FBI Clearance Application Process
   https://www.uenroll.identogo.com

A: The State Wide Adoption Network (SWAN) is a program across the country designed to support adoption and permanency through a network and management of referrals from county child protective services agencies.

SWAN addresses barriers to permanency for children and responds to the increased number of children that need and deserve a permanent family through adoption. Adoptive parents are involved in the process of matching with the child that best fits their family and the needs of the child and family, and that will be the best family for the child.

Adoptions through SWAN and county child protective services will often have provisions for subsidized costs, including home studies, attorney fees, and adoption assistance or adoption subsidy.

A: The Interstate Compact on the Placement of Children (“ICPC”) is an agreement between states as to how an adoption of a child from one state into the adoptive family of another state will be regulated. Each state will have a state agency with the duty of assuring compliance with the Interstate Compact on the Placement of Children.

The goal is to assure a safe and appropriate placement of a child with a family that is not within the state of residency of the child, and to provide for financial responsibility and planning for the child until the adoption is finalized.

Before an adoptive family may leave the state of residency of the child and return to the adoptive family’s home state, they must have the approval of the ICPC administrators of both the child’s state of residency and the adoptive family’s state of residency. This will involve filing of certain documents with the Interstate Compact on the Placement of Children department of both states.

The basic documents required will be:

• ICPC application (often called the “100A form”)
• home study of the adoptive family including criminal, FBI and child abuse clearance
• medical and social background history of the birth parents
• consent to adoption documents signed by the birth parents
• affidavits as to Native American Ancestry per the Indian Child Welfare Act
• hospital or medical records of the child and birthmother (if applicable)

Depending on the facts of the case and the states involved, there may be other documents required as well.

Your adoption attorney will determine the documents needed and should make prompt application for ICPC approval: The approval process may take anywhere from a couple of days to a couple of weeks, depending on the states involved.

Adoptive parents should discuss the expectations with their adoption attorney in advance so that they may plan appropriately as they will need to remain in the child’s state of residency with the child pending receiving the approval of the ICPC administrators.

A: The adoption legal process will depend on the state(s) involved with the adoption, as each state has its own adoption laws.

The adoption legal process is usually two steps:

First: Termination of Birth Parents’ parental rights

Second: Finalization of the adoption by the Adoptive Parents

First: TERMINATION OF PARENTAL RIGHTS

In Pennsylvania, birthparents rights can be terminated in one of three ways:

1. Confirmation of Consent(s) to Adoption
   • Birthparents usually do not have to go to court
2. Involuntary Termination of Parental Rights
   • There are several grounds under which Involuntary Relinquishments can be granted when a Birthparent does not consent to an adoption: rape, abandonment (4 months or 6 months depending on the facts), or inability to parent are a few examples.
3. Voluntary Relinquishments
   • There are alternate proceedings when a birthparent voluntarily relinquishes parental rights and comes to the court hearing

Following is a summary of the three different ways to proceed with termination of parental rights in Pennsylvania:

1. Confirmation of Consent to Adoption

• After 72 hours expires from birth, Birthparents sign Consents to Adoption: Birthfather may sign Consent prior to birth.
• 30 day waiting period from the date the Consent is signed. Birthparent must notify designated persons during 30 day period if they wish to revoke Consent.
• Once 30 days expire, Birthparent may not revoke Consent. There are special provision in the law for cases of fraud or duress. Parental rights are not yet terminated.
• A Petition to Confirm Consent(s) will be filed with the court. Hearing date is scheduled for approximately 8 weeks later, depending on the court schedule.
• Notice of hearing must be served on Birthparents at least 10 days before hearing by certified mail or personal delivery, unless the Birthparent has waived notice in accordance with the adoption law

Court Hearing

• If a confirmation of consent hearing, the Birthparent need not attend, but the Intermediary does (If no intermediary, then Adoptive Parents attend).
• Adoptive Family notified of legal termination.
• Filing of Petition for Adoption can go forward when Birthparents’ parental rights have been terminated and agency (if applicable) completes post- placement reports

2. Involuntary Termination of Parental Rights

• There are several grounds to terminate a Birthparent’s parental rights when he/she will not consent to the adoption, or is unknown, or cannot be located. These include a six month period of “abandonment”, a four month period of “abandonment” for a newborn, rape, and inability to parent which cannot/will not be remedied.
• A Petition for Involuntary Termination of Parental Rights is filed with the Court. Hearing is scheduled for approximately 8 weeks later.
• Notice of hearing must be served on Birthparent at least 10 days before hearing either by certified mail or personal delivery. In cases of unknown birthparent or birthparents that cannot be located, legal advertisements are placed in newspapers

Court Hearing

• Adoptive Family notified of legal termination.
• Filing of Petition for Adoption can go forward when both Birthparents’ parental rights have been terminated and agency completes post-placement reports

3. Voluntary Relinquishment of Parental Rights

• Prior to 72 hours after baby’s birth, the Birthparent may sign a voluntary relinquishment as long as an “Intent to Place Child for Adoption” form is signed accompanying the relinquishment papers. After 72 hours from the birth, the birthparents need only sign the voluntary relinquishment. In private placement, the Petition for Voluntary Relinquishment can be filed with the court after 72 hours expires from the time of birth.
• A Petition for Voluntary Relinquishment is filed with the court. Hearing date is scheduled for approximately 6 to 8 weeks later.
• Notice of hearing must be served on Birthparents at least 10 days before hearing either by certified mail or personal delivery, unless Birthparent waives notice pursuant to the adoption law.

Court Hearing

• Birthparent must attend.
• Adoptive Family notified of legal termination.
• Filing of Petition for Adoption can go forward when both Birthparent’s parental rights have been terminated and agency (if applicable) completes post-placement reports

Second: FINALIZATION OF THE ADOPTION

Once the birthparents’ parental rights have been terminated, then the Adoptive Parents will be able to proceed to a final adoption hearing.

This will include the filing of a Petition For Adoption with the court and scheduling a court hearing, at which the Adoptive Parents and child(ren) that is (are) being adopted will appear. The Intermediary in the placement will also need to appear at the hearing.

After the adoption is granted, a Certificate of Adoption will be issued and a new birth certificate(s) will be obtained, showing the Adoptive Parents’ names as the parents and the child(ren)’s new name as chosen by the Adoptive Parents.

Once the adoptive parents have the Certificate of Adoption and new birth certificate(s), they can then obtain a social security number(s) for the child(ren) and a passport for the child(ren).

A: Adoption Assistance provides financial assistance in certain defined cases and a county Children & Youth Social Services Agency will determine the child’s eligibility for adoption assistance. See 55 Pa. Code Section 3140.201, et. Seq. and Adoption Opportunities Act 62 P.S. Section 771-774.

Eligibility (Section 3140.202) shall be found for an adoptive child who meets the following requirements:

1. The child is 17 years or younger.
2. Parental rights have been terminated under the Adoption Act.
3. The child is in the legal custody of the county agency or another agency approved by the Department. See also: C.B. & J.B. v. Pa. DPW, 567 Pa. 141, 786 A.2d 176 (2001).
4. The child shall have at least one of the following characteristics:
   • A physical, mental or emotional condition or handicap;
   • A genetic condition which indicates a high risk of developing a disease or handicap;
   • be a member of a minority group;
   • be a member of a sibling group;
   • be 5 years of age or older.

The law requires that prior to certification for adoption assistance, the county agency shall make reasonable efforts to find an adoptive home without providing adoption assistance. Evidence of this effort shall be recorded in the case record and include registration with the Department’s adoption exchange for at least three (3) months. If it would be against the best interests of the child because of factors, such as the existence of significant emotional ties with prospective adoptive parents while in the care of the parents as a foster child, then the requirements of this subsection do not apply.

Note that an agreement for adoption assistance must be executed at or before the final adoption decree. Some of the potential benefits of adoption assistance can be medical coverage, non-recurring adoption expenses (including attorney fees), monthly adoption assistance payments, and mental health/mental retardation services.

The adoption assistance will terminate when:

• the child reaches 18 years of age, or
• the adoptive parents are no longer legally responsible for the support of the child, or
• the child is no longer receiving support from the adoptive parents, or
• the adoptive parents request termination of the assistance.

Other: See Gruzinski v. DPW. 731 A.2d 246, ___ Pa. Cmwlth. ____ (1999) re eligibility to apply for adoption assistance after adoption has been finalized and duty of CYS to notify prospective adoptive parents of child’s eligibility for adoption assistance.

A: Typically, Adoptive Parents do not get a Social Security Number for the adopted child until after the legal proceedings are finalized and a new birth certificate is received.

If you have custody of the child and your adoption is not finalized yet, you can apply for an Adoption Tax Identification Number that you can use in lieu of the Social Security Number until you finalize the adoption.

You will need to file the appropriate IRS Form used to apply for the Adoption Tax Identification Number.

A: The adoption tax credit offsets qualified adoption expenses making adoption possible for some families who could not otherwise afford it.

You may qualify for the adoption tax credit if you adopted or attempted to adopt a child and paid qualified expenses relating to the adoption. The amount of the adoption tax credit varies each year and is phased out over higher incomes. You may be able to claim the credit even if the adoption does not become final. If you adopt a special needs child, you may qualify for the full amount of the adoption tax credit even if you paid few or no adoption-related expenses.

What are qualified adoption expenses?

Qualified adoption expenses are reasonable and necessary adoption fees. They include:

• court costs,
• attorney fees,
• traveling expenses (including amounts spent for meals and lodging while away from home), and
• other expenses directly related to the legal adoption of an eligible child.

Expenses paid in an unsuccessful attempt to adopt an eligible child before finalizing the adoption of another child can qualify for the credit.

Qualified adoption expenses do not include expenses:

• for adopting your spouse’s child,
• for a surrogate parenting arrangement,
• that violate state or federal law,
• paid using funds received from a federal, state, or local program,
• paid or reimbursed by your employer or any other organization, or
• allowed as a credit or deduction on a federal tax return.

You cannot claim a credit for the same adoption expenses used to claim the income exclusion.