Thursday, February 21, 2013

Can a biological parent vacate an adoption?

In a 2010 Pennsylvania adoption case, the Natural Father filed a Petition to Vacate the Adoption Decree. In the Interest of Skyler, 14 Pa. D. & C. 5th 225 (2010). Adoptions in Pennsylvania are governed by the Adoption Act, 23 Pa.C.S. §2101. Pennsylvania requires that the natural parents’ rights be terminated prior to finalizing an adoption, whether the adoption is voluntary or not.

In November 2006, Natural Father voluntarily consented to the adoption of his minor child. This consent indicated his intent to relinquish all rights he had as the child’s natural father. Curiously, the consent contained a provision that Natural Father would have biweekly visitation with the child. Such frequent and scheduled conduct is unusual. However, the consent further provided that  if Natural Father did not exercise more than half of those biweekly visitation days, then his right to visit the child would be terminated. Furthermore, Natural Father’s consent stated that he believed that the best interest and welfare of the child was supported by adoption and he intended that his consent to be irrevocable. After 30 days, Father would not be able to revoke his consent to the adoption.

In March 2007, the court held a hearing pursuant to the requirements in 23 Pa.C.S. §2504 to confirm consent to adoption by the natural parents. Natural Father failed to appear before the court, but he did have legal counsel there and, consequently, the court confirmed the consent. The final decree for the adoption was issued in May 2007, but it did not include any visitation rights for Natural Father. Furthermore, the adoptive parents never entered into an agreement with Natural Father giving him any rights to visitation. In November 2009, Natural Father filed a Motion to Enforce the consent agreement, which allowed him biweekly visitation with the child. In January 2010, a hearing was held to determine whether Natural Father had a legal right to enforce the terms of the consent to adoption agreement he signed in November 2006.

An adoption decree is presumed to be valid. Therefore, a person who challenges that decree has the burden of proving by clear and convincing evidence that the adoption decree is invalid. Additionally, in Pennsylvania, unless the person who challenges the adoption decree can satisfy this heightened burden of proof, the adoption decree should not be vacated.

Here, Natural Father could not demonstrate with clear and convincing evidence that the decree should be invalid. Natural Father had notice of the adoption proceedings, and he was represented by legal counsel at a hearing where the court properly terminated his parental rights in March 2007. Furthermore, Natural Father was aware that his consent to the adoption would result in complete termination of his parental rights to the child and any obligation to care for the child. Natural Father presented no evidence to show that his consent was not intelligent, voluntary or deliberate. The record showed that Natural Father’s consent reflected his true intent to let the child be adopted.

Natural Father also asked the court to withdraw his consent to the adoption. However, there is ample Pennsylvania case law that states that a natural parent can only withdraw consent to adoption before the entry of a final decree of adoption. Here, Natural Father’s consent expressly stated that he intended for the child to be adopted, and he had every opportunity to withdraw that consent prior to the May 2007 final decree.

If you have questions concerning the adoption laws in your state, you should contact an attorney.

Written by Allyson Lutley, law clerk at The Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

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