Imagine new adoptive parents’ broken hearts when they learn that the newborn they have raised for four weeks since his release from the hospital will be removed from their home. After 29 days of feeding the baby, losing sleep over the baby, bonding with the baby, and seeing this baby as part of their family for the rest of their lives, a birth parent can revoke his or her consent for any reason whatsoever on the 30th day and take the baby back, never to see the adoptive parents again. Unfortunately for prospective adoptive parents looking to adopt a baby in Pennsylvania and a handful of other states, this is a real legal and emotional risk they face in the adoption process.
Adoption is a two-part process: the first part involves the termination of the birth parents’ parental rights as to the child and the second part involves the actual adoption by the adoptive parents. The termination of parental rights can be done voluntarily or involuntarily by the court. In a voluntary termination, the parent or parents sign a consent which permanently gives up all rights to the child and agrees to the adoption. Each state has different statutes regarding who must sign the consent, when the consent can be signed, and if and when the consent may be withdrawn or revoked.
Generally, the birth mother and birth father (if paternity is established or otherwise acknowledged) are requested to execute consents. In Pennsylvania, the birth father’s rights can be terminated for a newborn without a consent if he knows or has reason to know of the child’s birth, does not live with the child, is not married to the birth mother, and did not make reasonable efforts to maintain contact with and provide financial support for the newborn for four months, 23 Pa.C.S.A. Section 2511. If the birth parents legally lost the right to consent, an agency or other guardian of the child may need to sign the consent, 23 Pa.C.S.A. Section 2711.
In many states, unless the child does not have the mental capacity to consent, older children are required to consent to the adoption. The age benchmark for older children’s consent varies by state, but is anywhere from 10 years old to 14 years old. In Pennsylvania, a child who is older than 12 years of age must consent to the adoption.
Consents must be executed in accordance with the time period, if any, provided in the statute for that state where the termination of parental rights or the adoption will occur. Approximately one-third of the states allow birth parents to sign the consent at any time after the child is born and approximately one-third of the states allow the birth father to sign the consent before or immediately after the child is born. Almost two-thirds of the states require that the birth mother or both birth parents wait for a period of time after the baby is born before they can sign the consent. This waiting period can range from 12 hours to 15 days. In Pennsylvania, the birth father can sign the consent before or immediately after the birth, but the birth mother is required to wait 72 hours after the birth before signing her consent.
Pennsylvania is in the minority of states that continue to provide birth parents a full 30 days to revoke their consent with additional time provided for claims of fraud or duress. A birth parent cannot waive the revocation period in Pennsylvania. In Pennsylvania, a birth parent’s consent is revocable upon a court finding of fraud or duress, which petition must be filed within 60 days of the birth of the child or execution of consent (whichever is later) or 30 days after entry of the adoption decree, whichever is earlier.
Almost half of the states have statutes that provide that consents to adoption are irrevocable upon execution unless there was fraud or duress, including Colorado, Illinois, New Jersey and the Carolinas. About 10 states, including California, Delaware and Maryland, provide a specified time to revoke a consent, otherwise it is irrevocable. There are a few states that actually favor birth parents’ rights more than Pennsylvania and give a greater time in which to revoke their consent such as Delaware, which provides 60 days. However, there are many more states that reduce that limbo period for adoptive parents with consent revocation periods from 10 days in Arkansas to twenty days in Kentucky. Each state’s statute regarding adoption consent revocation may have caveats and of course is subject to legislative change.
Pennsylvania’s 30-day limbo period has a variety of ramifications on potential adopting families and may have resulted in and may continue to result in a decrease of adoptions fully occurring in Pennsylvania. For an adoptive family looking to avoid the heartache of losing an adopted child to a revoked consent by a birth parent, it may benefit that family to look at babies being born in Massachusetts where consent is irrevocable or even babies born next door in New Jersey where consent can only be revoked upon a finding of fraud or duress. While this involves an adoption attorney in both the child’s home state and the adoptive parents’ home state working with the Interstate Compact on the Placement of Children, it could reduce some of the emotional and legal risk involved in the adoption process.
Over the years, there have been numerous legislative proposals to decrease the revocation timeframe for consents, but none have been successful to date. The current 30-day revocation period was enacted in 2004. Prior to that, the revocation period was uncertain, i.e. whenever the court could set a hearing date after a period of 40 days had expired from the signing of the consent. House Bill 1526 in the 2015 session initially sought a revocation period of 120 hours (five days) after the birth of the child or execution of consent, whichever is later, which was then modified to 14 days by the Committee on Children and Youth. Then again in January 2017, House Bill 58 was proposed which would reduce the revocation period to 14 days. HB 58 was referred to the Committee on Children and Youth, went through three considerations, and final passage by the House in March 2017, and has remained with the Senate since that time. For the foreseeable future, it appears that Pennsylvania will continue to provide 30 days to birth parents to revoke their consent to adoption.
It is a reality that Pennsylvania families may go to other states to adopt, which can only be remedied by a legislative change. While Pennsylvania’s decline may be, in part, due to the risk of adoption consent revocation, all states, including Pennsylvania, have seen a decline in domestic adoptions in the last few decades. This is likely due to the reduced stigma attached to single parenthood, the decline in teenage pregnancies, and the increase in government assistance available to support children.
Adoption law is antiquated, especially in Pennsylvania and especially with regard to the 30-day period birth parents can revoke their consent and take the child back. While many adoptive parents and babies begin bonding when the child is placed with them, or even before, the length of time for which that baby can be taken away should be carefully considered to not deter potential adoptive parents from the adoption process. The revocation limbo period can be hard on the adoptive parents, who are at risk for losing the child, the birth parents, who may be questioning their decision, and, most importantly, the child, who needs stability in his or her life.
Samuel C. Totaro Jr., of Curtin & Heefner, focuses his practice on adoption law and related adoption litigation. He has participated in over 4,000 adoptions of children, representing adoptive parents, birth parents and adoption agencies. He was lead counsel in Gibbs v. Ernst, in which the Pennsylvania Supreme Court established the right of adoptive parents to be compensated for failure of adoption agencies to fully disclose all relevant and material information in their possession to the adoptive parents prior to adoption.
Amanda G. Malamud focuses her practice in the areas of family law and adoption. She represents clients in all aspects of adoption and family law practice, including representing clients in contested matters of divorce, custody and support.