6.11 Adoption

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

6.11 ADOPTION ³⁸⁵⁹

6.1101 Introduction.

When potential adoptive parents are making a decision to adopt a child, they are usually not initially concerned with the legal requirements of adoption. Counsel for potential adoptive parents should guide these clients through the initial stages of deciding to adopt. Some of their initial concerns are addressed below. The Virginia Department of Social Services website has a section devoted to the adoption process and its procedures. ³⁸⁶⁰

A. Choosing an Agency and a Social Worker.

It is extremely important for prospective adoptive parents to be both comfortable with and confident in the abilities of their social worker and their child-placing agency. The choice of an agency is often based on economic or religious considerations. A social worker should be judged not only for expertise in the field, but also for personal rapport with and commitment to the adoptive parents.

B. Choosing an Attorney.

The adoption laws in Virginia change both substantively and procedurally every year. Therefore, adoptive parents should seek the counsel of an attorney who has adoption experience. An attorney who does not practice adoption law on a regular basis should consult with an attorney who has that experience before accepting an adoption client.

C. Types of Adoption.

1. Agency Placement Adoption.

³⁸⁶¹ In an agency placement adoption, a licensed child-placing agency or local board accepts custody of a child from one or both birth parents, and the parental rights of the birth parents of the child are terminated. Either before or after the parental rights have been terminated, the child may be placed with a suitable adoptive family or parent. If the adoption is to be an agency placement, the agency will contact the prospective adoptive parents when the agency thinks a suitable child has been located. However, a birth parent may opt to select the adoptive parents or may allow the agency to select them. In some cases, a nonbinding ongoing contact agreement may be entered into with the adoptive family for sharing such things as pictures and letters that are furnished through the agency. Agency placement adoptions are still the most common in Virginia and are the easiest adoptions to pursue from both the client's and the attorney's perspectives.

2. Stepparent and Confirmatory Adoption.

³⁸⁶² A stepparent adoption occurs when the birth or adoptive parent of a child marries and wishes that the new spouse become the legal parent of the child. Changes to the statutes in 2021 also permit another person with a legitimate interest who is not the birth parent or the spouse of a birth parent adopt a child with the birth parent or a parent by adoption. ³⁸⁶³

3. Close Relative Adoption.

³⁸⁶⁴ When a prospective adoptive parent or parents are close relatives of the child and the child has continuously been in their physical custody or resided in their home for two years or more, the court may dispense with some of the procedural requirements of an agency or parental placement adoption.

4. Parental Placement Adoption.

³⁸⁶⁵ In a parental placement adoption, also called direct placement adoption, the birth parent or parents of an infant decide to enter into an adoption plan directly with the adoptive parent or parents of their choice to allow the adoptive parents to raise their child. The birth parent may recommend adoptive parents and choose either to use the more open parental placement adoption procedures or to maintain privacy by using the agency adoption procedures. If the adoption is to be a parental placement adoption, an experienced social worker or attorney may be able to suggest certain avenues to pursue.

5. Adult Adoption.

³⁸⁶⁶ Virginia permits adoption of certain persons who are 18 years of age or older. These adoptions can involve family members, such as a stepparent who has stood in loco parentis for a period of at least three months, or a close relative. The statute also permits the adoption of a total legal stranger or nonrelative who is 18 years or older. The person to be adopted must be at least 15 years younger than the petitioner, and they must have known each other for at least one year before the petition is filed. Parental consent is not required, but the consent of the person being adopted is required.

6. Foster Care Placement Adoption.

A foster care placement adoption is an agency placement adoption in which the foster parents are given certain priority over other potential adoptive parents if they decide to pursue adoption. ³⁸⁶⁷ The child-placing agency has the right to petition for termination of parental rights over a foster care child after either six or 12 months, depending on the circumstances. ³⁸⁶⁸

7. Special Needs Adoption.

Special needs adoptions are also agency placement adoptions, but they involve a category of children classified as children with "special needs." The statutory definition of a child with special needs is a child for whom the child-placing agency has made a determination that it is unlikely that the child will be adopted within a reasonable period of time due to individual circumstances. ³⁸⁶⁹

8. Interstate Adoption.

Children born in one state may be placed with adoptive parents in another state if all the requirements of the Interstate Compact on the Placement of Children (ICPC) are met. ³⁸⁷⁰ These interstate adoptions may be agency placements or parental placements. Section 63.2-1100 et seq. of the Virginia Code applies to the implementation of the ICPC.

9. Intercountry Adoption.

³⁸⁷¹ An intercountry adoption occurs when a child born in a foreign country is placed for adoption with parents from this country.

D. Who May Place Children for Adoption.

1. Virginia Agencies.

A licensed child-placing agency may place children for adoption in Virginia. ³⁸⁷² This includes public agencies, which are branches of the Department of Social Services, and private agencies. The Virginia Department of Social Services publishes an Adoption Manual that is available on its website. ³⁸⁷³ Persons or agencies have strict limitations concerning their ability to charge, pay, give, or agree to give or accept any money, property, or services in connection with their services ³⁸⁷⁴ and are subject to investigation or criminal prosecution for violations of these restrictions. ³⁸⁷⁵

The public agencies are often adoption units attached to local departments of social services ³⁸⁷⁶ and are involved in placing children whose parents' rights have been terminated by the courts for abuse, neglect, or abandonment. Public agencies also deal with prior foster care placements in which parents have failed to rehabilitate themselves within 12 months or failed to maintain contact with a child for six months and have their parental rights terminated. ³⁸⁷⁷ They generally assist adoptive parents who have lower incomes, and often pay the attorney fees and court costs for the clients to proceed with an adoption.

There is also a wide array of private agencies that are licensed to place children in Virginia. ³⁸⁷⁸ They generally charge more than public agencies but may offer greater support services and quicker response time on home studies and visitation reports.

2. Parents or Guardians.

The birth parent or parents or legal guardian or guardians of a minor child may place a child with an adoptive parent or parents of their choice. ³⁸⁷⁹ This is called a parental placement adoption, but it still requires a licensed child-placing agency to conduct the home study and the investigative reports. Sections 63.2-1225 and 63.2-1226 of the Virginia Code provide a designated adoption procedure that allows a birth parent to recommend adoptive parents to the child-placing agency. A birth parent under the age of 18 has the capacity by statute to consent to the adoption of his or her child. ³⁸⁸⁰

3. Out-of-State Agencies.

Any agency located in a state other than Virginia may place children for adoption in Virginia if it is licensed or otherwise authorized to place children for adoption under the laws of the state in which it operates. ³⁸⁸¹ The out-of-state agency must still comply with the requirements of the ICPC. ³⁸⁸²

4. Restrictions on Placements.

A licensed child-placing agency may place a child in a home based on a recommendation from a birth parent, a physician, an attorney licensed in Virginia, or a clergyperson who is familiar with the situation. But Virginia law expressly prohibits any of these individuals from charging a fee or advertising that such a recommendation can be made. ³⁸⁸³ An attorney, however, may charge fees and costs for the legal services provided in connection with the placement. ³⁸⁸⁴ Sections 63.2-1711 and 63.2-1712 of the Virginia Code provide that a person who engages in the activities of a child-placing agency without being licensed is subject to injunctive relief and criminal penalties. However, section 63.2-1213 of the Virginia Code provides that "[n]o circuit court shall deny a petitioner a final order of adoption for the sole reason that the child was placed in the physical custody of the petitioner by a person not authorized to make such placements."

E. Who May Be Adopted.

1. Children Under the Age of 14.

Children under the age of 14 may be adopted if the parental rights of their birth parents have been terminated or their birth parents are deceased. The parental rights may be terminated voluntarily by an entrustment agreement ³⁸⁸⁵ or parental consent signed by the birth parents and entered in a court order, ³⁸⁸⁶ or they may be terminated involuntarily by court order after certain requirements of notice are met and an evidentiary hearing is held. ³⁸⁸⁷

2. Children Between the Ages of 14 and 18.

Children over the age of 14 but under the age of 18 must execute written consent to their own adoption before an officer authorized by law to take acknowledgments, unless the court determines that this requirement is not in the child's best interest. ³⁸⁸⁸ Often the judge of the juvenile and...