43060. Open Adoption Agreements and Letters of Intent

Original Date: July 1, 1991

Revised Date: July 1, 2023

Sunset Review Date: July 31, 2027

Approved by: Frank Ordway, Chief of Staff

Purpose

The purpose of the policy is to provide guidance on the use of Open Adoption Agreements (OAA) and Letters of Intent. OAA and Letters of Intent are used when its determined in a shared planning meeting (SPM) that continued contact and/or communication with birth parents is in the best interest of dependent children or youth. This includes using:

OAAs when they are placed in a prospective adoptive placement.
Letters of Intent when they are not placed in a prospective adoptive placement.

Scope

This policy applies to child welfare employees.

Laws

RCW 26.33.160 Consent to adoption-When revocable-Procedure

RCW 26.33.295 Open adoption agreements-Agreed orders-Enforcement

Policy

Child and Family Welfare Services (CFWS) caseworkers must:
1. Only consider using OAAs or Letters of Intent with dependent children or youth when it is:
  1. Determined to be in their best interest.
  2. Recommended by participants at adoption planning reviews (APR) or other SPMs.
2. Consult with an adoption caseworker when considering and finalizing OAAs or Letters of Intent.
3. Create OAAs or Letters of Intent prior to:
  1. Termination of parental rights (TPR).
  2. Accepting a relinquishment of parental rights.
4. Not use OAAs or Letters of Intent as tools to coerce parents into relinquishing their parental rights. Parents should only enter into OAAs or Letters of Intent freely, voluntarily, and with full knowledge of the consequences.
DCYF may reimburse the costs and services related to negotiating OAAs as a non-recurring expense for the prospective adoptive parents through the adoption support program.

Procedures

Considering an OAA
CFWS caseworkers must complete the following when they assess an OAA is in the best interest of children or youth:
1. Verify:
  1. With their current caregiver they would like to be identified as the prospective adoptive placement and they have an approved adoption home study.
  2. Continued contact and/or communication with the birth parents will not interfere with the physical safety, health, or well-being of the child or youth and their adoptive parents.
  3. The court has not made a determination that the birth parents do not have the capacity to understand the terms of the OAA.
2. Consider how the contact may impact or delay achieving permanency for the child or youth.
3. Determine in collaboration with the Guardian ad Litem (GAL) that post-adoption contact and/or communication is in the child’s or youth’s best interest now and in the future. Best interest includes, but is not limited to, continued contact and/or communication that supports the child’s or youth’s:
  1. Well-being and security.
  2. Continued connections with biological family members.
  3. Stability in the adoptive placement.
  4. Desire to maintain contact.
4. Consult with an adoption caseworker to discuss the terms of the OAA when they and the GAL support the consideration of the OAA.
5. Discuss with youth age 12 and older, their interest in maintaining contact with their birth parents and known siblings. The discussion must include:
  1. Information about the OAA process.
  2. The type and amount of contact the youth feels would be beneficial.
OAA Determination
CFWS caseworkers must complete the following when an OAA may be appropriate for children or youth:
1. Schedule an APR or other SPM:
  1. Within 30 calendar days prior to any of the following:
    1. Court changing the permanent plan to adoption.
    2. Sending the TPR referral to the assistant attorney general (AAG).
    3. Accepting the relinquishment of parental rights.
2. Invite the individuals listed on the Guide to Shared Planning Meetings DCYF CWP_0070 publication for APRs.
3. Conduct SPMs following the Guide to Shared Planning Meetings DCYF CWP_0070 publication to:
  1. Determine if the:
    1. Child or youth is in an adoptive placement.
    2. OAA:
      1. With the birth parent is in the best interest of the child or youth.
      2. Should include sibling visits, phone calls, etc.
  2. Allow birth parents and prospective adoptive family to express their wishes in terms of contact and/or communication that they feel is in the child’s or youth’s best interest.
  3. Obtain approval from youth age 14 years or older on the agreement and terms. If the youth does not agree, end the OAA process.
  4. Document on the FamLink Shared Planning Meeting DCYF 14-474 form:
    1. The recommendation of the SPM, including:
      1. If the OAA is recommended.
      2. The benefits or concerns to the child’s or youth’s well-being to maintain contact and/or communicate with their birth parents and siblings.
    2. Youth age:
      1. 12 years and older were provided information about the OAA process.
      2. 14 years and older, if they agree to participate in the OAA.
4. Conduct settlement conferences as needed, if available, when a decision on the terms of the OAA was not reached at the SPM and further discussions are needed to negotiate the terms. An AAG must be present at the settlement conference.
5. Notify the AAG regarding the position of DCYF on the OAA following the SPM.
SPM Process Does Not Support OAA
CFWS caseworkers must proceed with TPR petitions or accept a relinquishment of parental rights without OAAs when the decision from the SPM does not support an OAA.
OAA Finalization when Supported by the SPM Process
1. CFWS caseworkers must complete the following when a decision from the SPM recommends an OAA with birth parents:
  1. Consult with the adoption representative, e.g., adoption caseworker, adoption supervisor, or adoption unit designee, on the terms of the OAA.
  2. Review the Open Adoption Agreement Practice Tips for Caseworkers document.
  3. Not advise birth parents or adoptive parents on legal matters.
  4. Advise birth parents and prospective adoptive parents to consult their attorney, prior to signing an OAA.
  5. Notify birth parents and prospective adoptive parents that:
    1. They must create the terms of the OAA in consultation with their attorneys, if applicable. Caseworkers must be available for support in this process, and may consult with the AAG.
    2. OAAs are not legally enforceable, unless the terms of the agreement are in a court order.
    3. The effective date of the OAA is the adoption finalization date.
  6. Provide the following to the birth parents, prospective adoptive parents, and their attorneys to use when creating the OAA:
    1. Open Adoption Agreement Sample Template DCYF 09-006 form.
    2. Open Adoption Agreement Practice Tips for Biological and Prospective Adoptive Parents document.
  7. Verify:
    1. Separate OAAs are completed for each birth parent participating.
    2. OAAs include all of the following:
      1. Frequency of contact and/or communication.
      2. Types of contact and/or communication that is agreed to and most appropriate for the child or youth, now and in the future. Contact and/or communication must include at minimum, a letter sent one time per year. It may also include, but is not limited to:
        
        Additional letters
        
        Limited visitation
        
        Phone contact
        
        Electronic correspondence
        
        Photographs
      3. Physical, mailing, and/or email address for each legal party.
      4. Notification:
        
        That contact and/or communication prior to the effective date of the OAA is at the discretion of the prospective adoptive family, if approved by DCYF and the court.
        
        To all parties that if the prospective adoptive parents do not adopt, the OAA is not legally binding for future adoptive parents.
    3. OAA language regarding contact and/or communication between the biological parent and the child or youth does not violate the child’s or youth’s right to confidentiality. Consult with the AAG as needed.
  8. Discuss the OAAs with their supervisor and area administrator (AA) or designee. If they:
    1. Agree with the terms of the OAA, caseworkers must send the OAA to the AA or designee for approval.
    2. Do not agree with the terms of the OAA, they must provide the reason for their decision to the caseworker and supervisor, and caseworkers must:
      1. Notify all parties of the AA’s or designee’s decision.
      2. Document the decision and notification in a FamLink case note.
2. AAs or designees receiving OAAs must review them for approval, if:
  1. In agreement with the terms:
    1. Review and sign the OAA indicating DCYF is:
      1. In agreement with the terms.
      2. Not a legal party to the OAA.
    2. Send the completed OAA to caseworkers.
  2. Not in agreement, provide a reason for their decision to the caseworker and supervisor.
3. CFWS caseworkers receiving signed OAAs from the AAs or designees must:
  1. Verify they are signed by the following individuals prior to filing it in court:
    1. Prospective adoptive family.
    2. Birth parent, if their parental rights have not been terminated.
    3. Child’s or youth’s attorney and GAL, if applicable.
  2. Submit the signed OAAs to the:
    1. Juvenile court at the termination hearing.
    2. Superior court at the adoption hearing.
  3. Provide a copy of signed OAAs to the birth parents and prospective adoptive parents.
  4. Upload a copy of the OAA in the child’s or youth’s FamLink legally-free file and title it OAA.
  5. Maintain original OAA in the case file for transfer to adoptions.
Considering Letters of Intent
CFWS caseworkers must complete the following when they believe a Letter of Intent is in best interest of children or youth and they are not placed in an adoptive home prior to TPR or accepting the relinquishment of parental rights:
1. Verify:
  1. Continued contact and/or communication with the birth parents will not interfere with the physical safety, health, well-being, or permanency options for the child or youth.
  2. The court has not made a determination that the birth parents do not have the capacity to understand the terms of the Letters of Intent.
2. Determine in collaboration with the GAL that the Letter of Intent is in the child’s or youth’s best interest, per Procedures Section 1.c.
3. Consult with an adoption caseworker when they and the GAL support the consideration of a Letter of Intent.
4. Discuss with youth age 12 and older, their interest in maintaining contact with their birth parents. The discussion must include:
  1. Information about the Letter of Intent process.
  2. The type and amount of contact the youth feels would be beneficial.
Letters of Intent Determination
CFWS caseworkers must complete the following when a Letter of Intent may be appropriate for children or youth:
1. Schedule an APR or other a SPM within 30 calendar days prior to any of the following:
  1. Court changing the permanent plan to adoption.
  2. Sending the TPR referral to the AAG.
  3. Accepting the relinquishment of parental rights.
2. Invite the individuals listed on the Guide to Shared Planning Meetings DCYF CWP_0070 publication for APRs.
3. Conduct SPMs and follow the Guide to Shared Planning Meetings DCYF CWP_0070 publication to determine if a Letter of Intent is in the best interest of the child or youth and:
  1. Allow birth parents to express their wishes in terms of contact and/or communication that they feel is in the child’s or youth’s best interest.
  2. Notify birth parents Letters of Intent:
    1. Are not legally binding agreements with DCYF.
    2. Will not delay permanency for a child or youth.
  3. Obtain approval from youth 14 years or older on the terms of the Letter of Intent. If the youth does not agree, end the Letter of Intent process.
  4. Document on the FamLink Shared Planning Meeting DCYF 14-474 form:
    1. The recommendation of the SPM process, including:
      1. If the Letter of Intent is recommended.
      2. The benefits or concerns to the child’s or youth’s well-being to maintain and/or communicate with their birth parents.
    2. Youth age:
      1. 12 years and older, were provided information about the Letter of Intent process.
      2. 14 years and older, if they agree to participate in the Letter of Intent.
4. Notify the AAG regarding the position of DCYF on the Letter of Intent following the SPM.
5. If the Letter of Intent is not recommended, proceed with the TPR petition or accept a relinquishment of parental rights without a Letter of Intent.
Letters of Intent Finalization when Supported by the SPM Process
CFWS caseworkers must complete the following when a decision from the SPM recommends a Letter of Intent:
1. Consult with the adoption caseworker on the terms of the Letter of Intent.
2. Complete the Letter of Intent Sample Template DCYF 09-005 form separately for each birth parent participating by:
  1. Including a statement:
    1. Indicating that DCYF and the GAL believe that it is in the child’s or youth’s best interest. If there is not an agreement between DCYF and the GAL, DCYF may still proceed with a Letter of Intent.
    2. That DCYF must make reasonable efforts to locate an adoptive family that will agree to the terms.
  2. Identify the type of contact and/or communication with the birth parent that is most appropriate for the child or youth, now and in the future while an adoptive home is being identified. Contact and/or communication must include at a minimum, a letter sent one time per year. It may also include, but is not limited to:
    1. Additional letters
    2. Limited visitation
    3. Phone contact
    4. Electronic correspondence
    5. Photographs
  3. Obtain physical, mailing, and/or email address for each birth parent and DCYF.
  4. Document the type of contact and/or communication with the birth parent in the Letter of Intent.
3. Verify Letters of Intent language regarding the contact and/or communication between biological parents and the child or youth does not violate the child’s or youth’s right to confidentiality. This includes consulting with the AAG when needed.
4. Discuss Letters of Intent with their supervisor and AA or designee, and if they:
  1. Approve:
    1. Provide a copy of the Letter of Intent to birth parents.
    2. Upload the Letter of Intent to the child’s or youth's FamLink legally-free file and title it “Letter of Intent”.
    3. Maintain the original Letter of Intent in the case file for transfer to adoptions.
  2. Deny the Letter of Intent, they must provide the reason for the denial and caseworkers must:
    1. Notify all parties of the AA’s or designee’s decision not to approve the Letter of Intent.
    2. Document the decision and notification in a FamLink case note.
Obtaining Copies of OAA or Letters of Intent after Adoption Finalization
Caseworkers must forward requests for copies of OAAs or Letters of Intent after adoption finalization to the Public Disclosure Unit within two business days, per the DCYF Administrative 13.05 Public Records Requests and Disclosure policy.