Administrative Code

Virginia Administrative Code
3/5/2024

Article 5. Adoption

22VAC40-131-470. Applicability.

Article 5
Adoption

In addition to applicability requirements specified by 22VAC40-131-20, programs licensed to provide adoption services shall also comply with the requirements of this article.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-480. Fees for adoption applications and services.

A. Prior to initiating the home study, the licensee shall make full disclosure of fee charges to adoptive home applicants.

B. Each applicant shall be given a written fee explanation that addresses the following:

1. The amount the applicant must pay and when and how the payments are to be made;

2. How the amount is determined and what services the fees cover; and

3. The refund policy of the licensee.

C. The licensee shall develop a mutually-acceptable written agreement with the adoptive applicants regarding the fees to be paid and the services to be provided.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-490. Adoption counseling and services for birth parents.

A. Except in the case of intercountry adoption, the licensee who holds custody of a child shall offer counseling services to the birth mother, or if reasonably available, to both birth parents contemplating the placement of their child for adoption. The counseling services shall include a discussion about:

1. The parent's decision to place the child was not made under duress and to ensure the decision to place the child is a firm decision;

2. The impact of such a decision;

3. The reasons for contemplating the decision to place the child for adoption; and

4. Alternatives to adoption including:

a. Services available to assist the family in staying together, if staying together is in the best interests of both the child and family;

b. Foster care for the child; and

c. The child's placement with relatives.

B. Except in the case of intercountry adoption, the licensee shall offer additional counseling sessions as needed by the birth parents.

C. Except in the case of intercountry adoption and prior to accepting a child for adoption placement, the licensee shall provide the birth parents with an explanation of:

1. Adoption services provided;

2. Adoption policies and procedures, including the adoption process; and

3. The rights and responsibilities of all parties in the adoption process.

D. The licensee shall document in the record of the birth mother or child to whom the counseling services were provided if:

1. The licensee did not provide counseling services as required, the reason shall be documented.

2. Counseling was provided to the birth father, such counseling services shall be documented.

Statutory Authority

§§ 63.2-217, 63.2-1701, and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012; amended, Virginia Register Volume 36, Issue 2, eff. October 17, 2019.

22VAC40-131-495. Post-adoption contact and communications agreement.

A. Unless parental rights of the birth parents have been terminated, the licensee may inform the birth parents and shall inform the adoptive parents that they may enter into a written post-adoption contact and communication agreement as described in § 63.2-1220.2 of the Code of Virginia.

B. The licensee shall inform the child if the child is 14 years of age or older, that he may consent to a post-adoption contact and communication agreement as described in § 63.2-1220.2 of the Code of Virginia.

C. When a child's birth parents and the prospective adoptive parents have entered into a written post-adoption contact and communication agreement, and the child age 14 years or older has given consent, the licensee shall:

1. Review the written post-adoption contact and communication agreement; and

2. Provide to the court the licensee's written recommendation indicating whether:

a. The post-adoption contact and communication agreement represents the best interests of the child; and

b. The licensee recommends approval of the agreement.

Statutory Authority

§§ 63.2-217, 63.1-1701, and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 36, Issue 2, eff. October 17, 2019.

22VAC40-131-500. Involuntary termination of parental rights.

When it is necessary to petition the court to terminate parental rights, the licensee shall follow the requirements of § 16.1-283 of the Code of Virginia and any other necessary legal requirements to achieve the involuntary termination of parental rights.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-510. Provisions for adopting children with special needs.

A. The licensee shall collaborate and work cooperatively with the local department to ensure that children with special needs, as defined by § 63.2-1300 of the Code of Virginia, who are legally free for adoption are registered with the Adoption Resource Exchange of Virginia within 30 days of termination of parental rights unless an adoptive placement agreement has been signed. The licensee holding custody shall ensure that the child is registered.

B. The licensee shall ensure that prospective adoptive families who will accept children with special needs are registered with the Adoption Resource Exchange of Virginia within 30 days of approval unless an adoptive placement agreement has been signed.

C. The licensee shall assist and work with the appropriate local department of social services to gather documentation and complete necessary applications for securing adoption assistance payments for the child.

D. The licensee shall ensure that necessary and appropriate services and treatment are provided to children with special needs, pursuant to Chapter 13 (§ 63.2-1300 et seq.) of Title 63.2 of the Code of Virginia.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-520. Selecting an adoptive home.

A. Siblings shall be placed together unless it clearly is not in the best interests of the children. If siblings are not placed together, the reasons for separation shall be documented in the file of each sibling.

B. Relatives and foster parents shall be considered primary adoptive resources when adoption is considered to be in the best interests of the child.

C. The licensee shall consider the following when selecting an adoptive home for a child:

1. The child's concerns about adoption, for children over one year of age;

2. The ages of the adoptive parents in relation to the age of the child; and

3. The child's best interests.

D. When the licensee accepts custody of a child for the purpose of adoption, the licensee shall consider recommendations made by the birth parents, a physician or attorney licensed in the Commonwealth of Virginia, or a clergyman who is familiar with the situation of the proposed adoptive parents or the child. The licensee shall document recommendations made in the file of the child.

E. The licensee shall make selection of a particular prospective adoptive family for a child in accordance with the best interests of the child. The reasons for selecting the specific home for the child shall be documented in the child's file.

F. The licensee shall provide the adoptive parents full known factual information about the child and, excluding identifying information where required by law, known factual information about the child's birth family. The licensee shall provide to the adoptive parents written information about:

1. The child's history, including information about the child's birth, social, cultural, medical, educational, developmental, psychological, and mental health; and

2. Relevant known physical and mental history of the birth parents.

G. The licensee who holds the child's custody shall require the prospective adoptive parents sign and date a written acknowledgement that they have received the full factual information as described in subsection F 1 and 2 of this section. The written signed acknowledgement shall be placed in the adoptive home file.

H. The licensee shall permit the prospective adoptive parents to decide whether they will accept the child.

I. The licensee shall not use the prospective adoptive parent's decision to refuse to take one child into their home as the sole basis for excluding the prospective adoptive parents from consideration for future placement of other children.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-530. Adoption placement agreement.

A. The licensee who holds custody of a child shall at the time of placement of the child enter into a written agreement for placement with the prospective adoptive family.

B. The placement agreement shall remain in effect until final order of adoption is entered by the court or until the placement ends or disrupts.

C. The adoption placement agreement shall include:

1. The requirements of the foster care agreement specified in 22VAC40-131-280 B and C;

2. A statement that the licensee maintains the legal responsibility to protect the best interests of the child and that the licensee may, with the sanction of the court, remove the child from the prospective adoptive home when removal is determined to be in the best interests of the child;

3. A listing of licensee's responsibilities until the final order of adoption is entered by the court;

4. A listing of the prospective adoptive family's responsibilities the adoptive family will maintain until the final order of adoption is entered by the court; and

5. A statement of services the licensee will provide to the family after the final order is entered, if any services have been agreed upon.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-540. Placements requiring legal risk agreement.

A. The licensee shall require the prospective adoptive parents to sign and date a written statement acknowledging awareness that the valid entrustment agreement may be revoked by either birth parent until:

1. The placed child has reached the age specified in § 63.2-1223 of the Code of Virginia; and

2. The number of days specified in § 63.2-1223 of the Code of Virginia have elapsed since the execution of the valid entrustment agreement.

B. The written acknowledgement statement signed by the prospective adoptive parents shall be maintained in the child's file.

C. Such a direct placement shall be recognized as a foster home placement and a foster home agreement required by this chapter shall be signed by the licensee and the foster parents.

D. The adoptive placement agreement required by this chapter shall not be signed until the child is legally free for adoption.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-550. Adoptive placement of children over one year of age; additional provisions.

A. Except in intercountry adoptions, the licensee shall prepare a child for adoptive placement by involving him in adoption planning, considering his individual needs and concerns, and providing information in a manner the child can understand.

B. The licensee shall document in the child's file the services and contacts provided to the child for adoption preparation including:

1. Discussion about the child's feelings about adoption and identification of indicators that he is ready for the adoptive placement;

2. Discussion regarding the reason he cannot be returned to his birth parents;

3. Discussion about relationships with his social worker, foster family, and prospective adoptive parents;

4. Preplacement visits in his prospective adoptive home. The number of visits shall be determined by the needs of the child and the adoptive family;

5. Efforts to obtain photographs of the child from birth through his current age;

6. The licensee's preparation of a life book for the child;

7. Assessment and services related to the child's attachment and issues of attachment;

8. Assessment of the child's needs for contacts with prior caretakers and birth relatives, including siblings; and

9. Preparation of the adoptive family to receive the child, including expected behaviors and the life-long impact of the child's history.

C. If services to prepare the child for placement were not provided, the licensee shall document the reason the child was not prepared in the child's file.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-560. Parental placement adoption services.

A. Licensees who provide parental placement services shall follow the provisions of §§ 63.2-1230 through 63.2-1240 of the Code of Virginia and policy approved by the state board.

B. In conducting the home study of the prospective adoptive parents, the licensee shall comply with 22VAC40-131-180 and any other requirements specified by the court. The home study shall contain the licensee's recommendation regarding the suitability of the placement.

C. During the home study process, the licensee shall meet at least one time with the birth parents and at least one time with the prospective adoptive parents. The licensee shall obtain the agreement of both parties prior to holding simultaneous meetings.

D. The licensee shall ensure that the birth parents and prospective adoptive parents have exchanged identifying information including full names; addresses; physical, mental, social, and psychological information; and any other information useful in promoting the welfare of the child, unless both parties have agreed in writing to waive the disclosure of full names and addresses.

E. During the meeting with the birth parents, the licensee shall determine that the consent for adoption is informed and not coerced.

F. The licensee shall document in the file that the birth parents are aware of:

1. Alternatives to adoption;

2. Adoption procedures; and

3. Opportunities for placement with other adoptive families.

G. During the meeting with the prospective adoptive parents, the licensee shall determine that the parents' decision to adopt is informed and not coerced and that they intend to file an adoption petition and proceed toward a final order of adoption.

H. The licensee shall document that the prospective adoptive parents have been counseled by a duly authorized child-placing agency about:

1. Alternatives to adoption;

2. Adoption procedures, including the need to address the parental rights of birth parents, the procedures for terminating such rights; and

3. Opportunities for adoption of other children.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-570. Parent-recommended homes for adoptive placements.

When the licensee accepts custody of a child for the purpose of placing the child with adoptive parents recommended by the birth parents or a person other than a licensed child-placing agency or local board, the licensee shall:

1. Provide to the birth parents information about the provisions of parental placement adoption and child-placing agency adoption placements;

2. Allow the informed birth parents to elect which placement provision described in subdivision 1 of this section they desire to apply to their case;

3. Provide the birth parents the opportunity to be represented by independent legal counsel; and

4. Provide the birth parents the opportunity for counseling with a social worker.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-580. Post-placement responsibility for adoptive home placements.

A. The licensee shall ensure that supervisory visits with the child are made in compliance with § 63.2-1212 of the Code of Virginia and, for children in foster care, in compliance with the requirements of policy approved by the Board of Social Services.

1. If the circuit court has not omitted the probationary period, interlocutory order of adoption, or three-visit requirement pursuant to § 63.2-1210 of the Code of Virginia, the licensee shall visit the child at least three times within a period of six months.

2. At least one visit shall be conducted in the home of the petitioners in the presence of the child and both petitioners unless the petition was filed by a single parent or one of the petitioners no longer resides in the home. If one petitioner no longer resides in the home, the licensee shall contact the absent petitioner to determine his interest in remaining involved in the proceedings.

3. The licensee shall ensure that no less than 90 days elapse between the first and last supervisory visits.

4. In accordance with the provisions of § 63.2-1212 of the Code of Virginia, the licensee shall:

a. Document the findings of supervisory visits and after the last supervisory visit formulate a formal written report that includes:

(1) Health and development of the child, including medical and dental care;

(2) The child's adjustment to the family and the relationship of the child to the parents and siblings;

(3) The child's adjustment to day care or school, the child's behavior and special needs, and resources available to meet those needs;

(4) Impact of adoption on the family functioning and the marriage, including discussion of any stress revealed and changes in work and financial status;

(5) Motivation of the petitioners to proceed with the adoption;

(6) The family's readiness to finalize the adoption;

(7) Documentation that the licensee discussed the procedures for finalization of adoption along with information on obtaining a birth certificate and, if appropriate, information on obtaining naturalization; and

(8) Documentation that the licensee offered to provide or refer the child and family to available resources for services after issuance of the final order of adoption. For children with long-standing mental or physical problems, the licensee shall assist in making arrangements for services after the final order;

b. Submit the written report as required to the circuit court, the counsel of record for the parties, and the commissioner; and

c. Document on the court's copy of the report that the copies were served as specified in subdivision 4 b of this subsection, including the date of delivery or mailing.

B. The licensee retains responsibility for protecting the best interests of the child.

1. The licensee shall maintain contact with the child and prospective adoptive family until the final order of adoption is entered.

2. In addition to the visitations required by § 63.2-1212 of the Code of Virginia, the licensee shall visit the child as often as necessary to meet the needs of the child and family.

3. If conditions warrant, the licensee shall proceed to remove the child in accordance with the provisions of § 63.2-904 C of the Code of Virginia.

4. In addition to the legal responsibilities specified in subdivisions 1, 2, and 3 of this subsection, licensees who hold custody of a child shall maintain legal responsibility for the child until the final order of adoption is entered.

C. Except when the adoption has been finalized in another country, the licensee shall document efforts to ensure that the adoption petition is filed. When there is a delay in filing the petition, the licensee shall make an assessment of the situation and conduct visits with the child and family as often as necessary and at least one time quarterly unless the child is in foster care, then the licensee shall conduct monthly face-to-face contacts as required by this chapter.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-590. Intercountry placement adoptions.

A. A licensee who provides assistance to families in arranging placements of children from foreign countries and who works directly with agencies or resources in other countries shall comply with the provisions of this section.

B. The licensee shall make available to its staff and to applicants written information about Virginia's pre-adoptive requirements for intercountry placements and assist the family in determining when these requirements are applicable.

C. The licensee shall make available to its staff and to applicants written information about the requirements of the United States Citizenship and Immigration Services.

D. The licensee shall share directly with the adoptive applicants all available medical, developmental, and social history about the child, the birth family, and extended family, including the child's placement history.

E. The licensee shall request that the adoptive applicants share available information about the child with the licensee when the applicants directly receive medical, developmental, social history, and other information learned about the child, the birth family, and extended family, including the child's placement history. The licensee shall document in the child's file that this request was made.

F. Documentation required by this section shall be filed as follows:

1. In the child's file when the licensee has received custody; or

2. In a separate section of the adoptive applicant's file when the adoptive applicants have received guardianship; and

3. In the adoptive applicant's file when a final decree of adoption has been issued.

G. During the home study process, the licensee shall discuss the following items with the applicants:

1. The risks of adopting a child from another country, including coping with changes in laws in the other country, or changes in fees; issues regarding the legal availability of the child; risks involved with lack of medical, developmental, and other background information on the child; and the placement of another child if the child originally described is no longer available;

2. The time frame for referrals of children and fees specific to adopting a child from another country and the children or youth available from specific countries;

3. The applicant's ability to assume responsibility for and meet the care, guidance, and protection needs of a child from a different race or ethnic background;

4. The applicant's feelings and attitude toward sharing facts about the adoption with the child, including how the applicants plan to provide the child with information about his native country and teach the child about the customs of his native country;

5. The applicant's expectations for children whose living circumstances prior to placement included living in an orphanage or institution, to include the expected behaviors of the child, attachment and bonding issues, and the life-long impact of the child's history on his behaviors;

6. The applicant's ability to provide care for and cope with any issues that may occur related to the child's previous living circumstances;

7. The applicant's understanding of the requirements for post-placement supervision, the importance of supervision in the resolution of any adoption related issues and the applicant's availability to participate in supervision sessions; and

8. The applicant's responsibility for a child when receiving custody or guardianship of a child under the laws of the child's country.

H. If, after completion of the home study for an intercountry adoption, the family decides to pursue an intercountry placement without the assistance of the licensee, the licensee shall document in the applicant's record that the family withdrew from the intercountry program. The licensee shall have no further responsibility to provide services to the applicant and may close the applicant's record.

I. In completing a home study for an intercountry adoption, the licensee shall offer to provide or refer the family for supervision and adoptive family support and preservation services.

J. Prior to any post-placement supervisory visits, the licensee shall make every effort to obtain documentation of a child's legal adoption status, all available medical, developmental, and social history on the child's birth family including the child's placement history. The licensee shall document its efforts to obtain the information in the adoptive parents' file.

K. The licensee shall document in the adoptive parents file that the adoptive parents were:

1. Informed of any known information about the child's legal availability;

2. Encouraged to file an adoption petition;

3. Informed of the need for the adoptive parents to complete the process of the child's naturalization and citizen status through the United States Citizenship and Immigration Service; and

4. Asked to contact the licensee to provide:

a. The date they returned home with the child; and

b. The date the adoption was final in the other country.

L. A licensee that provides adoption services in Hague Adoption Convention cases shall comply with all federal laws regarding convention adoptions, including, the Hague Adoption Convention, the Intercountry Adoption Act of 2000 (Pub. L. No. 106-279 (2000)), and the Department of State regulations on intercountry adoption at 22 CFR Part 96.

M. The licensee shall notify the department when the licensee:

1. Obtains accreditation, temporary accreditation or approval under 22 CFR Part 96;

2. Is denied accreditation, temporary accreditation, or approval under 22 CFR Part 96. The licensee shall make available to the department all documents and materials related to the denial; and

3. After being accredited or temporarily accredited or approved, has had the Department of State or any of its designated accrediting entities take an adverse action against the licensee. The licensee shall make available to the department all documents and materials related to the imposed adverse action.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-600. Interlocutory orders of adoption.

A. If the licensee holds legal custody of the child, the licensee shall file with the court its written consent to an interlocutory order for the proposed adoption.

1. The written consent shall be filed with the petition to the court; and

2. The consent shall be signed under oath and acknowledged before an officer by law to take acknowledgements.

B. Prior to certifying the report of investigation, the licensee shall determine that the requirements set forth in § 63.2-1208 of the Code of Virginia have been met. The licensee shall address each requirement in the investigation report.

C. A notarized statement shall accompany the order stating that the licensee will assume legal responsibility for the child should the placement disrupt prior to the issuance of the final order of adoption.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012.

22VAC40-131-610. Subsequent adoptive placements.

A. When home providers who were approved for adoptive placements request additional adoptive placements, the licensee shall evaluate the home based on the initial home study requirements as specified by 22VAC40-131-180.

B. If the licensee conducted the original home study, the licensee shall conduct two additional visits, one face-to-face interview in the home or office and one face-to-face interview in the home with all current household members living in the home present at the time of the interview.

C. If the original home study was conducted by another child-placing agency:

1. The adoptive applicants shall complete the orientation and training required by 22VAC40-131-210;

2. If the licensee has a copy of the original home study for the applicants, two face-to-face interviews shall be made. If the original home study is not available, a minimum of three face-to-face interviews are required; and

3. The home study shall comply with the requirements of this chapter for the initial adoptive home study.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 10, eff. May 1, 2012; Errata, 28:12 VA.R. 1037 February 13, 2012.

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