Mandatory On-the-Record Indian Child Inquiry and Presumptive ICWA Treatment Pending Due Diligence (Pa.R.O.C.P. 15.24)

1. Introduction

In this rulemaking Order dated July 29, 2026, the Supreme Court of Pennsylvania amended Pa.R.O.C.P. 15.2, 15.7, 15.8, 15.9, 15.10, and 15.13, and adopted an entirely new Pa.R.O.C.P. 15.24 within Chapter XV (adoption and termination-related proceedings). Rather than resolving a dispute between named litigants, the Court acted in its supervisory, procedural rulemaking capacity to standardize practice in Pennsylvania Orphans’ Courts.

The central policy problem addressed is procedural compliance with the Indian Child Welfare Act (25 U.S.C. §§ 1901 et seq.) and implementing federal regulations (25 C.F.R. Part 23), specifically the obligation to ask early in a case whether there is “reason to know” a child is an “Indian child,” to create a record of that inquiry, and to apply ICWA protections where indicated. The amendments also refine requirements concerning verified notice of the opportunity to enter into a post-adoption Contact Agreement under the Adoption Act, and reorganize adoption-hearing practice regarding requests to waive statutory prerequisites.

2. Summary of the Opinion (Order)

  • New definition incorporated into Chapter XV: Rule 15.2(a)(11) defines “Indian Child” and anchors the definition to ICWA and Bureau of Indian Affairs regulations (Comment referencing 25 U.S.C. §§ 1901 et seq. and 25 C.F.R. § 23.2).
  • New Rule 15.24 adopted: The rule mandates an on-the-record inquiry “at the commencement of the initial proceeding to terminate parental rights or to adopt,” requires advisement of participants’ continuing duty to report new information, and requires the court to make a finding whether there is “reason to know” the child is an Indian child.
  • Presumptive ICWA treatment pending verification: If there is “reason to know” but insufficient evidence, the court must confirm “due diligence” and must treat the child as an Indian child until the record supports a determination that the child does not meet the definition.
  • ICWA application once established: If sufficient evidence shows the child is an Indian child, “the notification and rights under the Indian Child Welfare Act shall apply.”
  • Conforming amendments across Chapter XV: Rules 15.7, 15.8, 15.9, 15.10, and 15.13 were amended to require petition averments regarding whether a petitioner has “reason to know” a child is an Indian child and to require the court’s ICWA-related inquiry at hearings, expressly keyed to Rule 15.24.
  • Process clarification for waiving statutory adoption prerequisites: Rule 15.13(e) now separately addresses a “Request for Waiver of Statutory Requirements,” consistent with the Court’s recognition (in the Rule’s Comment) that 23 Pa.C.S. § 2901 permits dispensing with statutory requirements “for cause shown,” and that petitions should not be “dismissed summarily” when waiver is sought.
  • Refinements to Contact Agreement notice practice: Multiple rules adjust verified-statement and notice mechanics (including permissible service methods cross-referencing Pa.R.O.C.P. 15.4) and clarify that the verified statement must identify the date notice was provided, or explain why notice cannot be given.

3. Analysis

3.1. Precedents Cited

The Order’s text cites one judicial precedent in the Commentary to Rule 15.13:

  • In re Adoption of R.B.F. and R.C.F., 803 A.2d 1195, 1202 (Pa. 2002)
    Role in the amendments: The Comment uses this decision to support two linked procedural propositions under 23 Pa.C.S. § 2901: (1) when petitioners cannot satisfy every statutory adoption prerequisite, a petition should not be rejected “summarily,” and petitioners must have an opportunity to show “cause” and that the adoptee’s welfare is served; and (2) where the court is not inclined to waive a requirement, petitioners are “entitled to a hearing” to present evidence supporting the waiver request. The amended structure of Rule 15.13(e) (creating a discrete “Request for Waiver of Statutory Requirements” step) operationalizes this principle by directing the court to decide whether “cause” and welfare have been shown before entry of a decree.

No other case authorities are cited in the provided text; the Order primarily implements statutory and federal regulatory mandates through procedural rules.

3.2. Legal Reasoning

The Order’s reasoning is best understood as a set of interlocking procedural safeguards designed to (a) force early, standardized identification of ICWA implications and (b) create a clear record that the mandated inquiry occurred. Three features are especially consequential:

  1. Front-loading the ICWA inquiry and recording it: Rule 15.24(a)(1) requires inquiry “at the commencement of the initial proceeding,” not later and not only if a party raises the issue. By requiring that “all responses shall be placed on the record,” the rule aims to prevent silent noncompliance and to reduce future disputes about whether the court satisfied the federally expected inquiry reflected in the Comment’s reference to 25 C.F.R. § 23.107.
  2. Imposing a continuing duty to update: Rule 15.24(a)(2) requires the court to advise participants they must report later-acquired information that would provide “reason to know.” This anticipates that ancestry or tribal eligibility information may emerge after filings, and it mitigates the risk that proceedings move forward on an outdated assumption.
  3. Presumptive protection when there is “reason to know” but incomplete proof: Rule 15.24(c)(1) adopts a protective default: if there is “reason to know” but the evidentiary record is insufficient, the court must confirm “due diligence” and must treat the child as an Indian child until the record shows otherwise. This is the Order’s most substantive procedural “rule of decision”: uncertainty does not permit proceeding as if ICWA is irrelevant.

The amendments to Rules 15.7, 15.8, 15.9, 15.10, and 15.13 reinforce Rule 15.24 by embedding ICWA-related prompts in: (i) petition averments (“whether any petitioner has reason to know…”), and (ii) hearing obligations (“the court shall inquire… pursuant to Pa.R.O.C.P. 15.24”). The result is a redundant, cross-checked system: pleadings tee up the issue; hearings must address it; the record must reflect it; and the court must make an explicit finding.

Separately, the restructuring of Rule 15.13(e) reflects a procedural fairness principle referenced via In re Adoption of R.B.F. and R.C.F.: waiver requests under 23 Pa.C.S. § 2901 are not to be treated as a basis for immediate dismissal; they trigger an evaluative process centered on “cause” and the adoptee’s welfare.

3.3. Impact

The Order’s likely effects fall into three categories:

  • Stronger ICWA compliance and a clearer appellate record: By compelling inquiry at the outset and recording responses, Rule 15.24 reduces the chance that ICWA issues are discovered late (or after final decrees) and reduces factual disputes about whether the trial court performed the required inquiry.
  • Procedural “speed bumps” where tribal status is uncertain: The directive to treat the child as an Indian child pending confirmation may require additional diligence and coordination, potentially affecting scheduling and notice practice, but it aligns proceedings with the rule’s protective default once there is “reason to know.”
  • More uniform statewide practice in TPR/adoption filings: The repeated insertion of the “reason to know” averment across different petition types standardizes what lawyers and agencies must plead and what judges must ask, whether the case involves voluntary relinquishment, confirmation of consent, involuntary termination, or adoption.

The Contact Agreement notice refinements also have practical consequences: by emphasizing verified statements, specific dates, and enumerated service methods (including electronic transmission by cross-reference to Pa.R.O.C.P. 15.4), the rules increase the likelihood that notice disputes can be resolved on documentation rather than recollection.

4. Complex Concepts Simplified

“Indian child” (Rule 15.2(a)(11))
A person under 18, unmarried, who is either (1) a member of an Indian tribe, or (2) eligible for membership and the biological child of a member of an Indian tribe.
“Reason to know”
A threshold indicating credible information suggests the child may meet the “Indian child” definition. Under Rule 15.24, it triggers a court finding and—if proof is incomplete—temporary treatment of the child as an Indian child while diligence continues.
“Due diligence” (Rule 15.24(c)(1))
Reasonable, documented efforts to determine whether the child meets the definition (the rule requires the court to “confirm” such diligence when it has reason to know but lacks enough evidence).
ICWA “notification and rights” (Rule 15.24(c)(2))
Once the child is determined to be an Indian child, ICWA-specific procedural protections apply; the Comment points readers to federal regulations including notice requirements (25 C.F.R. § 23.111) and related provisions.
Contact Agreement
A voluntary, court-approved written agreement for post-adoption contact or communication, referenced across the amended rules in connection with statutory notice obligations (e.g., 23 Pa.C.S. § 2733(c)).
Waiver of statutory adoption requirements (Rule 15.13(e)(4); 23 Pa.C.S. § 2901)
The court may dispense with certain Adoption Act requirements “for cause shown.” The amendments emphasize that petitioners should be allowed to explain why a requirement cannot be met and why adoption still serves the adoptee’s welfare, consistent with In re Adoption of R.B.F. and R.C.F..

5. Conclusion

This 2026 Order’s principal doctrinal contribution is procedural but significant: Pennsylvania Orphans’ Courts must conduct an early, on-the-record ICWA inquiry, make an express “reason to know” finding, and—when there is “reason to know” but incomplete evidence—treat the child as an Indian child pending due diligence and a definitive record-based determination. By embedding these duties across termination and adoption rules and by adopting Rule 15.24, the Court promotes uniform compliance with federal ICWA expectations while simultaneously tightening documentation practices for Contact Agreement notices and clarifying the hearing process for statutory-waiver requests under the Adoption Act.