On June 22, 2026, the Pennsylvania House of Representatives passed House Bill 138, proposed legislation that could affect how Pennsylvania courts evaluate parental rights when a parent is incarcerated. If enacted, the bill would amend state laws governing domestic relations and juvenile court proceedings to better protect children with incarcerated parents.
In his sponsor memorandum, Representative Rick Krajewski explained that the number of children having incarcerated parents has “surely increased in the last decade,” while Pennsylvania has not yet enacted legislation aimed at preserving children’s emotional and mental well-being.
Below, KingSpry’s Adoption and Assisted Reproductive Technology Practice Chair and Family Law Attorney, Dorota Gasienica-Kozak, Esq., explains what House Bill 138 would change and what Pennsylvania families should know while the bill continues through the legislative process.
Why This Bill Matters
For children involved in dependency or adoption matters, a parent’s incarceration can raise difficult questions about the child’s stability, permanency, and the parent-child relationship. House Bill 138 intends to address those concerns by making it clear that incarceration should not automatically determine the termination of a parent’s rights.
The sponsor memorandum references a 2011 report regarding the effects of parental incarceration on children. The report recommended legislative changes to mitigate the hardships caused by the unnecessary separation of a child from their parents.
House Bill 138 seeks to implement those recommendations to better meet the needs of children with incarcerated parents. Practically, the bill proposes two key changes to Pennsylvania law:
- A parent’s rights cannot be terminated solely because they are incarcerated; and
- Courts may consider whether an incarcerated parent has made efforts to comply with the family service plan and maintain a meaningful role in their child’s life.
Change 1: Incarceration Cannot be the Sole Basis of Termination
Under the Adoption Act, Pennsylvania courts have the authority to involuntarily terminate a parent’s rights under certain circumstances. This legal process requires the court to consider the parent’s conduct and the child’s developmental, physical, and emotional needs.
The current law already provides that parental rights cannot be terminated solely on the basis of environmental factors, such as “inadequate housing, furnishings, income, clothing and medical care” beyond the parent’s control. If enacted, House Bill 138 would add parental incarceration to that list, provided specific statutory exceptions do not apply.
Change 2: A Parent’s Efforts to Remain Involved Should be Considered
Pennsylvania law also requires courts to review permanency plans for dependent children. A permanency plan is a court-approved case plan that outlines a safe, stable, and permanent living arrangement for a child who has been removed from their home.
In 1988, Pennsylvania enacted the Juvenile Act to conform to the Federal Adoption and Safe Families Act. The purpose of these laws is to mitigate “foster care drift,” which occurs when children are moved from one foster home to another while they wait for their parent to demonstrate their ability to care for the child.
Under the Juvenile Act, if a child has been in a placement for at least 15 of the last 22 months or aggravated circumstances exist, the court must ask whether the county agency has filed or joined a petition to terminate parental rights and move toward adoption. This requirement is intended to help children avoid prolonged uncertainty while in foster care.
However, a county agency is not required to file or join a petition to terminate parental rights in every case. Exceptions may apply when:
- “The child is being cared for by a relative best suited to the physical, mental and moral welfare of the child”;
- “The county agency has documented a compelling reason for determining that filing a petition to terminate parental rights would not serve the needs and welfare of the child”; or
- “The child’s family has not been provided with necessary services to achieve the safe return to the child’s parent, guardian or custodian within the time frames set forth in the permanency plan.”
Under the proposed legislation, parental incarceration exceeding 15 months could qualify as a “compelling reason” not to seek termination of parental rights, particularly when the parent makes efforts to comply with the family service plan and maintain a meaningful role in the child’s life and the termination of parental rights is not otherwise necessary for the welfare of the child.
Key Takeaways for Pennsylvania Families
House Bill 138 passed with significant bipartisan support in the Pennsylvania House of Representatives by a vote of 200-2. The bill now moves on to the State Senate for consideration. Because the bill is not yet law, families should continue following current court orders, family service plans, and permanency plans.
If enacted, House Bill 138 would provide protections for children with incarcerated parents by ensuring that incarceration status alone cannot lead to termination of parental rights. It would also allow courts to consider an incarcerated parent’s efforts to remain involved in their child’s life before deciding whether to terminate their rights and approve a qualified family to adopt their child.
For families navigating dependency, adoption, or termination of parental rights matters, these changes could impact court decisions and permanency planning. Individuals with questions are encouraged to consult with experienced legal counsel to understand how the law may apply to their specific circumstances.
KingSpry’s Adoption and Family Law Practice Groups are monitoring the progress of House Bill 138 and are prepared to assist Pennsylvania families should the bill become law.
If you have questions regarding adoption or assisted reproductive technology, KingSpry’s Adoption/ART Law Group Chair, Dorota Gasienica-Kozak, Esq., is prepared to assist you. Gasienica-Kozak is a fellow of the Academy of Adoption and Assisted Reproduction Attorneys (AAAA), a member of the American Society of Reproductive Medicine (ASRM), a member of SEEDS, a promoter for RESOLVE: The National Infertility Association, and a committee member of the American Bar Association’s Family and ART Law sections.
heARTbeat is a publication of KingSpry’s Adoption and Assisted Reproductive Technology Law Group. These articles are meant to be informational and do not constitute legal advice.
