In Re: J.W.B. & R.D.B., Minors ( 2019 )

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2019 PA Super 214IN RE: J.W.B. AND R.D.B., MINORS : IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: L.B., FATHER
: No. 215 MDA 2019
Appeal from the Decree Entered January 4, 2019
In the Court of Common Pleas of Lycoming County Orphans' Court at
No(s): 6608
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS,* P.J.E.
OPINION BY MURRAY, J.: FILED JULY 12, 2019
L.B. (Father) appeals from the decree terminating his parental rights to
his minor children, J.W.B. (born July 2013) and R.D.B. (born June 2015)
(Children), and confirming his consent to adoption. Father avers that his
consent to adoption was invalid because it did not comply with the laws of
Colorado, where he resides. After careful review, we hold that the trial court
properly applied Pennsylvania law, and further, Father failed to comply with
Pennsylvania law when he attempted to revoke his consent. Accordingly, we
affirm.
A.S. (Mother) and her husband, M.S. (Husband) are residents of
Pennsylvania, where they live with Children. Father is a resident of Colorado.
On June 13, 2018, Mother and Husband filed a petition seeking to confirm
* Former Justice specially assigned to the Superior Court.
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consent to adoption or, in the alternative, to involuntarily terminate Father's
parental rights, and a petition for adoption. See Petition to Confirm Consent,
6/13/18, at 1111 1-13. Previously, on November 27, 2017, Father had signed
a consent, which advised him that his consent was irrevocable unless revoked
within 30 days after execution by delivery of written revocation to the orphans'
court. See Petition to Confirm Consent, 6/13/18, Exhibit A. The consent was
signed by Father and witnessed by Father's girlfriend and father. Id. On
October 17, 2018 and November 28, 2018, the court convened a hearing on
Mother and Husband's petitions.
Mother testified that on September 24, 2017, she had a conversation
with Father in which he stated he wished to relinquish his parental rights, and
asked Mother to speak to her husband about adopting Children. See N.T.,
10/17/18, at 6-7. Father instructed Mother to call Roger Wiest, Esquire, who
assisted Father and Mother during their divorce. Id. at 7. Mother called
Attorney Wiest, who prepared and mailed to Father a consent to adoption for
each child. Id. at 8. Father signed his consent on November 27, 2017. Id.
Mother stated that after texting Father to tell him that she and Husband were
pursuing adoption, she had no further conversations with Father; that
Attorney Wiest told her Father had signed the consent; and that at no point
did Father inform Mother he had changed his mind or that he had submitted
a written revocation. Id. at 11.
Attorney Wiest testified that Mother contacted him regarding the
adoption of Children. N.T., 10/17/18, at 17-18. Attorney Wiest then prepared
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the written consent to adoption, which he sent to Father in Colorado. Id. at
18. Attorney Wiest testified that he did not consider Colorado law at the time
he prepared the documents, as he was of the opinion that, because it was a
Pennsylvania adoption, Pennsylvania law would apply. Id. at 18-19. Further,
Attorney Wiest proceeded with the understanding that Mother and Father had
agreed to the relinquishment and adoption. Id. at 19. At some point in May
2018, Father telephoned Attorney Wiest and stated that he changed his mind
and no longer wished to consent; Attorney Wiest advised Father to retain
separate counsel to proceed further. Id. at 20, 22. However, Attorney Wiest
never received written revocation from Father. Id. at 21-22.
Father called Randall W. Klauzer, Esquire, an attorney licensed in
Colorado, to testify as an expert on parental consent to termination. N.T.,
10/17/18, at 27-28. Specifically, Attorney Klauzer testified that the Colorado
statute requires counseling before a party may consent to the termination of
his parental rights, and additionally, contains restrictions that the
Pennsylvania statute does not. Id. at 31-50. Colorado law requires that
consent be in the form of a sworn statement, and that a copy of the adoption
petition be attached to the consent. Id. Also, Colorado law allows for
revocation of consent prior to the entry of an adoption decree. Id. Attorney
Klauzer thus opined that Father's consent did not conform to Colorado law and
would not be valid and enforceable in Colorado. Id. at 29.
Father testified that he has lived in Colorado since February 2017. N.T.,
10/17/18, at 52. Father acknowledged that he contacted Mother about
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relinquishing his parental rights on September 24, 2017, and about contacting
Attorney Wiest to effectuate Children's adoption in Pennsylvania. Id. at 53-
54. Attorney Wiest sent Father the consent paperwork and advised Father
how to revoke his consent. Id. Father executed the consent on November
27, 2017, and returned it to Attorney Wiest. Id. at 56. Father admitted he
never executed a written revocation. Id. After Mother texted Father to tell
him that the paperwork was complete, and she and Husband would proceed
with adoption, Father called Attorney Wiest and told him that he no longer
wished to relinquish his parental rights. Id. at 64. Father confirmed that
Attorney Wiest told him to obtain a new attorney. Id. Father conceded that
he was aware that the consent he executed required written revocation within
30 days, and that he did not revoke his consent within that time. Id. at 64-
65. Father also claimed that he had been drinking heavily around the time
and had been in rehab. Id. at 65-66.
At the conclusion of the November 28, 2018 hearing, the court held the
matter under advisement. On January 4, 2019, the court issued an opinion
and decree terminating Father's parental rights to Children. Pertinently, the
court rejected Father's claim that Colorado law applied, and held instead that
under Pennsylvania law, Father's attempt to revoke his consent was not valid.
Father filed a notice of appeal and concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Father raises the following issue for our review:
Did the [orphans' court] err in application of 23 Pa.C.S.A. §
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2711(c) by failing to consider the [invalidity] of consents for
adoption under Colorado law, simply because the Colorado
resident Father did not revoke consent within 30 days in
accordance with Pennsylvania law where no such requirement
exists in Colorado and where Colorado law permits revocation of
consent up to and including the date of hearing?
Father's Brief at 2.
We review cases involving the termination of parental rights according
to the following:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill -will. The trial
court's decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted).
The Restatement (Second) of Conflicts of Law § 289, Law Governing
Adoption, states, "A court applies its own local law in determining whether to
grant an adoption." In re Adoption of D., 769 A.2d 508, 510 (Pa. Super.
2001). We have explained:
[This] rule properly recognizes the dominant interest of the forum
state in fixing the prospective adoptive child's status and
relationships. [A] state can only assert original adoption
jurisdiction if it has a significant relationship with the child; indeed,
the UCCJA [Uniform Child Custody Jurisdiction Act] and PKPA
[Parental Kidnapping Prevention Act] are designed to assure that
original jurisdiction is in the state where "the child and his family
have the closest connection." The very same considerations that
permit the exercise of jurisdiction support the use of the law of
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the forum. If a state properly exercises jurisdiction over the
adoption, it should not ordinarily be expected or required to apply
the law of a foreign jurisdiction in deciding the issues.
Id. (quoting In re Adoption of a Child by T.W.C., 270 N.J. Super. 225, 636
A.2d 1083 (1994)).
Applying the above reasoning, this Court concluded that Pennsylvania
had the overriding and continuing interest in establishing a child's status and
relationships. In re Adoption of D., 769 A.2d at 511. Although consent to
adoption was executed in another state, we determined that Pennsylvania law
applied because the parties were aware the adoption would be finalized in
Pennsylvania; the adoptive parents and child resided in Pennsylvania; and the
filing parties chose to avail themselves of the laws of Pennsylvania by filing a
report of their intention to adopt in a Pennsylvania court. Id. We concluded,
"Because [the adopting parents] elected to finalize adoption in Pennsylvania,
it is not feasible or reasonable to subject the most critical and important aspect
of the adoption proceeding, termination of parental rights, to a foreign
jurisdiction, which has less stringent safeguards to the biological parent than
Pennsylvania." Id.Pursuant to the Pennsylvania Domestic Relations Code:1-
[w]hen any child under the age of 18 years has been for a
minimum period of three days in the exclusive care of an adult or
adults who have filed a report of intention to adopt required by
section 2531 (relating to report of intention to adopt), the parent
or parents of the child may petition the court for permission to
relinquish forever all parental rights to their child.
1 23 Pa.C.S.A. §§ 101-8415.
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23 Pa.C.S.A. § 2502(a).
"A party seeking to disturb a termination decree [entered after a consent
to relinquishment] must show that the consent given to terminate parental
rights was not intelligent, voluntary and deliberate." In re M.L.O., 416 A.2d
88, 90 (Pa. 1980). Section 2504 provides an alternative procedure for
relinquishment as follows:
§ 2504. Alternative procedure for relinquishment
(a) Petition to confirm consent to adoption.-If the
parent or parents of the child have executed consents to an
adoption, upon petition by the intermediary or, where there is no
intermediary, by the adoptive parent, the court shall hold a
hearing for the purpose of confirming a consent to an adoption
upon expiration of the time period under section 2711 (relating to
consents necessary to adoption). The original consent or consents
to the adoption shall be attached to the petition.
(b) Hearing.-Upon presentation of a petition filed pursuant
to this section, the court shall fix a time for a hearing which shall
not be less than ten days after filing of the petition. Notice of the
hearing shall be by personal service or by registered mail . . .
Notice of the hearing shall be given to the other parent or parents
. .and to the parents or guardian of a consenting parent who
.
has not reached 18 years of age. The notice shall state that the
consenting parent's .rights may be terminated as a result of
. .
the hearing. After hearing, which shall be private, the court may
enter a decree of termination of parental rights in the case of a
relinquishment to an adult or a decree of termination of parental
rights and duties, including the obligation of support, in the case
of a relinquishment to an agency.
23 Pa.C.S.A. § 2504(a) -(b).
Section 2711 of the Adoption Act2 prescribes the requirements for
2 23 Pa.C.S.A. §§ 2101-2938.
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consent and the procedure and timeframes for the revocation of a voluntary
consent to adoption. 23 Pa.C.S.A. § 2711(a), (c), (d). With regard to the
validity of consent, "a putative father may execute a consent at any time after
receiving notice of the expected or actual birth of the child." 23 Pa.C.S.A. §
2711(c).
This Court has stated:
Section 2711(c) unequivocally states that "[a] consent to an
adoption may only be revoked as set forth in this subsection," and
"[t]he revocation of a consent shall be in writing and shall be
served upon the agency or adult to whom the child was
relinquished." 23 Pa.C.S.A. § 2711(c). Further, "[f]or a consent
to an adoption executed by a birth father or a putative father, the
consent is irrevocable more than 30 days after the birth of the
child or the execution of the consent, whichever occurs later." 23
Pa.C.S.A. § 2711(c)(1)(i) (emphasis added).
In re R.L. , 172 A.3d 665,667 (Pa. Super. 2017).
"An individual may not waive the revocation period[.]" 23 Pa.C.S.A. §
2711(c)(2). Moreover, the statute precludes a challenge to the validity of the
consent to adoption after 60 days following the birth of the child or the
execution of the consent, whichever occurs later, and only upon a petition
alleging fraud or duress. 23 Pa.C.S.A. § 2711(c)(3)(i)(A)-(B).
This Court has held that Section 2711 "renders a consent to adoption
irrevocable more than thirty (30) days after execution," and the unambiguous
language of the statute requires a trial court to consider the timeliness of a
petition to revoke consent before it considers the merits. In re Adoption of
J.A.S., 939 A.2d 403, 408-09 (Pa. Super. 2007). If the revocation is
untimely, the court may not consider the merits of the revocation. Id. The
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language of the statute "plainly provide[s] for time constraints to revoke
and/or challenge the validity of a consent to adoption," and its purpose is "to
afford finality to the adoption process." Id. at 408.
Father argues that 23 Pa.C.S.A. § 2711(c) provides that any consent
given outside of the Commonwealth is valid only if it complies with the law of
the jurisdiction where it was executed. Father's Brief at 5-7. Father asserts
that his consent did not comply with Colorado law, which requires that a
parent complete relinquishment counseling in the county where he resides,
provide certification of same, and give informed consent. Father further
argues that under Colorado law, consent - even after counseling - may be
withdrawn before the adoption hearing and decree. Id. at 5-9 (citing
C.R.S.A.3 § 19-5-103). Thus, Father claims that his consent was void ab initio.
Id. at 5.
Upon review, we hold that the orphans' court properly applied
Pennsylvania law to this case. Mother, Husband, and Children reside in
Pennsylvania, where the petition for adoption was filed. Father was aware the
adoption would occur in Pennsylvania. The consent and petitions complied
with Pennsylvania law. Pennsylvania has an overriding and continuing interest
in establishing Children's status and relationships. See In re Adoption of
D., 769 A.2d at 510. Thus, although Father signed his consent in Colorado,
Pennsylvania law applies. See id.3 Colorado Revised Statutes Annotated.
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Accordingly, it is immaterial whether Father executed his consent in
compliance with the laws of the jurisdiction in which he resided. Father did
not revoke his consent in writing within 30 days of execution, nor did he serve
any written revocation on any party, or challenge the validity of his consent
within 60 days. Rather, Father now attempts to argue, following the
termination of his parental rights, that his consent was invalid under Colorado
law. The consent Father signed conformed to the requirements of 23
Pa.C.S.A. § 2711(d) (referring to contents of consent). Father was informed
that signing would voluntarily and unconditionally allow for the adoption of
Children; he was also informed of the terms for revoking his consent - i.e.,
within 30 days, in writing, and served upon all interested parties. See Petition
to Confirm Consent, 6/13/18, Exhibit A. Therefore, the trial court was
precluded from considering the merits of Father's revocation because Father
did not revoke his consent within the statutorily -prescribed time period. See
Adoption of J.A.S., 939 A.2d at 408-09.
Decree affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 07/12/2019
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