In Re: J.W.B. & R.D.B., Minors Apl of: L.B. ( 2020 )

[J-5-2020] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: J.W.B. AND R.D.B., MINORS : No. 93 MAP 2019
:
: Appeal from the Order of Superior
APPEAL OF: L.B., FATHER : Court at No. 215 MDA 2019 dated
: July 12, 2019, Reconsideration
: Denied August 29, 2019, Affirming
: the Decree dated January 4, 2019 by
: the Lycoming County Court of
: Common Pleas, Orphans' Court
: Division, at No. 6608.
:
: ARGUED: March 10, 2020
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT DECIDED: June 16, 2020
I respectfully dissent.1
Section 2711 states, in pertinent part:
(a) General rule.--Except as otherwise provided in this part, consent to an
adoption shall be required of the following:
* * *
(3) The parents or surviving parent of an adoptee who has not
reached the age of 18 years.
* * *
(c) Validity of consent.--No consent shall be valid if it was executed prior
to or within 72 hours after the birth of the child. A putative father may
execute a consent at any time after receiving notice of the expected or
actual birth of the child. Any consent given outside this Commonwealth
shall be valid for purposes of this section if it was given in accordance
with the laws of the jurisdiction where it was executed. A consent to
1 I concur in the Majority’s conclusion that the Superior Court erred in disregarding
Father’s challenge to the validity of his consent because it was raised outside of the time
limits imposed by 23 Pa.C.S. § 2711. I disagree with the Majority’s decision to validate
Father’s consent nonetheless.
an adoption may only be revoked as set forth in this subsection. The
revocation of a consent shall be in writing and shall be served upon the
agency or adult to whom the child was relinquished. The following apply:
(1) Except as otherwise provided in paragraph (3):
(i) For 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.
* * *
(d) Contents of consent.--
(1) The consent of a parent of an adoptee under 18 years of age
shall set forth the name, age and marital status of the parent, the
relationship of the consenter to the child, the name of the other
parent or parents of the child and the following:
* * *
(2) The consent shall include the date and place of its execution
and names and addresses and signatures of at least two persons
who witnessed its execution and their relationship to the
consenter. The consent of an incarcerated parent of an adoptee
may be witnessed by a correctional facility employee designated
by the correctional facility. Any consent witnessed by a
correctional facility employee shall list the address of the
correctional facility on the consent.
(3) In lieu of two witnesses a consent may be acknowledged
before a notary public.
Id. (emphasis added).
Many will find the above-highlighted language highly unfortunate and inconvenient
as applied to this particular case. I am among them. But there it is. Our mission is clear.
We are to apply the statute, not to fix it. “‘[W]hen the language of a statute is plain and
unambiguous and conveys a clear and definite meaning,’ we must give the statute this
plain and obvious meaning.” Cagey v. Commonwealth, 179 A.3d 458, 462-63 (Pa. 2018)
(quoting Mohamed v. Commonwealth Dep’t of Transp., 40 A.3d 1186, 1194 (Pa. 2012)).
Consternation justifiably may abound here, but there is no ambiguity. The plain language
[J-5-2020] [MO: Donohue, J.] - 2
of subsection 2711(c) provides that, if a consent is obtained outside of the
Commonwealth, it will be deemed valid if it is executed in accordance with the law of the
jurisdiction in which it is given. In this case, that jurisdiction is Colorado.
Plainly, as the Children’s home state, Pennsylvania has the greater interest in their
well-being. Yet, in cases when a birth parent gives putative consent to adoption while
outside of Pennsylvania, our General Assembly has chosen to import the law of that
jurisdiction to determine the validity of that consent. If the consent is not in compliance
with that jurisdiction’s law, then the consent is void ab initio. Like it or not, by statutory
command, that means that there is no consent. And if there is no consent, then there is
no consent to which the statutory time periods can or will apply.
The Majority chooses to find that the statute provides for an alternate means of
determining whether a consent is valid. According to the Majority, to be valid pursuant to
Section 2711, a consent must be executed either in accordance with Pennsylvania law
or in accordance with the law of the jurisdiction in which the consent is obtained. This
might be a salutary amendment. But we cannot make it. Statutory repairs and
improvements lie beyond our powers. If the General Assembly wished to provide
alternatives, it easily could have said so in the statute. If the Majority’s wishes were the
legislature’s intent, subsection 2711(c) would read, “Any consent given outside this
Commonwealth shall be valid for purposes of this section if it was given in accordance
with the laws of the jurisdiction where it was executed or in accordance with subsection
(d).” It would be that simple. But the General Assembly did not do so. The plain language
of the statute refers only to the law of the other jurisdiction. Perhaps the legislators will
fix the problem tomorrow. Perhaps not. We may not do their work for them in the
meantime.
[J-5-2020] [MO: Donohue, J.] - 3
The Majority posits that subsection 2711(c) provides for the validity of a consent
obtained in another jurisdiction to be measured by that jurisdiction’s law because a parent
in another jurisdiction may be unware of what Pennsylvania requires for a valid consent
or because the parent may be unaware that the parent’s home jurisdiction’s law would
not apply. Maj. Op. at 20. Those may be good reasons to provide for importing the law
from that other jurisdiction in determining the validity of a consent. But those reasons do
not support the Majority’s contention that Section 2711 provides for alternative methods
of determining validity of consent. The plain language of the statute does not provide for
alternative methods. Instead, a consent obtained outside Pennsylvania is valid when
(and only when) it complies with the law of that jurisdiction.
Section 2711 does not import the entirety of the adoption law of another
jurisdiction. The unambiguous language of the statute demonstrates that the General
Assembly was concerned with other jurisdictions’ laws only for purposes of determining
the validity of the consent. See 23 Pa.C.S. § 2711(c) (“Any consent given outside this
Commonwealth shall be valid for purposes of this section if it was given in accordance
with the laws of the jurisdiction where it was executed.”).2
The trial court heard testimony about the requirements of Colorado law. Yet it
made no findings as to whether that testimony was credible, nor did it determine what
weight that testimony was to be given. Instead, it focused upon the timing of Father’s
challenge to consent. Though I agree with the Majority that the timing is not
determinative, I am bound by statute to hold that Father’s consent must comply with
2 The Majority cites Colorado law to indicate that Colorado itself would only apply its
adoption law if the child to be adopted is a Colorado resident or is present in the state at
the time the consent is executed. See Maj. Op. at 20 n.7 (citing C.R.S.A. § 19-5-103(12)).
That is beside the point. Whether Colorado would or would not apply its law to this case
is not relevant since our General Assembly provided only that, for present purposes,
Colorado law governs whether the consent was valid.
[J-5-2020] [MO: Donohue, J.] - 4
Colorado law in order to be valid. I would remand to the trial court to make the required
findings in the first instance.
[J-5-2020] [MO: Donohue, J.] - 5