In the Int. of: J.K.L.S., a Minor Appeal of: J.S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.K.L.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.S., MOTHER
No. 1674 MDA 2015
Appeal from the Decree August 31, 2015
In the Court of Common Pleas of Dauphin County
Orphans' Court at No(s): 55-AD-2015
CP-22-DP-0000154-2013
BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 22, 2016
J.S. (Mother) appeals from the order and decree confirming the
adoption of J.K.L.S. (Child), born in November 2013, and terminating
Mother’s parental rights to Child, following Mother’s execution of a Consent
to Adoption.1 See 23 Pa.C.S.A. § 2504 (Alternative Procedure for
Relinquishment).2 Counsel for Mother has filed a motion to withdraw.
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*
Retired Senior Judge assigned to the Superior Court.
1
Mother was unable to identify Child’s father. On February 5, 2015, the
court entered an order finding aggravated circumstances against Unknown
Father pursuant to 42 Pa.C.S.A. § 6302 (identity unknown, could not be
ascertained and parent did not claim child within three months of date child
was taken into custody). See N.T. Hearing, 8/31/15, at 6-7.
2
Section 2504(a) provides:
(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
(Footnote Continued Next Page)
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Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and their
progeny, in lieu of a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.3 After our review, we affirm the trial court’s order and grant
counsel’s petition to withdraw.
Child tested positive for phencyclidine (PCP) at birth. As a result,
Dauphin County Children and Youth Agency (the “Agency”) received a
referral and developed a safety plan, whereby maternal grandmother would
assume responsibility for Child and provide 24-hour supervision of Mother
with Child. On September 28, 2014, Mother executed a Consent to Adoption
pursuant to 23 Pa.C.S.A. § 2711. Three months later, Mother was
sentenced to 14 to 18 months’ incarceration as a result of prior drug
charges. On January 2, 2015, Child was adjudicated dependent and placed
_______________________
(Footnote Continued)
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 periods
under section 2711 (relating to consents necessary to
adoption). The original consent or consents to the adoption
shall be attached to the petition.
3
See Pa.R.A.P. 1925(c)(4) (in criminal case, counsel may file of record and
serve on judge a statement of intent to file Anders/McClendon brief in lieu
of filing Rule 1925(b) Statement); see also Interest of J.T., 983 A.2d 771(Pa. Super. 2009) (holding Anders procedure set forth in Rule 1925(c)(4) is
proper in termination of parental rights case). Counsel has complied with
the requirements of Anders/MClendon, as well as Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); see also Commonwealth v. Daniels,
999 A.2d 590, 593 (Pa. Super. 2010).
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in the custody of the Agency. Child remained with maternal grandmother,
who is a permanent resource.
On July 24, 2015, the Agency filed a Petition to Confirm Consent to
Adoption and a Petition for Goal Change to Adoption and Involuntary
Termination of Mother’s Parental Rights. The court held a hearing on August
31, 2015, and, thereafter, entered an order granting the Agency’s petitions.
On appeal, Mother claims the trial court erred in not finding that Mother had
revoked her consent to adoption.
When reviewing an order terminating parental rights, our scope of
review is comprehensive: we consider all the evidence presented as well as
the trial court's factual findings and legal conclusions. In re L.M., 923 A.2d
505, 511 (Pa. Super. 2007). However, our standard of review is narrow:
we will reverse the trial court’s order only if we conclude that the trial court
abused its discretion, made an error of law, or lacked competent evidence to
support its findings. The trial judge’s decision is entitled to the same
deference as a jury verdict. Id. See also In re M.G., 855 A.2d 68, 73–74
(Pa. Super. 2004).
Section 2711(c) provides in relevant part:
(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 an
adoption may only be revoked as set forth in this
subsection. The revocation of a consent shall be in writing
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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.
(ii) For a consent to an adoption executed by a
birth mother, the consent is irrevocable more than
30 days after the execution of the consent.
(2) An individual may not waive the revocation
period under paragraph (1).
(3) Notwithstanding paragraph (1), the following apply:
(i) An individual who executed a consent to an
adoption may challenge the validity of the consent
only by filing a petition alleging fraud or duress
within the earlier of the following time frames:
(A) Sixty days after the birth of the child or the
execution of the consent, whichever occurs later.
(B) Thirty days after the entry of the adoption
decree.
(ii) A consent to an adoption may be invalidated only if
the alleged fraud or duress under subparagraph (i) is
proven by:
(A) a preponderance of the evidence in the case
of consent by a person 21 years of age or
younger; or
(B) clear and convincing evidence in all other
cases.
23 Pa.C.S.A. § 2711(c) (emphasis added).
At the hearing on the Agency’s petitions, caseworker Kelly Colbey
testified that Mother signed the Consent to Adoption on September 18,
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2014, prior to her incarceration. N.T. Hearing, 8/31/15, at 5-8. Colbey
testified that she received no communication from Mother within 30 days of
September 18, 2014, that would indicate an intention to revoke consent.
Id. at 6.
Mother testified at the hearing by telephone. She stated that when
her caseworker came to visit her at Dauphin County Prison, she “told her I
didn’t want to go through with that[.]” N.T. Hearing, 8/31/15, at 10.
However, this was well after the 30-day period expired on October 18, 2014,
since Mother was not incarcerated until late December 2014. See 23
Pa.C.S.A. § 2711(c)(1)(i). Further, Mother testified on cross-examination
that she wrote a letter to her caseworker seeking to revoke consent and
work toward reunification, but acknowledged that this was about ten months
after she had signed the Consent to Adoption. N.T. Hearing, 8/31/15, at 12-
13.
Section 2711(c)(1)(ii) explicitly states that for a consent to an
adoption executed by a birth mother, “the consent is irrevocable more than
30 days after the execution of the consent.” 23 Pa.C.S.A. § 2711(c)(1)(ii).
As Mother has not alleged or proven fraud or duress, and has not revoked
her consent, in writing, within 30 days of the consent, Mother has not
complied with the requirements to revoke consent. We find no error or
abuse of discretion. L.M., supra.Order and decree affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/2016
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