In the Int. of: D.S.W., Appeal of: D.J.W ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.S.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.J.W., FATHER : No. 780 EDA 2020
Appeal from the Decree Entered February 4, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000830-2019
IN THE INTEREST OF: D.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.J.W., FATHER : No. 781 EDA 2020
Appeal from the Order Entered February 4, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0002152-2018
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 16, 2020
In November of 2019, D.J.W. (“Father”) signed a form voluntarily
relinquishing his parental rights to D.S.W. (“Child”), his adopted son. The
court informed Father and his counsel that he had thirty days to rescind his
voluntary relinquishment of parental rights. Father now appeals from the order
entered February 4, 2020, that changed the permanent placement goal for
Child to adoption and the decree, entered the same day, that terminated his
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parental rights to Child. In addition, Father’s counsel has filed a petition to
withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful
review, we grant the petition to withdraw and affirm.
The record reveals that the Philadelphia Department of Human Services
(“DHS”) filed a dependency petition regarding Child on September 20, 2018.
DHS averred that it had received a report alleging that Father and Child were
not getting along; that Child was getting into trouble at school; that Child was
fighting, stealing, and accumulating bills by purchasing “inappropriate sexual
videos;” and that Father told Child he would need to find somewhere else to
live. Dependency Petition, 9/20/18, at ¶ 5b. The report further alleged that
Child left Father’s home and went to live with his adult sibling, K.D., who was
willing to care for Child but needed custody in order to enroll him in school
and provide him with medical care. See id. DHS averred that it attempted
to visit Father at his home but was unable to do so because he did not answer
the door. See id. at ¶ c-e. The trial court entered an order adjudicating Child
dependent and placing him with K.D. on October 4, 2018.
On November 5, 2019, DHS filed petitions to terminate Father’s parental
rights to Child involuntarily, and to change Child’s permanent placement goal
from return to parent or guardian to adoption. The trial court held a hearing
on November 21, 2019, during which it discussed with the parties Father’s
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apparent desire to terminate his parental rights to Child voluntarily. The court
recessed the hearing so that Father could sign the necessary documentation.
After the hearing reconvened, Father’s counsel conducted a colloquy of
Father on the record. Father confirmed that he understood the
documentation, that his counsel answered all of his questions, that he signed
voluntarily, that no one had promised him anything in return for his signature,
and that he did not sign under duress. See N.T., 11/21/19, at 10-11. The
court then conducted a permanency review hearing and scheduled a
subsequent hearing to address the voluntary termination of Father’s rights.
DHS filed a petition to confirm Father’s consent to Child’s adoption on
November 27, 2019. In addition, that same day, Father and DHS filed a joint
petition to relinquish Father’s parental rights to Child voluntarily.
The trial court conducted its subsequent hearing on February 4, 2020.
During the hearing, Father’s counsel asked him whether he would be willing
to proceed with the voluntary termination of his parental rights to Child, and
Father responded, “I guess [I] have no other choice.” N.T., 2/4/20, at 6-7.
The court announced that it would terminate Father’s rights and entered a
decree memorializing its decision.1 The court also entered a permanency
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1 The trial court’s decree indicated that Father relinquished his parental rights
to Child voluntarily, and that DHS withdrew its petitions to terminate Father’s
rights involuntarily and to confirm his consent to Child’s adoption.
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review order changing Child’s permanent placement goal to adoption.2 Father
timely filed notices of appeal on March 3, 2020, along with concise statements
of errors complained of on appeal. Father’s counsel filed a petition to withdraw
and Anders brief in this Court on May 26, 2020.
We begin with a discussion of counsel’s petition to withdraw and Anders
brief. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)
(“When faced with a purported Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.”) (citation and quotation marks omitted). Anders requirements
apply when appointed counsel seek to withdraw from an appeal from an order
terminating parental rights. See In re S.M.B., 856 A.2d 1235, 1237 (Pa.
Super. 2004).
To withdraw pursuant to Anders, counsel must comply with the
following requirements:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
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2 Our review of the record reveals that the trial court entered two permanency
review orders purporting to change Child’s goal, the first on November 21,
2019, and the second on February 4, 2020. It appears that the court did not
intend to change Child’s goal on November 21, 2019, and that the inclusion
of a goal change provision in the court’s order was a simple mistake, because
the court stated at the conclusion of the hearing on November 21, 2019, that,
if Father did not terminate his parental rights to Child voluntarily, “then at the
next listing you will have a contested goal change, all right.” N.T., 11/21/19,
at 12.
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or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (internal citation omitted). Counsel must provide this Court with a copy
of the letter advising the appellant of his or her rights. See Commonwealth
v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, our Supreme Court has set forth the following requirements
for Anders briefs:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
In the instant matter, counsel’s Anders brief includes a summary of the
facts and procedural history of this case, a list of issues that could arguably
support Father’s appeal, and counsel’s assessment of why those issues are
frivolous, with citations to the record and relevant legal authority. Counsel
also provided this Court with a copy of her letter to Father, advising him of his
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right to obtain new counsel or proceed pro se.3 Therefore, counsel has
complied substantially with the requirements of Anders and Santiago, and
we may proceed to review the issues outlined in her brief. In addition, we
must “conduct an independent review of the record to discern if there are any
additional, non-frivolous issues overlooked by counsel.” Commonwealth v.
Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) (footnote omitted).
Counsel’s Anders brief identifies the following issues for our review:
1. Whether the trial court committed reversible error, when it
voluntarily terminated Father’s parental rights, where Father felt
that he didn’t understand what he was signing nor did he
understand how to revoke his voluntary relinquishment of his
parental rights[?]
2. Whether the trial court committed reversible error, when it
voluntarily terminated Father’s parental rights when Father
wanted to revoke his relinquishment of his parental rights[?]
3. Whether the trial court committed reversible error, when it
voluntarily terminated [F]ather’s parental rights when Father felt
forced to sign the voluntary relinquishments of his parental
rights[?]
Anders Brief at 6.
These issues are interrelated, so we will address them together. Our
standard of review is as follows:
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3 While counsel’s letter to Father informed him that he had the right to retain
new counsel or proceed pro se, it did not specify that he could raise additional
arguments he deemed worthy of this Court’s attention. See Cartrette, 83
A.3d at 1032. Nonetheless, because counsel’s letter indicates that she
provided Father with a copy of her Anders brief, and because counsel’s brief
references Father’s ability to raise additional arguments before this Court, we
conclude that counsel sufficiently apprised Father of his rights.
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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 and quotation marks
omitted).
Here, we note there is some ambiguity in the record as to the statutory
authority employed by the trial court. We therefore begin our analysis by
setting forth the two alternative procedures by which Father could have
voluntarily terminated his parental rights. First, he could have filed a petition
to relinquish his parental rights pursuant to Section 2501 of the Adoption Act,
which provides as follows:
(a) Petition.--When any child under the age of 18 years has been
in the care of an agency for a minimum period of three days or,
whether or not the agency has the physical care of the child, the
agency has received a written notice of the present intent to
transfer to it custody of the child, executed by the parent, the
parent or parents of the child may petition the court for permission
to relinquish forever all parental rights and duties with respect to
their child.
(b) Consents.--The written consent of a parent or guardian of a
petitioner who has not reached 18 years of age shall not be
required. The consent of the agency to accept custody of the child
until such time as the child is adopted shall be required.
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23 Pa.C.S.A. § 2501.4
Alternatively, he could have signed a consent to Child’s adoption, and
DHS or an adoptive parent would then file a petition to confirm that consent.
This procedure is set forth at Section 2504 of the Adoption Act, which provides
as follows, in relevant part:
(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 periods 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 or by
such other means as the court may require upon the consenter
and shall be in the form provided in section 2513(b) (relating to
hearing). Notice of the hearing shall be given to the other parent
or parents, to the putative father whose parental rights could be
terminated pursuant to subsection (c) 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 or
putative father’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.
***
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423 Pa.C.S.A. § 2502 is similar to Section 2501, except that it provides for
voluntary relinquishment to an adult intending to adopt the child.
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23 Pa.C.S.A. § 2504(a)-(b).
As noted, there is a discrepancy in the certified record on appeal here.
In its decree, the trial court indicated that Father relinquished his parental
rights to Child voluntarily, and that DHS withdrew the petitions to confirm
Father’s consent and to terminate his rights involuntarily. This suggests that
the court terminated Father’s rights pursuant to Section 2501. However, the
court’s statements, at the conclusion of the hearing on February 4, 2020, and
in its opinion, indicate that it intended to terminate Father’s rights pursuant
to Section 2504. The court explained at the hearing that Father “signed
voluntary relinquishments” and did not revoke his signature within thirty days.
N.T., 2/4/20, at 7. In its opinion, the court relied on Section 2504 explicitly.
Trial Court Opinion, 5/21/20, at 5-7 (“Father voluntarily relinquished his
parental rights to Child by signing consents to Child’s adoption, pursuant to
23 Pa.C.S.A. §[]2504 . . . .”). We conclude, therefore, that the court’s
statement in its decree that DHS withdrew the petition to confirm Father’s
consent was a simple mistake or typographical error, and that the court
intended to grant the petition to confirm Father’s consent pursuant to Section
2504, rather than the voluntarily relinquishment petition pursuant to Section
2501.
We therefore analyze whether the trial court properly terminated
Father’s parental rights pursuant to Section 2504. Section 2711 of the
Adoption Act provides the relevant time periods for the Section 2504
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procedure, as well as the requirements that a consent must meet to be valid.
Of particular relevance to this appeal, Section 2711(c)(1)(i) provided that
Father’s consent to Child’s adoption would become irrevocable if he did not
revoke it in writing within thirty days of its execution, while Section
2711(c)(3)(i)(A) provided that Father could challenge the validity of his
consent by filing a petition alleging fraud or duress within sixty days of its
execution:
(c) Validity of consent.--. . . . A consent to 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.
***
(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
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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.
(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:
I hereby voluntarily and unconditionally
consent to the adoption of the above
named child.
I understand that by signing this consent
I indicate my intent to permanently give
up all rights to this child.
I understand such child will be placed for
adoption.
I understand I may revoke this consent to
permanently give up all rights to this child
by placing the revocation in writing and
serving it upon the agency or adult to
whom the child was relinquished.
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If I am the birth father or putative father
of the child, I understand that this consent
to an adoption is irrevocable unless I
revoke it within 30 days after either the
birth of the child or my execution of the
consent, whichever occurs later, by
delivering a written revocation to (insert
the name and address of the agency
coordinating the adoption) or (insert the
name and address of an attorney who
represents the individual relinquishing
parental rights or prospective adoptive
parent of the child) or (insert the court of
the county in which the voluntary
relinquishment form was or will be filed).
If I am the birth mother of the child, I
understand that this consent to an
adoption is irrevocable unless I revoke it
within 30 days after executing it by
delivering a written revocation to (insert
the name and address of the agency
coordinating the adoption) or (insert the
name and address of an attorney who
represents the individual relinquishing
parental rights or prospective adoptive
parent of the child) or (insert the court of
the county in which the voluntary
relinquishment form was or will be filed).
I have read and understand the above and
I am signing it as a free and voluntary act.
(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.
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(3) In lieu of two witnesses a consent may be
acknowledged before a notary public.
23 Pa.C.S.A. § 2711(c)-(d).
Importantly, our Supreme Court clarified the Section 2504 procedure in
a recent decision, In re J.W.B., No. 93 MAP 2019, 2020 WL 3456626 (Pa.,
filed June 16, 2020). The Court explained that the purpose of a hearing to
confirm a parent’s consent is not merely to determine whether he or she has
attempted to revoke the consent, or filed a petition challenging its validity,
within the relevant time periods. Rather, the trial court must also “review the
consents and consider any and all arguments raised by the parties challenging
their conformity with the Adoption Act.” Id. at *8. The Supreme Court
observed, for example, that Section 2711(d) “includes an exhaustive list of
the information that must be included in the consent document,” and
explained that a parent may challenge the absence of such information even
after the relevant time periods expire. Id. (“The specific provisions of Section
2711, including in particular the time limitations for revocation or a validity
challenge based upon fraud or duress, are premised on the execution of a
consent that complies with the legislature’s statutory requirements.”).
Our review of the record in this case and the relevant law supports the
trial court’s decision to terminate Father’s parental rights to Child. The court
explained its decision in its opinion as follows:
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On November 21, 2019, a goal change hearing was held for Child.
At this hearing, Former Counsel[5] indicated to the trial court that
Father, who was present for the hearing, wanted to voluntarily
relinquish his parental rights to Child. Upon discovery of Father’s
wishes, the trial court informed Father that the hearing would be
paused to allow Father to review the petition for voluntary
relinquishment and the consent to adoption. The trial court
recalled the matter approximately forty-five minutes after the
hearing was placed on hold. When the hearing was recalled,
Former Counsel indicated that Father signed [the] petition to
voluntarily relinquish his parental rights and the consent to
adoption. Former Counsel subsequently colloquied Father. Father
indicated that he reviewed the petition for voluntary
relinquishment of parental rights. Father indicated that he can
read, write, and understand the English language. Father
acknowledged his signature [on] the petition for voluntary
relinquishment of parental rights, his signature regarding
verification, and his signature consenting to the adoption. Father
indicated that he completed twelfth grade. Father indicated that
he was not under the influence of any drugs or alcohol, nor that
he was under any impairment that kept him from understanding
the petition for voluntary relinquishment of parental rights. When
asked if Father understood the petition for voluntary
relinquishment of parental rights, Father stated “I understand it
perfectly.” Father indicated that he had presented Former
Counsel with any questions he had, and Former Counsel answered
those questions. Father indicated he provided his signature
voluntarily and was not promised anything in return for his
signature. Former Counsel asked Father if he was under duress
to sign the document and Father’s response was “not at all.” The
trial court determined that Father signed the petition for voluntary
relinquishment of parental rights and consent to adoption
voluntarily, knowingly, and intelligently. The trial court held the
decision regarding Child’s goal change and involuntary
termination of parental rights in abeyance. The trial court stated:
“[Father], since you signed today, if you need to revoke your
signature, you would have to do it in writing and would have to
do it prior to the thirty days expiration and you would have to give
it to your attorney and you also have to give it to the social worker,
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5The trial court granted the request to withdraw of Father’s former counsel
on April 20, 2020, and appointed new counsel to represent Father during this
appeal.
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okay.” Father was instructed of the procedure on revoking his
signature by the trial court. The next hearing for Child was held
on February 4, 2020, and Father was present for the hearing. This
hearing was held seventy-six days after the hearing on November
21, 2019. At this hearing, Former Counsel asked Father i[f] he
was willing to proceed with the voluntary termination of parental
rights, and Father’s response was, “I guess I have no other
choice.” Neither Father nor Former Counsel indicated that Father
wanted to revoke his voluntary relinquishment and there was no
indication Father attempted to revoke within thirty days of
November 21, 2019. Since Father failed to revoke his signature
within thirty days, the consent to adoption that Father signed is
irrevocable. Additionally, to date, Father did not challenge the
validity of the signed consent by filing a petition alleging fraud or
duress. Father also did not allege any fraud or duress at either
hearing on November 21, 2019, or February 4, 2020. Within thirty
days of the signing of the consent to adoption, Father failed to
indicate that the consent given was not intelligent, voluntary, or
deliberate. The trial court determined that Father’s testimony at
the November 21, 2019 [hearing,] regarding his signature on the
consent to adoption was given voluntarily, knowingly, and
intelligently. As a result, the trial court did not err or abuse its
discretion by determining that Father voluntarily, knowingly, and
intelligently signed the petition for voluntary relinquishment of
parental rights and consent to adoption, and did not revoke his
signature within thirty days, effectively voluntary relinquishing his
parental rights to Child and consenting to Child’s adoption.
Id. at 6-7 (citations to the record omitted) (footnote omitted).
As the trial court explained, the record demonstrates that Father signed
a consent to adoption on November 21, 2019, and that he did not attempt to
revoke it within thirty days. Thus, Father’s consent was irrevocable pursuant
to Section 2711(c)(1)(i). There is also no indication in the record that Father
attempted to challenge the validity of his consent by filing a petition alleging
fraud or duress within sixty days pursuant to Section 2711(c)(3)(i)(A).
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Moreover, we have reviewed the consent to adoption that Father signed
mindful of our Supreme Court’s decision in J.W.B., and have confirmed that
it complied with the requirements of Section 2711. Our review reveals that
the consent contained all of the information specified in Section 2711(d) and
we have uncovered nothing suggesting that Father’s decision to sign was not
voluntary, knowing, and intelligent. Father affirmed at the time he signed the
consent that he understood what he had signed, that his counsel answered all
of his questions, that he signed voluntarily, that no one promised him anything
in return for his signature, and that he did not sign under duress. See N.T.,
11/21/19, at 11. Accordingly, the trial court did not commit an abuse of its
discretion or an error of law by terminating Father’s parental rights to Child
voluntarily pursuant to Section 2504, and we affirm the court’s February 4,
2020 decree.
We also affirm the trial court’s February 4, 2020 order changing Child’s
permanent placement goal from return to parent or guardian to adoption. In
light of our decision to affirm the court’s termination decree, any challenge to
the goal change order would be moot. In the Interest of D.R.-W., 227 A.3d
905, 917 (Pa. Super. 2020) (“[E]ven if Father had not waived his goal change
claim, it would be moot in light of our decision to affirm the court’s termination
decrees.”).
Therefore, because our independent review of Father’s claims
demonstrates that they do not entitle him to relief, and because our review of
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the record does not reveal any non-frivolous issues that Father’s counsel
overlooked, we grant counsel’s petition to withdraw and affirm the February
4, 2020 voluntary termination decree and goal change order.
Petition to withdraw granted. Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2020
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