In Re: Adoption of S.Y., a Minor ( 2021 )

J-A16035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF S.Y., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.S., MOTHER :
:
:
:
:
: No. 241 MDA 2021
Appeal from the Order Entered January 19, 2021
In the Court of Common Pleas of Lebanon County Orphans’ Court at
No(s): 2019-407
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 21, 2021
Appellant, T.S. (“Biological Mother”), files this appeal from the Order
dated January 15, 2021, and entered January 19, 2021, in the Lebanon
County Court of Common Pleas declining to: approve immediately a Post-
Adoption Contact Agreement (“PACA”) pursuant to 23 Pa.C.S.A. § 2735;
enforce immediately the PACA pursuant to 23 Pa.C.S.A. § 2738 and; declare
the PACA null and void as to her biological son, S.Y. (“Child”).1, 2 After review,
we quash Biological Mother’s appeal.
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* Former Justice specially assigned to the Superior Court.
1 Upon adoption, Child’s name was changed to J.S. Notes of Testimony
(“N.T.”), 6/16/20, at 70; Decree, 9/10/19, at ¶ 2.
2 The trial court’s Order pertained to the PACA as to both Biological Mother
and Child’s biological grandmother, R.S. (“Biological Maternal Grandmother”).
Notably, Biological Maternal Grandmother did not file a separate appeal. She
(Footnote Continued Next Page)
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The trial court summarized the relevant factual history as follows:
[Child] was born [in July 2013]. He lived for about four (4)
months with [his biological mother and father].[3] On December
17, 2013, [Child] was hospitalized with intercranial bleeding,
subdural hemorrhage, subarachnoid hemorrhage and significant
bilateral retinal hemorrhage. Court-appointed expert Virginia
Murphy stated that [Child] suffered “abusive head trauma
secondary to shaken baby syndrome.” [Child]’s injuries were life-
threatening.
[Child] remained hospitalized between December 17, 2013
and January 1, 2014. He was then transferred to a rehabilitation
facility, where he remained until February 12, 2014. Because of
the abusive nature of [Child]’s injuries, Delaware County Children
and Youth Services (Delaware CYS) took emergency custody of
[Child]. Eventually, Delaware CYS “indicated” findings of the
abuse against both [Child’s biological mother and father].
On February 12, 2014, Delaware CYS placed [Child] in foster
care with [A.S. (“Adoptive Mother”)] following his release from the
Penn State Children’s Rehabilitation Hospital. According to an
April 11, 2019 Intermediary Report, Delaware CYS chose not to
place [Child] with his maternal grandparents “due to his needs
being too overwhelming for them.” For about four (4) years,
[Child] remained in the custody of [Adoptive Mother]. However,
the official Delaware CYS plan for [Child] remained reunification
with his [biological] mother.
During mid-2018, Delaware CYS changed its goal plan for
[Child] from reunification to adoption. . . .
The Delaware County Court of Common Pleas scheduled a
hearing regarding termination of parental rights for October 26,
2018. [Child’s biological father] neither appeared nor contested
the termination of his rights. However, [Biological Mother] and
her mother, [Biological Maternal Grandmother,] did appear and
expressed a desire to oppose the termination of [Biological
____________________________________________
did, however, submit a brief to this Court in favor of enforcement of both
PACAs executed in this matter.
3 Child’s biological father, R.Y., is not a participating party to the instant
appeal.
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Mother]’s rights. . . . An agreement was brokered that [Adoptive
Mother] could proceed with the adoption. However, both
[Biological Mother] and [Biological Maternal Grandmother] would
retain the ability to have post-adoption contact with [Child].
On October 26, 2018, [Adoptive Mother] and [Biological
Mother] entered a voluntary [PACA]. [Adoptive Mother] also
entered a similar agreement with [Biological Maternal
Grandmother]. Both of the agreements called for continuing
contact between [Child] and his biological family. However, both
agreements also contained the following language:
“If at any time a mental health professional who is
providing services to [Child] advises a change in the
visitation, then the visits according to this agreement
will occur in accordance with any recommendations
made by that mental health professional who is
treating [Child].”
(Paragraph 4(j) of agreement.)
On the same date the [PACA] was signed, the Delaware
County Court of Common Pleas entered a decree of voluntary
relinquishment. Custody of [Child] was remanded to Delaware
CYS pending an adoption. The decree authorized Delaware CYS
to give consent to the adoption of [Child] “without further consent
of or notice to the aforesaid parent.”
There was a disagreement about whether the [PACA] was
presented to the Delaware County Court. Both [Biological Mother]
and [Biological Maternal Grandmother] testified that the Delaware
County Court received and approved the [PACA]. [Adoptive
Mother] denied that this occurred.[4] Nothing in any of the
documents provided by the Delaware County Court to Lebanon
County included the [PACA] or any reference to it.
____________________________________________
4 Adoptive Mother testified, similarly to Biological Mother and Biological
Maternal Grandmother, that the PACAs were approved by the court that
handled the termination proceedings and terminated parental rights. N.T.,
6/16/20, at 80. Adoptive Mother, however, does not formally argue that the
PACAs were approved by either the court that handled the termination
proceedings or the court that handled the adoption proceedings and entered
the adoption decree.
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Between October of 2018 and July of 2019, [Biological
Mother] and/or [Biological Maternal Grandmother] had regular
contact with [Child]. . . .[5] Problems were reported with some of
the visits. During the same time frame, [Child] experienced
significant behavioral problems that resulted in his expulsion from
public school and near admission to a behavioral health center for
children.
During the summer of 2019, [Child]’s primary therapist
authored a letter that stated: “As [Child] is still getting stabilized
on his medications and learning new interventions along with
having therapy session, I feel that regularly scheduled visits and
overnight stays with biological parents or members of their family
would not be in the best interest at this point in time.” ([See]
Exhibit 14). Thereafter, [Adoptive Mother] stopped the visits of
[Biological Mother] and [Biological Maternal Grandmother].
On June 11, 2019, [Adoptive Mother] filed a Report of Intent
to Adopt. An Intermediary Report that was approved by Delaware
County CYS was filed in the Lebanon County Court on the same
date. On August 16, 2019, [Adoptive Mother] followed up by filing
a formal Petition for Adoption. No notice of this Petition was given
to either [Biological Mother] or [Biological Maternal
Grandmother]. A hearing was scheduled by this [c]ourt. On
September 9, 2019, this [c]ourt entered a Final Decree of
Adoption by which [Adoptive Mother] became the formal official
parent of [Child].[6]
Although neither [Biological Mother] nor [Biological Maternal
Grandmother] were present at the adoption hearing, [Adoptive
Mother] apparently provided information to this [c]ourt about the
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5 Biological Mother testified that her last visit with Child was in August 2019.
N.T., 6/16/20, at 23. She indicated that she maintained visitation post-
termination from October 2018 through August 2019 as scheduled through
CYS. Id. at 10. Upon learning that the adoption was finalized, Biological
Mother emailed Adoptive Mother. Id. at 7, 10-11, 71. By email dated
September 30, 2019, Adoptive Mother responded that Child’s “mental health
physician has determined that regularly scheduled visits with biological family
is not currently in his best interest.” Exhibit 3; see also N.T., 6/16/20, at 11,
21.
6 While dated September 9, 2019, the decree was filed and docketed, and
notice provided, on September 10, 2020.
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existence of a [PACA]. Although the agreement itself was not
marked as an exhibit or introduced in evidence, the [c]ourt stated
in its Final Decree that it would retain jurisdiction “in order to
address all issues pertaining to a continuing contact agreement
with [Child’s] birthmother and grandmother.”[7]
On January 24, 2020, [Biological Mother] and [Biological
Maternal Grandmother] filed Petitions to Enforce the [PACA]. A
hearing was scheduled for March of 2020. That hearing was
postponed due to a pandemic-necessitated judicial emergency.
An initial hearing was eventually conducted on June 16, 2020.
On June 16, 2020, [Adoptive Mother] relied upon the
recommendation of [Child]’s primary therapist that no contact
occur between [Child] and his biological family. Both [Biological
Mother] and [Biological Maternal Grandmother] challenged the
credibility of the therapist. They both effectively alleged that the
therapist was nothing more than a mouthpiece for [Adoptive
Mother]. It became obvious to the [c]ourt that neither [Biological
Mother] nor [Biological Maternal Grandmother] would accept any
medical or therapeutic report generated at the request of
[Adoptive Mother].
This [c]ourt decided to invoke [Pa.R.E.] 706 and appoint an
independent therapist to determine whether or to what extent
contact between [Child] and his biological family should be
facilitated. After some back and forth with counsel, Dr. Virginia
Murphy was appointed in July of 2020. The [c]ourt [o]rder
appointing Dr. Murphy afforded both parties with the opportunity
to request another [c]ourt hearing to accept testimony of Dr.
Murphy if her report was not deemed sufficient.
On September 30, 2020, Dr. Murphy authored a report.8 A
request for testimony was presented. On November 3, 2020, this
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7 Decree, 9/10/19, at ¶ 3.
8 Dr. Murphy’s report was not marked and admitted as an exhibit, and it is not
included with the certified record; however, it is a part of the reproduced
record. As the veracity of this report is not in dispute, we rely on the copy
contained within the reproduced record. See Commonwealth v. Barnett,
121 A.3d 534, 544 n.3 (Pa.Super. 2015) (stating “While this Court generally
may only consider facts that have been duly certified in the record, where the
accuracy of a document is undisputed and contained in the reproduced record,
we may consider it.” ) (citations omitted).
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[c]ourt scheduled a hearing on December 21, 2020 in order to
afford the parties with the opportunity to directly question Dr.
Murphy in [c]ourt. That hearing was conducted as
scheduled. . . .[9]
Trial Court Opinion (“T.C.O.”), 1/19/21, at 2-7 (footnote omitted).
As stated previously, by order dated January 15, 2021, and entered
January 19, 2021, the trial court declined to approve immediately the Post-
Adoption Contact Agreement (“PACA”) pursuant to 23 Pa.C.S.A. § 2735,
declined to enforce immediately the PACA pursuant to 23 Pa.C.S.A. § 2738,
and determined it would not declare the PACA null and void. The court further
____________________________________________
9 All parties stipulated to Dr. Murphy’s qualifications as an expert therapist.
N.T., 12/21/20, at 3. Dr. Murphy opined that ongoing contact between
Biological Mother and Child could occur. Notwithstanding, she indicated that
it should occur following mediation, whether formal or informal, between
Biological Mother and Adoptive Mother. She further recommended that any
contact between Biological Mother and Child should occur slowly and at first
through means such as FaceTime and telephone. Id. at 5-6. Dr. Murphy
testified:
So[,] I believe [Biological Mother] has her son’s best interest at
heart. I believe that she loves him deeply. I believe that she
would do what she can to make it a loving and helpful contact
should she have contact. I believe that in order to have contact,
it’s very important that she and [Adoptive Mother] engage in
mediation, whether it’s formal or informal, to determine if they
can work on the same page and be a team for [Child]. He will
need that. He needs all the support he can get given his
significant needs. I believe it should occur slowly. Regular contact
by phone and Facetime would establish a level of trust and
predictability for [Child] and make it much easier for him to
continue to build a relationship with his biological mother in years
to come.
Id.
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granted leave to pursue a claim for contact at a future date.
Contemporaneously, the court issued an opinion.
Thereafter, on February 17, 2021, Biological Mother filed a timely notice
of appeal, as well as a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On March 3, 2021, the trial court
filed an additional opinion incorporating its prior opinion and addressing
Biological Mother’s constitutional challenges.
On appeal, Biological Mother raises the following issues for our review:
1. Did the trial court improperly deny approval of the parties[’]
[PACA] when the [PACA] at the time it was signed was
acknowledged by the parties to be in the best interest of the child
and was filed with the court that finalized the adoption pursuant
to 23 Pa.C.S.A. §2735(a, b)?
2. Did the trial court improperly deny enforcement of the [PACA]
when the [PACA] was in writing, approved by the court on or
before the date for any adoption decree, [Biological Mother] was
in substantial compliance of the agreement and enforcement
served the best interest of the child under pursuant to 23
Pa.C.S.A. §2738(a-d)?
3. Does the combined requirements under 23 Pa.C.S.A. §2735(a,
c); 23 Pa.C.S.A. §2738(c)(2); and 23 Pa.C.S.A. §2521(a) violate
[Biological Mother]’s procedural due process rights under Article
I, Section I of the Pennsylvania Constitution and the 14th
Amendment of the United States Constitution when it places an
impossible requirement the [PACA] be approved by the court that
finalizes the adoption on or before the date of any adoption decree
when the [Biological Mother] has no right to know where or when
adoption will occur?
Biological Mother’s Brief at 4-5 (suggested answers omitted).
“[T]he interpretation and application of a statute is a question of law
that compels plenary review to determine whether the court committed an
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error of law.” Wilson v. Transport Ins. Co., 889 A.2d 563, 570 (Pa.Super.
2005). “As with all questions of law, the appellate standard of review is de
novo and the appellate scope of review is plenary.” In re Wilson, 879 A.2d
199, 214 (Pa.Super. 2005) (en banc).
On the topic of statutory interpretation, we have stated:
[We] are constrained by the rules of statutory interpretation,
particularly as found in the Statutory Construction Act. 1
Pa.C.S.A. §§ 1501-1991. The goal in interpreting any statute is
to ascertain and effectuate the intention of the General Assembly.
Our Supreme Court has stated that the plain language of a statute
is in general the best indication of the legislative intent that gave
rise to the statute. When the language is clear, explicit, and free
from any ambiguity, we discern intent from the language alone,
and not from the arguments based on legislative history or “spirit”
of the statute. We must construe words and phrases in the statute
according to their common and approved usage. We also must
construe a statute in such a way as to give effect to all its
provisions, if possible, thereby avoiding the need to label any
provision as mere surplusage.
Cimino v. Valley Family Medicine, 912 A.2d 851, 853 (Pa.Super. 2006)
(quoting Weiner v. Fisher, 871 A.2d 1283, 1285-86 (Pa.Super. 2005)). See
also 1 Pa.C.S.A. § 1921(b). Under Section 1921(c), the court resorts to
considerations of “purpose” and “object” of the legislature when the words of
a statute are not explicit. Sternlicht v. Sternlicht, 583 Pa. 149, 158, 876
A.2d 904, 909 (2005) (referring to consideration of matters such as: (1)
occasion and necessity for statute; (2) circumstances under which it was
enacted; (3) mischief to be remedied; (4) object to be attained; (5) former
law, if any, including other statutes upon same or similar subjects; (6)
consequences of particular interpretation; (7) contemporaneous legislative
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history; (8) legislative and administrative interpretations of such statute). Id.at 158 n.9, 876 A.2d 909 n.9. Finally, “it is presumed that the legislature did
not intend an absurd or unreasonable result. In this regard, we . . . are
permitted to examine the practical consequences of a particular
interpretation.” Commonwealth v. Diakatos, 708 A.2d 510, 512 (Pa.Super.
1998).
As to the parties to a post-adoption contact agreement, 23 Pa.C.S.A.
§ 2733 provides:
(a) Prospective adoptive parents and birth relatives.--A
prospective adoptive parent of a child may enter into an
agreement with a birth relative of the child to permit continuing
contact or communication between the child and the birth relative
or between the adoptive parent and the birth relative.
(b) Guardians ad litem for siblings of adoptees.--Where
siblings have been freed for adoption through the termination of
parental rights, following a dependency proceeding, and the
prospective adoptive parent is not adopting all of the siblings, each
such sibling who is under 18 years of age shall be represented by
a guardian ad litem in the development of an agreement.
(c) Notification.--An agency or anyone representing the parties
in an adoption shall provide notification to a prospective adoptive
parent, a birth parent and a child who can be reasonably expected
to understand that a prospective adoptive parent and a birth
relative of a child have the option to enter into a voluntary
agreement for continuing contact or communication.
(d) Construction.--Nothing in this chapter shall be construed to
prohibit the parties from agreeing to mediation of an agreement
at their own cost, including the modification of an agreement,
before seeking a remedy from the court.
23 Pa.C.S.A. § 2733.
In addition, 23 Pa.C.S.A. § 2735 states:
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(a) General rule.--An agreement shall be filed with the court
that finalizes the adoption of the child.
(b) Conditions for approval.--The court shall approve the
agreement if the court determines that:
(1) The agreement has been entered into knowingly and
voluntarily by all parties. An affidavit made under oath must
accompany the agreement affirmatively stating that the
agreement was entered into knowingly and voluntarily and is not
the product of coercion, fraud or duress. The affidavit may be
executed jointly or separately.
(2) The agreement is in the best interest of the child. In making
that determination, factors that the court may consider include,
but are not limited to, the following:
(i) The length of time that the child has been under actual care,
custody and control of a person other than a birth parent and the
circumstances relating thereto.
(ii) The interaction and interrelationship of the child with birth
relatives and other persons who routinely interact with the birth
relatives and may significantly affect the child’s best interests.
(iii) The adjustment to the child’s home, school and community.
(iv) The willingness and ability of the birth relative to respect and
appreciate the bond between the child and prospective adoptive
parent.
(v) The willingness and ability of the prospective adoptive parent
to respect and appreciate the bond between the child and the birth
relative.
(vi) Any evidence of abuse or neglect of the child.
(c) Legal effect.--An agreement shall not be legally
enforceable unless approved by the court.
23 Pa.C.S.A. § 2735.
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Further, 23 Pa.C.S.A. § 2738 provides the following as to the
enforcement of such an agreement:
(a) General rule.--Any party to an agreement, a sibling or a child
who is the subject of an agreement may seek to enforce an
agreement by filing an action in the court that finalized the
adoption.
(b) Remedies.--Any party to an agreement, a sibling or a child
who is the subject of an agreement may request only specific
performance in seeking to enforce an agreement and may not
request monetary damages or modification of an agreement.
(c) Requirements.--For an agreement to be enforceable, it must
be:
(1) In writing.
(2) Approved by the court on or before the date for any adoption
decree.
(3) If the child is 12 years of age or older when the agreement is
executed, the child must consent to the agreement at the time of
its execution.
(d) Prerequisites.--Before the court may enter an order
enforcing an agreement, it must find all of the following:
(1) The party seeking enforcement of the agreement is in
substantial compliance with the agreement.
(2) By clear and convincing evidence, enforcement serves the
needs, welfare and best interest of the child.
(e) Cessation of enforceability.--
(1) An agreement shall cease to be enforceable on the date the
child turns 18 years of age unless the agreement otherwise
stipulates or is modified by the court.
(2) The court issuing final approval of an agreement shall have
continuing jurisdiction over enforcement of the agreement until
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the child turns 18 years of age, unless the agreement otherwise
stipulates or is modified by the court.
(f) Exclusivity of remedy.--This section constitutes the
exclusive remedy for enforcement of an agreement, and no
statutory or common law remedy shall be available for
enforcement or damages in connection with an agreement.
23 Pa.C.S.A. § 2738.
Biological Mother initially argues the trial court erred in analyzing the
approval of the PACA because an analysis had been done almost three years
prior when the court retained jurisdiction in the adoption decree to address
PACA issues. Biological Mother’s Brief at 16-17. She maintains all parties
agreed at the time of execution that continuing contact was in Child’s best
interest. Id. at 17. Biological Mother further highlights the notarized
affidavits indicating the parties entered into the agreement knowingly and
voluntarily, and without coercion, fraud or duress. Id. Biological Mother
states:
Ultimately it is an abuse of discretion for lower court to engage in
an analysis of whether to approve the [PACA] almost three years
after it should have done so if in fact it had not. The testimony of
the parties made clear that all of them believed that the
agreement was already approved and the parties operated under
the agreement as though it had been. Accordingly, the only real
issue before lower court was whether Adoptive Mother was in
breach of the agreement by failing to allow visitation pursuant to
the terms of the [PACAs]. Therefore, the lower accord [sic]
abused its discretion by engaging any analysis to declare the
[PACA] at issue this [sic] case not in the best interest of [] Child.
Id. at 18.
Biological Mother further posits the trial court erred in failing to enforce
the PACA. Id. at 19. Biological Mother asserts that a strong bond existed
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between Child and her and that the court erred in not finding that enforcing
PACA would continue to foster this bond. Id. at 20-21. Biological Mother
indicates the expert retained by the court did not find contact with Biological
Mother would cause harm. Id. at 22. She notes that none of the behavioral
issues exhibited by Child are attributable to her and proceeds to highlight
numerous changes introduced to Child’s life by Adoptive Mother. Id. While
noting her own compliance with the PACA, Biological Mother contends
Adoptive Mother withheld visitation because she does not get along with
Biological Mother. Id. at 21, 23.
Moreover, Biological Mother suggests that contact with her would be
beneficial in assisting Child with an understanding of his cultural background.
Id. at 23. Biological Mother maintains:
. . . [T]he court found that upsetting [] Child’s routine was further
justification in failing to enforce the [PACA]. Preventing contact
based on a routine change of [] Child is an abuse of discretion. All
custody visits are a change in [] Child’s routine at first. The major
changes of [] Child’s routine are brought about by Adoptive
Mother with the household, school, and preventing visits. Finally,
it should be remembered that it was Adoptive Mother who stopped
the visits with [] Child causing a substantial change in [] Child’s
routine. It should not be acceptable for Adoptive Mother to create
the change in [] Child’s routine then benefit from said change to
prevent enforcement and compliance with the [PACA] visitation
provisions. For all of the foregoing reasons, the trial court
improperly denied enforcement and abuse its discretion.
Id. at 24.
Lastly, Biological Mother argues that the statutes with respect to the
filing, approval, and enforcement of PACA are violative of due process. Id. at
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25. Biological Mother highlights her lack of notice as to the adoption
proceedings due to the termination of her parental rights. Id. at 28. She also
states that because she had no notice, she was unaware of and unable to
participate in the adoption proceeding and present the executed PACA.10 Id.
Biological Mother contends:
[b]ecause of the lack of notice created by the statutes coupled
with the lack of notice to the [Biological] Mother of the court
handling the adoption, [Biological] Mother lost her opportunity to
ensure her rights in the [PACA] were presented to the court for
proper adjudication. Therefore, as a result of this lack of notice
and an opportunity to enforce her rights, her constitutionally
protected rights were violated.
Id. at 30.
In addressing the enforceability of the PACA in the instant matter, the
trial court stated:
(1) Agreement in writing
Both of the Post-Adoption Contact Agreements at issue in
this case were in writing.
(2) Existence of affidavits
Both of the PACAs were accompanied with affidavits that
comply with 23 Pa.C.S.A. § 2735(b)(1).
(3) Court approval
This “element” of enforcing a [PACA] is very much in
dispute. [Biological Mother] claimed that the agreement was
submitted to and approved by the Delaware County Judge who
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10 Biological Mother stresses that separate courts handled the termination and
adoption proceedings. Biological Mother’s Brief at 29-30. Nevertheless, she
indicates that she was reasonable in proceeding as if the PACA were presented
for approval and approved. Id. at 28.
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entered the Decree Approving termination of Parental Rights. In
support of this claim, they present an email chain in which several
attorneys discuss the fact that the agreement was presented to
and approved by the Delaware County Judge when the
termination of parental rights was adjudicated. [Biological
Mother] disputes that the agreement was ever “approved” by any
judge. This [c]ourt has no independent knowledge of what
occurred in Delaware County on October 26, 2018. The record
forwarded by the Delaware County Court to this [c]ourt does not
contain the [PACA], nor is there any reference to that agreement
in the Delaware County Court’s Final Decree Terminating Parental
Rights. With respect to what occurred in Lebanon, we can
definitively state that this [c]ourt never undertook a broad
evaluation of what was in the best interest of [Child] pursuant to
23 Pa.C.S.A. § 2735(b)(2). While we were obviously aware that
some sort of [PACA] had been signed, the agreement itself was
not presented to this [c]ourt or made part of the record of the
adoption proceeding. In fact, the first time that this [c]ourt saw
the [PACA] was when the Petition to Enforce was submitted by
[Biological Mother] and [Biological Maternal Grandmother].
Is it possible that a broad evaluation of whether the
agreement was in the best interest of [Child] was conducted in
Delaware County? Certainly. However, we have no evidence of
such an analysis having been made. Moreover, we can state with
certainty that this [c]ourt never conducted such an analysis.
Section 2735(c) states that a [PACA] “shall not be legally
enforceable unless approved by the Court.” There is no definition
in the act as to what constitutes “Court approval.” If knowledge
and acquiescence suffices, we can conclude without difficulty that
this bar was hurdled. However, if “Court approval” requires a
factual proceeding at which all of the factors set forth in
§ 2735(b)(2) are considered, then we highly doubt that such
“approval” was afforded.
In the end, we are forced to acknowledge that confusion
undoubtedly occurred because termination of parental rights
occurred in Delaware County and the adoption occurred in
Lebanon County. Additional confusion arose because the adoption
did not occur for over one (1) year after termination of parental
rights occurred. In addition, we recognize that neither [Biological
Mother] nor [Biological Maternal Grandmother] were given notice
of the adoption proceeding and neither had the ability to submit
the [PACA] to this [c]ourt at the Adoption hearings. Finally, no
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attorney involved in this case requested a formal analysis of all
factors set forth in § 2735(b)(2). . . .
T.C.O., 7/19/21, at 14-16.
Critical to Biological Mother’s efforts and ability to enforce the PACA is
whether it was filed with and approved by the trial court on or before the
finalization of adoption. See 23 Pa.C.S.A. § 2735(c) (“An agreement shall not
be legally enforceable unless approved by the court.”); see also 23 Pa.C.S.A.
§ 2738(c)(2) (“For an agreement to be enforceable, it must be [a]pproved by
the court on or before the date for any adoption decree.”); see also 23
Pa.C.S.A. § 2735(a) (“An agreement shall be filed with the court that finalizes
the adoption of the child.”).
Instantly, the adoption was finalized in Lebanon County by decree
dated September 9, 2019.11 N.T., 6/16/20, at 70; Decree, 9/10/19. Despite
knowledge of and the court’s retaining of jurisdiction to address the PACA
involving Biological Mother, as well as that with respect to Biological Maternal
Grandmother, the record is devoid of evidence that the PACA was filed and/or
approved in Lebanon County on or before this date.
Also, there is no indication that the factors set forth by Section 2735(b)
as conditions for approval were analyzed on or before the entrance of the
adoption decree. In fact, as noted by the court, the PACA was not presented
to the court until it was attached as an exhibit to the petition for enforcement.
As the court stated, “[w]ith respect to what occurred in Lebanon, we can
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11 As indicated supra, while dated September 9, 2019, the decree was filed
and docketed, and notice was provided, on September 10, 2020.
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definitively state that this [c]ourt never undertook a broad evaluation of what
was in the best interest of [Child] pursuant to 23 Pa.C.S.A. 2735(b)(2). While
we were obviously aware that some sort of [PACA] had been signed, the
agreement itself was not presented to this [c]ourt or made part of the record
of the adoption proceeding.” T.C.O., 1/19/21, at 15. As such, we find there
was no valid agreement to enforce; therefore we are constrained to quash
Biological Mother’s appeal for lack of jurisdiction.12, 13
Notwithstanding, we would further find that it is not in Child’s best
interests for the PACA to be enforced given the opinion of the mental health
professionals, both Child’s treating therapist, Shannon Harper, and the expert
subsequently appointed by the court, Dr. Virginia Murphy, that visitation with
biological family should not occur at the present. See Exhibits 14 and 15;
see also N.T., 12/21/20, at 4-40. In addition, and significantly, the PACA
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12 Although the court engages in an analysis of the factors set forth by 23
Pa.C.S.A. § 2735(b) retroactively, we do not find this overcomes the fact that
this was not done in connection with the agreement being filed and approved
prior to the adoption being finalized. See 23 Pa.C.S.A. § 2738(f) (stating
“[t]his section constitutes the exclusive remedy for enforcement of an
agreement, and no statutory or common law remedy shall be available for
enforcement or damages in connection with an agreement.”).
13 It is well-settled that, “[a]n appeal lies only from a final order, unless
permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471
(Pa.Super. 2013). Generally, a final order is one that disposes of all claims
and all parties. See Pa.R.A.P. 341(b).; see also G.B. v. M.M.B., T.B. & A.B.,
670 A.2d 714, 715 (Pa.Super. 1996) (holding that “a custody order will be
considered final and appealable only after the trial court has concluded its
hearings on the merits and the resultant order resolves the pending custody
claims between the parties.”). Given our finding as to the lack of jurisdiction,
we do not address this additional preliminary issue.
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included the provision that the recommendations of Child’s mental health
professionals would be followed and that visitation will occur so long as it is in
Child’s best interests, specifically Child’s mental health interests. See Exhibit
1, at 4(j) (“If at any time a mental health professional who is providing
services to [Child] advises a change in the visitation, then the visits according
to this agreement will occur in accordance with any recommendations made
by that mental health professional who is treating [Child].”).
Moreover, we would decline to find that Biological Mother’s
constitutional rights were violated due to a lack of notice of the adoption as
Biological Mother retained no parental rights at that time. As the trial court
explained:
Both 23 Pa.C.S.A. § 2735 and 23 Pa.C.S.A. § 2738 deal with
PACAs. Both statutes implicitly recognize that PACAs should be
governed by principles that transcend standard contract law. That
being said, neither [Section] 2735 nor [Section] 2738 specifically
prohibit PACAs. Read together, the statutes create a road map of
sorts for a pathway that leads to enforcement of the PACA. This
[c]ourt fails to perceive how Sections 2735 and 2738, either
individually or collectively, could run afoul of the Due Process
clause found in the Constitutions of our state and country. To the
extent necessary, we would have rejected a constitutionality
argument at trial had one been presented to us.
T.C.O., 3/3/21, at 2-3. With this, we agree.
Accordingly, for the foregoing reasons, we quash Biological Mother’s
appeal.
Appeal quashed.
Judge Kunselman joins the memorandum.
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Judge McCaffery concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/21/2021
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