In Re: C.M.C., a minor, Appeal of C.L.C.

J-S13041-16
2016 Pa. Super. 112
IN RE: C.M.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.L.C., MOTHER
No. 1432 WDA 2015
Appeal from the Decree Entered August 18, 2015
In the Court of Common Pleas of Blair County
Orphans' Court at No(s): 2015 AD 32
BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*
CONCURRING OPINION BY LAZARUS, J.: FILED MAY 26, 2016
I agree that Mother’s consent to terminate her parental rights was
invalid under the Adoption Act. Mother did not petition the court to
relinquish her rights, either pursuant to 23 Pa.C.S. §§ 2501(a)
(Relinquishment to agency), or 23 Pa.C.S. § 2502(a) (Relinquishment to
adult intending to adopt child), and BCCYF’s petition for involuntary
termination, did not satisfy Pennsylvania Orphans’ Court Rules 15.2(a)(8),
(9). Further, as the Majority notes, by converting the hearing on the
involuntary petition to a voluntary termination hearing, the court deprived
Mother of the ten-day waiting period, and there is no indication that the
court explained this to Mother or that Mother waived that waiting period. 23
Pa.C.S. § 2503(a).
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*
Former Justice specially assigned to the Superior Court.
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I write separately, however, to point out that Mother’s argument on
appeal specifically pertains to her belief that she had conditioned her
consent to termination on Paternal Grandmother’s testimony that she would
allow continuing contact. There is no provision for this in the statute. The
purpose of Act 101 is to provide “an option for adoptive parents and birth
relatives to enter into a voluntary agreement for ongoing communication or
contact[.]” 23 Pa.C.S. § 2731.1 Here, Mother believed Paternal
Grandmother was bound by her testimony at the hearing. N.T.
Permanency/Termination Hearing, 8/18/15, at 18. Mother did not
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1
Act 101 states, in relevant part:
§ 2731. Purpose of subchapter.
The purpose of this subchapter is to provide an option for
adoptive parents and birth relatives to enter into a voluntary
agreement for ongoing communication or contact that:
(1) is in the best interest of the child;
(2) recognizes the parties’ interests and desires for
ongoing communication or contact;
(3) is appropriate given the role of the parties in the child’s
life; and
(4) is subject to approval by the courts.
23 Pa.C.S. § 2731.
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understand that Paternal Grandmother could not be required to allow post-
adoption contact.2
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2
See 23 Pa.C.S. § 2735 (Filing and approval of an agreement), which
provides:
(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.
(Footnote Continued Next Page)
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BCCYS argues Mother acknowledged that she understood that “even
though that is the understanding and expectation” she could not “make
[her] consent to terminate parental rights contingent upon that[.]” N.T.
Permanency/Termination Hearing, 8/18/15, at 19-21. This acknowledgement
referred directly to Paternal Grandmother’s willingness to adopt Child, but it
is unclear whether Mother understood that to mean that her relinquishment
could not be contingent on Paternal Grandmother’s statement that she
would allow continuing contact. To the layperson, these may have been
distinct ideas. For this reason as well, it is evident Mother’s relinquishment
of her parental rights was not voluntarily or intelligently made. See In re
M.L.O., 416 A.2d 88 (Pa. 1980).
_______________________
(Footnote Continued)
(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.
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