Adoption of: C.A.F., minors Appeal of: B.F.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF C.A.F. N/M/B C.A.M. : PENNSYLVANIA
____________________________ :
IN THE MATTER OF THE ADOPTION :
OF J.D.C. N/M/B J.T.R.M. :
:
:
APPEAL OF: B.F. :
: No. 1403 WDA 2016
:
:
:
:
Appeal from the Order Entered August 31, 2016
in the Court of Common Pleas of Venango County
Orphans’ Court Division at No(s): OCD No. 228-2013,
OCD No. 229-2013
BEFORE: OLSON, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 20, 2017
Appellant, B.F. (“Mother”), files this appeal from the order dated
August 30, 2016, and entered August 31, 2016,1 in the Venango County
Court of Common Pleas, by the Honorable Oliver J. Lobaugh, President
Judge, denying Mother’s Motion to Strike Voluntary Parental Termination and
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*
Former Justice specially assigned to the Superior Court.
1
While the order was dated August 30, 2016, it appears that it was not
docketed and entered for purposes of Pa.R.C.P. 236(b) until August 31,
2016. See Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d
113, 115 (1999) (holding that “an order is not appealable until it is entered
on the docket with the required notation that appropriate notice has been
given”).
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Adoption with regard to her minor sons, C.A.F. N/M/B C.A.M. and J.D.C.
N/M/B J.T.R.M. (collectively, the “Children”), and granting the Petitions for
Discontinuance or Modification of Agreement of Appellees, E.J.M. and D.R.M.
(“Adoptive Parents”). After review, we affirm the trial court’s order.
The trial court summarized the relevant procedural and factual history,
in part, as follows:
In a separately-captioned dependency proceeding, this
Court terminated the parental rights of [Mother] to her biological
children C.A.F. and J.D.C. pursuant to a Decree entered on
February 12, 2014.[2] That same day, [Adoptive Parents]
entered into a Voluntary Post-Adoption Contact Agreement
(hereinafter “the Agreement” or “Act 101 Agreement”) with
[Mother] pursuant to the Act of Oct. 27, 2010, P.L. 961, No.
101, codified as amended 23 [Pa.C.S.] §§ 2731 – 2742 (“Act
101”). The Agreement provides for supervised visitations to
occur between the subject minor children and Mother at least
four (4) times per year, subject to certain conditions.[3] The
adoptions of the subject minor children were finalized on August
5, 2014.
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2
Mother’s rights to Children were terminated by separate decrees. While
the decrees were dated February 12, 2014, it appears that they were not
docketed and entered for purposes of Pa.R.C.P. 236(b) until February 13,
2014. By separate decree entered the same date, the court also terminated
the parental rights of J.D.C.’s father, T.C. Further, by decree entered March
4, 2014, the court terminated the parental rights of C.A.F.’s father, L.E.K.
All terminations of parental rights were pursuant to petitions for voluntary
termination. We note Mother was represented by counsel.
3
Separate agreements dated February 12, 2014, and docketed February 13,
2014, were entered for each child. See Voluntary Post-Adoption Agreement
(C.A.F.), 2/13/14; Voluntary Post-Adoption Agreement (J.D.C.), 2/13/14. In
addition, Adoptive Parents and J.D.C.’s father entered an agreement on the
same date.
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The instant litigation was initiated by the dual Petitions of
[Adoptive Parents], filed on August 31, 2015, which requested
that the Agreement be discontinued, or, in the alternative,
modified to include fewer visits per year. Counsel for Mother
entered their appearance January 5, 2016, and filed Motions to
strike the Decrees of Adoption and the Voluntary
Relinquishment, and to hold a status conference. A status
conference and initial evidentiary hearing were held on January
13, 2016. At the hearing, testimony was taken from the
adoptive Mother as well as one Michele L. Johnston, MA LPC.[4]
Counsel for Mother requested a continuance in order for more
time to present evidence and to investigate the possibility of
retaining a rebuttal expert witness. A second evidentiary
hearing was held on July 11, 2016. At the second hearing,
Mother’s sole witness was one Victoria Rai Ciko, a supports
coordinator with the Venango County Human Services
Department.[5]
Trial Court Opinion (“T.C.O.”), 8/30/16, at 1-2.
Subsequent to hearing, by order dated August 30, 2016, and entered
August 31, 2016, the trial court denied Mother’s Motion to Strike Voluntary
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4
Michele Johnston, C.A.F.’s treating counselor, issued a report dated
December 20, 2015 and marked and admitted at the hearing on January 13,
2016 as Exhibit C. This report is contained separately in the record. See
Counselor’s Report and Recommendation, 1/7/16, Exhibit A.
5
Upon review of the record, the Notes of testimony from the July 11, 2016
hearing were not transcribed. As we stated in Commonwealth v. Preston,
904 A.2d 1, 7 (Pa. Super. 2006) (en banc):
With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any
transcript necessary to permit resolution of the issues raised on
appeal. Pa.R.A.P. 1911(a). . . . It is not proper for either the
Pennsylvania Supreme Court or the Superior Court to order
transcripts nor is it the responsibility of the appellate courts to
obtain the necessary transcripts. Id.
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Parental Termination and Adoption and granted Adoptive Parents’ Petitions
for Discontinuance or Modification of Agreement. The court concurrently
issued an opinion setting forth its rationale for its dispositions. By order
dated and entered August 31, 2016, the trial court entered an amended
order substantially similar to the original order.6 On September 21, 2016,
Mother, through counsel, filed a notice of appeal, along with a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).7 Thereafter, the trial court filed an Opinion of Court
Pursuant to Pa.R.A.P. 1925(a) on October 13, 2016. This opinion adopted
the prior opinion issued by the court concurrently with its order dated
August 30, 2016, and entered August 31, 2016.
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6
A review of both orders reveals only a correction as to the name of
Adoptive Parents’ petitions. See Orders, 8/31/16. Both orders express the
trial court’s denial of Mother’s Motion to Strike Voluntary Parental
Termination and Adoption and grant of Adoptive Parents’ Petitions for
Discontinuance or Modification of Agreement. Id.
7
Mother appealed the order dated August 30, 2016, and entered August 31,
2016. See Notice of Appeal, 9/21/16. This order was a final, appealable
order. See Pa.R.A.P. 341(b). The fact that an amended order was entered
does not render the earlier order interlocutory. A trial court may correct
errors in its own orders. See Manack v. Sandlin, 812 A.2d 676, 680-81
(Pa. Super. 2002); In re Austin Trust, 674 A.2d 293, 296-97 (Pa. Super.
1996); and 42 Pa.C.S. § 5505. Further, under certain circumstances, minor
procedural missteps may be overlooked. As such, failure to file an appeal
from the subsequent order dated and entered August 31, 2016 is not fatal.
See Dong Yuan Chen v. Saidi, 100 A.3d 587, 594 (Pa. Super. 2014) (even
though taking one appeal from separate judgments is discouraged, appeal
was not quashed). See also Pa.R.A.P. 905(a)(5) (stating that the
premature filing of a notice of appeal would be treated as proper once a
final, appealable order was entered).
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On appeal, Mother, through counsel, raises the following issues for our
review:
1. Whether the trial court erred as a matter of law or abused its
discretion when the court denied [Mother]’s motion to strike
termination of parental rights and adoption[?]
2. Whether the trial court erred as a matter of law or abused its
discretion when the court terminated the adoption agreement
in [sic] which gave [Mother] four visits every year with the
minor children[?]
Mother’s Brief at 5.
“Our standard in reviewing an appeal from an order relating to
termination of parental rights is to determine if the record is free from legal
error and if the factual findings are supported by the evidence.” In the
Interest of J.F., 862 A.2d 1258, 1260 (Pa. Super. 2004) (citations
omitted). If the orphans’ court’s findings are supported by competent
evidence, they should not be disturbed. In re M.L.O., 490 Pa. 237, 241,
416 A.2d 88, 90 (1980) (citing In re William L., 477 Pa. 322, 383 A.2d
1228, cert. denied, 439 U.S. 880, 99 S. Ct. 216, 58 L. Ed. 2d 192 (1978)).
See also In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979). Further,
because the orphans’ court sits as the fact-finder, it determines the
credibility of witnesses, and we will not reverse its credibility determinations
absent an abuse of discretion. In re M.J.S., 903 A.2d 1, 8 (Pa. Super.
2006).
Further, as set forth by our Supreme Court:
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A party seeking to disturb a termination decree must show that
the consent given to terminate parental rights was not
intelligent, voluntary and deliberate. See Susko Adoption
Case, 363 Pa. 78, 83, 69 A.2d 132, 135 (1949) (“consent
prescribed by the Adoption Act is a parental consent that is
intelligent, voluntary and deliberate.”); accord Chambers
Appeal, [452 Pa. 149, 153, 305 A.2d 360, 362 (1973) ] ...; In
re Fritz, 460 Pa. 265, 333 A.2d 466 (1975).
In re M.L.O., 490 Pa. at 240, 416 A.2d at 89–90.
Similarly, in reviewing an order denying a petition to vacate an
adoption decree, we review for whether the trial court abused its discretion
or committed an error of law. Adoption of Christopher P., 480 Pa. 79, 86,
389 A.2d 94, 98 (1978). Our review is limited to determining whether the
trial court’s findings are supported by competent evidence in the record. Id.
An adoption decree is presumed to be valid, and the person seeking to
vacate it bears the burden of showing its invalidity by clear and convincing
evidence. In re Adoption of Z.S.H.G., 34 A.3d 1283, 1286-87 (Pa. Super.
2011) (per curiam); Chambers Appeal, 452 Pa. 149, 153, 305 A.2d 360,
362 (1973).
We have explained, “[i]n the absence of fraud, an adoption will be
revoked if it is in the best interest of the child to do so, as the welfare of the
child is of paramount importance, even in proceedings to vacate an adoption
decree.” In re Adoption of R.J.S., 889 A.2d 92 (Pa. Super. 2005) (citing
List Adoption Case, 418 Pa. 503, 516, 211 A.2d 870, 877 (1965)).
On this topic, our Supreme Court stated:
This Court has long been aware of this need to accord finality to
statutorily and judicially decreed adoptive relationships.
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Particularly where . . . an appellant seeks to vacate a facially
valid, final adoption decree, we have noted the substantial
burden of proof which must be met to “justify disturbing the
integrity of that decree.” Chambers Appeal, [452 Pa. 149,
153, 305 A.2d 360, 362 (1973)]. In Chambers Appeal, supra,
a natural mother appealed from dismissal of her petition to
vacate a final adoption decree filed nine months after entry of
the decree of adoption. In rejecting the natural mother’s
attempt to withdraw her consent, we stated:
“The natural mother’s attempt to withdraw her consent
came much too late. Many important rights and
relationships involving the child and the adoptive parents
had been conclusively created and permanently
established.
...
As this Court has previously said: ‘. . . a decree of
adoption terminates forever all relationships between the
child and its natural parents, severs it entirely from its
own family tree and engrafts it upon that of its new
parentage: Schwab Adoption Case, 355 Pa. 534, 536,
50 A.2d 504, 504[(1947)].’ (Emphasis added.) List
Adoption Case, supra[, 418 Pa. 503, 516, 211 A.2d
870, 877 (1965)]; Harvey Adoption Case, [375 Pa. 1,
3-4, 99 A.2d 276, 277-78 (1953)]. Moreover, this
statutorily created and judicially decreed relationship
between adoptive parents and the child must be given
‘such finality as will abolish the fear that in the years
ahead something will occur to extinguish the parent-child
status and force [the adoptive parents] to relinquish the
children they have adopted and upon whom they have
lavished care and affection. List, supra 418 Pa. at 517,
211 A.2d at 877.
Clearly, this wise, necessary and justified ‘finality’ of all
adoption decrees, statutorily and judicially mandated,
precludes appellant at this late date from imperiling and
jeopardizing the adjudication of adoption. Our adoption
statute, the controlling decisions of this Court, and the
happiness and well-being of this child-parent relationship
requires us to conclude as the orphans’ court division
correctly did, that the family relationship so established is
final and conclusive and may not be disturbed.”
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Id. at 154-55, 305 A.2d at 363 (footnote omitted).
Adoption of Christopher P., 480 Pa. at 85-86, 389 A.2d at 97-98
(emphasis in original).
The trial court, discussing vacation of the termination of parental
rights, acknowledged lack of authority for a collateral attack of voluntary
termination proceedings. T.C.O. at 3. The court further highlighted that
Mother failed to appeal the decree terminating her parental rights and the
“time for taking such an appeal has long since expired.” Id. Likewise, the
court found that the doctrine of collateral estoppel prevents the subsequent
challenge to the termination of parental rights. Id. at 4-5.
Here, the issue presented by [Mother] is identical to that raised
by the dependency proceeding: namely, whether the
termination of [Mother]’s parental rights was warranted. There
was a final judgment on the merits of that issue, as reflected by
the Decree of February 12, 2014. [Mother] was a party to the
dependency proceeding, where she was represented by counsel,
and as such she had a full and fair opportunity to present the
capacity defense she now seeks to establish. Accordingly, she
may not presently relitigate the issue of whether the termination
was warranted.
Id. at 5 (citation omitted).
Moreover, the court suggested that, regardless, termination of
Mother’s parental rights was warranted, stating, “[E]ven were this court
inclined to entertain the notion that we have the authority to vacate a
decree of termination on the basis of a petition filed nearly two years after
the voluntary relinquishment proceeding, we would nevertheless find that
reversing the termination is not warranted in the present circumstances.”
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Id. The court continued, concluding, “[W]e detect neither abuse of
discretion nor error of law in our decision to terminate [Mother]’s rights, and
as such we will decline to vacate either the termination Decree or the
subsequent Decree of adoption.” Id. at 7.
Mother concedes the absence of authority to vacate the decrees
terminating her parental rights and of adoption. Mother, however, argues
that the decrees should be vacated as a matter of justice and/or public
policy due to the nature of her mental capacity. Mother’s Brief at 9. Mother
highlights psychiatric evaluations conducted in 2013 and 2014 in connection
with a criminal matter in which she was a defendant. Id. at Exhibits E and
F. Mother states,
Justice was not served because here the court was not given all
the information concerning the extent of [Mother]’s mental
capacity at the time of the termination. [Mother] was found by
two different psychiatrists to be incompetent to understand legal
proceedings due to her mental disability so she was unfit to
stand trial and therefore unfit to enter into legal contracts.[8]
Id. We disagree.
Upon review, in the case sub judice, we discern no abuse of discretion
and/or error of law. The record supports the trial court’s denial of Mother’s
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8
As indicated, Mother was represented by counsel at the voluntary
termination proceedings. While suggesting that counsel had access to
documentation regarding Mother’s mental capacity, Mother, however, does
not frame her argument in terms of ineffectiveness of counsel. Mother’s
Brief at 9-10.
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belated requests to vacate the decrees terminating her parental rights and
of adoption.
Significantly, Mother was represented by counsel during the voluntary
termination proceedings. Findings of Fact and Conclusion of Law (C.A.F.),
2/13/14, ¶5, at 1-2; Findings of Fact and Conclusion of Law (J.D.C.),
2/13/14, ¶5, at 1-2. The court found at the time that Mother reviewed the
implications of voluntary termination, as opposed to involuntary termination,
with counsel and understood that she “would thereafter lose all rights as the
biological parent” and Children “would be placed for adoption.” Id. ¶¶5, 9,
at 1-2; ¶¶5, 9, at 1-2. The court further found that Mother appreciated and
was in agreement that she had not performed parental duties for at least six
months prior to the hearing and failed to progress with regard to the issues
causing Children to be found dependent. Id. ¶7, at 2; ¶7, at 2. The court
took judicial notice that Mother has “mental health concerns which are
significant and do not permit her to properly care” for Children. Id. As a
result, the court found, and Mother therefore agreed, that the best interest
of Children favored termination of Mother’s parental rights. Id. ¶8, at 2; ¶8,
at 2. There is no indication that Mother’s mental health concerns prevented
or in any way impeded her ability to knowingly consent to the voluntary
termination. Moreover, counsel for Mother did not raise any issue of
competency at the time, nor did Mother file a timely appeal on the basis of
this issue. In addition, Mother made no attempt to assert any issues of
competency, or any challenge whatsoever, prior to the entry of the adoption
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decree approximately six months later. Interestingly, Mother first raised
competency almost two years later, after Adoptive Parents filed to
discontinue or modify the Act 101 Agreement and cease Mother’s visitation.
Hence, the evidence corroborates that Mother’s consent to the voluntary
termination of her parental rights was voluntary, intelligent, and deliberate.
See In re M.L.O., 490 Pa. at 240, 416 A.2d at 89–90.
Lastly, we observe Mother presents no actual challenge to validity of
the adoption decree. In Chambers appeal, the mother sought to vacate
both the adoption decree and prior decree of voluntary termination on the
basis that her consent was not intelligent, voluntary and deliberate. 452 Pa.
at 150-51, 305 A.2d at 361. Specifically, the mother asserted that incorrect
information provided to her by the social worker, as well as her health,
combined to undermine her consent to relinquish parental rights. Id. at
151, 305 A.2d at 361. Instantly, similar to Chambers Appeal, Mother does
not directly dispute the legitimacy of the adoption decree, but her consent at
the earlier termination proceeding. Id. at 153, 305 A.2d at 362. This
opposition to consent at the prior termination proceeding “is not a
permissible challenge to the validity or integrity of the adoption decree at
all.” Id. Thus, the record substantiates the trial court’s denial of Mother’s
motion to strike the voluntary termination and adoption decrees.
As to the discontinuance of the Act 101 Agreement, the trial court
based its decision to grant Adoptive Parents’ petitions and discontinue the
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agreement on the testimony of Adoptive Mother and Michele Johnston.
T.C.O. at 8-12. The court reasoned:
We accept Ms. [Johnston’]s diagnosis as having been
proven by clear and convincing evidence. Moreover, we accept
her conclusion that the negative consequences associated with
[C.A.F.]’s Reactive Attachment Disorder are such that continuing
contact with his birth mother would be detrimental to his
ongoing treatment and emotional development. As such, we
find by clear and convincing evidence that [Adoptive Parents]
have carried their burden of proving that discontinuing the Act
101 Agreement with respect to [C.A.F.] would clearly serve the
child’s needs, welfare, and best interest.
Though the same concerns are not immediately present
with respect to [J.D.C.], the evidence nevertheless favors
discontinuing the Act 101 Agreement with respect to the younger
of the two children as well. [J.D.C.]’s separation from his birth
mother occurred at a much earlier age than occurred with
respect to his older brother, which may explain why he does not
appear to be similarly triggered by contact with [Mother].
However, it is possible that continued contact might resurface
some early trauma or neglect. More fundamentally, having visits
continue for one child and not the other would, in Ms.
[Johnston]’s estimation, be “very confusing.” Allowing [J.D.C.]
to engage in visits with his birth mother but not [C.A.F] would
instill feelings of resentment between either child and between
the children and their parents. As such, the only feasible means
of addressing the active harm that is done to [C.A.F.] by
continuing the visits contemplated by the Act 101 Agreement is
to cease the visits entirely, and with respect to both children.
Accordingly, we find by clear and convincing evidence that
[J.D.C.]’s needs, welfare, and best interest are also best served
by the termination of the Act 101 Agreement. This finding is
reinforced by the largely undisputed testimony that [J.D.C.] was
benefitting very little by visiting with Mother. [J.D.C.]’s removal
from her care occurred very shortly after his birth and as such
he has a lesser degree of familiarity with Mother than his elder
sibling. Accordingly, his actual level of engagement with Mother
during visits tends to be minimal.
Id. at 11-12 (citations to record omitted).
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Mother, however, asserts that Adoptive Parents had no intent to
comply with the Act 101 Agreement and were immediately looking to void
the Agreement. Mother’s Brief at 13. Mother further contests Michele
Johnston’s finding that Children suffered from Reactive Attachment Disorder
as “contrary to the evidence.” Id. at 12. Mother avers that the evidence
established that visits between her and Children went well and that “there is
no evidence that the appellant is the cause of the children’s behavior but
rather it concluded that the children may have poor behavior with the
adoptive parents because they were taken from their mother.” Id. Again,
we disagree.
As this issue involves a pure question of law, our standard of review is
de novo, and our scope of review is plenary. In re Wilson, 879 A.2d 199,
214 (Pa. Super. 2005) (en banc); Harrell v. Pecynski, 11 A.3d 1000, 1003
(Pa. Super. 2011) (citations omitted).
23 Pa.C.S. §2739 provides as follows:
§2739. Discontinuance of agreement.
(a) General rule.--A party to an agreement or a child that
is at least 12 years of age or older may seek to discontinue an
agreement by filing an action in the court that finalized the
adoption.
(b) Standard for discontinuation.--Before the court may
enter an order discontinuing an agreement, it must find by clear
and convincing evidence that discontinuance serves the needs,
welfare and best interest of the child.
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We have defined clear and convincing evidence as that which is so
“clear, direct, weighty and convincing as to enable the trier of fact to come
to a clear conviction, without hesitance, of the truth of the precise facts in
issue.” In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc).
In the case sub judice, we have examined the opinion entered by the
trial court in light of the record in this matter and agree with the analysis
and discussion regarding the issue of discontinuing the Act 101 Agreement.
We, therefore, adopt the opinion of the trial court as dispositive of this issue.
For the foregoing reasons, we affirm the order denying Mother’s
Motion to Strike Voluntary Parental Termination and Adoption and granting
Adoptive Parents’ Petitions for Discontinuance or Modification of Agreement.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2017
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