In the Interest of: S.O. a/k/a S.H.L.O., A Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.O. A/K/A : IN THE SUPERIOR COURT OF
S.H.L.O., A MINOR : PENNSYLVANIA
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APPEAL OF: J.S., MOTHER :
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: No. 633 EDA 2018
Appeal from the Decree Entered January 25, 2018
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): CP-51-AP-0000943-2017
BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 17, 2018
J.S. (Mother) appeals from the decree entered January 25, 2018, which
confirmed her consent to voluntary relinquishment of her parental rights to
her minor daughter, S.O. (Child), born September of 2015.1 Additionally,
Mother’s counsel, Yalonda Houston, Esq. (Counsel), seeks to withdraw her
representation of Mother pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).2 We
affirm and grant Counsel’s petition to withdraw.
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1The parental rights of A.O. (Father) were separately terminated on April 9,
2018. Father is not a party to the instant appeal and has not filed a separate
appeal.
2See also In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992) (extending
Anders briefing criteria to appeals by indigent parents represented by court-
appointed counsel in involuntary termination and voluntary relinquishment
matters).
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The parties are familiar with the full background of this case. We need
only reiterate here that the family came to the attention of the Philadelphia
Department of Human Services (DHS) in September of 2015, based on a
general protective services (GPS) report regarding Mother’s drug use and
living situation. In-home services were provided to Mother in October of 2015.
Mother initially attended inpatient substance abuse treatment and planned to
continue outpatient substance abuse treatment. Mother moved to the home
of her great-aunt, J.M. (Great-Aunt).
In July of 2016, DHS obtained an order of protective custody (OPC) for
Child based on allegations that Mother took Child from Great-Aunt’s home,
was using drugs in Child’s presence, and was living with Child in inappropriate
conditions. In August of 2016, Child was adjudicated dependent.
Mother reportedly tested positive for PCP and marijuana in August of
2016, and began missing drug screens in November of 2016. In July of 2017,
it was reported that Mother was not engaging in any drug and alcohol
program. Further, it was reported that Mother was referred to a short-term
dual diagnosis treatment program, but that Mother did not attend the
scheduled intake meeting. On September 25, 2017, DHS filed a petition
seeking to involuntarily terminate Mother’s parental rights.
On October 11, 2017, Mother executed a form consent to adoption. In
full, the consent read as follows:
I, [Mother], am an adult, having been born [in January 1990]. I
am single/married and the mother of [Child] who was born [in
September 2015] in Philadelphia, PA.
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The father of the child/children is [A.O.]
I hereby voluntarily and unconditionally consent to the adoption
of the above named child/children.
I understand that by signing this consent, I indicate my intent to
permanently give up all rights to said child/children.
I understand said child/children will be placed for adoption.
I understand I may revoke this consent to permanently give up all
rights to this child/children by placing the revocation in writing
and serving it upon the agency or adult to whom the child/children
was relinquished.
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 the Philadelphia
Department of Human Services, 1515 Arch Street, 6th Floor,
Philadelphia, PA 19102, Attention: Adoption Specialist Unit, Derek
Baker-Gutierrez, Supervisor.
I have read and understand the above and I am signing it as a
free and voluntary act.
See Pet. to Confirm Consent, 11/21/17, Ex. A. Great-Aunt and a Community
Umbrella Agency (CUA) representative witnessed Mother execute, sign, and
date the consent. Id.
On November 21, 2017, DHS filed a petition for voluntary
relinquishment of Mother’s parental rights3 and a petition to confirm consent,
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3The petition for voluntary relinquishment of parental rights stated that it was
a petition by Mother and DHS. See Pet. for Voluntary Relinquishment of
Parental Rights, 11/21/17, at 1. The petition bears Appellant’s handwritten
name underneath the request to terminate Mother’s parental rights to Child
and on the attached verification.
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requesting that the court view and approve Mother’s consent to the
termination of her parental rights to Child.
On January 25, 2018, the trial court convened a hearing to confirm
Mother’s consent for voluntary relinquishment of her parental rights. Mother
was not present at the hearing. Substitute counsel appeared on her behalf
and in place of Counsel. See N.T., 1/25/18, at 2-4.
Great-Aunt testified at the hearing that she was present when Mother
signed the consent and that Mother was not promised anything in exchange
for signing. Id. at 5. Great-Aunt testified that she knew Mother very well and
that she appeared to understand what she was signing and did not appear to
be under the influence of any drugs or alcohol. Id.
Miyoshi Contee, the CUA Turning Points for Children Case Manager,
testified that Mother did not contact her after signing the consent form. Id.
at 6. Ms. Contee believed that it was in Child’s best interest to proceed on
the petition to confirm consent, Child was safe in a kinship home, and Child’s
needs were being met. Id. at 6-7.
The trial court determined there was no legal objection from Mother to
the termination and that she had knowingly and voluntarily given her consent.
Id. at 7. At the close of the hearing, the court terminated Mother’s parental
rights. Id.
On February 23, 2018, Mother timely filed a pro se notice of appeal and
a concise statement of errors complained of on appeal pursuant to Rule
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Pa.R.A.P. 1925(a)(2)(i) and (b).4 In her pro se Rule 1925(b) statement,
Mother averred that she did not knowingly consent to the termination of her
parental rights and believed she was signing forms that would allow her to
regain custody of Child from Great-Aunt once Mother’s employment became
stable.5 See Concise Statement of Errors, 2/23/18, at 1.
On April 23, 2018, we remanded this matter to the trial court to
determine whether Counsel abandoned Mother due to Counsel’s failure to file
a docketing statement. Counsel thereafter filed Mother’s docketing statement
on April 25, 2018, and this Court vacated the April 23, 2018 order.
Counsel has filed an Anders brief identifying the following issue:
Whether the trial court committed reversible error, when it
granted an order confirming consent to Mother’s petition to
voluntar[ily] terminate her parental rights, finding that Mother
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4 See Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016)
(noting that this Court is required to docket a pro se notice of appeal despite
appellant being represented by counsel).
5 In full, Mother’s pro se Rule 1925(b) statement read:
I was unaware that I was signing a permanent termination of my
parental rights. I believed [Great-Aunt] would have temporary
custody and I would regain custody when my employment
becomes stable. I still see [Child] almost daily, picking her up
from daycare, and I spend money on clothes and food for her. I
am actively working towards a more stable employment and have
been looking forward to regaining custody and creating a life with
[Child].
Pa.R.A.P. 1925(b) Statement, 2/23/18.
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[knowingly] and voluntar[ily] executed the petition to terminate
her parental rights.
See Anders Brief at 6 (full capitalization omitted). Mother has not filed a
response to the Anders brief either pro se or with new counsel.
“When faced with an Anders brief, this Court may not review the merits
of any possible underlying issues without first examining counsel’s request to
withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). Prior to withdrawing as counsel on direct appeal under
Anders, counsel must file a petition to withdraw and
provide a copy of the Anders brief to his client. Attending the
brief must be a letter that advises the client of his right to: “(1)
retain new counsel to pursue the appeal; (2) proceed pro se on
appeal; or (3) raise any points that the appellant deems worthy
of the court[’]s attention in addition to the points raised by counsel
in the Anders brief.” Commonwealth v. Nischan, 928 A.2d
349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d
40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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.
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Santiago, 978 A.2d at 361. Only after determining that counsel has satisfied
these technical requirements of Anders and Santiago, may this Court
“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) (citations and footnote
omitted).
Counsel has complied with the procedures for seeking withdrawal by
filing a petition to withdraw, sending Mother a letter explaining the rights
enumerated in Nischan, and supplying Mother with a copy of the Anders
brief. Moreover, counsel’s Anders brief complies with the requirements of
Santiago. Counsel includes a summary of the relevant factual and procedural
history, refers to the portions of the record that could arguably support
Mother’s claim, and sets forth her conclusion that the appeal is frivolous. She
explains her reasoning and supports her rationale with citations to the record
and pertinent legal authority. Thus, Counsel has complied with the technical
requirements for withdrawal, and we will independently review the record to
determine if the issues raised are frivolous.
Essentially, the issue identified by Counsel challenges whether Mother’s
voluntary relinquishment of her parental rights was knowingly, intelligently,
and voluntarily given. See Anders Brief at 17-20.
Our standard of review is as follows:
When reviewing a decree entered by the Orphans’ Court, this
Court must determine whether the record is free from legal error
and the court’s factual findings are supported by the evidence.
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Because the Orphans’ Court sits as the fact-finder, it determines
the credibility of the witnesses, and on review, we will not reverse
its credibility determinations absent an abuse of that discretion.
In re A.J.B., 797 A.2d 264, 266 (Pa. Super. 2002) (citation omitted). “A
party seeking to disturb a termination decree must show that the consent
given to terminate parental rights was not intelligent, voluntary and
deliberate.” In re M.L.O., 416 A.2d 88, 90 (Pa. 1980).
A parent may voluntarily relinquish her parental rights. See 23 Pa.C.S.
§§ 2501-2505. Section 2504 provides an alternative procedure for
relinquishment as follows:
§ 2504. Alternative procedure for relinquishment
(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 period 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
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rights and duties, including the obligation of support, in the case
of a relinquishment to an agency.
23 Pa.C.S. § 2504(a)-(b).
Section 2711 of the Adoption Act lays out the requirements for consents
and the procedure and timeframes for the revocation of a voluntary consent
to adoption. See 23 Pa.C.S. § 2711. Section 2711(c) provides, in relevant
part:
(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.
(ii) For a consent to an adoption executed by a birth
mother, the consent is irrevocable more than 30 days
after the execution of the consent.
(2) An individual may not waive the revocation period under
paragraph (1).
(3) Notwithstanding paragraph (1), the following apply:
(i) An individual who executed a consent to an
adoption may challenge the validity of the consent
only by filing a petition alleging fraud or duress within
the earlier of the following time frames:
(A) Sixty days after the birth of the child or the
execution of the consent, whichever occurs
later.
(B) Thirty days after the entry of the adoption
decree.
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(ii) A consent to an adoption may be invalidated only
if the alleged fraud or duress under subparagraph (i)
is proven by:
(A) a preponderance of the evidence in the case
of consent by a person 21 years of age or
younger; or
(B) clear and convincing evidence in all other
cases.
23 Pa.C.S. § 2711(c).
This Court has stated that “Section 2711(c) sets forth the only
procedure for revoking a consent to adoption; it requires that the revocation
be timely, in writing, and served upon appropriate parties.”6 In re R.I., 172
A.3d 665, 667 (Pa. Super. 2017) (citing 23 Pa.C.S. § 2711(c)). For consents
executed by the birth mother, the consent is generally irrevocable more than
thirty days after the execution of the consent, unless the birth mother proves
fraud or duress within sixty days of executing the consent. Id. at 668 & n.2
(citing 23 Pa.C.S. § 2711(c)).
In R.I., this Court concluded that a trial court erred in considering the
merits of an oral and untimely revocation of a consent to adoption. Id. at
668. In so holding, we vacated the order granting the revocation of consent
and remanded for the court to grant a petition for voluntary relinquishment.
Id.
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6The purpose of 23 Pa.C.S. § 2311 is to afford finality to the adoption process.
In re Adoption of J.A.S., 939 A.2d 403, 408 (Pa. Super. 2007).
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Here, Mother did not revoke her consent in writing within thirty days of
executing the consent on October 11, 2017, pursuant to 23 Pa.C.S. §
2711(c)(1)(ii), or challenge the consent within sixty days under 23 Pa.C.S. §
2711(c)(3)(i)(A). Instead, Mother first attacked the validity of her consent on
February 23, 2018, when she filed her pro se notice of appeal and Rule
1925(b) statement more than 135 days after executing her consent.
Accordingly, Mother did not comply with the requirements of 23 Pa.C.S. §
2711(c), see R.I., 172 A.3d at 667, or preserve this issue in the trial court.
See Pa.R.A.P. 302(a).
In any event, Mother’s intended challenge to the validity of her consent
lacks any support. Specifically, Mother suggests that she did not understand
the consent and believed that it was a temporary custody arrangement.
Mother also suggests that Great-Aunt assured her the arrangement was
temporary.
However, the consent Mother signed conformed to the requirements of
23 Pa.C.S. § 2711(d) (referring to contents of consent). It clearly informed
her that signing would acknowledge her voluntary and unconditional consent
to placing Child for adoption. The consent also stated that she could revoke
her consent within thirty days in a writing served upon all interested parties.
See Pet. to Confirm Consent, 11/21/17, Ex. A. Both witnesses to the
execution of the consent testified that Mother read and understood English,
appeared to understand the consents she was signing, and did not appear to
be under the influence of drugs or alcohol. See N.T., 1/25/18, at 2-7.
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Therefore, there were no suggestions that any of the petitions filed were
intended to convey temporary custody. Moreover, there is no support for
Appellant’s assertions that her consent was unknowing or involuntary or the
result of fraud or duress.
Therefore, having reviewed the record, we agree with Counsel’s
assessment that Mother’s intended issue is frivolous. Our independent review
reveals no further issues of arguable merit preserved for review. Accordingly,
we grant counsel’s petition to withdraw and affirm the trial court’s
confirmation of Mother’s consent to relinquish her parental rights. See In re
A.J.B., 797 A.2d at 266.
Decree affirmed. Petition to withdraw granted.
Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/18
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