J-S70020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.R.M., A          :   IN THE SUPERIOR COURT OF
MINOR                                  :        PENNSYLVANIA
                                       :
                                       :
APPEAL OF: C.P.                        :
                                       :
                                       :
                                       :
                                       :   No. 782 MDA 2017

               Appeal from the Decree Entered April 12, 2017
 In the Court of Common Pleas of Luzerne County Orphans’ Court at No(s):
                                 A-8513

IN THE INTEREST OF: A.R.P., A          :   IN THE SUPERIOR COURT OF
MINOR                                  :        PENNSYLVANIA
                                       :
                                       :
APPEAL OF: C.P., MOTHER                :
                                       :
                                       :
                                       :
                                       :   No. 783 MDA 2017

               Appeal from the Decree Entered April 12, 2017
 In the Court of Common Pleas of Luzerne County Orphans’ Court at No(s):
                                 A-8514


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                     FILED DECEMBER 28, 2017

     C.P. (“Mother”) appeals from the April 12, 2017 decrees in the Court of

Common Pleas of Luzerne County that terminated her parental rights

pursuant to 23 Pa.C.S. § 2504, with respect to her son, J.R.M., born in

October of 2013, and daughter, A.R.P., born in March of 2007 (collectively,
J-S70020-17


“the Children”).1 N.T., 4/12/17, at 10. After careful review, we vacate both

decrees.

       We summarize the relevant facts and procedural history as follows:

The Children were placed in the custody of Luzerne County Children and

Youth Services (“CYS”) on March 25, 2015, due to Mother’s and Father’s

drug and alcohol use and concerns regarding housing. N.T., 4/12/17, at 10;

Petition for Termination of Parental Rights, 11/28/16, at ¶ 10. CYS placed

the Children in kinship foster care with A.R. (“Foster Mother”), their

maternal aunt. N.T., 4/12/17, at 84. At all times up to and including the

date of the termination hearing on April 12, 2017, Mother visited with the

Children “on a daily basis.” Id. at 28. On November 28, 2016, CYS filed

petitions for the involuntary termination of Mother’s and Father’s parental

rights. By order dated November 17, 2016, and filed November 28, 2016,

the trial court appointed Richard Wojtowicz, Esquire, to represent Mother.

       On December 13, 2016, Mother executed the following documents with

respect to the Children at the CYS office in the presence of two CYS

employees: (1) consent to adoption; (2) voluntary relinquishment of

parental rights colloquy (“colloquy”); and (3) acknowledgment of voluntary

relinquishment procedure (“acknowledgment”).          Court-appointed counsel

____________________________________________


1 On April 12, 2017, the orphans’ court involuntarily terminated the parental
rights of the Children’s father, M.M. (“Father”). Father did not file a notice of
appeal nor is he a party to this appeal.



                                           -2-
J-S70020-17


was not present, nor is there any indication in the record that he had notice

of the meeting.       N.T., 4/12/17, at 17.      In the acknowledgment, Mother

agreed not to proceed with the subsequent voluntary relinquishment

procedure, which would require her to appear for a voluntary relinquishment

hearing.    Instead, she acquiesced that CYS would request the court to

confirm her consent to the adoption of the Children. N.T., 4/12/17, at 16.

On March 13, 2017, CYS filed petitions to confirm Mother’s consent to

adoption with respect to the Children. Id. at 11.

       The orphans’ court held a hearing on the aforesaid petitions on April

12, 2017, during which CYS presented the testimony of its casework

supervisor, Allison Miller, who was assigned as the Children’s caseworker in

January, 2016.        N.T., 4/12/17, at 8–9.       At this hearing, Mother was

represented by new court-appointed counsel, Robert L. Kobilinski, Esquire,

who succeeded Mr. Wojtowicz.2            As noted, Mr. Wojtowicz was not present

____________________________________________


2 It is not clear from the certified record when the orphans’ court appointed
Mr. Kobilinski to represent Mother in the termination matter. CYS counsel
stated at the confirmation-of-consent hearing on April 12, 2017, that Mr.
Kobilinski had “mistakenly” been appointed for Father” and requested “an
amended order correcting it.” N.T., 4/12/17, at 7–8. Thus, Mr. Kobilinski
was erroneously appointed for Father, not Mother, at some unknown date,
and the appointment order was not corrected until April 12, 2017. During
the April 12, 2017 hearing, Mr. Kobilinski told the court he was appointed
“maybe 30 days ago,” that is, in mid-March, 2017. N.T., 4/12/17, at 33.
The record also reveals that Mother did not learn of the appointment of Mr.
Kobilinski until March 20, 2017, at the earliest, and never spoke to Mr.
Kobilinski until roughly March 28, 2017, two weeks before the instant
hearing. N.T., 4/12/17, at 51, 52–53.



                                           -3-
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when Mother executed the documents on December 13, 2016.                   N.T.,

4/12/17, at 31-32.      Further, Mr. Wojtowicz was on vacation at an

unspecified time in December of 2016, and he subsequently retired. Id. at

33. At the April 12, 2017 hearing, Mr. Kobilinski asserted that Mother was

effectively without legal counsel from December of 2016 until new counsel’s

appointment. Id. at 33, 39. For this reason, Mr. Kobilinski argued during

the hearing that the documents executed by Mother were not valid. Id. at

31-32, 38-39. Mother testified on her own behalf to this effect.

     By decrees dated April 12, 2017, the orphans’ court granted the

petitions to confirm Mother’s consent to the adoption of the Children and

terminated her parental rights. On April 13, 2017, the court amended the

decree with respect to J.R.M. for the purpose of correcting his middle name.

Mother timely filed notices of appeal and concise statements of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which

this Court consolidated sua sponte. The orphans’ court filed its Rule 1925(a)

opinion on June 8, 2017.

     On appeal, Mother presents the following issues for our review:

     Whether the [orphans’] [c]ourt erred in terminating the parental
     rights of [the Children], as testimony offered did not establish by
     clear and convincing evidence the requirements of the Adoption
     Act of 1980, October 15, P.L. 934, No. 163, 1, 23 [Pa.]C.S.A.
     Section 2504[?]

     Whether the [orphans’] [c]ourt abused its discretion/erred in
     terminating parental rights of [Mother], as she had not been
     given effective assistance of counsel at the time she signed a


                                    -4-
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      voluntary confirmation of consent to adoption of her minor
      children[?]

      Whether the [orphans’] [c]ourt committed an error of law in the
      [c]ourt’s decision to terminate [Mother’s] parental rights by
      improperly accepting [CYS’s] petition to confirm adoption due to
      the fact that [Mother] produced this document without the
      effective assistance of counsel[?]

Mother’s Brief at 3-4.

      Mother’s issues involve our interpretation and application of the

Adoption Act (“ the Act”), 23 Pa.C.S. § 2101-2938. This Court has explained

this process as follows:

            “The interpretation and application of a statute is a
      question of law that compels plenary review to determine
      whether the court committed an 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).
      Further,

         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.




                                     -5-
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     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, 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 history; (8)
     legislative and administrative interpretations of such statute).
     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).

In re Adoption of J.A.S., 939 A.2d 403, 405-406 (Pa. Super. 2007).

     The pertinent provisions of the Act are as follows, in relevant part:

     § 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 periods
             under section 2711 (relating to consents necessary to
             adoption). The original consent or consents to the adoption
             shall be attached to the petition.

23 Pa.C.S. § 2504(a).

     § 2711. Consents necessary to adoption




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     (a) General rule.—Except as otherwise provided in this part,
     consent to an adoption shall be required of the following:

                                  * * *

       (3) The parents or surviving parent of an adoptee who has
       not reached the age of 18 years.

                                  * * *

     (c) Validity of consent.—No consent shall be valid if it was
     executed prior to or within 72 hours after the birth of the
     child. . . . 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):

                                  * * *

          (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.




                                   -7-
J-S70020-17


          (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.

                                  * * *

          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



                                   -8-
J-S70020-17


              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.

23 Pa.C.S. §§ 2504, 2711.

       With these provisions in mind, we turn to the merits of Mother’s issues

on appeal.3      Initially, we acknowledge that Mother did not revoke her

consents to adoption in writing within thirty days or at any time after

execution of the consents. 23 Pa.C.S. § 2711(c)(1)(ii). In addition, Mother

did not file petitions alleging fraud or duress within sixty days or at any time

after execution of the consents.          23 Pa.C.S. § 2711(c)(3)(i)(A).   Rather,


____________________________________________


3   We are compelled to note that Mother’s brief does not comply with
Pa.R.A.P. 2119(a) in that it does not divide the argument section into as
many parts as there are questions to be argued. Indeed, Mother does not
divide the argument into any separate parts nor does she distinctively
display any particular point. See Pa.R.A.P. 2119(a) (“The argument shall be
divided into as many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type distinctively
displayed—the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent”). Pa.R.A.P. 2101
underscores the seriousness with which this Court takes deviations from
procedural rules, as we may quash or dismiss an appeal if an appellate brief
has substantial defects.       See Pa.R.A.P. 2101 (Conformance with
Requirements). Here, we address Mother’s arguments insofar as we are
able to discern them, noting that Mother’s first issue is wholly abandoned in
her brief.



                                           -9-
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Mother has asserted that she was without the effective representation of

counsel throughout the process.

      We summarize Mother’s arguments. Mother argues that she “had no

legal representation” within thirty to sixty days after executing the consents

to adoption. Mother’s Brief at 15. Mother argues she was unable to discuss

the possibility of signing a revocation of consent with her counsel because

when she contacted Mr. Wojtowicz a few days later with “second-thoughts,”

he told her he was going on vacation and advised her to call him again after

he returned. Id. at 14, 18. Mother maintains that he never took her calls

upon his return, and then he retired. In addition, Mother contends that CYS

never advised her that she had the right to have counsel present when she

signed the documents. Id. at 20.

      Mother therefore advances a claim of ineffective assistance of counsel

during the applicable thirty or sixty-day statutory period. Mother argues as

follows:

            [Mother], as an indigent party, indeed was [not] afforded
      the protection of legal counsel under the law.               The
      ineffectiveness of this counsel by not contacting her to discuss
      the legal significance of a voluntary relinquishment of parental
      rights led [Mother] to, in fact, sign a voluntary relinquishment
      and . . . consent to adoption, which were ultimately the cause of
      the decree[s] of termination.

Mother’s Brief at 17–18.

      This Court has explained an indigent person’s right to counsel in a

termination of parental rights case as follows:


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     The unique nature of parental termination cases has long been
     recognized by the Supreme Court of Pennsylvania. Thus, In Re:
     Adoption of R.I., 312 A.2d 601 (Pa. 1973), the Supreme Court
     held that an indigent parent in a termination of parental rights
     case has a constitutional right to counsel. The right to counsel
     in parental termination cases is the right to effective
     assistance of counsel even though the case is civil in
     nature. In Re: Adoption of T.M.F., 573 A.2d 1035 (Pa.
     Super. 1990) (en banc); see also In the Interest of S.W., 781
     A.2d 1247 (Pa. Super. 2001). However, this right is more
     limited than that in criminal cases, as claims of ineffective
     assistance of counsel must be raised on direct appeal. We then
     review the record as a whole to determine whether or not the
     parties received a “fundamentally fair” hearing; a finding that
     counsel was ineffective is made only if the parent demonstrates
     that counsel’s ineffectiveness was “the cause of the decree of
     termination.” T.M.F., 573 A.2d at 1044; see also S.W., 781
     A.2d at 1249.

In the Interest of J.T., 983 A.2d 773, 774–775 (Pa. Super. 2009)

(emphasis added).

     In its Pa.R.A.P. 1925(a) opinion, the orphans’ court found that it must

first review the timeliness of Mother’s request to revoke or challenge the

validity of her consents to adoption prior to addressing whether her consents

were valid.   In so doing, the orphans’ court rejected Mother’s ineffective-

assistance-of-counsel claims. It concluded that Mother failed to revoke her

consent to adoption within thirty days from the date of her consent to

adoption and that her consent was knowing, voluntary, and deliberate

“regardless of her claim that she did not receive effective assistance of

counsel.”   Orphans’ Court Opinion, 6/8/17, at 5.   We conclude the record

compels otherwise.




                                   - 11 -
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      Allison Miller   testified that    when she   served Mother with the

involuntary termination of parental rights petition on November 30, 2016,

Mother indicated that she had been speaking to Foster Mother “about the

possibility of signing over guardianship” to her.   N.T., 4/12/17, at 12, 21.

Ms. Miller stated that she proceeded to advise Mother “that there was [sic]

different ways if she wished to do a voluntary. She would be able to either

do that by coming into the office to sign the paperwork or by coming into

the hearing and verbalizing her desire to voluntarily relinquish her parental

rights.”   Id.   Ms. Miller subsequently scheduled an appointment for the

confirmation of consents for December 13, 2016. Id. at 12–13.

      The December 13, 2016 appointment occurred at CYS offices.            N.T.,

4/12/17, at 15. Ms. Miller explained that Mother had questions about the

process and “especially in regards to the colloquy, which we had her sign

prior to the consent.” Id. at 14. Ms. Miller continued to extend advice to

Mother and explained:

      that she already had signed the consent . . . and that was her
      intention for the minor children to be adopted.             I also
      explained . . . that by signing this document, if she chose not to
      attend the voluntary relinquishment hearing . . . the Agency
      would be able to testify on her behalf. But that if she did attend,
      she may have to take the stand and indicate to the [c]ourt why
      she would wish to relinquish her parental rights.

Id. at 16. Regarding the colloquy signed prior to the consents, CYS counsel

asked Ms. Miller if Mother requested the presence of counsel, and Mother

replied that he “just was not really helping her in this matter.” Id. at 17.


                                        - 12 -
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     Ms. Miller further acknowledged that Mother “was very tearful” and

stopped numerous times during Ms. Miller’s explanation of the colloquy.

N.T., 4/12/17, at 18.    Ms. Miller admitted that “[i]t was very hard for

[Mother] to sign these documents. I know that she loves her children very,

very much. Her children love her as well.” Id. at 24. Ms. Miller noted:

     Specifically on the question number 15 of the colloquy, when we
     read to her, do you understand that if you voluntarily relinquish
     your parental rights[,] your rights to [the Children] are forever
     ended and your child[ren] would be placed for adoption, she did
     ask us on that particular question, so you mean to tell me if I get
     my life back in order in five years, I wouldn’t be able to get my
     children back . . .[?]

Id. at 18.    Ms. Miller discerned that Mother mistakenly “thought that by

signing the documents it would be a matter of transferring guardianship of

the two children over to [Foster Mother],” and she described Mother as

“appear[ing] to be in shock.” Id. at 20, 25. Ms. Miller acknowledged that

Foster Mother subsequently told Ms. Miller on December 29, 2016, that

Mother “was thinking about revoking her consent.” Id. at 19, 26.

     Mother told the orphans’ court she “feel[s] like I’m a 5th grader

standing up in court. I hear the laws and what’s being presented to me, but

I’m not sure I understood, but I tried to understand.” N.T., 4/12/17, at 44.

Mother testified that Attorney Wojtowicz never gave her any advice, and

when she brought up any concerns, he “put [her] down and [told her] that

[she] was floating on a cloud.” Id. at 53. She did not speak with counsel

before signing the consents on December 13, 2016, and when she contacted


                                   - 13 -
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him a few days later, counsel told Mother he was going on vacation. Id. at

52–53. When Mother tried to reach counsel, he did not take her calls and

did not call her back. Id. Mother stated that she did not know she could get

a different attorney, professing: “I thought that was my attorney and I had

to stick with him. I never had the option or being told by anybody that I had

the option to get another attorney.” Id. at 55.

     CYS counsel asked Mother if she tried to get a new lawyer once she

knew Attorney Wojtowicz retired. Mother responded:

     I found    there was a free place there for public defenders,
     lawyers.    I went to the 5th floor to the lawyers and they told me
     they do    not do anything for children, like where I’m at with
     Children   and Youth.

           So then I proceeded to go to the third floor and I got a
     bunch of paperwork to fill out but they told me I was going to
     need at least a month and a half for even free I guess, but
     nothing ever came of it.

N.T., 4/12/17, at 58–59.

     Our review of the record reveals that the orphans’ court’s conclusions

are not supported therein. Regarding Mother’s assertion that Mr. Wojtowicz

was unavailable during the thirty-day period during which Mother could have

revoked her consents because he went on vacation and then did not return

her telephone calls, the orphans’ court found that Mother did not indicate

she tried to call her counsel for the sole purpose of intending to revoke her

consent. Trial Court Opinion, 6/8/17, at 9. The record is clear that Mother

hesitated about professing consent, she had no counsel to advise her, and


                                    - 14 -
J-S70020-17


her efforts to reach her counsel in the ensuing thirty-day period were

rebuffed.    The orphans’ court’s theory that because CYS told Mother she

could revoke the consents herself within thirty days and she understood its

advice, her claim had no merit, is not relevant.      Mother was entitled to

effective representation by counsel, and this record reveals that Mother did

not receive it.

       Thus, we have no hesitation in concluding that Mother was deprived of

effective representation by counsel at every turn.4    At the December 13,

2016 meeting with the CYS caseworker, Mother’s court-appointed counsel

was not present, and Ms. Miller offered explanation and advice.        When

Mother attempted to contact her counsel a few days after signing the

consents, and within the thirty-day period in which she could revoke them,

counsel told Mother he was going on vacation and to call him back. When

Mother called him back, he refused her calls, and subsequently retired

without ever contacting Mother. Mother’s efforts to obtain new counsel were

unfruitful for a variety of reasons, not the least of which was Mother’s

misunderstanding of the nature of the court appointment.         When new

____________________________________________


4 CYS’s assertion that Mother had counsel present at the “hearing” held two
days after she signed the consents is specious, and counsel’s suggestion
borders on the absurd. First, as previously noted, Ms. Miller “advised”
Mother she need not be present at the hearing. Second, the orphans’ court
compelled CYS counsel to clarify that there actually was no hearing; it
merely was “the call of the list” “to schedule [a] date for the [termination]
hearing.” N.T., 4/12/17, at 35.



                                          - 15 -
J-S70020-17


counsel eventually was appointed, he was erroneously appointed for Father,

not Mother, and the correction was not made until the April 12, 2017

hearing. Mother did not learn of the appointment of new counsel until two

weeks before the April hearing, well beyond the thirty and sixty-day

statutory periods.

       Our courts have acknowledged that termination of parental rights “is a

drastic measure that should not be taken lightly” because the parent’s rights

to her child are at stake as well as the child’s relationship with his or her

parent. In re Adoption of Stickley, 638 A.2d 976 (Pa. Super. 1994). We

cannot say that Mother’s consent was intelligent, voluntary, and deliberate,

as required, Matter of Christopher P., 389 A.2d 94 (Pa. 1978), because

Mother failed to receive the effective representation of counsel mandated by

law. Our review of the record does not advance a procedure of fundamental

fairness.   Instead, there is clear and convincing evidence that it is more

likely than not that the result herein would have been different absent

counsel’s ineffective assistance. In re K.D., 871 A.2d 823, 829 (Pa. Super.

2005).5

       Decrees vacated.


____________________________________________


5   The orphans’ court’s additional analysis under 23 Pa.C.S. § 2511(b) is
irrelevant in this case. Section 2511(b) applies only to the involuntary
termination of parental rights. In this case, CYS requested that the court
confirm Mother’s consent to adoption pursuant to 23 Pa.C.S. § 2504(a).



                                          - 16 -
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/17




                          - 17 -
