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, STABILE, and FITZGERALD,* JJ.

OPINION BY FITZGERALD, J.:                               FILED MAY 26, 2016

        C.L.C. (“Mother”) appeals from the decree entered on August 18,

2015, voluntarily terminating her parental rights to her dependent, male

child, C.M.C. (“Child”), born in March of 2009, pursuant to the Adoption Act,

23 Pa.C.S. §§ 2501-2558, so that he may be adopted by his paternal

grandmother, D.S. (“Paternal Grandmother”), who resides in Alabama with

Child.1 We vacate and remand.

        Father resides in Towson, Maryland. N.T., 8/18/15, at 18-19. Mother

resides in Altoona, Pennsylvania. Id. After a special relief hearing, on May

25, 2010, the court ordered that G.C., Child’s maternal grandfather

(“Maternal Grandfather”), have legal and physical custody of Child. Id. at


*
    Former Justice specially assigned to the Superior Court.
1
  In the decree dated and entered on August 18, 2015, the trial court also
voluntarily terminated the parental rights of B.A.R.C., Child’s natural father
(“Father”). Father did not file an appeal and is not a party to the present
appeal.
J.S13041/16


17. On July 29, 2014, Blair County Children, Youth and Families (“BCCYF”)

received a phone call alleging that Maternal Grandfather was neglecting

Child; it implemented BCCYF services for the family that same day. Id. at

15-17.     On August 7, 2014, BCCYF obtained an emergency protective

custody order, which directed BCCYF would have legal and physical custody,

removed Child from Maternal Grandfather’s home, and placed Child in foster

care. Id. at 17.

        On October 3, 2014, the trial court adjudicated Child dependent under

Section 6302 of the Juvenile Act, removed Child from Maternal Grandfather’s

home, directed that BCCYF have legal and physical custody, and stated

Child’s placement would remain in foster care.2 Id. On December 24, 2014,

the trial court entered a four-month permanency review order maintaining

BCCYF’s legal and physical custody of Child and his placement with his foster

parents. On February 2, 2015, the trial court entered a permanency order

that changed Child’s permanency goal to adoption and maintained his

placement with his foster parents. Subsequently, on June 10, 2015, the trial

court modified Child’s placement from foster care home to the home of

Paternal Grandmother in Alabama.

        On July 31, 2015, BCCYF filed a petition for involuntary termination

of the parental rights of Mother and Father pursuant to 23 Pa.C.S. §


2
    42 Pa.C.S. § 6302.




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2511(a)(1), (2), (8), and (b).     On August 18, 2015, the trial court held a

joint   twelve-month    permanency review      hearing and    hearing on the

involuntary termination petition.     At the commencement of the hearing,

Father and Maternal Grandfather were present in the courtroom and Paternal

Grandmother was present via telephone, but Mother was not present. N.T.,

8/18/15, at 1, 6-7.      Attorney Justin Witt (representing BCCYF), Attorney

David Axinn (representing Father), Attorney Aimee Willett (guardian ad litem

(“GAL”)), and Attorney Traci Naugle (representing Mother), were also in the

courtroom. Id. at 1.

        At the hearing, Father voluntarily relinquished his parental rights. Id.

at 1-8. Father’s counsel, BCCYF’s counsel, and the trial court conducted a

colloquy of Father about his decision. Id. at 2-6. Father indicated that he

understood Paternal Grandmother wished to adopt Child and raise Child in

Alabama, supported the adoption, and believed it was in Child’s best

interests. Id. at 3. Subsequently, Mother’s counsel, in Mother’s absence,

stipulated to some of the facts averred in the involuntary termination

petition, specifically the names, dates, and ages of the individuals, but did

not stipulate to the remainder. Id. at 7-8.

        BCCYF first presented the testimony of Krista Gorman, who is

employed by Kids First in the New Steps Program in Altoona, Pennsylvania.

Id. at 9. Ms. Gorman testified about Mother’s interaction with reunification

services and the visits between Mother and Child. Id. at 9-15. Ms. Gorman



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testified that she would support BCCYF’s petition to involuntarily terminate

Mother’s parental rights. Id. at 15.

      Next, BCCYF questioned Rachel Steinbugl, a BCCYF caseworker

assigned to Child beginning in June of 2015. Id. at 15-16. Ms. Steinbugl

testified as to the involvement of BCCYF with Child and his parents. Id. at

16-17.   During Ms. Steinbugl’s testimony, at 9:50 a.m., Mother arrived in

the courtroom, and the trial court granted a brief recess for her to speak

with her legal counsel. Id. at 17-18. When the court resumed proceedings

on the record, counsel for BCCYF stated that Mother was willing to

voluntarily relinquish her parental rights. Id. at 18.

      On the record, Mother’s counsel and the trial court asked Paternal

Grandmother if she adopted Child, would she allow Mother two telephone

calls per week with Child and mutually agreed-upon visitation. Id. Paternal

Grandmother agreed to the requested telephone calls and visitation. Id.

      Mother’s counsel then conducted a colloquy of Mother regarding her

decision to voluntarily relinquish her parental rights, as follows:

         By Attorney Naugle: And is it your intention here today to
         consent to termination of your parental rights?

         By [Mother]: Yes.

         By Attorney Naugle: With regard to [Child]?

         By [Mother]: Right.

         By Attorney Naugle: And [Child] is your biological son?

         By [Mother]: Yes he is.


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        By Attorney Naugle: Okay and do you understand that if
        you consent to termination of your parental rights today
        that is final[;] parental rights and responsibilities as to
        [Child] will be forever severed as of today?

        By [Mother]: Yes.

        By Attorney Naugle: And you understand that currently
        [Child] is residing with [D.S.] the paternal grandmother?

        By [Mother]: Yes.

        By Attorney Naugle: And is it your understanding that she
        is willing to adopt [Child]?

        By [Mother]: Right.

        By Attorney Naugle: And you understand that even though
        that is the understanding and expectation you cannot
        make your consent to terminate parental rights contingent
        upon that[,] correct?

        By [Mother]: Yes.

        By Attorney Naugle: Okay and you’re not under the
        influence of any drugs or alcohol today?

        By [Mother]: No, ma’am.

        By Attorney Naugle: Okay this is your own choice and your
        own decision?

        By [Mother]: Yes.

        By Attorney Naugle: Okay anything else that you feel the
        Judge should know about your relationship with [Child]?

        By [Mother]: Nope.

N.T., 8/18/15, at 19-21.




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      Counsel for BCCYF asked Mother whether she had an opportunity to

consult with her attorney regarding her decision and whether she felt

comfortable with her decision. Id. at 21. Mother responded, “Yes, sir.” Id.

The trial court then stated on the record that Mother’s parental rights were

terminated.      Id.   When Maternal Grandfather attempted to ask Mother a

question, the trial court permitted Mother to provide the reason for her

decision:

            By [Mother]: I think it’s best for [Child]. I cannot give him
            what a parent can right now. I am struggling myself, and
            he’s making a lot more progress than what he has with
            [Paternal Grandmother] so I believe that’s where my son
            should be.

N.T., 8/18/15, at 22.

      The trial court then continued on to the permanency review portion of

the proceeding. Id. The GAL stipulated that if called to testify, the BCCYF

witnesses would testify consistent with the contents of the twelve-month

permanency review petition, without admitting to the veracity of the facts

set forth in the petition.      Id. at 23.    Counsel for BCCYF presented the

testimony of Paternal Grandmother regarding Child’s status in her home in

Alabama, where he resides. Id. at 24. Paternal Grandmother testified that

Child was doing well in her home. Id. at 24-29. She stated she intends to

adopt Child, and the adoption proceedings would take place in Blair County,

Pennsylvania. Id. at 27.




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     On that same date, August 18, 2015, the trial court entered the decree

voluntarily terminating the parental rights of Mother and Father pursuant to

the Adoption Act, finding the requirements of “Section 2501 et seq. relative

to voluntary relinquishment of parental rights have been satisfied”, and “All

requirements of the Act pertaining to notice have been met”.         Decree,

8/18/15, at 1-2. The trial court specifically found that clear and convincing

evidence had been presented to support the voluntary relinquishment of

Mother’s and Father’s parental rights pursuant to the Adoption Act. Id. at

2.3 On September 17, 2015,4 Mother timely filed her 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).

     In her brief on appeal, Mother raises the following question:

        Where a verbal relinquishment of parental rights was
        conditioned upon the entry of a post adoption contact
        agreement, was it knowing and voluntary and was it a
        violation of the statute?




3
  In an order dated August 18, 2015, and entered on August 19, 2015, the
trial court ordered legal and physical custody to remain with BCCYF, and the
placement to continue with Paternal Grandmother in Alabama, with the goal
to remain adoption, noting that both parents had voluntarily relinquished
their parental rights on that same date. Further, the trial court stated that
Paternal Grandmother was willing to maintain contact between the parents
and Child for his well-being and development.
4
  On that same date, Mother filed a motion for reconsideration.      The trial
court did not rule upon the motion.




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Mother’s Brief at 4.5

      We adhere to the following standard of review:

            [A]ppellate courts must apply an abuse of discretion
         standard when considering a trial court’s determination of
         a petition for termination of parental rights.         As in
         dependency cases, our standard of review requires an
         appellate court to accept the findings of fact and credibility
         determinations of the trial court if they are supported by
         the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190
         (2010). If the factual findings are supported, appellate
         courts review to determine if the trial court made an error
         of law or abused its discretion. Id.; [In re:] R.I.S., [614
         Pa. 275, 284, 36 A.3d 567, 572 (2011) (plurality opinion)].
         As has been often stated, an abuse of discretion does not
         result merely because the reviewing court might have
         reached a different conclusion. Id.; see also Samuel
         Bassett v. Kia Motors America, Inc., [613 Pa. 371,
         455], 34 A.3d 1, 51 (2011); Christianson v. Ely, 575 Pa.
         647[, 654-55], 838 A.2d 630, 634 (2003). Instead, a
         decision may be reversed for an abuse of discretion only
         upon demonstration of manifest unreasonableness,
         partiality, prejudice, bias, or ill-will. Id.

            As we discussed in R.J.T., there are clear reasons for
         applying an abuse of discretion standard of review in these
         cases. We observed that, unlike trial courts, appellate
         courts are not equipped to make the fact-specific
         determinations on a cold record, where the trial judges are
         observing the parties during the relevant hearing and often
         presiding over numerous other hearings regarding the
         child and parents. R.J.T., [608 Pa. at 28-30], 9 A.3d at
         1190. Therefore, even where the facts could support an
         opposite result, as is often the case in dependency and

5
  Mother waived any challenge to the permanency review order entered on
August 19, 2015, by failing to raise such a challenge in her concise
statement and brief. See Krebs v. United Refining Co. of Pa., 893 A.2d
776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are
not raised in both the concise statement of errors complained of on appeal
and the Statement of Questions Involved in his or her brief on appeal).




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        termination cases, an appellate court must resist the urge
        to second guess the trial court and impose its own
        credibility determinations and judgment; instead we must
        defer to the trial judges so long as the factual findings are
        supported by the record and the court’s legal conclusions
        are not the result of an error of law or an abuse of
        discretion. In re Adoption of Atencio, 539 Pa. 161[,
        165], 650 A.2d 1064, 1066 (1994).

In re S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).

     The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

     Moreover, we have explained:

        [t]he standard of clear and convincing evidence is defined
        as testimony that 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.”

Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

     With regard to revocation of consent to adoption in relation to a

voluntary relinquishment of parental rights, we review the trial court’s

determination for an abuse of discretion or legal error. In re K.G.M., 845

A.2d 861, 863 (Pa. Super. 2004). We stated,

        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. 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.




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Id. (quoting In re A.J.B., 797 A.2d 264, 266 (Pa. Super. 2002)); accord In

re A.M.B., 812 A.2d 659, 662 (Pa. Super. 2002); In re J.F., 862 A.2d

1258, 1260 (Pa. Super. 2004) (citing In re A.M.B. and In re A.J.B. for the

proposition that we must “determine if the record is free from legal error and

if the factual findings are supported by the evidence.”).

      In her brief on appeal, Mother states that she appeared at the hearing

on the involuntary termination petition, and testified that it was her wish to

relinquish her parental rights to Child.       Mother asserts that Paternal

Grandmother, as Child’s adoptive resource, testified that she would agree to

allow for specific continuous contact between Child and Mother.        Mother

claims that her relinquishment was contingent upon Paternal Grandmother’s

promise of continuous contact.    Mother further asserts that subsequent to

the hearing on August 18, 2015, her counsel attempted to have Paternal

Grandmother enter a written agreement in conformity with Act 101 of 2010,

23 Pa.C.S. §§ 2731-2742, but Paternal Grandmother refused. Mother, thus,

argues that her relinquishment of her parental rights was not knowing and

voluntary.    Mother complains that the trial court did not conduct the

termination in compliance with Sections 2501 and 2503. Moreover, Mother

contends that she did not file a petition to confirm her relinquishment, which

would have allowed her time to consider and an opportunity to revoke her

relinquishment.    Instead, the trial court, in relation to an involuntary

termination petition hearing, entered a voluntary relinquishment decree on



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the same day, terminating her parental rights.     Mother contends that the

trial court’s termination decree did not comply with the Adoption Act and

should be reversed.

     In its Opinion filed pursuant to Pa.R.A.P. 1925(a)(2)(i), the trial court

rejected Mother’s argument, stating:

            At the six-month Permanency Review Hearing for
        [Child], the [m]other declined to testify; however, her
        attorney stated in the record that Mother desired to
        relinquish her rights to pursue adoption with the [p]aternal
        [g]randmother in Alabama and intended to move closer to
        him in that region. (Dependency Review, February 2,
        2015 p.4). This decision by the [m]other set the stage for
        the 18-Month [sic] Permanency Review Hearing and
        simultaneous hearing on the Petition for Termination of
        Parental Rights. At that proceeding on August 18, 2015,
        Father voluntarily relinquished his rights. Mother arrived
        one hour late to the proceeding and the [c]ourt recessed
        to allow for private attorney client discussion. Upon their
        return to the courtroom, Mother indicated her willingness
        to voluntarily relinquish her parental rights. (Dependency
        Review, August 18, 2015, p. 18-21)

           Although the hearing had commenced on the Petition
        for Involuntary Termination of Parental Rights, after
        Mother voluntarily relinquished her parental rights, the
        [c]ourt had a basis to terminate the rights of the [m]other
        and then proceed to conduct the dependency hearing only.

            The transcript supports the fact that Mother’s attorney
        colloquied Mother’s understanding that although her son
        [Child]   resided    in  Alabama     with    his  [p]aternal
        [g]randmother, which was the intended adoptive home,
        her relinquishment was not contingent on such fact
        (Dependency Review, August 18, 2015 p. 20).
        Additionally,   Mother   stated    her    reason   for   her
        relinquishment was “I think it’s best for [Child]. I cannot
        give him what a parent can right now. I am struggling
        myself and he’s making a lot more progress than what he
        has with [Paternal Grandmother,] and I believe that’s


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         where by [sic] son should be”.        (Dependency Review,
         August 18, 2015 p. 22)

            Additionally, Mother did not make efforts to negotiate
         an Act 101 agreement which is now waived.

            We also note that before Mother arrived at the
         termination proceedings, the testimony established that
         [Child] entered dependency and placement on August 7,
         2014 after removal from the home of his [m]aternal
         [g]randfather, [G.C.]. Reunification efforts however began
         with Mother, not grandfather, on November 25, 2014
         (after a referral to the Kids First Agency on September 29,
         2014). Reunification terminated at the end of January [of
         2015] at Mother’s request.         Mother never established
         stable housing and had significant problems finding mental
         stability. (Dependency Review, August 18, 2015 p. 9-15).
         This back story helped to inform the [c]ourt of the
         credibility of Mother’s voluntary relinquishment.

Trial Ct. Op., 10/27/15, at 1-3. We agree Mother is entitled to relief.

      This Court has stated that Chapter 25 of the Adoption Act concerns

“proceedings prior to petitions to adopt.” We explained,     “Subchapter   A,

titled “Voluntary Relinquishment”, is distinguishable from Subchapter B,

“Involuntary Termination”, indicating the statutory intent to treat the

matters separately. In re A.M.B., 812 A.2d at 668.

      Here, BCCYF filed the petition to involuntarily terminate Mother’s

parental rights pursuant to Subchapter B of the Adoption Act, specifically,

Section 2512(a)(2). Section 2512 states as follows:

         § 2512. Petition for involuntary termination

         (a) Who may file.—A petition to terminate parental rights
         with respect to a child under the age of 18 years may be
         filed by any of the following:



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              (1) Either parent when termination is sought with
              respect to the other parent.

              (2) An agency.

              (3) The individual having custody or standing in loco
              parentis to the child and who has filed a report of
              intention to adopt required by section 2531 (relating to
              report of intention to adopt).

              (4) An attorney representing a child or a guardian ad
              litem representing a child who has been adjudicated
              dependent under 42 Pa.C.S. § 6341(c) (relating to
              adjudication).

23 Pa.C.S. § 2512.

      Section 2513 provides for the hearing on the involuntary termination

petition.

            § 2513. Hearing

            (a) Time.—The court shall fix a time for hearing on a
            petition filed under section 2512 (relating to petition for
            involuntary termination) which shall not be less than ten
            days after filing of the petition.

            (b) Notice.—At least ten days’ notice shall be given to the
            parent or parents, putative father, or parent of a minor
            parent whose rights are to be terminated. . . .

                                    *     *      *

            (d) Decree.—After hearing, which may be private, the
            court shall make a finding relative to the pertinent
            provisions of section 2511 (relating to grounds for
            involuntary termination) and upon such finding may enter
            a decree of termination of parental rights.

23 Pa.C.S. § 2513.




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     When an agency has filed a petition for involuntary termination of

parental rights, the agency bears the burden of proving one or more of the

factors set forth in Section 2511 at the hearing on the petition.         In re

R.N.J., 985 A.2d at 276; see In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc) (stating that this Court may affirm the trial court’s decision

regarding the termination of parental rights with regard to any one

Subsection of Section 2511(a)). This Court has explained that the focus in

terminating parental rights under Section 2511(a) is on the parent, but,

under Section 2511(b), the focus is on the child.     In re C.L.G., 956 A.2d

999, 1008 (Pa. Super. 2008) (en banc).

     In contrast, Subchapter A of the Adoption Act provides for voluntary

relinquishment of parental rights under Sections 2501 and 2502.          Section

2501 provides as follows:

         § 2501. Relinquishment to agency

         (a) Petition.—When any child under the age of 18 years
         has been in the care of an agency for a minimum period of
         three days or, whether or not the agency has the physical
         care of the child, the agency has received a written notice
         of the present intent to transfer to it custody of the child,
         executed by the parent, the parent or parents of the child
         may petition the court for permission to relinquish forever
         all parental rights and duties with respect to their child.

         (b) Consents.—The written consent of a parent or
         guardian of a petitioner who has not reached 18 years of
         age shall not be required. The consent of the agency to
         accept custody of the child until such time as the child is
         adopted shall be required.

23 Pa.C.S. § 2501.


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      Section 2502 provides as follows:

         § 2502. Relinquishment to adult intending to adopt
         child

         (a) Petition.—When any child under the age of 18 years
         has been for a minimum period of three days in the
         exclusive care of an adult or adults who have filed a report
         of intention to adopt required by section 2531 (relating to
         report of intention to adopt), the parent or parents of the
         child may petition the court for permission to relinquish
         forever all parental rights to their child.

         (b) Consents.—The written consent of a parent or
         guardian of a petitioner who has not reached 18 years of
         age shall not be required. The adult or adults having care
         of the child shall file a separate consent to accept custody
         of the child.

23 Pa.C.S. § 2502.

      Section 2503 provides for a hearing on the voluntary relinquishment

petition as follows:

         § 2503. Hearing

         (a) General rule.—Upon presentation of a petition
         prepared pursuant to section 2501 (relating to
         relinquishment to agency) or section 2502 (relating to
         relinquishment to adult intending to adopt child), the court
         shall fix a time for hearing which shall not be less than ten
         days after the filing of the petition. The petitioner must
         appear at the hearing.

         (b) Notice.—

         (1) At least ten days’ notice of the hearing shall be given
         to the petitioner. . . .

                                  *     *      *

         (c) Decree.—After hearing, which shall be private, the
         court may enter a decree of termination of parental rights


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           in the case of their relinquishment to an adult or a decree
           of termination of parental rights and duties, including the
           obligation of support, in the case of their relinquishment to
           an agency.

23 Pa.C.S. § 2503.

      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. . . . 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 rights and duties, including the
           obligation of support, in the case of a relinquishment to an
           agency.

23 Pa.C.S. § 2504.




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      Section 2505 of the Adoption Act provides for counseling for the parent

voluntarily relinquishing his or her parental rights under Section 2503 or

2504, as follows:

         § 2505. Counseling

                                 *     *      *

         (c) Court referral.—Prior to entering a decree of
         termination of parental rights pursuant to section 2503
         (relating to hearing) or 2504 (relating to alternative
         procedure for relinquishment), if the parent whose rights
         are to be terminated is present in court, the court shall
         inquire whether he or she has received counseling
         concerning the termination and the alternatives thereto
         from an agency or from a qualified counselor listed by a
         court pursuant to subsection (b). If the parent has not
         received such counseling, the court may, with the parent’s
         consent, refer the parent to an agency or qualified
         counselor listed by a court pursuant to subsection (b) for
         the purpose of receiving such counseling. In no event
         shall the court delay the completion of any hearing
         pursuant to section 2503 or 2504 for more than 15 days in
         order to provide for such counseling.

23 Pa.C.S. § 2505.

      Thus, the Adoption Act provides two alternative procedures for a

parent to voluntarily relinquish his or her parental rights: (1) by the parent

filing a petition to relinquish parental rights pursuant to Sections 2501 or

2502; or (2) by the adoptive parent filing a petition to confirm a birth

parent’s consent to adoption under Section 2504.            Pursuant to the

procedures set forth in Sections 2501 and 2502, the natural parent first files

a petition in the trial court seeking permission to permanently relinquish his

or her parental rights to the minor child. The Adoption Act requires the trial


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court to hold a hearing, and for the relinquishing parent to ratify his or her

consent to termination, no less than ten days after the petition is filed. See

23 Pa.C.S. § 2503(a). The comment to Section 2503 explained:

         Subsection (a) is amended to make the petitioner’s
         appearance at the hearing mandatory. The petitioner’s in-
         court ratification of consent assures due process
         requirements in view of the finality of the termination
         decree as to the parent.

23 Pa.C.S. § 2503(a) cmt.

      Additionally, Pennsylvania Orphans’ Court Rule (“Pa. O.C. Rule”)

15.2(a) provides as follows:

         Rule 15.2. Voluntary relinquishment to agency

         (a) Petition. A petition under Section [2501] of the
         Adoption Act to relinquish parental rights and duties with
         respect to a child who has been in the care of an Agency
         shall include the following allegations:

            (1) the name, address, age, racial background and
            religious affiliation of each petitioner;

            (2) the information required in subparagraph (1) as to
            any parent who is not a petitioner, including the father
            of a child born out of wedlock, if he has been identified,
            unless the court, for cause shown, determines such
            information is not essential;

            (3) the marital status if the mother as if the time of
            birth of the child and during one year prior thereto and,
            if the mother has ever been married, the name of her
            husband or husbands and her maiden name;

            (4) the name, age, date of birth, racial background, sex
            and religious affiliation of the child;

            (5) the name and address of the Agency having care of
            the child;


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           (6) the date when the child was placed with the
           Agency;

           (7) when the child is born out of wedlock, whether the
           mother and the father of the child intend to marry;

           (8) the reasons for seeking relinquishment;

           (9) that each petitioner understands the petition, has
           considered the alternatives, and has executed the
           petition voluntarily to promote what the petitioner
           believes to be in petitioner’s and the child’s best
           interests.

        (b) Exhibits. The petition shall have attached to it the
        following exhibits:

           (1) the joinder of a parent who is not a petitioner or his
           or her waiver of all interest in the child, if either is
           obtainable;

           (2) a birth certificate or certification of registration of
           birth of the child;

           (3) the written consent of a parent or guardian of a
           petitioner who has not reached 18 years of age;

           (4) the joinder of the Agency having care of the child
           and its consent to accept custody of the child until such
           time as the child is adopted.

        (c) Notice and Hearing. If a parent, including the parent
        of a child born out of wedlock, has not relinquished his or
        her rights and duties in and to the child or joined in the
        other parent’s petition hereunder, then notice of the
        hearing on the petition to relinquish rights and duties shall
        be given to the first referred to parent as provided in Rule
        15.6. A parent may waive in writing the right to such
        notice. Each petitioner and each person whose joinder or
        consent is attached to the petition shall be examined under
        oath at the hearing unless excused by the court.

Pa. O.C. Rule 15.2.


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J.S13041/16


      In the instant case, Mother did not file a written petition to relinquish

her parental rights pursuant to Section 2501(a), or a written petition

requesting the permission of the trial court to permanently relinquish her

parental rights and duties to Child under Section 2502(a).

      The trial court treated Mother’s “relinquishment” of her parental rights

at   the   hearing   on   BCCYF’s   involuntary    termination   petition   as   a

relinquishment to an agency under Section 2501(a).               The involuntary

termination petition did not conform to the requirements for a petition under

Section 2501(a) or Section 2502(a), and it did not satisfy the requirements

in Pa. O.C. Rule 15.2(a).    The petition failed to state Mother’s reasons for

seeking relinquishment.     Further, the petition did not state that Mother

understood the petition, considered available alternatives, and believed that

relinquishing her parental rights was in Child’s best interests. See Pa. O.C.

Rule 15.2(a).     During the oral colloquy at the hearing, Mother’s counsel

questioned her about these matters.           Neither the oral examination nor

BCCYF’s involuntary termination petition, however, complied with the

requirements for a written voluntary relinquishment petition under Section

2501 or 2502. Likewise, neither the oral colloquy nor BCCYF’s involuntary

termination petition complied with the requirements for a petition under

Section 2504.

      Further, the panel in In re A.M.B. stated:

           The parental interest is so fundamental that a strict
           scrutiny standard of review is required to make a finding


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J.S13041/16


          terminating parental rights, and due process requires that
          the party seeking termination must demonstrate by clear
          and convincing evidence that the parents can no longer
          perform parental duties and thus are not entitled to
          parental rights. Santosky v. Kramer, 455 U.S. 745, 102
          S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

In re A.M.B., 812 A.2d at 670.

        The trial court never completed the involuntary termination of parental

rights proceeding or addressed the evidence in support of that petition. By

convening an immediate hearing on Mother’s voluntary relinquishment of her

parental rights, the court denied Mother the mandatory ten-day deliberation

period so that she could consider her voluntary relinquishment choice prior

to her in-court ratification of the decision. See 23 Pa.C.S. § 2503(a) (“the

court shall fix a time for hearing which shall not be less than ten days after

filing of the petition.”). Moreover, pursuant to Pa. O.C. Rule 15.2(c), Mother

could have waived notice of the relinquishment hearing in writing, but she

did not do so.

        The record reflects that, on August 3, 2015, the trial court directed

BCCYF to give Mother notice of a hearing on the involuntary termination

hearing on BCCYF’s petition pursuant to 23 Pa.C.S. § 2513 and Pa. O.C. Rule

15.6 at least ten days in advance of the hearing scheduled for August 18,

2015.      There is no indication in the record that Mother waived the

mandatory ten-day deliberation period pursuant to Section 2503(a), or that

the ten-day period of that section was explained to her during the colloquy.

Although judicial economy might dictate avoiding undesirable delay in a


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J.S13041/16


Children’s Fast Track case, we are unwilling to find that Mother waived her

right to reflect upon the decision to relinquish parental rights when she was

never advised of that right on the record.

      Moreover, Mother asserts that her decision to voluntarily relinquish her

parental rights was not knowingly, deliberately and voluntarily made.

Mother claims that her relinquishment was qualified, conditioned on a post-

adoption contact agreement with Paternal Grandmother, which she did not

waive.   Mother’s Brief, at 10.   Mother alleges that, after the hearing on

August 18, 2015, her counsel attempted to reduce Paternal Grandmother’s

agreement for post-adoption contact to a written agreement.         Id.   She

claims that Paternal Grandmother refused to enter the written agreement,

and refused to allow the contact between Mother and Child to which she had

agreed on the record. Id. Mother contends that she did not waive the right

to enter into an Act 101 agreement concerning post-adoption contact,

because Act 101 does not allow for the entry of the agreement until after

parental rights have been terminated. Id.

      Our Supreme Court has explained that the purpose of a hearing on a

petition for voluntary relinquishment is to insure an intelligent, voluntary,

and deliberate consent to the termination of parental rights. In re Wolfe,

454 Pa. 550, 555, 312 A.2d 793, 796 (1973). “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., 490 Pa.



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237, 240, 416 A.2d 88, 90 (1980). The consent given to terminate parental

rights voluntarily must be “clear and unequivocal.” In re Singer, 457 Pa.

518, 523, 326 A.2d 275, 278 (1974). This Court has stated, “Termination of

parental rights is a drastic measure that should not be taken lightly.    Not

only are [the parent’s] rights at stake here, but [the child’s] right to a

relationship with [his or her parent] is also at stake.”   In re K.G.M., 845

A.2d at 864 (citing In re Stickley, 638 A.2d 976, 980 (1994)). Further, in

In re K.G.M., this Court stated, “We are unwilling to allow the termination

of . . . parental rights, however, without strict compliance with the

procedures set forth by the Legislature. . . .” In re K.G.M., 845 A.2d at 865

(emphasis added).

      Without a valid waiver of her right to post-adoption contact, we cannot

conclude that Mother intelligently, voluntarily, and deliberately consented to

terminate her parental rights. BCCYF should have proceeded on its petition

under Section 2511(a) and (b).     The trial court could have then reviewed

BCCYF’s evidence, and we could have properly reviewed its decree. Instead,

the trial court relieved BCCYF of its burden of proof under Section 2511,

accepted   Mother’s   relinquishment    pursuant   to   Section   2501,   and

circumvented the Adoption Act’s protection of Mother’s due process rights.

See In re K.G.M., 845 A.2d at 865. Absent strict compliance with the

Adoption Act, we cannot conclude that Mother’s consent was voluntary. See

id. We will not affirm the termination of Mother’s parental rights when the



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statutory requirements have not been satisfied. See id. Mother’s consent

to voluntarily terminate her parental rights is, therefore, invalid.      We are

constrained to vacate the decree voluntarily terminating her parental rights.

We also remand the case with instructions to proceed on the involuntary

termination petition or for Mother to file a proper voluntary petition under

Subchapter A of the Adoption Act.

      Decree    vacated.   Case   remanded      with   instructions.   Jurisdiction

relinquished.

      Stabile, J. has joined the Opinion.

      Lazarus, J. files a Concurring Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2016




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