J-S13041-16

                                   2016 PA Super 112



IN RE: C.M.C., A MINOR                                  IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


APPEAL OF: C.L.C., MOTHER
                                                            No. 1432 WDA 2015


                Appeal from the Decree Entered August 18, 2015
                 In the Court of Common Pleas of Blair County
                      Orphans' Court at No(s): 2015 AD 32


BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*

CONCURRING OPINION BY LAZARUS, J.:                              FILED MAY 26, 2016

        I agree that Mother’s consent to terminate her parental rights was

invalid under the Adoption Act.                Mother did not petition the court to

relinquish    her   rights,    either    pursuant     to   23   Pa.C.S.   §§   2501(a)

(Relinquishment to agency), or 23 Pa.C.S. § 2502(a) (Relinquishment to

adult intending to adopt child), and BCCYF’s petition for involuntary

termination, did not satisfy Pennsylvania Orphans’ Court Rules 15.2(a)(8),

(9).    Further, as the Majority notes, by converting the hearing on the

involuntary petition to a voluntary termination hearing, the court deprived

Mother of the ten-day waiting period, and there is no indication that the

court explained this to Mother or that Mother waived that waiting period. 23

Pa.C.S. § 2503(a).


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*
    Former Justice specially assigned to the Superior Court.
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        I write separately, however, to point out that Mother’s argument on

appeal specifically pertains to her belief that she had conditioned her

consent to termination on Paternal Grandmother’s testimony that she would

allow continuing contact. There is no provision for this in the statute. The

purpose of Act 101 is to provide “an option for adoptive parents and birth

relatives to enter into a voluntary agreement for ongoing communication or

contact[.]”      23     Pa.C.S.    §   2731.1      Here,    Mother         believed    Paternal

Grandmother       was    bound      by   her    testimony       at   the    hearing.        N.T.

Permanency/Termination            Hearing,     8/18/15,    at    18.        Mother    did   not




____________________________________________


1
    Act 101 states, in relevant part:

        § 2731. Purpose of subchapter.

        The purpose of this subchapter is to provide an option for
        adoptive parents and birth relatives to enter into a voluntary
        agreement for ongoing communication or contact that:

           (1) is in the best interest of the child;

           (2) recognizes the parties’ interests and desires for
           ongoing communication or contact;

           (3) is appropriate given the role of the parties in the child’s
           life; and

           (4) is subject to approval by the courts.

23 Pa.C.S. § 2731.




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understand that Paternal Grandmother could not be required to allow post-

adoption contact.2

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2
 See 23 Pa.C.S. § 2735 (Filing and approval of an agreement), which
provides:

 (a) General rule.-- An agreement shall be filed with the court that
finalizes the adoption of the child.

(b) Conditions for approval.-- The court shall approve the agreement if
the court determines that:

       (1) The agreement has been entered into knowingly and
       voluntarily by all parties. An affidavit made under oath must
       accompany the agreement affirmatively stating that the
       agreement was entered into knowingly and voluntarily and is not
       the product of coercion, fraud or duress. The affidavit may be
       executed jointly or separately.

       (2) The agreement is in the best interest of the child. In making
       that determination, factors that the court may consider include,
       but are not limited to, the following:

              (i) The length of time that the child has been under actual
              care, custody and control of a person other than a birth
              parent and the circumstances relating thereto.

              (ii) The interaction and interrelationship of the child with
              birth relatives and other persons who routinely interact
              with the birth relatives and may significantly affect the
              child's best interests.

              (iii) The adjustment to the child’s home, school and
              community.

              (iv) The willingness and ability of the birth relative to
              respect and appreciate the bond between the child and
              prospective adoptive parent.

(Footnote Continued Next Page)


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      BCCYS argues Mother acknowledged that she understood that “even

though that is the understanding and expectation” she could not “make

[her] consent to terminate parental rights contingent upon that[.]”        N.T.

Permanency/Termination Hearing, 8/18/15, at 19-21. This acknowledgement

referred directly to Paternal Grandmother’s willingness to adopt Child, but it

is unclear whether Mother understood that to mean that her relinquishment

could not be contingent on Paternal Grandmother’s statement that she

would allow continuing contact. To the layperson, these may have been

distinct ideas. For this reason as well, it is evident Mother’s relinquishment

of her parental rights was not voluntarily or intelligently made. See In re

M.L.O., 416 A.2d 88 (Pa. 1980).




                       _______________________
(Footnote Continued)

             (v) The willingness and ability of the prospective adoptive
             parent to respect and appreciate the bond between the
             child and the birth relative.

             (vi) Any evidence of abuse or neglect of the child.

(c) Legal effect.--An agreement shall not be legally enforceable unless
approved by the court.



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