J-S73008-19

                                   2020 PA Super 68


    IN RE: ADOPTION OF: A.W., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: C.W., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 1163 MDA 2019

                  Appeal from the Decree Entered July 1, 2019
    In the Court of Common Pleas of Northumberland County Orphans’ Court
                              at No(s): 5 of 2019

    IN RE: K.R.S., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: C.W., MOTHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1164 MDA 2019

                  Appeal from the Decree Entered July 1, 2019
    In the Court of Common Pleas of Northumberland County Orphans’ Court
                              at No(s): 6 of 2019


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

OPINION BY SHOGAN, J.:                                  FILED MARCH 24, 2020

       Appellant, C.W. (“Mother”), who is incarcerated at State Correctional

Institution (“SCI”) Cambridge Springs, seeks review of the July 1, 2019

decrees1 involuntarily terminating her parental rights to her two minor

____________________________________________


1 While the decrees are dated June 18, 2019, the Northumberland County
Orphans’ Court filed them on July 1, 2019.
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daughters, A.W.,2 born in June of 2006, and K.R.S., born in September of

2011 (collectively, “the Children), in these consolidated appeals. After careful

review, we affirm.

       We summarize the factual and procedural history as follows.          The

Children have been in placement since November 8, 2017, due to the

discovery of a methamphetamine lab in Mother’s home. N.T., 6/13/19, Part

I, at 7.3     Mother was convicted of a crime involving the possession and

manufacture of methamphetamines, for which she is serving a sentence of

incarceration of nine to twenty-four months at SCI Cambridge Springs. N.T.,

6/13/19, at 72. Mother testified that this sentence runs concurrently with her

sentence for a separate crime involving the delivery of drugs that resulted in

a death, for which she received five to ten years of imprisonment. Id. at 72–

74.
       On January 28, 2019, Northumberland County Children and Youth Social

Service Agency (“the Agency”) filed petitions for the termination of the

parental rights of Mother and the fathers of A.W. and K.R.S. pursuant to 23


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2  Mother misidentifies A.W. as “A.S.” in her notice of appeal. The record
confirms that the child’s surname begins with “W.” Accordingly, we have
corrected the caption.

3  The certified record includes two separate transcripts from the June 13,
2019 hearing. The first transcript, which we designate as Part I, involves the
petition for the termination of parental rights of the father of K.R.S. The
second transcript involves the petition for the termination of Mother’s parental
rights. Unless otherwise designated, all references to the notes of testimony
from the June 13, 2019 hearing are from the transcript involving the
termination of Mother’s parental rights.

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Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).     A hearing on the petitions

commenced on May 15, 2019.

      Prior to presenting its case, the Agency’s counsel stated on the record

in open court, “It’s my understanding that [Mother] and [the father of A.W.]

have executed voluntary relinquishments of their parental rights at this time.”

N.T., 5/15/19, at 2. Mother’s counsel agreed and stated, “[Mother] has just

executed the voluntary relinquishment and consent to adoption forms.” Id.

Mother’s counsel further declared:

      I’m satisfied and I can represent to the [c]ourt that this was done
      intelligently, voluntarily by [Mother]. And I’m quite certain that
      she understands what we’re doing today, what these documents
      represent, and she is doing this without any pressure being
      brought to bear on her, and that this was a voluntary decision on
      her part to execute these relinquishments.

Id.

      The trial court then posed the following two questions to Mother:

      [Q]: What I wanted to ask you also is that you heard your attorney
      explaining that this was a knowing, voluntary, and willing
      relinquishment. Is that correct?

      [A]: Yes.

      [Q]: Do you have any questions regarding this procedure at all?

      [A]: No.

      [Q]: Very well.

N.T., 5/15/19, at 3. Thereafter, the court immediately concluded the hearing.

      On May 21, 2019, the Agency filed a motion for re-hearing on the

termination of parental rights. The Agency alleged that following the May 15,

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2019 hearing, it learned that Mother’s “consent was not voluntary as it was

conditioned upon a Post-Adoption Contact Agreement (PACA) being drafted

by a non-party, the terms of which were not discussed.” Motion, 5/21/19, at

¶ 7.    The Agency further alleged, “[T]he Voluntary Relinquishment and

Consent to Adoption of [M]other is not voluntary if the same is contingent

upon the execution of a PACA.” Id. at ¶ 8. As such, the Agency requested

that the orphans’ court reschedule the hearing on its termination petitions

with respect to Mother. By order dated May 29, 2019, the court granted the

Agency’s request.

       The rescheduled termination hearing occurred on June 13, 2019.4 The

hearing commenced with oral argument and Mother’s testimony regarding her

voluntary relinquishment and consent to adoption.     The Agency’s counsel

argued that Mother’s relinquishment was not voluntary “because it was

contingent upon a PACA being entered into.” N.T., 6/13/19, at 5. As such,

the Agency, the Children’s counsel, and the GAL requested that the court

deem Mother’s consent involuntary and proceed with the termination hearing.

See id. at 24-26.

       By way of explanation, the Children’s counsel stated that she and the

GAL inquired of Mother’s counsel on May 15, 2019, if Mother “may be



____________________________________________


4 During the hearing, Kathleen A. Lincoln, Esquire, served as the Children’s
counsel, and Cindy J. Kerstetter, Esquire, served as the Children’s guardian
ad litem (“GAL”).

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interested in hearing what [the C]hildren had to say about a post-adoption

contact.” Id. at 9. The Children’s counsel stated that they then relayed to

Mother in the presence of her counsel:

      [The Children], in fact, wanted to be adopted. They told me that.
      [The GAL] and I were together when we saw the [C]hildren. And
      [the Children] wanted to receive cards and letters from their
      natural mother. And would [Mother] be open to that.

      I explained to [Mother] what a [PACA] was. I explained to her it
      was fully voluntary. That it was fully voluntary on the part of the
      foster parents as well. That no one could promise anything or
      coerce anyone into entering anything but it would absolutely be
      voluntary and that if that was something [Mother] was interested
      in, I certainly was in support of it. And that [Mother] should
      discuss that with her attorney.

N.T., 6/13/19, at 19. On cross-examination by the Agency’s counsel, Mother

testified:

      Q. Did you sign that consent based upon a promise that there
      would be a PACA agreement?

      A. I was told that we were going to have ten days to draft a PACA
      if everyone was in agreement with me, . . . my lawyer, [A.W.’s
      father], his lawyer, and the advocates and [the Agency] lawyer
      that we spoke with.

      Q. So you signed that consent believing that there was going to
      be a PACA agreement?

      A. I signed that consent on behalf that I still be in contact with
      my children versus what my children said.

Id. at 20. Based on the admission of Mother’s counsel as well as Mother’s

testimony, the orphans’ court found that Mother’s consent was not voluntary.

Id. at 26; Orphans’ Court Opinion, 2/3/20, at unnumbered 3–4.




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       On June 13, 2019, the orphans’ court then proceeded with the

involuntary termination hearing.5 The Agency presented the testimony of its

caseworkers, Lakenyia Taylor and Kacie Burk. Mother testified on her own

behalf.

       By decrees dated June 18, 2019, which the orphans’ court filed on

July 1, 2019, the court involuntarily terminated Mother’s parental rights. 6 On

July 12, 2019, Mother timely filed notices of appeal and concise statements of

____________________________________________


5Following the court’s conclusion that Mother’s voluntary relinquishment was
not voluntary, Mother testified on inquiry by her counsel:

       Q. [D]o you wish to proceed today with the involuntary
       termination or do you wish to confirm your original consent
       knowing that there will be no PACA apparently. . . ?

       A. To be completely honest[,] I would like to have more time to
       figure out what I need to do for the best interest of myself and my
       children. And I do not feel that I can make that agreement today.

             All this happened so fast and beyond my control, and I did
       not know what was happening or what was going on. So I can’t
       answer that today.

N.T., 6/13/19, at 34–35.

6  By order dated August 29, 2019, the orphans’ court terminated the parental
rights of [A.W.’s father] following a hearing on the Agency’s petition to confirm
his consent made on May 15, 2019. As noted supra, A.W.’s father did not file
a notice of appeal.

      The orphans’ court involuntarily terminated the parental rights of
K.R.S.’s father on the record in open court on June 13, 2019. N.T. (Part I),
6/13/19, at 11. It is important to note that neither the certified docket nor
record include a written order involuntarily terminating the parental rights of
K.R.S.’s father. In addition, the father of K.R.S. did not file a notice of appeal.



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errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 7

However, on August 19, 2019, the orphans’ court ordered Mother to file a

concise statement within twenty-one days.        By order dated September 4,

2019, the orphans’ court stated that because Mother did not provide the

concise statement, it would not provide an opinion pursuant to Pa.R.A.P.

1925(a).

        On January 24, 2020, this Court remanded the certified record and

retained jurisdiction, for the following reasons. We observed that the lower

court dockets reflected that Mother filed, on July 12, 2019, with a docketing

date of July 15, 2019, the following documents: (1) notice of appeal; (2)

concise statement of errors complained of on appeal; (3) request for

transcript; (4) affidavit of service; and (5) application for leave to appeal in

forma pauperis and certificate of counsel.        We next observed that the

Northumberland County filing office erroneously forwarded the original

documents, rather than their duplicates, to this Court in contravention of

Pa.R.A.P. 905 (Filing of Notice of Appeal). Upon further review, we observed

that the original affidavit of service stated that Mother’s counsel served the

lower court and opposing counsel in person and served Mother by first class

mail.




____________________________________________


7   This Court consolidated Mother’s appeals sua sponte on August 27, 2019.

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       As such, in addition to remanding the certified record, we directed the

Superior Court Prothonotary to forward the original foregoing documents to

the orphans’ court.           We then directed the Northumberland County

Prothonotary to incorporate those documents into the certified record. Finally,

this Court directed the orphans’ court to file an opinion pursuant to Pa.R.A.P.

1925(a), upon which we directed the Northumberland County Prothonotary to

return the certified record to this Court, along with a copy of the foregoing

documents pursuant to Pa.R.A.P. 905. In re Adoption of A.[W.], 2020 WL

406849, 1163 and 1164 MDA 2019 (Pa. Super. filed January 24, 2020) (Non-

Precedential Decision). On February 3, 2020, both the orphans’ court and the

Northumberland County Prothonotary complied.

       This case is now ripe for our review. Mother raised the following single

issue in her appellate brief:

       Whether the [orphans’] court erred in determining that Mother did
       not enter a voluntary relinquishment and by voiding the voluntary
       relinquishment and thereon proceeding immediately to a hearing
       on involuntarily terminating her parental rights[?]

Mother’s Brief at 8.8




____________________________________________


8 Mother waived any challenge to the orders under 23 Pa.C.S. § 2511(a) and
(b) by failing to raise any such challenge in her concise statement and brief.
See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super. 2006) (concluding that
the appellant waived challenges regarding Sections 2511(a) and (b) by not
including those claims in her statement of questions presented and in failing
to develop an argument).

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      Our standard of review is abuse of discretion. In re C.M.C., 140 A.3d

699, 704 (Pa. Super. 2016). We have explained:

      When reviewing a decree entered by the Orphans’ Court, this
      Court must determine whether the record is free from legal error
      and [whether] 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.

Id. at 705 (citations omitted).

      This Court has recognized “the bifurcated nature of the adoption

process” as set forth in the Adoption Act (“the Act”), 23 Pa.C.S. §§ 2501, et

seq. In re A.M.B., 812 A.2d 659, 669 (Pa. Super. 2002); see also 23 Pa.C.S.

§§ 2501-2558, “Proceedings Prior to Petitions to Adopt”; 23 Pa.C.S. §§ 2701-

2742, “Petition for Adoption”; and 23 Pa.C.S. §§ 2901-2938, “Decrees and

Records.”

      Chapter 25 of the Act governs both voluntary relinquishment and

involuntary termination of parental rights. This Court has stated, “Parental

relinquishment and involuntary termination are . . . mutually exclusive[,] and

a determination must be made as to which and when one or the other applies.

This is a judicial function in which the judge exercises his discretion in

conformity with the facts and the law.” A.M.B., 812 A.2d at 666.

      The Act provides two alternative procedures with respect to the

voluntary relinquishment of parental rights. The parent may file a petition to

relinquish parental rights pursuant to Section 2501 (Relinquishment to


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agency) or Section 2502 (Relinquishment to adult intending to adopt the

child). Alternatively, the agency or the adoptive parent may file a petition to

confirm a birth parent’s consent to adoption under Section 2504 (Alternative

procedure for relinquishment).     C.M.C., 140 A.3d at 708.        We explained

therein:

      The Adoption Act requires the trial court to hold a hearing, and for
      the relinquishing parent to ratify his or her consent to termination,
      no less than 10 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.

C.M.C., 140 A.3d at 709.

      Our Supreme Court has stated that the “consent prescribed by the

Adoption Act is a parental consent that is intelligent, voluntary and deliberate.”

In re M.L.O., 416 A.2d 88, 90 (Pa. 1980) (citation omitted). As such, this

Court has explained “that the purpose of the hearing on the petition for

voluntary relinquishment is to insure an intelligent, voluntary, and deliberate

consent to the termination of parental rights.”       C.M.C., 140 A.3d at 711

(citation omitted).

      In the case sub judice, we note that following the May 15, 2019 hearing,

Mother had not petitioned to relinquish her parental rights pursuant to Section

2501 or 2502. Likewise, the Agency had not petitioned to confirm Mother’s

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consent pursuant to Section 2504.       Therefore, the only petitions pending

before the court on June 13, 2019, were for the involuntary termination of the

parental rights of Mother, as well as the father of K.R.S.

      Chapter 27, Subchapter D, commonly referred to as Act 101, is titled,

“Voluntary Agreement for Continuing Contact.” Based on these provisions, an

adoptive parent is not required to allow post-adoption contact. The relevant

provision provides:

      § 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. If a voluntary agreement is entered into by the parties,

Section 2735, “Filing and approval of an agreement,” provides that the

agreement “shall be filed with the court that finalizes the adoption of the

child.” 23 Pa.C.S. § 2735(a). However, the agreement “shall not be legally

enforceable unless approved by the court.” 23 Pa.C.S. § 2735(c). The court

“shall approve the agreement” based on the factors set forth in the statute.

23 Pa.C.S. § 2735(b)(1), (2).


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      This Court has recognized that the Act does not include a provision that

permits a parent to condition his or her relinquishment on the adoptive parent

allowing continuing contact. C.M.C., 140 A.3d at 711–712. In C.M.C., we

held that the mother, whose relinquishment was conditioned on a PACA, did

not “intelligently, voluntarily, and deliberately” consent to terminate her

parental rights. Id. at 711; see also In re K.G.M., 845 A.2d 861, 865 (Pa.

Super. 2004) (stating, “We are unwilling to allow the termination of . . .

parental rights, however, without strict compliance with the procedures set

forth by the Legislature . . . .”).

      On appeal, Mother acknowledges that when the Children’s counsel and

GAL told her on May 15, 2019, that the prospective adoptive parents would

be willing to sign a PACA, she “leaped at this opportunity to maintain contact

with her daughters . . . .”           Mother’s Brief at 14.   Moreover, Mother

acknowledges that this rendered her consent not voluntary. Id. at 15–16, 18.

Thus, Mother describes her question on appeal as follows:

      The real issue, respectfully, is the glaring contradiction between
      the law, which on one hand requires that the record remain
      unsullied with any inferences that the parent executed a voluntary
      relinquishment under any pressure, and the undeniable fact that
      the [PACA] is maybe the reason why many parents execute
      voluntary relinquishment of the[ir] parenthood, rather than
      proceed with the prospect of an involuntary termination of their
      parental rights. . . .

      It would appear that the legislature completely ignored this
      conundrum of conflicting interests.

Mother’s Brief at 16-17.


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      This Court has explained that exceptions to the Act may not “be

judicially created where the Legislature did not see fit to create them.”

K.G.M., 845 A.2d at 865 (citing In re Adoption of E.M.A., 409 A.2d 10, 11

(Pa. 1979)). Based on the foregoing statutory and case law, we discern no

abuse of discretion by the orphans’ court in finding that Mother’s decision to

relinquish her parental rights was not made voluntarily on May 15, 2019.

Therefore, it was invalid under the Adoption Act, and the court properly

proceeded on the Agency’s involuntary termination petitions.       C.M.C., 140

A.3d at 711 (holding, “Without a valid of waiver of her right to post-adoption

contact, we cannot conclude that [the m]other intelligently, voluntarily, and

deliberately consented to terminate her parental rights. [The agency] should

have proceeded on its petition under Section 2511(a) and (b).”). Mother’s

claim fails.

      In the alternative, Mother argues, that to the extent the Agency claimed

that Mother was pressured into the voluntary relinquishment of her parental

rights, this is untrue. Mother contends:

      The only “pressure” exerted in this matter was on the prospective
      adoptive parents to follow through with the promised PACA or
      Mother might vitiate her voluntary relinquishment.              That
      “pressure[,]” if you will, was made by this instant counsel in order
      to facilitate the proffered PACA to Mother.

Mother’s Brief at 18.

      The orphans’ court did not find that Mother “was pressured” into

voluntarily relinquishing her parental rights on May 15, 2019. Rather, the


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court found that Mother’s consent to terminate was contingent upon a PACA

with the adoptive parents.9 Because we have determined that the orphans’

court did not abuse its discretion in finding that Mother’s decision to relinquish

her parental rights was not voluntarily made, this claim fails. Accordingly, we

affirm the decrees involuntarily terminating Mother’s parental rights.

       Decrees affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/24/2020




____________________________________________


9 During the proceeding on June 13, 2019, the Agency’s counsel stated on the
record in open court:

       I never meant to intimate that—and if this is the way it was taken,
       I apologize—anyone had placed any pressure on [Mother] to sign
       [the consent]. I think that she just signed it not understanding
       that it . . . had to be not contingent upon a PACA. And I’m not
       sure where everybody thought that I was intimating that she had
       been pressured into signing anything. That was not at all my
       intent.

N.T., 6/13/19, at 22.

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