                             [J-5-2020] [MO: Donohue, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                   MIDDLE DISTRICT


    IN RE: J.W.B. AND R.D.B., MINORS              :   No. 93 MAP 2019
                                                  :
                                                  :   Appeal from the Order of Superior
    APPEAL OF: L.B., FATHER                       :   Court at No. 215 MDA 2019 dated
                                                  :   July 12, 2019, Reconsideration
                                                  :   Denied August 29, 2019, Affirming
                                                  :   the Decree dated January 4, 2019 by
                                                  :   the Lycoming County Court of
                                                  :   Common Pleas, Orphans' Court
                                                  :   Division, at No. 6608.
                                                  :
                                                  :   ARGUED: March 10, 2020


                       CONCURRING AND DISSENTING OPINION


JUSTICE WECHT                                             DECIDED: June 16, 2020
        I respectfully dissent.1

        Section 2711 states, in pertinent part:

        (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 putative father may
        execute a consent at any time after receiving notice of the expected or
        actual birth of the child. Any consent given outside this Commonwealth
        shall be valid for purposes of this section if it was given in accordance
        with the laws of the jurisdiction where it was executed. A consent to

1       I concur in the Majority’s conclusion that the Superior Court erred in disregarding
Father’s challenge to the validity of his consent because it was raised outside of the time
limits imposed by 23 Pa.C.S. § 2711. I disagree with the Majority’s decision to validate
Father’s consent nonetheless.
      an adoption may only be revoked as set forth in this subsection. The
      revocation of a consent shall be in writing and shall be served upon the
      agency or adult to whom the child was relinquished. The following apply:

            (1) Except as otherwise provided in paragraph (3):

               (i) For a consent to an adoption executed by a birth father
               or a putative father, the consent is irrevocable more than
               30 days after the birth of the child or the execution of the
               consent, whichever occurs later.
                                         * * *

      (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:
                                          * * *
            (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. The consent of an incarcerated parent of an adoptee
            may be witnessed by a correctional facility employee designated
            by the correctional facility. Any consent witnessed by a
            correctional facility employee shall list the address of the
            correctional facility on the consent.

            (3) In lieu of two witnesses a consent may be acknowledged
            before a notary public.


Id. (emphasis added).

      Many will find the above-highlighted language highly unfortunate and inconvenient

as applied to this particular case. I am among them. But there it is. Our mission is clear.

We are to apply the statute, not to fix it. “‘[W]hen the language of a statute is plain and

unambiguous and conveys a clear and definite meaning,’ we must give the statute this

plain and obvious meaning.” Cagey v. Commonwealth, 179 A.3d 458, 462-63 (Pa. 2018)

(quoting Mohamed v. Commonwealth Dep’t of Transp., 40 A.3d 1186, 1194 (Pa. 2012)).

Consternation justifiably may abound here, but there is no ambiguity. The plain language



                            [J-5-2020] [MO: Donohue, J.] - 2
of subsection 2711(c) provides that, if a consent is obtained outside of the

Commonwealth, it will be deemed valid if it is executed in accordance with the law of the

jurisdiction in which it is given. In this case, that jurisdiction is Colorado.

       Plainly, as the Children’s home state, Pennsylvania has the greater interest in their

well-being. Yet, in cases when a birth parent gives putative consent to adoption while

outside of Pennsylvania, our General Assembly has chosen to import the law of that

jurisdiction to determine the validity of that consent. If the consent is not in compliance

with that jurisdiction’s law, then the consent is void ab initio. Like it or not, by statutory

command, that means that there is no consent. And if there is no consent, then there is

no consent to which the statutory time periods can or will apply.

       The Majority chooses to find that the statute provides for an alternate means of

determining whether a consent is valid. According to the Majority, to be valid pursuant to

Section 2711, a consent must be executed either in accordance with Pennsylvania law

or in accordance with the law of the jurisdiction in which the consent is obtained. This

might be a salutary amendment.           But we cannot make it.         Statutory repairs and

improvements lie beyond our powers.           If the General Assembly wished to provide

alternatives, it easily could have said so in the statute. If the Majority’s wishes were the

legislature’s intent, subsection 2711(c) would read, “Any consent given outside this

Commonwealth shall be valid for purposes of this section if it was given in accordance

with the laws of the jurisdiction where it was executed or in accordance with subsection

(d).” It would be that simple. But the General Assembly did not do so. The plain language

of the statute refers only to the law of the other jurisdiction. Perhaps the legislators will

fix the problem tomorrow. Perhaps not. We may not do their work for them in the

meantime.




                              [J-5-2020] [MO: Donohue, J.] - 3
       The Majority posits that subsection 2711(c) provides for the validity of a consent

obtained in another jurisdiction to be measured by that jurisdiction’s law because a parent

in another jurisdiction may be unware of what Pennsylvania requires for a valid consent

or because the parent may be unaware that the parent’s home jurisdiction’s law would

not apply. Maj. Op. at 20. Those may be good reasons to provide for importing the law

from that other jurisdiction in determining the validity of a consent. But those reasons do

not support the Majority’s contention that Section 2711 provides for alternative methods

of determining validity of consent. The plain language of the statute does not provide for

alternative methods. Instead, a consent obtained outside Pennsylvania is valid when

(and only when) it complies with the law of that jurisdiction.

       Section 2711 does not import the entirety of the adoption law of another

jurisdiction. The unambiguous language of the statute demonstrates that the General

Assembly was concerned with other jurisdictions’ laws only for purposes of determining

the validity of the consent. See 23 Pa.C.S. § 2711(c) (“Any consent given outside this

Commonwealth shall be valid for purposes of this section if it was given in accordance

with the laws of the jurisdiction where it was executed.”).2

       The trial court heard testimony about the requirements of Colorado law. Yet it

made no findings as to whether that testimony was credible, nor did it determine what

weight that testimony was to be given. Instead, it focused upon the timing of Father’s

challenge to consent.      Though I agree with the Majority that the timing is not

determinative, I am bound by statute to hold that Father’s consent must comply with


2      The Majority cites Colorado law to indicate that Colorado itself would only apply its
adoption law if the child to be adopted is a Colorado resident or is present in the state at
the time the consent is executed. See Maj. Op. at 20 n.7 (citing C.R.S.A. § 19-5-103(12)).
That is beside the point. Whether Colorado would or would not apply its law to this case
is not relevant since our General Assembly provided only that, for present purposes,
Colorado law governs whether the consent was valid.


                             [J-5-2020] [MO: Donohue, J.] - 4
Colorado law in order to be valid. I would remand to the trial court to make the required

findings in the first instance.




                              [J-5-2020] [MO: Donohue, J.] - 5
