J-S11044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE MATTER OF THE ADOPTION              :   IN THE SUPERIOR COURT OF
    OF C.A.F. N/M/B C.A.M.                     :        PENNSYLVANIA
    ____________________________               :
    IN THE MATTER OF THE ADOPTION              :
    OF J.D.C. N/M/B J.T.R.M.                   :
                                               :
                                               :
    APPEAL OF: B.F.                            :
                                               :   No. 1403 WDA 2016
                                               :
                                               :
                                               :
                                               :

                Appeal from the Order Entered August 31, 2016
               in the Court of Common Pleas of Venango County
             Orphans’ Court Division at No(s): OCD No. 228-2013,
                               OCD No. 229-2013


BEFORE:      OLSON, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MARCH 20, 2017

        Appellant, B.F. (“Mother”), files this appeal from the order dated

August 30, 2016, and entered August 31, 2016,1 in the Venango County

Court of Common Pleas, by the Honorable Oliver J. Lobaugh, President

Judge, denying Mother’s Motion to Strike Voluntary Parental Termination and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  While the order was dated August 30, 2016, it appears that it was not
docketed and entered for purposes of Pa.R.C.P. 236(b) until August 31,
2016. See Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d
113, 115 (1999) (holding that “an order is not appealable until it is entered
on the docket with the required notation that appropriate notice has been
given”).
J-S11044-17



Adoption with regard to her minor sons, C.A.F. N/M/B C.A.M. and J.D.C.

N/M/B J.T.R.M. (collectively, the “Children”), and granting the Petitions for

Discontinuance or Modification of Agreement of Appellees, E.J.M. and D.R.M.

(“Adoptive Parents”). After review, we affirm the trial court’s order.

       The trial court summarized the relevant procedural and factual history,

in part, as follows:

             In a separately-captioned dependency proceeding, this
       Court terminated the parental rights of [Mother] to her biological
       children C.A.F. and J.D.C. pursuant to a Decree entered on
       February 12, 2014.[2]     That same day, [Adoptive Parents]
       entered into a Voluntary Post-Adoption Contact Agreement
       (hereinafter “the Agreement” or “Act 101 Agreement”) with
       [Mother] pursuant to the Act of Oct. 27, 2010, P.L. 961, No.
       101, codified as amended 23 [Pa.C.S.] §§ 2731 – 2742 (“Act
       101”). The Agreement provides for supervised visitations to
       occur between the subject minor children and Mother at least
       four (4) times per year, subject to certain conditions.[3] The
       adoptions of the subject minor children were finalized on August
       5, 2014.


____________________________________________


2
  Mother’s rights to Children were terminated by separate decrees. While
the decrees were dated February 12, 2014, it appears that they were not
docketed and entered for purposes of Pa.R.C.P. 236(b) until February 13,
2014. By separate decree entered the same date, the court also terminated
the parental rights of J.D.C.’s father, T.C. Further, by decree entered March
4, 2014, the court terminated the parental rights of C.A.F.’s father, L.E.K.
All terminations of parental rights were pursuant to petitions for voluntary
termination. We note Mother was represented by counsel.
3
  Separate agreements dated February 12, 2014, and docketed February 13,
2014, were entered for each child. See Voluntary Post-Adoption Agreement
(C.A.F.), 2/13/14; Voluntary Post-Adoption Agreement (J.D.C.), 2/13/14. In
addition, Adoptive Parents and J.D.C.’s father entered an agreement on the
same date.



                                           -2-
J-S11044-17


              The instant litigation was initiated by the dual Petitions of
       [Adoptive Parents], filed on August 31, 2015, which requested
       that the Agreement be discontinued, or, in the alternative,
       modified to include fewer visits per year. Counsel for Mother
       entered their appearance January 5, 2016, and filed Motions to
       strike   the    Decrees     of  Adoption     and   the   Voluntary
       Relinquishment, and to hold a status conference. A status
       conference and initial evidentiary hearing were held on January
       13, 2016.     At the hearing, testimony was taken from the
       adoptive Mother as well as one Michele L. Johnston, MA LPC.[4]
       Counsel for Mother requested a continuance in order for more
       time to present evidence and to investigate the possibility of
       retaining a rebuttal expert witness.         A second evidentiary
       hearing was held on July 11, 2016. At the second hearing,
       Mother’s sole witness was one Victoria Rai Ciko, a supports
       coordinator with the Venango County Human Services
       Department.[5]

Trial Court Opinion (“T.C.O.”), 8/30/16, at 1-2.

       Subsequent to hearing, by order dated August 30, 2016, and entered

August 31, 2016, the trial court denied Mother’s Motion to Strike Voluntary

____________________________________________


4
  Michele Johnston, C.A.F.’s treating counselor, issued a report dated
December 20, 2015 and marked and admitted at the hearing on January 13,
2016 as Exhibit C. This report is contained separately in the record. See
Counselor’s Report and Recommendation, 1/7/16, Exhibit A.
5
 Upon review of the record, the Notes of testimony from the July 11, 2016
hearing were not transcribed. As we stated in Commonwealth v. Preston,
904 A.2d 1, 7 (Pa. Super. 2006) (en banc):

       With regard to missing transcripts, the Rules of Appellate
       Procedure require an appellant to order and pay for any
       transcript necessary to permit resolution of the issues raised on
       appeal. Pa.R.A.P. 1911(a). . . . It is not proper for either the
       Pennsylvania Supreme Court or the Superior Court to order
       transcripts nor is it the responsibility of the appellate courts to
       obtain the necessary transcripts. Id.



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J-S11044-17



Parental Termination and Adoption and granted Adoptive Parents’ Petitions

for Discontinuance or Modification of Agreement.      The court concurrently

issued an opinion setting forth its rationale for its dispositions.   By order

dated and entered August 31, 2016, the trial court entered an amended

order substantially similar to the original order.6 On September 21, 2016,

Mother, through counsel, filed a 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).7 Thereafter, the trial court filed an Opinion of Court

Pursuant to Pa.R.A.P. 1925(a) on October 13, 2016. This opinion adopted

the prior opinion issued by the court concurrently with its order dated

August 30, 2016, and entered August 31, 2016.
____________________________________________


6
   A review of both orders reveals only a correction as to the name of
Adoptive Parents’ petitions. See Orders, 8/31/16. Both orders express the
trial court’s denial of Mother’s Motion to Strike Voluntary Parental
Termination and Adoption and grant of Adoptive Parents’ Petitions for
Discontinuance or Modification of Agreement. Id.
7
  Mother appealed the order dated August 30, 2016, and entered August 31,
2016. See Notice of Appeal, 9/21/16. This order was a final, appealable
order. See Pa.R.A.P. 341(b). The fact that an amended order was entered
does not render the earlier order interlocutory. A trial court may correct
errors in its own orders. See Manack v. Sandlin, 812 A.2d 676, 680-81
(Pa. Super. 2002); In re Austin Trust, 674 A.2d 293, 296-97 (Pa. Super.
1996); and 42 Pa.C.S. § 5505. Further, under certain circumstances, minor
procedural missteps may be overlooked. As such, failure to file an appeal
from the subsequent order dated and entered August 31, 2016 is not fatal.
See Dong Yuan Chen v. Saidi, 100 A.3d 587, 594 (Pa. Super. 2014) (even
though taking one appeal from separate judgments is discouraged, appeal
was not quashed).        See also Pa.R.A.P. 905(a)(5) (stating that the
premature filing of a notice of appeal would be treated as proper once a
final, appealable order was entered).



                                           -4-
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      On appeal, Mother, through counsel, raises the following issues for our

review:

      1. Whether the trial court erred as a matter of law or abused its
         discretion when the court denied [Mother]’s motion to strike
         termination of parental rights and adoption[?]

      2. Whether the trial court erred as a matter of law or abused its
         discretion when the court terminated the adoption agreement
         in [sic] which gave [Mother] four visits every year with the
         minor children[?]

Mother’s Brief at 5.

      “Our standard in reviewing an appeal from an order relating to

termination of parental rights is to determine if the record is free from legal

error and if the factual findings are supported by the evidence.”       In the

Interest of J.F., 862 A.2d 1258, 1260 (Pa. Super. 2004) (citations

omitted).   If the orphans’ court’s findings are supported by competent

evidence, they should not be disturbed.     In re M.L.O., 490 Pa. 237, 241,

416 A.2d 88, 90 (1980) (citing In re William L., 477 Pa. 322, 383 A.2d

1228, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978)).

See also In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979).              Further,

because the orphans’ court sits as the fact-finder, it determines the

credibility of witnesses, and we will not reverse its credibility determinations

absent an abuse of discretion.     In re M.J.S., 903 A.2d 1, 8 (Pa. Super.

2006).

      Further, as set forth by our Supreme Court:




                                     -5-
J-S11044-17


      A party seeking to disturb a termination decree must show that
      the consent given to terminate parental rights was not
      intelligent, voluntary and deliberate. See Susko Adoption
      Case, 363 Pa. 78, 83, 69 A.2d 132, 135 (1949) (“consent
      prescribed by the Adoption Act is a parental consent that is
      intelligent, voluntary and deliberate.”); accord Chambers
      Appeal, [452 Pa. 149, 153, 305 A.2d 360, 362 (1973) ] ...; In
      re Fritz, 460 Pa. 265, 333 A.2d 466 (1975).

In re M.L.O., 490 Pa. at 240, 416 A.2d at 89–90.

      Similarly, in reviewing an order denying a petition to vacate an

adoption decree, we review for whether the trial court abused its discretion

or committed an error of law. Adoption of Christopher P., 480 Pa. 79, 86,

389 A.2d 94, 98 (1978). Our review is limited to determining whether the

trial court’s findings are supported by competent evidence in the record. Id.

An adoption decree is presumed to be valid, and the person seeking to

vacate it bears the burden of showing its invalidity by clear and convincing

evidence. In re Adoption of Z.S.H.G., 34 A.3d 1283, 1286-87 (Pa. Super.

2011) (per curiam); Chambers Appeal, 452 Pa. 149, 153, 305 A.2d 360,

362 (1973).

      We have explained, “[i]n the absence of fraud, an adoption will be

revoked if it is in the best interest of the child to do so, as the welfare of the

child is of paramount importance, even in proceedings to vacate an adoption

decree.” In re Adoption of R.J.S., 889 A.2d 92 (Pa. Super. 2005) (citing

List Adoption Case, 418 Pa. 503, 516, 211 A.2d 870, 877 (1965)).

      On this topic, our Supreme Court stated:

      This Court has long been aware of this need to accord finality to
      statutorily and judicially decreed adoptive relationships.

                                      -6-
J-S11044-17


     Particularly where . . . an appellant seeks to vacate a facially
     valid, final adoption decree, we have noted the substantial
     burden of proof which must be met to “justify disturbing the
     integrity of that decree.” Chambers Appeal, [452 Pa. 149,
     153, 305 A.2d 360, 362 (1973)]. In Chambers Appeal, supra,
     a natural mother appealed from dismissal of her petition to
     vacate a final adoption decree filed nine months after entry of
     the decree of adoption.      In rejecting the natural mother’s
     attempt to withdraw her consent, we stated:

        “The natural     mother’s attempt to withdraw her consent
        came much         too late.    Many important rights and
        relationships   involving the child and the adoptive parents
        had been         conclusively created and permanently
        established.

        ...

        As this Court has previously said: ‘. . . a decree of
        adoption terminates forever all relationships between the
        child and its natural parents, severs it entirely from its
        own family tree and engrafts it upon that of its new
        parentage: Schwab Adoption Case, 355 Pa. 534, 536,
        50 A.2d 504, 504[(1947)].’ (Emphasis added.) List
        Adoption Case, supra[, 418 Pa. 503, 516, 211 A.2d
        870, 877 (1965)]; Harvey Adoption Case, [375 Pa. 1,
        3-4, 99 A.2d 276, 277-78 (1953)].          Moreover, this
        statutorily created and judicially decreed relationship
        between adoptive parents and the child must be given
        ‘such finality as will abolish the fear that in the years
        ahead something will occur to extinguish the parent-child
        status and force [the adoptive parents] to relinquish the
        children they have adopted and upon whom they have
        lavished care and affection. List, supra 418 Pa. at 517,
        211 A.2d at 877.

        Clearly, this wise, necessary and justified ‘finality’ of all
        adoption decrees, statutorily and judicially mandated,
        precludes appellant at this late date from imperiling and
        jeopardizing the adjudication of adoption. Our adoption
        statute, the controlling decisions of this Court, and the
        happiness and well-being of this child-parent relationship
        requires us to conclude as the orphans’ court division
        correctly did, that the family relationship so established is
        final and conclusive and may not be disturbed.”


                                     -7-
J-S11044-17


      Id. at 154-55, 305 A.2d at 363 (footnote omitted).

Adoption of Christopher P., 480 Pa. at 85-86, 389 A.2d at 97-98

(emphasis in original).

      The trial court, discussing vacation of the termination of parental

rights, acknowledged lack of authority for a collateral attack of voluntary

termination proceedings.       T.C.O. at 3.   The court further highlighted that

Mother failed to appeal the decree terminating her parental rights and the

“time for taking such an appeal has long since expired.” Id. Likewise, the

court found that the doctrine of collateral estoppel prevents the subsequent

challenge to the termination of parental rights. Id. at 4-5.

      Here, the issue presented by [Mother] is identical to that raised
      by the dependency proceeding:             namely, whether the
      termination of [Mother]’s parental rights was warranted. There
      was a final judgment on the merits of that issue, as reflected by
      the Decree of February 12, 2014. [Mother] was a party to the
      dependency proceeding, where she was represented by counsel,
      and as such she had a full and fair opportunity to present the
      capacity defense she now seeks to establish. Accordingly, she
      may not presently relitigate the issue of whether the termination
      was warranted.

Id. at 5 (citation omitted).

      Moreover, the court suggested that, regardless, termination of

Mother’s parental rights was warranted, stating, “[E]ven were this court

inclined to entertain the notion that we have the authority to vacate a

decree of termination on the basis of a petition filed nearly two years after

the voluntary relinquishment proceeding, we would nevertheless find that

reversing the termination is not warranted in the present circumstances.”
J-S11044-17



Id.    The court continued, concluding, “[W]e detect neither abuse of

discretion nor error of law in our decision to terminate [Mother]’s rights, and

as such we will decline to vacate either the termination Decree or the

subsequent Decree of adoption.” Id. at 7.

       Mother concedes the absence of authority to vacate the decrees

terminating her parental rights and of adoption.    Mother, however, argues

that the decrees should be vacated as a matter of justice and/or public

policy due to the nature of her mental capacity. Mother’s Brief at 9. Mother

highlights psychiatric evaluations conducted in 2013 and 2014 in connection

with a criminal matter in which she was a defendant. Id. at Exhibits E and

F. Mother states,

       Justice was not served because here the court was not given all
       the information concerning the extent of [Mother]’s mental
       capacity at the time of the termination. [Mother] was found by
       two different psychiatrists to be incompetent to understand legal
       proceedings due to her mental disability so she was unfit to
       stand trial and therefore unfit to enter into legal contracts.[8]

Id. We disagree.

       Upon review, in the case sub judice, we discern no abuse of discretion

and/or error of law. The record supports the trial court’s denial of Mother’s


____________________________________________


8
   As indicated, Mother was represented by counsel at the voluntary
termination proceedings. While suggesting that counsel had access to
documentation regarding Mother’s mental capacity, Mother, however, does
not frame her argument in terms of ineffectiveness of counsel. Mother’s
Brief at 9-10.



                                           -9-
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belated requests to vacate the decrees terminating her parental rights and

of adoption.

      Significantly, Mother was represented by counsel during the voluntary

termination proceedings.    Findings of Fact and Conclusion of Law (C.A.F.),

2/13/14, ¶5, at 1-2; Findings of Fact and Conclusion of Law (J.D.C.),

2/13/14, ¶5, at 1-2. The court found at the time that Mother reviewed the

implications of voluntary termination, as opposed to involuntary termination,

with counsel and understood that she “would thereafter lose all rights as the

biological parent” and Children “would be placed for adoption.” Id. ¶¶5, 9,

at 1-2; ¶¶5, 9, at 1-2. The court further found that Mother appreciated and

was in agreement that she had not performed parental duties for at least six

months prior to the hearing and failed to progress with regard to the issues

causing Children to be found dependent. Id. ¶7, at 2; ¶7, at 2. The court

took judicial notice that Mother has “mental health concerns which are

significant and do not permit her to properly care” for Children. Id. As a

result, the court found, and Mother therefore agreed, that the best interest

of Children favored termination of Mother’s parental rights. Id. ¶8, at 2; ¶8,

at 2. There is no indication that Mother’s mental health concerns prevented

or in any way impeded her ability to knowingly consent to the voluntary

termination.     Moreover, counsel for Mother did not raise any issue of

competency at the time, nor did Mother file a timely appeal on the basis of

this issue.    In addition, Mother made no attempt to assert any issues of

competency, or any challenge whatsoever, prior to the entry of the adoption

                                    - 10 -
J-S11044-17



decree approximately six months later.       Interestingly, Mother first raised

competency almost two years later, after Adoptive Parents filed to

discontinue or modify the Act 101 Agreement and cease Mother’s visitation.

Hence, the evidence corroborates that Mother’s consent to the voluntary

termination of her parental rights was voluntary, intelligent, and deliberate.

See In re M.L.O., 490 Pa. at 240, 416 A.2d at 89–90.

      Lastly, we observe Mother presents no actual challenge to validity of

the adoption decree.   In Chambers appeal, the mother sought to vacate

both the adoption decree and prior decree of voluntary termination on the

basis that her consent was not intelligent, voluntary and deliberate. 452 Pa.

at 150-51, 305 A.2d at 361. Specifically, the mother asserted that incorrect

information provided to her by the social worker, as well as her health,

combined to undermine her consent to relinquish parental rights.        Id. at

151, 305 A.2d at 361. Instantly, similar to Chambers Appeal, Mother does

not directly dispute the legitimacy of the adoption decree, but her consent at

the earlier termination proceeding.    Id. at 153, 305 A.2d at 362.       This

opposition to consent at the prior termination proceeding “is not a

permissible challenge to the validity or integrity of the adoption decree at

all.” Id. Thus, the record substantiates the trial court’s denial of Mother’s

motion to strike the voluntary termination and adoption decrees.

      As to the discontinuance of the Act 101 Agreement, the trial court

based its decision to grant Adoptive Parents’ petitions and discontinue the




                                    - 11 -
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agreement on the testimony of Adoptive Mother and Michele Johnston.

T.C.O. at 8-12. The court reasoned:

             We accept Ms. [Johnston’]s diagnosis as having been
      proven by clear and convincing evidence. Moreover, we accept
      her conclusion that the negative consequences associated with
      [C.A.F.]’s Reactive Attachment Disorder are such that continuing
      contact with his birth mother would be detrimental to his
      ongoing treatment and emotional development. As such, we
      find by clear and convincing evidence that [Adoptive Parents]
      have carried their burden of proving that discontinuing the Act
      101 Agreement with respect to [C.A.F.] would clearly serve the
      child’s needs, welfare, and best interest.

              Though the same concerns are not immediately present
      with respect to [J.D.C.], the evidence nevertheless favors
      discontinuing the Act 101 Agreement with respect to the younger
      of the two children as well. [J.D.C.]’s separation from his birth
      mother occurred at a much earlier age than occurred with
      respect to his older brother, which may explain why he does not
      appear to be similarly triggered by contact with [Mother].
      However, it is possible that continued contact might resurface
      some early trauma or neglect. More fundamentally, having visits
      continue for one child and not the other would, in Ms.
      [Johnston]’s estimation, be “very confusing.” Allowing [J.D.C.]
      to engage in visits with his birth mother but not [C.A.F] would
      instill feelings of resentment between either child and between
      the children and their parents. As such, the only feasible means
      of addressing the active harm that is done to [C.A.F.] by
      continuing the visits contemplated by the Act 101 Agreement is
      to cease the visits entirely, and with respect to both children.
      Accordingly, we find by clear and convincing evidence that
      [J.D.C.]’s needs, welfare, and best interest are also best served
      by the termination of the Act 101 Agreement. This finding is
      reinforced by the largely undisputed testimony that [J.D.C.] was
      benefitting very little by visiting with Mother. [J.D.C.]’s removal
      from her care occurred very shortly after his birth and as such
      he has a lesser degree of familiarity with Mother than his elder
      sibling. Accordingly, his actual level of engagement with Mother
      during visits tends to be minimal.

Id. at 11-12 (citations to record omitted).

                                    - 12 -
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     Mother, however, asserts that Adoptive Parents had no intent to

comply with the Act 101 Agreement and were immediately looking to void

the Agreement.    Mother’s Brief at 13.     Mother further contests Michele

Johnston’s finding that Children suffered from Reactive Attachment Disorder

as “contrary to the evidence.” Id. at 12. Mother avers that the evidence

established that visits between her and Children went well and that “there is

no evidence that the appellant is the cause of the children’s behavior but

rather it concluded that the children may have poor behavior with the

adoptive parents because they were taken from their mother.” Id. Again,

we disagree.

     As this issue involves a pure question of law, our standard of review is

de novo, and our scope of review is plenary. In re Wilson, 879 A.2d 199,

214 (Pa. Super. 2005) (en banc); Harrell v. Pecynski, 11 A.3d 1000, 1003

(Pa. Super. 2011) (citations omitted).

     23 Pa.C.S. §2739 provides as follows:

     §2739. Discontinuance of agreement.

         (a) General rule.--A party to an agreement or a child that
     is at least 12 years of age or older may seek to discontinue an
     agreement by filing an action in the court that finalized the
     adoption.

        (b) Standard for discontinuation.--Before the court may
     enter an order discontinuing an agreement, it must find by clear
     and convincing evidence that discontinuance serves the needs,
     welfare and best interest of the child.




                                   - 13 -
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      We have defined clear and convincing evidence as that which 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.” In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc).

      In the case sub judice, we have examined the opinion entered by the

trial court in light of the record in this matter and agree with the analysis

and discussion regarding the issue of discontinuing the Act 101 Agreement.

We, therefore, adopt the opinion of the trial court as dispositive of this issue.

      For the foregoing reasons, we affirm the order denying Mother’s

Motion to Strike Voluntary Parental Termination and Adoption and granting

Adoptive Parents’ Petitions for Discontinuance or Modification of Agreement.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017




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