J-S13044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: D.I.G., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: H.G. No. 1807 WDA 2014
Appeal from the Order entered September 26, 2014,
in the Court of Common Pleas of Westmoreland County,
Orphans’ Court, at No: 045 of 2014
BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 13, 2015
H.G. (“Mother”) appeals from the order in the Court of Common Pleas
of Westmoreland County voluntarily terminating her parental rights to her
natural male child, D.G. (“Child”), born in August of 2009. We affirm.
The record reveals that, on May 12, 2014, A.Y., and his wife, M.Y.
(collectively, “Adoptive Parents”), filed a report of intent to adopt Child,
wherein they averred that Child had been in their physical custody since
March 28, 2014, with permission of Mother. In addition, on May 12, 2014,
A.Y. and M.Y. filed a petition to confirm consent and attached thereto
consents to the adoption of Child executed on April 11, 2014, by Mother and
putative father, C.L.B. (“Father”). The orphans’ court accurately set forth
the procedural history thereafter as follows:
The hearing was initially scheduled on June 14, 2014, but was
later rescheduled to July 23, 2014. Father was not properly
served with notice of the rescheduled hearing date. As a result,
the Court continued the hearing as to Father until August 20,
2014 and proceeded with testimony as to Mother, who was
present and represented by counsel.
J-S13044-15
At that hearing, Adoptive Parents both testified that they never
received any notice within the thirty day period between the
signing of the consent and the filing of the petition that Mother
intended to revoke her consent. They also both testified that
they intended to adopt the minor child in the event that the birth
parents’ rights were terminated. Mother did not provide any
testimony at the scheduled hearing. There were no issues raised
at that time as to fraud or duress placed upon Mother in signing
the consent, and no allegations of an incompetency of Mother
that led to fraud or duress in signing the consent. Mother’s
counsel merely indicated on the record that Mother did not wish
for the adoption to proceed. Although no revocation of consent
was filed or served on Adoptive Parents, the Court in an
abundance of caution gave Mother every opportunity to cross-
examine the Adoptive Parents and participate in the hearing. In
addition, the Court even granted Mother’s counsel’s request for a
ten[-]day period to submit legal authority as to why the Court
should not accept Mother’s consent and permit the adoption.
The record was also left open to address the Petition to Confirm
Consent in relation to Father.
On August 20, 2014, Father failed to appear for the scheduled
hearing despite proper service. Mother and her counsel did
appear along with Adoptive Parents and their counsel. At that
time, Mother’s counsel submitted a Petition to Withdraw
Consent, which was not filed of record but was provided before
the hearing to both opposing counsel and the Court. This was
the first written notice that Mother intended to revoke her
consent to the adoption. Mother based her petition on an
argument that she was not mentally competent to consent, and
therefore her consent was not intelligent, voluntary, and
deliberate. Counsel for Adoptive Parents filed Preliminary
Objections to Mother’s petition based on the timeliness outlined
in 23 Pa.C.S.A. § 2711 for revocation of consent to adoption.1
After review of the statute and applicable case law, this Court
granted the Preliminary Objections based on a strict
interpretation of 23 Pa.C.S.A. § 2711.
After application of the statute, the Court entered an Order
dated August 20, 2014 accepting the signed consents of both
Father and Mother and terminated the parental rights of both.
-2-
J-S13044-15
Due to an error at the Register of Wills Office, the August 20th
Order of Court was not properly sent to Mother’s counsel.
Pa.R.A.P. [ ] 108 states that the day of entry of an order shall be
the day the clerk of court mails or delivers copies of the order to
the parties. Therefore, the appeal period did not start to run
until September 26, 2014. . . .
___________________________________________________
1
Mother’s counsel failed to provide proper notice of her Petition.
She indicated to the Court that the information regarding her
client’s incompetency came to her attention shortly before the
scheduled hearing. As a result, Adoptive Parents’ counsel was
not able to provide proper notice of the Preliminary Objections
raised. Out of an abundance of caution, the Court addressed
both documents as they were before the Court.
Trial Court Opinion, 11/5/14, at 1-3 (citations to record omitted).
On October 24, 2014, Mother timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). Father did not file a notice of appeal. The orphans’
court filed a Rule 1925(a) opinion on November 5, 2014.
On appeal, Mother presents the following issues for our review:
A. Did the lower Court abuse its discretion by terminating
[Mother’s] parental rights by not conducting further review of
newly acquired evidence of [Mother]’s disability – which
prevented her from executing a valid consent – and by allowing
this adoption to proceed without further investigation of putative
father’s consent and issues surrounding the alleged
intermediary?
B. Did the lower Court fail to consider the best interests of the
child by transferring custody to the prospective adoptive parents
without further investigation of putative father’s consent – in
addition to issues surrounding the alleged intermediary and any
other proper investigative reports related to the adoption?
Mother’s Brief at 2.
-3-
J-S13044-15
This Court has explained,
“[T]he interpretation and application of a statute is a question of
law that compels plenary review to determine whether the court
committed an error of law.” Wilson v. Transport Ins. Co., 889
A.2d 563, 570 (Pa. Super. 2005). “As with all questions of law,
the appellate standard of review is de novo and the appellate
scope of review is plenary.” In re Wilson, 879 A.2d 199, 214
(Pa. Super. 2005) (en banc).
In re Adoption of J.A.S., 939 A.2d 403, 405 (Pa. Super. 2007), appeal
denied, 954 A.2d 577 (Pa. 2008).
At issue in this case is the application of Section 2711 of the Adoption
Act, which provides, in relevant part:
§ 2711. Consents necessary to adoption.
(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 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):
-4-
J-S13044-15
...
(ii) For a consent to an adoption executed by a birth
mother, the consent is irrevocable more than 30 days
after the execution of the consent.
(2) An individual may not waive the revocation period
under paragraph (1).
(3) Notwithstanding paragraph (1), the following apply:
(i) An individual who executed a consent to an adoption
may challenge the validity of the consent only by
filing a petition alleging fraud or duress within the
earlier of the following time frames:
(A) Sixty days after the birth of the child or the
execution of the consent, whichever occurs later.
...
(ii) A consent to an adoption may be invalidated only if
the alleged fraud or duress under subparagraph (i) is
proven by:
(A) a preponderance of the evidence in the case of
consent by a person 21 years of age or younger; or
(B) clear and convincing evidence in all other cases.
...
23 Pa.C.S.A. § 2711 (internal emphasis added).
In In re Adoption of J.A.S., supra, this Court stated:
Significantly, [ ] Section [2711] describes the timeline for
revocation of a consent to adoption, as well as a challenge to its
validity (and only on the grounds of fraud or duress). This
Section further makes clear that a revocation and/or a challenge
to the validity of a consent to adoption must be in conformity
with the Act.
-5-
J-S13044-15
...
Hence the statute renders a consent to adoption irrevocable
more than thirty (30) days after execution. See 23 Pa.C.S.A. §
2711(c)(1)(ii).2 Additionally, the statute precludes a challenge
to the validity of the consent to adoption after sixty (60) days
following the birth of the child or the execution of the consent,
whichever occurs later, and only upon the grounds of fraud or
duress. See 23 Pa.C.S.A. § 2711(c)(3)(i)(A).
___________________________________________________
2
Nothing in the statutes presupposes the “validity” of the
consent.
In re Adoption of J.A.S., 939 A.2d at 407-408.
In In re Adoption of J.A.S., this Court reversed the order of the
orphans’ court that overruled the appellant’s preliminary objections to the
birth mother’s petition to revoke her consent to adoption. In that case, the
birth mother’s petition was untimely with respect to both her attempt to
revoke her consent and her attempt to challenge its validity. However, the
court had concluded the consent was “void ab initio, because at first it had
omitted [b]irth mother’s marital status (and [the] [a]ppellant’s name as the
adoptive parent, which no one disputed).” Id. at 408. Thus, we explained
the court, in essence, had concluded that a “valid” consent to adoption “was
a necessary predicate under the statute before the timeliness provisions for
revoking and/or challenging the validity of the consent were triggered.” Id.
We disagreed stating that,
[t]he practical consequence of the court’s interpretation
effectively permitted [b]irth mother to challenge the validity of
her consent to adoption at any time, based upon the existence of
-6-
J-S13044-15
a technical omission in the form of the initial consent. This lack
of finality is exactly the mischief the legislature intended to
remedy with the revision to Section 2711 of the Adoption Act in
2004, the purpose of which was to afford finality to the adoption
process.
Id. (footnote omitted).
Turning to Mother’s issues in the subject appeal, she acknowledges
that the petition to revoke her consent to adoption “was not timely filed
and/or timely presented.” Mother’s Brief at 5. Indeed, Mother filed the
petition on August 20, 2014, which was 131 days after she executed her
consent to the adoption. Therefore, Mother’s petition was untimely with
respect to both her attempt to revoke her consent and her attempt to
challenge its validity. Nevertheless, Mother argues that the trial court
abused its discretion by not considering the validity of her consent on the
basis that she lacked the mental capacity to consent to the adoption.
Specifically, Mother’s counsel states that Mother and her family provided
documentary evidence to counsel on August 14, 2014, six days before the
hearing on August 20, 2014, that allegedly demonstrated Mother lacked the
mental capacity to consent.
In confirming Mother’s consent and terminating her parental rights,
the orphans’ court relied on our decision in In re Adoption of J.A.S.,
supra, in first reviewing the timeliness of Mother’s petition to revoke. The
court determined that the petition was not timely. Therefore, the court did
not reach the merits of Mother’s challenge to the validity of her consent. We
-7-
J-S13044-15
conclude that the court properly applied the controlling statutory and case
law to the facts of this case. Mother’s petition to withdraw her consent, filed
131 days after she executed her consent to adoption, fell well outside of 60
days provided for under Section 2711. Thus, we discern no error of law by
the court in confirming Mother’s consent and voluntarily terminating her
parental rights.
Mother also argues that the court abused its discretion and erred by
failing to “question if the requirements of [Section] 2711 have even been
met as to putative father.” Mother’s Brief at 9. Specifically, Mother asserts
that, “no DNA analysis has been done” with respect to Father, and,
therefore, “serious questions arise if putative father is even the biological
father of the minor child.” Id. at 8. We conclude that Mother’s argument is
waived because she failed to raise it in the orphans’ court. See MacNutt v.
Temple Univ. Hosp., 932 A.2d 980, 992 (Pa. Super. 2007) (holding that in
order to preserve an issue for appellate review, litigants must make timely
and specific objections during trial).
Lastly, Mother asserts that an intermediary facilitated the adoption of
Child. Mother argues there “were no reports filed as to investigation of the
adoptive parents’ home, nor was any other further investigation done, such
as criminal background checks, before this child was placed into the adoptive
home.” Mother’s Brief at 9. In response, the orphans’ court stated,
-8-
J-S13044-15
A report of an intermediary is required under 23 Pa.C.S.A.
§ 2533 [(Report of intermediary)] and occurs in relation to a
report of intention to adopt. It does not occur in relation to a
confirm consent. Therefore, the existence of an intermediary
does not apply in the current matter[,] and this Court was not
required to address it in entering the August 20th Order.
Trial Court Opinion, 11/5/14, at 9. We agree with the court that a report of
an intermediary was not relevant to the subject hearing to confirm the
consents to adoption executed by Mother and Father. Accordingly, as
Mother’s issues on appeal are without merit, we affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2015
-9-