J-S70020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.R.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.P. :
:
:
:
: No. 782 MDA 2017
Appeal from the Decree Entered April 12, 2017
In the Court of Common Pleas of Luzerne County Orphans’ Court at No(s):
A-8513
IN THE INTEREST OF: A.R.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.P., MOTHER :
:
:
:
: No. 783 MDA 2017
Appeal from the Decree Entered April 12, 2017
In the Court of Common Pleas of Luzerne County Orphans’ Court at No(s):
A-8514
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 28, 2017
C.P. (“Mother”) appeals from the April 12, 2017 decrees in the Court of
Common Pleas of Luzerne County that terminated her parental rights
pursuant to 23 Pa.C.S. § 2504, with respect to her son, J.R.M., born in
October of 2013, and daughter, A.R.P., born in March of 2007 (collectively,
J-S70020-17
“the Children”).1 N.T., 4/12/17, at 10. After careful review, we vacate both
decrees.
We summarize the relevant facts and procedural history as follows:
The Children were placed in the custody of Luzerne County Children and
Youth Services (“CYS”) on March 25, 2015, due to Mother’s and Father’s
drug and alcohol use and concerns regarding housing. N.T., 4/12/17, at 10;
Petition for Termination of Parental Rights, 11/28/16, at ¶ 10. CYS placed
the Children in kinship foster care with A.R. (“Foster Mother”), their
maternal aunt. N.T., 4/12/17, at 84. At all times up to and including the
date of the termination hearing on April 12, 2017, Mother visited with the
Children “on a daily basis.” Id. at 28. On November 28, 2016, CYS filed
petitions for the involuntary termination of Mother’s and Father’s parental
rights. By order dated November 17, 2016, and filed November 28, 2016,
the trial court appointed Richard Wojtowicz, Esquire, to represent Mother.
On December 13, 2016, Mother executed the following documents with
respect to the Children at the CYS office in the presence of two CYS
employees: (1) consent to adoption; (2) voluntary relinquishment of
parental rights colloquy (“colloquy”); and (3) acknowledgment of voluntary
relinquishment procedure (“acknowledgment”). Court-appointed counsel
____________________________________________
1 On April 12, 2017, the orphans’ court involuntarily terminated the parental
rights of the Children’s father, M.M. (“Father”). Father did not file a notice of
appeal nor is he a party to this appeal.
-2-
J-S70020-17
was not present, nor is there any indication in the record that he had notice
of the meeting. N.T., 4/12/17, at 17. In the acknowledgment, Mother
agreed not to proceed with the subsequent voluntary relinquishment
procedure, which would require her to appear for a voluntary relinquishment
hearing. Instead, she acquiesced that CYS would request the court to
confirm her consent to the adoption of the Children. N.T., 4/12/17, at 16.
On March 13, 2017, CYS filed petitions to confirm Mother’s consent to
adoption with respect to the Children. Id. at 11.
The orphans’ court held a hearing on the aforesaid petitions on April
12, 2017, during which CYS presented the testimony of its casework
supervisor, Allison Miller, who was assigned as the Children’s caseworker in
January, 2016. N.T., 4/12/17, at 8–9. At this hearing, Mother was
represented by new court-appointed counsel, Robert L. Kobilinski, Esquire,
who succeeded Mr. Wojtowicz.2 As noted, Mr. Wojtowicz was not present
____________________________________________
2 It is not clear from the certified record when the orphans’ court appointed
Mr. Kobilinski to represent Mother in the termination matter. CYS counsel
stated at the confirmation-of-consent hearing on April 12, 2017, that Mr.
Kobilinski had “mistakenly” been appointed for Father” and requested “an
amended order correcting it.” N.T., 4/12/17, at 7–8. Thus, Mr. Kobilinski
was erroneously appointed for Father, not Mother, at some unknown date,
and the appointment order was not corrected until April 12, 2017. During
the April 12, 2017 hearing, Mr. Kobilinski told the court he was appointed
“maybe 30 days ago,” that is, in mid-March, 2017. N.T., 4/12/17, at 33.
The record also reveals that Mother did not learn of the appointment of Mr.
Kobilinski until March 20, 2017, at the earliest, and never spoke to Mr.
Kobilinski until roughly March 28, 2017, two weeks before the instant
hearing. N.T., 4/12/17, at 51, 52–53.
-3-
J-S70020-17
when Mother executed the documents on December 13, 2016. N.T.,
4/12/17, at 31-32. Further, Mr. Wojtowicz was on vacation at an
unspecified time in December of 2016, and he subsequently retired. Id. at
33. At the April 12, 2017 hearing, Mr. Kobilinski asserted that Mother was
effectively without legal counsel from December of 2016 until new counsel’s
appointment. Id. at 33, 39. For this reason, Mr. Kobilinski argued during
the hearing that the documents executed by Mother were not valid. Id. at
31-32, 38-39. Mother testified on her own behalf to this effect.
By decrees dated April 12, 2017, the orphans’ court granted the
petitions to confirm Mother’s consent to the adoption of the Children and
terminated her parental rights. On April 13, 2017, the court amended the
decree with respect to J.R.M. for the purpose of correcting his middle name.
Mother timely filed notices of appeal and concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which
this Court consolidated sua sponte. The orphans’ court filed its Rule 1925(a)
opinion on June 8, 2017.
On appeal, Mother presents the following issues for our review:
Whether the [orphans’] [c]ourt erred in terminating the parental
rights of [the Children], as testimony offered did not establish by
clear and convincing evidence the requirements of the Adoption
Act of 1980, October 15, P.L. 934, No. 163, 1, 23 [Pa.]C.S.A.
Section 2504[?]
Whether the [orphans’] [c]ourt abused its discretion/erred in
terminating parental rights of [Mother], as she had not been
given effective assistance of counsel at the time she signed a
-4-
J-S70020-17
voluntary confirmation of consent to adoption of her minor
children[?]
Whether the [orphans’] [c]ourt committed an error of law in the
[c]ourt’s decision to terminate [Mother’s] parental rights by
improperly accepting [CYS’s] petition to confirm adoption due to
the fact that [Mother] produced this document without the
effective assistance of counsel[?]
Mother’s Brief at 3-4.
Mother’s issues involve our interpretation and application of the
Adoption Act (“ the Act”), 23 Pa.C.S. § 2101-2938. This Court has explained
this process as follows:
“The 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).
Further,
we are constrained by the rules of statutory
interpretation, particularly as found in the Statutory
Construction Act. 1 Pa.C.S.A. §§ 1501-1991. The goal in
interpreting any statute is to ascertain and effectuate the
intention of the General Assembly. Our Supreme Court
has stated that the plain language of a statute is in
general the best indication of the legislative intent that
gave rise to the statute. When the language is clear,
explicit, and free from any ambiguity, we discern intent
from the language alone, and not from the arguments
based on legislative history or “spirit” of the statute. We
must construe words and phrases in the statute according
to their common and approved usage. We also must
construe a statute in such a way as to give effect to all its
provisions, if possible, thereby avoiding the need to label
any provision as mere surplusage.
-5-
J-S70020-17
Cimino v. Valley Family Medicine, 912 A.2d 851, 853 (Pa.
Super. 2006) (quoting Weiner v. Fisher, 871 A.2d 1283, 1285-
86 (Pa. Super. 2005)). See also 1 Pa.C.S.A. § 1921(b). Under
Section 1921(c), the court resorts to considerations of “purpose”
and “object” of the legislature when the words of a statute are
not explicit. Sternlicht v. Sternlicht, 583 Pa. 149, 876 A.2d
904, 909 (2005) (referring to consideration of matters such as:
(1) occasion and necessity for statute; (2) circumstances under
which it was enacted; (3) mischief to be remedied; (4) object to
be attained; (5) former law, if any, including other statutes upon
same or similar subjects; (6) consequences of particular
interpretation; (7) contemporaneous legislative history; (8)
legislative and administrative interpretations of such statute).
Finally,
It is presumed that the legislature did not intend an
absurd or unreasonable result. In this regard, we . . . are
permitted to examine the practical consequences of a
particular interpretation.
Commonwealth v. Diakatos, 708 A.2d 510, 512 (Pa. Super.
1998).
In re Adoption of J.A.S., 939 A.2d 403, 405-406 (Pa. Super. 2007).
The pertinent provisions of the Act are as follows, in relevant part:
§ 2504. Alternative procedure for relinquishment
(a) Petition to confirm consent to adoption.—If the parent
or parents of the child have executed consents to an
adoption, upon petition by the intermediary or, where
there is no intermediary, by the adoptive parent, the court
shall hold a hearing for the purpose of confirming a
consent to an adoption upon expiration of the time periods
under section 2711 (relating to consents necessary to
adoption). The original consent or consents to the adoption
shall be attached to the petition.
23 Pa.C.S. § 2504(a).
§ 2711. Consents necessary to adoption
-6-
J-S70020-17
(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 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):
* * *
(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.
(B) Thirty days after the entry of the adoption
decree.
-7-
J-S70020-17
(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.
(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:
I hereby voluntarily and unconditionally consent to
the adoption of the above named child.
I understand that by signing this consent I indicate
my intent to permanently give up all rights to this
child.
I understand such child will be placed for adoption.
I understand I may revoke this consent to
permanently give up all rights to this child by placing
the revocation in writing and serving it upon the
agency or adult to whom the child was relinquished.
* * *
If I am the birth mother of the child, I understand
that this consent to an adoption is irrevocable unless
I revoke it within 30 days after executing it by
delivering a written revocation to (insert the name
and address of the agency coordinating the
adoption) or (insert the name and address of an
attorney who represents the individual relinquishing
parental rights or prospective adoptive parent of the
-8-
J-S70020-17
child) or (insert the court of the county in which the
voluntary relinquishment form was or will be filed).
I have read and understand the above and I am
signing it as a free and voluntary act.
(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.
23 Pa.C.S. §§ 2504, 2711.
With these provisions in mind, we turn to the merits of Mother’s issues
on appeal.3 Initially, we acknowledge that Mother did not revoke her
consents to adoption in writing within thirty days or at any time after
execution of the consents. 23 Pa.C.S. § 2711(c)(1)(ii). In addition, Mother
did not file petitions alleging fraud or duress within sixty days or at any time
after execution of the consents. 23 Pa.C.S. § 2711(c)(3)(i)(A). Rather,
____________________________________________
3 We are compelled to note that Mother’s brief does not comply with
Pa.R.A.P. 2119(a) in that it does not divide the argument section into as
many parts as there are questions to be argued. Indeed, Mother does not
divide the argument into any separate parts nor does she distinctively
display any particular point. See Pa.R.A.P. 2119(a) (“The argument shall be
divided into as many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type distinctively
displayed—the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent”). Pa.R.A.P. 2101
underscores the seriousness with which this Court takes deviations from
procedural rules, as we may quash or dismiss an appeal if an appellate brief
has substantial defects. See Pa.R.A.P. 2101 (Conformance with
Requirements). Here, we address Mother’s arguments insofar as we are
able to discern them, noting that Mother’s first issue is wholly abandoned in
her brief.
-9-
J-S70020-17
Mother has asserted that she was without the effective representation of
counsel throughout the process.
We summarize Mother’s arguments. Mother argues that she “had no
legal representation” within thirty to sixty days after executing the consents
to adoption. Mother’s Brief at 15. Mother argues she was unable to discuss
the possibility of signing a revocation of consent with her counsel because
when she contacted Mr. Wojtowicz a few days later with “second-thoughts,”
he told her he was going on vacation and advised her to call him again after
he returned. Id. at 14, 18. Mother maintains that he never took her calls
upon his return, and then he retired. In addition, Mother contends that CYS
never advised her that she had the right to have counsel present when she
signed the documents. Id. at 20.
Mother therefore advances a claim of ineffective assistance of counsel
during the applicable thirty or sixty-day statutory period. Mother argues as
follows:
[Mother], as an indigent party, indeed was [not] afforded
the protection of legal counsel under the law. The
ineffectiveness of this counsel by not contacting her to discuss
the legal significance of a voluntary relinquishment of parental
rights led [Mother] to, in fact, sign a voluntary relinquishment
and . . . consent to adoption, which were ultimately the cause of
the decree[s] of termination.
Mother’s Brief at 17–18.
This Court has explained an indigent person’s right to counsel in a
termination of parental rights case as follows:
- 10 -
J-S70020-17
The unique nature of parental termination cases has long been
recognized by the Supreme Court of Pennsylvania. Thus, In Re:
Adoption of R.I., 312 A.2d 601 (Pa. 1973), the Supreme Court
held that an indigent parent in a termination of parental rights
case has a constitutional right to counsel. The right to counsel
in parental termination cases is the right to effective
assistance of counsel even though the case is civil in
nature. In Re: Adoption of T.M.F., 573 A.2d 1035 (Pa.
Super. 1990) (en banc); see also In the Interest of S.W., 781
A.2d 1247 (Pa. Super. 2001). However, this right is more
limited than that in criminal cases, as claims of ineffective
assistance of counsel must be raised on direct appeal. We then
review the record as a whole to determine whether or not the
parties received a “fundamentally fair” hearing; a finding that
counsel was ineffective is made only if the parent demonstrates
that counsel’s ineffectiveness was “the cause of the decree of
termination.” T.M.F., 573 A.2d at 1044; see also S.W., 781
A.2d at 1249.
In the Interest of J.T., 983 A.2d 773, 774–775 (Pa. Super. 2009)
(emphasis added).
In its Pa.R.A.P. 1925(a) opinion, the orphans’ court found that it must
first review the timeliness of Mother’s request to revoke or challenge the
validity of her consents to adoption prior to addressing whether her consents
were valid. In so doing, the orphans’ court rejected Mother’s ineffective-
assistance-of-counsel claims. It concluded that Mother failed to revoke her
consent to adoption within thirty days from the date of her consent to
adoption and that her consent was knowing, voluntary, and deliberate
“regardless of her claim that she did not receive effective assistance of
counsel.” Orphans’ Court Opinion, 6/8/17, at 5. We conclude the record
compels otherwise.
- 11 -
J-S70020-17
Allison Miller testified that when she served Mother with the
involuntary termination of parental rights petition on November 30, 2016,
Mother indicated that she had been speaking to Foster Mother “about the
possibility of signing over guardianship” to her. N.T., 4/12/17, at 12, 21.
Ms. Miller stated that she proceeded to advise Mother “that there was [sic]
different ways if she wished to do a voluntary. She would be able to either
do that by coming into the office to sign the paperwork or by coming into
the hearing and verbalizing her desire to voluntarily relinquish her parental
rights.” Id. Ms. Miller subsequently scheduled an appointment for the
confirmation of consents for December 13, 2016. Id. at 12–13.
The December 13, 2016 appointment occurred at CYS offices. N.T.,
4/12/17, at 15. Ms. Miller explained that Mother had questions about the
process and “especially in regards to the colloquy, which we had her sign
prior to the consent.” Id. at 14. Ms. Miller continued to extend advice to
Mother and explained:
that she already had signed the consent . . . and that was her
intention for the minor children to be adopted. I also
explained . . . that by signing this document, if she chose not to
attend the voluntary relinquishment hearing . . . the Agency
would be able to testify on her behalf. But that if she did attend,
she may have to take the stand and indicate to the [c]ourt why
she would wish to relinquish her parental rights.
Id. at 16. Regarding the colloquy signed prior to the consents, CYS counsel
asked Ms. Miller if Mother requested the presence of counsel, and Mother
replied that he “just was not really helping her in this matter.” Id. at 17.
- 12 -
J-S70020-17
Ms. Miller further acknowledged that Mother “was very tearful” and
stopped numerous times during Ms. Miller’s explanation of the colloquy.
N.T., 4/12/17, at 18. Ms. Miller admitted that “[i]t was very hard for
[Mother] to sign these documents. I know that she loves her children very,
very much. Her children love her as well.” Id. at 24. Ms. Miller noted:
Specifically on the question number 15 of the colloquy, when we
read to her, do you understand that if you voluntarily relinquish
your parental rights[,] your rights to [the Children] are forever
ended and your child[ren] would be placed for adoption, she did
ask us on that particular question, so you mean to tell me if I get
my life back in order in five years, I wouldn’t be able to get my
children back . . .[?]
Id. at 18. Ms. Miller discerned that Mother mistakenly “thought that by
signing the documents it would be a matter of transferring guardianship of
the two children over to [Foster Mother],” and she described Mother as
“appear[ing] to be in shock.” Id. at 20, 25. Ms. Miller acknowledged that
Foster Mother subsequently told Ms. Miller on December 29, 2016, that
Mother “was thinking about revoking her consent.” Id. at 19, 26.
Mother told the orphans’ court she “feel[s] like I’m a 5th grader
standing up in court. I hear the laws and what’s being presented to me, but
I’m not sure I understood, but I tried to understand.” N.T., 4/12/17, at 44.
Mother testified that Attorney Wojtowicz never gave her any advice, and
when she brought up any concerns, he “put [her] down and [told her] that
[she] was floating on a cloud.” Id. at 53. She did not speak with counsel
before signing the consents on December 13, 2016, and when she contacted
- 13 -
J-S70020-17
him a few days later, counsel told Mother he was going on vacation. Id. at
52–53. When Mother tried to reach counsel, he did not take her calls and
did not call her back. Id. Mother stated that she did not know she could get
a different attorney, professing: “I thought that was my attorney and I had
to stick with him. I never had the option or being told by anybody that I had
the option to get another attorney.” Id. at 55.
CYS counsel asked Mother if she tried to get a new lawyer once she
knew Attorney Wojtowicz retired. Mother responded:
I found there was a free place there for public defenders,
lawyers. I went to the 5th floor to the lawyers and they told me
they do not do anything for children, like where I’m at with
Children and Youth.
So then I proceeded to go to the third floor and I got a
bunch of paperwork to fill out but they told me I was going to
need at least a month and a half for even free I guess, but
nothing ever came of it.
N.T., 4/12/17, at 58–59.
Our review of the record reveals that the orphans’ court’s conclusions
are not supported therein. Regarding Mother’s assertion that Mr. Wojtowicz
was unavailable during the thirty-day period during which Mother could have
revoked her consents because he went on vacation and then did not return
her telephone calls, the orphans’ court found that Mother did not indicate
she tried to call her counsel for the sole purpose of intending to revoke her
consent. Trial Court Opinion, 6/8/17, at 9. The record is clear that Mother
hesitated about professing consent, she had no counsel to advise her, and
- 14 -
J-S70020-17
her efforts to reach her counsel in the ensuing thirty-day period were
rebuffed. The orphans’ court’s theory that because CYS told Mother she
could revoke the consents herself within thirty days and she understood its
advice, her claim had no merit, is not relevant. Mother was entitled to
effective representation by counsel, and this record reveals that Mother did
not receive it.
Thus, we have no hesitation in concluding that Mother was deprived of
effective representation by counsel at every turn.4 At the December 13,
2016 meeting with the CYS caseworker, Mother’s court-appointed counsel
was not present, and Ms. Miller offered explanation and advice. When
Mother attempted to contact her counsel a few days after signing the
consents, and within the thirty-day period in which she could revoke them,
counsel told Mother he was going on vacation and to call him back. When
Mother called him back, he refused her calls, and subsequently retired
without ever contacting Mother. Mother’s efforts to obtain new counsel were
unfruitful for a variety of reasons, not the least of which was Mother’s
misunderstanding of the nature of the court appointment. When new
____________________________________________
4 CYS’s assertion that Mother had counsel present at the “hearing” held two
days after she signed the consents is specious, and counsel’s suggestion
borders on the absurd. First, as previously noted, Ms. Miller “advised”
Mother she need not be present at the hearing. Second, the orphans’ court
compelled CYS counsel to clarify that there actually was no hearing; it
merely was “the call of the list” “to schedule [a] date for the [termination]
hearing.” N.T., 4/12/17, at 35.
- 15 -
J-S70020-17
counsel eventually was appointed, he was erroneously appointed for Father,
not Mother, and the correction was not made until the April 12, 2017
hearing. Mother did not learn of the appointment of new counsel until two
weeks before the April hearing, well beyond the thirty and sixty-day
statutory periods.
Our courts have acknowledged that termination of parental rights “is a
drastic measure that should not be taken lightly” because the parent’s rights
to her child are at stake as well as the child’s relationship with his or her
parent. In re Adoption of Stickley, 638 A.2d 976 (Pa. Super. 1994). We
cannot say that Mother’s consent was intelligent, voluntary, and deliberate,
as required, Matter of Christopher P., 389 A.2d 94 (Pa. 1978), because
Mother failed to receive the effective representation of counsel mandated by
law. Our review of the record does not advance a procedure of fundamental
fairness. Instead, there is clear and convincing evidence that it is more
likely than not that the result herein would have been different absent
counsel’s ineffective assistance. In re K.D., 871 A.2d 823, 829 (Pa. Super.
2005).5
Decrees vacated.
____________________________________________
5 The orphans’ court’s additional analysis under 23 Pa.C.S. § 2511(b) is
irrelevant in this case. Section 2511(b) applies only to the involuntary
termination of parental rights. In this case, CYS requested that the court
confirm Mother’s consent to adoption pursuant to 23 Pa.C.S. § 2504(a).
- 16 -
J-S70020-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/17
- 17 -