J-S35017-20
2020 PA Super 243
IN RE: ADOPTION OF B.G.S., A/K/A : IN THE SUPERIOR COURT OF
S.S.S., A MINOR : PENNSYLVANIA
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APPEAL OF: S.S., FATHER : No. 829 EDA 2020
Appeal from the Decree Entered January 22, 2020
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No: No. 2019-A0058
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
OPINION BY STABILE, J.: FILED OCTOBER 07, 2020
S.S. (“Father”) appeals from the decree entered on January 22, 2020,
which terminated involuntarily his parental right to his daughter, B.G.S., a/k/a
S.S.S. (“Child”), born in January 2019.1 In addition, Father’s counsel has filed
a petition to withdraw and brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
After careful review, we deny the petition to withdraw and remand for counsel
to file an advocate’s brief.
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* Retired Senior Judge assigned to the Superior Court.
1 Child’s mother, S.S. (“Mother”), executed a consent to Child’s adoption, and
the orphans’ court entered a separate decree confirming her consent and
terminating her parental rights. Mother did not file an appeal.
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We summarize the relevant facts and procedural history of this matter
as follows. Father and Mother dated from “the beginning of 2017” until April
2018, at which point Father ended their relationship. N.T., 1/22/20, at 7-14.
Mother discovered that she was pregnant after her relationship with Father
ended and it is undisputed that she did not inform him of her pregnancy.2
N.T., 11/25/19, at 14. After Child’s birth, Mother decided to place her for
adoption through Transitions Adoption Agency (“the Agency”). Id. at 8-10.
Mother explained at that time that she suffered a sexual assault and believed
her unidentified assailant to be Child’s father.3 Id. at 14-15, 65-67. The
Agency placed Child with her prospective adoptive parents, D.M. and T.M., in
February 2019, where she has remained to the present day. Id. at 11, 68-
69, 78.
Subsequently, Father and Mother reestablished contact in March 2019.
N.T., 1/22/20, at 15, 57, 60. According to Father, Mother was visiting his
home in approximately April 2019 when he noticed that the background image
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2 Father acknowledged that he ignored several phone calls from Mother in
approximately April 2018 but there is no indication that she was calling to
inform him of her pregnancy. N.T., 1/22/20, at 11, 50-51.
3Mother’s subsequent testimony may cast doubt on her explanation that she
believed her assailant to be Child’s father, as she stated on two occasions that
she should not have placed Child for adoption without informing Father first.
See N.T., 11/25/19, at 10-11 (“I made my decision based off of myself, but I
do not agree with the fact that I made it without letting him know. . . . I don't
agree with it being as though I made the decision without notifying him[.]”).
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on her cellphone was a picture of Child, which prompted him to begin asking
questions. Id. at 17-18, 21-24, 61. Mother explained that Child was her
child, but did not disclose that Child may be Father’s child, and “didn't really
want to talk about it.” Id. at 18. About two weeks later, in April or May 2019,
Mother informed Father that he may be Child’s father. Id. at 19-21, 38-39,
56, 61, 70-72. She also met with the Agency’s director and informed her of
Father’s existence and his possible paternity of Child.4, 5 Id. at 70-71.
Meanwhile, Mother provided Father with the name of the Agency, which
he used to look up its phone number. Id. at 22-23. Father maintained that
he called the Agency the day after he learned that he may be Child’s father,
but that his call went to voicemail and he did not leave a message. Id. at 25,
61. In addition, he spoke with family members, including his stepfather, who
provided him with the phone number for an attorney. Id. at 27-28, 34, 62.
Father spoke with the attorney, but she advised him that she did not handle
his type of case and “sent [him] a number of a person.” Id. at 26-27, 45, 53-
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4A paternity test later confirmed that Father is Child’s father. N.T., 1/22/20,
at 48-49, 98.
5 While Father testified that he learned of his possible paternity in early May
2019, the director testified that her meeting with Mother occurred on April 4,
2019, and that Father would have known of his possible paternity by at least
that date based on Mother’s statements. N.T., 1/22/20, at 21, 39, 61, 70-72.
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54, 62. Father then attempted to call the Agency a second time on August
26, 2019, and spoke to the director.6 Id. at 25-26, 42-43, 61, 74-75.
On September 9, 2019, the Agency filed a petition to terminate Father’s
parental rights to Child involuntarily. The orphans’ court held a hearing on
November 25, 2019, and January 22, 2020. At the conclusion of the hearing,
the court placed its findings of fact on the record and announced that it would
terminate Father’s rights. It entered a decree memorializing its decision that
same day. Father’s counsel timely filed a notice of appeal on his behalf on
February 21, 2020, along with a statement of intent to file an Anders brief in
lieu of a concise statement of errors complained of on appeal. Counsel filed a
petition to withdraw and Anders brief in this Court on May 22, 2020.7
We begin by addressing the petition to withdraw and Anders brief. See
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting
Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)) (“‘When
faced with a purported Anders brief, this Court may not review the merits of
the underlying issues without first passing on the request to withdraw.’”). This
Court extended the Anders procedure to appeals from decrees terminating
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6 Father’s account of the call was that the director refused to disclose any
information regarding Child. N.T., 1/22/20, at 43-45. The director’s account
was that Father asked various hypothetical questions and then hung up on
her. Id. at 75-77.
7Counsel also filed a petition to withdraw in the orphans’ court on February
21, 2020. It does not appear that the court acted on counsel’s petition.
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parental rights involuntarily in In re V.E., 611 A.2d 1267 (Pa. Super. 1992).
To withdraw pursuant to Anders, counsel must comply with the following
requirements:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)). Counsel must provide this Court with a copy of the letter advising the
appellant of his or her rights. Commonwealth v. Millisock, 873 A.2d 748,
752 (Pa. Super. 2005).
Additionally, our Supreme Court has set forth the following requirements
for Anders briefs:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
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In the instant matter, counsel filed a petition to withdraw and Anders
brief. Counsel’s brief includes a summary of the facts and procedural history
of this case, a list of issues that could arguably support Father’s appeal, and
counsel’s assessment of why those issues are frivolous, with citations to the
record and relevant legal authority. Counsel also provided this Court with a
copy of her letter to Father, advising him of his right to obtain new counsel or
represent himself.8 Therefore, counsel has complied substantially with the
requirements of Anders and Santiago, and we may proceed to review the
issues outlined in her brief. In addition, we must “conduct an independent
review of the record to discern if there are any additional, non-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (footnote omitted).
Counsel’s Anders brief identifies the following issues for our review:
1. Whether an application to withdraw as counsel should be
granted where counsel has investigated the possible grounds for
appeal and finds that there was no legal basis for an appeal and
that an appeal would be frivolous[?]
2. Whether the [orphans’ c]ourt committed an error of law and/or
abuse of discretion when it held that [the Agency] had proven by
“clear and convincing evidence” that [Father’s] parental rights
should be terminated pursuant to 23 Pa.C.S.A. [§] 2511(a)(1) and
[§] 2511(a)(6) because [Father] did not know nor should he have
known that he could be the father of the child until approximately
two and a half months after the child’s birth, and once he did, he
made diligent efforts towards the assumption of parental
responsibilities[?]
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8 Counsel indicated in her letter that she had enclosed a copy of her petition
to withdraw and brief.
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3. Whether the [orphans’ c]ourt committed an error of law and/or
abuse of discretion when it terminated [Father’s] parental rights
pursuant to 23 Pa.C.S.A. [§] 2511(b) on the basis that the
developmental, physical, and emotional welfare of the child was
best served by termination of [Father’s] rights when [Father] did
not know nor should he have known that he could be the father of
the child until approximately two and a half months after the
child’s birth, and once he did, he made diligent efforts towards the
assumption of parental responsibilities[?]
Anders Brief at 8.
These issues are interrelated, so we will address them together. Our
standard of review is as follows:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It requires a bifurcated analysis:
. . . . Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
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needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In the instant matter, the orphans’ court terminated Father’s parental
rights pursuant to Section 2511(a)(1), (6), and (b), which provides as follows:
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing of
the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused
or failed to perform parental duties.
***
(6) In the case of a newborn child, the parent knows
or has reason to know of the child’s birth, does not
reside with the child, has not married the child’s other
parent, has failed for a period of four months
immediately preceding the filing of the petition to
make reasonable efforts to maintain substantial and
continuing contact with the child and has failed during
the same four-month period to provide substantial
financial support for the child.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
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which are first initiated subsequent to the giving of notice of the
filing of the petition.
***
23 Pa.C.S.A. § 2511(a)(1), (6), (b).
Our review of the record and the findings of the orphans’ court reveals
that Father’s appeal is not wholly frivolous as his counsel indicates. Thus, we
must remand this matter for counsel to file an advocate’s brief on his behalf.
See In re M.C.F., 230 A.3d 1217, 1220 (Pa. Super. 2020) (denying the
petition to withdraw filed by the father’s counsel, explaining that the father’s
appeal was “not so lacking in merit that counsel should be permitted to
withdraw,” and remanding for counsel to submit an advocate’s brief).
The orphans’ court did not issue a separate, written opinion, but instead
issued a statement relying on the findings of fact that it placed on the record
at the conclusion of the hearing on January 22, 2020. The court explained its
decision to terminate Father’s parental rights as follows:
In this case, the essential facts are not really in dispute. The
birth father acknowledges that he has not seen the child,
excluding a video chat that occurred after the date of the filing of
the petition.[9] He also acknowledges in terms of a timeline that
he became aware that [Mother] had a child in April of 2019, that
he had a long-term physical relationship with [Mother] throughout
2017 and until April of 2018, that by early May of 2019 he was
aware not only that [Mother] had had a child but became aware
that he could be the father of that child.
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9The orphans’ court appointed counsel for Father after the start of the hearing
on November 25, 2019. Counsel assisted Father in arranging a FaceTime call
with Child. N.T., 1/22/20, at 47-48.
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[Father’s] testimony was clear and candid and honest, and
I credit his testimony and his candor with the Court.
I want to express compassion and understanding for his lack
of information and lack of knowledge about how to assert his
interests in this matter. Nevertheless, he did fail to assert his
interests from May of 2019 until at least August of 2019 -- August
26th of 2019. And in all of that time, from May of 2019 up until
the previous hearing before this court in November of 2019, he
provided no financial support for the child, no physical or concrete
support in the form of food or clothing or diapers or any other
physical objects for the child’s benefit, no toys, gifts, or cards for
the child, and made very little effort to contact the [A]gency or
find out how he could contact the child or how he could -- nor did
he come to court or speak to attorneys to find out if he could come
to court and seek custody rights or visitation rights or otherwise
assert any rights or interests in the child.
This is an unfortunate case, because the testimony was
undisputed that [Father] was not aware of the child’s birth at the
time of her birth or at the time of the placement with the [A]gency
by [Mother]. The [A]gency was not aware of [Father’s] possible
involvement or identity at the time of the child’s placement.
Nevertheless, certainly by April and May of 2019, [Father] had
information from which he could have taken more action if he have
had [sic] the resources in order to assert his rights. And as the
courts have said, parenting a child requires resisting and not
giving way to all the obstacles placed in your paths.
***
In this case, the parent’s explanation for his conduct is, in
essence, that he sought assistance from adults and family figures
in his life, his aunt, his stepfather, and his sister, in particular, and
that he did seek to reach out to an attorney who proved not to be
particularly helpful to him. But beyond those contacts, he didn’t
affirmatively assert with the agency or with anyone in a position
to help him a request for visits, a request for information about
how the child was doing, a request to have FaceTime, until he had
a lawyer appointed by this Court, and that didn’t occur until
January of 2020.
I credit [Father] that he is sincere in his desire not to have
his rights terminated, and he’s sincere to have a relationship with
his child, and there is nothing in his testimony that is not to his
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credit except for the clarity, which he candidly concedes, that he
has not provided for this child in any material way or any
emotional way throughout her life and nor had any contact with
her.
. . . . The birth father knew, or had reason to know, of the child’s
birth not only before her birth due to the long-term physical
relationship he had with [Mother] but also certainly no later than
early May of 2019 he knew, or had reason to know, of the child’s
birth. . . .
The standard may seem like a high bar to meet, but
parenting is an important, a sacred, and a substantial
commitment between people, and that standard has not been met
in this case, the standard of acting as a parent to this child,
particularly during those four months of May through September
of 2019.
For all of the foregoing reasons, the Court finds that the
agency has met its burden of proof by clear and convincing
evidence establishing grounds for termination of parental rights
under Section 2511(a) (1) and Section 2511(a)(6) of the statute
with respect to this birth father.
N.T., 1/22/20, at 109-114.
Initially, the decision of the orphans’ court to terminate Father’s parental
rights pursuant to Section 2511(a)(1) may be contrary to the record and to
its own findings of fact. The essence of our Courts’ case law regarding Section
2511(a)(1) is that a parent must make reasonable, good faith efforts to
maintain a relationship with his or her child, and that the failure to do so “for
a period of at least six months immediately preceding the filing of the petition”
will provide grounds for the termination of parental rights. 23 Pa.C.S.A. §
2511(a)(1). As this Court has emphasized, a parent does not perform his or
her parental duties by displaying a merely passive interest in the development
of a child. In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal
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denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462
(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)). Rather,
[p]arental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every problem, in
order to maintain the parent-child relationship to the best of his
or her ability, even in difficult circumstances. A parent must utilize
all available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed in
the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with his or her physical and emotional
needs.
Id. (citations omitted).
Case law also provides, however, that a parent need not “perform the
impossible.” Id. at 857. Even when a parent has no contact with a child for
a period in excess of six months, our law does not require termination of his
or her parental rights where that parent faced obstacles preventing contact
with the child, so long as the parent has made reasonable, good faith efforts
to resist those obstacles. See In re Adoption of C.J.A., 204 A.3d 496, 504
(Pa. Super. 2019) (affirming the order denying involuntary termination of the
father’s parental rights, where, “[w]hile it [was] true that [the f]ather did not
actually succeed in making contact with [his c]hild, he strove to overcome the
obstacles that [the m]other placed in his path.”).
In this case, it was undisputed that Father had no contact with Mother
from April 2018 until March 2019 and that the Agency filed its termination
petition on September 9, 2019. As quoted above, the orphans’ court found
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that Father first learned that Mother had a child, and that he may be the child’s
father, in April or May 2019. N.T., 1/22/20, at 109-114. Because our law
does not require that a parent “perform the impossible,” it may have been
improper for the court to hold Father responsible for failing to perform parental
duties when he did not know, and may not have had any reason to know, of
Child’s existence.10 Indeed, depending on the exact date, Father would have
had approximately four or five months to perform parental duties from the
time he learned of Child’s existence until the Agency filed its termination
petition, well below the “at least six months” that the Adoption Act requires.
23 Pa.C.S.A. § 2511(a)(1); see also N.T., 1/22/20, at 110 (the orphans’ court
explaining that Father “did fail to assert his interests from May of 2019 until
at least August of 2019 -- August 26th of 2019.”).
Also troubling is the assertion by the orphans’ court that Father “could
have taken more action if he have had [sic] the resources in order to assert
his rights.” N.T., 1/22/20, at 111. To the extent the court found that Father’s
lack of resources prevented him from taking action to perform his parental
duties, his failure may have been excusable. See In re Adoption of C.M.W.,
603 A.2d 622, 625-26 (Pa. Super. 1992) (quoting In re Adoption of B.D.S.,
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10 While the orphans’ court found that Father had reason to know of Child’s
birth based solely on the fact that he and Mother had engaged in a “long-term
physical relationship,” this finding was highly questionable, especially in light
of Father’s testimony that Mother reported using contraception during their
relationship. N.T., 1/22/20, at 37, 56-57, 113.
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431 A.2d 203, 207 (Pa. 1981)) (“‘[A] parent’s performance must be measured
in light of what would be expected of an individual in circumstances in which
the parent under examination finds himself.’”). Significantly, the Adoption Act
forbids termination of parental rights “solely on the basis of environmental
factors such as inadequate housing, furnishings, income, clothing and medical
care if found to be beyond the control of the parent.” 23 Pa.C.S.A. § 2511(b).
Next, the decision of the orphans’ court to terminate Father’s parental
rights pursuant to Section 2511(a)(6) may have been contrary to the plain
language of the Adoption Act. As quoted above, Section 2511(a)(6) applies
solely “[i]n the case of a newborn child.” 23 Pa.C.S.A. § 2511(6). The statute
defines a “[n]ewborn child” as one “who is six months of age or younger at
the time of the filing of any petition pursuant to Chapter 25 (relating to
proceedings prior to petition to adopt).” 23 Pa.C.S.A. § 2102. In this matter,
the Agency filed its petition to terminate Father’s parental rights on September
9, 2019, when Child was approximately eight months old, and not a “newborn
child.” See In re Adoption of M.R.B., 25 A.3d 1247, 1254 (Pa. Super. 2011)
(“If [the agency] had delayed filing the petition . . . the agency would have
been precluded from invoking § 2511(a)(6) because [the child] would no
longer satisfy the statutory definition of a newborn child.”).11
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11 The Agency and Child’s prospective adoptive parents assert in their joint
brief that Child meets the definition of a “newborn child” because the Agency
filed petitions to confirm Mother’s consent, and to terminate the parental
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Section 2511(a)(6) also requires that a parent must “know[] or [have]
reason to know of the child’s birth[.]” 23 Pa.C.S.A. § 2511(a)(6). To the
extent the statute requires that a parent must know or have reason to know
of a child’s birth at the time it occurs, it was undisputed that Mother did not
inform Father of her pregnancy or of Child’s birth until months afterward. See
N.T., 1/22/20, at 110 (the orphans’ court explaining, “This is an unfortunate
case, because the testimony was undisputed that [Father] was not aware of
the child’s birth at the time of her birth or at the time of the placement with
the agency by [Mother].”).12
Based on the foregoing discussion, we conclude that Father’s appeal is
“not so lacking in merit” that we may grant his counsel’s petition to withdraw
and that we must remand for counsel to file an advocate’s brief. See M.C.F.,
230 A.3d at 1220 (“While ultimately, [the f]ather may not be entitled to any
relief, we cannot say that the appeal is ‘wholly frivolous,’ i.e., without any
basis in law or fact.”). Counsel must file an advocate’s brief in this Court
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rights of Mother’s unidentified assailant, when Child was still six months old
or younger. See Appellees’ Brief at 19 n.4 (“Petitions for Confirmation of
Consent and to Involuntarily Terminate [the assailant’s] rights under Chapter
25 were filed on April 17, 2019 and July 8, 2019, and therefore, [Child] is a
newborn child.”).
12 It appears the orphans’ court concluded that a parent need not know or
have reason to know of a child’s birth at the time it occurs, but must merely
know or have reason to know by the time the four-month period begins to
run. See N.T., 1/22/20, at 113 (the orphans’ court stating, “The birth father
. . . certainly no later than early May of 2019 [] knew, or had reason to know,
of the child’s birth. . . .”).
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within thirty days of the date of this decision, after which the Agency will have
thirty days to file a supplemental response brief, if it so chooses.
Petition to withdraw denied. Case remanded for the filing of additional
briefs consistent with this opinion. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2020
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