IN RE: ADOPTION OF T.J.S.
APPEAL OF: T.B., MOTHERIN IN RE: ADOPTION OF T.B.S.
APPEAL OF: T.B., MOTHER
Appeal from the Order July 10, 2013 In the Court of Common Pleas of Westmoreland County Orphans' Court at No(s): 23 of 2013, 24 of 2013.
Joseph D. Seletyn, Esq.
BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.
T.B. (Mother) appeals from the order of the Court of Common Pleas of Westmoreland County Orphans' Court voluntarily terminating her parental rights to her minor children, T.J.S. and T.B.S., and determining that her decision to do so was knowingly, deliberately and voluntarily made. On appeal, Mother raises one question:
Whether the trial court erred in finding that [ Mother's] decision to voluntarily terminate her parental rights was done intelligently, voluntarily, and deliberately when [ Mother] testified she did not want her parental rights terminated and strict compliance with statutory procedure, under 23 Pa.C.S.A. § 2505(c), was not followed when [ Mother] did not unequivocally waive her right to counseling, in that [ Mother] did not waive her right to counseling on direct examination from her attorney, did not waive her right to counseling when initially questioned by the trial court, did not waive her right to counseling after redirect examination by her attorney but only after [ Mother's] request for a continuance was denied and a brief recess did [ Mother] answer yes to a leading question about whether she wanted to waive counseling[ .]
After careful review, we are constrained to reverse and remand.
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 Matter of the Adoption of A.M.B., 812 A.2d 659, 662 (Pa.Super. 2002); In the Matter of the Adoption of A.J.B., 797 A.2d 264, 266 (Pa.Super. 2002);
This action arises from the filing and service of two Petitions for Involuntary Termination of Parental Rights by the Westmoreland County Children's Bureau (WCCB) pursuant to Subchapter B (Involuntary Termination) of the Adoption Act, 23 Pa.C.S. §§ 2501-2505. Pursuant to section 2512(a)(2),  WCCB sought termination of Mother's parental rights to T.J.S. and T.B.S. under sections 2511(a)(2), (a)(5), (a)(8), and (b). The court scheduled an evidentiary hearing on the petitions for July 10, 2013; however, the hearing did not take place because Mother expressed her desire to voluntarily terminate her parental rights. N.T. Hearing, 7/ 10/ 2013, at 3–4.
The Adoption Act, pursuant to Subchapter A (Voluntary Relinquishment), provides two acceptable means for parents to voluntarily relinquish parental rights: (1) a petition to relinquish parental rights pursuant to § 2501 or § 2502; and (2) a petition to confirm a birth parent's consent to adoption under § 2504. Pursuant to the procedures outlined in §§ 2501 and 2502, the natural parent first petitions the orphans' court for permission to permanently relinquish parental rights to their minor children to an agency or an adult intending to adopt. The statute mandates that the orphans' court hold a hearing no less than ten days after the petitions are submitted in order for the relinquishing parents to ratify their consent to termination. See 23 Pa.C.S. § 2503(a). "The petitioner's in-court ratification of consent assures due process requirements in view of the finality of the termination decree as to the parent." § 2503(a) Cmt.-1980.
Here, Mother did not file a written petition to relinquish her parental rights pursuant to section 2501(a), and the record does not include a written petition that actually requests the orphans' court for permission to permanently relinquish her parental rights and duties to T.J.S. and T.B.S. The orphans' court simply treated WCCB's petitions for involuntary termination as Mother's petitions for relinquishment. However, since neither the agency nor the orphans' court amended those petitions, they were poor substitutes for section 2501(a) petitions, and they did not satisfy the requirements outlined in Pa.O.C. Rule 15.2(a). Specifically, the agency's unedited petition failed to state Mother's reasons for seeking relinquishment or attest that Mother understood the petition, considered available alternatives, and believed that relinquishing her parental rights was in her sons' best interests. See Pa.O.C.Rule 15.2(a). The orphans' court ostensibly treated Mother's impromptu relinquishment of her parental rights as the functional equivalent of a relinquishment to an agency under § 2501.
Although Mother's argument on appeal does not focus on these particular procedural failings, we conclude the court's casual adherence to the statute and rules governing voluntary relinquishment was error. See Adoption of A.M.B., supra; Adoption of A.J.B., supra; see also In re J.F., 862 A.2d 1258, 1260 (Pa.Super. 2004) (when reviewing order concerning voluntary relinquishment of parental rights pursuant to §§ 2501-2505 we must " determine if the record is free from legal error and if the factual findings are supported by the evidence.") .
Mother's sole claim here is that her decision was not knowingly, deliberately and voluntarily made because she did not unequivocally ...