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[U] In re Adoption of T.J.S.

Superior Court of Pennsylvania

February 7, 2014

IN RE: ADOPTION OF T.J.S.
v.
APPEAL OF: T.B., MOTHERIN IN RE: ADOPTION OF T.B.S.
v.
APPEAL OF: T.B., MOTHER

NON-PRECEDENTIAL DECISION

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.

MEMORANDUM

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), [1] 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).[2] 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.[3]

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 waive her right to counseling. We agree.

The purpose of a hearing is to insure an intelligent, voluntary and deliberate consent to the termination of parental rights. In re Adoption of Wolfe, 312 .2d 792 (Pa 1973). "A party seeking to disturb a termination decree must show that the consent given to terminate parental rights was not intelligent, voluntary, and deliberate." In re M.L.O., 416 A.2d 88, 90 (Pa. 1980). Furthermore, any consent given to terminate parental rights voluntarily must be "clear and unequivocal." In re Singer's Adoption, 326 A.2d 275, 278 (Pa. 1974). This Court has stated:

We are unwilling to allow the termination of . . . parental rights, however, without strict compliance with the procedures set forth by the Legislature. . . Termination of parental rights is a drastic measure that should not be taken lightly. Not only are [ parent's] rights at stake here, but [ the child's] right to a relationship with her [ parent] is also at stake.

In re Adoption of K.G.M., 845 A.2d 861, 864-65 (Pa.Super. 2004), citing In re Adoption of Stickley, 638 A.2d 976, 980 (1994). Thus, without a valid waiver of her right to counseling, we cannot conclude that Mother intelligently, voluntarily and deliberately consented to terminate her parental rights.

During the hearing, the orphans' court conducted a colloquy, see N.T. Hearing, supra, at 5–23. However, during the colloquy Mother testified inconsistently over the course of ten pages of the transcript: Mother indicated that she understood that she had the right to receive counseling regarding her decision to voluntarily terminate her parental rights. Id. at 10. When asked by her attorney if she wished to waive that right to counseling, Mother replied, " No." Id. Later in the colloquy, the trial judge inquired whether Mother was voluntarily waiving her right to receive counseling relating to whether the decision to terminate her parental rights was the right decision. Id. at 12–13. The trial judge advised Mother that if she were not willing to waive that right, they would need to postpone the hearing so she could receive that counseling. Id. at 13. When asked if she wanted to postpone so she could receive that counseling, Mother did not respond. Id.

On redirect, counsel indicated that Mother had been undergoing prior counseling with a separate counselor, but explained that she was entitled to additional counseling specifically relating to the decision to agree to terminate her parental rights. Id. at 14. When asked specifically if she wanted to waive her right to that additional counseling, Mother replied, "No." Id. When asked specifically if she wanted that particular counseling, Mother responded, "Yes." Id. at 16. Counsel explained to Mother that this meant that her request to voluntarily terminate her parental rights would not be approved that day, that she would have to come back to court on a later date after the counseling and go through the hearing again, which Mother stated that she understood. Id. at 17. Counsel then posed the following question:

[ Mother's Attorney]: Knowing all that to be true, you don't w ant your rights terminated today. You want that counseling before you decide to do that?"
[ Mother]: Yes.

Id. (emphasis added).

In response to Mother's answer, counsel requested a continuance so that Mother could have the opportunity to receive that counseling. Id. The court, however, denied the continuance and granted WCCB permission to proceed on an involuntary termination of parental rights hearing. Id. at 17– 18. When asked whether Mother was just confused, the trial judge stated that:

[ Trial Judge]: I don't think she is. I mean, when the question was asked the first time, she was very clear, and [ counsel] had a chance to clarify it, and she's indicated today that she wants to delay it. She's not willing to give up her rights today. She wants the counseling to make that decision. Is that what you said?
[ Mother]: Yes.

Id. at 19 (emphasis added).

At that point, Mother's counsel requested a brief recess to discuss the matter with her client, which the court allowed. I d. at 20. After the recess, Mother indicated that the counseling that she wished to receive "was to help [ her] cope with [ her] decision to voluntarily terminate [ her] parental rights[ .] " Id. at 21. In contradiction to her earlier testimony, Mother indicated that she did not wish to receive counseling to assist her in making that decision, that the decision had already been made, and that no amount of counseling would change her mind regarding her decision to voluntarily terminate her parental rights. Id. at 21–22.

When the trial judge asked why she was voluntarily terminating her parental rights, Mother stated in contravention to her earlier statements and after repeated questioning that it was in the best interest of the boys, and she related that no one had pressured her into making that decision. Id. at 22. The trial judge later determined that, notwithstanding the very confusing and conflicting testimony, Mother had knowingly, deliberately, and voluntarily relinquished her parental rights.[4] Id. at 30. This, too, was error .

Pursuant to 23 Pa.C.S.A. § 2505(c):

Prior to entering a decree of termination of parental rights pursuant to section 2503 (relating to hearing) or 2504 (relating to alternative procedure for relinquishment), if the parent whose rights are to be terminated is present in court, the court shall inquire whether he or she has received counseling concerning the termination and the alternatives thereto from an agency or from a qualified counselor listed by a court pursuant to subsection (b). If the parent has not received such counseling, the court may, with the parent's consent, refer the parent to an agency or qualified counselor listed by a court pursuant to subsection (b) for the purpose of receiving such counseling.

23 Pa.C.S.A. § 2505(c). Here, the orphans' court never went ahead with the involuntary termination of parental rights, but made it clear that it would do so if Mother did not acquiesce in the voluntary termination. While the orphans' court was correct in advising Mother that WCCB was entitled to pursue the involuntary termination immediately, it was error to permit WCCB to leverage the threat of involuntary termination to gain Mother's agreement to waive the counseling requirement. If WCCB was committed to presenting its petition under § 2511(a) and (b), it should have proceeded on that course, thereby allowing the orphans' court to review the agency's evidence, deem it sufficient, and terminate Mother's parental rights immediately. Had that theoretic result occurred, the orphans' court's failure to comply with §§ 2501, 2503, and 2505, would be irrelevant. However, that did not happen here. In actuality, the orphans' court relieved WCCB of its burden of proof under § 2511, accepted Mother's relinquishment pursuant to § 2501, and flouted the significant interests that the strict application of the statute was intended to protect.

What we can glean from the notes of testimony and colloquy is that Mother was extremely distraught at the thought of relinquishing parental rights to her two minor children. She asked for counseling to help her cope with the decision and the orphans' court, rather than provide the counseling requested and authorized by statute, provided Mother with a Hobson's choice – voluntarily relinquish parental rights or the court would perm it an involuntary termination proceeding to occur. This is not appropriate under the statute, and under these circumstances, we cannot conclude that her consent was voluntary.[5]

At best, the record on this matter is ambiguous. Mother initially sought to voluntarily waive her parental rights, but during the colloquy, she specifically stated that she wished to receive the counseling and that she was unwilling to proceed with the voluntary termination that day. Mother related to both her attorney and to the judge that she wished to receive that counseling and wanted to postpone the hearing until she received it. Only after the court and counsel posed the same question multiple times and following a brief recess to discuss the matter with her attorney, did Mother consent to waive her right to counseling. This ambiguity and uncertainty that Mother exhibited during the colloquy establishes that her consent to terminate her parental rights was not valid. In conclusion, we find that the record does not support a determination that Mother intelligently, voluntarily, and deliberately waived her right to counseling in a clear and unequivocal manner, and that the orphans' court erred in failing to strictly adhere to the statutory and procedural safeguards prior to entering a decree terminating Mother's parental rights.[6] In re Singer's Adoption, supra. We will not affirm the "drastic measure" of terminating Mother's rights on such an inconclusive record. Stickley, 638 A.2d at 980.

We conclude, therefore, that strict compliance with the statute is lacking and Mother's waiver of her right to counsel was invalid. Her consent to voluntarily terminate her parental rights is, therefore, void. The orders voluntarily terminating her parental rights are reversed, and the case is remanded with instructions that the termination orders of July 10, 2013 be vacated.

Orders reversed. Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.


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