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[U] In re M.M.P.

Superior Court of Pennsylvania

February 12, 2014

IN THE INTEREST OF: M.M.P.
v.
APPEAL OF: L.O., MOTHER IN THE INTEREST OF: S.M.P. APPEAL OF: L.O., MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree entered September 9, 2013 in the Court of Common Pleas of Philadelphia County, Family Court, at No(s): CP-51-AP-000400-2013, CP-51-AP-000401-2013

BEFORE: BENDER, P.J.E., WECHT, J. and STRASSBURGER, [*] J.

MEMORANDUM

STRASSBURGER, J.

L.O. (Mother) appeals from the decrees of September 9, 2013, which confirmed the voluntary termination of her parental rights to her children, M.M.P. (born in February 2010) and S.M.P. (born in January 2011). We affirm.

The Philadelphia Department of Human Services (DHS) became aware of the family in February 2010, when Mother and M.M.P. tested positive for phencyclidine (PCP) at the time of M.M.P.'s birth. The following year, Mother gave birth to S.M.P. prematurely, and again both Mother and child tested positive for PCP. Both children were eventually committed to DHS, with custody residing in their paternal grandmother. At periodic permanency reviews, Mother was found minimally or substantially compliant with her goals, with her continued drug use remaining a problem.

A hearing eventually was scheduled for the trial court to consider a change of goal and involuntary termination of parental rights. On April 23, 2013, prior to the hearing, Mother signed petitions to terminate voluntarily her rights to M.M.P. and S.M.P. The previously-scheduled hearing was continued to give F.P. (Father) the opportunity to execute petitions to terminate voluntarily his parental rights, [1] and a goal-change hearing was scheduled for September 9, 2013.

Mother did not appear at the hearing; however, her counsel was present. Counsel informed the trial court that Mother had signed the petitions for voluntary relinquishment of her parental rights, and presented the DHS caseworker to confirm that Mother signed the documents, indicated that she understood the import of them, and had not expressed a desire to revoke her consent. N.T., 9/9/2013, at 11-12. Accordingly, the trial court entered a decree terminating Mother's parental rights.

On October 9, 2013, Mother timely filed a notice of appeal and statement of errors complained of on appeal. The trial court filed its opinion on November 12, 2013.

Mother presents the following questions on appeal.

A. Whether the trial court committed reversible error when it voluntarily terminated [M]other's parental rights where such determination was not supported by clear and convincing evidence under the Adoption Act[, ] 23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), and (a)(8)?
B. Whether the trial court committed reversible error when it voluntarily terminated [M]other's parental rights without giving primary consideration to the effect that the termination would have on the developmental[, ] physical[, ] and emotional needs of the child as required by the Adoption Act[, ] 23 Pa.C.S.A. § 2511(b)?

Mother's Brief at 2 (trial court answers omitted).

Mother is not entitled to relief. As the trial court aptly notes, Mother's parental rights were terminated voluntarily under 23 Pa.C.S. § 2711, not involuntarily under 23 Pa.C.S. § 2511. Trial Court Opinion, 11/12/2013, at 9. Hence, Mother's issues related to the inadequacy of the evidence under section 2511 bear no relevance to the trial court's order.

Indeed, Mother's argument centers not at all on section 2511; her summary of argument states as follows.

This case should be remanded back to the trial court because [M]other wanted to rescind her petitions that voluntarily terminated her parental rights. Mother was not present at the hearing to confirm consent of those petitions. Fundamental due process requires that each party to a termination have an opportunity to be heard. Mother would like to be present at a new trial and present testimony on her behalf as to why her rights should not be terminated.

Mother's Brief at 3.

First, Mother did have the opportunity to be heard. By failing to attend the properly-noticed hearing at which her counsel did appear, she simply chose not to avail herself of that opportunity. There is no indication in the record that Mother was denied due process.

Second, Mother's consent became irrevocable 30 days after execution of her consent. See 23 Pa.C.S. § 2711(c)(1)(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."). If she thereafter wished to challenge the validity of the consent, Mother was required to file a petition alleging fraud or duress within 60 days of the execution of the consent. See 23 Pa.C.S. § 2711(c)(3)(i)(A). These limitations upon her ability to change her mind are plainly and obviously referenced on the consent form which Mother executed in the presence of two witnesses as required by 23 Pa.C.S. § 2711(d). Consent of Birth Mother, 4/23/2012.

Instead of timely revoking her consent, Mother waited until after her rights were terminated, which was 139 days after she executed the consent, to voice any indication of her change of mind. Instead of filing a petition challenging the validity of her consent, she provided this Court with an affidavit claiming that (1) she instructed her attorney to file an appeal because she had a disagreement with the adoptive parent, who has indicated that she will not allow Mother to see the children; and (2) she intended to appear at the September 9, 2013 hearing to contest the termination, but she arrived late. Mother's Brief at Exhibit A.[2] Given the applicable law, Mother clearly has not stated any basis for relief from this Court.

Decrees affirmed.

Judgment Entered.


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