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[U] In re A.T.D.

Superior Court of Pennsylvania

February 24, 2014

IN RE: A.T.D. APPEAL OF: R.D., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree entered April 19, 2013, in the Court of Common Pleas of Montgomery County, Orphans' Court, at No(s): 2013-A0044

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OTT, JJ.

MEMORANDUM

OTT, J.

R.D. ("Father") appeals from the decree entered in the Court of Common Pleas of Montgomery County that confirmed his consent to adoption and terminated his parental rights with respect to his natural female child, A.T.D. We affirm the decree, and grant the petition for leave to withdraw as counsel filed by Father's counsel.

The record reveals the following pertinent facts and procedural history. A.T.D. was born in March of 2012, at which time Father was incarcerated. N.T., 4/18/13, at 36. A.T.D. was placed in the care of the Montgomery County Office of Children and Youth ("OCY") in April of 2012. Id. at 17. On January 7, 2013, Father, while still incarcerated, executed a consent to adoption pursuant to 23 Pa.C.S.A. § 2711(d). Id. at Exhibit OCY-1. On March 7, 2013, OCY filed separate petitions to confirm consent to adoption with respect to Father and A.T.D.'s mother, B.N.E. ("Mother").[1] A hearing was held on the petitions on April 18, 2013, during which Father's counsel advised the orphans' court that Father would like to withdraw his consent to adoption. N.T., 4/18/13, at 6. As such, Father's counsel requested a continuance of the hearing so that Father could file a petition to revoke his consent alleging fraud or duress. Id. at 6-7. In addition, because he was a witness to Father's consent executed on January 7, 2013, Father's counsel requested that new counsel be appointed to file the petition. Id. at 7. The court denied Father's request to continue the hearing and proceeded with testimony from Meghan Radick, the OCY caseworker, and Father.

By separate decrees dated and entered on April 19, 2013, the orphans' court confirmed the consents to adoption of Father and Mother, and terminated their parental rights.[2] In addition, by a separate order dated and entered on April 19, 2013, the court denied Father's request for the appointment of new counsel for the purpose of filing in the orphans' court a petition seeking to revoke his consent. Father, acting pro se, filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).[3]

On July 3, 2013, the orphans' court appointed new counsel to represent Father in his appeal to this Court.[4] On October 7, 2013, Father's counsel filed a petition for leave to withdraw as counsel and an Anders[5]brief. By order dated December 2, 2013, this Court denied the petition for leave to withdraw as counsel because Father's counsel had failed to comply with all the requirements for withdrawal. We directed counsel to either re-file a petition for leave to withdraw and an Anders brief, or file an advocate's brief, within thirty days. On December 4, 2013, Father's counsel re-filed a petition for leave to withdraw as counsel and an Anders brief, which we address initially. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (stating, "[w]hen 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[]") (citation omitted).

In In re V.E., 611 A.2d 1267 (Pa.Super. 1992), this Court extended the Anders principles to appeals involving the termination of parental rights. We stated that counsel appointed to represent an indigent parent on a first appeal from a decree involuntarily terminating parental rights may, after a conscientious and thorough review of the record, petition this Court for leave to withdraw representation and must submit an Anders brief. Id. at 1275. To withdraw pursuant to Anders, counsel must perform each of the following tasks.

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous;
(2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no merit" letter or amicus curiae brief; and
(3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention.

In re S.M.B., 856 A.2d 1235, 1237 (Pa.Super. 2004). Thereafter, this Court examines the record and determines whether the appeal is wholly frivolous. Id.

In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our Supreme Court stated that an Anders brief must comply with the following four factors:

(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.

Id. at 361.

Notably, in this case, Father's counsel did not originally comply with all the requirements of Anders and Santiago. By order dated December 2, 2013, this Court directed counsel to re-file his petition to withdraw and Anders brief and attach, in part, a copy of counsel's letter to Father advising him of his rights, and Father's counsel timely complied. Upon review, we conclude counsel has now satisfied the requirements of Anders and Santiago.

We now review the merits of Father's issue on appeal, which counsel states as follows:

Did the trial court commit error by failing to continue the termination of parental rights hearing so that [ ] Father could pursue a petition to revoke the consent to adoption in accordance with 23 Pa.C.S. § 2711(c)(3) (relating to fraud and duress)[?]

Anders brief at 4.

Because Father's issue involves a question of law, this Court's standard of review is de novo, and our scope of review is plenary. See In re Adoption of J.A.S., 939 A.2d 403, 405 (Pa.Super. 2007) (citation and quotations omitted).

Section 2711 of the Adoption Act provides, in relevant part:
§ 2711. Consents necessary to adoption.
. . .
(c) Validity of consent. -- . . . 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):
(i) For a consent to an adoption executed by a birth father or a putative father, the consent is irrevocable more than 30 days after the birth of the child or the execution of the consent, whichever occurs later.
. . .
(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.
(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.

23 Pa.C.S.A. § 2711(c).

In his Anders brief, counsel sets forth Father's argument as follows:
[H]e did not fully understand the Section 2711 deadlines at the time he signed the consent and [] the fact that he was incarcerated made it more difficult for him to learn this information. [Father] believes it is fundamentally unfair to enforce these deadlines under these circumstances[, ] and that the matter should be remanded so that he may file a petition to revoke the consent that may be addressed on the merits. He contends that the OCY caseworker, and [Father's trial counsel], effectively misled him into believing that he did not have any viable options to signing the consent to adoption.

Anders brief at 12-13.

With respect to Father's argument that he did not fully understand the Section 2711 deadlines at the time he signed the consent, we observe that Father did not raise this issue in either his concise statement of errors complained of on appeal filed pro se, or in the supplemental concise statement filed by Father's appellate counsel. Rather, Father raised a challenge to the validity of the consent to adoption pursuant to Section 2711(c)(3)(i), relating to fraud or duress. Therefore, to the extent Father asserts he did not understand the Section 2711 deadlines, we deem this issue waived. See Dietrich v. Dietrich, 923 A.2d 461, 463 (Pa.Super. 2007) (stating that when an appellant filed a Rule 1925(b) statement, any issues not raised in that statement are waived on appeal).

With respect to Father's argument relating to fraud, the orphans' court reasoned in its Rule 1925(a) opinion,

Even assuming, arguendo, [Father's] allegation that he was told, incorrectly, that there was nothing he could do to stop the adoption from proceeding and the dissemination of this misinformation constituted fraud, the instant appeal must be dismissed. . . . The earlier of the time frames [pursuant to Section 2711(c)(3)(i)(A)] in this case would be sixty days after [Father] signed [his consent] on January 7, 2013, i.e., by March 8, 2013. We heard nothing from [Father] until the oral motion on his behalf at the April 18 hearing. Thus, the late challenge could not be heard and there was no reason to appoint him new counsel before proceeding with the confirmation hearing. See Adoption of J.A.S., [supra].

Trial Court Opinion, 7/23/13, at 3-4. For the following reasons, we discern no error by the court.

In In re Adoption of J.A.S., supra, this Court stated that, "Section [2711(c)] . . . makes clear that a revocation and/or a challenge to the validity of a consent to adoption must be in conformity with the Act." In re Adoption of J.A.S., 939 A.2d at 407-408. In that case, we reversed and remanded the order overruling the appellant's preliminary objections to the petition filed by the birth mother to revoke her consent to adoption and challenge its validity. The birth mother filed the petition 100 days after the relevant consent. We held the court erred "when it reached the validity issue first, found the 'form' of the consent flawed, and refused to address the timeliness requirement. . . ." Id. at 409. We explained,

[T]he unambiguous language of the statute required the Orphans' court in this case to consider the timeliness of Birth mother's petition . . . before it considered the merits of her claim. . . . [T]he threshold act that triggers these provisions of Section 2711 is the timely filing of the petition to revoke and/or challenge the validity of the consent to adoption. Whether Birth mother's consent to adoption was valid could be addressed only if her petition had been timely filed. Essentially, the untimeliness of Birth mother's petition precluded the court from addressing the issue of validity.

Id. at 408-409.

In the instant matter, on April 18, 2013, 101 days after executing the consent to adoption, Father made an oral motion seeking a continuance of the termination hearing for the purpose of filing a petition challenging the validity of the consent on the basis of fraud or duress. Based on the unambiguous language of the statute, as interpreted by this Court in In re Adoption of J.A.S., supra, we hold that the orphans' court did not err in failing to continue the termination of parental rights hearing for Father to pursue a petition challenging the validity of the consent because the petition, subsequently filed, would be untimely. Further, we hold that the court did not err in confirming Father's consent to adoption and terminating his parental rights. Accordingly, we affirm the order, and grant the petition of Father's counsel to withdraw.

Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.


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