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In re J.W.B.

Superior Court of Pennsylvania

July 12, 2019

IN RE: J.W.B. AND R.D.B., MINORS APPEAL OF: L.B., FATHER

          Appeal from the Decree Entered January 4, 2019 In the Court of Common Pleas of Lycoming County Orphans' Court at No(s): 6608

          BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, [*] P.J.E.

          OPINION

          MURRAY, J.

         L.B. (Father) appeals from the decree terminating his parental rights to his minor children, J.W.B. (born July 2013) and R.D.B. (born June 2015) (Children), and confirming his consent to adoption. Father avers that his consent to adoption was invalid because it did not comply with the laws of Colorado, where he resides. After careful review, we hold that the trial court properly applied Pennsylvania law, and further, Father failed to comply with Pennsylvania law when he attempted to revoke his consent. Accordingly, we affirm.

         A.S. (Mother) and her husband, M.S. (Husband) are residents of Pennsylvania, where they live with Children. Father is a resident of Colorado. On June 13, 2018, Mother and Husband filed a petition seeking to confirm consent to adoption or, in the alternative, to involuntarily terminate Father's parental rights, and a petition for adoption. See Petition to Confirm Consent, 6/13/18, at ¶¶ 1-13. Previously, on November 27, 2017, Father had signed a consent, which advised him that his consent was irrevocable unless revoked within 30 days after execution by delivery of written revocation to the orphans' court. See Petition to Confirm Consent, 6/13/18, Exhibit A. The consent was signed by Father and witnessed by Father's girlfriend and father. Id. On October 17, 2018 and November 28, 2018, the court convened a hearing on Mother and Husband's petitions.

         Mother testified that on September 24, 2017, she had a conversation with Father in which he stated he wished to relinquish his parental rights, and asked Mother to speak to her husband about adopting Children. See N.T., 10/17/18, at 6-7. Father instructed Mother to call Roger Wiest, Esquire, who assisted Father and Mother during their divorce. Id. at 7. Mother called Attorney Wiest, who prepared and mailed to Father a consent to adoption for each child. Id. at 8. Father signed his consent on November 27, 2017. Id. Mother stated that after texting Father to tell him that she and Husband were pursuing adoption, she had no further conversations with Father; that Attorney Wiest told her Father had signed the consent; and that at no point did Father inform Mother he had changed his mind or that he had submitted a written revocation. Id. at 11.

         Attorney Wiest testified that Mother contacted him regarding the adoption of Children. N.T., 10/17/18, at 17-18. Attorney Wiest then prepared the written consent to adoption, which he sent to Father in Colorado. Id. at 18. Attorney Wiest testified that he did not consider Colorado law at the time he prepared the documents, as he was of the opinion that, because it was a Pennsylvania adoption, Pennsylvania law would apply. Id. at 18-19. Further, Attorney Wiest proceeded with the understanding that Mother and Father had agreed to the relinquishment and adoption. Id. at 19. At some point in May 2018, Father telephoned Attorney Wiest and stated that he changed his mind and no longer wished to consent; Attorney Wiest advised Father to retain separate counsel to proceed further. Id. at 20, 22. However, Attorney Wiest never received written revocation from Father. Id. at 21-22.

         Father called Randall W. Klauzer, Esquire, an attorney licensed in Colorado, to testify as an expert on parental consent to termination. N.T., 10/17/18, at 27-28. Specifically, Attorney Klauzer testified that the Colorado statute requires counseling before a party may consent to the termination of his parental rights, and additionally, contains restrictions that the Pennsylvania statute does not. Id. at 31-50. Colorado law requires that consent be in the form of a sworn statement, and that a copy of the adoption petition be attached to the consent. Id. Also, Colorado law allows for revocation of consent prior to the entry of an adoption decree. Id. Attorney Klauzer thus opined that Father's consent did not conform to Colorado law and would not be valid and enforceable in Colorado. Id. at 29.

         Father testified that he has lived in Colorado since February 2017. N.T., 10/17/18, at 52. Father acknowledged that he contacted Mother about relinquishing his parental rights on September 24, 2017, and about contacting Attorney Wiest to effectuate Children's adoption in Pennsylvania. Id. at 53-54. Attorney Wiest sent Father the consent paperwork and advised Father how to revoke his consent. Id. Father executed the consent on November 27, 2017, and returned it to Attorney Wiest. Id. at 56. Father admitted he never executed a written revocation. Id. After Mother texted Father to tell him that the paperwork was complete, and she and Husband would proceed with adoption, Father called Attorney Wiest and told him that he no longer wished to relinquish his parental rights. Id. at 64. Father confirmed that Attorney Wiest told him to obtain a new attorney. Id. Father conceded that he was aware that the consent he executed required written revocation within 30 days, and that he did not revoke his consent within that time. Id. at 64-65. Father also claimed that he had been drinking heavily around the time and had been in rehab. Id. at 65-66.

         At the conclusion of the November 28, 2018 hearing, the court held the matter under advisement. On January 4, 2019, the court issued an opinion and decree terminating Father's parental rights to Children. Pertinently, the court rejected Father's claim that Colorado law applied, and held instead that under Pennsylvania law, Father's attempt to revoke his consent was not valid. Father filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

         On appeal, Father raises the following issue for our review:

Did the [orphans' court] err in application of 23 Pa.C.S.A. § 2711(c) by failing to consider the [invalidity] of consents for adoption under Colorado law, simply because the Colorado resident Father did not revoke consent within 30 days in accordance with Pennsylvania law where no such requirement exists in Colorado and where Colorado law permits revocation of consent up to and including the date of hearing?

         Father's Brief at 2.

         We review cases involving the termination of parental rights ...


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