In re D.G.J.

277 A.3d 1204

IN RE: ADOPTION OF: D.G.J.

Appeal of: H.L.H. and E.W.H.

No. 1782 EDA 2021

Superior Court of Pennsylvania.

Submitted February 15, 2022

Filed June 16, 2022

Audrey Z. Johnson, Monrovia, Libena, participating party, pro se.

Benedict O. Johnson, Paynesville, Libena, participating party, pro se.

Deborah E. Spivack, Philadelphia, for appellant.

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

OPINION BY LAZARUS, J.:

H.L.H. and E.W.H. (Petitioners) appeal from the decree, entered in the Court of Common Pleas of Chester County Orphans’ Court, denying, with prejudice, their petitions to confirm consent and for adoption of their minor nephew, D.G.J. (Child). After careful review, we reverse and remand.

Child was born in Liberia in July 2006. After Child's parents divorced, Child came to the United States, on December 30, 2014, on a B1/B2 visa.¹ Since his arrival in the United States, Child has resided with Petitioners, his maternal aunt and uncle, who were also born in Liberia but became naturalized United States citizens on June 13, 2011. Petitioners and Child reside in Coatesville, Chester County, Pennsylvania.

On February 22, 2021, Petitioners filed a "Report of Intention to Adopt" (Report) Child, averring that "[o]n November 27, 2020, Child's biological parents signed consents to adoption." Report of Intention to Adopt, 2/22/21, at 1. Attached to the Report are signed, dated and notarized consents, executed by Child's biological parents, indicating that they

voluntarily and unconditionally consent to the adoption of [Child,] understand that by signing th[e c]onsent[s they] indicate [their] intent to permanently give up all rights to [Child,] understand[ ] [Child] will be placed for adoption by [Petitioners, that they] understand [they] may revoke th[e c]onsent[s] ... by placing the revocation in writing and serving it upon the agency or adult to whom [Child] was relinquished[, and that the c]onsent[s] to an adoption is irrevocable unless [they] revoke [them] within THIRTY (30) DAYS after executing [them.]

Statutory Consent of Birth Mother, 11/27/20, at 1-2; Statutory Consent of Birth Father, 11/27/20, at 1-2.² Child's biological parents also executed statements indicating that they wish to be contacted by Child after he attains the age of 18. Statement by Parent, 11/27/20, at 1.

On that same date, Petitioners filed petitions to confirm biological parents’ consents to adopt, as well as a petition for adoption of Child. On August 19, 2021, the trial court issued its decree denying the petitions with prejudice and without a hearing. The Orphans’ Court judge determined that because Child is foreign-born, "until the Petitioners comply with [ 23 Pa.C.S.] § 2908,^{[3 ]} the court [ ] lack[s] jurisdiction[,] the [Petitioners’] filings [are] procedurally defective[,] and the court [is] prohibited from proceeding with any other portion of the Adoption Act which might otherwise apply." Trial Court Opinion, 9/16/21, at 4.

Petitioners filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Petitioners present the following issues for our consideration:

(1) Did the [Orphans’ Court] err as a matter of law in determining that the Pennsylvania Adoption Act, codified at 23 Pa.[C.S.] § 2101, et. [s]eq.[,] and specifically, 23 Pa.C.S. § 2908 [ ] and its implementing Rule 15.9, both of which only apply according to their clear and unambiguous terms when a party files an adoption petition in a foreign country while the child is a resident of that country and subsequently seeks to register that adoption decree in the Commonwealth of Pennsylvania, govern[ ] the current matter, where the prospective adoptee has been a resident of the Commonwealth of Pennsylvania for the preceding six years, and the prospective adoptive parents commence[d] an adoption proceeding in this Commonwealth?

(2) Did the Orphans’ Court both err as a matter of law and abuse its discretion by ignoring the clear and unambiguous language of [s]ection 2908, and[,] instead[,] resorting to the implement[ation of] Rule 15.9 in order to find that because [Child] was born in Liberia, he is a "foreign[-]born child," a term with a peculiar and appropriate meaning in the implementing rule designed to apply only to a child that was both born in a foreign country and resided in that foreign county at the time that the adoption proceedings were commenced, thereby entering the United States on certain types of visas[, which is] inapplicable here?

(3) Did the Orphans’ Court[’s] interpretation of Pennsylvania's statutes produce an absurd result by compelling all prospective adoptees that were born in a foreign country, yet have resided in the Commonwealth of Pennsylvania for several years, to return to their birth countries, comply with the laws of adoption in their birth countries, and then seek to reenter the United States and thereafter register their foreign adoption decree utilizing the registration procedure contained in [s]ection 2908?

(4) Was the [Orphans’ Court] correct [in finding that] the General Assembly not only required consideration of a prospective adoptee's immigration status, but further made that status completely dispositive[,] compelling denial of the adoption petition with prejudice, when the General Assembly has already detailed the requirements necessary [to] comply with the Adoption Act, and the child's immigration status is not listed as a consideration nor is legal immigration status even deemed relevant in any way?

(5) Did the Orphans’ Court exceed its permissible jurisdiction when it imposed a punitive measure upon a child whose visa had expired, and precluded the child from pursuing adoption in the Commonwealth of Pennsylvania solely because of this status, when the [f]ederal [g]overnment has the exclusive authority over matters involving naturalization and immigration, and there is not a single shred of authority within this Commonwealth making immigration status even relevant, much less dispositive?

(6) Did the Orphans’ Court abuse its discretion when it determined that the [a]doption [p]etition was "[p]rocedurally [i]mproper," solely because [Child] had overstayed his visa, when the [p]etition perfectly complied with all requirements set forth in the Adoption [Act], which[,] itself[,] does not require proof of immigration status?

(7) Was the Orphans’ Court's decision to deny the adoption petition with prejudice without ordering a home study, conducting a hearing, making a record, taking evidence, conducting formal briefing on the docket, and permitting oral argument a violation of [Petitioners’] constitutional right to procedural due process?

(8) Did the Orphans’ Court arbitrarily abuse its power by making [Child's] immigration status a controlling factor when there is no recognized legal authority for even taking immigration status into consideration when the prospective adoptive parents are family members, have formed a parental bond with [Child] over the preceding six years, and intend to bring [C]hild into status by filing a Family Petition after his adoption?

Petitioners’ Brief, at 3-6.

When reviewing a decree entered by the [O]rphans’ [C]ourt, the appellate court must determine whether the record is free from legal error and the court's factual findings are supported by the evidence. Because the [O]rphans’ [C]ourt sits as the fact-finder, it determines the credibility of the witnesses, and on review, the appellate court will not reverse its credibility determinations absent an abuse of that discretion.

In re E.M.I. , 57 A.3d 1278, 1284 (Pa. Super. 2012).

Instantly, Child was born in Liberia and has been living in the United States since 2014 with an aunt and uncle who are naturalized, United States citizens. Therefore, Petitioners are seeking a domestic adoption⁴ of a child who was born in a foreign country, utilizing the procedures set forth in our Commonwealth's Adoption Act. The factual circumstances in this case present a factual scenario of first impression—United States citizens seeking to adopt their foreign-born nephew, who has been residing with them in the United States on a non-immigrant visa and where there is no foreign adoption decree made or entered into in conformity with the laws of the child's home country.

We recognize that adoption in this Commonwealth is purely a statutory right. In re Adoption of R.B.F. , 569 Pa. 269, 803 A.2d 1195, 1199 (2002). Pennsylvania's Adoption Act (Act) is codified at chapters 21 through 29 of the Domestic Relations Code.⁵ See 23 Pa.C.S. §§ 2101 - 2938. It is well-established that the provisions of the Adoption Act must be strictly complied with, In re Adoption of E.M.A. , 487 Pa. 152, 409 A.2d 10, 12 (1979) (citations omitted), but also that "[t]he law is not to be construed unreasonably and thus defeat the express purposes of the Act." See In re Russell Adoption Case , 170 Pa.Super. 358, 85 A.2d 878, 883 (1952).

Notably, the Adoption Act is silent with regard to an adoptee's citizenship or immigration status.⁶ Moreover, the Act does not define the term "child"⁷ or "foreign born child." See In re Adoption of Hess , 530 Pa. 218, 608 A.2d 10, 13 (1992) ("Wherever possible, we must be guided by the specifications of the Adoption Act in making our determination."). Our Supreme Court has stated that the plain language of a statute is, in general, the best indicator of legislative intent. In re Adoption of J.A.S. , 939 A.2d 403 (Pa. Super. 2007). Moreover, "[w]e must construe words and phrases in the statute according to their common and approved usage. We must also construe a statute in such a way as to give effect to all its provisions, if possible, thereby avoiding the need to label any provision as mere surplusage." Id. at 405-06 (citations omitted).

Under the Act, adoption proceedings may be brought in the county where the adoptee resides. 23 Pa.C.S. § 2302(1).⁸ Moreover, "[a]ny individual may be adopted, regardless of his age or...