In re J.W.B.

232 A.3d 689

IN RE: J.W.B. and R.D.B., Minors

Appeal of: L.B., Father

No. 93 MAP 2019

Supreme Court of Pennsylvania.

Argued: March 10, 2020

Decided: June 16, 2020

OPINION

JUSTICE DONOHUE

Appellant, L.B., is a resident of Colorado. In this discretionary appeal, we consider whether the Superior Court erred in its application of Pennsylvania law to find that L.B. ("Father"), was foreclosed from challenging the validity of his consent to permit the adoption of his minor children, where his consent satisfies the requirements of Pennsylvania's Adoption Act, 23 Pa.C.S. §§ 2101 - 2910, but not the requirements of Colorado's corresponding statute.¹ As explained herein, we conclude that the Superior Court did not err in affirming the trial court's entry of a decree terminating Father's parental rights to J.W.B. and R.D.B. ("the Children").

Statutory Framework

Pennsylvania's Adoption Act provides two mechanisms by which to obtain the consent of a parent for the adoption of his or her child. Sections 2501 and 2502 provide that a natural parent may file a petition to relinquish his or her parental rights to a child to an agency or an adoptive adult, respectively. See 23 Pa.C.S. §§ 2501 -02. Upon the filing of a petition under either Sections 2501 or 2502, the trial court sets a hearing to terminate the petitioning parent's parental rights. 23 Pa.C.S. § 2503.

Where a parent has not filed a petition to relinquish his or her parental rights, Section 2504 provides an alternative means to obtain parental consent to adoption. Pursuant thereto, when a natural parent has executed a consent to adoption, the adoptive parent may petition the court for a hearing to confirm the natural parent's consent to adoption. See 23 Pa.C.S. § 2504(a). The court will then schedule a hearing to confirm the consent that the parent previously gave to the adoption. 23 Pa.C.S. § 2504(b).

Section 2711 of the Adoption Act governs the content, form, and validity of the consents necessary for an adoption. Regarding validity, subsection (c) provides that

[n]o consent shall be valid if it was executed prior to or within [seventy-two] hours after the birth of the child. A putative father may execute a consent at any time after receiving notice of the expected or actual birth of the child. Any consent given outside this Commonwealth shall be valid for purposes of this section if it was given in accordance with the laws of the jurisdiction where it was executed. 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.

23 Pa.C.S. § 2711(c). It further provides that a consent to adoption executed by the birth father is "irrevocable more than [thirty] days after the birth of the child or the execution of the consent, whichever occurs later." 23 Pa.C.S. § 2711(c)(1)(i). A natural parent who has executed a consent to adoption "may challenge the validity of the consent only by filing a petition alleging fraud or duress within[,]" as relevant here, "[s]ixty days after ... the execution of the consent[.]" 23 Pa.C.S. 2711(c)(3)(A). Subsection (d) sets forth what information and acknowledgements the written consent must contain.

Factual Background

L.B. and A.S. ("Mother") are the parents of the two Children, born in 2013 and 2015. In February 2017, Father moved from Pennsylvania to Colorado, where he has remained ever since. In September of that year, Father told Mother that he wanted to terminate his parental rights to the Children and that Mother's husband, M.S., could adopt them. Father asked Mother to contact the lawyer that assisted them with their divorce, Roger Wiest, II, Esquire, to draw up the necessary paperwork. Attorney Wiest drafted a consent to adoption compliant with section 2711(d) of the Adoption Code, 23 Pa.C.S. § 2711(d), and sent it to Father. In November 2017, Father executed the consent document and returned it to Attorney Wiest.

During the following months, Father contacted Attorney Wiest to check on the status of the adoption proceedings. In May 2018, Mother sent Father a text message telling him that she and M.S. were moving ahead with the adoption and soon would be filing the necessary paperwork. Father contacted Attorney Wiest and told him that he changed his mind and no longer consented to the adoption of the Children. In light of this turn of events, Attorney Wiest advised the parties to obtain separate counsel.

In June 2018, with new counsel, Mother filed a petition to confirm Father's consent to adoption or, alternatively, to involuntarily terminate Father's parental rights to the Children. Father opposed the petition, claiming that his consent was invalid because it did not meet the requirements of Colorado law for a consent to adoption. At the hearing on this petition, the facts as set forth above were established. In addition, Father conceded that although he verbally informed Attorney Wiest that he wanted to revoke his consent to the adoption, he never reduced his revocation to writing. N.T., 10/17/2018, at 56. Father also presented the testimony via telephone of Randall Klauzer, Esquire, a Colorado attorney, who testified that the consent Father executed would not be valid and enforceable under Colorado law, as Colorado law imposes requirements for a consent to adoption that are not required by Pennsylvania law.² Id. at 29-32. Attorney Klauzer further testified that Colorado law provides that consents to adoption may be revoked at any time prior to the adoption. Id. at 31. At the conclusion of this hearing, the trial court set a time for the parties to provide argument as to whether Father's consent was valid. Trial Court Order, 10/18/2018.

When the parties reconvened for argument, Father focused on the portion of section 2711(c) that provides that "[a]ny consent given outside this Commonwealth shall be valid for purposes of this section if it was given in accordance with the laws of the jurisdiction where it was executed." 23 Pa.C.S. § 2711(c). He argued that because the consent was invalid under Colorado law, it could not be deemed valid under Pennsylvania law, and therefore, he was not required to comply with the timing requirements in section 2711(c) governing the revocation of consent. See N.T., 11/28/2018, at 2-7.³ In response, Mother relied on the Superior Court decision In re Adoption of J.A.S. , 939 A.2d 403 (Pa. Super. 2007), to support her argument that the filing of a timely revocation petition is the event that triggers an inquiry into the validity of a consent, and therefore, Father's failure to file a timely revocation petition precludes his challenge to the validity of his consent. Id. at 12-14. In January, the trial court issued its decision, agreeing with Mother and finding that Father's failure to timely revoke his consent or challenge the validity of his consent barred his present challenge to the validity of his consent to adoption. Trial Court Order, 1/4/2019, at 5 (citing J.A.S. , 939 A.2d at 408 ). The trial court entered a decree terminating Father's parental rights to the Children. See Decree, 1/4/2019.

Father appealed, challenging the trial court's refusal to consider the validity of his consent under Colorado law. See In re J.W.B. , 215 A.3d 602, 605 (Pa. Super. 2019), appeal granted , 221 A.3d 183 (Pa. 2019). Father premised his argument on the portion of section 2711(c) referencing consents given outside of Pennsylvania and argued that such consents are valid in Pennsylvania if they comply with the validity requirements of the jurisdiction in which they were executed. Id. at 607-08. Father thus argued that because the consent he signed was not valid under Colorado law, it was void ab initio and therefore could not support a finding that he consented to the adoption of the Children. Id. at 608.

The Superior Court began by explaining that the decision of which forum's law to apply in adoption proceedings hinges on which forum has a significant relationship with the intended adoptee, as that state will have the "dominant interest ... in fixing the prospective adoptive child's status and relationships." Id. at 606 (quoting In re Adoption of D. , 769 A.2d 508, 510 (Pa. Super. 2001) (citing the Restatement (Second) of Conflicts of Law)). The Superior Court recognized that this approach mirrors the aims of the Uniform Child Custody Act and the Parental Kidnapping Prevention Act to ensure that jurisdiction for adoption lies in the state to which a child has the "closest connection." Id. at 606. The court considered In re Adoption of D. , 769 A.2d 508 (Pa. Super. 2001), which involved a child and adoptive family in Pennsylvania and parental consents to adoption executed in other states. In that case, the Superior Court concluded that where the adoptive parents and child are in Pennsylvania and the birth parents are outside of the state, Pennsylvania has the dominant interest in establishing the child's status and relationships; therefore, it was not "feasible or reasonable to subject the most critical and important aspect of the adoption proceeding, termination of parental rights, to a foreign jurisdiction, which has less stringent safeguards to the biological parent than Pennsylvania." Id. (quoting In re Adoption of D. , 769 A.2d at 510 ). The Superior Court found that here, as in In re Adoption of D. , Pennsylvania's interest in establishing the Children's relationships and status outweighed Colorado's interest, and therefore, that Pennsylvania law applies.

Turning to the Adoption Act, the Superior Court acknowledged that Section 2711(c) provides a thirty-day period for a party to revoke a previously executed consent and a sixty-day period to challenge the validity of a consent based upon fraud or duress. Id. at 607. With respect to these time periods, the Superior Court recognized that in J.A.S. it had previously held that "the unambiguous language of [ section 2711 ] requ...