Adoption of B.E.W.G., In re

• Decision Date: 24 October 1988
• Parties: , 57 USLW 2304 In re ADOPTION OF B.E.W.G. and S.L.W.G. Appeal of Howard L. WEST and Kay West.
• Court: Pennsylvania Superior Court

Page 1286

549 A.2d 1286

379 Pa.Super. 264, 57 USLW 2304

In re ADOPTION OF B.E.W.G. and S.L.W.G.

Appeal of Howard L. WEST and Kay West.

Superior Court of Pennsylvania.

Argued June 14, 1988.

Filed Oct. 24, 1988.

Donald B. Hoyt, York, for appellants.

Wanda Neuhaus, York, for appellees.

Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.

WIEAND, Judge:

The issue in this appeal is whether the Orphans' Court in York County, Pennsylvania, could properly order an adoption of two minor children upon the sole consent of the children's father, who had killed the children's mother, while a custody action was pending in New York between the children's father and maternal grandparents, without notice to the maternal grandparents or the New York court in which the custody action was pending.

On December 4, 1983, the children's father killed their mother by stabbing her to death in the family's home in Brooktondale, Tompkins County, New York. At the time of the stabbing, B.E.W.G., then ten months of age, was present in the home, but S.L.W.G., then four years of age, was visiting her paternal grandfather in New York City. Afterwards, the paternal grandfather also took B.E.W.G. to his home.

On December 21, 1983, the maternal grandparents, Howard and Kay West, filed a petition in the Tompkins County Family Court to obtain custody of their grandchildren. The children's father had been released on bail, however, and, by order of March 26, 1984, the New York court placed the children in his custody, while awarding visitation privileges to the Wests. This order was to remain in effect until the criminal charges against the father were determined. On May 15, 1984, the Tompkins County Court continued its custody order in effect but expanded the Wests' visitation privileges. Thereafter, the father took the children from their home in New York, and the Wests did not see them again.

On May 22, 1984, the children's father was found guilty of manslaughter in connection with the killing of his wife, the children's mother.¹ Thereafter, on May 29, 1984, the Tompkins County Family Court entered an order awarding temporary custody of S.L.W.G. and B.E.W.G. to the Wests pending further hearing. When an additional hearing was held on June 11, 1984, the father refused to disclose the whereabouts of the children. The New York court thereupon continued temporary custody in the Wests. On November 9, 1984, a final order was entered which awarded permanent custody of the children to their maternal grandparents.

In August, 1985, the grandparents learned for the first time that the children were living with adoptive parents somewhere in Pennsylvania. Unbeknownst to them, the children's father had delivered the children to Tressler-Lutheran Associates, Inc. of York, Pennsylvania, for adoption, and had executed a "temporary custody agreement" by which he surrendered the children to the agency on a temporary basis until a decision could be made regarding the children's welfare and custody. Subsequently, the children had been placed by their father and the Tressler-Lutheran Agency in a private home for adoption. On May 16, 1984, the adopting parents filed a report of their intention to adopt the children pursuant to 23 Pa.C.S. § 2531; and on June 4, 1984, a petition for adoption was filed. At a hearing thereon, the Orphans' Court of York County was told the circumstances surrounding the death of the children's mother and that their father had been convicted of manslaughter. The court was also informed of the custody proceedings in New York, that the maternal grandparents had been granted visitation, and that they would likely seek permanent custody of the children if the father were convicted and sentenced to prison.² At the end of the hearing, the court raised an issue regarding its jurisdiction, deferred making a decision, and continued the hearing until June 25, 1984. It requested counsel "to give the court some assurance ... that the courts of the State of New York do not already have legal jurisdiction over these two children so that the courts of Pennsylvania have no authority at all [or] jurisdiction to take any action[ ]...." On June 25, 1984, the York County court entered a decree allowing the adoption of S.L.W.G. and B.E.W.G. The record does not disclose that further consideration was given to the custody proceedings in New York or the decree of the New York court which had awarded custody of the children to their maternal grandparents.

The Wests, on January 14, 1986, filed in York County, Pennsylvania, a petition to inspect the impounded record of the adoption proceedings. They also requested that the adoption decree be vacated. Their petition was dismissed on grounds that they lacked standing. On appeal, a panel of this Court reversed. See: In re Adoption of B.E.W.G., 355 Pa.Super. 554, 513 A.2d 1061 (1986). The matter was remanded with instructions to permit the grandparents to examine the adoption record and for the court to decide the petition to vacate. On remand, the Wests argued that the court in York County had lacked jurisdiction to decree an adoption and that the proceedings had been defective because they had neither consented to nor received notice of the adoption proceedings. They also alleged that a fraud had been committed on the court and that the father had failed to comply with the strictures of the Interstate Compact on the Placement of Children.³ The Orphans' Court rejected these arguments and dismissed the petition to vacate the adoption decree.⁴ This appeal followed.

An adoption decree is presumed to be valid, and the person challenging it bears the burden of showing its invalidity by clear and convincing evidence. In the Matter of the Adoption of Christopher P., 480 Pa. 79, 84, 389 A.2d 94, 97 (1978); Singer Adoption Case, 457 Pa. 518, 522, 326 A.2d 275, 277 (1974); Chambers Appeal, 452 Pa. 149, 152-153, 305 A.2d 360, 362 (1973); List Adoption Case, 418 Pa. 503, 508-509, 211 A.2d 870, 873-874 (1965). In List Adoption Case, supra, the Supreme Court listed five principles of law which are pertinent to a collateral attack on an adoption decree.

In determining this appeal certain principles of law must be kept in mind: (1) an adoption decree entered by a court having jurisdiction over the subject matter and the parties is generally immune from collateral attack, particularly where the record shows a substantial compliance with the adoption statute; (2) where the record in the adoption proceedings affirmatively reveals a lack of jurisdiction, then the adoption decree is subject to collateral attack; (3) notice to a natural parent of the adoption proceedings and the consent of a natural parent, where necessary, are jurisdictional prerequisites in an adoption proceeding; (4) when an adoption decree is collaterally attacked, the entry of the decree raises a presumption of its validity and regularity and an implication arises that the court did find the necessary facts and did perform all the steps essential to the jurisdiction of the court; (5) the burden is upon the person attacking an adoption decree to establish its invalidity by clear and convincing evidence.

Id. (footnotes omitted).

The Orphans' Court in the instant case determined that the adoption proceedings had not been pursued fraudulently and that the adoption decree had properly been premised upon the father's consent. The circumstances surrounding the children's presence in Pennsylvania, the death of their mother, and the pendency of a custody action in New York had been disclosed to the court in York County. Therefore, it cannot be said that the Tressler-Lutheran Agency and the children's father committed a fraud on the court. The Orphans' Court, moreover, was acting with the consent of the surviving parent of the children. The provisions of 23 Pa.C.S. § 2711(a) are as follows:

§ 2711. Consents necessary to adoption

(a) General rule.--Except as otherwise provided in this part, consent to an adoption shall be required of the following:

(1) The adoptee, if over 12 years of age.

(2) The spouse of the adopting parent, unless they join in the adoption petition.

(3) The parents or surviving parent of an adoptee who has not reached the age of 18 years.

(4) The guardian of an incompetent adoptee.

(5) The guardian of the person of an adoptee under the age of 18 years, if any there be, or of the person or persons having the custody of the adoptee, if any such person can be found, whenever the adoptee has no parent whose consent is required.

The consent of the person having custody of the adoptee, according to the statute, is necessary only when the adoptee has no parent whose consent is required.

It remains to be determined, however, whether the Orphans' Court of York County, Pennsylvania, had jurisdiction to decree an adoption of children whose temporary custody had been awarded to their grandparents without requiring that notice of the pending adoption and an opportunity to be heard be given to the grandparents or the New York court in which the custody action was still pending. The Adoption Law, at 23 Pa.C.S. § 2721, provides that

".... Notice of the hearing shall be given to all persons whose consents are required and to such other persons as the court shall direct. Notice to the parent or parents of the adoptee, if required, may be given by the intermediary or someone acting on his behalf. Notice shall be by personal service or by registered mail to the last known address of the person to be notified or in such other manner as the court shall direct.

The grandparents, as we have already observed, were not persons whose consents to the adoption were specifically required by the statute. Still, they had been awarded custody of their grandchildren by a New York court in preference to the father who had been convicted of killing the children's mother. To permit the children's father to remove the children from New York and, with...