In re Adoption of AMB

• Decision Date: 17 October 2002
• Citation: 2002 PA Super 321,812 A.2d 659
• Parties: In the Matter of the ADOPTION of A.M.B. Appeal of: J.B.,
• Court: Pennsylvania Superior Court

812 A.2d 659

2002 PA Super 321

In the Matter of the ADOPTION of A.M.B.

Appeal of: J.B.,

Superior Court of Pennsylvania.

Argued April 9, 2002.

Filed October 17, 2002.

Michael J. Nies, Erie, for appellant.

Michael R. Cauley, Erie, for Erie County Children and Youth Services, appellee.

Before: MUSMANNO, ORIE MELVIN and TAMILIA, JJ.

TAMILIA, J.

¶ 1 Mother, J.B., appeals from the September 14, 2001 Decree involuntarily terminating her parental rights to her daughter, A.M.B. On appeal, mother challenges whether the orphans' court erred in failing to grant her petition to voluntarily relinquish her rights to the child. For the reasons that follow, we affirm. ¶ 2 A.M.B. was born on February 2, 2000 in Erie, Pennsylvania. Erie County Juvenile Court adjudicated her dependent on February 24, 2000, after she was placed in the care and custody of Erie County Office of Children and Youth (OCY) at birth. Following the adjudication of dependency hearing, a dispositional and placement hearing was held on March 3, 2000. Permanency review hearings were held on September 14, 2000 and November 29, 2000. At the September 14, 2000 hearing, the juvenile court continued with the placement goal as reunification. At the November 29, 2000 hearing, however, mother indicated to the juvenile court that she wished to voluntarily surrender her parental rights to the child. Although the juvenile court authorized mother to proceed with voluntarily relinquishment, she did not file a petition.¹

¶ 3 On January 5, 2001, OCY filed a petition for the involuntary termination of mother's parental rights to the child. Subsequently, on April 12, 2001, mother filed a petition for the voluntary relinquishment of her parental rights to the child. Thereafter, OCY filed an Answer and New Matter to mother's petition asserting its refusal to consent to mother's petition or to join mother's petition. The orphans' court held a hearing on both petitions on May 9, 2001. Thereafter, on August 2, 2001, the orphans' court denied mother's petition. On August 29, 2001, mother filed a notice of appeal, which this Court quashed. In re Adoption of A.M.B., No. 1557 WDA 2001 (Pa.Super. filed 10/16/01). The orphans' court entered an Order involuntarily terminating mother's parental rights to the child on September 14, 2001. The court found clear and convincing evidence to terminate appellant's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1),(2),(5), and (8). On October 5, 2001, mother filed this appeal.

¶ 4 Mother does not challenge whether the orphans' court erred in involuntarily terminating her parental rights. Her sole claim concerns whether the orphans' court instead should have granted her petition to voluntary relinquish her parental rights. Specifically, mother requests this Court to consider:

Whether the Orphans' Court erred in denying her Petition for Voluntary Relinquishment of Parental Rights when

...

A. mother was ready, willing, and able to voluntarily give up her rights; and,

B. the denial did not serve the best interests and welfare of the child?

See Appellant's brief at 1.

¶ 5 Our standard of review when considering an appeal from an orphans' court Order is as follows:

When reviewing [an Order] entered by the Orphans' Court, this Court must determine whether the record is free from legal error and the [Orphans' Court's] factual findings are supported by the evidence. Because the Orphans' Court sits as the fact-finder, it determines the credibility of the witnesses, and on review, we will not reverse its credibility determinations absent an abuse of that discretion.

In re Adoption of A.J.B., 797 A.2d 264, 266 (Pa.Super.2002), reargument denied, 5/22/02 (internal quotations and citations omitted.) ¶ 6 Recently, in A.J.B.,² this Court determined the orphans' court properly granted mother's petition to voluntarily relinquish her parental rights to A.J.B. The facts reveal that A.J.B. was adjudicated dependent and placed in the care and custody of OCY. Following permanency hearings, the orphans' court granted OCY's request to proceed with involuntary termination of mother's parental rights. At the time of the involuntary termination hearing, however, mother indicated she wished to voluntarily relinquish her parental rights. OCY objected on the basis that, pursuant to 23 Pa.C.S.A. § 2501, Relinquishment to agency, a petition by mother and consent by OCY were prerequisites to voluntary relinquishment of mother's parental rights. Mother then filed a petition to voluntarily relinquish her parental rights, but OCY refused to consent. The orphans' court rejected OCY's arguments in support of its refusal to consent and issued an Order denying OCY's request for a hearing on its involuntary termination of parental rights petition, and denying OCY's motion to dismiss mother's voluntary relinquishment petition. OCY appealed.

¶ 7 In affirming the Order, this Court reasoned as follows:

A.J.B. has been in the care and custody of OCY since November 9, 1999. OCY filed a petition to terminate Mother's parental rights to A.J.B. so that the child could be placed for adoption. These circumstances evidence OCY's implicit consent to accept custody of A.J.B. Moreover, there is a strong public policy interest that is served by dispensing with the requirement of an agency's consent to a voluntary relinquishment petition under the circumstances of a case such as this [one].... Where a parent believes that he or she cannot provide adequate care for a child, or where a parent has abused or neglected or is likely to abuse or neglect a child, it would be imprudent for this Court to place impediments in the way of the voluntary relinquishment of parental rights to a child who previously has been adjudicated dependent. If OCY is permitted to withhold unreasonably its consent to a voluntary relinquishment petition and insist instead on an involuntary termination of parental rights for the sole reason of being able to apply aggravating circumstances to any future dependency proceeding, it is possible that a parent will refrain from voluntarily relinquishing his or her parental rights under the appropriate circumstances, based on a fear of the agency's opposition or the consequences in future proceedings. Such an effect could have tragic results in the event an agency is unsuccessful in its petition to involuntarily terminate a parent's parental rights, not only by frustrating the agency's goal of placing the child in a permanent adoptive home, but perhaps by returning a child to a home where he or she is at risk of further abuse or neglect.

Id. at 11-12.

¶ 8 The orphans' courts in both A.J.B. and this case had before them petitions by the mothers for voluntary relinquishment, pursuant to 23 Pa.C.S.A. § 2501, Relinquishment to Agency, and petitions for involuntary termination pursuant to 23 Pa. C.S.A. § 2512, Petition for involuntary termination. Moreover, in both instances OCY refused to consent to the voluntary relinquishment petitions. Nonetheless, we find that A.J.B. is distinguishable from the instant case.

¶ 9 In A.J.B., the orphans' court considered only the petition for voluntary relinquishment and granted it, whereas in this case, the court considered both the voluntary relinquishment and the involuntary termination petitions, and granted the Order requested by OCY after conclusive evidence and findings of fact that involuntary termination was appropriate. As the procedural posture of this case is different than A.J.B., we decline to find that the orphans' court was required to consider only mother's petition to voluntarily relinquish her parental rights. Upon review of the matter before us, we find the orphans' court properly exercised its discretion in granting the petition to involuntarily terminate mother's parental rights.

¶ 10 In pursuing this review, we look to the issues advanced by the mother in the order presented. First, mother maintains she was willing and able to voluntarily relinquish her rights, with the implication therefore being that the agency could not deny her the right to do so.³ Secondly, she contends denial of voluntary relinquishment was not in the best interest and welfare of the child and this mandated the orphans' court to order the agency to consent.

¶ 11 These contentions can be considered simultaneously as the basis for the application by mother is derivative from the precedent established from A.J.B.

DISCUSSION

¶ 12 In support of its holding, the A.J.B. Court relied on In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992), which held that grandparents, who previously had cared for the two children in question and had custody of their siblings, had standing to petition for adoption of the children who had been placed in an adoptive home after the Family and Children's Service had acquired custody through the natural parents' consent to adoption. Following a hearing to confirm consent, the parental rights of the birth parents were terminated. In reversing the orphans' court, this Court and the Supreme Court held that, in an adoption following termination of the rights, it is in the children's best interest to have grandparents considered as prospective adoptive parents, notwithstanding the objection of the family service agency which stands in loco parentis to the child and may otherwise exercise such authority concerning the child (to consent) as a natural parent could exercise. 23 Pa.C.S.A. § 2521(c), Authority of agency or person receiving custody. Hess does not require this Court, under the facts of this case or A.J.B., to override the statutory authority of the agency, OCY, to grant or deny consent to accept relinquishment of a child by the parent into its custody. In Hess, this already had been achieved and the Supreme Court, looking to the best interest of the child when adoption was imminent following termination, held the agency could not deny intervention by the grandparents as they had the right to intervene...