Adoption/parental rights termination; law applicable to parental consent where parent resides in another state

In Re: J.W.B. and R.D.B., 215 A.3d 602(Pa. Super. 2019), allocatur granted Nov. 26, 2019, appeal docket 93 MAP 2019

The issue in this children’s fast track appeal is what law applies where a parent whose rights are being terminated resides out of state. J.W.B. and R.D.B., minors, live in Pennsylvania with their mother and her husband; the children’s father lives in Colorado.  While in Colorado, Father signed a voluntary consent to adoption of J.W.B. and R.D.B. by Mother‘s husband, and provided it to Mother’s counsel in Pennsylvania.  Pursuant to Pennsylvania law, a consent to adoption is irrevocable after the passage of 30 days, and its validity may not be challenged after the passage of 60 days, and only on petition alleging fraud or duress. Father did not attempt to revoke his consent within Pennsylvania’s statutory timeframes, but then opposed Mother’s petition for adoption or in the alternative involuntary termination of Father’s parental rights, arguing that Colorado law applies because he signed the consent to adoption in Colorado. Colorado law if applicable would provide Father additional rights, including the opportunity to revoke his consent at any time prior to court approval of the adoption.

The trial court after hearing issued an opinion and decree terminating Father’s parental rights, based on its conclusion that Pennsylvania law governs.  Superior Court affirmed.  Relying on conflicts of law principles and prior case law, Superior Court reasoned:

Upon review, we hold that the orphans’ court properly applied Pennsylvania law to this case. Mother, Husband, and Children reside in Pennsylvania, where the petition for adoption was filed. Father was aware the adoption would occur in Pennsylvania. The consent and petitions complied with Pennsylvania law. Pennsylvania has an overriding and continuing interest in establishing Children’s status and relationships. See In re Adoption of D., 769 A.2d at 510. Thus, although Father signed his consent in Colorado, Pennsylvania law applies. See id.

Slip op. at 9.

Superior Court rejected Father’s argument that Pennsylvania’s statute expressly supports the conclusion that Colorado law applies.  Specifically, concerning consent to adoption, 23 Pa. C.S. 2711(c) states:

(c)  Validity of consent.–No consent shall be valid if it was executed prior to or within 72 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.

(Emphasis added). Superior Court reasoned that the trial court was precluded from considering Father’s reliance on this provision because he challenged the consent he had voluntarily given under the Pennsylvania statute after the time had expired within which to bring a challenge:

[I]t is immaterial whether Father executed his consent in compliance with the laws of the jurisdiction in which he resided. Father did not revoke his consent in writing within 30 days of execution, nor did he serve any written revocation on any party, or challenge the validity of his consent within 60 days. Rather, Father now attempts to argue, following the termination of his parental rights, that his consent was invalid under Colorado law. The consent Father signed conformed to the requirements of 23 Pa.C.S.A. § 2711(d) (referring to contents of consent). Father was informed that signing would voluntarily and unconditionally allow for the adoption of Children; he was also informed of the terms for revoking his consent – i.e., within 30 days, in writing, and served upon all interested parties. See Petition to Confirm Consent, 6/13/18, Exhibit A. Therefore, the trial court was precluded from considering the merits of Father’s revocation because Father did not revoke his consent within the statutorily-prescribed time period.

Slip op. at 10.

The Supreme Court has now granted Father’s petition for allocatur, which raises the following issue:

Did the Trial Court and Superior 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 sent up to and including the date of hearing?