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J. A14005/02
2002 PA Super 321
No. 1714 WDA 2001
Appeal from the Decree entered in the
Court of Common Pleas of Erie County,
Orphans' Court Division, No. 1 In Adoption 2001
Filed: October 17, 2002
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.
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

J. A14005/02
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
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.
Mother does not challenge whether the orphans' court erred in
involuntarily terminating her parental rights. Her sole claim concerns

1 This appears to be the tipping point in this case, wherein the mother, in
failing to proceed with voluntary relinquishment, triggered the necessity for
the agency petitioning for involuntary termination, thereby committing the
court to the action pursued and the ultimate decision under review.
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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.
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.)
Recently, in A.J.B.,2 this Court determined the orphans' court properly
granted mother's petition to voluntarily relinquish her parental rights to

2 We recognize that the orphans' court judge in this matter did not have the
benefit of our decision rendered in Adoption of A.J.B., 797 A.2d 264 (Pa.
Super. 2002), reargument denied, 5/22/02.
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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.
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
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
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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
Id. at 11-12.
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.
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,
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J. A14005/02
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

3 This contention standing alone is questionable. As detailed above, mother
failed to file her petition for voluntary relinquishment in a reasonable time
following her offer to do so on November 29, 2000, and instead did not
pursue this action until April 12, 2001, almost six months following her offer
and only after OCY filed its involuntary termination petition on January 5,
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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 initially pursuant to
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J. A14005/02
Pa.R.C.P. 2327, Who May Intervene. The grandparents were not notified
initially and were precluded from participating in the adoption proceeding,
despite considerable involvement with the children prior to termination of
parental rights.
13 In Chester County Children and Youth Services v. Cunningham,
540 Pa. 258, 656 A.2d 1346 (1995)(plurality decision), the Supreme Court
stated Hess applied to grandparents only; it was based only on the
importance of consanguinity and the numerous legislative provisions unique
to grandparents. Id. at 263, 656 at 1349. The case before us does not
involve issues of standing or the right to intervene, but rather implicates
new and different concepts, promulgated by federal and state legislation,
relating to adoption of children. The thrust of that legislation and its impact
on these cases and present adoption procedures are best reviewed in
relation to In the Interest of Lilley, 719 A.2d 327 (Pa. Super. 1998), and
C.B. ex rel. R.R.M. v. Commonwealth of Pennsylvania , 567 Pa. 141,
786 A.2d 176 (2001), which deal with the nature and impact of the Adoption
and Safe Families Act of 1997, 42 U.S.C. 1305 et seq. (hereinafter ASFA).
In essence, these cases hold that the federal and state laws to expedite
adoptions and to provide adoption assistance must look to the safety and
welfare of the child in physical care and to promote expeditious adoptions by
minimizing the time a child will be in temporary care rather than in
permanent or adoptive settings.
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14 Voluntary relinquishment typically is utilized by a mother who is
incapacitated or overwhelmed with the prospect of a newborn, or by parents
who do so because of health reasons. Those seeking this option usually
proceed through individuals or private agencies to place the child for
adoption. Consent is required for voluntary relinquishment pursuant to 23
Pa.C.S.A. 2501, Relinquishment to agency; 2502, Relinquishment to
adult intending to adopt child; and 2504, Alternative procedure for
15 Where consent of both parents is not forthcoming and conditions are
such that for the health and welfare of the child adoption is in order, the
family service agency may pursue involuntary termination of parental rights
in order to free the child for adoption in accordance with 23 Pa.C.S.A.
2511, Grounds for involuntary termination. Voluntary relinquishment
as noted above is the proceeding usually mandated when juvenile court and
OCY are not involved and the decision to place a child for adoption is based
on the parents' needs rather than the child's general welfare, which then
becomes a collateral consideration. See footnote 7 infra. The Hess case,
the A.J.B. case, and this case are different aspects of the diverse
termination and adoption proceedings, are procedurally distinguishable and,
to a certain extent, have different scopes of review due to the discrete
stages of the bifurcated proceeding. As such, findings as between them are
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J. A14005/02
mutually exclusive and are dependent on the facts and legal posture of the
case under review.
16 In both the matter before us and that of A.J.B., following dependency
adjudications and reasonable efforts at reunification, which required
regularly scheduled permanency hearings in juvenile court, a change in goal
from reunification to adoption and termination of parental rights was
ordered. Pursuant to the Order changing the goal to adoption, petitions for
involuntary termination of parental rights were filed by OCY. These were
countered by the mothers' filing of petitions for voluntary relinquishment of
parental rights in order to defeat the impact of a decree of involuntary
termination as an aggravated circumstance4 which could be available against

4 "Aggravated circumstances." Any of the following circumstances:
(1) The child is in the custody of a county
agency and either:
(i) the identity of whereabouts of the
parents is unknown and cannot be
ascertained and the parent does not claim
the child within three months of the date
the child was taken into custody; or
(ii) the identity or whereabouts of the
parents is known and the parents have
failed to maintain substantial and continuing
contact with the child for a period of six
(2) The child or another child of the parent has
been the victim of physical abuse resulting in serious
bodily injury, sexual violence or aggravated physical
neglect by the parent.
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J. A14005/02
the mothers in future cases wherein dependency proceedings take place
involving other birth children.5 In A.J.B., the Court permitted voluntary
termination on the newly created basis of "reasonableness," as in the best
interest of the child, applying Hess, supra, as its authority. While best

(3) The parent of the child has been convicted of
any of the following offenses where the victim was a
(i) criminal homicide under 18 Pa.C.S. Ch. 25
(relating to criminal homicide);
(ii) a felony under 18 Pa.C.S. 2702 (relating
to aggravated assault), 3121 (relating to rape),
3122.1 (relating to statutory sexual assault),
3123 (relating to involuntary deviate sexual
intercourse), 3124.1 (relating to sexual assault)
or 3125 (relating to aggravated indecent
(iii) A misdemeanor under 18 Pa.C.S. 3126
(relating to indecent assault).
(iv) An equivalent crime in another
(4) the attempt, solicitation or conspiracy to
commit any of the offenses set forth in paragraph
(5) The parental rights of the parent have been
involuntarily terminated with respect to a child of the
42 Pa.C.S.A. 6302, Definitions.
5 This is likely to be the strategy frequently employed by parent advocates to
defeat the impact of the Adoption and Safe Families Act (ASFA) on future
dependency cases involving a parent who has failed to achieve reunification
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J. A14005/02
interest is the standard applied at the time of the adoption proceeding, it is
not the standard of review applied by the court at termination proceedings
which looks only to the general welfare of the child and whether the
statutory requirements have been met for termination of parental rights.
See In the Interest of Coast, 561 A.2d 762 (Pa. Super. 1989), appeal
denied, 525 Pa. 593, 575 A.2d 560 (1990). The status of the child is not
enhanced or changed whether the termination results from parental
relinquishment or involuntary termination. Either procedure frees the child
for adoption with no detriment to the child. Parental relinquishment and
involuntary termination are, however, mutually exclusive and a
determination must be made as to which and when one or the other applies.
This is a judicial function in which the judge exercises his discretion in
conformity with the facts and the law.
17 The orphans' courts in both A.J.B. and this case had before them
petitions by the mothers for voluntary relinquishment, 23 Pa.C.S.A. 2501,
Relinquishment to Agency, and 23 Pa.C.S.A. 2512, Petition for
involuntary termination. 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. In A.J.B., both the orphans' court and this Court held that
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OCY's refusal to consent to voluntary relinquishment was self-serving to
effect the outcome of possible future litigation against the mother, who was
again pregnant, whereas in this case, the orphans' court held that
involuntary termination was appropriate based on the evidence and as
mandated by statute.
18 The mother, both here and in A.J.B., charged that the reason OCY
refused to agree to the consent to voluntary relinquishment was to establish
or preserve the right of OCY to proceed toward involuntary termination by
establishing aggravated circumstances, so as to expedite future termination
proceedings should other children be born of the derelict mother(s) or
should a second child become the subject of a dependency proceeding. This
is not an improper or impermissible motive, and the coin has two sides in
that mother, in attempting to obtain consent for a voluntary relinquishment,
seeks to forestall that eventuality. Neither mother nor the agency has the
control over the process that they believe they would have by obtaining a
ruling from the court in their favor. In the final analysis, only the court can
determine the efficacy of either of the petitions, and finding in favor of one
excludes the other. Upon appellate review of that decision, this Court would
exercise its function, as stated above, to determine if the decision was free
of legal error and the credibility determinations and factual findings are
supported by the record.
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19 First, it is rare that a court would improperly exercise its discretion and
deny an agency the legal right to obtain an Order terminating parental rights
after it presented clear and convincing evidence that the health and welfare
of the child required it. Such would be an abuse of discretion. To permit an
Order of voluntary relinquishment after sufficient evidence for a decree of
involuntary termination is presented and the reasonable effort requirements
are met would be incongruous and contrary to the federal and state policy of
minimizing the "foster care drift" that has doomed millions of children to
interim, multiple or otherwise impermanent placement. The criterion of
aggravated circumstances is merely a step beyond the concept of prognostic
deprivation, a due process expedient that permitted OCY, based on a family
history of serious abuse or previously exhibited failure of parenting, to
obtain custody of a child at birth before any actual abuse could occur. See
In re DeSavage, 360 A.2d 237 (Pa. Super. 1976) (reversed and remanded
on other grounds). The aggravated circumstances provision mandated by
the ASFA advanced the process by requiring the court, after hearing and
finding the existence of aggravated circumstances, which among other prior
legal determinations included involuntary termination of parental rights, to
directly order termination of parental rights and change the goal to adoption.
This, however, could not be done absent a dependency hearing, and
establishing clear and convincing evidence of dependency, and a full review
of the applicability of the reasonable efforts requirement; then upon a
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J. A14005/02
determination based on all of the evidence, including any aggravated
circumstances such as involuntary termination, a finding could be made that
further efforts at rehabilitation would be to no avail. See 42 Pa.C.S.A.
6334, Petition (b), and 6351, Disposition of dependent child, (e)
Permanency hearing.
20 In these proceedings, the parent and child are afforded the full due
process rights they have under the Juvenile Act, ASFA and the Adoption
Assistance and Child Welfare Act (AACWA), 42 U.S.C. 620 et seq.
Pennsylvania is required to implement the ASFA into its Juvenile Act and
child welfare and adoption laws in order to receive federal funds (which are
substantial), pursuant to the AACWA. See In re R.T., 778 A.2d 670 (Pa.
Super. 2001), appeal denied, ___ Pa. ___, 792 A.2d 1254 (2001).6

6 As recognized in In re R.T., 778 A.2d 670 n. 4 (Pa. Super. 2001), appeal
denied, ___ Pa. ___, 792 A.2d 1254 (2001), 42 U.S.C.S. 671(a) mandates
that the states adopt the policies and procedures set forth in the ASFA to be
eligible for federal foster care and adoption assistance. In conjunction with
the Adoption Act, supra, the Juvenile Act, 42 Pa.C.S.A. 6334, Petition (b)
Aggravated Circumstances, provides conformity with the ASFA.
(1) An allegation that aggravated circumstances
exist may be brought:
(i) in a petition for dependency with regard to
a child who is alleged to be a dependent child; or
(ii) in a petition for a permanency hearing with
regard to a child who has been determined to be
a dependent child.
(2) The existence of aggravated circumstances
may be alleged by the county agency or the child's
attorney. If the county agency reasonably believes
that aggravated circumstances exist, it shall file the
appropriate petition as soon as possible but no later
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J. A14005/02

than 21 days from the determination by the county
agency that aggravated circumstances exist.
(Emphasis added.) In subsequent proceedings, section 6351, Disposition
of dependent child, provides:
(a) General Rule.--If the child is found to be a
dependent child the court may make any of the
following orders of disposition best suited to the
protection and physical, mental and moral welfare of
the child:
. . .
(e) Permanency hearings.--
(1) The court shall conduct a permanency hearing
for the purpose of determining or reviewing the
permanency plan of the child, the date by which the
goal of permanency for the child might be achieved
and whether placement continues to be best suited
to the safety, protection and physical, mental and
moral welfare of the child.
(2) If the county agency or the child's attorney
alleges the existence of aggravated circumstances
and the court determines that the child has been
adjudicated dependent, the court shall then
determine if aggravated circumstances exist. If the
court finds from clear and convincing evidence that
aggravated circumstances exist, the court shall
determine whether or not reasonable efforts to
prevent or eliminate the need for removing the child
from the home or to preserve and reunify the family
shall be made or continue to be made and schedule
a hearing as provided in paragraph (3).
(3) The court shall conduct permanency hearings
as follows:
(ii) Within 30 days of:
. . .
(B) a permanency hearing at which the court
determined that aggravated circumstances exist and
that reasonable efforts to prevent or eliminate the
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21 While voluntary relinquishment was proper and accepted with consent
of OCY prior to the effective dates of the ASFA, see In re R.T., supra
(Retroactive effect is not given to aggravated circumstances which occurred
prior to the date of the Act.), following the effective date of the ASFA, the
court is required to give consideration to the aggravated circumstances
provisions in the Juvenile Act, and the OCY need not consent to voluntary
relinquishment, as to do so would defeat the purpose of the ASFA mandated
provisions. The consent to relinquish pursuant to the Adoption Act, 23
Pa.C.S.A. 2501, Relinquishment to agency, was not intended to be a
substitute for involuntary termination of parental rights, but was intended
for the purpose of relinquishment in the first instance to an adoption agency
or, pursuant to section 2502, Relinquishment to adult intending to
adopt a child, to free children for adoption under benign circumstances.
Chapter 25 concerns "proceedings prior to petitions to adopt" and is so
titled. Subchapter A, titled "Voluntary Relinquishment", is distinguished from
Subchapter B, "Involuntary Termination", indicating the statutory intent to
treat the matters separately.

need to remove the child from the home or to
preserve and reunify the family need not be made or
continue to be made and the permanency plan for
the child is incomplete or inconsistent with the
court's determination[.]
(Emphasis added.)
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22 Voluntary relinquishment deals with the routine relinquishment of
newborn infants and/or orphans by persons who believe they are unable,
mentally or physically, to deal with the rigors of raising a child.7 This has
been the case since 1925, the beginning of legislation permitting adoptions.
What is significant about the process detailed above is that the courts in
A.J.B., in utilizing the authority of In re Hess to establish a reasonableness
standard to permit parents to relinquish parental rights, ignored the
bifurcated nature of the adoption process, which is divided into Chapter 25,
Proceedings prior to petition to adopt, Chapter 27, Petition for
adoption, and Chapter 29, Decrees and records. Hess is inapplicable to
A.J.B. and the case before us because Hess was a proceeding following
termination of parental rights and was pursuant to a petition to adopt, with
the grandparents filing a petition to intervene. See discussion supra. Here
we are not concerned with the reasonableness test applicable in Hess, but
rather the sole issue before us is whether the evidence presented by the

7 The consent of the agency to voluntary relinquishment is meant to apply in
circumstances (1) when the child and family relationship has not reached the
point requiring involuntary termination of parental rights; (2) where private
adoption is decided upon by parents through an agency, private or public,
requiring agency consent; (3) particularly in cases where subsidized
adoptions and adoption assistance are in order to enable state funding; and
(4) in cases where a disinterested parent would desire to relinquish parental
rights to effect a stepparent adoption or to avoid further parental
involvement when involuntary termination was in the offing for the other
parent. See C.B. ex rel. R.R.M., 567 Pa. 141, 786 A.2d 176 (2001)
(relating to adoption assistance subsidies, Pennsylvania's Adoption
Opportunities Act, 62 P.S. 772-74, and the federal AACWA, 42 U.S.C.
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child welfare agency established the statutory requirements for termination
of parental rights by clear and convincing evidence. See In Interest of the
Coast, supra. In Coast, our Court en banc stated: "The power of the
juvenile court is not to adjudicate what is for the best interests of a child,
but to adjudicate whether or not the child is neglected." Id. at 769, quoting
In Re Rinker, 117 A.2d 780, 783-784 (Pa. Super. 1955) (emphasis in
original). See also In Interest of T.M., 689 A.2d 954 (Pa. Super. 1997).
23 This is the issue presented herein as well as to the Court in A.J.B., and
in each case, following dispositional hearings, the child was adjudicated
dependent and, upon a finding of clear necessity, placed in the custody of
the agency which had placed the child in a foster home. The process and
time line detailed above in each case led to the final permanency hearing
and goal change mandated by section 6351 of the Juvenile Act.
Presumptively, the permanency planning mandate in this matter had
evolved beyond the point when voluntary relinquishment could stop the
hearing for involuntary termination of parental rights. At best, the voluntary
relinquishment was an admission that involuntary termination was legally
justified much as a guilty plea in criminal court, upon a showing of the
factual basis on the record, establishes the grounds for a conviction.
Admittedly the involuntary termination Decree would have implications as to
the parents' fitness in future proceedings with OCY and juvenile court, and to
hold the parents accountable for their previous conduct in order to provide a
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greater degree of safety, protection and overall stability for the children of
irredeemable parents. See footnote 6 supra. To permit parents to escape
this accountability at the moment of a judicial determination of involuntary
termination, by presenting a petition for voluntary relinquishment, is akin to
entering a nolo contendere plea in criminal court, hoping thereby to vitiate
the ability of the court to classify the defendant as an habitual offender in
future convictions, thus destroying the entire effect of an elaborately
designed sentencing scheme. This cannot happen in criminal court and it
should not happen in orphans' court in termination and child welfare
24 It is imperative to note that prior to the filing of the petitions and up
until the termination proceeding, extensive legal and social work, child
welfare and court resources and time already had been expended, and
sometimes initiated years before the termination proceeding.8 Filing of
dependency petitions,9 hearings in juvenile court,10 adjudication of the
adoptees as dependent children,11 and following dispositional hearings,12

8 42 Pa.C.S.A. 6321, Commencement of proceedings.
9 Id., 6334, Petition.
1 0 Id., 6335, Release or holding of hearing.
1 1 Id., 6341, Adjudication.
1 2 Id., 6351, Disposition of dependent child.
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permanency hearings,13 involuntary termination petitions14 precede hearings
scheduled on those petitions. In accordance with the standard mandated by
Santosky, supra, a full panoply of due process rights were accorded in all
the proceedings and at all stages, beginning with the presumption that a
parent's interest in his or her child is a fundamental liberty interest in the
care, custody and management of the child, and does not evaporate simply
because they have not been model parents and/or have lost temporary
custody of their child to the state. Santosky, supra at 753, 102 S.Ct. at
1394-1395, 71 L.Ed.2d at 606.
25 In keeping with this mandate, it is the duty of the state to preserve
the unity of the family. The state's interest in finding an alternative home for
the child, therefore, arises only when it is clear that the natural parents
cannot or will not provide sufficient care for the child. Id. at 766-767, 102
S.Ct. at 1401-1402, 71 L.Ed.2d at 615. The parental interest is so
fundamental that a strict scrutiny standard of review is required to make a
finding terminating parental rights, and due process requires that the party
seeking termination must demonstrate by clear and convincing evidence that
the parents can no longer perform parental duties and thus are not entitled
to parental rights. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71
L.Ed. 2d 599 (1982).

13 Id., 6351 (e), Permanency hearings.
14 23 Pa.C.S.A. 2512, Petition for involuntary termination.
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26 Here, where there has been full compliance with the above due
process mandate, it is illogical and improper to derail that process and deny
the added protection given to the children through the ASFA. This issue,
while newly raised in Pennsylvania, has been thoroughly reviewed by the
Court of Appeals in Indiana in In the Matter of G.B., 754 N.E.2d 1027 (Ind.
Ct. App. 2001). There, the court explained:
In 1980, Congress enacted the Adoption Assistance
and Child Welfare Act. See 42 U.S.C. 620-628(b),
670-679(b). The Act authorizes federal subsidies to
the States for the operation of their child welfare
programs, but conditions that funding on certain
requirements. Phelps v. Sybinsky, 736 N.E.2d 809,
813 (Ind. Ct. App. 2000), trans. denied. The case
before us arises from a 1997 amendment to the Act
that provides in pertinent part as follows:
In order for a State to be eligible for payments under
this part, it shall have a plan approved by the
Secretary which . . . (15) provides that . . .
(D) reasonable efforts of the type described in
subparagraph (B) shall not be required to be made
with respect to a parent of a child if a court of
competent jurisdiction has determined that . . .
(iii) the parental rights of the parent to a sibling have
been terminated involuntarily.
42 U.S.C. 671.2
2The legislative history of the Act provides in
pertinent part as follows:
There seems to be a growing belief that Federal
statutes, the social work profession, and the courts
sometimes err on the side of protecting the rights of
parents. As a result too many children are subjected
to long spells of foster care or are returned to
families who reabuse them.
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The bipartisan group that wrote this legislation
recognized the importance and essential fairness of
the reasonable efforts criterion. What is needed is
not a wholesale reversal of reasonable efforts or of
the view that government has a responsibility to help
troubled families solve the problems that lead to
child abuse or neglect. . . . Rather than abandoning
the Federal policy of helping troubled families, what
is needed is a measured response to allow States to
adjust their statutes and practices so that in some
circumstances States will be able to move more
efficiently toward terminating parental rights and
placing children for adoption.
Thus, the Committee bill would require States to
define "aggravated circumstances," such as . . .
chronic abuse, or sexual abuse, in which States are
allowed to bypass the Federal reasonable efforts
criteria and instead would be required to make
efforts to place the child for adoption. In addition,
States would be required to bypass reasonable
efforts to provide services to families if the parent
. . . has another child for whom parental rights were
involuntarily terminated.
House Report No. 105-77, April 28, 1997, Cong.
Record Vol. 143 (1997), "Purpose and Scope," page
Id. at 1030 (emphasis added).
27 As indicated above, a petition by a parent for voluntary relinquishment
was not intended to be used as a means to defeat the application of
federally mandated statutes, as incorporated into state law under the
AACWA and the ASFA. Even so, a proceeding to terminate parental rights is
necessary before adoption proceedings can commence.
- 23 -

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28 A salient concept that was not considered in A.J.B. is that once a child
is found dependent, the child's removal is established by clear necessity, and
the child is removed from the custody of his parents, the primary right of the
parents to custody of their child is converted to the state's duty to provide
for the best interest of the child. The best interest of the child shifts away
from the parents natural rights to primary concern for the child. The state
has an independent interest in having the child become a productive law-
abiding member of society. In re Adoption of A.N.D., 520 A.2d 31 (Pa.
Super. 1986), appeal denied, 516 Pa. 638, 533 A.2d 710 (1987).
29 In summation, once the agency in an involuntary termination
proceeding establishes that the elements of abuse, abandonment and/or
neglect have been proven by clear and convincing evidence, the child has
not been reunited by reasonable efforts and time, and/or aggravated
circumstances of a previous effort with the family establish sufficient bases
for termination, the agency will prevail. Discretion always remains with the
court in the course of a hearing to determine whether the elements of the
proceeding have been established by clear and convincing evidence. The
best interest of the child may not be separately considered by the court until
a finding has been made that the statutory requirements for termination
have been met. Coast, supra. Because the A.J.B. lower court bypassed a
hearing on involuntary termination, this Court in A.J.B. considered voluntary
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J. A14005/02
relinquishment to be in the child's best interest, rather than considering the
health, safety and welfare of the child as required by statute.
30 Finally, for the following reasons, A.J.B. and the matter before us are
distinguishable, and A.J.B. is not a precedent for the decision made by the
orphans' court or our review here. In making his finding to terminate
parental rights pursuant to the petition filed by OCY, Erie County President
Judge William Cunningham conducted a hearing on both the petition of the
mother for voluntary relinquishment and the petition for involuntary
termination filed by OCY. In A.J.B., the court did not hear the termination
evidence but simply granted the mother's petition for voluntary

15 The crucial agency consent to a voluntary relinquishment is necessary as
most voluntary relinquishments do not entail serious default by a parent
proven incompetent to parent, and the agency must agree to assume
custody of the child (see 23 Pa.C.S. 2501(b)), whereas involuntary
termination is based on parental failure and inadequacy and must be
pursued to serve the needs and welfare of the child who already is in agency
custody. Agency consent is most often utilized in private adoption through
private agencies and in situations pursuant to the AACWA, 42 U.S.C. 670-
76, and the Pennsylvania Adoption Opportunities Act, 62 P.S. 771-741;
See C.B. ex rel. R.R.M. v. Commonwealth, supra, (regarding necessity
of implementing adoption subsidies for handicapped adoptees). It is a basic
recognition that a child must at all times be in the legal custody of a
responsible person or agency. The least the court would be required to do
when both petitions are presented is to determine which is most appropriate
under the given circumstances. At that stage it is not reviewed as a
question of best interest, but whether an agency will assume custody
(section 2501(c) Consent), which is not at issue here, or whether involuntary
termination can be established to bring about the change of goal to
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31 With dramatic changes in federal and state law and regulations
following passage of and recent amendments to the ASFA, however, a higher
accountability has been placed on the long-term behavior of parents in
relation to their children. The concept of permanency planning has
increased focus on the child's well-being and, by creating the additional
determination of aggravated circumstances, looks to the general welfare and
best interest of the child or unborn children in dependency cases of parents
who have demonstrated unfitness and inability to parent in their prior
appearances in dependency proceedings.
32 The result in either case might be the same when it came to the
adoption of the two children then under consideration, but consequences as
to the mother and the procedure to be followed in future dependency cases
involving the mother and other children she bore would be radically different
by circumventing federal and state provisions enacted to expedite
termination and adoption proceedings for children of parents already proven
to be unfit. Contrary to the finding of the orphans' court and this Court in
A.J.B., that involuntary termination was self-serving on the part of the
agency, the voluntary relinquishment, in negating the involuntary
termination procedure, would give the unfit parent another bite at the apple
or a fourth strike, when the record established aggravated circumstances
which might permit the court, following a dependency hearing and
adjudication, to bypass the reasonable efforts requirement and the
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J. A14005/02
mandated permanency planning hearings. The best interest of future
children would be sacrificed to the whim of the unfit parent. The trial judge
in this case specifically found that the aggravated circumstance was an
important consideration in ruling on the efficacy of an involuntary
termination decree.
33 The argument presented by this Court in A.J.B., that to refuse the
voluntary relinquishment by a parent is contrary to public policy and might
result in impediments to voluntary relinquishment, ignores the fact that
voluntary relinquishment in these cases (as opposed to the more usual
voluntary relinquishment case) occurs only after the total failure of the
parent to perform and only at the time when involuntary termination is
pursued. In cases like this one, the parent's petition is self-serving and is an
attempt to avoid a future accelerated termination procedure after it has
been established he or she is an unfit parent. The A.J.B. Court comes down
entirely on the side of the unfit parent and ignores the consequences which
the federal and state aggravated circumstances provisions seek to avoid and
eliminate (precisely as the congressional committee criticized) see Matter
of G.B., supra. That is to say, the A.J.B. Court sanctions the continued
placement of at-risk children with unfit parents, while the juvenile court and
child welfare agency are required to waste time attempting expensive and
useless reasonable efforts at reunification. To the contrary, if the parent was
aware that failing to fulfill reasonable efforts requirements in a timely
- 27 -

J. A14005/02
fashion would ultimately result in involuntary termination of parental rights
with consequences that would impact on future OCY and juvenile court
proceedings, it is likely parents would voluntarily relinquish parental rights
before a decision was reached to consider involuntary termination, or before
permanent placement occurred. To deny a hearing on the involuntary
termination petition is to provide a peremptory strike against a finding of
aggravated circumstances at the time a voluntary relinquishment petition
was filed.
34 The legislative and judicial parameters of this proceeding have been
clearly stated in Lilley, supra, which predated A.J.B. by four years. Lilley
provided a definitive analysis of the mandate of the ASFA. The ASFA
establishes unequivocally that goals for children in the child welfare system
are safety, permanency and well being.
The child's safety is the paramount concern. All
decisions made must be based on the child's
safety and well-being.
Substitute care is a temporary setting. It is not a
place for children to grow up. For children who
cannot safely return home, the law provides for
an expedited process to find these children
permanent homes.
Permanency planning for children begins as soon
as the child enters substitute care. ...
The practice of concurrent planning is encouraged
by ASFA....
Id. at 334 n. 5. Thus, the initiation and implementation of the aggravated
circumstances provisions and the harm of bypassing this provision by
- 28 -

J. A14005/02
permitting voluntary relinquishment to avoid its implementation by
sidestepping involuntary termination is crystal clear. As indicated in
footnote 6, supra, it is also imperative to consider that 42 U.S.C.S. 671(a)
mandates that the states adopt the policies and procedures set forth in the
ASFA to be eligible for federal foster care and adoption assistance.
35 Since the A.J.B. orphans' court did not take evidence or consider the
merit of OCY's petition for involuntary termination, it presented to future
courts a precedent that a petition for voluntary relinquishment foreclosed
consideration of a petition for involuntary termination. As discussed above,
these petitions are mutually exclusive but must each be given its legal and
evidentiary consideration and weighed in relation to the provisions of the
Juvenile Act, the Adoption Act and the Federal ASFA and its state
counterparts. To avoid the problem, the court in A.J.B. was empowered to
remand the case to the orphans' court to take evidence and review the law
as it related to the petition for involuntary termination. Since that procedure
was not followed, we can only speculate as to the outcome of A.J.B. on
appeal if this Court had the opportunity for a review of the matters on both
petitions. Since in this matter this Court has the benefit of the record and
findings of the orphans' court on both petitions, we stand in a dramatically
different position than the Court in A.J.B., and this case, therefore, is clearly
distinguishable from A.J.B.
- 29 -

J. A14005/02
36 Following are the findings of the orphans' court in this case based on
the evidence, records and testimony by OCY on its petition for involuntary
termination of the parental rights as to A.M.B.
. . .
2. [A.M.B.] (the child) was born on February 2,
2000, in Erie, Pennsylvania. The child was
adjudicated dependent on February 24, 2000
after being detained at birth. The child is
presently in a pre-adoptive home.
3. The mother of the child is [J.B.], born May 26,
1981. In 1999, [J.B.] voluntarily relinquished her
parental rights to her first child.
4. On March 3, 2000, a dispositional hearing was
held at which time continued placement was
authorized. Further, the mother was Court-
Ordered to participate in weekly visits with the
child, work with Dr. Leone to control her seizures,
attend parenting classes, obtain a mental health
assessment, participate in a bonding assessment,
continue counseling through Family Services,
participate in an NCAST assessment and adhere
to all recommendations resulting from said
5. At a permanency hearing held on September 14,
2000, it was determined the mother had not
complied with the treatment plan. Thereafter, the
mother was ordered to work with Dr. Boehm at
Stairways, take medication as prescribed, attend
depression group counseling, submit to a drug
and alcohol assessment, seek a psychiatric
assessment and acquire suitable housing through
6. The mother was terminated from counseling at
Family Services for failure to comply. In addition,
the mother failed to regularly attend parenting
classes, depression group sessions and to keep
- 30 -

J. A14005/02
her appointments with Dr. Leone. The mother
refused to cooperate in a psychological treatment
plan following her assessment. Also, the mother
failed to follow through with the HANDS agency to
secure suitable housing for the child. Instead, the
mother took up residence with a paramour who
has a criminal history.
7. On March 6, 2001, the Agency was authorized to
proceed to an involuntary termination of the
mother's parental rights.
8. The mother filed a Petition to voluntarily
relinquish her parental rights to the child after
realizing it was in the child's best interests to
make the child available for adoption. The
Petition was denied however, based on the
Agency's refusal to consent.
9. The evidence presented at trial is uncontroverted.
The mother has a longstanding history of mental
and physical health problems. She has been
diagnosed with Oppositional Defiant Disorder and
often suffers severe epileptic seizures which
frequently cause her to lose consciousness.
10. Further, the mother lacks the mental capacity to
properly care for the child. The mother also lacks
the necessary parenting skills and is unwilling to
attend parenting classes. Further, her limited
intellectual abilities significantly impair her ability
to develop basic parenting skills.
11. In addition, the mother does not have the
necessary coping skills to deal with the stresses of
daily life, including those stresses related to
parenting a child. The mother is in a constant
state of depression that causes her to require
excessive amounts of sleep which renders her
unable to care for the child.
12. The child is currently in a pre-adoptive home
where the child's needs are being met. The pre-
adoptive home consists of a married couple and
- 31 -

J. A14005/02
six children. The house is adequate in size and
their income sufficient to provide for the child's
needs. The child is blossoming in this
Orphans' Court Opinion, Cunningham, P.J., 8/16/2001 (emphasis added).
37 Beyond question the evidence is clear and convincing that parental
rights should be terminated. Moreover, in view of the mandated change in
the law, effective January 1, 1999, the agency need not consent to the
previous alternative of voluntary relinquishment, so that the juvenile court
will have the option in addition to the reasonable efforts requirement, see
42 Pa.C.S.A. 6351(e)(2), supra, to bypass reasonable efforts and proceed
to involuntary termination and a petition for adoption involving future
dependency cases as to the parent. In keeping with the broad finding in
C.B. ex rel. R.R.M., supra, the federal mandate does not preempt state
law as to consent and does not require a finding that the consent provision
conflicts with the federal statute and is, therefore, preempted. Where the
reasonable effort requirements have been fulfilled and permanent placement
is deemed necessary, voluntary relinquishment is redundant and a finding of
involuntary termination having to do with parental fitness, rather than the
best interest of the child, is a consistent and viable finding under both
federal and Pennsylvania statutes. Here, involuntary termination is
particularly appropriate since to require agency consent to the mother's
voluntary relinquishment would result in a second child being relinquished by
her. In the event this mother gives birth to another child, the reasonable
- 32 -

J. A14005/02
efforts requirement would again apply with no opportunity to immediately
proceed to adoption planning pursuant to aggravated circumstances
mandates of the ASFA. There could be no benefit to the mother and
extreme detriment to the child under that situation. A child's life, happiness
and vitality simply cannot be put on hold until the parent finds it convenient
to perform parental duties. See Adoption of McCray, 460 Pa. 210, 331
A.2d 652 (1975), In re D.J.S., 737 A.2d 283 (Pa. Super. 1999).
38 Based upon the foregoing, we affirm the Decree of the Honorable
William P. Cunningham, which involuntarily terminated the parental rights of
39 Decree affirmed.
40 Dissenting Statement by Musmanno, J.
- 33 -

J. A14005/02
No. 1714 WDA 2001
Appeal from the Order entered on September 14, 2001
in the Court of Common Pleas of Erie County,
Orphans' Court Division, No. 1 In Adoption 2001
I cannot join the majority's conclusion that the Orphans' court did not
err when it involuntarily terminated Mother's parental rights rather than
permitting Mother to voluntarily relinquish her parental rights. I believe that
we are bound by our prior holding in In re Adoption of A.J.B., 2002 PA
Super 67, 5 (filed March 15, 2002). In Adoption of A.J.B., this Court
addressed a similar situation involving OCY's refusal to consent to a
voluntary relinquishment petition, and concluded that the Orphans' court
properly denied OCY's motion to dismiss mother's voluntary relinquishment
petition because OCY had implicitly consented to accept custody of the child.
Therefore, I am constrained to conclude that the trial court erred when
it involuntarily terminated Mother's parental rights. On the authority of
Adoption of A.J.B., I would reverse the September 14, 2001 Order and

J. A14005/02
remand this matter for the Orphans' Court to enter an order granting
Mother's Petition to voluntarily relinquish her parental rights.16

1 6 We recognize that the Orphans' court judge did not have the benefit of our
decision rendered in Adoption of A.J.B.
- 35 -

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