Opinion
12-08-2015
In re ADOPTION OF M.R.D. and T.M.D., Minor Children. Appeal of M.C., Natural Father.
Melody L. Protasio, Williamsport, for appellant. Bret J. Southard, Williamsport, for appellee.
Melody L. Protasio, Williamsport, for appellant.
Bret J. Southard, Williamsport, for appellee.
Opinion
OPINION BY GANTMAN, P.J.:
Appellant, M.C. (“Father”) appeals from the decree entered in the Lycoming County Orphans' court, which granted the petition of M.D. (“Mother”) and Maternal Grandfather to terminate Father's parental rights to M.R.D. and T.M.D. (“Children”). Father asks us to determine whether the Orphans' court erred when it granted the termination petition because termination of his parental rights does not serve the best interests of Children. We hold the Orphans' court correctly terminated Father's parental rights to Children, under the facts and circumstances of this case; Maternal Grandfather qualified as a “good cause” candidate to adopt Children and his proposed adoption of Children is both legally feasible and realistically foreseeable; thus, termination of Father's parental rights serves the best interests of Children. Accordingly, we affirm.
To relate the relevant facts and procedural history of this case, we begin with the Orphans' court findings of fact set forth in its opinion as follows:
Finding of Facts
1. [Children] were born [in October 2004], in Lycoming County, Pennsylvania. [Children] currently reside with their [M]other [in] Lycoming County, Pennsylvania. [C]hildren's mother is [M.D.], who was born [in May 1979]. Mother is currently unmarried. [C]hildren's [M]aternal [G]randfather ... currently resides [in] South Williamsport, Lycoming County, Pennsylvania. Maternal [G]randfather is currently married to ... maternal grandmother.
2. [Children's] father is [M.C.]. Father resides [in] Pierre, South Dakota. Mother and Father met while Mother was teaching in South Dakota in 2002.
3. Mother and Father lived together in South Dakota until Mother returned to Pennsylvania in October 2003.
4. Father moved to Pennsylvania briefly in January 2004, but returned to South Dakota.
5. After Father left Pennsylvania, Mother learned of her pregnancy. Mother informed Father of her pregnancy and Mother and Father spoke infrequently throughout the pregnancy.
6. Mother moved into the home of [M]aternal [G]randfather during her pregnancy.
7. The majority of Father's family resides in South Dakota.
8. The majority of Mother's family resides in Pennsylvania.
9. In October of 2004, Father traveled to Pennsylvania following [C]hildren's birth for a few days.
10. Father is not on [C]hildren's birth certificate.
11. In December of 2004, Father traveled to Pennsylvania to visit [C]hildren. Father stayed in Maternal Grandfather's home.
12. In January of 2006, Father traveled to Pennsylvania for a visit. Mother planned special experiences between Father and [C]hildren such as their first haircuts, a professional photo session and shopping trips.
13. In February 2006, Mother discussed with Father [Mother] and [C]hildren traveling to South Dakota to meet [C]hildren's extended family. Father was not supportive.
14. In approximately August of 2006, Mother moved from [M]aternal [G]randfather's home to ... Jersey Shore, Pennsylvania. The home was owned by Maternal Grandfather and had previously been a rental property. Maternal Grandfather charged Mother no rent for the home.
15. Father was aware of the address [change] as evidenced by an envelope sent by Father to [Jersey Shore, Pennsylvania] in December of 2006. The envelope was entered into evidence.
16. In August of 2006, Mother began working at Williamsport Area School District.
17. The parties' communication became extremely infrequent.
18. Mother received the last written correspondence sent by Father in January of 2007.
19. In the Spring of 2007, Father contacted Mother. Mother felt Father was drunk during this phone call.
20. Mother changed her phone number to an unlisted number following the Spring 2007 phone call. Mother's address remained unchanged until 2010. Maternal Grandfather's address remained the same from the time of [C]hildren's birth until the hearing on August 13, 2013.
21. At the time of the hearing on the Petition for Termination of parental rights, Father had not seen [Children] since January 2006.
22. At the time of the hearing on the Petition for Termination of parental rights, Father had not sent [Children] written correspondence since January 2007.
23. Father did not send cards or gifts to [C]hildren because he was unsure if Mother's address had changed.
24. Father contacted an attorney in 2009 to discuss custody.
25. Father knows how to contact Mother's parents in Pennsylvania. Father had no contact with Mother's parents.
26. Father has provided little support for [C]hildren during the first few years of their lives. Father sent Mother money on one occasion and bought gifts on his January 2006 visit. Father had provided no further support.
27. Father has sent little more correspondence than six greeting cards to [C]hildren throughout their lives.
28. In ... November of 2012, Father called and left a voicemail at Mother's place of employment, Williamsport Area School District. Mother did not return Father's phone call.
29. Father filed for custody in December 2012, Mother received Notice of proceeding in January 2013.
30. Mother [and Maternal Grandfather] filed [a] Petition for Termination of [Father's] Parental Rights on [January 29, 2013 and an amended petition on February 28, 2013].
31. [Children] did not learn of the existence of their biological father until the summer of 2013.
32. Mother informed [C]hildren of the existence of their biological father due to the pending termination hearing and the fact that [C]hildren would be speaking with the Guardian Ad Litem regarding [F]ather.
33. When Mother, or the Guardian Ad Litem, discussed Father with the children, they listed either “Pa Pa,” Maternal Grandfather[,] or “God” as their father.
34. [C]hildren have no bond with Father.
35. Father's intention is to become more involved with [C]hildren and form a relationship with [C]hildren.
(Orphans' Court Opinion, filed August 19, 2013, at 5–9). The Orphans' court held a termination hearing on August 13, 2013. As a result of the hearing and arguments presented, the Orphans' court concluded:
[T]his Court must first address and evaluate the proposed adoption of the children by Maternal Grandfather while Mother retains her parental rights. Mother has demonstrated good cause for an adoption by Maternal Grandfather in this instance.
Mother and Maternal Grandfather have shared parental duties of the minor children since their birth [in 2004]. Immediately after [M.R.D.'s] birth, he was transported to a separate hospital from Mother and [T.M.D.]. Maternal Grandfather traveled to and from each hospital to see the boys. After leaving the hospital the boys and Mother returned to [Maternal] Grandfather's home where he took on a regular role in diapering and feeding. Grandfather regularly held [T.M.D.] to help him fall asleep. Maternal Grandfather got up with [C]hildren in the night.
[Children] lived at Maternal Grandfather's home until they were 22 months old. Thereafter, Maternal Grandfather provided housing for the boys while they lived in Jersey Shore. Maternal Grandfather continues to provide significantly for the boys through groceries and other assistance. Maternal Grandfather has requested certain work hours around his need to be available to pick the boys up after school. [Maternal] Grandfather has picked the boys up regularly from daycare, preschool, kindergarten and first grade. [Maternal] Grandfather knows the boys' interests and participates in their activities. This involvement in the boys' lives has continued and developed at the boys' various stages from pretending to be pirates to learning football skills. [Maternal] Grandfather stated that the boys depend on him.
[Maternal] Grandfather has played a regular role in decision making in the boys' lives. [Maternal] Grandfather attended school conferences and has dealt with discipline issues as a team with Mother. [Maternal] Grandfather had traveled to doctor's appointment[s] with Mother. [Maternal] Grandfather and Mother have co-parented [M.R.D. and T.M.D.]. [Maternal] Grandfather vacations with the boys. [Maternal] Grandfather assists in homework. [Maternal] Grandfather has disciplined the boys. [Maternal] Grandfather attends school functions with the boys. [Maternal] Grandfather has taken the boys to his place of employment and regularly along on jobs. [Maternal] Grandfather testified that he “raised” his other children the same way he is raising [M.R.D. and T.M.D.]. [Maternal] Grandfather has been [M.R.D. and T.M.D.]'s de facto father since birth. It is clear from the testimony presented that Maternal Grandfather and Mother together have raised the boys. [Maternal] Grandfather's role in [C]hildren's lives extends far beyond the role of a typical grandparent. [Maternal] Grandfather is clearly one half of the parental unit that has raised [C]hildren. [Maternal] Grandfather's authority, control and influence over [C]hildren is equal to that of Mother.
Maternal Grandfather has been in the role of parent for [C]hildren on a nearly daily basis and will continue to do [so]. Maternal Grandfather expressed concern of providing for the boys' education and financial future. Grandfather's present job as an instructor at Pennsylvania College of Technology will provide free tuition for the boys if they are legally adopted by [Maternal] Grandfather.
Mother has demonstrated good cause as to why this adoption should be allowed to proceed. Adoption by Maternal Grandfather in this case would simpl [y] memorialize that status quo of [M.R.D. and T.M.D.]'s lives. Maternal Grandfather will continue to raise them as his [C]hildren.
* * *
The [c]ourt finds as of the date of the Petition to Involuntar[ily] Terminate his parental rights, Father has failed to perform his parental duties for a period of time in excess of six (6) months and has evidenced a settled purpose of relinquishing his parental claim. Father failed to contact his [C]hildren or their Mother from the spring of 2007 until November of 2012. In November 2012, Father left a voice message for Mother at her place of employment. Father reasoned he did not know any other means to contact Mother. The message did not mention either of his sons. Mother had been employed by the Williamsport Area School District since 2006 and Mother had previously told Father of that employment. Mother was a teacher when Father met her. Mother's parents continued to reside at the same address where Father had visited with [C]hildren. Father had consulted an attorney regarding his custodial rights in 2009. Father's testimony that he had no way of contacting Mother is not credible. Father's filing of a Petition for Custody in the 6–month period prior to the filing for Termination alone is not sufficient especially since this [c]ourt must consider the entire background of the case. Father has failed to exert himself to maintain a role in his [C]hildren's lives. From the [s]pring of 2007, to the date of the filing of the Petition in February 2013, almost six years of the 8–year–old [C]hildren's [lives], Father has failed to show even a passive interest in [Children]. Father's intent to become more involved in [C]hildren's lives is not sufficient. A parent has an affirmative duty to be part of [his] child's life.
* * *
In the present case, Father does not have a bond with [C]hildren. The only father figure that [C]hildren have is Maternal Grandfather. There was no testimony from any party demonstrating any bond between Father and [Children]. There was no evidence presented that [C]hildren had any recollection of or even knowledge of Father until the summer of 2013. It is clear that Father has no bond with [Children]. Further, termination of his rights would not destroy an existing necessary and beneficial relationship as there currently [is] no relationship between Father and [C]hildren.
Conclusions of Law
1. The [c]ourt finds that [Mother] and [Maternal Grandfather] have established by clear and convincing evidence that [Father's] parental rights should be involuntarily terminated pursuant to 23 Pa.C.S. § 2511(a)(1).
2. The [c]ourt finds that [Mother] and [Maternal Grandfather] have established by clear and convincing evidence that the developmental, physical and emotional needs and welfare of [M.R.D.] and [T.M.D.] will best be served by termination of [Father's] parental rights.
(Id. at 3–5, 10–11, 12–13). As a result, the Orphans' court entered a decree that terminated Father's parental rights to Children. Father timely filed a notice of appeal on September 18, 2013, along with a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.1925(a)(2)(i). Initially, a three-judge panel reversed the Orphans' court decision, with one dissent. On April 1, 2015, this Court granted en banc reargument, which followed on June 30, 2015.
Father raises three issues for review:
WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT MOTHER AND MATERNAL GRANDFATHER SHOWED GOOD CAUSE UNDER SECTION 2901 OF THE ADOPTION ACT TO PROCEED WITH THE ANTICIPATED ADOPTION OF CHILDREN WAS CONTRARY TO THE EVIDENCE AND CONTRARY TO CONTROLLING PRECEDENT AND LAW, SPECIFICALLY:
1. WHETHER THE TRIAL COURT ERRED IN TERMINATING THE PARENTAL RIGHTS OF [FATHER] WHEN THE PROPOSED ADOPTION BY MATERNAL GRANDFATHER WOULD NOT CREATE A NEW, GENUINE, PARENT–CHILD RELATIONSHIP AND FOSTER THE CREATION OF A NEW FAMILY UNIT;
2. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE ANTICIPATED ADOPTION OF THE CHILDREN BY MATERNAL GRANDFATHER WOULD BE IN THE CHILDREN'S BEST INTERESTS.
WHETHER THE TRIAL COURT ERRED IN TERMINATING THE PARENTAL RIGHTS OF [FATHER] PURSUANT TO 23 PA.C.S.A. § 2511(A)(1) AND IN FINDING THAT [FATHER] EVIDENCED A SETTLED PURPOSE OF RELINQUISHING HIS PARENTAL CLAIMS AND FAILED TO PERFORM HIS PARENTAL DUTIES.
WHETHER THE TRIAL COURT ERRED IN TERMINATING THE PARENTAL RIGHTS OF [FATHER] WHEN THERE WAS INSUFFICIENT EVIDENCE THAT THE BEST INTERESTS OF CHILDREN WOULD BE SERVED BY TERMINATION, PURSUANT TO 23 PA.C.S.A. § 2511(B).
(Father's Brief at 2–3).
In his issues combined, Father begins with a challenge to the proposed adoption of Children by Maternal Grandfather. Specifically, Father analogizes to several other county cases where the Orphans' court refused for various reasons to terminate parental rights in view of the proposed adoption. Father argues this case is comparable because Mother's entire family, not just Maternal Grandfather, took shifts caring for Children. Father claims Maternal Grandfather's flexible work schedule allows him to help Mother more often as needed in a manner typical of a grandparent of twins. To emphasize Maternal Grandfather's role as that of a typical grandparent Father also claims Maternal Grandfather is more relaxed about Children's bedtime. Father acknowledges Mother and Children lived with Maternal Grandfather for the first two years of Children's lives. Nevertheless, Father asserts Mother then moved into her current residence and is financially self-supporting. Father avers Maternal Grandfather's contributions, whether characterized as “gifts” or “financial support,” are all just to help “pick up the slack.” Father maintains Maternal Grandfather's participation in Children's school activities are merely as an “involved grandparent” rather than as a parent for Children. Father insists the testimony about joint vacations is just another example of Maternal Grandfather's exaggerated involvement in Children's lives. Father also argues that Maternal Grandfather ranks a mere third in Children's concept of a “father,” after God and Jesus.
Father repeatedly directs our attention to Mother's and Maternal Grandfather's testimony that they do not intend to live in the same house to raise Children. Father submits the legislature intended “an intact family unit” to evolve from a proposed third-party adoption, i.e., a “new parent-child relationship” that would protect the integrity and stability of a new family unit. Father relies on two cases involving proposed adoptions by a stepparent, which were defeated by separation and the contemplation of divorce between the natural parent and the stepparent. Father reasons the proposed adoption in this case is as impermissible as it was in those cases, because Mother and Maternal Grandfather will not be living together as an “intact family.” Father advocates that Mother and Maternal Grandfather must live in the same household for the proposed adoption to succeed legally. Father again emphasizes that Maternal Grandfather's involvement with Children is no more than a grandparent who lets his grandchildren stay up past their bedtime, unlike a parent who ensures a regular or strict bedtime. Father insists the proposed adoption serves no purpose other than to cut Father and his family out of Children's lives, for fear of adverse effect, when the proper procedure would be to address Children's contact with Father through custody proceedings.
See In re Adoption of L.J.B., 610 Pa. 213, 18 A.3d 1098 (2011) and In re Adoption of J.D.S., 763 A.2d 867 (Pa.Super.2000).
Act of October 15, 1985, P.L. 934, as amended, 23 Pa.C.S. §§ 2101–2938.
According to Father, the only reason Mother and Maternal Grandfather sought involuntary termination of Father's parental rights was to get even with Father for seeking custody of Children after so many years. But for the custody action, Father contends the adoption would not have been proposed. Father also states Maternal Grandfather's relationship with Children “will not change” even if the court denied termination of Father's parental rights; Maternal Grandfather still plans to include Children in his will regardless of the outcome of this case, so adoption will not alter their ability to inherit from him. What will change, Father says, is Children's ability to inherit from Father or his family, if the proposed adoption occurs. Father submits he will no longer be available for child support or inheritance or any other resource for Children. Father assumes terminating his parental rights to allow Maternal Grandfather to adopt Children will not serve Children's best interests because no one has considered the “stigma of this mix of roles,” or whether Mother might marry and if Maternal Grandfather would step aside to allow Mother's new spouse to adopt. Father complains these realities of the proposed adoption were not discussed, which is “simply more evidence that this plan for adoption was created solely as a means to get Father out of the picture.” (Id. at 28–9).
Next, Father claims he tried to contact Children, but Mother changed her telephone number in 2007, so he could no longer reach her. Father simply assumed Mother also changed her residence after she changed her telephone number. Father argues he met with an attorney in 2009, but was told his chances at custody were poor, so he did nothing to pursue custody at that time. Father acknowledges he had contact information for Mother's parents, but he believed they would not have helped him reach Mother. Father asserts he was “finally able” to track down Mother in November 2012, at work and left a message but received no response. Given Mother's alleged obstacles and attempts to avoid contact, Father concludes the statutory requirements, under 23 Pa.C.S.A. § 2511(a), were not met. Likewise, Father takes issue with the court's conclusion that Father is a stranger to Children for purposes of Section 2511(b). Although he does not dispute the court's conclusion, Father says he has no plans to uproot Children at this time; he just wants to develop a relationship with them. Father claims the court simply eliminated the additional emotional and financial support he and his family could give Children, when it terminated his parental rights. For all these reasons, Father concludes the proposed adoption is contrary to statute, he had no settled purpose to relinquish his parental rights, and termination of his parental rights is not in the best interests of Children. We disagree with Father's contentions.
Initially, we observe:
When reviewing a decree entered by the Orphans' Court, this Court must determine whether the record is free from legal error and the court's factual findings are supported by the evidence. Because the Orphans' [c]ourt 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 E.M.I., 57 A.3d 1278, 1284 (Pa.Super.2012) (quoting In re A.J.B., 797 A.2d 264, 266 (Pa.Super.2002)).
In cases involving termination of parental rights, our scope of review is broad. All of the evidence, as well as the trial court's factual and legal determinations, are to be considered. However, our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child. We have always been deferential to the trial court as the fact finder, as the determiner of the credibility of witnesses, and as the sole and final arbiter of all conflicts in the evidence. Moreover, this Court will affirm a termination of parental rights if competent evidence supports the trial court's findings, even if the record could support an opposite result.
In re S.D.T., Jr., 934 A.2d 703, 705–06 (Pa.Super.2007), appeal denied, 597 Pa. 68, 950 A.2d 270 (2008) (citations omitted). “The burden of proof in a termination case is on the petitioning party, who must establish valid grounds for termination by clear and convincing evidence.” In re E.M.I., supra (citing In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super.2003)).
Section 2512 governs who may bring a petition to terminate parental rights and what the petition must contain and provides as follows:
§ 2512. Petition for involuntary termination
(a) Who may file.—A petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following:
(1) Either parent when termination is sought with respect to the other parent.
(2) An agency.
(3) The individual having custody or standing in loco parentis to the child and who has filed a report of intention to adopt required by section 2531 (relating to report of intention to adopt).
(4) An attorney representing a child or a guardian ad litem representing a child who has been adjudicated dependent under 42 Pa.C.S.A § 6341(c) (relating to adjudication).
(b) Contents.—The petition shall set forth specifically those grounds and facts alleged as the basis for terminating parental rights. The petition filed under this section shall also contain an averment that the petitioner will assume custody of the child until such time as the child is adopted. If the petitioner is an agency it shall not be required to aver that an adoption is presently contemplated [or] that a person with a present intention to adopt exists.
* * *
23 Pa.C.S.A. § 2512(a)–(b). “If the petitioner is not an agency, then the petition must include ‘an averment that an adoption is presently contemplated or that a person with a present intention to adopt exists.’ ” In re E.M.I., supra at 1286 (quoting In re Adoption of J.F.D., 782 A.2d 564, 567 (Pa.Super.2001)). As a general rule, however, the biological parent who files a petition to terminate the parental rights of the other biological parent, with the intent to retain custody or physical care of the child, does not have to file an accompanying report of intention to adopt. Id. at 1286. See also 23 Pa.C.S.A. § 2531(c) (stating: “No report shall be required when the child is the child, grandchild, stepchild, brother or sister of the whole or half blood, or niece or nephew by blood, marriage or adoption of the person receiving or retaining custody or physical care”).
A termination petition of one biological parent against the other, per Section 2512(a)(1), is cognizable only if the averred adoption is foreseeable. 23 Pa.C.S.A. § 2512(b); In re E.M.I., supra at 1286. See also In re B.E., 474 Pa. 139, 142, 377 A.2d 153, 154 (1977) (stating plan for adoption is required, when one biological parent seeks involuntary termination of parental rights of other biological parent). Although a petition might satisfy the statutory requirements for termination of parental rights, a court still cannot grant the petition without a corresponding plan for adoption of the child. In re Adoption of L.J.B., supra at 228, 18 A.3d at 1107 (reversing involuntary termination of mother's parental rights, where termination decree was entered to make way for stepmother's adoption of child, in light of new evidence that stepmother no longer wanted to adopt child). A contemplated adoption is required in this context because “the purpose of involuntary termination of parental rights is to dispense with the need for parental consent to an adoption when, by choice or neglect, a parent has failed to meet the continuing needs of the child.” Id. at 229–30, 18 A.3d at 1108.
Significantly, “Any individual may become an adopting parent.” 23 Pa.C.S.A. § 2312. The “any individual” language permits a non-spouse to adopt even where one of the natural parents continues to retain custody, upon “cause shown.” In re Adoption of R.B.F., 569 Pa. 269, 280–81, 803 A.2d 1195, 1202 (2002); 23 Pa.C.S.A. § 2901. A non-spouse adoptive nominee can be a child's maternal grandfather. In re Adoption of J.M., 991 A.2d 321, 326 (Pa.Super.2010). The purpose of the “cause shown” approach, borrowed from Section 2901, is consistent with legal precedent which requires the court to analyze the integrity of the “proposed adoption” and if it is likely to happen. See In re T.R., 502 Pa. 165, 169 n. 10, 465 A.2d 642, 644 n. 10 (1983) (insisting court should actually consider adoptive candidate's intent to adopt, and not merely accept adoption averment on its face, to determine if petitioner(s) genuinely seek termination “solely as an aid to adoption”). See also In re Adoption of L.J.B., supra at 230, 18 A.3d at 1108 (stating court should consider, and not merely accept on its face, averment of intent to adopt, to ascertain that termination is sought as aid to adoption and formation of new parent-child relationship).
Assuming the termination pleading itself satisfies the statutory prerequisites for a hearing, the Orphans' court applies the two-part test for termination of parental rights under Section 2511 of the Adoption Act. See 23 Pa.C.S.A. § 2511. The initial focus is on the conduct of the parent whose rights are at issue. In re C.L.G., 956 A.2d 999, 1004 (Pa.Super.2008) (en banc ). Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for his ... conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super.2008) (internal emphasis added). Regarding the six-month period prior to filing the termination petition:
[T]he trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his ... parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.
In re B.,N.M., supra at 855 (citations omitted).
“The biological relationship of parent and child does not vest in the parents a property right to the custody of the child.” In re E.F.V., 315 Pa.Super. 246, 461 A.2d 1263, 1267 (1983). Instead, a parent-child relationship is a status, “and one in which the state has an interest to protect the best interest of the child.” Id. Maintaining a parent-child relationship requires a continued interest in the child and a genuine effort to maintain communication and association with the child. In re E.M., 908 A.2d 297, 305–06 (Pa.Super.2006). See also In Re B.,N.M., 856 A.2d 847, 855 (Pa.Super.2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005) (determining parental duty encompasses more than just financial obligation; relationship requires parent to exert himself to take and maintain place of importance in child's life and to act affirmatively with good faith interest and effort, even in difficult circumstances).
A parent is required to exert a sincere and genuine effort to maintain a parent-child relationship; the parent must use all available resources to preserve the parental relationship and must exercise “reasonable firmness” in resisting obstacles placed in the path of maintaining the parent-child relationship. This [C]ourt has repeatedly recognized that parental rights are not preserved ... by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her immediate physical and emotional needs.
In re C.M.S., 832 A.2d 457, 462 (Pa.Super.2003), appeal denied, 580 Pa. 687, 859 A.2d 767 (2004). All explanations considered, if the parent makes reasonable attempts to overcome obstacles created by the party seeking termination, then the parent's failure to pursue legal action more promptly will not alone justify termination. In re Adoption of L.J.B., supra at 253–54, 18 A.3d at 1122.
The second prong of the termination test centers on the needs and welfare of the child. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super.2010); 23 Pa.C.S.A. § 2511(b). “A proper Section 2511(b) analysis focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child.” In re T.D., 949 A.2d 910, 920 (Pa.Super.2008), appeal denied, 601 Pa. 684, 970 A.2d 1148 (2009). Under Section 2511(b), the court should examine intangibles such as “love, comfort, security, and stability” when determining the needs and welfare of the child. Id.
In the circumstance of one biological parent seeking to terminate the parental rights of the responding parent, prevailing case law indicates that, at the termination hearing, the petitioning parent must also demonstrate the planned adoption is in the child's best interests, before the court will terminate the parental rights of the responding parent. See In re Adoption of L.J.B., supra at 232, 18 A.3d at 1110–11 (implying no gain to child or society can be achieved by terminating one parent's rights to permit adoption by another person who is unwilling or unqualified to adopt). Thus, as part of its Section 2511(b) analysis of the needs and welfare of the child in this particular situation, the court evaluates the evidence pertaining to the “proposed adoption” that was averred in the termination petition. See generally id.
With regard to whether cohabitation is required for the proposed adoption, the case of In Re Adoption of J.M. is both precedential and instructive. The mother and the father in J.M. were the unmarried, natural parents of the child. Given the father's unmitigated parental inaction for two years, the mother and the maternal grandfather took primary care of the child. The mother and the maternal grandfather filed a private petition pursuant to 23 Pa.C.S.A § 2511 seeking involuntary termination of the father's parental rights. At the evidentiary hearing, Mother testified that the child does not know the father and fears him as the child would fear any other stranger. The father's total interaction with the child consisted of one birthday card and a single one-hour visit with the child that occurred in a Wal–Mart parking lot. Further, the father did not contact the mother to inquire about the child's needs and welfare. The court found the mother had established statutory grounds for involuntary termination of the father's parental rights under subsection 2511(a)(1).
The maternal grandfather testified that he interacted with the child for two to four hours every day and more during the weekends, provided financially for the child, and sincerely desired to fill the void created by the father's absence. Additionally, the trial court acknowledged no bond existed between the father and the child. Nevertheless, the trial court did not find termination was in the child's best interest pursuant to subsection 2511(b), because “no new family unit would result given that Mother and Maternal Grandfather have maintained completely separate households since the child's birth and Maternal Grandfather has never maintained physical custody of Child.” In re Adoption of J.M., supra at 325–26 (reciting trial court's rationale in which court considered cohabitation as absolutely necessary to proposed adoption).
On appeal, this Court held the mother had proved by clear and convincing evidence that involuntary termination of the father's parental rights was warranted under Section 2511(a) and that severing the father's parental rights would best serve the child's developmental, physical, and emotional needs and welfare under Section 2511(b). This Court explained:
Interspersed throughout its needs and welfare analysis, the trial court made factual findings that the adoption contemplated by Maternal Grandfather was not in J.M.'s best interest because it would not create a traditional, nuclear family. Essentially, the trial court considered cohabitation to be the sine qua non of the family unit. Specifically, the court reasoned, no new family unit would result given that [Mother and Maternal Grandfather] have maintained completely separate households since the child's birth and [Maternal Grandfather] has never maintained physical custody of [J.M.]. The trial court continued, although Mother seeks to fashion a formal parental relationship between Maternal Grandfather and J.M., she did not present evidence that a formal relationship was in the child's best interest or that J.M. considered Maternal Grandfather to be her father rather than her grandfather.
Id. at 325–26. Our Court rejected the notion that cohabitation or having to live under the same roof is a necessary component for creation of the “new family unit” for purposes of termination of parental rights and adoption. Id. Instead, this Court reversed the trial court's outright refusal to terminate the father's parental rights and remanded the case for the trial court to permit the mother to show “cause” for the proposed adoption to proceed. Id. at 327.
Instantly, the Orphans' court found that Mother and Maternal Grandfather had established ample evidence to support involuntary termination of Father's parental rights under Sections 2511(a) and (b), and showed good cause to proceed with Maternal Grandfather's proposed adoption of Children. In eight years, Father visited Children only two or three times, and he refused to allow them to come to his home or meet his extended family. Father claimed he had no way of contacting Mother or Children, although he conceded he eventually located Mother in 2012 by computer and her email address had remained the same throughout the relevant time. To excuse his lack of effort at initiating or maintaining contact with Children, Father said he was “not a writer,” “not an email person,” and “not a computer person.” (See N.T., 8/13/13–p.m., at 67, 69, 72; R.R. at 106a–107a.) Father asserted he gave Mother some child support, but he could not recall when or how much. (Id. at 62–63; R.R. at 104a–105a). Father further conceded that Mother had tried to develop a relationship between Children and Father and his family for several years after Children's birth. (Id. at 71; R.R. at 107a). Father also knew where Mother's parents live, and he had a viable address for Mother until 2010. (Id. at 74; R.R. at 107a). Nevertheless, Father insisted Mother cut him off because he could not talk to her or see Children or find out how they were. (Id. at 76–77; R.R. at 108a). The Orphans' court found Father's testimony incredible.
In any event, Father had an affirmative duty to take part in Children's lives, which included overcoming any perceived obstacles to fulfilling that duty. See In re C.M.S., supra. When Father filed his petition for custody in 2012, he had not contacted or visited or supported Children in any manner for almost six years, which is well in excess of the six-month timeframe under Section 2511(a)(1). Therefore, Father evidenced both a settled purpose of relinquishing his parental claim to Children and a failure to perform his parental duties. See In re Z.S.W., supra.
Further, the evidence demonstrated Father and Children are complete strangers, with no parent-child bond. Children had no recollection or even real knowledge of Father until 2013, and do not identify him as their father. Instead, Maternal Grandfather consistently provided Children with physical, emotional, and financial support. After deliberately eschewing all of his parental responsibilities for almost six years, Father sought to insert himself into Children's lives, based solely on a personal sense of entitlement.
As part of the subsection (b) analysis, the record shows Maternal Grandfather contemplated adopting Children for years but saw no immediate need to do so, given Father's absolute desertion. Maternal Grandfather emphasized Father had been absent from the Children's lives for a majority of their eight years. Only when Father filed his unforeseen petition for custody of Children, did Mother and Maternal Grandfather need court intervention to protect Children. For eight years, Mother and Maternal Grandfather raised Children without Father's assistance and regardless of Father's deliberate failure to act. Maternal Grandfather filled the void Father had created. Maternal Grandfather continues to provide for the Children financially and emotionally. Mother and Children lived with Maternal Grandfather for two years after Children's birth. Maternal Grandfather shared parental duties with Mother every day by feeding Children, changing their diapers, picking them up from daycare, and putting them to bed. After Mother and Children moved into a separate residence owned by Maternal Grandfather, he continued his daily involvement with Children and participated in Children's doctor appointments, school conferences, sports and extracurricular activities. Maternal Grandfather testified Mother and Children have more than half of their meals at his residence. (See generally N.T., 8/13/13–a.m., at 69–86; 8/13/13–p.m., at 3–31; R.R. at 69a–86a; 90a–97a.)
The Orphans' court had competent evidence to decide: Maternal Grandfather's involvement exceeds that of a “normal” grandparent; which testimony was credible; and the primary purpose of the petition for involuntary termination of Father's parental rights was to safeguard Children's best interests. See In re Z.S.W., supra; In re S.D.T., Jr., supra. The Orphans' court sat as the fact-finder in this case, and the court's findings on the credibility of the witnesses and the motivation for their actions have record support. In its Rule 1925(a) opinion, the court wrote:
Maternal Grandfather testified to adoption contemplated himself years before Father contacted Mother. This testimony was credible. Maternal Grandfather testified that he had not proceeded with adoption earlier because he “didn't see a need.” “There was no threat of this happening and then all of a sudden it does....” In the case at hand, termination of parental rights only became necessary once Father contacted Mother in 2012. Maternal [G]randfather, Mother and [Children] acted as a family with little involvement from Father from the time of [Children's] birth [in October 2004]. Father had not contacted Mother from Spring 2007 until December 2012. There were no indications from Father that necessitated Maternal Grandfather and Mother formalizing their family through termination of parental rights and adoption.
(Orphans' Court Opinion, filed October 17, 2013, at 2) (internal citations to the record omitted). In this statement, the Orphans' court made clear it understood Mother's and Maternal Grandfather's objective in filing their termination petition was to protect Children. The timing of their petition is not dispositive of any retaliatory intent, particularly in light of the Orphans' court's conclusion otherwise. See In re A.J.B., supra. As such, the record supports the Orphans' court's conclusion that Mother and Maternal Grandfather satisfied the statutory requirements for termination under Section 2511(a)(1) and (b).
With respect to Father's contention that the proposed adoption will not create a new family unit, we conclude “cohabitation” is not the sine qua non of the “new family unit.” See In re Adoption of J.M., supra. Neither the Adoption Act nor relevant case law defines “new family unit” or “new parent-child relationship” for purposes of a proposed adoption in the present circumstances. Further, this Court has already rejected the inflexible notion that cohabitation is absolutely required for a proposed adoption. In other words, the fact that Mother and Maternal Grandfather live in separate residences, both of which are family-owned residences, does not by itself thwart the proposed adoption plan in this case. See id. Such a rigid mindset is alarming in today's world, because that mindset is rooted in the concept of the traditional, nuclear family as consisting of a man and a woman, a relationship formalized through marriage, and cohabitation. To define “family-unit” this way improperly narrows the purpose of the Adoption Act and blatantly ignores evolving societal norms. Father's reliance on In re Adoption of L.J.B., supra is likewise misplaced because the L.J.B. case was primarily concerned with the separation and pending divorce between the child's natural father and his wife, the adoptive nominee, who no longer wanted to adopt the child. Because the proposed adoption was in jeopardy, the Supreme Court could not affirm termination of the natural mother's parental rights. The facts of L.J.B. differ remarkably from the present case in many respects, and to say the present case is like L.J.B. is an unwarranted stretch.
The language “intact family unit” derives from those cases involving stepparent adoption where the natural parent and the stepparent are divorcing, and the stepparent (adoptive nominee) has separated from the natural parent and no longer wants to adopt.
A mere averment of a contemplated adoption, however, could “be sufficient to obtain a hearing on the termination petition.” In Re E.M.I., 57 A.3d 1278, 1287 (Pa.Super.2012).
As the Orphans' court did, we also focus on the familial relationship Maternal Grandfather established with Children, instead of the superficial, indefinite externals and speculations Father suggests, such as what if Mother should marry, which are nothing more than mere conjecture. The primary purpose of the Adoption Act is served by securing Children in the parent-child relationship as proposed with Maternal Grandfather, the adoptive nominee. In re E.M.I., supra. The record makes clear Maternal Grandfather and Children already enjoy a healthy, deep emotional bond. Maternal Grandfather serves as a de facto father to Children. Formal adoption in this case will preserve the stability Children already know and still create a “new” parent-child relationship, because adoption will legalize their respective rights and obligations. This legal authorization is what establishes the “new” in the existing de facto parent-child relationship. Maternal Grandfather testified he both understands and accepts the legal obligations he will have as a parent through the proposed adoption. Therefore, Children will not become “state-created orphans,” as Father insinuates.
Based upon the foregoing, we hold the Orphans' court correctly terminated Father's parental rights to Children, under the facts and circumstances of this case; Maternal Grandfather qualified as a “good cause” candidate to adopt Children and his proposed adoption of Children is both legally feasible and realistically foreseeable; thus, termination of Father's parental rights best serves the developmental, physical, and emotional needs and welfare of Children. Accordingly, we affirm.
Decree affirmed.
President Judge Emeritus BENDER, Judges PANELLA, LAZARUS, and MUNDY join the opinion.
Judge STABILE files a dissenting opinion in which Judges DONOHUE and SHOGAN join.
Judge ALLEN did not participate in the consideration or decision of this case.
DISSENTING OPINION BY STABILE, J.:
I respectfully dissent from the learned Majority's decision to affirm the involuntary termination of Father's parental rights to Children and to allow Maternal Grandfather to adopt Children with his daughter (Mother). I do so for two principal reasons. First, Mother, who does not intend to relinquish her parental rights, may not propose her father as an adoptive resource in order to involuntarily terminate Father's parental rights under Section 2512 of the Adoption Act (Act).1 The Majority's reliance on In re Adoption of J.M., 991 A.2d 321 (Pa.Super.2010), is misplaced to the extent the Majority cites it for the proposition that a maternal grandfather may adopt and co-parent with his daughter her biological children. Alternatively, to the extent J.M. may be read to allow such an adoption, I believe J.M. was wrongly decided. Second, the proposed adoption of Children by Maternal Grandfather, while Mother retains parental rights, would not create a new parent-child relationship or a new family unit because, among other things, Maternal Grandfather is married to, and resides in a separate household with Maternal Grandmother. Accordingly, I would reverse the trial court's order terminating Father's parental rights pursuant to Section 2511(a)(1) and (b) of the Act.
Mother initiated these proceedings by the filing of an involuntary petition to terminate Father's parental rights to Children under Section 2512 of the Act. Mother wishes to retain her parental rights to Children. To do so, Mother first must present a petition that on its face identifies a qualified person willing and able to adopt the Children.2 E.M.I., 57 A.3d at 1287. An involuntary petition to terminate a natural parent's rights when filed by one parent against the other is only cognizable if it is accompanied by a prospective stepparent's intention to adopt the child. In Re Adoption of L.J.B., 610 Pa. 213, 18 A.3d 1098 (2011) (plurality). As our Supreme Court explained:
Once a natural parent's rights are terminated, the concomitant adoption fosters a new parent-child relationship. Such a rule is sound because termination of the natural parent's rights prior to adoption and allowance of stepparent adoption is for purposes of protecting the integrity and stability of the new family unit.... Thus, where no new parent-child relationship is contemplated, the involuntary termination of parent rights is not permitted under the Adoption Act.
Id. at 1108. (internal quotation marks and citation omitted). Therefore, involuntary termination is not permitted when no adoption or “new parent-child relationship” is contemplated, because the sole purpose of termination is to further adoption and establish a “new family unit.” L.J.B., 18 A.3d at 1108 (noting “where a prospective stepparent, due to separation or pending divorce with the other natural parent, will no longer complete the family unit, the termination of a natural parent's rights due to abandonment must be vacated”).
It has long been held that the Act is not intended to be used as a sword against a parent. This point of law originated in a case decided by our Supreme Court in 1977. See In re B.E., 474 Pa. 139, 377 A.2d 153, 156 (1977).
For an adoption to proceed under the Act, the parents of a child must give consent to the adoption and relinquish their rights to the child. 23 Pa.C.S.A. § 2711. A limited exception to this general rule exists in Section 2903 of Act when one parent wishes to retain parental rights. Section 2903 provides “[w]henever a parent consents to the adoption of his child by his spouse, the parent-child relationship between him and his child shall remain whether or not he is one of the petitioners in the adoption proceeding.” 23 Pa.C.S. § 2903 (emphasis added). We have construed this provision to apply “only to ‘stepparent’ situations.” In re Adoption of J.D.S., 763 A.2d 867, 871 (Pa.Super.2000) (emphasis added). This provision does not apply to individuals whose relationship with the petitioning parent is not a legally recognized marriage. Id. (concluding that stepfather who has separated from mother in contemplation of divorce and no longer resided with her failed to meet the statutory prerequisites for termination of father's parental rights); see also L.J.B., 18 A.3d at 1108 (noting “where a prospective stepparent, due to separation or pending divorce with the other natural parent, will no longer complete the family unit, the termination of a natural parent's rights due to abandonment must be vacated”). Thus, for a non-spouse to adopt children under Section 2711 of the Act, the Children's natural parents must relinquish their parental rights, either voluntarily or involuntarily. See R.B.F., 803 A.2d at 1199. Maternal Grandfather here is a non-spouse to Mother. A facial review of Mother's involuntary petition therefore, fails to establish a qualified adoptive resource.
Except for when cause may properly be shown under Section 2901 of the Act. See In re Adoption of R.B.F., 569 Pa. 269, 803 A.2d 1195 (2002). (same sex partners permitted to show cause why they should not have to comply with relinquishment of parental rights by one partner if the purpose and necessity of the Act was otherwise satisfied).
The Majority acknowledges that a termination petition first must meet threshold requirements under the Act before a court may proceed to a Section 2511(a) and (b) termination analysis. See also E.M.I., supra. Despite this recognition, the Majority proceeds to review first whether Father's rights were properly terminated by the trial court under Section 2511(a) and (b) of the Act before addressing the question of whether Mother's petition at the outset sets forth the necessary grounds for adoption as permitted under the Act. As stated, Mother's proposed adoption of Children by her father does not meet the spousal exception for retention of parental rights under Section 2903 of the Act. Before proceeding to an analysis of whether Father's parental rights may be terminated under Section 2511(a) and (b), it was incumbent upon the trial court and this Court first to consider whether Mother's father, Maternal Grandfather, is a qualified adoptive resource for Children. Because Mother's father cannot qualify as Mother's spouse, Mother had the burden of demonstrating “cause” under Section 2901 of the Act as to why her father should be permitted to stand in the shoes of a spouse as contemplated under Section 2903. It is with the preservation of these thresholds questions and fundamental purposes underlying the Act where I part paths with the Majority. To the extent the trial court concluded Mother established “cause” to permit adoption of her Children by her father, I conclude it abused its discretion and erred as a matter of law.
Although the statutory reference for “good cause” was not cited by the trial court, Section 2901 of the Act provides, in part, “[u]nless the court for cause shown determines otherwise, no decree of adoption shall be entered unless the natural parent or parents' rights have been terminated....” See 23 Pa.C.S. § 2901.
The Majority takes as a given that this Court's decision in J.M. established a rule whereby a non-spouse adoptive nominee can be a child's maternal grandfather to co-parent with the maternal grandfather's daughter. Maj. Op. at p. 1273. As stated, I believe the Majority's reliance upon J.M. is misplaced, or alternatively, J.M. was wrongly decided.
Prior to J.M., this Court unequivocally held that a maternal grandmother could not adopt the child of her daughter while her daughter retained parental rights to the child. In re Adoption of K.M.W., 718 A.2d 332 (Pa.Super.1998). The Act does not permit a non-spouse to adopt a child where both parents have not relinquished parental rights. Id.
The trial court in J.M. found that adoption by the maternal grandfather would not create a new family unit given that mother and maternal grandfather maintained separate households since the child's birth and maternal grandfather never maintained physical custody of the child. Upon appeal, this Court expressly declined to address whether the record supported these findings by the trial court, and hence, whether a new family unit was being created, because this Court felt it necessary first to “confront whether prevailing Pennsylvania law permits Maternal Grandfather to formally step into the void Father created.” J.M., 991 A.2d at 325–26. Citing our Supreme Court's decision in R.B.F., which permitted petitioners in two cases to show cause why adoption should proceed by their unmarried same-sex partners without termination of the rights of the respective natural parents, this Court summarily concluded it believed the same principles should apply in J.M. Accordingly, in J.M. we ordered a remand to permit the petitioners to show cause under Section 2901 of the Act as to why the proposed adoption should proceed.
Although we allowed an opportunity to show cause in J.M., the issue of whether cause was shown, or whether the maternal grandfather in that case could qualify as an adoptive resource with his daughter was never expressly decided by this Court. To the extent this Court and the trial court rely upon J.M. to summarily conclude Maternal Grandfather here qualifies as an adoptive resource, that reliance is misplaced. This Court proceeded only so far as to remand the case to the trial court for a preliminary determination under Section 2901 to determine if cause could be shown whether maternal grandfather could step into the void created by father for the adoption to proceed. J.M., 991 A.2d at 326–27.
Alternatively, to the extent J.M. may be read to support the proposition a maternal grandfather may adopt and co-parent a child that is the biological child of his daughter, I believe J.M. was wrongly decided. J.M. relied upon R.B.F., which permitted petitioners in two separate cases an opportunity to demonstrate, by clear and convincing evidence, cause as to whether the purpose of Section 2711(d)'s relinquishment of parental rights (a prerequisite to adoption) would be otherwise fulfilled or unnecessary when adoption was proposed by a same-sex partner.
The first case in R.B.F. concerned a petition by a proposed adoptive father and his domestic partner to allow the domestic partner to adopt father's children. In the second case, the biological mother and her same-sex domestic partner filed a petition to permit the domestic partner to adopt mother's child who had been conceived by in vitro fertilization with the sperm of an anonymous donor. In both cases, the children only had one legal parent. These cases did not concern involuntary termination petitions.
In reversing this Court, our Supreme Court in R.B.F. noted that we correctly held that a legal parent had to relinquish parental rights prior to adoption by a non-spouse and that a same-sex partner could not attain the benefits of the spousal exception under Section 2903, because Pennsylvania at the time recognized only marriages between one man and one woman. The Supreme Court noted, however, that the Legislature in 1982 amended Section 2901 of the Act to provide a court discretion to consider “cause shown” by a petitioner as to why, in a particular case, he or she cannot meet statutory requirements under the Act.
As to the meaning of “cause,” the Supreme Court agreed that a demonstration of “cause” permits a petitioner to show why in a particular case he or she cannot meet statutory requirements. Id. at 1201–02. Upon a showing of cause, a court is afforded discretion to determine if the adoption should, nevertheless, be granted. Borrowing from this Court's decision in In re Long, 745 A.2d 673 (Pa.Super.2000), the Court cited with approval our interpretation of “cause shown” to require clear and convincing evidence that the exception sought (need for adoption information) clearly outweighed the considerations behind the statute. R.B.F., 803 A.2d at 1203. The Court cautioned, however, that it was not opening the “door to unlimited adoptions by legally unrelated adults,” and that it was not creating a judicial exception to the requirements of the Act. Id. at 1202. Rather, it was employing the plain meaning of the terms used by the Legislature. The Court noted the Act does not expressly preclude unmarried same-sex partners from adopting a child who has no legal parents. The Court, therefore, vacated our orders and remanded to the trial courts “for evidentiary hearings to determine whether [a]ppellants can demonstrate by clear and convincing evidence, cause as to whether the purpose of Section 2711(d)'s relinquishment of parental rights requirement will be otherwise fulfilled or is unnecessary under the particular facts of each case.” Id. at 1203 (bolded emphasis added).
The remands in R.B.F. permitted the same-sex couples an opportunity to show cause why the purpose of Section 2711(d)'s relinquishment of parental rights was fulfilled or unnecessary so that the proposed adoptions could proceed. Although the outcome of those remand proceedings is not of record, it would seem that “cause” could be shown to excuse the requirement of relinquishment of parental rights under Section 2711(d), because there were no other legal parents from whom consent had to be acquired. Demonstrating relinquishment under Section 2711(d) would therefore be unnecessary. The same-sex couples in R.B.F. had been in long-term, intimate relationships, but those relationships were insufficient to confer upon them the benefits of Section 2903, which applies only to stepparents, i.e., spouses of the natural/adoptive parents. Under these circumstances, it also would appear the essential purpose for claiming the exemption for spousal adoption under Section 2903 could be fulfilled where the individuals concerned were in relationships like spouses that comport with the spirit—but not the letter—of Section 2903.
J.M. and the instant case present situations wholly different from the considerations at issue in R.B.F. Here, as in J.M., at least two statutory steps must be satisfied before Maternal Grandfather can be allowed to adopt and co-parent Children with Mother. First, involuntary termination of the other natural parent's (Father) rights must be granted. Second, the involuntary termination petition must set forth a qualified person to adopt Children if termination is approved. As to the first statutory requirement, unlike in R.B.F., where consent was unnecessary because of the absence of another legal parent, Children here and in J.M. have a natural parent whose rights first must be involuntarily terminated before adoption can be allowed to proceed. Therefore, although consent in R.B.F. might have been waived for cause given the voluntary nature of the proceeding and the absence of another legal parent, here the purpose and necessity for termination cannot be waived due to the presence of another natural parent and the involuntary nature of the petition.
As for the second statutory requirement, as stated, in Pennsylvania a petition to terminate a parent's rights involuntarily when filed by one parent against another is cognizable only when it is accompanied by a prospective stepparent's intention to adopt the child. See L.J.B., 18 A.3d at 1107 (citing 23 Pa.C.S. § 2512(b)). Parents may only consent to adoption of their child and retain parental rights when a person that is their spouse, i.e., the stepparent to the child, adopts the child. See 23 Pa.C.S. § 2903.
I do not believe the necessity and purpose for this statutory requirement can be dispensed with for “cause” where the proposed “spouse” is the mother's father. Unlike the situation in R.B.F., where the same-sex partner might demonstrate cause on the basis he or she is the equivalent of a spouse under Section 2903, a similar argument cannot be made here, or in J.M. There is strong public policy against an arrangement whereby a woman's father can be considered the equivalent of a spouse under Section 2903. Although not entirely the same, it is hard to envision that the Legislature intended to permit fathers and their daughters to co-parent when the Marriage Law expressly prohibits a man from marrying his daughter and a woman from marrying her father. 23 Pa.C.S. § 1304. Indeed, I do not believe the Legislature intended such results when it enacted the cause provision under Section 2901 of the Act. It is one thing to argue and prove by clear and convincing evidence the equivalent of or lack of necessity for a statutory provision where the parties can comply with the purpose of the Act, but not the letter. See R.B.F., 803 A.2d at 1203 (remanding for evidentiary hearings to determine whether the appellants, same sex couples who, at the time, were not permitted to marry in Pennsylvania, “can demonstrate by clear and convincing evidence, cause as to whether the purpose of Section 2711(d)'s relinquishment of parental rights requirement will be otherwise fulfilled or is unnecessary under the particular facts of each case”) (emphasis added). It is quite another thing to eradicate a statutory provision under the guise of cause where both the purpose and the letter of the statute are ignored and the exception allowed to swallow the rule. See id. at 1202 (stating that the decision “does not open the door to unlimited adoptions by legally unrelated adults”); L.J.B., 18 A.3d at 1108 (stating that the purpose of an adoption is to “protect[ ] the integrity and stability of the new family unit”). Although the discretion given to courts under Section 2901 is useful to permit an acceptable substitute for a legislative requirement, this discretion is not so broad as to permit a court to rewrite a statute and entirely upend and redefine the basic purpose of the Act as envisioned by the Legislature.
Permitting a mother's father to adopt mother's child and co-parent with mother has the very real potential to create unintended and undesirable consequences that do not promote a new family unit. Instead, such an arrangement may be very confusing and would not foster a new family unit. To illustrate, a child's grandfather or grandmother would become the child's stepfather or stepmother. Similarly, the child's father or mother may become the child's stepbrother or stepsister. Should the natural mother or father choose to remarry, nothing in the Act compels the grandparent, now parent, to terminate their parental rights in favor of mother's new spouse. Upon remarriage, the child's parents would not be his or her mother and her spouse, but rather, the child's parents could remain as his or her mother and mother's father, with the mother's new spouse unable to bond with the child in a new family unit. If the grandparent is allowed to remain as an adoptive parent when mother remarries, a family unit would be created whereby the married spouses would not both be parents to the child or children.
It is apparent from Maternal Grandfather's uncontradicted testimony that none of the above practical ramifications were considered when Mother and Maternal Grandfather decided to file their petition to terminate Father's parental rights to Children. Even though Maternal Grandfather expressed his desire to see his daughter settle down at some point in another relationship, he had not thought about how that would affect his role with Children if he were allowed to adopt them at this time. N.T., 8/13/13, at 23–26. Certainly, we cannot countenance a construction of the Act whereby its application would cause tremendous uncertainty in a child's life as to who are his or her parents. Conflict is inherent in an arrangement where a grandparent with parental rights may choose to parent differently than the married couple with whom the child presumably would be living. We do not believe the Legislature intended for such confusing results to occur when it enacted the cause provision under Section 2901 of the Act. Accordingly, I would conclude that Mother's Section 2512 involuntary petition that identified her father as an adoptive resource, fails to meet the initial threshold requirement of setting forth a qualified adoptive parent for Children under Section 2512 of the Act.
The second principal basis upon which I disagree with the Majority is the conclusion that the arrangement proposed by Mother would constitute a new parent-child relationship and a new family unit. As explained above, a biological parent is permitted only to avail him or herself of the benefits of the involuntary termination provisions of the Act when the proposed termination of the other biological parent's rights would lead to a child's adoption by an individual with whom the child shares a parent-child relationship and the adoption fosters a new family unit for the child.
Conspicuously absent from the trial court's decision is a determination that Maternal Grandfather's adoption of Children would create a new family unit. My review of the record and the findings made by the trial court reveal no support for such a finding. The trial court found (and it is undisputed by the parties) that Maternal Grandfather is married to Maternal Grandmother. Maternal Grandmother did not testify at the termination hearing, and neither Mother nor Father provided any evidence regarding her relationship with Children or her position with respect to the proposed adoption. Although I cannot speculate about what a record might reveal as to Maternal Grandmother's relationship with Children, the absence of any consideration of this relationship, given the intact marriage between the maternal grandparents, is disconcerting. I would expect, given the arrangement proposed (Maternal Grandfather as parent to their daughter's children and remaining as spouse to Maternal Grandmother), the impact of a party's other household members would be a part of the determination of whether cause has been shown to permit the proposed adoption to proceed forward.
Here, the record also reflects that Maternal Grandfather resides with Maternal Grandmother, while Mother lives alone with Children. There is nothing in the record to suggest that Maternal Grandfather and Mother plan to cohabitate. Although the lack of cohabitation may not necessarily prohibit a finding of the creation of a new family unit, it is an important factor to consider. See, e.g., J.D.S., 763 A.2d at 872 (“No gain to the child or society is achieved by permitting the termination of the natural father's parental rights in order to permit adoption by a stepfather who no longer resides with the child's mother.”).
The Majority misstates our holding in J.M. when it states that this Court in J.M. expressly rejected the notion that cohabitation was a necessary component of a “new family” unit. The trial court in J.M. found that adoption by the maternal grandfather would not create a new family unit given that mother and maternal grandfather maintained separate households since the child's birth and maternal grandfather never maintained physical custody of child. This Court expressly declined to address whether the record supported these findings by the trial court, and hence, whether a new family unit was being created, because this Court felt it necessary first to “confront whether prevailing Pennsylvania law permits Maternal Grandfather to formally step into the void Father created.” J.M., 991 A.2d at 325–26. Citing our Supreme Court's decision in R.B.F., 803 A.2d at 1199, this Court summarily concluded it believed the same principles should apply in J.M. Accordingly, in J.M. we ordered a remand to permit the petitioners to show cause under Section 2901 of the Act as to why the proposed adoption should proceed. Although we allowed the opportunity to show cause in J.M., the issue of whether cause was shown, or whether cohabitation was a necessary component to a new family unit, were never resolved by this Court. Furthermore, there is no need now to address whether “cohabitation” is per se an indispensable element to a “family unit” analysis in light of the totality of facts in this case. Specifically, it is the lack of cohabitation, or any intent to do so, between Mother and Maternal Grandfather and Maternal Grandfather's intact marriage to and separate residence with Maternal Grandmother that leads to the conclusion that no new family unit will be created by the proposed adoption in this case.
I find support for concluding that no new family unit will be created under Mother's involuntary petition in the related area of custody. When awarding custody, the trial court always must consider the impact of other household members before an award of even partial custody may be made. See 23 Pa.C.S. § 5328(a). It is unreasonable to conclude that a trial court must employ a higher level of scrutiny of a person's household in deciding whether to grant the party partial custody of a child than it would when deciding whether to permit the party to adopt a child. Additionally, in the context of grandparental standing under 23 Pa.C.S. § 5324(2) to sue for custody, we have held that, to satisfy in loco parentis, a grandparent must reside with the children and/or their parents and assume full parental responsibility. See D.G. v. D.B., 91 A.3d 706 (Pa.Super.2014) (Noting that the grandmother's “efforts to assist [m]other and E.B. in leaving her home are strongly inconsistent with an assumption of full parental responsibility [... and t]he periods of co-residence are more consistent with [g]randmother assisting [m]other and E.B. in a time of need than with [g]randmother's informal adoption of E.B.”).
Continuing, I fail to see how Maternal Grandfather's adoption of Children would create a new family unit, as they already are members of the same family. Unlike cases of stepparent adoptions or unmarried partner adoptions, wherein the prospective adoptive parent shares no legal relationship with the child, Maternal Grandfather is Children's blood relative. He is their mother's father.
Contrary to the Majority's conclusion, I also find that Mother's and Maternal Grandfather's reason for filing their involuntary termination and adoption petition does not comport with the purpose of the Act not to use a termination to punish an ineffective or negligent parent. See L.J.B., 18 A.3d at 1108. Here, relying upon Maternal Grandfather's testimony, the trial court found that the principal purpose for the filing of the involuntary termination and adoption petition was to respond to Father seeking custody of Children after a long period of parental non-involvement. Maternal Grandfather testified that he had previously contemplated adopting Children, but did not proceed because he “didn't see a need.” N.T., 8/13/13, at 2627. The “need” only arose once Father filed a petition for custody of Children, which, according to Maternal Grandfather, “threatened [to turn Children's worlds] upside down.” Id. at 27. Using an involuntary termination petition as a defensive mechanism against a parent seeking custody of his or her children further does not comport with the purposes of the Act. L.J.B., supra; B.E., supra. Accordingly, I am compelled to hold that the trial court abused its discretion and erred as a matter of law by concluding cause was demonstrated to permit the adoption of Children by Maternal Grandfather as no new parent-child relationship or family unit would be created as proposed under Mother's involuntary termination petition.
The Majority states that the Orphans' court made clear it understood Mother's and Maternal Grandfather's objective in filing their termination petition was to protect Children. Maj. Op. at 1264–65. The trial court nowhere in its opinions made this finding or any such statement.
I would not take issue with the trial court's findings under Section 2511(a)(1) and (b) if the question of involuntary termination could be reached by the trial court. Because the trial court erred in finding cause on the threshold question of whether the involuntary petition proposed a termination and adoption to create a new parent-child relationship and family unit, any consideration of Section 2511(a)(1) and (b) was premature.
Lastly, I find the Majority's reference to Section 2312 of the Act to be unconvincing. Section 2312 provides the general statement that “[a]ny individual may become an adopting parent.” 23 Pa.C.S. § 2312. The Majority interprets this provision as all-encompassing, so as to eradicate all other statutory requirements, in particular, the more specific statutory requirements for adoption under the Act, including the spousal requirement under Section 2903. All provisions of the Act, however, must be read in pari materia. See 1 Pa.C.S. § 1932(a), (b) (“[S]tatutes are in pari materia when they relate to the same ... things .... [and] shall be construed together, if possible, as one statute.”). The Statutory Construction Act also makes clear that, to the extent two statutory provisions are in conflict and cannot be construed to give effect to both, the more specific provision will control. See 1 Pa.C.S. § 1933. As between Sections 2312 and 2903, there can be no doubt Section 2903 is the more specific provision. Nonetheless, in the same breath the Majority acknowledges the “any individual” language under Section 2312 is subject to “good cause shown” under Section 2901 of the Act, thereby contradicting the all-encompassing attribute the Majority seeks to ascribe to Section 2312 for purposes of this matter.
In closing, I emphasize I do not intend to minimize in any manner the substantial contributions and support provided by Maternal Grandfather to his daughter and to his grandchildren. Maternal Grandfather indeed has offered the type of emotional and financial support much needed and often times typical of extended family, especially when one finds a child in need or not fully prepared to address the challenges of having to parent children alone. Despite how I would decide this matter, I also am fully cognizant of the custody rights possessed by Maternal Grandfather under the Custody Act with respect to his grandchildren. Although termination of parental rights and adoption of Children cannot be sanctioned as proposed in this case, the trial court nonetheless has significant authority and discretion under the Custody Act to enter appropriate custody orders vis-à-vis Father and/or Maternal Grandfather in Children's best interests. This Court, however, does not have the authority to redefine and rewrite the many provisions of the Adoption Act that would be required to grant the termination and adoption sought in this case. Understandably, I reject the Majority's criticism that an outcome here contrary to the one reached by the Majority is the product of a rigid mindset that ignores evolving societal norms. It is not the role of this Court to establish societal norms. Barring a change in the law by our Legislature or an express reinterpretation of existing statutes by our Supreme Court, I would be constrained to reverse, based on an abuse of discretion, the trial court's decree terminating Father's parental rights and approving the adoption of Children by Maternal Grandfather.
Act of November 23, 2010, P.L. 1106, 23 Pa.C.S. §§ 5321–5340.
For all of the foregoing reasons, I respectfully dissent.
Judge DONOHUE and Judge SHOGAN join this dissenting opinion.