J-A26006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.M. IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
S.A.
Appellant No. 777 MDA 2017
Appeal from the Order Entered April 4, 2017 In the Court of Common Pleas of Sullivan County Civil Division at No(s): 2011-243
BEFORE: BOWES, OLSON, AND RANSOM, JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 18, 2018
S.A. (“Father”) appeals from the April 4, 2017 order entered in the Court
of Common Pleas of Sullivan County which granted the petition filed by C.M.
(“Mother”) to involuntarily terminate his parental rights to their minor son,
C.A. As evidenced by the foregoing caption that is more appropriate in
domestic relations court than orphans’ court, the genesis of the instant appeal
lies in custody litigation that Mother initiated against Father on October 18,
2011. We reverse.
C.A. was born during August of 2011, in Philadelphia, Pennsylvania, as
a result of Mother’s intermittent relationship with Father. N.T., 2/23/17, at 8,
10. Father was present during birth, but the family never resided together.
Id. at 11-12. Approximately one month after her son’s birth, Mother moved J-A26006-17
with C.A. to her parents’ home in Sullivan County, Pennsylvania, and initiated
the underlying custody litigation. Id. at 12-13. The trial court awarded
Mother primary physical and legal custody of C.A. after Father failed to attend
a preliminary custody conference. She has exercised sole custody of C.A.
throughout his life. During May 2014 and July 2015, Father filed two
unsuccessful motions to modify the 2011 custody order. The trial court
dismissed the 2014 petition after Father failed to attend the ensuing custody
conference. Father’s later attempt was derailed on September 16, 2015, when
Mother filed a petition to terminate his parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(1) and (a)(2).
In order to comply with § 2512(b), which has been interpreted as
requiring a petitioning parent to identify the person with a present intention
to adopt, Mother averred that her father, Charles Murray (“Grandfather”)
intended to adopt C.A. upon the termination of Father’s parental rights. The
termination hearing was held on February 23, 2017. Mother testified in
support of the petition for termination and proffered one witness: Grandfather,
who confirmed his intent to adopt C.A. if Father’s parental rights were
terminated. Grandfather, who C.A. refers to as “Pop Pop,” has supported
Mother and C.A. since 2012. N.T., 2/23/17, at 21, 59. During her testimony,
Mother explained that she and Father rarely spoke to one another during the
first three years after C.A.’s birth and that, while Father knew Grandfather’s
address, he remained absent from his son’s life. Id. at 13, 18. She continued
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that, except for a few visits prior to their relocation to Sullivan County, Father
never visited with C.A., sent gifts, or provided Mother with financial support.
Id. at 15, 20. Mother attested that, although she did not prohibit Father from
visiting C.A. or interfere in the father-son relationship, Father neglected to
interact with C.A., other than the few visits that occurred during 2012. Id.
16, 18, 19.
As it relates to the dispositive issues in this case, Grandfather testified
that the primary reason for desiring to adopt C.A. was to change the child’s
surname, which the family had already altered informally. Id. at 60. During
cross-examination, Grandfather added that he also intended for the adoption
to formally ratify the fact that C.A. was part of his family. He explained, “I
figure him part of the family and that’s where he belongs, with us.” Id. at 61.
Noting the fact that he currently was C.A.’s de facto parent, Grandfather
added, “I’ve done the same for him as I’ve done for my own children and I
look at him as being one of them also.” Id. at 62. Grandfather did not discuss
the perspective of his wife (“Grandmother”) on the proposed adoption, and
Mother neglected to adduce any evidence on that topic. Father countered with
testimony concerning the barriers that he claimed Mother erected to interfere
with his relationship with C.A. Following the close of evidence, and
confirmation of Father’s paternity, the trial court granted Mother’s petition to
terminate Father’s parental rights.
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Father timely filed a notice of appeal along with a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
He raises the following issues for our review:
A. Whether the [trial court] committed an error of law and/or an abuse of discretion by failing to adequately consider [F]ather’s evidence of his continued interest and attempts to have a relationship with the minor child and [M]other's efforts to keep him from maintaining a relationship with the minor child.
B. Whether the [trial court] committed an error of law and/or abuse of discretion and ignored the evidence of record in erroneously finding that [F]ather's conduct for a period of at least six (6) months immediately preceding the filing of [M]other's petition has evidenced a settled purpose of relinquishing his parental claim to the minor child and/or has refused or failed to perform his parental duties, pursuant to 23 Pa.C.S. § 2511(a)(1).
C. Whether the [trial court] committed an error of law and/or abuse of discretion and ignored the evidence of record in erroneously finding that the repeated and continued incapacity, abuse, neglect or refusal of the father has caused the minor child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by [F]ather, pursuant to 23 Pa.C.S. § 2511(a)(2).
Father’s brief at 2-3. The court-appointed counsel for C.A. neglected to file a
brief either supporting or contesting the termination of Father’s parental rights
pursuant to § 2511(a)(1).
Our standard of review is well settled.
The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law
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or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court’s decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Involuntary termination of parental rights is governed by § 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938. The sole purpose of the involuntary
termination of parental rights is to facilitate adoption. In re B.E., 377 A.2d
153, 155 (Pa. 1977). The measure is neither punitive nor a means for
changing a child’s surname. Id. As the party petitioning for termination of
parental rights, Mother was required to “prove the statutory criteria for that
termination by at least clear and convincing evidence.” In re T.R., 465 A.2d
642, 644 (Pa. 1983). Clear and convincing evidence is defined as “testimony
that is so clear, direct, weighty, and convincing as to enable the trier of fact
to come to a clear conviction, without hesitancy, of the truth of the precise
facts in issue.” Matter of Sylvester, 555 A.2d 1202, 1203–04 (Pa. 1989).
Finally, “because adoption is a statutory right, we note that the parent seeking
termination must strictly comply with all pertinent provisions of the Adoption
Act in order for the adoption to be valid.” In re Adoption of M.R.D., 145
A.3d 1117, 1120 (Pa.Super. 2016). Nevertheless, as our Supreme Court
recognized in In re Adoption of M.R.D., supra, the trial court has discretion
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pursuant to 23 Pa.C.S. § 2901, to excuse a party’s inability to satisfy the
statutory requirements for adoption upon cause shown.1
At the outset, we observe that Mother’s petition to terminate Father’s
parental rights is not cognizable pursuant to § 2512(a) and (b) because, to
the extent that Mother retains her parental rights, the proposed cessation of
Father’s parental rights was not in anticipation of a valid adoption decree that
would establish a new parent-child relationship. Hence, for the reasons
discussed infra, the order terminating Father’s parental rights cannot stand.
Pursuant to § 2512(b), a private petition to involuntarily terminate a
spouse’s parental rights is cognizable only if the averred adoption is
foreseeable. In re E.M.I., 57 A.3d 1278, 1287 (Pa.Super. 2012). As our
High Court observed forty years ago in discussing 1 P.S. § 312, the
predecessor to § 2512, “a parent may bring a petition for termination of the
parental rights of the other parent only when adoption is contemplated.” In
re B.E., supra at 155; see also In re Adoption of M.R.D., supra at 1120
(involuntary termination of parental rights is not permitted if no new parental-
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1 The Adoption Act provides in pertinent part, “Unless the court for cause shown determines otherwise, no decree of adoption shall be entered unless . . . all other legal requirements have been met.” 23 Pa.C.S. § 2901. As noted in the body of the memorandum, our Supreme Court interprets this provision as permitting “an adoption petition in circumstances where . . . the party seeking adoption is unable to meet the statutory requirements for adoption, but has demonstrated cause for his or her noncompliance with those requirements.” In re Adoption of M.R.D., 145 A.3d 1117, 1121 (Pa.Super. 2016).
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child relationship is contemplated). Later, in In re T.R., 465 A.2d 642, 644
n.10 (Pa. 1983), the Supreme Court observed that, the “singular concern of
the Adoption Act” is to “establish a new ‘parent-child relationship.’”
Accordingly, it reasoned that the trial court is required to “consider, and not
merely accept on its face,” the putative adoptive parent’s declaration of intent
to adopt in order to confirm that the purpose of the involuntary termination
of parental rights is genuine, i.e., to establish a new parent-child relationship.
Id. Moreover, our High Court’s treatment of § 2903 prohibits grandparents
from adopting their grandchildren unless the parental rights of both parents
are terminated, at least not without a demonstration of “cause shown”
pursuant to 23 Pa.C.S. § 2901, which the trial court neglected to perform
herein. In re Adoption of M.R.D., supra at 1120-1121.
Instantly, Mother’s petition averred that Grandfather would adopt C.A.
upon the involuntary termination of Father’s parental rights. During the
evidentiary hearing, she supported that averment with Grandfather’s
testimony regarding his intention to adopt C.A. and the concomitant reasons
for that objective. In entering its termination decree, the trial court accepted
this declaration on its face and ostensibly determined that Mother’s averments
and attendant evidence regarding the anticipated adoption satisfied § 2512(a)
and (b) and the related case law. As we discuss infra, the trial court’s implicit
conclusion that Grandfather’s anticipated adoption of C.A., and by necessity
the termination of Father’s parental rights, could proceed without the § 2903
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analysis justifying why Mother should not be required to relinquish her rights
is reversible error. Id. at 1129-1130.
Father does not raise this issue specifically. Indeed, as demonstrated
by our reiteration of the statement of questions presented, he challenges the
sufficiency of the evidence that Mother adduced to satisfy her burden of proof
under § 2511(a)(1) and (a)(2). Nevertheless, in addressing the sufficiency of
Mother’s evidence, we must necessarily confront the procedural posture of the
case in order to determine whether the evidence Mother adduced was, in fact,
sufficient in parental termination actions between spouses. In re Adoption
of J.D.S., 763 A.2d 867 (Pa.Super. 2000).
In In re Adoption of J.D.S., we determined that a petition for the
involuntary termination of a father’s parental rights was not cognizable
because the prospective adoption by an estranged spouse was unlikely. Like
Father in the case at bar, the father therein did not expressly challenge the
procedural status of the involuntary termination case. Indeed, identical to
Father herein, the father challenged the sufficiency of evidence underlying the
trial court’s findings under § 2511(a) and (b), and he leveled two procedural
claims that are not relevant to our discussion. In confronting what this Court
found to be the dispositive issue concerning the impossibility of the
stepfather’s proposed adoption following the collapse of his relationship with
the children’s mother, we deemed the legitimacy of the proposed adoption to
be an essential component of the father’s underlying challenge to the
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sufficiency of the evidence. We explained our rationale as follows: “While the
evidence could establish that father's conduct, or lack thereof, indicates ‘a
settled purpose of relinquishing parental claim to a child or has refused or
failed to perform parental duties,’ 23 Pa.C.S.A. § 2511(a)(1), this evidence
becomes applicable only if the procedural status of the case is such that
termination is permissible.” Id. at 870-871. As the petitioners could not
satisfy the statutory prerequisite for terminating the father’s rights, i.e., a
valid adoption by the stepfather, we vacated the order terminating the father’s
parental rights.
The instant case aligns with In re Adoption of J.D.S. Comparable to
the petitioners’ evidence supporting the statutory grounds for termination in
that case, the evidence that Mother adduced herein regarding Father’s
absence becomes relevant only if the Adoption Act can tolerate the purported
adoption of C.A. by Grandfather. Therefore, as we determined in In re
Adoption of J.D.S., supra, in order to determine the sufficiency of Mother’s
evidence for termination under § 2511(a)(1), we must first confront whether
termination of parental rights is permissible. Stated another way, the validity
of the anticipated adoption is a prerequisite for adducing sufficient evidence
for terminating parental rights pursuant to § 2511. See In re Adoption of
J.D.S., supra at 872 (since stepparent adoption was defeated by
contemplated divorce, petitioner could not meet burden of establishing
statutory prerequisite for termination of parental rights). Thus, to the extent
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that Grandfather’s anticipated adoption is invalid, Mother cannot sustain her
burden of proving the grounds for the involuntary termination of Father’s
Next, we address the legitimacy of Grandfather’s proposed adoption of
C.A. under the circumstances of this case. Our High Court in In re Adoption
of M.R.D., supra, recently confronted a similar scenario involving the
termination of parental rights to facilitate a prospective adoption by a
grandparent when the other parent retained her parental rights. The Court
concluded that the adoption was impermissible unless the mother established
cause under § 2903 to waive the relinquishment requirement.
The relevant facts of that case were as follows. The mother of twin nine-
year-old boys filed a petition to terminate the parental rights of the birth
father, who was estranged from the family, maintained little contact with the
children, and provided no financial support. The maternal grandfather
assumed responsibility for the boys beyond that of a typical grandfather.
Indeed, while he did not reside with the family, the grandfather effectively co-
parented the children with the mother. The birth father eventually resurfaced
and initiated custody proceedings. The mother countered by filing a petition
to terminate the father’s parental rights. Her petition identified the maternal
grandfather as the party intending to adopt the boys and co-parent with
Mother after the father’s rights were terminated. The trial court granted the
petition to terminate the father’s parental rights and permitted the proposed
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adoption to proceed. Sitting en banc, this Court affirmed. Essentially, we
determined that the mother established “cause shown” pursuant to § 2901 to
proceed with the proposed adoption while retaining her parental rights. In re
Adoption of M.R.D., 128 A.3d 1249 (Pa.Super. 2015) (en banc), reversed
by 145 A.3d 1117 (Pa. 2016).
In reversing that decision, the Pennsylvania Supreme Court first
reiterated that the Adoption Act did not permit grandparent adoptions simply
as a means to facilitate a termination of one parent’s parental rights while
retaining the rights of the other parent. Next, it outlined the sole exception
to the rule, which permits a parent to establish cause under § 2901 to excuse
the relinquishment requirement and proceed with the proposed adoption. The
Court described the inquiry as follows: “Mother and Grandfather may show
cause to waive the relinquishment requirement only if they can establish that
permitting Grandfather to adopt Children while Mother retains her parental
rights will promote a new family unit or that it is otherwise unnecessary to
require Mother to relinquish her parental rights under the circumstances of
this case.” In re Adoption of M.R.D., 145 A.3d at 1128. Finally, applying
this test to the facts of that case, our High Court determined that the mother
could not demonstrate cause pursuant to § 2901.
It reasoned that the grandfather and the mother were not part of an
intact cohabitating family unit, insofar as they were aligned in a vertical,
parent-child relationship rather than a “committed, horizontal relationship
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such as stepparents or same-sex partners.” Id. at 1128. Moreover, the High
Court stressed that, since the grandfather already performed co-parenting
duties, no new parent-child relationship would be created. Indeed, the
grandfather would continue to act as de facto parent. In sum, the Supreme
Court found that “[a]doption does not foster a family unit under circumstances
where, as here, the adopting party is already part of—and will continue to be
part of—a family unit that is separate from the unit which he seeks to promote
and join through adoption.” Id.
The Supreme Court further concluded that, generally, allowing
adoptions in this scenario, would invite the abuse of adoption proceedings for
illegitimate purposes. It developed the following position,
[P]ermitting Grandfather to adopt and co-parent Children with mother would . . . open the door for misuse of adoption proceedings by spiteful parents as a means to involuntarily terminate the rights of unwanted parents, potentially allowing grandparents, cousins, pastors, coaches, and a litany of other individuals who have a close relationship with a child to stand in as prospective adoptive parents so that termination may be achieved.
Id. at 1129.
Thus, the Court concluded that, while maternal grandfather’s efforts in
supporting his daughter and grandchildren were commendable, his “pre-
existing and continuing close relationship with Children does not establish
legal cause to excuse the requirement that Mother relinquish her parental
rights under Section 2711 prior to the adoption.” Id. While the Supreme
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Court stopped short of proclaiming that any grandparent adoption in this
situation is impermissible, it found that, absent proof that relinquishment was
otherwise unnecessary, the mother was required to relinquish her parental
rights to her sons in order to proceed with the proposed adoption by maternal
grandfather and the attendant termination of Father’s parental rights.
Accordingly, the Supreme Court reversed our order affirming the termination
of the father’s parental rights. Id. at 1130.
Presently, Mother desired to retain her parental rights while petitioning
that Father’s rights be terminated pursuant to § 2511(a) and (b). Like the
mother in In re adoption of M.R.D., which was decided six months before
the trial court terminated Father’s parental rights herein, Mother proposed
that Grandfather, with whom she, C.A., and Grandmother resided, adopt C.A.
to formalize their existing parent-child relationship. However, in contrast to
the facts of that case, Mother utterly ignored the requirement that she
establish cause under § 2901 as to why she should not be required to
relinquish her parental rights in order for the prospective adoption by
Grandfather to be valid. Indeed, she failed to adduce any evidence relevant
to that prerequisite, and more importantly, the trial court neglected to perform
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the § 2901 analysis in accordance with the Supreme Court’s holding in In re
adoption of M.R.D., supra, prior to terminating Father’s parental rights.2
2 We observe that the facts and procedural history of this case and In re Adoption of M.R.D. are remarkably similar. Both cases arise from custody disputes involving deadbeat fathers. Similarly, the prospective adoptive grandfathers were married, enjoyed pre-existing parent-child relationships with their grandsons, and effectively stood in the shoes of the respective birth fathers in relation to co-parenting and providing for the family. Hence, in either situation the proposed adoption would do nothing more than formalize the respective grandfathers’ role as a de facto parent.
The only difference between the two cases is that Mother and C.A. reside with Grandfather while the children at issue in In re Adoption of M.R.D. did not live with their grandfather. However, in light of the recognition that “cohabitation is not the sine qua non of a new family unit,” and the fact that Mother and Grandfather continue to maintain a vertical parent-child relationship, the importance of cohabitation is diluted. Id. at 1123, citing In re Adoption of J.M., 991 A.2d 321 (Pa.Super. 2010). Grandfather’s cohabitation with Mother and C.A. does not negate the reality that the adoption would not produce anything beneficial that did not previously exist.
Furthermore, the cases are identical in that, if permitted in contravention of § 2901, both of the proposed grandfather adoptions would have disturbed the family dynamics with absurd results. As the High Court explained in In re Adoption of M.R.D.,
such an arrangement would create confusing hybrid relationships within the family—Grandfather would be both Children's father and grandfather, Grandmother would be both a grandmother and a stepmother, and, more confusing still, because of Grandmother's status as a stepmother, Mother would be both a mother to Children and, technically, their stepsister. Further complicating matters, if Mother ever seeks to marry, the Act does not require Grandfather to terminate his parental rights in favor of Mother's spouse; thus, he could decide to remain Children's father and prevent Mother's spouse from having legal rights over Children.
In re Adoption of M.R.D., supra at 1128-1129.
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As Grandfather’s proposed adoption is statutorily invalid absent the
§ 2901 demonstration of “cause shown,” Father’s rights cannot be terminated.
See In re Adoption of J.D.S., supra at 872 (petitioner could not establish
statutory prerequisites for termination of parental rights when proposed
adoption was unsustainable).
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 01/18/2018
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