J-S48030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF K.M.R. IN THE SUPERIOR COURT OF PENNSYLVANIA
APPEAL OF: M.T.R., JR.
No. 287 WDA 2016
Appeal from the Order Entered January 19, 2016, in the Court of Common Pleas of Fayette County, Orphans' Court at No(s): 18 Adopt-2015.
BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 20, 2016
Appellant, M.T.R, Jr. (“Father”) appeals from the Order involuntarily
terminating his parental rights to three-year-old K.M.R. (“Child”) pursuant to
the Adoption Act, 23 Pa.C.S. § 2511(a) and (b).1 In light of the recent
Supreme Court decision in In Re: Adoption of M.R.D. and T.M.D, ___
A.3d ___, 2016 WL 4541129 (Pa. 2016), we are constrained to reverse the
trial court’s Order terminating Father’s parental rights.
The facts of this case are as follows. In May 2013, K.D.W. (“Mother”)
gave birth to Child. Mother and Father were never married and except for a ____________________________________________
1 On August 2, 2016, we issued a Memorandum Opinion affirming the trial court. On August 29, 2016, however, the Supreme Court issued its decision In Re: Adoption of M.R.D. and T.M.D., ___ A.3d ___, 2016 WL 4541129, (Pa. 2016), which is directly on point with the facts of this case. On August 31, 2016, we sua sponte issued an Order withdrawing our Memorandum Opinion and reconsidering our decision. J-S48030-16
short period following Child’s birth, Mother and Father have never lived
together. Rather, Mother and Child live with Mother’s father, T.D.W.
(“Maternal Grandfather”), his wife, and Mother’s two younger sisters.
Mother testified that her relationship with Father was unstable. She
initially permitted Father to visit Child at her family’s home and tried to
involve Father in Child’s life, but she stopped doing this after Father
forcefully tried to remove Child from her care twice.
Child was seven months old in December 2013 when Father began to
make less of an effort to see Child. Father’s contact with Child became
increasingly sporadic and infrequent. When Father visited Child, he
continued to abuse drugs and even nodded off while holding Child. When
Father decided to visit, he would frequently appear at Mother’s home after
Child had fallen asleep. More importantly, Father never cared for Child.
Father never bathed Child, never changed a diaper, and never woke up in
the middle of the night to care for Child.
Father’s last visit with Child occurred during Child’s first birthday party
in May 2014. Shortly thereafter, Father voluntarily committed himself to
drug rehabilitation in Florida in order to treat his heroin addiction, and
subsequently returned for treatment in December 2014 and January 2015.
Father admitted that even though the rehabilitation facilities permitted
him to write letters and make some telephone calls, he did not attempt to
contact Child during those times. He also admitted that he failed to contact
Mother to find out about Child even though she resided at the same address
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and Father possessed phone numbers for Mother and her family. Aside from
sporadic Facebook messages and one attempt to have his own father deliver
money to Child in a Christmas card in 2014, Father did not attempt to
maintain contact with Child.
On May 7, 2015, approximately twelve months after Father’s last
contact with Child, Mother filed a Petition for the Involuntary Termination of
Parental Rights (“TPR Petition”) as to Father pursuant to 23 Pa.C.S. §
2511(a)(1).
On September 23, 2015, the Orphans’ Court held an evidentiary
hearing on the TPR Petition. Mother testified and presented the testimony of
Maternal Grandfather, who has been involved in Child’s life, and wants to
adopt Child. Father testified on his own behalf and presented the testimony
of Paternal Grandfather.
By decree entered January 19, 2016, the Orphans’ Court granted the
TPR Petition based upon Sections 2511(a)(1) and 2511(b). This timely
appeal by Father follows.
ISSUES ON APPEAL
Father raises the following issues on appeal:
1. Did the [Orphans’] Court err in terminating [Father’s] parental rights when the proposed adoptive parent is [Child’s Maternal Grandfather].
2. Did the [Orphans’] Court err in terminating [Father’s] parental rights when [Mother] failed to prove by clear and convincing evidence that her grounds for seeking the termination of parental rights were valid.
-3- J-S48030-16
Father’s Brief at 1.
LEGAL ARGUMENT
We will address Father’s first issue because that issue disposes of this
appeal. Father avers that the Orphans’ Court erred in terminating Father’s
parental rights because it is the Child’s Maternal Grandfather who is the
adoptive resource. Father’s Brief at 1. In light of the recent Supreme Court
decision in In Re: Adoption of M.R.D., supra, we are constrained to agree
that the trial court erroneously granted the TPR petition.
The Supreme Court in In Re: Adoption of M.R.D., supra, addressed
the statutory scheme for adoptions in which it is a parent, instead of a child
welfare agency, that files a petition to terminate parental rights of the other
parent. In such cases, the parent who has filed the TPR Petition must
establish not only the requirements set forth in 23 Pa.C.S. § 2511, but also
that the prospective adoptive parent is authorized to adopt pursuant to the
Adoption Act. 23 Pa.C.S. § 2512(b); In Re: Adoption of M.R.D., supra at
*3.
The Adoption Act explicitly authorizes only a stepparent to be the
adoptive resource when it is a biological parent who is filing a TPR petition
against the other biological parent. See 23 Pa.C.S. § 2903. If, however,
the adoptive resource is someone other than a stepparent, the Adoption Act
requires the biological parent who is filing the TPR petition to relinquish his
parental rights. 23 Pa.C.S. § 2711(a)(3); In Re: Adoption of M.R.D.,
supra at *3.
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Applying this interpretation of the Adoption Act to the facts in In Re:
Adoption of M.R.D., supra, the Supreme Court concluded that “while the
Adoption Act allows a parent to retain his or her rights in cases where a
stepparent petitions to adopt his or her child, the Act contains no other
provision authorizing a biological parent who consents to an adoption to
retain his or her parental rights.” Id. at *10 (internal citation omitted).
The Supreme Court continued its analysis by considering whether the
trial court could waive the relinquishment provision under Section 2901.
Section 2901 permits the trial court to waive requirements set forth in the
Adoption Act for “cause shown[.]” 23 Pa. C.S. § 2901; In Re: Adoption of
M.R.D., supra at *10.
The Supreme Court concluded that it was only proper for the trial court
to waive the requirement of relinquishment in cases in which “the parent and
the prospective adoptive parent are committed partners—that is, they are
involved in a horizontal relationship, are equals as between each other, and
are equals with respect to the child.” Id. at *11. The Supreme Court,
however, refused to interpret the “cause shown” provision to allow the trial
court to waive the relinquishment requirement where the adoptive resource
is a grandparent because “[a]doption does not foster a family unit under
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J-S48030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF K.M.R. IN THE SUPERIOR COURT OF PENNSYLVANIA
APPEAL OF: M.T.R., JR.
No. 287 WDA 2016
Appeal from the Order Entered January 19, 2016, in the Court of Common Pleas of Fayette County, Orphans' Court at No(s): 18 Adopt-2015.
BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 20, 2016
Appellant, M.T.R, Jr. (“Father”) appeals from the Order involuntarily
terminating his parental rights to three-year-old K.M.R. (“Child”) pursuant to
the Adoption Act, 23 Pa.C.S. § 2511(a) and (b).1 In light of the recent
Supreme Court decision in In Re: Adoption of M.R.D. and T.M.D, ___
A.3d ___, 2016 WL 4541129 (Pa. 2016), we are constrained to reverse the
trial court’s Order terminating Father’s parental rights.
The facts of this case are as follows. In May 2013, K.D.W. (“Mother”)
gave birth to Child. Mother and Father were never married and except for a ____________________________________________
1 On August 2, 2016, we issued a Memorandum Opinion affirming the trial court. On August 29, 2016, however, the Supreme Court issued its decision In Re: Adoption of M.R.D. and T.M.D., ___ A.3d ___, 2016 WL 4541129, (Pa. 2016), which is directly on point with the facts of this case. On August 31, 2016, we sua sponte issued an Order withdrawing our Memorandum Opinion and reconsidering our decision. J-S48030-16
short period following Child’s birth, Mother and Father have never lived
together. Rather, Mother and Child live with Mother’s father, T.D.W.
(“Maternal Grandfather”), his wife, and Mother’s two younger sisters.
Mother testified that her relationship with Father was unstable. She
initially permitted Father to visit Child at her family’s home and tried to
involve Father in Child’s life, but she stopped doing this after Father
forcefully tried to remove Child from her care twice.
Child was seven months old in December 2013 when Father began to
make less of an effort to see Child. Father’s contact with Child became
increasingly sporadic and infrequent. When Father visited Child, he
continued to abuse drugs and even nodded off while holding Child. When
Father decided to visit, he would frequently appear at Mother’s home after
Child had fallen asleep. More importantly, Father never cared for Child.
Father never bathed Child, never changed a diaper, and never woke up in
the middle of the night to care for Child.
Father’s last visit with Child occurred during Child’s first birthday party
in May 2014. Shortly thereafter, Father voluntarily committed himself to
drug rehabilitation in Florida in order to treat his heroin addiction, and
subsequently returned for treatment in December 2014 and January 2015.
Father admitted that even though the rehabilitation facilities permitted
him to write letters and make some telephone calls, he did not attempt to
contact Child during those times. He also admitted that he failed to contact
Mother to find out about Child even though she resided at the same address
-2- J-S48030-16
and Father possessed phone numbers for Mother and her family. Aside from
sporadic Facebook messages and one attempt to have his own father deliver
money to Child in a Christmas card in 2014, Father did not attempt to
maintain contact with Child.
On May 7, 2015, approximately twelve months after Father’s last
contact with Child, Mother filed a Petition for the Involuntary Termination of
Parental Rights (“TPR Petition”) as to Father pursuant to 23 Pa.C.S. §
2511(a)(1).
On September 23, 2015, the Orphans’ Court held an evidentiary
hearing on the TPR Petition. Mother testified and presented the testimony of
Maternal Grandfather, who has been involved in Child’s life, and wants to
adopt Child. Father testified on his own behalf and presented the testimony
of Paternal Grandfather.
By decree entered January 19, 2016, the Orphans’ Court granted the
TPR Petition based upon Sections 2511(a)(1) and 2511(b). This timely
appeal by Father follows.
ISSUES ON APPEAL
Father raises the following issues on appeal:
1. Did the [Orphans’] Court err in terminating [Father’s] parental rights when the proposed adoptive parent is [Child’s Maternal Grandfather].
2. Did the [Orphans’] Court err in terminating [Father’s] parental rights when [Mother] failed to prove by clear and convincing evidence that her grounds for seeking the termination of parental rights were valid.
-3- J-S48030-16
Father’s Brief at 1.
LEGAL ARGUMENT
We will address Father’s first issue because that issue disposes of this
appeal. Father avers that the Orphans’ Court erred in terminating Father’s
parental rights because it is the Child’s Maternal Grandfather who is the
adoptive resource. Father’s Brief at 1. In light of the recent Supreme Court
decision in In Re: Adoption of M.R.D., supra, we are constrained to agree
that the trial court erroneously granted the TPR petition.
The Supreme Court in In Re: Adoption of M.R.D., supra, addressed
the statutory scheme for adoptions in which it is a parent, instead of a child
welfare agency, that files a petition to terminate parental rights of the other
parent. In such cases, the parent who has filed the TPR Petition must
establish not only the requirements set forth in 23 Pa.C.S. § 2511, but also
that the prospective adoptive parent is authorized to adopt pursuant to the
Adoption Act. 23 Pa.C.S. § 2512(b); In Re: Adoption of M.R.D., supra at
*3.
The Adoption Act explicitly authorizes only a stepparent to be the
adoptive resource when it is a biological parent who is filing a TPR petition
against the other biological parent. See 23 Pa.C.S. § 2903. If, however,
the adoptive resource is someone other than a stepparent, the Adoption Act
requires the biological parent who is filing the TPR petition to relinquish his
parental rights. 23 Pa.C.S. § 2711(a)(3); In Re: Adoption of M.R.D.,
supra at *3.
-4- J-S48030-16
Applying this interpretation of the Adoption Act to the facts in In Re:
Adoption of M.R.D., supra, the Supreme Court concluded that “while the
Adoption Act allows a parent to retain his or her rights in cases where a
stepparent petitions to adopt his or her child, the Act contains no other
provision authorizing a biological parent who consents to an adoption to
retain his or her parental rights.” Id. at *10 (internal citation omitted).
The Supreme Court continued its analysis by considering whether the
trial court could waive the relinquishment provision under Section 2901.
Section 2901 permits the trial court to waive requirements set forth in the
Adoption Act for “cause shown[.]” 23 Pa. C.S. § 2901; In Re: Adoption of
M.R.D., supra at *10.
The Supreme Court concluded that it was only proper for the trial court
to waive the requirement of relinquishment in cases in which “the parent and
the prospective adoptive parent are committed partners—that is, they are
involved in a horizontal relationship, are equals as between each other, and
are equals with respect to the child.” Id. at *11. The Supreme Court,
however, refused to interpret the “cause shown” provision to allow the trial
court to waive the relinquishment requirement where the adoptive resource
is a grandparent because “[a]doption does not foster a family unit under
circumstances where, as here, the adopting party is already part of—and will
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continue to be part of—a family unit that is separate from the unit which he
seeks to promote and join through adoption.”2 Id.
In this case, it is the Maternal Grandfather, and not a stepparent, who
is the prospective adoptive resource, and Mother is not willing to relinquish
her parental rights. Since the Adoption Act does not permit the Maternal
Grandfather to be a prospective adoptive resource unless Mother
relinquishes her parental rights, the Adoption Act does not permit the
Maternal Grandfather to be an adoptive resource.
Moreover, because Mother and Maternal Grandfather are in a “vertical,
parent-child relationship[,]” instead of a “horizontal relationship” the
adoption would not “foster a family unit” and thus, the trial court may not
find “cause shown” to waive the relinquishment requirement of the Adoption
Act. Id. at *11.
Therefore, we are constrained to reverse the trial court’s grant of the
TPR petition based on its finding that the Maternal Grandfather was an
authorized adoptive resource.
____________________________________________
2 We highlight Justice Todd’s special concurrence in this case in which she observes that the concept of “family” has evolved over the past 35 years since the legislature imposed the requirement that the adoptive resource must be a spouse or partner of the biological parent. We share this view, as well as her request that “the legislature, with continued focus on the best interests of our Commonwealth’s children, [ ] revisit the adoption and relinquishment requirements for termination of parental rights under the Act.” Id. at *16 (Todd, J., concurring).
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In light of our ruling on the first issue, we do not need to address
Father’s remaining issue.
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/20/2016
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